UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

.. IN JHEMAJTERQF 

FISHER SCIENTIFIC LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Douglas M. Rawald 

COMPLAINANT'S RESPONSE 

TO SHOW CAUSE ORDER 

·R-ECEIVED 

JUN 0 1 2016 

HEARING DOCKET 

Complainant, by and through the undersigned counsel, hereby files its Response 

to the Order to Show Cause and Provide the Requested Information served May 1 7, 20 16, 

and states the following: 

1. Respondent's counsel and the undersigned attorney exchanged several emails on 

April19, 2016, and agreed to "meet" April20, 2016 at 11 a.m. to discuss the case 

in accordance with the terms of the Order Directing the Parties to Meet and 

Confer. See Exhibit 1. 

2. On April 20, 2016, the undersiJ;,'lled and Respondent's counsel had a lengthy 

phone call discussing the issues in the case, as well as the information required by 

the Order Directing the Parties to Meet and Confer. At the end of the phone call, 

the parties agreed (emphasis added) that the information sought in the Order 

Directing the Parties to Meet and Confer could not be provided until there was a 

ruling on Respondent's Motion to Dismiss. Therefore, the parties agreed 

(emphasis added) to submit as such as their Joint Report. 

3. During this same phone call, Respondent's counsel offered to prepare the Joint 

Report for his signature, as well as the undersigned's signature. He emailed the 

report on April20, 2016. See Exhibit 2. The Joint Report contained several errors, 

including the undersigned's name and appropriate FAA office. However, before 

the undersigned could correct those errors, Respondent's counsel filed his 

unilateral report and motion for sanctions. 

4. Complainant submits Respondent's motion for sanctions is disingenuous on its 

face. The parties did indeed meet and confer on April20, 2016, as required. The 

parties had a thorough discussion of the underlying facts of the case and stated 

their respective positions. At the end of the discussion, both parties agreed it 
would be difficult to establish litigation deadlines without having a ruling on the 

pending motion to dismiss. Consequently, both parties agreed to submit that 

statement in response to the judge's order. Thus, Respondent's assertion that the 

conference did not take place is without merit. 

5"- Equally unmeritmious is Respondent's assertion that the undersigned went 

"AWOL." Respondent claims several messages were left that were unreturned; 

however, the undersigned did not receive any voicemail messages. Furthermore, 

the undersigned did not receive any email messages from Respondent. 

6. Assuming, arguendo, Complainant did not return Respondent's messages, 

Complainant submits Respondent could have submitted a joint report and 

indicated the undersigned agreed with the position articulated, even without the 

undersigned's signature. Instead, Respondent filed a pleading with the Court that 

was filled with mistmths. 

7. With respect to the information requested in the Order Directing the Parties to 

Meet and Confer, Complainant submits Respondent's pending motion to dismiss 

is possible dispositive to the case. Therefore, Complainant requests that any 

litigation scheduling/deadlines and venue decisions be postponed until a ruling on 

the pending motion to dismiss. 

WHEREFORE, based on the foregoing, Complainant respectfully requests 

Respondent's Motion for Sanctions be denied. Additionally, Complainant requests any 

litigation scheduling be postponed until there is a ruling on Respondent's pending motion 

to dismiss. 

Submitted this 31st day of May, 2016. 

, /Ja/JttP'S ;lt/«/ley 

ANDREA MICHELLE HARPER 

Senior Attorney 

Office of the Chief Counsel 

Enforcement Division, Southern Team 

2 
CERTIFICATE OF SERVICE 

I hereby certify that I have this day served a copy of the foregoing Response to Order to 

Show Cause In the Matter of Fisher Scientific LLC, Docket No. FAA-2015-1321, via 

overnight mail to: 

Jerry W. Cox, Esq. 

Potomac Strategy Associates 

2050 Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

(email) jcox@potomacstrategyassociates.com 

(tel) (703) 757-5866 

The Honorable Douglas M. Rawald 

Administrative Law Judge 

Office of Hearings, M-20 

US Department of Transportation 

1200New Jersey Avenue, SE (Ell-310) 

Washington, DC 20590 

TEL (202) 366-5121 

FAX (202) 366-7536 

and the original and one copy to: 

Hearing Docket 

Federal Aviation Administration 

600 Independence Avenue, SW 

Washington, DC 20591 

ATTN: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl000 

Jem=~lttk KIMBERLY A. HOBBS 

Administrative Officer 

MAY 3 1 201& 

Dated 

3 
Harper, Michelle (FAA) 

From: 

Sent: 

To: 

Jerry W. Cox <jcox@potomacstrategyassociates.com > 

Tuesday, April 19, 2016 5:19 PM 

Harper, Michelle (FAA) 

Subject: Re: TFSI - FAA - Chino -

Perfect. I'll look forward to "meeting" you then. Will stand by for your call. 

Jerry W. Cox (703) 757-5866 

On Apr 19,2016, at 4:55PM, <Michelle.Harper(alfaa.gov> <Michelle.Harper(alfaa.gov> wrote: . . 

Hi JerryHow's 11 a.m. tomorrow morning? I'm teleworking today and don't have access to the file. 

I will be in the office tomorrow. 

From: Jerry W. Cox [mailto:jcox@potomacstrateqyassociates.com] 

Sent: Tuesday, April 19, 2016 4:54PM 

To: Harper, Michelle (FAA) 

Subject: Re: TFSI - FAA - Chino -

I just now got back to my office. I'd be glad to speak w/you now or at any time tomorrow that 

would fit your schedule. 

Jerry W. Cox (703) 757-5866 

On Apr 19,2016, at 11:33 AM, <Michelle.lTarpen'@faa.gov> <Michelle.Hamerial,faa.gov> 

wrote: 

Yes, that's fine. 

From: Jerry Cox [mailto:jcox@potomacstrategyassociates.com] 

Sent: Tuesday, April19, 2016 11:31 AM 

To: Harper, Michelle (FAA) 

Subject: Re: TFSI - FAA - Chino -

I' II be out of the office until around 4 this afternoon. Would it be convenient to 

speak then? 

On Apr 19, 2016, at 9:55AM, <Michelle.Harper(a!,faa.gov> 

<Michelle.Hamcr@faa.gov> wrote: 

Hi Jerry1 

~GOVERNMENT 

!\' EXHIBIT 

i! A i ---=J-=---
I will give you a call this afternoon to discuss the judge's Order. 

Regards, 

Michelle Harper 

Senior Attorney 

Office of the Chief Counsel 

. Enforcement Division,- South.ern Team 

(404) 305-5200 Tel. 

(404) 305-5223 Fax 

From: Vines, William (FAA) 

Sent: Tuesday, April 19, 2016 9:23AM 

To: Jerry Cox 

Cc: Harper, Michelle (FAA) 

Subject: RE: TFSI - FAA - Chino -

Hi Jerry, 

Michelle Harper is now handling this case. I have cc' d 

her on this email. Please accept my apology for the 

delayed response. 

Regards, 

Will Vines 

General Attorney 

404-305-5200 

This message is intended solely for specific recipients. If 

you are not an intended recipient ofthis communication, 

please delete the original message and notifY the sender 

immediately. This message may be contidcntial, an 

attorney-client communication, attorney-work product, 

pari of the agency's deliberative process, and/or contain 

privacy-sensitive information. This email must not be 

forwarded or otherwise shared without express 

permission of the sender. 

From: Jerry Cox [mailto:jcox@potomacstrategyassociates.com] 

Sent: Monday, April 18, 2016 7:04 PM 

To: Vines, William (FAA) 

Subject: TFSI - FAA - Chino -

2 
I phoned you April 15 and left a voicemail concerning Judge 

Rawald's April 6 order, but I haven't heard back. Would you 

please call me? 

Jerry W. Cox I Potomac Strategy Associates 12050 Jamieson Ave., Suite 12121 

Alexandria, VA 223141 tel703-757-58661 wvvw.potomacstrateqvassociates.com 

3 
Harper, Michelle (FAA) 

From: 

Sent: 

To: 

Jerry Cox <jcox@potomacstrategyassociates.com > 

Wednesday, April 20, 2016 12:00 PM 

Harper, Michelle (FAA) 

Subject: Re: TFSI - FAA - Chino - Case No. FAA-2015-1321 

Attachments: TFSich i noJ oi ntReport0423 .016. pdf 

Please find attached a proposed fmal version of the Joint Report in response to Judge Reward's Order dated 

April 6. Unless you see a need for changes, would you please sign on page l and return to me for 

countersignature? I'll finalize the certificate of service at that time. 

I'm sure it's in both parties' interests to get back to the judge promptly. 

I also appreciate your call this morning and look forward to whatever substantive discussions might help to 

resolve this case. 

On Apr 19,2016, at 5:19PM, Jerry W. Cox <jcox(cilpotomacstrategvassociates.com> wrote: 

Perfect. l'lllook forward to "meeting" you then. Will stand by for your call. 

Jerry W Cox (703) 757-5866 

On Apr 19, 2016, at 4:55 PM, <Michelle.Harper@faa.gov> 

<Michelle. Harper@faa.gov> wrote: 

Hi JerryHow's 11 a.m. tomorrow morning? I'm teleworking today and don't have access to the 

file. 

I will be in the office tomorrow. 

From: Jerry W. Cox [mailto:jcox@potomacstrategyassociates.com] 

Sent: Tuesday, April 19, 2016 4:54 PM 

To: Harper, Michelle (FAA) 

Subject: Re: TFSI - FAA - Chino -

I just now got back to my office. I'd be glad to speak w/you now or at any time 

tomorrow that would fit your schedule. 

Jerry W. Cox (703) 757-5866 

1 

~GOVERNMENT 

!i EXHIBIT 

! 2. 
On Apr 19,2016, at 11:33 AM, <Michelle.Harper@faa.gov> 

<Michelle.Harper(dlfaa.gov> wrote: 

Yes, that's fine. 

From: Jerry Cox [mailto:jcox@potomacstrategyassociates.com] 

Sent: Tuesday, April 19, 2016 11:31 AM 

T~:-HaFper,-MichelleErAA) 

Subject: Re: TFSI - FAA - Chino -

I'll be out of the office until around 4 this afternoon. Would it be 

convenient to speak then? 

On Apr 19, 2016, at 9:55AM, 

<Michelle.I-l.arper@faa.gov> 

<Michelle.Harper(iiifaa.gov> wrote: 

Hi JerryI will give you a call this afternoon to discuss the judge's 

Order. 

Regards, 

Michelle Harper 

Senior Attorney 

Office of the Chief Counsel 

Enforcement Division- Southern Team 

(404) 305-5200 Tel. 

(404) 305-5223 Fax 

From: Vines, William (FAA) 

Sent: Tuesday, April 19, 2016 9:23AM 

To: Jerry Cox 

Cc: Harper, Michelle (FAA) 

Subject: RE: TFSI - FAA- Chino -

Hi Jerry, 

Michelle Harper is now handling this case. I 

have cc'd her on this email. Please accept 

my apology for the delayed response. 

Regards, 

Will Vines 

2 
General Attorney 

404-305-5200 

This message is intended solely for specific 

recipients. If you are not an intended 

recipient of this communication, please 

delete the original message and notify the 

· ·· senderhnmediately.This r!lessage 1naybe 

confidential, an atiorney-client 

communication, attorney-work product, pmi 

of the agency's deliberative process, and/or 

contain privacy-sensitive information. This 

email must not be f01warded or otherwise 

shared without express permission of the 

sender. 

From: Jerry Cox 

[mailto:jcox@potomacstrategyassociates.com] 

Sent: Monday, April 18, 2016 7:04PM 

To: Vines, William (FAA) 

Subject: TFSI - FAA - Chino -

I phoned you April 15 and left a voicemail 

concerning Judge Rawald's April6 order, but I 

haven't heard back. Would you please call me? 

Jerry W. Cox 1 Potomac Strategy Associates 1 2050 Jamieson 

Ave., Suite 12121 Alexandria, VA 223141 tel703-757-5866 

1 www. ootomacstrateqvassociates.com 

3 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

W ASIDNGTON, DC 

FEDERAL AVIATION ADMINISTRATION, } 

Complainant, } In the Matter ofF isher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

} 

v. } 

} 

FISHER SCIENTIFIC COMPANY, LLC, } 

Respondent. } 

JOINT REPORT 

Complainant Federal Aviation Administration (hereinafter referred to as "FAA") and 

Respondent Fisher Scientific Company, LLC, a subsidiary of Thermo Fisher Scientific, Inc., 

(hereinafter "Fisher") jointly respond herein to the Order entered April6, 2016. 

The Order referenced a joint report including "a list of any pending motions that have been 

previously filed but have yet to be ruled upon." One such motion is pending. On June 23, 2015, 

Respondent filed a Motion to Dismiss the Complaint. 

Because the motion is potentially dispositive, FAA and Fisher have not yet discussed scheduling 

or the appropriate venue. 

Dated: Apri123, 2016 

Respectfully submitted, 

Michelle Harper, Esq. 

Regional Counsel, ASO-7 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

P.O. Box 20636 

College Park, GA 30320 
JeiryW.Cox, Esif · 

2050 Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

(email) if9JS@I?91Q!11<\C§trat"'gy[l~$QCi:lt"'s,ggm 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 
CERTIFICATE OF SERVICE 

On April23, 2016, the undersigned sent by the indicated type of service at least one copy of the 

foregoingJoil1trzeport to each ofthepersonslisted below. 

00 [One Copy by U.S. Postal Mail] 

The Hon. Douglas M. Rawald 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. (E11-310) 

Washington, DC 20590 

00 [One Copy by Air Courier] 

The Hon. Douglas M. Rawald 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. (E11-310) 

Washington, DC 20590 

0 0[0riginal + One Copy by Postal Mail] 0 0 [Original + One Copy by Air Courier] 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Wilbur Wright Bldg., Suite 2Wl 000 

600 Independence Ave., S.W. 

Washington, DC 20591 

00 [One Copy by Air Courier] 

Michelle Harper, Esq. 

Regional Counsel, AS0-7 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

1701 Co1umbiaAve. 

College Park, GA 30337 

Federal Aviation Administration 

800 Independence Ave., S.W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1000 

00[0ne Copy by U.S. Postal Mail] 

Michelle Harper, Esq. 

Regional Counsel, AS0-7 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

P.O. Box 20636 

College Park, GA 30320 

Jerry W. Cox, Esq.