U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

FEDERAL AVIATION ADMINISTRATION, } 

Complainant, } 

} 

v. } 

} 

FISHER SCIENTIFIC COMPANY, LLC, } 

Respondent. } 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Goodwin 

REPLY TO FAA'S RESPONSE TO 

MOTIONS TO DISMISS COMPLAINT 

On June 23,2015, Respondent Fisher Scientific Company, LLC, a subsidiary of Thermo Fisher 

Scientific, Inc., (hereinafter referred to as "Fisher") moved to dismiss the Complaint because it 

fails to allege that Fisher "knowingly committed an act which is a violation of' the Hazardous 

Materials Regulations ("HMRs") and because it rests fundamentally on allegations that were first 

made more than two years after the alleged violation. On August 7, 2015, FAA's Southern 

Regional Counsel ("Regional Counsel" or "Complainant") filed a Response to the Motion to 

Dismiss, arguing essentially that Complainant needs to show only that Fisher acted "knowingly" 

when it offered a properly disclosed and labeled shipment of hazardous materials and that Rule 

208 of the Federal Aviation Administration's Rules of Practice ("Rules") allows it to make new 

allegations of noncompliance whenever Regional Counsel gets around to making them, without 

showing "good cause" for a multi-year delay. 

Regional Counsel's Response fails to recognize the governing statutes and regulations and does 

nothing to help the Judge identifY, much less address, the questions presented by the outstanding 

Motion. Instead of offering any reason to consider the Complaint legally sufficient, Regional 

Counsel's argument on the first motion is little more than a list of administrative decisions in 
Reply to FAA's Response to Motions to Dismiss 

inapposite cases. To avoid dismissal on the second motion for being out of time, Regional 

Counsel oddly relies on a recent Initial Decision that forcefully argues for dismissal. 

With the intention to help the Judge draw a fmer bead on the facts of the instant case and the 

legal issues presented by the Motion to Dismiss, Respondent offers the following Reply. 

It is undisputed that Fisher shipped a one-liter bottle of lye. It is also undisputed that the subject 

package was accompanied by a shipper's declaration and a "limited quantity" label, both of 

which complied fully with the HMRs. 

Two other key "facts" can be assumed to be true, but only for purposes of deciding the Motion to 

Dismiss. Regional Counsel claims a couple ounces of the lye leaked from the bottle and through 

the packaging, and we can assume this is true for purposes of deciding the Motion to Dismiss 

even though the evidence would ultimately show it was at least as likely that something leaked 

onto the package rather than from inside it. Second, we can assume that the requirement to 

include "absorbent material" in the packaging applied, even though the subject bottle was 

exempt in 2011 from the requirement as a "limited quantity" shipment and for other reasons. 

Issues Presented by the Motion to Dismiss 

The Motion to Dismiss can be granted based on affirmative answers to the following two 

questions. 

(1) Shall a Complaint for imposition of civil penalties under U.S. hazardous materials law be 

dismissed where Regional Counsel alleges a Respondent incorrectly packaged a 

shipment but does not allege Respondent was negligent when it concluded that the 

packaging fully complied with the HMRs? 

(2) Did Regional Counsel take more than two years to allege that Respondent's non-use of 

"absorbent material" constituted a violation of the HMRs and, if so, has Regional 

Counsel failed to show "good cause" for the delay? 

The Complaint must be dismissed for insuffiq_iency because it fails to allege that Fisher acted 

negligently when it chose not to include "absorbent material" in the subject package. 

The Complaint identifies only one act it claims was done "knowingly." It says Respondent 

"knowingly offered ... a shipment .... " Compl. ~ 1. It also states that Respondent "violated the 

... hazardous materials regulations" ("HMRs") because it "failed to ensure that [the bottle of lye 

2 
Reply to FAA's Response to Motions to Dismiss 

was] ... packaged with absorbent materials .... " Compl. '\[ l O.c. Nowhere does the Complaint 

allege that Respondent, by failing to include "absorbent material" or otherwise, "knowingly 

committed an act which is a violation of' the HMRs, as it must under the Hazardous Materials 

Transportation Act, Pub. Law. No. 93-633, 88 Stat. 2156,2160 (Jan. 3, 1975) codified as 

amended at 49 U.S.C. Sec. 5123(a)(l) (2011). 

As explained in Respondent's Memorandum in Support of its Motion to Dismiss, at 2, Regional 

Counsel misstates the law when it claims that "FAA need only prove ... that an offeror 

knowingly offered ... a hazardous material- not that the offeror knowingly offered ... [a 

shipment] that was in violation of the" HMRs. The cases Regional Counsel cited in the 

Response to the Motion have nothing to do with the instant case. For example, In the Matter of 

Scott H Smalling, FAA Docket No. CP93NM0260 (Oct. 5, 1994), Respondent put explosives on 

a passenger plane, then claimed he was unaware this act violated the law. FAA rejected this 

excuse; any reasonably prudent person would have realized that the act of shipping explosives on 

an airliner was hazardous and would have made at least some effort to find out what laws 

applied. Such a reckless act justified imposition of civil penalties in that case. 

In the instant case, by contrast, there is no dispute that Fisher declared the shipment oflye and 

labeled it in full accordance with the regulations. Fisher also did everything a reasonably 

prudent shipper would do to make certain it complied with all applicable packaging 

requirements. Even a quick look at the key regulatory provisions addressing the use of 

"specification packaging" and "absorbent material" that applied when Fisher prepared the 

subject package in 2011 shows exactly why Congress made deliberate decisions in 1975 and, 

even more explicitly in 1990, to require the government to allege and prove some level of 

scienter before it can impose civil penalties for hazardous materials violations. 

The "limited quantity" exception in the HMRs, for example, stated that "limited quantities of 

corrosive materials ... are excepted from ... the specification packaging requirements .... " 49 

C.F.R. § 173.154(b) (10-1-10 ed.). Respondent reasonably concluded that this exemption 

applies and, therefore, that "absorbent material" was not required to be included in the 

packaging. Regional Counsel may disagree, even though agency attorneys refused during two 

informal conferences to offer Respondent any explanation why. In any event, Fisher acted on a 

fair reading of the regulatory language, with every intention to understand and follow it. Even if 

Regional Counsel does read that exception differently and the Judge agrees that their 

interpretation is correct and that the specification packaging requirements did apply to the 

subject package, that would still not amount to a "knowing" violation by a Respondent who did 

everything it could reasonably be expected to do to comply. 

The regulation covering the use or non-use of"absorbent material," upon which Regional 

Counsel bases its entire case, provides a perfect example why Congress required an agency 

3 
Reply to FAA's Response to Motions to Dismiss 

seeking civil penalties to allege and prove negligence. It specifically provides that, even if a 

shipment is not exempt from the specification packaging requirements as a "limited quantity" or 

for some other reason, "absorbent material is not required if the inner packagings are so 

protected that they are unlikely to break and leak .... " 49 C.F.R. § 173.27(e)(5)(10-1-10 ed.) 

(emphasis supplied). 1bis provision explicitly calls on the shipper to make a judgment call about 

the likelihood of leakage. If a shipper knows or should know that an inner container, such as the 

bottle in the subject package, is likely to leak, but does not include absorbent material that would 

otherwise be required, the shipper would in that case "knowingly" violate the packaging 

requirements. However, if the shipper reasonably concluded that leakage was "unlikely," the 

shipper did not "knowingly" commit an act that violates the packaging requirements. 

Try as they might to build a civil penalty case on "20-20 hindsight," Regional Counsel must 

allege and prove that Respondent either knew or should have known that the subject package 

was required to include "absorbent material." It is not enough to show that Respondent 

"knowingly offered" a properly disclosed and labeled package. As the legislative history shows, 

"imposition of penalties ... for unknowing and unavoidable violations of the law is contrary to 

... [American] concepts of law and equity ... and inconsistent with our basic legal and equitable 

concepts and standards .... " Hearing on Transportation of Hazardous Materials Before the 

House Committee on Public Works and Transportation, H. R. Hrg. No. 101-52 (July 13, 1989) at 

1661-62. The Complaint fails to meet the scienter standard Congress wrote into the law and, 

therefore, must be dismissed. 

Even if it arises from the same "facts and circumstance~" described in a timely civil penalty 

notice, th(')~t:ntirely new allegatiqn that Fisher violated .<!requirement to include "absorbent 

material" in the subject package is_barred where Region;tl Counsel offers no excuse for delaying 

more thanjhree years to make it, 

More than three years after the incident alleged in this case, Regional Counsel claimed for the 

first time that Respondent "violated the ... hazardous materials regulations" because it "failed to 

ensure that [a bottle oflye was] ... packaged with absorbent materials .... " Amended Notice of 

Proposed Civil Penalty ("the Amended Notice") (July 24, 2014) ~f. Respondent moved to 

dismiss the Complaint, which rests fundamentally on this new allegation, because Regional 

Counsel ignored a two-year statute of limitations imposed by the FAA Civil Penalty Assessment 

Act of 1992, Pub. L. No. 102-345, § 2(a), codified at 49 U.S.C. § 46301(d)(7)(C). Rule 

208(d)(2) of FAA's Rules implements that time limitation by providing, in pertinent part, that 

"[i]fthe agency fails to show good cause for any delay" the judge "may dismiss the complaint or 

that part of the complaint alleging a violation that occurred more than two years before an 

agency attorney issued the notice of proposed civil penalty to the respondent." (Emphasis 

supplied.) 

4 
Reply to FAA's Response to Motions to Dismiss 

Regional Counsel argues in the Response that the agency is allowed to spring this new allegation 

on Respondent more than a year after the deadline because it "relates back" to the date Regional 

Counsel made certain other allegations, most of which were so plainly erroneous that they were 

dropped and not included in the Complaint. Response at 5-6. This argument relies primarily on 

language taken out of context from Judge Sullivan's recent Order Granting Respondent's Motion 

to Dismiss In the Matter of Mississippi Air Express, LLC, Docket No. FAA-2014-0866 (July 22, 

2015). 

Had this decision come down before Respondent filed its own Motion to Dismiss, Respondent 

would have cited it as the best- or at least the most recent- example of "significant and 

pervasive" errors by Southern Regional Counsel (id. at 11 ), including fundamental disregard for 

the laws applicable to civil penalty cases. The first thing Judge Sullivan had to do was explain to 

Regional Counsel who their client was. That office submitted multiple filings "assert[ing] that 

the FAA Administrator is the complainant litigant in this proceeding." !d. at 2. The Judge 

pointed out that, to the contrary, the Administrator (which Regional Counsel consistently 

misspelled as "Administator") "remains separate from the proceedings ... to preserve the 

appearance of fairness .... " Id. 

As in the pending Motion to Dismiss, Judge Sullivan recognized that only two questions needed 

to be answered. The first was, "did FAA fail to timely initiate this action?' The second 

question was whether "FAA demonstrated good cause to excuse its failure ... ?" /d. at 2. The 

Judge rejected the notion that FAA could make whatever allegations it wanted to make whenever 

it got around to making them just because Regional Counsel filed aN otice containing other 

allegations within the two year period. As in the instant case, where Regional Counsel never 

said a word about "absorbent material" in the initial Notice, the Amended Notice "did not 

provide timely notice to the Respondent of essential facts and information that supported the 

FAA's regulatory allegations." /d. at 13. 

The answer to Judge Sullivan's second question was equally obvious, and it had nothing to do 

with any notion of "relation back." Southern Regional Counsel did not argue in that case, and it 

does not argue in the instant case, that it was somehow unable to issue "a timely [amended 

notice] prior to the lapsing of the two-year period" established in Rule 208 and that, having 

"failed to prove good cause for the delay," Regional Counsel "must suffer the 'pain of 

dismissal"' (id. at 17). 

WHEREFORE, Respondent respectfully moves to dismiss the Complaint for insufficiency 

pursuant to Rule 218, 14 C.F.R. § 13.218(1)(1) and for violating Rule 208 pursuant to 14 C.F.R. 

§ 13 .208( d). 

5 
Reply to FAA's Response to Motions to Dismiss 

Respondent further respectfully requests an opportunity to present oral argument in person on 

these motions. 

Dated: December 21,2015 

Respectfully submitted, 

ox, Esq. 

amieson Ave., Suite 1212 

Alexandria, VA 22314 

(email) JCOx(a.!po1torr•aco;trategyassocmH1s.com 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

CERTIFICATE OF SERVICE 

On December 21, 2015, the undersigned sent by the indicated type of service at least one copy of 

the foregoing Reply to each of the persons listed below. 

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

The Hon. Richard C. Goodwin 

Office of Hearings, M-20 

U.S. Department of Transportation 

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

Washington, DC 20590 

0[0riginal +One Copy by Air Courier] 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Wilbur Wright Bldg., Suite 2W!OOO 

600 Independence Ave., S.W. 

Washington, DC 20591 

0 [One Copy by Air Courier] 

The Hon. Richard C. Goodwin 

Office of Hearings, M-20 

U.S. Department of Transportation 

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

Washington, DC 20590 

0 [Original+ One Copy by Postal Mail] 

Federal Aviation Administration 

800 Independence Ave., S.W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2Wl 000 

6 
Reply to FAA's Response to Motions to Dismiss 

D [One Copy by Air Courier] 

William Vines, Esq. 

Regional Counsel, ASO-7 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

170 I Columbia Ave. 

College Park, GA 30337 

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

William Vines, Esq. 

Regional Counsel, ASO-7 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

P.O. Box 20636 

College Park, GA 30320 

7