U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

FEDERAL AVIATION ADMINISTRATION, } 

### Complainant, } } v. } } FISHER SCIENTIFIC COMPANY, LLC, } 

### Respondent. } Inthe Matter ofFisher Scientific Company, LLC DocketNo. 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 ofThermo 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 itrests 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 Motionto Dismiss, arguing essentially that Complainant needs to show only that Fisher acted "knowingly" when it offered a properly disclosed and labeled shipment ofhazardous materials and that Rule 208 ofthe Federal Aviation Administration's Rules ofPractice ("Rules") allows it to make new allegations ofnoncompliance whenever Regional Counsel gets aroundto 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 ofoffering any reason to consider the Complaint legally sufficient, Regional Counsel's argument onthe first motion is little more than a list ofadministrative decisions inReply to FAA's Response to Motions to Dismiss inapposite cases. To avoid dismissal on the second motion for being out oftime, Regional Counsel oddly relies on a recent Initial Decisionthat forcefully arguesfor dismissal. With the intention to help the Judge draw a fmer bead onthe facts ofthe instant case and the legal issues presented by the Motionto Dismiss, Respondent offers the following Reply.

Itis undisputed that Fisher shipped a one-liter bottle oflye. Itis also undisputed thatthe subject package was accompanied by a shipper's declaration and a "limitedquantity" label, both of which complied fully withthe HMRs. Two other key "facts" can be assumedto be true, but only for purposes ofdeciding the Motionto Dismiss. Regional Counsel claims a couple ounces ofthe lye leaked from the bottle andthrough the packaging, andwe can assume this is true for purposes ofdeciding the Motionto Dismiss eventhough the evidence would ultimately showit was at least as likely that something leaked onto thepackage rather than from inside it. Second, we can assume thatthe requirement to include "absorbent material" inthe packaging applied, even thoughthe subject bottle was exempt in 2011 from the requirement as a "limited quantity" shipment and for other reasons. Issues Presentedbythe Motion to Dismiss The Motion to Dismiss canbe granted based on affirmative answers to the following two questions. (1) Shall a Complaint for imposition ofcivil penalties under U.S. hazardous materials lawbe dismissed where Regional Counsel alleges a Respondent incorrectly packaged a shipment but does not allege Respondent was negligent when it concluded thatthe packaging fully complied withthe HMRs? (2) Did Regional Counsel take more 

### than two years to allege thatRespondent's non-use of "absorbentmaterial" constituted a violation ofthe HMRs and, ifso, has Regional Counsel failed to show "goodcause" for the delay?

The Complaintmust be dismissed for insuffiq_iency because it fails to allege that Fisher acted negligently when it chose not to include "absorbentmaterial" inthe 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 "violatedthe

... hazardous materials regulations" ("HMRs") because it "failedto ensurethat [the bottle oflye

2Reply to FAA's Response to Motions to Dismiss was]
... packagedwith absorbent materials
...." Compl. '\[ lO.c. Nowhere does the Complaint allege that Respondent, by failing to include "absorbentmaterial" or otherwise, "knowingly committed an act which is a violation of' the HMRs, as itmust under the Hazardous Materials Transportation Act, Pub. Law. No. 93-633, 88 Stat. 2156,2160 (Jan. 3, 1975) 

### codified as amendedat 49 U.S.C. Sec. 5123(a)(l) (2011). As explained inRespondent's Memorandum in Support ofits Motionto Dismiss, at 2, Regional Counsel misstates the lawwhen it claims that "FAAneed only prove ... that an offeror knowingly offered
... a hazardous material- not that the offeror knowingly offered
... [a shipment] that was in violation ofthe" HMRs. The cases Regional Counsel cited inthe Response to the Motion have nothing to do withthe instant case. For example, 

### In the Matter of Scott H Smalling, FAA DocketNo. CP93NM0260 (Oct. 5, 1994), Respondent put explosives on a passengerplane, then claimed he was unaware this act violated the law. FAA rejected this excuse; any reasonably prudentperson would have realized thatthe act ofshipping explosives on an airliner was hazardous and would have made at least some effortto find outwhat laws applied. Such a reckless actjustified imposition ofcivil penalties inthat case. Inthe 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 atthe key regulatory provisions addressing the use of "specificationpackaging" and "absorbent material" that applied when Fisher prepared the subjectpackage in 2011 shows exactly why Congress made deliberate decisions in 1975 and, evenmore explicitly in 1990, to require the governmentto 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 notrequired to be included in the packaging. Regional Counsel may disagree, eventhough agency attorneys refused during two informal conferences to offer Respondent any explanation why. In any event, Fisher acted on a fair reading ofthe regulatory language, with every intention to understand and follow it. Even if Regional Counsel does read that exception differently andthe Judge agrees thattheir interpretation is correct and that the specificationpackaging requirements 

### did apply to the subject package, that would still not amountto 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"absorbentmaterial," upon which Regional Counsel bases its entire case, provides a perfect example why Congress required an agency

3Reply to FAA's Response to Motions to Dismiss seeking civil penalties to allege and prove negligence. It specifically provides that, evenifa shipment is not exempt from the specification packaging requirements as a "limited quantity" or for some other reason, "absorbent material is not requiredifthe inner packagings are so protected that they are unlikely to breakand leak
...." 49 C.F.R. § 173.27(e)(5)(10-1-10 ed.) (emphasis supplied). 1bisprovision explicitly calls onthe shipperto make ajudgment call about the likelihood ofleakage. Ifa shipper knows or should know that an inner container, such as the bottle in the subjectpackage, is likely to leak, but does not include absorbent material that would otherwise be required, the shipper would inthat case "knowingly" violate the packaging requirements. However, ifthe 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 eitherknew or should have knownthat the subjectpackage was required to include "absorbent material." Itis not enoughto show that Respondent "knowingly offered" a properly disclosed and labeled package. As the legislative history shows, "imposition ofpenalties
... for unknowing and unavoidable violations ofthe law is contrary to

... [American] concepts oflaw 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 meetthe scienter standard Congress wrote into the law and, therefore, must be dismissed.

Evenifit 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" inthe subject package is_barred where Region;tl Counsel offers no excuse for delaying more thanjhree years to make it, More thanthree years after the incident alleged inthis case, Regional Counsel claimed for the first time that Respondent "violatedthe
... hazardous materials regulations" because it "failed to ensure that [abottle oflyewas]
... packagedwith absorbent materials
...." Amended Notice of Proposed Civil Penalty ("the AmendedNotice") (July 24, 2014)

**~f.** Respondent moved to dismiss the Complaint, which rests fundamentally onthis new allegation, because Regional Counsel ignored a two-year statute oflimitations 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) ofFAA's Rules implements thattime limitation by providing, inpertinentpart, that "[i]fthe agency fails to show good cause for any delay" thejudge "may dismiss the complaint or that part ofthe complaint alleging a violation that occurred more than two years before an agency attorney issued the notice ofproposed civil penalty to the respondent." (Emphasis supplied.)

4Reply to FAA's Response to Motions to Dismiss
Regional Counsel argues inthe Response that the agency is allowedto spring this new allegation on Respondent more than a year afterthe deadline because it "relates back" to the date Regional Counsel made certain other allegations, most ofwhichwere so plainly erroneous thatthey were dropped and not included in the Complaint. Response at 5-6. This argument relies primarily on language taken out ofcontext from Judge Sullivan's recent Order Granting Respondent's Motion to Dismiss In the Matter of MississippiAirExpress, LLC, DocketNo. FAA-2014-0866 (July 22, 2015). Had this decision come downbefore Respondent filed its own Motionto 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 hadto do was explain to Regional Counsel who their client was. That office submitted multiple filings "assert[ing] that the FAAAdministrator is the complainant litigant inthis proceeding." 

### !d. at2. 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 offairness
...." Id. As in the pending Motionto Dismiss, Judge Sullivan recognized that only two questions needed to be answered. The first was, "didFAA 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 themjustbecause Regional Counsel filed aNotice containing other allegations withinthe two year period. As inthe instant case, whereRegional Counsel never said a word about "absorbent material" inthe initial Notice, the AmendedNotice "did not provide timely notice to the Respondent ofessential facts and information that supported the FAA'sregulatory 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"relationback." SouthernRegional Counsel did not argue inthat case, and it does not argue inthe instant case, that it was somehowunable to issue "atimely [amended notice] prior to the lapsing ofthe two-year period" established in Rule 208 and that, having "failedto prove good cause for the delay," Regional Counsel "must suffer the 'painof dismissal"' (id. at 17). WHEREFORE, Respondentrespectfully moves to dismiss the Complaint for insufficiency pursuantto Rule 218, 14 C.F.R. § 13.218(1)(1) and for violating Rule 208 pursuantto 14 C.F.R. § 13.208(d).

5Reply 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 sentbythe indicatedtype ofservice at least one copy of the foregoing Reply to each ofthe persons listedbelow.
0 [One Copy by U.S. Postal Mail] The Hon. Richard C. Goodwin Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Ave., S.E. (Ell-310) Washington, DC 20590 0[0riginal +One Copy by 

### Air Courier] Hearing Docket Clerk, AGC-430 Federal AviationAdministration 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 ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey 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 2Wl000

6Reply to FAA's Response to Motions to Dismiss

D [One Copy by Air Courier] William Vines, Esq. Regional Counsel, ASO-

### 7 U.S. Department ofTransportation Federal Aviation Administration Southern Region 170I ColumbiaAve. College Park, GA 30337 0[0ne Copy byU.S. Postal Mail] William Vines, Esq. Regional Counsel, ASO-7 U.S. Department ofTransportation Federal Aviation Administration Southern Region P.O. Box 20636 College Park, GA 30320

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