# nFrc,,,cc U.S. DEPARTMENT OF TRANSPORTATIO:tr\ .·· : , - · ~t OFFICE OF HEARINGS 

## SEP 2320\5 WASHINGTON, DC
FEDERAL AVIATION ADMINISTRATION, } Complainant,

V,
FISHER SCIENTIFIC COMP ANY, LLC, Respondent. } } } } } } 

## HEARING DOCKET

Inthe Matter ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 (Civil Penalty Action) Judge Rawald

RESPONDENT'S MOTION TO STRIKE COMPLAINANT'S RESPONSE TO SHOW CAUSE ORDER AND TO DISMISS THE COMPLAINT AS MOOT History ofthe FAA's Inexcusable Delay in the Proceedings
The Federal Aviation Administration's Southern Regional Counsel ("Regional Counsel" or "FAA") seeks a $5,850 fine relating to a small shipment oflye ahnost five-and-a-halfyears ago, Inthe 15 months since Regional Counsel filed the Complaint, Respondent Fisher Scientific Company ("Fisher") has movedto dismiss this case for the following four reasons: 1. The Complaint is legally insufficientbecause, even ifthe alleged facts were assumed to be true, it fails to state a claim for civil penalties under applicable statute (per Respondent's Motion to Dismiss Complaint for Insufficiency); 2. The two-year statute oflimitations for initiating such a claim under the Federal Aviation Act ran more than a year before Regional Counsel served the required Notice (per Respondent's Motion to Dismiss Complaint for Complainant's Violation ofRule 208); 3, Regional Counsel failed to file a timely response to Respondent's Motionto Dismiss (per Respondent's Opposition to Complainant's Motion for Extension); and 4, Regional Counsel invited dismissal ofthe Complaint by ignoring the Administrative LawJudge's April 6, 2016, Order to confer with Respondent's counsel and file a Joint Report (per Fisher's Motion to Sanction FAA's Noncompliance).
New and Additional Reasons to Dismiss the Complaint Regional Counsel purported to file a Response to Show Cause Order onMay 31, 2016. No counsel ofrecord for FAA signed the submission, however, so itviolated Rule 1l(a) ofthe Federal Rules ofCivil Procedure ("FRCP"), Respondent promptly called this violation toRespondentMotion to Strike andto Dismiss
Regional Counsel's attention; Regional Counsel took no corrective action. Accordingly, under FRCP 

### 1l(a), "the court muststrike anunsigned paper" (emphasis supplied), and FAAmust be deemed to have failed to respond to the Show Cause Order, muchless to have provided any reason for the Judge notto dismiss the action for the reasons stated in that Order. Regional Counsel's persistent delay and disregard ofapplicable rules and statutes has also rendered the Complaint essentially moot under the five-year, govermnent-wide statute of limitations barring the commencement ofany civil proceedings more thanfive years after the date the government's claim allegedly accrued. 28 U.S.C. Sec. 2462. See also U.S. v. Core Laboratories, 759 F.2d 480 (5 1 h Cir. 1985) and 3MCo. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994.) Itis undisputed thatthe alleged act at issue inthis matter occurred on July 20, 2011. That was five years and two months ago. Itis pointless and grossly wasteful for Regional Counsel to insist on pursuing this case. They are asking the Administrative LawJudge to devote considerable time and effort in deciding motions to dismiss thathave been pending for the last 15 months and, even ifFAA were to prevail onthe motions, Regional Counsel offers the prospect ofeven more wasted effort in a hearing FAA conservatively estimates would consume atleast three full days ofthe Judge's time. Even ifone were to assume thatthe endresult ofthat proceeding would be a final order that Respondentpay a $5,850 civil penalty, the Govermnent is barred by statute from bringing any court actionto compel payment. Respondent's counsel attemptedto reach Regional Counsel ofrecord by telephone to ask whether this motion would be necessary, but her office receptionist refused to take a message and slammed downthe phone in mid-conversation. Ms. Harper did not return the call. WHEREFORE, Respondent submits that the Complaint mustbe dismissed withprejudice on any or all ofthe grounds stated above.

Dated: September 23, 2016 Jerry/ , q. 2051 amieson Ave., uite 1212 Ale' andria, VA 22314 (email)jco:x(aJpot1llm1.cstmtegyasso,cia1es. (tel) 703-757-5866 Counsel for Thermo Fisher Scientific, Inc., and Fisher Scientific Co., LLC

2RespondentMotion to Strike andto Dismiss

CERTIFICATE OF SERVICE

On September 23, 2016, the undersigned sent by the indicated type(s) ofservice at least one copy ofthe foregoing Motion to each ofthe persons listed below.

D [One Copy by U.S. Certified Mail] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Ave., S.E. (Ell-310) Washington, DC 20590


### 0 [Original + One Copy by Hand] Hearing Docket Clerk, AGC-430 Federal Aviation Administration Wilbur Wright Bldg., Suite 2Wl000 600 Independence Ave., S.W. Washington, DC 20591


### D [One Copyby Air Courier] Andrea Michelle Harper, Esq. Senior Attorney Regional Counsel, ASO-7 U.S. Department ofTransportation
Federal AviationAdministration Southern Region 1701 Columbia Ave. College Park, GA 30337 

### 0 [One Copy by air courier] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Ave., S.E. (Ell-310) Washington, DC 20590


### D [Original+ One Copy by Air Courier] Federal Aviation Administration 800 Independence Ave., S.W. Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building

- Suite 2Wl000


### 0 [One Copy by U.S. Mail] Andrea Michelle Harper, Esq. Senior Attorney Office ofthe ChiefCounsel Enforcement Division, Southern Team U.S. Department ofTransportation Federal Aviation Administration Southern Region P.O. Box 20636 Atlanta, GA 30320

Jerry

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