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

OFFICE OF HEARINGS SEP 2 3 20\5 

WASHINGTON, DC 

FEDERAL AVIATION ADMINISTRATION, } 

Complainant, 

V, 

FISHER SCIENTIFIC COMP ANY, LLC, 

Respondent. 

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HEARING DOCKET 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. 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 of the 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-half years ago, 

In the 15 months since Regional Counsel filed the Complaint, Respondent Fisher Scientific 

Company ("Fisher") has moved to dismiss this case for the following four reasons: 

1. The Complaint is legally insufficient because, even if the 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 

of Rule 208); 

3, Regional Counsel failed to file a timely response to Respondent's Motion to Dismiss 

(per Respondent's Opposition to Complainant's Motion for Extension); and 

4, Regional Counsel invited dismissal of the Complaint by ignoring the Administrative 

Law Judge's April 6, 2016, Order to confer with Respondent's counsel and file a 

Joint Report (per Fisher's Motion to Sanction F AA's Noncompliance). 

New and Additional Reasons to Dismiss the Complaint 

Regional Counsel purported to file a Response to Show Cause Order on May 31, 2016. No 

counsel of record for FAA signed the submission, however, so it violated Rule 1 l(a) of the 

Federal Rules of Civil Procedure ("FRCP"), Respondent promptly called this violation to 
Respondent Motion to Strike and to Dismiss 

Regional Counsel's attention; Regional Counsel took no corrective action. Accordingly, under 

FRCP 1 l(a), "the court must strike an unsigned paper" (emphasis supplied), and FAA must be 

deemed to have failed to respond to the Show Cause Order, much less to have provided any 

reason for the Judge not to dismiss the action for the reasons stated in that Order. 

Regional Counsel's persistent delay and disregard of applicable rules and statutes has also 

rendered the Complaint essentially moot under the five-year, govermnent-wide statute of 

limitations barring the commencement of any civil proceedings more than five 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 (51

h Cir. 1985) and 3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 

1994.) 

It is undisputed that the alleged act at issue in this matter occurred on July 20, 2011. That was 

five years and two months ago. 

It is pointless and grossly wasteful for Regional Counsel to insist on pursuing this case. They are 

asking the Administrative Law Judge to devote considerable time and effort in deciding motions 

to dismiss that have been pending for the last 15 months and, even if FAA were to prevail on the 

motions, Regional Counsel offers the prospect of even more wasted effort in a hearing FAA 

conservatively estimates would consume at least three full days of the Judge's time. Even if one 

were to assume that the end result of that proceeding would be a final order that Respondent pay 

a $5,850 civil penalty, the Govermnent is barred by statute from bringing any court action to 

compel payment. 

Respondent's counsel attempted to reach Regional Counsel of record by telephone to ask 

whether this motion would be necessary, but her office receptionist refused to take a message 

and slammed down the phone in mid-conversation. Ms. Harper did not return the call. 

WHEREFORE, Respondent submits that the Complaint must be dismissed with prejudice on any 

or all of the 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 

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Respondent Motion to Strike and to Dismiss 

CERTIFICATE OF SERVICE 

On September 23, 2016, the undersigned sent by the indicated type(s) of service at least one copy 

of the foregoing Motion to each of the persons listed below. 

D [One Copy by U.S. Certified Mail] 

The Hon. Douglas M. Rawald 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200New Jersey 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 2Wl 000 

600 Independence Ave., S.W. 

Washington, DC 20591 

D [One Copy by Air Courier] 

Andrea Michelle Harper, Esq. 

Senior Attorney 

Regional Counsel, ASO-7 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

1701 Columbia Ave. 

College Park, GA 30337 

0 [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. (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 2Wl 000 

0 [One Copy by U.S. Mail] 

Andrea Michelle Harper, Esq. 

Senior Attorney 

Office of the Chief Counsel 

Enforcement Division, Southern Team 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

P.O. Box 20636 

Atlanta, GA 30320 

Jerry 

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