RECEI\/ED 

NOV 2 8 2016 

HEARING DOCKET 

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 Rawald 

AMENDED BRIEF IN SUPPORT OF 

RESPONDENT'S INTERLOCUTORY APPEAL OF RIGHT 

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

(hereinafter referred to as "Fisher") hereby appeals to the FAA decision-maker pursuant the 

Federal Aviation Administration Rules of Practice, 14 C.F .R. Part 13 (hereinafter "FAA Rules"), 

Rule 219(c), 14 C.F.R. § 13.219(c), to dismiss the Complaint in the above-captioned matter due 

to the failure by the assigned Administrative Law Judge, Douglas Rawald ("the ALT'), to 

dismiss the case, as required by FAA Rule 215, after the agency attorneys constructively 

withdrew the Complaint by missing four consecutive deadlines without excuse. In support of its 

Appeal, Fisher states the following: 

QUESTION PRESENTED 

Must the Complaint in a civil penalty action be dismissed with prejudice when agency counsel, 

by consistently failing to participate in the proceedings, ignoring multiple ALJ Orders and failing 

without excuse to appear at a pre-hearing conference ordered by the ALJ, has constructively 

withdrawn the Complaint? 
PURPOSE AND STANDARD OF REVIEW FOR THE APPEAL 

FAA long ago established the "interlocutory appeal of right" to help the Administrator prevent 

agency counsel, a private party respondent or an ALl from wasting public and private resources 

on administrative litigation where, as a matter of law, one side or the other has failed to 

participate in the proceedings or to present its case. Accordingly, when it adopted Rule 219(c) in 

1990,1 FAA decided not to depend on an ALJ to prevent needless litigation and provided, in 

pertinent part, as follows: "A party may file an interlocutory appeal ... without the consent of the 

administrative law judge ... in the case of ... (2) failure of the administrative law judge to 

dismiss the proceedings in accordance with§ 13.215 .... " (Emphasis supplied.) 

The plain language of the Rule makes it clear that Respondent has presented a ripe question. The 

issue on appeal is not whether the ALJ erred by issuing an order or making a formal ruling, but 

whether he failed to take certain action that Rule 215 requires to be taken. FAA's clear intention 

was to prevent not just parties but also an ALl from allowing wasteful litigation to proceed. That 

is why Rule 219 also specifically provides that, when the ALJ's receives a Notice of Appeal, 

"the proceedings are stayed until the FAA decision-maker issues a decision on the interlocutory 

appeal." (Emphasis supplied.) 

Accordingly, it is up to the Administrator to review de novo and decide the answer to the legal 

question presented above. 2 

FACTS 

There is no dispute that Fisher offered a one-piece shipment containing one liter of sodium 

hydroxide solution (commonly known as "lye") by air five-and-a-half years ago, in July, 2011, 

that the package was properly declared as containing hazardous material and that it was properly 

labeled as a "limited quantity" shipment. In June, 2015, four years after the shipment, FAA's 

Southern Regional Counsel ("agency counsel") filed a Complaint alleging, in pertinent part, that 

the lye was packaged in some respect that violated the Hazardous Materials Regulations 

("HMRs").3 

1 Federal Aviation Administration, "Rules of Practice for FAA Civil Penalty Actions," Final Rule, 55 Fed. Reg. 

27548,27567-68 (July 3, 1990) ("Final Rule"), codified at 14 C.P.R. Part 13. Previous FAA practice, which 

allowed the government and not private party respondents to file interlocutory appeals, was widely criticized as 

"unfair and has the potential for abuse in unduly protracting litigation to the disadvantage of respondents." See also 

FAA, "Rules of Practice for Civil Penalty Actions," Notice of Proposed Rulemaking, 55 Fed. Reg. 15134, 15143 

("Proposed Rule") (Apr. 20, 1990). 2 Even on an appeal from an Initial Decision by an ALJ after a hearing, the FAA decision-maker must decide for 

itself whether the ALJ followed "applicable law, precedent and public policy." FAA Rule 233(b)(2). 3 Complaint at 2 (June 4, 2015) (Exhibit 1). 

Respondent's Appeal of Right 2 
Fisher promptly moved to dismiss the Complaint based, in part, on agency counsel's failure to 

lodge at least one of the key allegations within the two-year time limit established by FAA Rule 

208.4 Agency counsel of record did not file a timely response to Respondent's Motion to 

Dismiss but the ALJ nevertheless moved the case forward. 5 

On April 6, 2016, nearly a year after Respondent filed its Motion to Dismiss, the ALJ ~without 

first deciding whether the dispositive motions resolved the case or whether Respondent would 

even be required to file an Answer~ ordered the parties to meet and confer regarding litigation 

and scheduling issues and to submit a Joint Report on their meeting.6 After extraordinary efforts 

by the undersigned to get anyone in the Regional Counsel's office to return multiple phone calls 

and emails, agency counsel ofrecord, Michelle Harper, Esq., finally phoned to say she was 

unable to answer even the most basic questions about the substance of the case because she had 

not looked at the file in years. She promised to review the file the following week and asked the 

undersigned to prepare a Joint Report. Respondent immediately offered a draft Joint Report for 

her review and approval, but she never replied, despite more repeated calls from the tmdersigned. 

Respondent had no choice but to file a unilateral report and moved the ALJ for dismissal and 

other sanctions against agency counsel for ignoring his Order to meet and confer and for failing 

to file any report, in clear defiance of the ALJ' s demand. 7 Instead of dismissing the Complaint, 

the ALJ issued a Show Cause Order that stated an unequivocal threat: the Complaint would be 

considered "constructively withdrawn" unless agency counsel filed "a statement explaining the 

cause of their failure to comply" that "shall include ... the information requested in the Order 

directing the parties to meet and confer."8 

Despite the ALJ' s unequivocal warning, agency counsel filed no response to the Show Cause 

Order that is cognizable under the FAA Rules and never submitted anything purporting to 

provide the information to be included in the Report required by the April 6 Order. 9 Someone 

whose name is not typewritten on the document submitted a two-page purpmted third-hand 

account of a conversation between Ms. Harper and the undersigned, but the agency counsel of 

record did not sign the document. Failure to sign and thereby certifY the tmthfulness of the 

fuctual representation presented in the purported response to the Show Cause Order violated 

4 Motion to Dismiss Complaint for Violation of Rule 208 (June 23, 2015) (Exhibit 2). 5 Agency counsel filed a late request for an extension of time -from 10 days to nearly two months - to reply 

to the Motion to Dismiss but offered no excuse for their late filing of the request and did not state any grounds 

acceptable under FAA rules for granting it. Opposition to Extension at 2 (July 7, 2015) (Exhibit 3). In complete 

disregard of controlling Rules, the ALJ- at that time, Judge Goodwin- unlawfully granted the extension. 

Respondent later withdrew the motions it filed in 2015 because, after they had languished for 16 months, other 

reasons to dismiss the Complaint arose and rendered them unnecessary. 6 See Exhibit 4. 7 Respondent's Report in Response to Order and Motion to Sanction FAA's Noncompliance (Apr. 30, 2016) 

(Exhibit 5). 8 Onder to Show Cause and Provide Requested Information (May 17, 2016) (Exhibit 6). 9 Agency counsel's purported response to the Show Cause Order is attached as Exhibit 7 to this Brief only for the 

purpose of showing that it was never signed by agency counsel of record. 

Respondent's Appeal of Right 3 
Federal Rule of Civil Procedure 11 (a), which provides, in pertinent part, that any unsigned 

"pleading ... and other paper must be signed by at least one attorney of record" and that failure 

to "promptly correct" an unsigned paper after the omission has been called to the party's 

attention leads to a single, mandatory sanction: "the court must strike an unsigned paper" 

(emphasis supplied). FAA Rule 207 even more explicitly bans recognition of unsigned filings. 

It provides that the "attorney of record ... shall sign each document tendered for filing with the 

hearing docket clerk, the administrative law judge, the FAA decision-maker on appeal or served 

on each party" (emphasis supplied). Respondent pointed out this failure and, for the third time, 

moved again for dismissal. 10 

Instead of dismissing the Complaint at that point as required by Rule 219, the ALJ ordered the 

parties to appear at a Pre-hearing Conference on October 4, 2016, at 10:00 a.m. The undersigned 

counsel for Respondent was present. In complete keeping with Southern Regional Counsel's 

total non-participation in prosecuting the case, agency counsel failed to appear at the hearing. 

The ALJ spent almost 15 minutes trying to get someone at the office of Southern Regional 

Counsel to answer the phone. He finally rounded up an attorney who was not counsel of record. 

The undersigned inm1ediately objected to any hearing on the matter after agency counsel of 

record had once again constructively withdrawn the Complaint11 but the ALJ, without 

explanation, insisted on proceeding. He started by asking why counsel of record, Michelle 

Harper, failed to appear and participate. The attorney said he could only speculate about the 

reasons for her nonappearance. 12 The ALJ asked the attorney whether he was prepared to 

participate in the hearing. The attorney replied, "I am not prepared .... " 13 

Over Respondent's repeated objections, the ALJ insisted on prosecuting the matter himself 

whether FAA took part in the case or not. 14 Judge Rawald admitted there were multiple reasons 

to consider the Complaint to have been withdrawn. He noted that FAA counsel of record "has 

been noticeably absent from the proceeding. She didn't file anything in response to my initial 

notice requiring the parties to meet and confer; she did not file herself the response to notice for 

show cause; ... and she has not appeared today." Despite these serious lapses on the part of 

Regional Counsel, the ALJ essentially indicated that he intended to take over from agency 

counsel: "There needs to be someone on this case because I'm proceeding with this case, I'm 

moving this case forward either way." 15 

10 See Exhibit 8. 11 Errata for Transcript of Pre-Hearing Conference ("Tr. Errata") (October 4, 2016) (Exhibit II). 12 Transcript ofpretrial [sic, Pre-Hearing] Conference ("Tr.") (October 4, 20 16) (Exhibit I 0) at 2-3. Under FAA 

Rule 219(d), Respondent's Appeal Brief was due within I 0 days of the ALl's ruling that the case will go forward. 

The Office of Hearings never served the Transcript on Respondent, so Respondent's initial brief, filed October 13, 

2016, was based on the undersigned's notes and best recollection. 13 Id. at 3. 14 Id at 43-44. 

15 !d. at 44-45 (emphasis supplied). 

Respondent's Appeal of Right 4 
At the conclusion of the hearing, the undersigned objected once again and asked for inunediate 

consideration of Respondent's motion to strike the unsigned, purported response to the show 

cause order. 16 The ALJ, contrary to FAA Rule 207, not only failed to strike the unsigned 

document, he issued an order that agency counsel not file a timely response to the Motion to 

Strike. 17 

Respondent inunediately filed the instant Appeal. 

ARGUMENT 

I. THE CRITERIA FOR RECOGNIZING A "CONSTRUCTIVE 

WITHDRAWAL" OF A RESPONDENT'S REQUEST FOR A HEARING 

MUST BE APPLIED EQUALLY TO THE GOVERNMENT'S 

"CONSTRUCTIVE WITHDRAWAL" OF A COMPLAINT. 

The Administrative Procedure Act, 5 U.S.C. § 551 et seq., forbids FAA to adjudicate the 

imposition of a civil penalty on a private party Respondent without first affording an opportunity 

for a fair hearing on the merits of the agency's allegations. For years, private parties have 

complained that FAA's civil penalty procedures are not only unfair, but in plain violation of due 

process rights guaranteed under the Fifth Amendment to the U.S. Constitution. Historically, 

FAA applied strict standards to private parties that were not applied to government "prosecutors" 

in civil penalty cases. Private parties were required to verify intenogatory responses under oath; 

no such requirement applied to FAA agency counsel. Private parties could not file interlocutory 

appeals; only FAA counsel could. Agency counsel were free to drag cases out long enough to 

make it difficult to "defend against the FAA's allegations because documents are inadvertently 

destroyed or witnesses become unavailable due to the agency's delay. 18 

FAA's procedures also were criticized for the lack of separation between ALJs, who are 

employed by the Transportation Department, and prosecuting agency attorneys, who report to an 

"FAA decision-maker," who is supposed to render a fmal decision in an administrative appeal 

but is "basically prosecutorial in ... outlook and orientation."19 After judicial intervention in the 

late 1980s, FAA adopted the Rules of Practice that govern today to address criticism that the 

prior rules were "inadequate to ensure a system of adjudication that is both fair and appears 

fair."20 

16 See Exhibit 9. 17 Tr. at 49 and Tr. Errata. 18 See Final Rule at 27552-58; Proposed Rule at 15135-36. 19 Final Rule at 27551. 10 Id. at 27550. 

Respondent's Appeal of Right 5 
The outcome of the instant appeal will indicate whether FAA is actually abiding by its own 

Rules or falling back into its old ways, thereby inviting new scrutiny by Congress and the federal 

courts. The basic issue is whether agency counsel can talce a "fire-and-forget" approach to 

prosecuting a civil penalty case. More specifically, denial of this appeal would establish one set 

of rules for "constructive withdrawal" of a private party Respondent's Request for a Hearing and 

a policy of not applying the same standards to agency counsel's conduct to the point of 

immunizing them against a fmding that they "constructively withdrew" a Complaint. 

Over many years, ALJs have repeatedly used the failure of a private party in a civil penalty 

proceeding to file a response to a show cause order or other required document as grounds to 

terminate the proceedings.21 More recently, Judge Rawald, the ALJ in the instant case, ilas made 

prolific use of constructive withdrawal, especially in connection with his April, 2016, mass 

mailing of Orders to Meet and Confer to parties in cases on his docket. When a party, in 

defiance of the ALJ's Order to Meet and Confer, failed to co=unicate with opposing counsel 

and put them in the position of having to file a unilateral report, Judge Rawald repeatedly ruled 

that the party's failure to respond was, by itself, grounds to conclude that the noncompliant party 

had constructively withdrawnY A party's silence, too, is sufficient grounds to fmd constructive 

withdrawal. 23 He also found that a party's constructive withdrawal occurs when it "fails to 

appear at a hearing without good cause" and such failure "shall be construed as an abandonment 

ofthe hearing process."24 Judge Rawald acknowledged that FAA Rule 215 gives him no choice 

in the matter because, when a party "withdraw[ s] a request for a hearing ... the administrative 

law judge shall dismiss the case with prejudice."25 

In every case Respondent has been able to identify, however, constructive withdrawal was 

always used against a private party Respondent and never against agency counsel. Judge 

Rawald, in particular, seems to have concluded that the govemrnent is exempt from requirements 

to participate in an administrative process that they instigated by filing a Complaint. 

ll. AGENCY COUNSEL "CONSTRUCTIVELY WITHDREW" FAA's 

COMPLAINT. 

In the cases referenced above, Judge Rawald recited the following fact pattern to justifY 

dismissal of Respondents' request for a hearing: 

21 See, e.g., Matter of Bonanza Valley Aviation, Inc., !994 WL 16054306 (May 4, 1994) (party failed to respond to 

Order to Show Cause); Matter of Edward C. Parks, !999 WL 33739451 (Feb. 17, 1999) (party filed no response to 

Order to Show Cause); and Matter of Butte Aviation, 2004 WL 350392 (failure to file Answer is "constructive 

withdrawal of the request for a hearing"). 22 See, e.g., Matter of Christopher McCann, 2016 WL 3662616 (June 29, 2016) ("McCann") at 1, n.l and Matter of 

!XL Premium Lubricants, Inc., 2016 WL 3662615 (June 28, 2016) ("!XL") at I, n.l. 

23 McCann at 2, n.2; !XL at I, n.2 24 McCann at 2, n.3; !XL at I, n.3 (emphasis supplied). 25 McCann at 2; !XL at 2 (emphasis supplied). 

Respondent's Appeal of Right 6 
1. Respondent requested a hearing. 

2. Respondent was served with a Meet and Confer Order and an Order to Show Cause. 

3. Respondent failed to comply with the Meet and Confer Order. 

4. Respondent was "advised in the Order to Show Cause that further failure to participate in 

the proceedings may be deemed a constructive withdrawal of the request for hearing." 

5. Respondent failed to respond to the Order to Show Cause. 

6. Respondent's "failure to participate in the proceedings ... constitutes a constructive 

withdrawal of the Respondent's request for a hearing." 

In Respondent Fisher's Appeal, the fact pattern is as follows: 

l. Complainant filed a Complaint. 

2. Complainant was served with a Meet and Confer Order and ordered to file a Joint Report. 

3. Complainant refused to comply with the Meet and Confer Order and never filed either a 

Joint Report or a Unilateral Report. 

4. Complainant was served with an Order to Show Cause and threatened with dismissal if 

agency counsel of record failed to "file a statement explaining the cause of their failure" 

and include "information requested in the Order." 

5. Complainant filed no statement explaining the cause of their failure or including the 

requested information. 

6. In fact, Complainant filed no cognizable response whatsoever to the Order to Show 

Cause because the document agency counsel submitted was not signed or certified by 

counsel of record and must be stricken from the record under FRCP ll(a) and FAA Rule 

207. 

7. Counsel of record did not even bother to appear at the Pre-Hearing Conference ordered 

for October 4, 2016. 

Certainly by the time agency counsel neglected to appear at the October 4 hearing, the ALJ was 

obligated to recognize a constructive withdrawal of the Complaint. If the FAA decision-maker 

rejects the instant Appeal and fmds that such a constant lack of participation by agency counselas enumerated by the ALJ hirnself26 - does not necessitate a finding of constructive withdrawal 

of a Complaint, agency counsel may be justified in considering themselves immune from 

dismissal. In effect, rejection of the Appeal would establish a "one-strike-and-you're-out" rule 

for private party Respondents and a blind eye toward exactly the same conduct by the 

government. This unbalanced duality could force the FAA into federal court, where it would be 

compelled to explain how such disparate treatment comports with constitutional guarantees of 

due process. Similarly, among the regulated community, this precedent surely will create the 

impression of a double standard, which would negatively affect that community's confidence in 

the FAA adjudicatory process as fair and unbiased. 

26 Tr. at 44. 

Respondent's Appeal of Right 7 
ill. UPON WITHDRAWAL OF A COMPLAINT, RULE 219 REQUIRES THAT 

AN ALJ "SHALL DISMISS" THE CASE WITH PREJUDICE. 

FAA Rule 219 is unequivocal. It specifically states that "an agency attorney may withdraw a 

complaint ... without the consent of the administrative law judge. If an agency attorney 

withdraws the complaint ... the administrative law judge shall dismiss the proceedings ... with 

prejudice." (Emphasis supplied.) 

As Part II explains above, agency counsel constructively withdrew their Complaint on multiple 

occasions: by failing to file a timely response to the motions to dismiss in 2015; by ignoring the 

Order to Meet and Confer; by failing to file the report required in said Order; by failing to file a 

signed response to the Order to Show Cause; and, finally, by not bothering to appear at the Preconference Hearing the ALJ convened on October 4, 2016. Their withdrawal required no order, 

approval or recognition by the ALJ. The FAA decision-malcer, in tum, has no choice under FAA 

Rule 215 other than to "dismiss the proceedings ... with prejudice." 

WHEREFORE, Respondent respectfully requests the agency decision-maker to immediately 

dismiss the Complaint with prejudice. 

Dated: November 25,2016 

Respondent's Appeal of Right 

Respectfully submitted, 

Q4)\jh? 

Jerry p.J <?ox, Esq. j 

2050 T'arnieson Ave., Suite 1212 

Alexandria, VA 22314 

(email) j~C>0~kP2!QI!_1_acgrat_~gy_~~-$_9_cje-1~-s._c_QDJ 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

8 
CERTIFICATE OF SERVICE 

On November 25, 2016, the undersigned sent by the indicated type(s) of service at least one copy 

of the foregoing Notice on each of the persons listed below. 

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

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 Hand] 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Wilbur Wright Bldg., Suite 2Wl000 

600 Independence Ave., S. W. 

Washington, DC 20591 

D [One Copy by Air Courier] 

Andrea Michelle Harper, Esq. 

Senior Attorney 

Regional Counsel, AS0-7 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

170 I Columbia Ave. 

College Park, GA 30337 

Respondent's Appeal of Right 

[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-31 0) 

Washington, DC 20590 

h9w, D 0 [Original+ pme Copies 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 

00 [One Copy by U.S. Mail] 

Ryan M. Landers, Esq. 

Senior Attorney 

Enforcement Division, Southern Team 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

P.O. Box 20636 

Atlanta, GA 30320 

Jerry W. 

9 

I 

I 

/ 

I 
Exhibit 1 
U.S. DEP ARTME~"I OF TRANSPORTAUON 

OFFICE OF HEA.R:ll.'!GS 

FEDERAL A V!AHON A][))MJlNJISTRATii:ON 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

FISHER SCIENTIFIC COMPANY, L.L.C. 

Respondent. 

FA.A Docket No. 

JUDGE NOT YET ASSIGNED 

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, 

pursuant to Rule 208 of the Rules of Practice (14 C.F.R. 13.208), and states as follows: 

L 

On May 18, 2015, Respondent, Fisher Scientific Company, LLC was advised through a Final 

Notice of Proposed Civil Penalty that the FAA proposed to assess a civil penalty in the amount 

of$6,500. On JUi"le 1, 2015, the Agency Attorney received a written request for a hearing from 

the Respondent 

II. 

1. On or about July 20, 2011, Fisher Scientific Company, L.LC, ("Fisher") lmowingly 

offered to United Parcel Service (UPS) a one piece shipment consisting of a 

specification fiberboard box containing hazardous materials for transportation by air. 

2. The above-mentioned shipment, assigned UPS tracking number/air waybill number 

1Z9V349l 1325638264, was offered by Fisher for next day air transportation to the 

consignee, Genova Diagnostics, 63 Zillicoa Street, Asheville, NC 28801. 

3. On or about July 21, 2011, ground handling personnel at the UPS sort facility 

discovered the above-mentioned shipment leaking. 

4. The above-mentioned specification fiberboard box contained a one !-liter plastic 

bottle (with friction or screw-type cap) of "Acros Sodium Hydroxide IN Standard 

Solution." 
5. (a) "Acros Sodium Hydroxide IN Standard Solution" is classified as a hazardous 

marerial under the Department of Transportation Hazardous Materials Regulations 

(HMR) (49 C.F.R. § 172.101). 

(b) The proper shipping name of the material is sodium hydroxide solution. Ir is in 

Hazard Class 8 (Corrosive Liquid), Packing Group II, and has an assigned 

identification number of UN1824. 

6. Further investigation showed that approximately 2 ounces of the above-described 

material had leaked into and through the fiberboard container. 

7. Fisher offered the above shipment of hazardous material for transportation by air and 

failed to use a means of containing the liquid in the form of a leakproof liner, plastic 

bag or other equally efficient means of containment. 

8. Fisher offered the shipment of hazardous materials for transportation by air and failed 

to package it so there would be no identifiable release of hazardous material to the 

environment. 

9. Fisher offered the shipment of hazardous materials for transportation by air and failed 

to ensure the closure was secure and leakproof. 

10. By reason of the above, Fisher violated the following Department of Transportation 

Hazardous Materials Regulations (Title 49 of the Code of Federal Regulations): 

a. Section 173.24(b)(l) in that Fisher failed to use a package which was 

designed, constructed, maintained, filled, its contents so limited, and closed, 

so that under conditions normally incident to transportation, there would be no 

identifiable release of hazardous material to the environment. 

b. Section 173.24(£)(1) in that Fisher failed to use a package which had closures 

so designed and closed that under conditions (including the effects of 

temperature and vibration) normally incident to transportation, (i) there would 

be no identifiable release of hazardous materials to the environment from the 

opening to which the closure was applied, and (ii) the closure would be secure 

arid leakproof 

c. Section 173.27(e) in that Fisher failed to ensure that except as otherwise 

provided in this subchapter, a package containing liquids hazardous materials 

in Class 3, 4, or 8, or Division 5.1, 5.2 or 6.1 that are packaged and offered for 

transport in glass, earthenware, plastic, or metal inner packagings were 

packaged with absorbent materials as follows: ... 

(3)When absorbent materials are required and the outer 

packaging is not liquid tight, a means of containing the liquid 

in the event of a leakage must be provided in the form of a 
leakproof liner, plastic bag or other equally efficient means of 

containment 

Pursuant to 49 U.S.C. Section 5123(a), Fisher Scientific Co., L.L.C. is subject to a civil penalty 

not lower than $250 ($450 for training-related violations), nor greater than $75,000 ($175,000 if 

death, serious illness, severe injury, or substantial property damage results), for each violation of 

the Department of Transportation Hazardous Materials Regulations. 

Under the facts and circumstances of this case, a civil penalty of $5,850 is appropriate. This 

amount includes consideration of the Respondent's timely corrective action. 

WHEREFORE, the Agency, by counsel, respectfully requests that the Administrative Law Judge 

enter an order that Respondent be assessed a civil penalty in the amount of $5,850. 

WILJ:':IAM VINES 

Attorney 

Office of the Regional Counsel 

day of June, 2015. 

PLEASE NOTE: 

Pursuant to Title 14 CFR Section 13.209(a), the Respondent is required to file a written answer 

to this Complaint, or a written Motion to Dismiss if appropriate, not later than 30 days after the 

date shown on the Certificate of Service which follows. 
Exhibit 2 
U.S. DEJl'AR'flVIENT OF TRANSPORTATION 

OFFICE OF HEAR.li'I!G§ 

WASHINGTON, DC 

FEDERAL A VllATION A])MJ[N][§'fRATION, } 

Complainant, 

v. 

} 

} 

l 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. F AA-2015-1321 

} (Civil Penalty Action) 

FISHER SCffiN'fllFIC COMPANY, JLJ..C, 

Respondent. 

} 

} 

Judge Goodwi.n 

MOTION§ TO JI)][§MJSS COMPLAli.NT 

FOR INSUFFICIENCY AND FOR 

COMPLAINANT'S VIOLAHON OF RUlE 208 

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

(hereinafter referred to as "Fisher") moves to dismiss the Complaint in the above-captioned civil 

penalty proceeding on the following two independent grounds. First, the Complaint fails to state 

a "knowing" violation ±or which a civil penalty may be imposed. Second, by including 

allegations that were first made more thao three years after the alleged incident, the Complaint 

violates Rule 208( d) of the Federal Aviation Administration's (hereinafter "FAA's" or "the 

Agency's") Rules of Practice ("Rules''). 

FAA's Southern Regional Counsel ("Regional Cotmsel," "the Govemment" or "Complainaot") 

ma.~es, among others, two allegations concerning acts Fisher allegedly committed almost four 

years ago, on July 20, 2011, when Fisher shipped a single liter of a cmTosive liquid commonly 

knovvn as lye. First, Regional Counsel alleges that Respondent "knowingly offered ... a ... 

shipment ... containing hazardous materials for transportation by air." CompL ~ 1. Second, 

Regional Counsel claims Respondent "violated the ... hazardous materials regulations" 

("HMRs") because it "failed to ensure that [the bottle oflye was] ... packaged with absorbent 

materials .... " CompL ~ 10.c. 
Respondent's Ivlotion to Dismiss 

Motion to Dismiss for Insufficiency 

The Hazardous Materials Transportation Act ("Hiv1TA"), Pub. Law No. 93-633, 88 Stat. 2156, 

2160 (Jan. 3, 1975), codified as amended at 49 U.S.C. § 5123(a)(l) (2011), allows the 

Government to impose a civil penalty upon a "person who knowingly committed an act which is 

a violation of' the HMRs (emphasis supplied). A later recodification made a non-substantive, 

editorial change. It reworded the sentence to say the Government may impose a civil penalty on 

a "person that knowingly violates" the Hl\{Rs. Nowhere in the Complaint does Regional 

Counsel allege that Fisher "knowingly" committed any act which is a violation of any li""MR. It 

merely states that Respondent "knowingly offered" a declared shipment of hazardous materials. 

There are other, more specific allegations in the Complaint, but none of them allege a "knowing" 

violation. In the example referenced above, Regional Counsel claims Respondent "violated" 49 

C.F.R. § 173.27(e), but there is no allegation that Fisher "knowingly" committed any act which 

violates it 

The cited HMR applies certain packaging requirements to some hazardous materials shipments 

but not to others. In this case, the lye was a "limited quantity" shipment that was exempt from 

the specification packaging requirements and otherwise fully complied with all applicable 

Hiv1Rs. However, even if one were to assume that§ 173.27(e) did apply to the shipment when it 

was offered in 20 ll and that Fisher failed in some respect to comply with it or any other HMR, 

the H""MT A's civil penalty provision, as amended by the Hazardous Materials Transportation 

Uniform Safety Act of 1990 ("HMTUSA"), Pub. L. No., 101-615, 104 Stat. 3244, 3259 (Nov. 

16, 1990), codified at 49 U.S.C. § 5123(a)(l)(A) and (B) (2011), unquestionably requires the 

Agency to allege and prove that Fisher "knowingly committed an act which is a violation of' that 

or some other HMR. 

As explained in greater detail in Respondent's Memorandum in Support of the Motions to 

Dismiss, the statutory language governing the instant civil penalty proceeding is plain and 

unambiguous. Even if there were some reason to consider it ambiguous, the legislative history 

of clauses (A) and (B), which were added by the HMTUSA, leave no doubt that Congress 

adopted a new definition of the tenn "lmowingly" for the specific purpose of prohibiting the 

Goverument from imposing a civil penalty in a case involving transportation of hazardous 

mate1ials unless it can show that the Respondent had actual knowledge that its act or omission 

violated the HMRs or that its noncompliance resulted from some specific act of negligence on 

the pa1i of the Respondent 

Accordingly, the Complaint fails to state a violation of the federal hazardous materials 

transportation statute or regulations and must be dismissed for insufficiency pursuant to Rule 

218, 14 C.F.R. § l3.218(f)(1). 

2 
Respondent's Motion to Dismiss 

Motion to Dismiss for Asserting a Claim About Which the Government Failed to Give Timely 

Notice 

As noted above, Regional Counsel asse1ts, among other claims, that Respondent "violated the ... 

hazardous materials regulations" because it "failed to ensure that [the bottle of lye was] ... 

packaged with absorbent materials .... " The HMRs imposed no such requirement on the 

shipment at issue in this case, but even if one were to assume that there was a requirement for 

packaging the subject limited quantity of lye with absorbent materials, Regional Counsel was 

obligated to give timely notice that the Government planned to base its Complaint on such a 

claim. 

FAA served a Notice of Proposed Civil Penalty ("the Notice") on July 3, 2013. During an 

Infmmal Conference, Respondent pointed out to Regional Counsel that the Notice was ex post 

facto, based almost entirely on HiviRs that were not in effect in July, 2011, when Fisher shipped 

tlle subject package. The Notice contained no allegation whatsoever that Respondent was 

obligated to include "absorbent materials" or that Fisher failed to do so when it packaged the lye. 

In fact, this Notice did not even mention "absorbent materials." The frrst Notice of this claim 

was served not within two years, as required, but more than three years after the alleged 

incident, in FAA's Amended Notice of Proposed Civil Penalty ("the Amended Notice") dated 

July 24,2014. Amended Notice~ f. 

Rule 208( d)(2) ofF AA's Rules provides, in pettinent part, that 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 "[i]fthe 

agency fails to show good cause for any delay .... "(Emphasis supplied.) 

There is no excuse or other good cause for Regional Counsel to keep Respondent in the dark fur 

more than three years about the Agency's intended allegations. To reward Regional Counsel's 

failure to give timely notice by allowing this case to proceed would defeat the stated purposes 

and policies of Rule 208, grossly prejudice Respondent's oppmtunity to defend itself and 

constitute a denial of Respondent's due process rights under the U.S. Constitution. 

WHEREFORE, Respondent respectfully moves to dismiss the Complaint on the following two 

independent grounds: frrst, for insufficiency pursuant to Rule 218, 14 C.F .R. § 13 .218(f)(1); 

and, second, to dismiss the Complaint for violating Rule 208 pursuant to 14 C.F.R. § 13.208(d). 

Even if the Complaint is not dismissed ouuight on account of Regional Counsel's violation of 

Rule 208, that portion of the Complaint alleging a failure by Respondent to include "absorbent 

materials" in the packaging for the subject materials (i.e., all of Complaint~ 1 D.c.) should be 

stricken, as alternatively provided in Rule 208( d). 

3 
Respondent's Motion to Dismiss 

Respondent recognizes the importance of the issues presented in this case to hazardous materials 

civil penalty cases in general and respectfully requests an opportunity to present oral argnment in 

person on these motions. 

Dated: June 23, 2015 

Vienna VA 22180 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientiii.c Co., LLC 

4 
Exhibit 3 
U.S. DEPARTMENT OF TRAl'iSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

REC!EI\/E[) 

FEDERAL AVJI.ATION ADlVTINISTRATION, } 

Complainant, 

V. 

FISHER SCIENTIFIC COMP Al'l-1f, LJLC, 

Respondent. 

J 

} 

} 

} 

} 

} 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Goo d\vi_n 

llESPONDENT'S OPPOSITION TO 

COMPLAINAl'IT'S MOTION FOR EXTENSION 

Respondent Fisher Scientific Company, LLC, (nereinafter referred to as "Fisher") moved on 

June 23, 20 !5, to dismiss the Complaint in the above-captioned civil penalty proceeding because 

the Complaint fails to state a "!mowing" violation for which a civil penalty can be imposeD. and 

included allegations that were out-of-time and in violation of the Federal Aviation 

Administration's (hereinafter "FAA's" or "the Agency's'') Rules of Practice ("Rules"). Instead 

of filing a timely response pennirced by Rule 13.218(d), FAA's Southern Regional Counsel 

("Regional Cmmsel") moved for an "Extention [sic, Extension] to File Response." Regional 

Counsel failed even to allege the presence of any grounds to grant such a moiion cognizable 

under Rule 13.213(b) and otherwise failed to adhere to other applicable Rules. Accordingly, 

Complainant's Motion cannot lawfully be granted and Regional Counsel must be considered to 

have waivecl FAA's opportunity to respond to Respondent's Motions to Dismiss. 

Rule 13.213(b) is clear. As with any other party, an F Alo. "motion for an extension of time" 

must be filed witll the judge "not later than 7 days before" a response to a Respondent's written 

motion "is due." Regional Counsel filed F P,j;.'s motion for extension exactly zero days before 

the response was due. A judge has authority essentially to waive this seven-day requirement 

only if "good cause for the late filing is shown." Nowhere in Regional Counsel's Motion is there 

so much as a naked assertion that F .AP, had "good cause" to file zero days ahead of the due date 

instead of seven days al1ead, as unequivocally required under the Rules. 

In any case, the Rules allow a judge to grant an extension of time to respond to a Motion to 

Dismiss only "if good cause for the extension is show11." Once again, Regional Cmmsel failed 
Respondent's Opposition to Jlllotionjor Extension 

even to include so much as a declarative statement that such grounds exist. The Motion states 

that FAA desires "an extension in order to effectively respond [sic]." It does not even suggest 

there are any special circumstances or any other reasons whatsoever to conclude that the time 

otherwise allowed by the Rules was inadequate. Absent those circumstances, the Motion for 

Extension would have failed even if it had been timely filed. 

Regional Counsel goes on to claim that Fisher will not be "prejudiced by an extension." This 

statement is false but, even if it were true, it does not constitute "good cause" for pennitting FAA 

to ignore the seven-day advance filing mle for its Motion for El-.-tension or the 1 0-day rule for 

filing FAA's response to Respondent's Motion to Dismiss. Rule l3.213(b) is meaningless if 

Regional Counsel can avoid it without making any pretense of an affirmative sha;Fing why the 

requested e:x-rension is necessary. 

Regional Counsel's Motion is merely the latest example of how FAA's handling of this matter 

has prejudiced Fisher's ability to defend against the Complaint. The alleged incident occmred in 

July, 2011. FAA did not file any Notice in the mattenmtil July, 2013. That Notice made no 

allegation whatsoever that Fisher failed to employ a particular type of packaging product. FAA. 

filed another Notice in July, 2014, more tt'1au three years after the alleged incident, which is 

based almost entirely on the previously missing allegation about packaging. F P..A then waited 

until Jtme, 2015- almost four years after the event-to file its Complaint. Wl1en Fisher moved 

to dismiss the Complaint in part because ofF Ar'l. 's dilatory approach to the case, Regional 

Counsel's only response has been to seek au eJ.'lension to August 3, 2015, a date that is beyond 

four years after the event. 

Meanwhile, FAA has overseen or pem1itted the destruction of crucial evidence. If this case 

eventually goes to a hearing, witnesses on both sides potentially will be required to rely on 

nothing more than faded recollections. 

\VHEREFORE, Respondent prays that Regional Cotmsel's )lviotion for Extension be DENIED. 

Dated: July 7, 2015 Re~pec~ M. lily':\llbmitted .. 1 .""'~~~ 1 I'~.\ '1 

! 1;·. J l' ~ 1 ! \ I, /1 !:' / I \// 

'--.., iJ· ''[-ill u --- --:-r: v / ; i '-' I 

Jeny· \V. Cox. Esq. r / . 2729 ,Gallows Rd., Suite 401 

<I 

Vienna, VA 22180 

(email) 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

2 
Exhibit 4 
In The Matter Of: 

SERVED: April6, 2016 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2015-1321 

Fisher Scientific Company, LLC 

) 

) 

) 

) 

) 

Case No. 201180700457 

Respondent 

ORDER DIRECTING THE PARTIES TO 1\tffiET AND CONFER REGARDJ!NG 

UTllGATION AND SCHEDULJ!NG ISSUES 

The above captioned case was reassigned to the undersigned judge on March 24,2016. By 

order of the Chief Administrative Law Judge, any previously established date for a prehearing 

conference or trial was suspended. Those dates are now vacated and there is a need to establish a 

new litigation schedule for this case. To assist the undersigned judge, the parties should meet 

and confer to propose a mutually agreeable schedule. 

An administrative law judge may hold conferences to, among other things, "settle [or] 

simplify the issues by consent of the parties." 1 Pursuant to 14 C.F.R. § 13.205(a)(l) and (7), it is 

hereby ORDERED: 

1. The parties shall privately conduct an informal conference to meaningfully discuss 

litigation issues and proposed scheduling. 

2. The parties shall draft a joint report providing: 

a. a suggested venue, 

b. a proposed schedule for the completion of discovery (or an indication that 

discovery is complete), 

c. a list of any pending motions.that have been previously filed but have yet to be 

ruled upon, 

d. a proposed date for a telephonic prehearing conference with the undersigned 

judge, 

I 14 C.F.R. § 13.205. 
e. a proposed due date for the filing of any prehearing motions (including a 

proposed date for a telephonic hearing on any filed motions, if so desired), and 

f. proposed hearing dates. The parties should provide at least three alternative dates 

on which the hearing may be held that are acceptable to all parties. 

3. In addition to filing the report with the Federal Aviation Administration Hearing Docket 

Clerk in accordance with 14 C.F.R. § 13.210, the parties shall submit the report to the 

undersigned judge at the Office of Hearings by fax, express carrier, or personal delivery 

no later than 30 calendar days after the date ofservice ofthis order. 

Administrative Law Judge 

Attachment: Service List 

2 
Exhibit 5 
U.S. DEPA$'JflVIJEl'fF OF 'Jf.lR.ANSJP'OR'JfATION 

OFFICE OF tl!EAID""'NGS 

W A§HJIT"I/G'l!'ON, DC 

JFEDEJU':.L AVIATION ADlVlll'{[§'J!'RATION, } 

Complazimnt, } In the Matter of Fisher 

} Scientific Company, LLC 

v_ 

JF:[§JBiJER SCI!EN'JfWKC OOMPAl'IY, LJLC, 

Respondent. 

} 

} 

} 

} 

Docket No. F.AA-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

REPORT OF FISHER SCl!EN'JfiFIC KN RESPONSE 'JI'O 

ORDER SERVED AJPIDJL 6, 2016, 

AN]!} 

MOTION 'JfO SANCTION FA..A.'§ NONCOlVJIT?UANCE 

By Order entered April 6, 2016, Judge Rawald directed Complainant, the Southern Regional 

Counsel of the Federal Aviation AdmiPistration (hereinafter referred to as "F Al\") and 

Respondent Fisher Scientific Company, LLC (hereinafter "Fisher"), to tile a Joint Report 

addressing certain pre-hearing matters that were listed in the Order, including "a list of any 

pending motions that have been previously filed but have yet to be ruled upon-" 

Fisher regrets to report that FAA cou_nsel essentially went "AWOL" and thwarted Fisher's 

diligent efforts to respond to the Order with a Joint Report. Fisher's undersigned counsel 

telephoned the FA..A. attorney identified on the service list (JVlr. Vines) on April 15, 2016. Mr. 

Vines did not answer his telephone, so Fisher's counsel left a voicemail stating that the call was 

in reference to the April 6 Order. lliir_ Vines never returned the calL On April 18, the 

undersigned counsel emailed Mr. Vines, requesting a response to the April 15 voicemaiL On 

Aprill9, !Vlr. Vines responded that a different FAA attorney was handling the case, even though 

FleA never updated the service list 

On April 20, Ms. ]I;Iichelle Harper phoned to say she was the attorney responsible for F AJI~' s 

compliance with the Order. She asked Fisher's counsel to prepare a draft Joint Report, which the 

undersigned emailed to her a few minutes later. Fisher requested that she either concur with the 

draft and sign it or suggest any edits she thought appropriate. Ms. Harper did neither. 
Report of Fisher Scierrtij7.c 

A week later, on April 27, the undersigned phoned Ms. Harper but, once again, she did not 

answer her telephone. Fisher's counsel left a voicemail reminding her that Fisher was 

determined to comply with the Order but- without any response from her- it would be 

impossible to file the required Joint Report. Ms. Haiper never responded to the voicemail. On 

April 29 -the deadline for finalizing and mailing the Joint Report- the undersigned telephoned 

Ms. Harper again, but she did not a.>swer her telephone. Fisher's counsel indicated in a voice 

mail that if FAA continued to ignore the proposed draft of the Joint Report, Fisher would have 

no choice but to withdraw it and file its own unilateral response to the Order. Ms. Harper did not 

return the call or otherwise respond. 

FAA's apparent disregard of the April 6 Order is just the latest chapter in a five-year history of 

the Office of Sout.hern Regional Counsel dragging its feet and utterly ignoring applicable laws 

and Rules of Practice. 

This case arises from an alleged incident that occurred five years ago, on July 21,2011. FILl!;. 

waited until days before the statute oflimitations expired and filed a Notice of Proposed Civil 

Penalcy in July, 2013. After Fisher pointed out that the Notice was based on regulatory 

requirements that were not in effect in 2011, FAA filed an Amended Notice on July 24, 2014, 

more tha.> three years after the alleged incident and more than one year after the statute of 

limitations expired. 

FAA waited almost another year, Uiltil June, 2015, to file its Complaint. On Jtme 23, 2015, 

Respondent Fisher filed a Motion to Dismiss the Complaint for legal insufficiency and for being 

baiTed by the statute of limitations. The FA_A's own Rules of Practice allowed F /'._A 10 days to 

oppose Fisher's Motion to Dismiss, but the agency did not file its Memorandum in Opposition 

until August 17, 2015, almost two months after it was due. Fisher's Motion to Dismiss has been 

pending for nearly a year. 

The most appropriate way to sanction such egregiously dilatory conduct and get this ancient case 

off the docket would be to order Southern Regional Counsel to SHOW CAUSE why dismissal 

should not be ordered on one or more of the following grounds: 

1. FAA"'s failure to comply with the April6, 2016, Order. 

2. FiLA.' s default in failing to file a timely opposition to Respondent's June 23, 2015, 

Motion to Dismiss. ('No extension was permitted under FAA's Rules of Practice for the 

reasons stated in Respondent's Opposition to F /'._A's Motion for Fxtension.) 

3. FAA's decision to wait more than three years after the alleged incident and more than a 

year after the statute oflimitations expired to lodge crucial allegations in the Amended 

Notice. (Respondent's Memorandun1 in Support and its December 21,2015, Reply to 

FAA's Memorandum in Opposition, an additional copy of which is actached, explain in 

detail why the case is barred as out-of-time.) 

2 
Report of Fisher Scientific 

4. FAA's failure to state a legaliy sufficient claim, as explained in Respondent's abovereferenced Memorandum in Support and its Reply to FAA's Memorandum. 

WHEREFORE, Respondent respectfully requests t.he Judge to command Agency respect for his 

Orders aild for the substantive and procedural laws underlying the above-captioned case by 

DISMISSil'JG with prejudice FAA's Complaint. 

Respondent reiterates its request for in-person oral argument on the issues presented by its 

pending motions. 

Dated: April30, 2016 

Respectfully submitted, 

Jerry Vy}Cox, Esq 

2050 Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

(email) .·..c ;:2:. Dc;zs:c§:fu..Cc;',J§c;,;:::i£s28 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

3 
Exhibit 6 
In The Matter Of: 

SlERVE.JDi: Mary 17, 21H6 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

\V ASHl1.JGTON, DC 

Docket No. FAA-2015-1321 

Fisher Scientific Company, LLC 

) 

) 

) 

) 

) 

Case No. 2011S0700457 

Respondent 

ORDER TO SHOW CAUSE AND PROVIDJE PJEQUJESTED JlJ.'IFORJ\1.ATllON 

On Aptil 6, 2016, the undersigned judge issued ili"1 Order Directing the Parries to Meet and 

Confer Regarding Liii.gation and Scheduling Issues in the above captioned case. The order 

required, inter alia, the parties to submit a joint report to the tmdersigned judge within 30 days of 

that order. 

On April 3D, 2016, the Respondent filed a unilateral report, stating that his attempts to meet 

and confer with the Complainant had failed. 1 

The Complainant failed to submit a repott or request tor additional tin1e before the deadline2 

In accordance v.ith 14 C.F.R. § l3.205(a)(6), an adminish·ative law judge is empowered to 

regulate the course of a heating. As previously noted by the FAA Adminisha.tor: 

[ t]he Administrator expects that the patties"@ comply 'l~th orders issued by an ALJ dm·ing the 

hearing Siage of a proceeding. Ignoring an ALJ's orders cannot be countenanced in an orde-rly 

system of adjudie-ation.3 

The pa.rties are therefore reminded that failure to follow the tmdersigned administrative law 

judge's orders v,ithout good cause may result in sanctions.4 Moreover, continued failure to 

1 Respondent G"liled, however. to provide all tlte information requested in the April 6, 2016 Meet and Confer Order. 

2 Counsel forthe Complainant filed a notice of appearance on May 10, 2016, bnt failed to include the information 

required by rhe undersigned judge's April 6, 2016 Meet and Confer Order oT offer a response to Respondent's 

assertions within his April30: 2016 report. Nombly~ the counsel making her appearance 1vas th-e same person 

Respondenes counsel had conesponded 1vith regarding this matter as early as April20, 2016. This counsel was 

therefore assigned to this matter \.Vell betbre the deadline for filing a response to the April 6. 201 6 Meet and Confer 

Order. 

'American Airlines, Inc., FAA Order No. 2002-15, at 9 (May 20, 2002). 

'S.ee id. ("Parties who disregard the ALJ"s orders do so at tl1eir own peril because the Administntor on appeal will 

uphold any rea;;onable sanctions permitted by the Rules ofPracrice that the ALl imposes against a party for that 

behavior."). 

':··.-:::; 
participate in the proceedings as directed by the undersigued judge may be deemed a 

constructive withdra>val of the request tor hearing or complaint by the party demonstrating sucb 

a lack of interest in participating in these proceeding&. 5 

Pursuant to 14 C.F.R. § 13.205(a)(1), (6), and (7), it is hereby ORDERED: 

l. No later than June 1, 2016, the Respondent shall file a repoti including all of the 

infmmation requested in the Order Directi.Ttg the Parties to Meet ancl Confer Regarding 

Litigation and Scheduling Issues. 

2. No later than June 1, 2016, the Complainant sha\i file a statement explaining the cause of 

their failure to comply with the Order Directing the Parties to Meet and Confer Regarding 

Litigation and Scheduiing Issues. 

3. The Complaina..rtt shall include in their statemem the i:n:tormation requested in the Order 

Directing the Parties to ]Vleet and Confer Regarding Litigation and Sc.hedniing Issues. 

4. If the Complainant fails to file t_his statement by the above deadline, the trndersigned 

judge rnay issue a subsequent order finding the Complainant has constructively 

\'ritbdrawn from these proceedings and. pursuant to 14 C.F .R. § 13 .215, dismiss tbe case 

with prejudice. 

Attachment: Senice List 

DOUGLAS M. RlcWALD 

Administrative Law Judge 

3 See, e.g, JAL Power Supp[v, Docket No. CPOl 300015 (F AAAug, 7, 2001) (i\LJ consnued Respondent's silence 

as a constructive withdrawal or request for a hea:ting), appeal dismissed, FAA Order No. 2002-10 (Apr. 17, 2002): 

Blankson, Docket No. CP97EA0024 (FAA Sep. 11, 1997) (ALJ found fuilure to respond to previous orders 

constituted consn·uctive withdrawal). aJ[c!, FAA Order No. 98-21 (Oct. 9, 1998), See also Instead Balloon Sen'ices, 

F . .:V-\ Order No. 1998-23, at 3 (Nov. 24, 1_998) (affirming ALJ's decision to find con·stmctive withdrawal whe11 a 

party failed to appear at the hearing wit11om good cause); Apollo A & HS Company, FAA Order No. 20 11·4, at 4 

(lun, 14, 2011) ("Apollo's failure to appear at the hearing and to pursue irs request for hearing without good cause 

constituted a consn·uctive \Vitbdra,vat ofjts request for heafi_,J]g. "). 
Exhibit 7 
UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

FISHER SCIENTIFIC LLC 

Docket No. F AA-2015-1321 

(Civil Penalty Action) 

Judge Douglas M. Rawald 

COMPLAINANT'S RESPONSE 

TO SHOW CAUSE ORDER 

Complainant, by and through the uodersigned couosel, hereby files its Response 

to the Order to Show Cause and Provide the Requested Information served May 17, 20!6, 

and states the following: 

l. Respondent's counsel and the uodersigned attorney exchanged several emails on 

Aprill9, 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 I. 

2. On April 20, 20!6, the uodersigned 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, 

ti:!e parties agreed (emphasis added) that the information sought in the Order 

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

ruling on Respondent's Motion to Dismiss. Therefore, ti:!e 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 couosel filed his 

unilateral report and motion for sanctions. 

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

face. The parties did indeed meet and confer on April 20, 2016, as required. The 

parties had a thorough discussion of the uoderlying 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 unmeritorious 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 mistruths. 

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 31" day of May, 2016. 

-~~t:7- ff~, /dd.411]'i'f, !ifl«/ley 

r 

ANDREA MICHELLE HARPER 

Senior Attorney 

Office of the Chief Counsel 

Enforcement Division, Southern Team 

2 
Exhibit 8 
U.S. Iil.EJP AR'IM.EN'f OF 'Jf'RANSJPORTA UON 

OFNC.E OF JBI.EAJP'JNGS 

WASlS!J!NG'ION, IilC 

FEDERAL AVIATION .ADl\1liNJIS'fRAT!ON, } 

Complainant, } 

} 

~ } 

} 

FISmERSCIEN'l.JIJHC CO.LVll'Al\lY, LLC, } 

Respondent. } 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FA.A-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

RESPONJiJI.EN'I'§ REPORT liN RESPONSE 

TO ORJiJIER ISSUED JllJNE 2, 20.1.6, 

TO PROVIDE REQUESTED JINFOR\ViiAHON 

Al\JJlll 

REI'l. Y TO COiviJPLJ,\JINAN'I'S RESPONSE TO SHOW-CAUSE ORJlll.ER 

ISSUED W!AY 17, 2016 

History of the Proceedings 

The Federal Aviation Administration's Southern Regional Counsel ("Regional Counsel" or 

"F A.A.") seeks a $5,850 fine relating to a small shipment of lye five years ago. Respondent 

Fisher Scientific Company ("Fisher") moved to dismiss the case for several reasons, including 

FP..A' s failure to explain how the shipment could possibly have involved ai1Y knowing violation 

of the Hazardous Materials Regulations ("HMRs"). 

Fisher participated in two "informal conferences" ("ICs") with Regional Counsel. During the 

first IC, on July 16, 2014, Fisher explained that the boilerplate Notice of Proposed Civil Penalty 

("NO PCP") that Regional Counsel served July 3, 2013, included downright bizarre fuctual 

allegations and was based entirely on }':;JVIRs that were not in effect on July 21, 2011, the date of 

the alleged incident. More specifically, Fisher pointed out to Regional Counsel during the 2013 

IC that the volume of lye being shipped (just one liter) was so small, the shipment was a 

"limited quantity" ("LQ") that was exempt from certain packaging and other requirements that 

would otherwise have applied. Regional Counsel wrote the NOPCP in 2013, after the maximum 

volume for an LQ of lye decreased to one-half liter, but the change in the :Hl\llRs was not and 

could not be retroactive to a shipment in 2011. 

More than a year later, on July 24, 2014, Regional Counsel served an Amended Notice of 

Proposed Civil Penalty ("ANOPCP") that dropped allegations in the first Notice but added a 
Report and Rep{v of Respmuhmt Fisher Scientific 

completely new claim that, when Fisher prepared the subject shipment, it was somehow required 

to stuff the packaging with "absorbent material." Nine months later, on April22, 2015, Regional 

Counsel convened another IC with Fisher's senior in-house counsel and top hazardous materials 

transportation managers on the line. Respondent's counsel pointed out that, in addition to 

relying on .H.lv!Rs that were not in effect at the time of the alleged incident, this brand-new claim 

was time-barred because it was lodged more than a year after the applicable two-year statute of 

limitations passed. Respondent's counsel also asked then-Regional Counsel of record, Will 

Vines, Esq., to explain why FAA refbsed to accept that the LQ Exemption covered the subject 

shipment. Mr. Vines stammered for half a minute, then abruptly terminated the conversation 

without offering an answer. 

Regional Counsel served its Complaint in mid-June, 2015. Respondent promptly moved for 

dismissal. 

Judge Rawald' s April 6, 2016, Order Directing the Parties to Meet a.11d Confer Regarding 

Litigation and Scheduiing Issues 

After the two ICs, Counsel for the parties had no other communication until Judge Rawald issued 

the April 6 Order. Fisher had to work hard to initiate contact. The undersigned phoned Mr. 

Vines on April 15 and left a voicemail specifically referencing the April 6 Order. JI;Ir. Vines 

never returned the call. The undersigned then emailed Mr. Vines on April 18. The foil owing 

day, 1\lfr. Vines advised by email that a different FAA attorney, whom he identified as Michelle 

Harper, was handling the case for Complainant. Ms. Harper had not entered an appearance in 

the matter but she phoned Respondent's counsel on April 20. 

Telephone company records show that the entire April 20 conversation lasted 20 minutes 

(Attachment l). It covered the folloV\ring topics: (l) personal introductions; (2) Judge Rawald's 

April 6 Order; (3) the content of the Joint Report to be filed in response to the April 6 Order; (4) 

Respondent's Motion to Dismiss the Complaint; and (5) Respondent's request to meet with 

FAA's newly assigned counsel to hear whether she, unlike Mr. Vines, could explain why FAA 

contends that the subject shipment did not qualify for t.t'J.e LQ Exemption. 

Topic 1 consumed about five minutes of the conversation. On Topic 2, counsel mutually agreed 

that it was impossible to know whether mJy discovery or hearing would be needed, much less to 

propose dates for such additional proceedings, because Fisher's Motion to Dismiss would be 

dispositive of the entire case. On 'fopk 3, Respondent's counsel agreed to prepare a draft Joint 

Report to that effect and FAA's counsel agreed to review it, to offer any needed edits and sign it 

if no edits were needed. Under Tojpic 4, F A..A asserted that the Motion to Dismiss should be 

denied; Respondent's counsel explained why the Motion to Dismiss should be granted. 

2 
Report and Rep{v of Respondent Fisher Sclerztific 

Approximately 18 minutes into this 20-minute conversation, Respondent's counsel brought up 

Topk 5. That pa;i: of the conversation, which is reproduced below in its entirety and as dose to 

verbatim as possible, went as follows: 

MR. Co.Y: You knaw, it would really be a shmne to i:nsist that the Judge must decitle the 

i!Jlotian to Dismiss ami allow the proceedings to go forward if you will have no case to present 

on the merits. We asked Will VInes nwre than once to explain why the shipment was not 

exempt under the Limited Quantity Exemption. Can you please explain that one to me? 

l'vls. H4RPER (cr-ruCKWVG): 1 haven't looked at that file in years. 

MR. Cox: 1\tlaybe tltis w1mid be a good time to do that. 

Ms. HAF..PER: OK, I'll look 11t ii and get back to you in the fi;·st haf/ of ne..'i:l week. 

This portion of the conversation lasted approximately two minutes. 

Immediately after the April20 conversation, Respondent's counsel sent a draft Joint Report for 

Ms. Harper's review, edits and signature. Ms. Harper failed to respond. After hearing nothing 

from F A..A for another week, on April 27, the undersigned phoned 1Vls. Harper to urge her to sign 

or suggest changes to the proposed Joint Report. She did not answer her phone. She did not 

return the calL Two days later, on April29 (see Attach...--nent l, entry for two-minute call to 

Atlanta), as the Judge's deadline for submitting the Joint Report loomed, the undersigned 

telephoned Ms. F..arper again, leaving the following voice message, reproduced here verbatim: 

MR. Cox· This is Jerry Cox with Tltemw Fisher in DC 1 se;1t you a draft Joint Report on 

Apri/2(} but 11ever heard back from you. We ':re up against the deadline, so I'm going to 

withdmw the draft Joint Report and Tl1ernw Fisher will lutve to file its own Repo:rt Feel free 

to call me when you are prepared to discuss the case. 

Accordingly, on April 30, Respondent filed a unilateral Report and moved for sanctions against 

F Aft._ for ignoring the Judge's April 6 Order. F P...A filed no Report of its own and ignored 

Respondent's Motion for Sanctions. 

Judge Rawald' s May 17 Show Cause Order 

Regional Counsel remained AWOL until the Judge ordered FAA to show cause why it has not 

"constructively withdrawn" its Complaint and the why the Judge should not "dismiss the case 

·with prejudice." Order to Show Cause at 2. 

3 
Report and Rep~v of Respondent Fisher Scientific 

ln its Response to the Show Cause Order, FAA equivocated about whether Ms. Harper received 

Respondent's voice messages and argued that, even if she heard but chose to ignore them, 

Respondent could have simply indicated to the Judge that she "agreed with the position 

articulated, even without [her] signature." Complainant's Response to Show Cause Order, 'lf'j[ 5 

and 6. Despite repeated efforts, however, the undersigned had no way to know whether F A..A 

had even received the draft Joint Report, much less whether Ms. Harper approved it. 

FAA told the Judge that Ms. Harper and Respondent's counsel "had a lengthy phone call 

discussing the issues in the case, as wei! as the information required by the Order," id. 'if 2, and 

that "the parties did indeed meet and confer on April20, 2016, as required." Id. 'lf4. FAA went 

on to claim that "the parties had a thorough discussion of the underlying facts of the case," id 

(emphasis suppiied), and that Respondent's Motion for Sanctions is "filled with mistruths [sic]" 

(id., 'j[ 6). 

The undersigned is not entirely sure what a "mistruth" is, but he would be willing to sign an 

affidavit that each and every averment he has made to the Judge was true and correct and in fuil 

compliance with Rule 11 of the Federal Rules of Civil Procedure ("FRCP") and professional 

ethics requirements relating to candor before a tribunaL It is for the Judge to determine whether 

a 20 minute phone call, only two minutes of which was devoted to the merits of the case, and 

which Complainant's counsel cut short because she hadn't bothered to read the file, was 

anything resembling a "thorough discussion." 

By contrast, it speaks volumes that Ms. Harper did not sign FltA' s Response to the Show Cause 

Order. It appears to have been approved by someone else whose name is not typewritten 

anywhere on the document and who has never entered an appearance in the case. FRCP ll(a) 

explicitly requires that "every pleading ... and other paper must be signed by at least one 

attorney of record .. [and] [t]he court must strike an unsigned paper .... " FRCP ll(b) provides 

that "by presenting __ . a pleading . __ or other paper ... an attorney certifies that to the best of the 

person's knowledge ... factual contentions have evidentiary support .... " Sanctions may be 

imposed on the "attorney ... or party," FRCP ll(c). Unless FAA recartts quicldy, Respondent 

plans to move for such sanctions because lVls. Harper's statement to 1he Judge that "the parties 

did indeed meet and confer [and] had a thorough discussion of the underlying facts of the case 

.... "is both highly material and plainly false. 

Report to Judge Rawald in Response to the Orders to Provide Requested Information 

In his June 2 Order, Judge Rawald admonished Respondent to "file a Report including all of the 

information requested in the Order Directing the Parties to Meet and Confer." 

Respondent has diligently undertaken and continues to do everything humanly possible to 

prepare and submit a Report that ·would, among other objectives, lay out a "schedule for 

4 
Report and Rep{v of Respondent Fisher Scientific 

compietion of discovery," proposed dates for prehearing conferences, filing of prehearing 

motions and hefuing dates. Order to Meet and Confer at 1-2. Unfortunately, because FAA has 

steadfastly avoided meeting with Respondent or participating in any sort of substantive 

discussion- even after the undersigned made additional telephone requests to Ms. Harper on 

May 31 and June 3, Respondent can only guess what the issues would be, much less what 

discovery would be needed to address them, how long it would take to complete such discovery 

or what witnesses would need to be called. 

With tl1at said, Respondent provides below, to the greatest extent information is available at the 

moment, the following information requested by the numbered portions of ilie April 6 Order. 

Respondent's responsive information is presented in italics: 

l. The parties shall privately conduct an informal conference to meaningfully discuss 

litigation issues and proposed scheduling. 

FAA rebujfed multiple requests ji·om Respondent's counsel for a meeting, starting on April 15, 

2 016, on the grounds that it has been years since Regional Counsel has read the jile. This has 

made it impossible for Respondent to adai·ess with FAA either litigation issues or proposed 

scheduling. 

2. The parties shall draft a Joint Report providing: 

a_ a suggested venue, 

RJE§JPOl'>lJDfENT' § REJP'L Y 

FVithout FAA's cooperation, Respondent has no way to /maw what witnesses would need to be 

called or what venue would be most convenient to them. However, Respondent tentatively 

suggests that Washington, DC, would be the appropriate venue because the Judge is here, 

Respondent's counsel is here and key Fisher witnesses are in the Northeastern United States. 

RJEQUJE§'JI'JED TI'IFOiRiriiATION 

b. a proposed schedule for t_he completion of discovery, 

RJE§lPONDJEN'I'§ REPLY 

Until F_A_A is compelled to participate in the informal conference referenced in Item # j, above, it 

will remain impossible to /mow what witnesses the agency intends to present, what experts, if 

any, Respondent would need to call to testify m1d who possesses l'l:!levanl information. The time 

5 
Report and Rep4r of Respondent Fisher Scient{fic 

needed to complete discove1y, of course, will depend on how mmty witnesses are involved, where 

they are located, and what their schedules allow for. Witnesses may also need additional time to 

re.fi·esh their recollections about events that occurred.five years ago. Respondent would, in any 

event, require production of physical evidence related to the alleged leak. Respondent 

lmderstands·from a letter lvfr. Vines sent on November 20, 2014, that FAA either destroyed the 

bottle and the packaging material, including the box in ·which it was shipped, or a/lmved this 

evidence to be destroyed. It may take months to determine how much of the physical evidence 

continues to exist and ·what, if anything, experts can deduce from it. Respondent may also need 

to seek sanctions against FAA on account of such destruction of evidence. 

c. a list of any pending motions ... , 

RESPONDENT'S REPLY 

Respondent's lvfotion to Dismiss Complaintfor Insufficiency and for Complainant's Violation of 

Rule 208 was.filed June 23, 2015. 

d. a proposed date for a telephonic prehearing conference ... , 

Respondent is, of course, willing to participate in a prehem·ing conference, by telephone or in 

person, on July 20, 2016, or nearly any other date that would suit the Judge's convenience. 

H 01vever, without more information about the issues FAA will raise, Respondent is uncertain 

what could be accomplished. 

e. a proposed date for the filing of any prehea.ing motions ... and 

While Respondent cannot suggest a date jorfiling prehearing motions~ it likely would need to file 

a motion for a more de.finite statement before it could.file its Answer. 

f. proposed hearing dates .. acceptable to all parties. 

6 
Report and Rep~v af Respondent Fisher Scientific 

Respondent submits that no hearing will be needed in this case, but if a hearing will be held, it 

recruests the earliest date consistent rvith and allowable under the law and FAll's Rules of 

" ,. 

Practice. 

3. [service instructions] 

Respondent timely served- in accord.ance with these instructions- the best Report it could 

muster in light of the total lack of response ji·om FAA to the dPojiloint Report it ojfered 

Regional Counsel on April 20. 

Conclusion 

Respondent has no means to compel Regional Counsel to comply with t.he April 6 Order or to 

respond to Judge Rawald's May 17 Show Cause Order. Fisher cannot provide any more 

requested information until FAA stops hiding behind the pending Motion to Dismiss. Judge 

Rawald has offered FA/,,_ multiple opportunities to comply with his Orders but the agency still 

refuses. 

\iVHEREFORE, Respondent requests that the Complaint be dismissed with prejudice. 

Dated: Jurte 13, 2016 

Respeetf\llly sul:miitted, 

Jerry/YV .. Cox~E'Sq. 

2050Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

(email)·"'· =~'"·'-'•""'""''-""="•'-"-'~ ".~""=·~~='"=·· 

(tel) 703-757-5866 

Counsel for Them1o Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

7 

JERRY COX 

2050 JAMIESON AVE APT 1212 

>\LEXANORIA, VA 22314-6827 

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2050 JAMIESON AVE APT 1212 

ALEXANDRIA, VA 22314-6827 

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Exhibit 9 
F{Er> 

U.S. lJIE!l'ARTMENT OJF TRANSPORTAUON 

OFFJ!<CE OF lBI:EAllUNGS 

W ASIDNGTON, lJI<C 1 ,,_,,.,._.o 

··rr'R -'r.\ 1.""1 ,e.:.- 1"\ 1ll ,, \....\ "-"" ...• · ......... "---· . J 11-- , ..... 

Complainant, 

V. 

JF!SHER SCIIENTllFIC <COJ\fl' fo.NY, LL<C, 

Respondent_ 

} 

} 

} 

} 

} 

} 

In the Matter of fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

P.ESPONlDlENT'S MOUON 

TO STRIKE <COJ\fl'LAINANT'§ RESPONSE TO SHOW CAUSE ORlJIER 

AND TO 

IiliSMl!SS THE COMPLAINT AS MOOT 

Historv of the FAA's Inexcusable Delay in the Proceedings 

The Federal Aviation Administration's Southern Regional Counsel ("Regional Counsel" or 

"F.M") seeks a $5,850 fine relating to a small shipment oflye almost 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 of limitations 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 tor Extension); and 

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

Law Judge's April6, 2016, Order to confer with Respondent's cmmsel and file a 

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

New and Additional Reasons to Dismiss the Complaint 

Regional Counsel purpmted 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 ll(a) of the 

Federal Rules of Civil Procedure ("FRCP"). Respondent promptly called this violation to 
Respondent Ji>Jotion to Strike and to Dismiss 

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

FRCP ll(a), "the comt 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, government-wide statute of 

limitations barring the commencement of any civil proceedings more than five years after the 

date the government's claim allegedly accmed. 28 U.S.C. Sec. 2462. See also U.S. v. Core 

Laboratories, 759 F.2d 480 (S'h Cir. 1985) and 3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 

1994.) 

It is tmdisputed that the alleged act at issue in this matter occtmed 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 effmt in deciding motions 

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

motions, Regional Cotmsel 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 ass=e that the end result of that proceeding would be a final order that Respondent pay 

a $5,850 civil penalty, the Govemment is b31Ted by statute from bringing 311Y 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. H31·per did not retm11 the calL 

WHEREFORE, Respondent submits that the Complaint must he dismissed with prejudice on 311Y 

or all of the grounds stated above. 

Dated: September 23, 2016 

J err!/W .ltd&/Esq. /" 20~0 }31nieson Avl Suite 1212 

Alexandria, VA 22314 

(email) · 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

2 
Exhibit 10 
In the Matter of: 

Fisher Scientific Company, LLC 

October 4, 2016 

Pretrial Conference 

Collldensed Transcript with 'Wonl Illldex 

For The Record, Inc. 

(301) 870-8025 - www.ftrlnc.net- (800) 921-5555 
Fisher Scientific Company, LLC 

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For The Record, Inc. 

10/4/2016 

3 

1 (Pages [to 4) 
Fisher Scientific Company, LLC 

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ll1Yolved is the sodium hydroxide material~ the Class 8 UN 

1824_ if you- if you go to the hazardous materials 

table, it wiii tell you exactly hm:v it's regulated, so 

U1atos really the essence of those 1\YO paragraphs. 

JlJlJGE RAW ALD: Okay. And, so, lVlr. Cox, would 

you agree or disagree with Mr. Ellis? 

1VIR. COX: I'm not entirely sure \Yhat he just 

saido other th~m 1 would just point out that in the 

amended notice, 4 and 5 changed. 'I11at \Vas filed more 

than two years after the alleged incident. 1\nd they 

changed from the original notice, to the amended notice, 

to the complaint. So I'm not sure which of those they 

are savin.!I -- \vhich one he's sayin!l \Vas fair notice to 

Resp~nd;nt that-the); neede"d t~ be'"'-- ----~ 

J\llR_ ELLIS: The Paragraph 4 in the original 

notice \VhichJUDGE RAWALD: ~IL Ellis, hold on one second. 

So~ ]VIr. Cox, my question is, obviously the language in 4 

and 5 are dift""erent in the complaint than what they were 

in the original notice, 4 and 5 in the complaint mirror 

1vhat's in the runended notice. 

Vv11at I asked of both parties \Vas \Vhether the 

changes to 4 and 5, \Vere in any way material such that 

1he Respondent was put unfairly on notice, ~o that \Vould 

be a Rule 208 violation. lvir. Ellis said, no, no, no, 4 

42 

:md 5 were sin1pl.Y amended to mak_e more clear what 

cniginally was in Paragraph 4, which \vas one sentence and 

they turned it into three or four sentences lo explain 

more about that in response to your question at the 

infonnnl conference. 

And so I guess, sir, my question is do you 

think_ that 4 and 5 are actually new facts or are they 

:g,~~relv IT!~kin.__&:!!lor~ dem: \Vh~t'~ '!h·eady existent in- the. 

1.!Q1iQs for proposed civil penalty from 20 13? 

MR. COX: Clearly, new facts. Especially if 

~cou have in front of you amended notice of proposed civil 

penalty file July 24. 2014, Pan12raph 4 is still talkina 

about corks. Ibis case has nothing to do 'With corks. 

JUDGE RAW ALD: Right But it didn't make irs 

'\Yay into the complaint, sir, so~I'm not going to wmn· 

about it. If it's not in the complaint, it's not m1 

issue. So it's really not an issue. 

I understand the Gm'ennnent can certainly drop 

things fiDm G1e notice of proposed civil penalty and not 

make it in fue complaint In fact, theY dropped 

admittedly half their violations in the complaint ;iage, 

so they initially alleged six violations in 2013, in the 

complaint there's only ~triTe~"~·--~~~~~--~-~-~~----,· 

~·-~·"-SO,-Ob\~{OUSE,-~-tfi~advocacy \Vas effective at 

some noint because you \vere able to at least get some of 

10/4/2016 

those violations off the table here. 

2 So- okay. So that's all the questions and 

3 concerns I haYe on the insufficiency and the 208 issue. 

4 Now. Mr. Cox has mentioned the fact that he's 

5 also asked or mentioned three other bases. I'm not going 

6 to take arf:,:ru.ment on tho'se issues today. I'm really 

7 ~~TOCllseCfOll-the rlrOCedufal isSueS: which are at 111~ Yery 

8 threshold for issues lmder the regu]ations that go to 

9 -wp_ether the case exists or not. And then we can discuss 

10 more about U1e possible sm1clions or oilier things_ dmy]r 

11 U1e road. 

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But at Uris moment I am not going to look at 

that. I want to look at tl1ese threshold issues and get 

those oul dealt tvilh, in my opinion frrst. That's what 

I' mlooking at 

So witl11hat understanding. Mr. Cox. do you 

have anything else you want to bring up? 

MR. COX: Judge, I would simplv like to note 

for the record, my objections that everything_tllal !v!r. 

Ellis said is required u_nde~- Rule ll to be slri~ken. 

exactlJ' for the same reason that the supposed response to 

your motion-- rm sorry, to your order to show cause 

should be stricken. And that is going to be an 

· indepeiidentiSsuC, I guess, because the rules are really 

clear in Rule l L that it has to be counsel of record. 

44 

'I11ere 's nothing in the response that-- there's 

no type\"~;Titten infmmation as to \Vlm signed that supposed 

response, \Vhether thaf s Mr. Ellis' signatlJre or not, I 

don't know. But there are a lot of factual allegations 

made that m·e just ±1at untrue. 

AndlfMS. Hmper is not \\illing to plll her 

signature on that and 1isk sanction:-:. for telling, as she 

calls them, mishuths, then I don't think that it's 

reallv ri.g:ht for a Resoondent to have to deal \Yith a.-1_ 

attomey 1vho is not of record in the case. And I 1vould 

object to that. 

Jl.IDGE RAW ALD: Okay. And, Mr. Ellis, lel me f 1 

tum to you. So, there is a como heating factor here. in -1 ; 

the fact that lvis. l-Imper has been notlceablv absent from Ji· 

. the proceeding. She didn't file onvtl:ring in response to 1 

my initial notice requiring the pmties to meet and !I 

confer: she did not " file herself the response to notice i l l j for show cause_ vou filed H1at for her: and she has not ~ r j.l 

appeared todaY. 

TI1is is a problem, CounseL There needs to be J1 

. someone from the F!\A 1·vho is on this case and readv to J J il 

II 

assign someone to this case who js going to be tal:inl! 

il li 

i] 1: ,I 

11 (Pages 41 to 44) 

For The Record, Inc. 
Fisher Scientific Company, LLC 

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_Ql!I.ti!f_ the_~Q.~ 

And if JYls. Harper can· t take part in the case, 

you need to think about 1:vho else you want to as~ign to 

the marteL sir. 

lv!R ELLIS: T bear you loud a11d clear, Your 

Honor. 

,-'T) 

JUDGE RAW ALD: Yes, sir. And so 1 \You1d think 

aboul that further. 

i\nd as lOr l'vfr. Cox's concerns, 111111 takG them 

under advisement and r11 consider \Vhether or not to 

consider them. 

But I do appreciak everyone shmving up today 

and discus::.ing the~e issues, they are important. I 

will --

MR. COX: I have a question, Judge. 

JUDGE RAW ALD: Yes, Mr. Co~? 

lv1R. COX: A.re you denying my molions? Anv of 

my motion::; to dismiss? 

JlJDGE RA \J.l ALD: l have not made anv rulings on 

anv motions at tllls point, sir. So what I'm doing at the 

moment is I'm taking these first trvo issues after 

argument tmder advisement and I wiH work on issuing an 

.opinion. 

I will then look at the other issues you hoYe 

raised more intensely ond decide what to do about those 

issues. 

46 

l do not plan on having argument on tl1ose 

issues. but if I do. upon rO\iewing them 1\uther. think 

additionB1 briefing or argument necessary, I will1et the 

parties know. 

No_ I understand your position on all three of 

those issues and T >Villlook at them further and then 

decide wbat I'll do with them. I haven't made any 

decisionye~ Mr. Cox. in the short term. 

MR. ELLIS: Your Honor? Your Honor. I have a 

qnestion. 

JUDGER..A.WALD: Yes. 

MR. ELLIS: Will we receiYe a copy of lhis 

transcript" 

JUDGE RAW ALD: Well. so the transcript "ill 

come -- I think it then gets passed to the docket but 

hn not sure. But I will make sure that all parties 

recei\'e a copy of the transcript once '"e get one, yes. 

MR. ELLIS: Thank you_ Your Honor. 

JUDGE RAW ALD: Okay. Mr. Co~, so -just so 

you understand, what I will do is 1 ·will go ahead and 

issue n written order regarding tl1ese t\vo motions alone 

and then look at the other three issues further. I don't 

think thereo s anything in those, despite your concem 

that will be worth my looking at before 1 dispose of 

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i0/4/2016 

tl1ese t\vo ver::/ essential and baseline issues that ne~d to 

be dealt with. 

So, Ivlr. Cox, any further questions from me? 

lviR. COX: No. Just T \\'<ml to be clear tlk'lt 

you're going to ~-it's your intention to hold in 

abeyance the motion to sti1ke and the motions to dismiss, 

ln~luding the motion to dismiss on mootness_ beca~se of 

the five ye<1r statute of limitations. 

You're going to decide upon !he lssue about 

whether Uw pleading meets the sufflciencv requirements 

before vou decide whether lhe case is moot in the first 

. place. 

lvlR. ELLIS: How -in the world won1d the- I'm 

sorry. 

-!-7 

JUDGE RAW ALD: Yes. The reason why rm doing 

that is because first of allo }'ou raised the issue very 

recently of the Government hasn't had a chance to brief 

it and r think also that I really \Yant to deal with this 

yerv baseline issue that exists: in the regulations 

there's a reason for haYing a case cl.i:,.JIJ..issed. _I mean., 

these are -these are things in the regulation ihaL 

exist as possible reasons a complaint can be dismissed 

m1d responses allmved by that ans\ver. So I \Vant to get 

those squared :nvay. 

And then 1 will look at ·y-our ne\\' issue yon' \'C 

-18 

raised, and, il'necessmy, ask for briefing from the 

Respondent -- or, excuse me, the Complainant to respond 

to what You raised there, as far as the three or the fin~ 

year statute, sir. 

1\11R. COX: As long as I understand. Thank you. 

.nmGE RA. W AlD: Okay. And so, Mr. Ellis, jusl 

so you understond, lv.fr. Cox did file something last JYeGk, 

raising the fact that there are several other issues he 

thinks Uwt the case nc:edc:d to be: dismissed because: of 

one of which is a five vear statute of limitations. ii 

I do ask that you not spend any time responding 

to that until I direct that von do in a briefing:_ okav. -----~------~ ..... . 

sir? 

MR. ELLIS: Yes, Your Honor. 

JUDGE RAW ALD: Okay. So any otl1er questions 

for me, mr. Ellis'? 

!viR. ELLIS: No, Your Honor. 

JUDGE RAWALD: Okay. Last chance for any 

que..":itions, lvfr. Cox:. 

!v1R.. COX: Jusllo note that.the niles require 

_ the FAA to respond within, I think ifs 10 daYS to the 

motion to strike. 

JUDGE RA \VALD: I 1mderstaitd, .sir. But I dn 

have some ilexibihty as far as bein12. a Jud12e and 

dictating how the schedule of events g:ocs. And so-· 

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12 (Pages 45 to 48) 

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Fisher Scienti-Fic Company, LLC 

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lV!R COX: I understand, sir, but only if 

they 'ye asked for an e:s_tension. If you take a close look 

at the regulalions, they have to ask you for an extension 

and state a reason whv. -·--~ ~ 

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JUDGE RJI... W ALD: Sir~ given my current vosture in 

this case, 1 don't \Vant briefing on i.he issue, not right 

now. So I \Vill l~ok more at your is;Ue. But I am 

stating here the Govemment should send a brief in 

response to your motion to strike at the moment 

MK COX: Understand. I understamL 

i\1R. ELLIS: Yes, Your Honor 

JUDGE RA \VALD: Anything else for us to discuss? 

(No response.) 

JUDGE RA \!.lALD: Okay. At tills point, lef s go 

ahead and-- I appreciate everyone taking the time today 

and giving me some good argument on the issues. So we'll 

go ahead and go back and look ai hnY\' we're- going to 

decide this case and then -....v-e oillel vou know in a \vritten 

QPi.ui.rulJlmv I decide these two issues and then 1:vhat' s the 

ne:-.""1 step in this case. 

So thank you for your time and lefs go ahead 

and go off tbe record. Thank you. 

MR ELLIS: Thank you, Your Honor. 

(\\lhereupon, ai 11:05 a.m., the hearing was 

concluded.) 

CERTJFICATE OF REPORTER 

50 

4 I, Karen Guy, hereby certify that the foregoing 

5 proceedings \vere recorded by me via digital recording and 

6 reduced to typewriting under my supervision~ that I am 

7 neither cmmsel for, related to, nor employed by any of 

8 the pm1ies to the action in which these proceedings were 

9 transcribed; and further, that I am not a relative or 

I 0 employee of any attorney or counsel employed by the 

11 parties hereto, nor financially or othern·ise interested 

12 in the outcome of the action. 

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KAREN GUY 

For The Record, Inc. 

10/4/2016 

13 (Pages 49 to 50) 
Exhibit 11 
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 Rawald 

ERRATA FOR OCTOBER 4, 2016, PRETRIAL [SIC, PREHEARING] 

CONFERENCE 

1. In the title, delete "pretrial" and insert in lieu thereof "pre-hearing." 

2. The transcript does not, but should, include the undersigned's objection, just before 

10:12 a.m., to proceeding with the hearing after agency counsel of record failed to 

appear. 

3. On p. 5, line 2, delete "admit" and insert in lieu thereof"dismiss." 

4. On p. 9, line 10, delete "thoughts" and insert in lieu thereof "former boss." 

5. On p. 34, line 7, delete "from defense." 

6. On p. 37, line 12, delete "through" and insert in lieu thereof "to prove." 

7. On p. 49, between the words "should" and "send," insert the word "not." 

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 Rawald 

AMENDED BRIEF IN SUPPORT OF 

RESPONDENT'S INTERLOCUTORY APPEAL OF RIGHT 

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

(hereinafter refeiTed to as "Fisher") hereby appeals to the FAA decision-maker pursuant the 

Federal Aviation Administration Rules of Practice, 14 C.F .R. Part 13 (hereinafter "FAA Rules"), 

Rule 219(c), 14 C.F.R. § 13.219(c), to dismiss the Complaint in the above-captioned matter due 

to the failure by the assigned Administrative Law Judge, Douglas Rawald ("the ALJ"), to 

dismiss the case, as required by FAA Rule 215, after the agency attorneys constructively 

withdrew the Complaint by missing four consecutive deadlines without excuse. In support of its 

Appeal, Fisher states the following: 

QUESTION PRESENTED 

Must the Complaint in a civil penalty action be dismissed with prejudice when agency counsel, 

by consistently failing to participate in the proceedings, ignoring multiple ALJ Orders and failing 

without excuse to appear at a pre-hearing conference ordered by the ALJ, has constructively 

withdrawn the Complaint? 
PURPOSE AND STANDARD OF REVIEW FOR THE APPEAL 

FAA long ago established the "interlocutory appeal of right" to help the Administrator prevent 

agency counsel, a private party respondent or an ALJ from wasting public and private resources 

on administrative litigation where, as a matter of law, one side or the other has failed to 

participate in the proceedings or to present its case. Accordingly, when it adopted Rule 219( c) in 

1990,1 FAA decided not to depend on an ALJ to prevent needless litigation and provided, in 

pertinent part, as follows: "A party may file an interlocutory appeal ... without the consent of the 

administrative law judge ... in the case of ... (2)failure of the administrative law judge to 

dismiss the proceedings in accordance with§ 13.215 .... " (Emphasis supplied.) 

The plain language of the Rule makes it clear that Respondent has presented a ripe question. The 

issue on appeal is not whether the ALJ eued by issuing an order or making a formal ruling, but 

whether he failed to take certain action that Rule 215 requires to be talcen. FAA's clear intention 

was to prevent not just parties but also an ALJ from allowing wasteful litigation to proceed. That 

is why Rule 219 also specifically provides that, when the ALJ's receives a Notice of Appeal, 

"the proceedings are stayed until the FAA decision-maker issues a decision on the interlocutory 

appeaL" (Emphasis supplied.) 

Accordingly, it is up to the Administrator to review de novo and decide the answer to the legal 

question presented above? 

FACTS 

There is no dispute that Fisher offered a one-piece shipment containing one liter of sodium 

hydroxide solution ( connnonly known as "lye") by air five-and-a-half years ago, in July, 2011, 

that the package was properly declared as containing hazardous material and that it was properly 

labeled as a "limited quantity" shipment. In June, 2015, four years after the shipment, FAA's 

Southern Regional Counsel ("agency counsel") filed a Complaint alleging, in pertinent part, that 

the lye was packaged in some respect that violated the Hazardous Materials Regulations 

("HMRs").3 

1 Federal Aviation Administration, "Rules of Practice for FAA Civil Penalty Actions," Final Rule, 55 Fed. Reg. 

27548,27567-68 (July 3, 1990) ("Final Rule"), codified at 14 C.F.R. Part 13. Previous FAA practice, which 

allowed the government and not private party respondents to file interlocutory appeals, was widely criticized as 

'"unfair and has the potential for abuse in unduly protracting litigation to the disadvantage of respondents." See also 

FAA, "Rules of Practice for Civil Penalty Actions," Notice of Proposed Rulemaking, 55 Fed. Reg. 15134, 15143 

("Proposed Rule") (Apr. 20, 1990). 2 Even on an appeal from an Initial Decision by an ALI after a hearing, the FAA decision-maker must decide for 

itself whether the ALI followed "applicable law, precedent and public policy." FAA Rule 233(b )(2). 3 Complaint at 2 (June 4, 2015) (Exhibit 1). 

Respondent's Appeal of Right 2 
Fisher promptly moved to dismiss the Complaint based, in part, on agency counsel's failure to 

lodge at least one of the key allegations within the two-year time limit established by FAA Rule 

208.4 Agency counsel of record did not file a timely response to Respondent's Motion to 

Dismiss but the ALJ nevertheless moved the case forward.5 

On April6, 2016, nearly a year after Respondent filed its Motion to Dismiss, the ALJ- without 

first deciding whether the dispositive motions resolved the case or whether Respondent would 

even be required to file an Answer - ordered the parties to meet and confer regarding litigation 

and scheduling issues and to submit a Joint Report on their meeting6 After extraordinary effmts 

by the undersigned to get anyone in the Regional Counsel's office to return multiple phone calls 

and emails, agency counsel of record, Michelle Harper, Esq., fmally phoned to say she was 

unable to answer even the most basic questions about the substance of the case because she had 

not looked at the file in years. She promised to review the file the following week and asked the 

undersigned to prepare a Joint Report. Respondent immediately offered a draft Joint Report for 

her review and approval, but she never replied, despite more repeated calls from the undersigned. 

Respondent had no choice but to file a unilateral report and moved the ALI for dismissal and 

other sanctions against agency counsel for ignoring his Order to meet and confer and for failing 

to file any report, in clear defiance of the ALJ' s demand. 7 Instead of dismissing the Complaint, 

the ALI issued a Show Cause Order that stated an unequivocal threat: the Complaint would be 

considered "constructively witl1drawn" unless agency counsel filed "a statement explaining the 

cause of their failure to comply" that "shall include ... the information requested in the Order 

directing the parties to meet and confer."8 

Despite the ALJ' s unequivocal warning, agency counsel filed no response to the Show Cause 

Order that is cognizable under the FAA Rules and never submitted anything purporting to 

provide the information to be included in the Report required by the April 6 Order. 9 Someone 

whose name is not typewritten on the document submitted a two-page purpmted third-hand 

account of a conversation between Ms. Harper and the undersigned, but the agency counsel of 

record did not sign the document. Failure to sign and thereby certifY the truthfulness of the 

factual representation presented in the purported response to the Show Cause Order violated 

4 Motion to Dismiss Complaint for Violation of Rule 208 (June 23, 2015) (Exhibit 2). 

5 Agency counsel filed a late request for an extension of time- from 10 days to nearly two months- to reply 

to the Motion to Dismiss but offered no excuse for their late filing of the request and did not state any grounds 

acceptable under FAA rules for granting it. Opposition to Extension at 2 (July 7, 2015) (Exhibit 3). In complete 

disregard of controlling Rules, the AL)- at that time, judge Goodwin- unlawfully granted the extension. 

Respondent later withdrew the motions it filed in 2015 because, after they had languished for 16 months, other 

reasons to dismiss the Complaint arose and rendered them unnecessary. 6 See Exhibit 4. 1 Respondent's Report in Response to Order and Motion to Sanction FAA's Noncompliance (Apr. 30, 2016) 

(Exhibit 5). 8 Order to Show Cause and Provide Requested Jnformation (May 17, 20 16) (Exhibit 6). 

9 Agency counsel's purported response to the Show Cause Order is attached as Exhibit 7 to this Brief only for the 

purpose of showing that it was never signed by agency counsel of record. 

Respondent's Appeal of Right 3 
Federal Rule of Civil Procedure II (a), which provides, in pertinent part, that any tmsigned 

"pleading ... and other paper must be signed by at least one attorney of record" and that failure 

to "promptly correct" an unsigned paper after the omission bas been called to the party's 

attention leads to a single, mandatory sanction: "the court must strike an tmsigned paper" 

(emphasis supplied). FAA Rule 207 even more explicitly bans recognition of tmsigned filings. 

It provides that the "attorney of record ... shall sign each document tendered for filing with the 

hearing docket clerk, the administrative law judge, the FAA decision-maker on appeal or served 

on each party" (emphasis supplied). Respondent pointed out this failure and, for the third time, 

d . .. d' . al 10 

move agam <Or 1snnss . 

Instead of dismissing the Complaint at that point as required by Rule 219, the ALI ordered the 

parties to appear at a Pre-hearing Conference on October 4, 2016, at I 0:00 a.m. The undersigned 

cotmsel for Respondent was present. In complete keeping with Southern Regional Counsel's 

total non-participation in prosecuting the case, agency counsel failed to appear at the hearing. 

The ALI spent almost 15 minutes trying to get someone at the office of Southern Regional 

Cotmsel to answer the phone. He finally rotmded up an attorney who was not counsel of record. 

The tmdersigned inlmediately objected to any hearing on the matter after agency cotmsel of 

record had once again constructively withdrawn the Complaint11 but the ALJ, without 

explanation, insisted on proceeding. He started by asking why counsel of record, Michelle 

Harper, failed to appear and participate. The attorney said he could only speculate about the 

reasons for her nonappearance. 

12 The ALI asked the attorney whether he was prepared to 

participate in the hearing. The attorney replied, "I am not prepared .... " 13 

Over Respondent's repeated objections, the ALJ insisted on prosecuting the matter himself 

whether FAA took part in the case or not. 14 Judge Rawald admitted there were multiple reasons 

to consider the Complaint to have been witl1drawn. He noted that FAA cotmsel of record "has 

been noticeably absent from tl1e proceeding. She didn't file anything in response to my initial 

notice requiring the parties to meet and confer; she did not file herself the response to notice for 

show cause; ... and she has not appeared today." Despite these serious lapses on tl1e part of 

Regional Counsel, the ALJ essentially indicated that he intended to take over from agency 

counsel: "There needs to be someone on this case because I'm proceeding with this case, I'm 

moving this case forward either way."15 

10 See Exhibit 8. 11 Errata for Transcript of Pre-Hearing Conference ("Tr. Errata") (October 4. 2016) (Exhibit II). 12 Transcript ofpretrial [sic. Pre-Hearing] Conference ("Tr.") (October 4, 2016) (Exhibit I 0) at 2-3. Under FAA 

Rule 219(d), Respondent's Appeal Brief was due within 10 days of the ALl's ruling that the case will go forward. 

The Office of Hearings never served the Transcript on Respondent, so Respondent's initial brief, filed October 13, 

2016, was based on the undersigned's notes and best recollection. 13 Id. at 3. 14 Id. at 43-44. 15 ld. at 44-45 (emphasis supplied). 

Respondent's Appeal of Right 4 
At the conclusion of the hearing, the undersigned objected once again and asked for immediate 

consideration of Respondent's motion to strike the unsigned, purported response to the show 

cause order. 16 The ALJ, contrary to FAA Rule 207, not only failed to strike the unsigned 

document, he issued an order that agency counsel not file a timely response to the Motion to 

Strike. 17 

Respondent immediately filed the instant Appeal. 

ARGUMENT 

I. THE CRITERIA FOR RECOGNIZING A "CONSTRUCTIVE 

WITHDRAWAL" OF A RESPONDENT'S REQUEST FOR A HEARING 

MUST BE APPLIED EQUALLY TO THE GOVERNMENT'S 

"CONSTRUCTIVE WITHDRAWAL" OF A COMPLAINT. 

The Administrative Procedure Act, 5 U.S.C. § 551 et seq., forbids FAA to adjudicate the 

imposition of a civil penalty on a private party Respondent without first affording an opportunity 

for a fair hearing on the merits of the agency's allegations. For years, private parties have 

complained that FAA's civil penalty procedures are not only unfair, but in plain violation of due 

process rights guaranteed under the Fifth Amendment to the U.S. Constitution. Historically, 

FAA applied strict standards to private parties that were not applied to government "prosecutors" 

in civil penalty cases. Private parties were required to verify interrogatory responses under oath; 

no such requirement applied to FAA agency counsel. Private parties could not file interlocutory 

appeals; only FAA counsel could. Agency counsel were free to drag cases out long enough to 

make it difficult to "defend against the FAA's allegations because documents are inadvertently 

destroyed or witnesses become unavailable due to the agency's delay .

18 

FAA's procedures also were criticized for the lack of separation between ALJs, who are 

employed by the Transportation Department, and prosecuting agency attorneys, who report to an 

"FAA decision-maker," who is supposed to render a final decision in an administrative appeal 

but is "basically prosecutorial in ... outlook and orientation."19 After judicial intervention in the 

late 1980s, FAA adopted the Rules of Practice that govern today to address criticism that the 

prior mles were "inadequate to ensure a system of adjudication that is both fair and appears 

fair."20 

16 See Exhibit 9. 

17 Tr. at 49 and Tr. Errata. 18 See Final Rule at27552-58; Proposed Rule at 15135-36. 

19 Final Rule at 27551. 

20 Id. at 27550. 

Respondent's Appeal of Right 5 
The outcome of the instant appeal will indicate whether FAA is actually abiding by its own 

Rules or falling back into its old ways, thereby inviting new scrutiny by Congress and the federal 

courts. The basic issue is whether agency counsel can take a "fire-and-forget" approach to 

prosecuting a civil penalty case. More specifically, denial of this appeal would establish one set 

of rules for "constructive withdrawal" of a private party Respondent's Request for a Hearing and 

a policy of not applying the same standards to agency counsel's conduct to the point of 

immunizing them against a fmding that they "constructively withdrew" a Complaint. 

Over many years, ALJs have repeatedly used the failure of a private party in a civil penalty 

proceeding to file a response to a show cause order or other required document as grounds to 

terminate the proceedings.21 More recently, Judge Rawald, the ALJ in the instant case, has made 

prolific use of constructive withdrawal, especially in connection with his April, 2016, mass 

mailing of Orders to Meet and Confer to parties in cases on his docket. When a party, in 

defiance of the ALJ's Order to Meet and Confer, failed to communicate with opposing couusel 

and put them in the position of having to file a unilateral report, Judge Rawald repeatedly ruled 

that the party's failure to respond was, by itself, grounds to conclude that the noncompliant party 

had constructively withdrawn. 22 A party's silence, too, is sufficient grounds to find constructive 

withdrawal.23 He also found that a party's constructive withdrawal occurs when it "fails to 

appear at a hearing without good cause" and such failure "shall be construed as an abandonment 

of the hearing process. "24 Judge Rawald acknowledged that FAA Rule 215 gives him no choice 

in the matter because, when a party "withdraw[ s] a request for a hearing ... the administrative 

law judge shall dismiss the case with prejudice."25 

In eve1y case Respondent has been able to identify, however, constructive withdrawal was 

always used against a private party Respondent and never against agency counsel. Judge 

Rawald, in particular, seems to have concluded that the government is exempt from requirements 

to participate in an administrative process that they instigated by filing a Complaint. 

ll. AGENCY COUNSEL "CONSTRUCTIVELY WITHDREW" FAA's 

COMPLAINT. 

1n the cases referenced above, Judge Rawald recited the following fact pattern to justify 

dismissal of Respondents' request for a hearing: 

21 See, e.g., Matter qf Bonanza Valley Aviation, Inc., 1994 WL 16054306 (May 4, 1994) (party failed to respond to 

Order to Show Cause); Matter of Edward C. Parks, 1999 WL 33739451 (Feb. 17, 1999) (party filed no response to 

Order to Show Cause); and Matter qf Butte Aviation, 2004 WL 350392 (failure to file Answer is "constructive 

withdrawal of the request for a hearing"). 

22 See. e.g .. Matter of Christopher McCann, 2016 WL 3662616 (June 29, 2016) ("McCann") at I, n.l and Matter of 

!XL Premium Lubricants, Inc., 2016 WL 3662615 (June 28, 2016)("IXL") at 1, n.l. 23 McCann at 2, n.2; !XL at 1. n.2 

14 McCann at 2, n.3; !XL at I, n.3 (emphasis supplied). 

"McCann at 2; !XL at 2 (emphasis supplied). 

Respondent's Appeal of Right 6 
1. Respondent requested a hearing. 

2. Respondent was served with a Meet and Confer Order and an Order to Show Cause. 

3. Respondent failed to comply with the Meet and Confer Order. 

4. Respondent was "advised in the Order to Show Cause that further failme to participate in 

the proceedings may be deemed a constructive withdrawal of the request for hearing." 

5. Respondent failed to respond to the Order to Show Cause. 

6. Respondent's "failme to participate in the proceedings ... constitutes a constructive 

withdrawal of the Respondent's request for a hearing." 

In Respondent Fisher's Appeal, the fact pattern is as follows: 

1. Complainant filed a Complaint. 

2. Complainant was served with a Meet and Confer Order and ordered to file a Joint Report. 

3. Complainant refused to comply with the Meet and Confer Order and never filed either a 

Joint Report or a Unilateral Report. 

4. Complainant was served with an Order to Show Cause and threatened with dismissal if 

agency counsel of record failed to "file a statement explaining the cause of their fail me" 

and include "information requested in the Order." 

5. Complainant filed no statement explaining the cause of their fail me or including the 

requested information. 

6. In fact, Complainant filed no cognizable response whatsoever to the Order to Show 

Cause because the document agency counsel submitted was not signed or certified by 

counsel of record and must be stricken from the record under FRCP ll(a) and FAA Rule 

207. 

7. Counsel of record did not even bother to appear at the Pre-Hearing Conference ordered 

for October 4, 2016. 

Certainly by the time agency counsel neglected to appear at the October 4 hearing, the ALJ was 

obligated to recognize a constructive withdrawal of the Complaint. If the FAA decision-maker 

rejects the instant Appeal and fmds that such a constant lack of participation by agency counselas enumerated by the ALJ himself26 - does not necessitate a finding of constructive withdrawal 

of a Complaint, agency counsel may be justified in considering themselves immune from 

dismissal. In effect, rejection of the Appeal would establish a "one-strike-and-you're-out" rule 

for private pmiy Respondents and a blind eye toward exactly the smne conduct by the 

government. This unbalanced duality could force the FAA into federal court, where it would be 

compelled to explain how such disparate treatment comports with constitutional guarantees of 

due process. Similarly, mnong the regulated community, this precedent smely will create the 

impression of a double standard, which would negatively affect that community's confidence in 

the FAA adjudicatory process as fair and unbiased. 

26 Tr. at 44. 

Respondent's Appeal of Right 7 
ill. UPON WITHDRAWAL OF A COMPLAINT, RULE 219 REQUIRES THAT 

AN ALJ "SHALL DISMISS" THE CASE WITH PREJUDICE. 

FAA Rule 219 is unequivocal. It specifically states that "an agency attorney may withdraw a 

complaint ... without the consent of the administrative law judge. If an agency attorney 

withdraws the complaint ... the administrative law judge shall dismiss the proceedings ... with 

prejudice." (Emphasis supplied.) 

As Part II explains above, agency counsel constructively withdrew their Complaint on multiple 

occasions: by failing to file a timely response to the motions to dismiss in 2015; by ignoring the 

Order to Meet and Confer; by failing to file the report required in said Order; by failing to file a 

signed response to the Order to Show Cause; and, finally, by not bothering to appear at the Preconference Hearing the ALJ convened on October 4, 2016. Their withdrawal required no order, 

approval or recognition by the ALI. The FAA decision-maker, in tum, has no choice under FAA 

Rule 215 other than to "dismiss the proceedings ... with prejudice." 

WHEREFORE, Respondent respectfully requests the agency decision-maker to immediately 

dismiss the Complaint with prejudice. 

Dated: November 25,2016 

Respondent's Appeal of Right 

(email) -------~,_, 

! co xr dmo ____________ tonlacslrate).:Z'lassoci ,_ ____________ ales. com ··-' --· -· ---- -----

(tel) 703-757-5866 

Counsel for The1mo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

8 
CERTIFICATE OF SERVICE 

On November 25, 2016, the undersigned sent by the indicated type(s) of service at least one copy 

of the foregoing Notice on each of the persons listed below. 

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

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 

0 [Original + One Copy by Hand] 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Wilbur Wright Bldg., Suite 2W1000 

600 Independence Ave., S.W. 

Washington, DC 20591 

0 [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 

Respondent's Appeal of Right 

[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 

R;)lAA 

00 [Original+ Jhfeii Copies 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 

00 [One Copy by U.S. Mail] 

Ryan M. Landers, Esq. 

Senior Attorney 

Enforcement Division, Southern Team 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

P.O. Box 20636 

Atlanta, GA 30320 

/ 

9 
Exhibit 1 
U.S. lDiEP ARTMENT OF TRANSPORTATION 

OFFKE OF HEARINGS 

FElDiERAL A VJATWN AlDifvTINl!STRAHON 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

FISHER SCIENTIFIC COMPANY, L.L.C. 

Respondent. 

FAA Docket No. 

JUDGE NOT YET ASSIGNED 

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, 

pursuant to Rule 208 of the Rules ofPractice (14 C.F.R. 13.208), and states as follows: 

I. 

On May 18, 2015, Respondent, Fisher Scientific Company, LLC was advised through a Final 

Notice of Proposed Civil Penalty that the FAA proposed to assess a civil penalty in the amount 

of $6,500. On June 1, 2015, the Agency Attorney received a \vritten request for a hearing from 

the Respondent. 

II. 

I. On or about July 20, 2011, Fisher Scientific Company, L.L.C, ("Fisher") knowingly 

offered to United Parcel Service (UPS) a one piece shipment consisting of a 

specification fiberboard box containing hazardous materials for transportation by air. 

2. The above-mentioned shipment, assigned UPS tracking number/air waybill number 

iZ9V34911325638264, was offered by Fisher for next day air transportation to the 

consignee, Genova Diagnostics, 63 Zillicoa Street, Asheville, NC 28801. 

3. On or about July 21, 20 ll, ground handling personnel at the UPS sort facility 

discovered the above-mentioned shipment leaking. 

4. The above-mentioned specification fiberboard box contained a one ]-liter plastic 

bottle (with friction or screw-type cap) of "Acros Sodium Hydroxide 1N Standard 

Solution." 
5. (a) "Acros Sodium Hydroxide IN Standard Solution" is classified as a hazardous 

material under the Department of Transportation Hazardous Materials Regulations 

(HMR) (49 C.F.R. § 172.101). 

(b) The proper shipping name of the material is sodium hydroxide solution. It is in 

Hazard Class 8 (Corrosive Liquid), Packing Group II, and has an assigned 

identification number ofUNI824. 

6. Further investigation showed that approximately 2 ounces of the above-described 

material had leaked into and through the fiberboard container. 

7. Fisher offered the above shipment of hazardous material for transportation by air and 

failed to use a means of containing the liquid in the form of a leakproof liner, plastic 

bag or other equal! y efficient means of containment. 

8. Fisher offered the shipment of hazardous materials for transportation by air and failed 

to package it so there would be no identifiable release of hazardous material to the 

environment. 

9. Fisher offered the shipment of hazardous materials for transportation by air and failed 

to ensure the closure was secure and leakproof. 

I 0. By reason of the above, Fisher violated the following Department of Transportation 

Hazardous Materials Regulations (Title 49 of the Code of Federal Regulations): 

a. Section 173 .24(b )(!) in that Fisher failed to use a package which was 

designed, constructed, maintained, filled, its contents so limited, and closed, 

so that under conditions normally incident to transportation, there would be no 

identifiable release of hazardous material to the environment. 

b. Section 173 .24(£)(1) in that Fisher failed to use a package which had closures 

so designed and closed that under conditions (including the effects of 

temperature and vibration) normally incident to transportation, (i) there would 

be no identifiable release of hazardous materials to the environment from the 

opening to which the closure was applied, and (ii) the closure would be secure 

and leakproof. 

c. Section !73.27(e) in that Fisher failed to ensure that except as otherwise 

provided in this subchapter, a package containing liquids hazardous materials 

in Class 3, 4, or 8, or Division 5.1, 5.2 or 6.1 that are packaged and offered for 

transport in glass, earthenware, plastic, or metal inner packagings were 

packaged with absorbent materials as follows: ... 

(3)When absorbent materials are required and the outer 

packaging is not liquid tight, a means of containing the liquid 

in the event of a leakage must be provided in the form of a 
leakproof liner, plastic bag or other equally efficient means of 

containment 

Pursuant to 49 U.S.C. Section 5123(a), Fisher Scientific Co., L.L.C. is subject to a civil penalty 

not lower than $250 ($450 for training-related violations), nor greater than $75,000 ($175,000 if 

death, serious illness, severe injury, or substantial property damage results), for each violation of 

the Department of Transportation Hazardous Materials Regulations. 

Under the facts and circumstances of this case, a civil penalty of $5,850 is appropriate. This 

amount includes consideration of the Respondent's timely corrective action. 

WHEREFORE, the Agency, by counsel, respectfully requests that the Administrative Law Judge 

enter an order that Respondent be assessed a civil penalty in the amount of $5,850. 

Respectfully subrhltted this 

=bt~: 

1J.\ 

' 

day of June, 2015. 

Attorney 

Office of the Regional Counsel 

PLEASE NOTE: 

Pursuant to Title 14 CFR Section 13.209(a), the Respondent is required to file a written answer 

to this Complaint, or a written Motion to Dismiss if appropriate, not later than 3 0 days after the 

date shown on the Certificate of Service which follows. 
Exhibit 2 
U.S. DEll" ARTMENT OF TRANSPORT A 'IliON 

OFFJ!CE OF HEARINGS 

WASHINGTON, DC 

FEDERAL AVIATION ADMINlSTRATJ[ON, } 

Complainant, } 

} 

v. } 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

} (Civil Penalty Action) 

FISHER SCffiNTilFIC COMll" ANY, LLC, 

Respondent. 

} 

} 

Judge Goodwin 

MOTIONS TO DKSMISS COMPLAINT 

FOR INSUFFICIENCY ANJ[) FOR 

COMll"LAlNANT'§ VIOLATION OF RULE 208 

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

(hereinafter referr-ed to as "Fisher") moves to dismiss the Complaint in the above-captioned civil 

penalty proceeding on the followi.ng two independent grounds. First, the Complaint fails to state 

a "knowing" violation for which a civil penalty may be imposed. Second, by including 

allegations that were first made more than three years aiter the alleged incident, the Complaint 

violates Rule 208( d) ofthe Federal Aviation Administration's (hereinafter "FAA's" or ''the 

Agency's") Rules of Practice ("Rules"). 

FAA's Southern Regional Counsel ("Regional Counsel," "the Government" or "Complainant") 

makes, among others, t>vo allegations concerning acts Fisher allegedly committed almost four 

years ago, on July 20, 2011, when Fisher shipped a single liter of a conosive liquid commonly 

known as lye. First, Regional Counsel alleges that Respondent "knowingly offered ... a ... 

shipment ... containing hazardous materials for transportation by air." Compl. ~ 1. Second, 

Regional Counsel claims Respondent "violated the ... hazm·dous materials regulations" 

("H.1VlRs") because it "failed to ensure that [the bottle of lye was] ... packaged with absorbent 

materials .... " Compl. ~ lO.c. 
Respondent's Motion to Dismiss 

Motion to Dismiss for InsUL4Jciencv 

The Hazardous Materials Transportation Act ("HMTA"), Pub. Law No. 93-633, 88 Stat 2156, 

2160 (Jan. 3, 1975), codified as amended at 49 U.S.C. § 5123(a)(l) (2011), allows the 

Government to impose a civil penalty upon a "person who knowingly committed an act which is 

a violation of' the HMRs (emphasis supplied). A later recodification made a non-substantive, 

editorial change. It reworded the sentence to say the Government may impose a civil penalty on 

a "person that knowingly violates" the HMR.s. Nowhere in the Complaint does Regional 

Counsel allege that Fisher "lmowingly" committed any act which is a violation of any HMR. It 

merely states that Respondent "lmowingly offered" a declared shipment of hazardous materials. 

There are other, more specific allegations in the Complaint, but none of them allege a "knowing" 

violation. In the example referenced above, Regional Counsel claims Respondent "violated" 49 

C.F.R. § 173.27(e), but there is no allegation that Fisher "knowingly" committed any act which 

violates it. 

The cited HMR applies certain packaging requirements to some hazardous materials shipments 

but not to others. In this case, the lye was a "limited quantity" shipment that was exempt from 

the specification packaging requirements and otherwise fully complied with all applicable 

HMRs. However, even if one were to assume that§ 173.27(e) did apply to the shipment when it 

was offered in 2011 and that Fisher failed in some respect to comply with it or any other HMR, 

the HMTA's civil penalty provision, as amended by the Hazardous Materials Transportation 

Unifonn Safety Actof1990 ("HMTUSA"), Pub. L. No., 101-615,104 Stat. 3244,3259 (Nov. 

16, 1990), codified at 49 U.S. C. § 5123(a)(l)(A) and (B) (2011), unquestionably requires the 

Agency to allege and prove tl1at Fisher "lmowingly committed an act which is a violation of' that 

or some other HMR. 

As explained in greater detail in Respondent's Memorandum in Support of tlle Motions to 

Dismiss, the statutory language governing the instant civil penalty proceeding is plain and 

unambiguous. Even if tl1ere were some reason to consider it ambiguous, the legislative history 

of clauses (A) and (B), which were added by fue HMTUSA, leave no doubt that Congress 

adopted a new definition of tl1e term "lmowingly" for the specific purpose of prohibiting the 

Government from imposing a civil penalty in a case involving transportation of hazardous 

materials unless it can show that the Respondent had actual knowledge fuat its act or omission 

violated the HMRs or that its noncompliance resulted from some specific act of negligence on 

the part of the Respondent 

Accordingly, the Complaint fails to state a violation of the federal hazardous mate1ials 

transportation statute or regulations and must be dismissed for insufficiency pursuant to Rule 

218, 14 C.F.R. § 13.218(f)(l). 

2 
Respondent's Motion to Dismiss 

Motion to Dismiss for Asserting a Claim About Which the Government Failed to Give Timely 

Notice 

As noted above, Regional Counsel asserts, among other claims, that Respondent "violated the ... 

hazardous materials regulations" because it "failed to ensure that [the bottle of lye was] ... 

packaged with absorbent materials .... " TI1e HMRs imposed no such requirement on the 

shipment at issue in tbis case, but even if one were to assume that there was a requirement for 

packaging the subject limited quantity of lye with absorbent materials, Regional Counsel was 

obligated to give timely notice that the Government planned to base its Complaint on such a 

claim. 

FAA served a Notice of Proposed Civil Penalty ("the Notice") on July 3, 2013. During an 

Informal Conference, Respondent pointed out to Regional Counsel that the Notice was ex post 

facto, based almost entirely on Hl\I!Rs that were not in effect in July, 2011, when Fisher sbipped 

the subject package. The Notice contained no allegation whatsoever that Respondent was 

obligated to include "absorbent materials" or that Fisher failed to do so when it packaged the lye. 

In fact, this Notice did not even mention "absorbent materials." The first Notice of this claim 

was served not within two years, as required, but more than three years after the alleged 

incident, in FAA's Amended Notice of Proposed Civil Penalty ("the Amended Notice") dated 

July 24, 2014. Amended Notice 4f f. 

Rule 208( d)(2) ofF AA' s Rules provides, in pe1tinent part, that 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 "[i]fthe 

agency fails to show good cause for any delay .... " (Emphasis supplied.) 

There is no excuse or other good cause for Regional Counsel to keep Respondent in the dark for 

more than three years about the Agency's intended allegations. To reward Regional Counsel's 

failure to give timely notice by allowing this case to proceed would defeat the stated purposes 

and policies of Rule 208, grossly prejudice Respondent's oppmtunity to defend itself and 

constitute a denial of Respondent's due process rights under the U.S. Constitution. 

WHEREFORE, Respondent respectfully moves to dismiss the Complaint on the following two 

independent grounds: first, for insufficiency pursuant to Rule 218, 14 C.F.R. § l3.218(f)(l); 

and, second, to dismiss the Complaint for violating Rule 208 pursuant to 14 C.F.R. § l3.208(d). 

Even if the Complaint is not dismissed outright on account ofRegional Counsel's violation of 

Rule 208, that portion of the Complaint alleging a failure by Respondent to include "absorbent 

materials" in the packaging for the subject materials (i.e., all of Complaint 4f l O.c.) should be 

stricken, as alternatively provided in Rule 208( d). 

3 
Respondellt's Motion to Dismiss 

Respondent recognizes the importance of the issues presented in this case to hazardous materials 

civil penalty cases in general and respectfully requests an opportunity to present oral argument in 

person on these motions. 

Dated: J\ll1e 23, 2015 

Jenf/vl · ?X, ~ q:--" 

272/9 Gallows Rd., Suite 401 

Vienna, VA 22180 

(email) .L·c IE<L'lJ<;·lmr,;ec::u:"t':.:c!l'l""c'··~' 

(tel) 703-757-5866 

Counsel fm· Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

4 
Exhibit 3 
U.S. DEll' ARTJYIENT OF TRA.."N"SPOR'fATION 

OFFICE OF HEARINGS 

WAS:!:JIIl'fGTON, DC 

RFCE:I\/E~) 

HEARING DOCKFT 

FEDERAL A 'IllATION ADJViiNIS'fRATION, } 

Complainani, 

v. 

FISHER SCIENTIFIC COMJP' ANY, LLC, 

Respondent. 

} 

} 

} 

} 

} 

} 

In the Matter of Fisher 

Scientific Con1pany ~ LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Goodwin 

RESPONDENT'S OPPOSITION TO 

COl\iiPLMNAI'IT'S MOTION FOR EXTENSION 

Respondent Fisher Scientific Company, LLC, (hereinafter referred to as "Fisher") moved on 

Jtme 23, 2015, to dismiss the Complaint in the above-captioned civil penalty proceeding because 

the Complai,"1t fuils to state a "knowing" violation for which a civil penalty can be imposed and 

included aliegations that were out-of-time and in violation of the Federal Aviation 

Administration's (hereinafler "FAA's" or "the Agency's") Rules of Practice ("Rules"). Instead 

of filing a timely response permitted by Rule 13 .218( d), F Af'.c' s Southem Regional Counsel 

("Regional Cow1sel") moved for an "Extention [sic, Extension] to File Response." Regional 

Counsel failed even to allege the presence of any grounds to grant such a motion cognizable 

under Rule 13.213(b) and otherwise failed to adhere to other applicable Rules. Accordingly, 

Complainant's Motion caonot lawfully be granted and Regional Counsel must be considered to 

have waived FAA's opport:Lmity to respond to Respondent's Motions to Dismiss. 

Rule 13.213(b) is clear. As vvith any other pa.-ty, an FAA "motion for an extension of time" 

must be filed with the judge "not later than 7 days before" a response to a Respondent's vvritten 

motion "is due." Regional Cmmsel filed FAA's motion for ex.iension exactly zero days be±ore 

the response was due. A judge has authority essentially to waive this seven-day requirement 

only if"good cause for the late filiilg is shown." Nowhere in Regional Counsel's Motion is there 

so much as a nalced assertion that FAA had "good cause" to file zero days ahead of the due date 

instead of seven days ahead, as unequivocally required under the Rules. 

In any case, the Rules allow a judge to grant an extension of time to respond to a Motion to 

Dismiss only "if good cause for the extension is shovm." Once again, Regional Cmmsel fulled 
Respondent's Opposition to Motion for Extension 

even to include so much as a declarative statement that such grounds exist The Motion states 

that F /\A desires "an extension in order to effectively respond [sic]." It does not even suggest 

there are any special circumstances or anv other reasons whatsoever to conclude that the time 

otherwise aliowed by the Rules was inadequate. Absent those circumstances, the Motion for 

Extension would have failed even if it had been timely filed. 

Regional Counsel goes on to claim that Fisher 'Will not be "prejudiced by an extension." This 

statement is false but, even if it were true, it does not constitute "good cause" for pemlitting FAA 

to ignore the seven-day advance filing mle for its Motion for E1.1:ension or the 1 0-day mle for 

filing FAA's response to Respondent's Motion to Dismiss. Rule 13.213(b) is meaningless if 

Regional Counsel can avoid it without making any pretense of an affirmative slwwing why the 

requested extension is necessary. 

Regional Counsel's Motion is merely the latest example of how FAA's handling of this matter 

has prejudiced Fisher's ability to defend against the Complaint. The alleged incident occuned in 

July, 2011. FAA did not file any Notice in the matter until July, 2013. That Notice made no 

allegation whatsoever that Fisher failed to employ a p81ticular type of packaging product. F _A_/\. 

filed another Notice in July, 2014, more th811 three years after the alleged incident, which is 

based ahuost entirely on the previously missing allegation about packaging. FAA then waited 

until June, 2015- almost four years after the event-to file its Complaint. When Fisher moved 

to dismiss the Complaint in part because ofFA..A's dilatory approach to the case, Regional 

Counsel's only response has been to seek an extension to August 3, 2015, a date that is beyond 

four years after the event. 

Meanwhile, FAA has overseen or permitted the destruction of crucial evidence. If tllis case 

eventually goes to a he8l·ing, witnesses on both sides potentially will be required to rely on 

nothing more than faded recollections. 

WHEREFORE, Respondent prays that Regional Counsel's )iVi"otion for Extension be DENIED. / : 

Dated: July 7, 2015 

J v .I 

Jeny W'- Cox, Esq. 1 

I 

272~}Jatlows Rd., Suite 40 l 

Vienna,VA 22180 

(email) • .-. ·· •'C·-;· '·'' ,:._-

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

2 
Exhibit 4 
In The Matter Of: 

SERVED: April6, 2016 

U.S. DEPARTJ\1ENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FM-2015-1321 

Fisher Scientific Company, LLC 

) 

) 

) 

) 

) 

Case No. 201180700457 

Respondent 

ORDER DIRECTING THE P ARTffiS TO MEET AND CONFER REGARDING 

U'fl[GATION AND SCHEDULING ISSUES 

The above captioned case was reassigned to the undersigned judge on March 24, 2016. By 

order of the Chief Administrative Law Judge, any previously established date for a prehearing 

conference or trial was suspended. Those dates are now vacated and there is a need to establish a 

new litigation schedule for this case. To assist the undersigned judge, the parties should meet 

and confer to propose a mutually agreeable schedule. 

An administrative law judge may hold conferences to, among other things, "settle [or] 

simplify the issues by consent of the parties."1 Pursuant to 14 C.P.R. § 13.205(a)(1) and (7), it is 

hereby ORDERED: 

1. The parties shall privately conduct an informal conference to meaningfully discuss 

litigation issues and proposed scheduling. 

2. The parties shall draft a joint report providing: 

a. a suggested venue, 

b. a proposed schedule for the completion of discovery (or an indication that 

discovery is complete), 

c. a list of any pending motions.that have been previously filed but have yet to be 

ruled upon, 

d. a proposed date for a telephonic prehearing conference with the undersigned 

judge, 

1 14 C.P.R.§ 13.205. 
e. a proposed due date for the filing of any prehearing motions (including a 

proposed date for a telephonic hearing on any filed motions, if so desired), and 

f. proposed hearing dates. The parties should provide at least three alternative dates 

on which the hearing may be held that are acceptable to all parties. 

3. In addition to filing the report with the Federal Aviation Administration Hearing Docket 

Clerk in accordance with 14 C.F.R. § 13.210, the parties shall submit the report to the 

undersigned judge at the Office of Hearings by fax, express carrier, or personal delivery 

no later than 30 calendar days after the date of service of this order. 

Administrative Law Judge 

Attachment: Service List 

2 
Exhibit 5 
U.S. JiliElPfo.J..~TJVIENT OF TRANSPORTATION 

0 FlFK ICE 0 F JBIEAJ'JN G§ 

W ASHJINGTON, DC 

FlimERF.J:.. A VllATION ADJ'ViiiNK§TRATION, } 

Complainant, } 

} 

v_ } 

} 

F][§JBIER SOENTTIF][IC ICOlVfi>Al\'Y, LJLC, } 

Respondent. } 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. F.M-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

RJEJPORT OF JF][§HJER SOENTWKC IN RESJPONSE TO 

Oi!IDER SERVED AJP'Rl.TJL 6, 20Hi, 

AN II 

MOTJION TO SANCTION Fl-'v-\'§ NONICOWfi>UAN<CE 

By Order entered Ap1il6, 2016, Judge Rawald directed Complainant, the Southern Regional 

Counsel of the Federal Aviation Administration (hereinafter referred to as "F_M") and 

Respondent Fisher Scientific Company, LLC (hereinafter "Fisher"), to file a Joint Report 

addressing certain pre-hearing matters that were listed in the Order, including "a list of any 

pending motions that have been previously filed but have yet to be ruled upon'' 

Fisher regrets to report that FAA counsel essentially went "AV.fOL" and thwarted Fisher's 

diligent efforts to respond to the Order with a Joint Report Fisher's undersigned counsel 

telephoned the F P,j, attorney identified on the service Est (JVlr. Vines) on April 15, 2016. NIL 

Vines did not answer his telephone, so Fisher's counsel left a voicemail stating that the call was 

in reference to the April 6 Order. l'v1r. Vines never returned the calL On April 18, the 

undersigned counsel emailed Mr. Vines, requesting a response to the Aprill5 voicemaiL On 

April 19, Mr. Vines responded that a different F f.j~_ attorney was handling the case, even though 

F A.A never updated the service list 

On April 20, Ms. I\llichelle Harper phoned to say she was the attorney responsible for FAA's 

compliance with the Order. She asked Fisher's counsel to prepare a draft Joint Report, which the 

undersigned emailed to her a few minutes later. Fisher requested that she either concur with the 

drat-9: and sign it or suggest any edits she thought appropriate_ Ms. Harper did neither. 
Report of Fisher Sdentijlc 

A week later, on April 27, the undersigned phoned Ms. Harper but, once again, she did not 

answer her telephone. Fisher's counsel left a voicemail reminding her that Fisher was 

determined to comply with the Order but- without any response from her- it would be 

impossible to file the required Joint Report. Ms. Harper never responded to the voicemail. On 

April 29 -the deadline for finalizing and mailing the I oint Report- the undersigned telephoned 

Ms. Harper again, but she did not answer her telephone. Fisher's cou..T1sel indicated in a voice 

mail that if FAA continued to ignore the proposed draft of the Joint Report, Fisher would have 

no choice but to withdraw it and file its own unilateral response to the Order. Ms. Harper did not 

return the call or otherwise respond. 

FAA's apparent disregard of the April 6 Order is just the latest chapter in a five-year history of 

the Office of Southern Regional Counsel dragging its feet and utterly ignoring applicable laws 

and Ruies of Practice. 

This case arises from an alleged incident that occurred five years ago, on July 21,2011. FAA 

waited until days before the statute of limitations expired and filed a Notice of Proposed Civil 

Penalty in July, 2013. After Fisher pointed out that the Notice was based on regulatory 

requirements that were not in effect in 2011, FAA filed an Amended Notice on July 24,2014, 

more than t..hree years afcer the alleged incident and more than one year a_fter the statute of 

limitations expired. 

FAA waited almost another year, until June, 2015, to file its Complaint. On June 23, 2015, 

Respondent Fisher filed a Motion to Dismiss the Complaint for legal insufficiency and for being 

baiTed by the statute of limitations. The FPtA's own Rules of Practice allowed FAA 10 days to 

oppose Fisher's Motion to Dismiss, but the agency did not file its Memorandum in Opposition 

until August 17, 2015, almost two mont..hs after it was due. Fisher's Motion to Dismiss has been 

pending for nearly a year. 

The most appropriate way to sanction such egregiously dilatory conduct and get this ancient case 

off the docket would be to order Southern Regional Counsel to SHOW CAUSE why dismissal 

should not be ordered on one or more of the following grounds: 

1. FA.l\'s failure to comply with the April6, 2016, Order. 

2. FPu\.'s default in failing to file a timely opposition to Respondent's June 23, 2015, 

Motion to Dismiss. (No extension was permitted under FAA's Rules of Practice for the 

reasons stated in Respondent's Opposition to F }I_JV s Motion for Extension.) 

3. F A_A,_'s decision to wait more than three years after the aileged incident and more than a 

year afier the statute of limitations expired to lodge crucial allegations in the Amended 

Notice. (Respondent's Memorandum in Support and its December 21,2015, Reply to 

F ~\.l'>.'s Memorandum in Opposition, an additional copy of which is attached, explain in 

detail why the case is barred as OLrt-of.-time .. ) 

2 
Report of Fisher Scientific 

4. FAA's failure to state a legally sufficient claim, as explained in Respondent's abovereferenced Memorandum in Support a11d its Reply to FAA's Memorandum. 

WHEREFORE, Respondent respectfully requests the Judge to command Agency respect for his 

Orders and for the substantive and procedural laws underlying the above-captioned case by 

DISlVIlSSI!'TG with prejudice FAA's Complaint. 

Respondent reiterates its request for in-person orai argument on the issues presented by its 

pending motions. 

Dated: April30, 2016 

Respectfully submitted, 

j -: ''../ 

Jerry W/c~x, Esq. 

2050 J~mieson Ave., Suite 1212 

Alexan.dria, VA 22314 

(email)· 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

3 
Exhibit 6 
In The Matter Of: 

U.S. DEPiLRTivffi:N1 OF TRANSPORTATION 

OFFICE OF HEARil'-JGS 

\VASHINGTON, DC H 

Docket No. FAA-2015-1321 

Fisher Scientific Company, LLC 

) 

) 

) 

) Case No. 201130700457 

Respondent ) 

ORIDIER 1'0 §HOW CAU§E AND PROVmJE REQUESTED liNFORt"'l<1i\.TllON 

On Ap1il 6, 2016, the undersigned judge issLJed an Order Directing the Pmties to Meet and 

Confer Regarding Litigation and Scheduling Issues u1 the above captioned case. The order 

required, inter alia, the parties to submit a joint rep01t to the u11dersigned judge within 30 days of 

that order. 

On April30, 2016. the Respondent filed a unilateral report, sTating that his attempts to meet 

and confer with me Complainant had failed. 1 

The Complainant failed to submit a report or request tor additional time before the deadline2 

In accordance \Vith 14 C.F .R. § l3 .205(a)(6), an administr·ative Jaw judge is empowered to 

regulate the course of a hearing. As previously noted by the FAA Administr-ator: 

[t]he Administrator expects that the pmties "~!! comply \l-ith orders issued by an AU during the 

he-aring s1age of a proceeding. Ignoring an A..LJ' s orders canrrot be countenanced in an orderly 

system of adjudication-' 

The pm:ties are therefore reminded that failure to follow the tmdersigned administrative law 

judge's orders \:vithont good cause may result in sanctions4 Moreover, continued failure to 

1 Respondent failed, however. to provide all the information requested in the April 6, 20 I G Meet and Confer Order. 

2 Counsel for the Complainant filed a notice of appearance on May !0, 20!6, but failed to include the informarion 

required by the undersigned judge's April 6, 20 !6 Meet and Confer Order or offer a response to Respondem' s 

assertions within his April 30~ 2016 report. Notably, the counsel making her appearance \Vas the same person 

Respondenfs counsel had conesponded \Vith regarding this rnatter as eariy as April20~ 2016. This counsel was 

therefore assigned to this matter well before the deadline for filing a response to the April6, 2016 Meet and Confer 

Order. 

'American Airlines, Inc., f;\A Order No. 2002-15, at 9 (May 20, 2002). 

"S,;e id. ("Parties who disregard the ALl's orders do so at tl1eir own peril because tlw Administrator on appeal will 

uphold arry rea.>onable sanctions permitted by the Rules ofPracrice that the ALJ imposes against a party for that 

behavior. "I. 

·• ;- .'CC-""i 
participate in the proceedings as directed by the undersigned judge may be deemed a 

constructiv-e withdrawal of the request tor hearing or complaint by the party demonstrating such 

a lack of interest in participating in these proceedings. 5 

Pursuant to 14 C.F.R. § 13.205(a)(l), (6), aod (7), it is hereby OliDERED: 

l. No later than June 1, 2016, the Respondent shall file a repon i11cludil1g all of the 

infmmation requested in the Order Directing the Parties to M.eet and Confer Regarding 

Litigation and Scheduling IsstJes. 

2. No later than June 1, 2G16, the Complainant shall :file a statement explail1ing the cause of 

their failure to comply 'vith the Order Directillg the Parties to Meet and Confer Regarding 

Litigation and Scheduling Issues. 

3. The Complainant shall include in theil· statement the infonuation requested in the Order 

Directing the Parties to ]Vleet and Confer Regarding Litigation and Schedulmg Issues. 

4. If the Complainant fails to file this statement by the above deadline, the undersigned 

judge may issue a subsequent order findillg the Complamant has constructively 

'>vitbdrawn from these proceedi11gs and, pursuant to 14 CF .K § 13.2.15, dismiss the case 

with prejudice. 

Attachment: Service List 

=-~~-~~ --·cP 

/" __ ) _/:;.-::::;:::::.::..:-/ 

£.. .- .. ¥.../"' c;""_..---~ ~ ....._________ 

DOUGLAS M. R.A..WALD 

Administrative Law Judge 

5 See. e.g .. IAL Power Supply, Docket No. CPO 1 SOOO 15 (FAA Aug. 7, 200 1) (A.LJ constmed Respondent's silence 

as a conshuctive witlu:lrawal of request for a hearing), appeal dismissed, FAA. Order No. :2002-1 0 (Apr. 1?, 2002); 

B!ankson, Docket No. CP97EA0024 (FAA Sep. 11.1997) (ALI found faiiure to respond to previous orders 

constimred constTUctive withdrawal), a(f'd, FAA Order No. 98-21 (Oct. 9, 1998). Sue also Instead Balloon Sen• ices, 

FAA.. Order No. 1998-23, at3 (Nov. 24~ 1998) (affirming ALJ's decision to fmd con·structiv~ \\·ithdrawal when a 

party failed to appe~r at the hearing wirl1out good cause); Apollo A & HS Company, fAA Order No. 2011-4, at 4 

(Jan. 14, 20 ll) ("Apollo's failure to appear at !he hearing and to pursue irs requeot for hearing without good cause 

constituted a constructive i'\rithdrmva! ofjts request for hearing."). 
Exhibit 7 
1JNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

FISHER SCIENTIFIC LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Douglas M. Rawald 

COMJI'LAJNAN'I'S RESPONSE 

'IO SHOW CAUSE ORDER 

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

to the Order to Show Cause and Provide the Requested Information served May 17, 2016, 

and states the following: 

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

Aprill9, 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 undersigned 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, tile 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 April 20, 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 April 20, 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 dismjss. 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 unmeritorious 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 mistruths. · 

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 31" day ofMay, 2016. 

~a. £/£:5, )td/lll.f/ls f{f/or/Je}/ 

tn 

ANDREA MICHELLE HARPER 

Senior Attorney 

Office of the Chief Counsel 

Enforcement Division, Southern Team 

2 
Exhibit 8 
U.§. IDIElP' AJ.--._TMENT OF 'JfRANSJPOllUA Tfi:ON 

OFFICE OF J8!.EA\P'J!NGS 

W ASlillNG'ION, IDIC 

.JFEJD;ERAL A VliAHON AIDIM:ll'>ll!§T!RA TION, } 

Complainant, 

v. 

} 

1 

J 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA.-2015-1321 

(Civil Penalty Action) 

JFJL§ IJ! i~:R SCIENTIFIC COiYIP ANY, LLC, 

Respondent. 

} 

} 

} 

} 

Judge Rawald 

RE§l'ONDEN1"§ REPORT IN RESPONSE 

TO ORDER I§§U!ED JK.iNE 2, 2016, 

TO PROVIDE REQ1IJJE§TED INFORW!A.HON 

AND 

REPLY TO COJ.VWLAINAJ:l>IT'S RESPONSE TO SJBIOW-CAUSE ORDER 

K§§U!ED !VIA Y 17, 1.o:J. 6 

Bistorv of the Proceedings 

The Federal Aviation Administration's Southern Regional Counsei ("Regional Counsel" or 

"F A_A.") seeks a $5,850 fine relating to a small shipment oflye five years ago. Respondent 

Fisher Scientific Company ("Fisher") moved to dismiss the case for several reasons, including 

FAA's failure to explain how the shipment could possibly have involved any knowing violation 

of the Hazardous Materials Regulations (":8-:MRs"). 

Fisher participated in two "infom1al conferences" ("ICs") with Regional CounseL During the 

±!rst IC, on July 16,2014, Fisher explained that the boilerplate Notice of Proposed Civil Penalty 

("NO PCP") that Regional Counsel served July 3, 2013, included downright bizarre factual 

allegations and was based entirely on HMRs that were not in effect on July 21, 2011, the date of 

the alleged incident. More specifically, Fisher pointed out to Regional Counsel during the 2013 

IC that the volume of lye being shipped (just one liter) was so small, the shipment was a 

"limited quantity" ("LQ") that was exempt from certain packaging and other requirements that 

would otherwise have applied. Regional Counsel wrote the NO PCP in 2013, after the maximum 

volume for an LQ of lye decreased to one-halfliter, but the change in the HIVJ:Rs was not and 

could not be retroactive to a shipment in 2011. 

More than a year later, on July 24, 2014, Regional Counsel served an Amended Notice of 

Proposed Civil Penalty (" ANOPCP") that dropped allegations in the first Notice but added a 
Report and Rep{F of Respondent Fisher Scientific 

completely new claim that, when Fisher prepared the subject shipment, it was somehow required 

to stuff the packaging with "absorbent material." J\line months later, on April 22, 2015, Regional 

Counsel convened another IC v.rith Fisher's senior in-house counsel and top hazardous materials 

transportation managers on the line. Respondent's counsel pointed out that, in addition to 

relying on f-l:::J1,1RB that were not in effect at the time of the alleged incident, this brand-new claim 

was time-barred because it was lodged more than a year after the applicable two-year statute of 

limitations passed. Respondent's counsel also asked then-Regional Counsel of record, Will 

Vines, Esq., to explain why FAA refused to accept that the LQ Exemption covered the subject 

shipment. Mr. Vines stammered for half a minute, then abruptly terminated the conversation 

without offering an answer. 

Regional Counsel served its Complaint in mid-June, 2015. Respondent promptly moved for 

dismissal. 

Judge Rawald's April 6, 2016, Order Directing the Parties to Meet and Confer Regarding 

Litigation and Scheduling Issues 

After the two ICs, Counsel for the parties had no other communication until Judge Rawald issued 

the April 6 Order. Fisher had to work hard to initiate contact The undersigned phoned j\!Ir_ 

Vines on April 15 and left a voicemail specifically referencing the April 6 Order. lVIr. Vines 

never returned the calL The undersigned then ernailed lVk Vines on April 18. The following 

day, ~Ar. Vines advised by email that a different FAA attorney, whom he identified as Micheile 

Harper, was handling the case for Complainant. Ms. Harper had not entered an appearance in 

the matter but she phoned Respondent's counsel on April 20. 

Telephone company records show that the entire April 20 conversation lasted 20 minutes 

(Attachment 1). It covered the foil owing topics: (1) personal introductions; (2) Judge Rawald's 

April 6 Order; (3) the content of the Joint Report to be filed in response to the April 6 Order; (4) 

Respondent's Motion to Dismiss the Complaint; and (5) Respondent's request to meet with 

FAA's newly assigned counsel to hear whether she, unlike Ivir. Vines, could explain why FAA 

contends that the subject shipment did not qualify for the LQ Exemption. 

1'opk 1 consumed about five minutes of the conversation. On 1'opil: 2, counsel mutually agreed 

that it was impossible to know whether any discovery or hearing would be needed, much less to 

propose dates for such additional proceedings, because Fisher's Motion to Dismiss would be 

dispositive of the entire case. On 1'opk 3, Respondent's counsel agreed to prepare a draft Joint 

Report to that effect and FAA's counsel agreed to review it, to offer any needed edits and sign it 

if no edits were needed. Under 1'oJi!k 4\, FAA asserted that the Motion to Dismiss should be 

denied; Respondent's counsel explained why the Motion to Dismiss should be granted. 

2 
Report and Repfv of Respondent Fisher Scientific 

Approximately 18 minutes into this 20-minute conversation, Respondent's counsel brought up 

Topic 5. That part of the conversation, which is reproduced below in its entirety and as close to 

verbatim as possible, went as follows: 

lYfR. Cox: You know, it would Feally lie a shame to insist that the Judge nmst decide the 

111otion to Dismiss and allow the proceedings to go forward if you will have rtw case to present 

011 tl1e merits. We asked Pliif Vines more tlum once to e.:1.plmn why the s!dprnent was not 

exempt under i!he Limited Quantity Ex:emption. Can you please explain that one to me? 

ivfs. HARPER (CHUCKLING): I hll.Ven 't looked at fiuu file in years. 

MR. Cox: 1¥Iaybe this wo11ld be a good time to do that. 

Ms. HARPER: OK, I'ff look at it and get back to you in the first ha(,f of next week 

This portion of the conversation lasted approximately two minutes. 

Immediately after the April 20 conversation, Respondent's counsel sent a draft Joint Report for 

Ms. Harper's review, edits and signature. Ms. Harper failed to respond. After hearing nothing 

from FAA for another week, on April27, the undersigned phoned Ms. Harper to urge her to sign 

or suggest changes to the proposed Joint Report. She did not answer her phone. She did not 

return the call. Two days later, on Apri\29 (see Attachment l, entry for two-minute call to 

Atlanta), as the Judge's deadline for submitting the Joint Report loomed, the undersigned 

telephoned Ms. Harper again, leaving the following voice message, reproduced here verbatim: 

JVIR. Cox: This is Jerry Cox with Thenrw Fisher in DC. 1 sent you a draft Joint R.epm't on 

April:ZO but ne1•er heard back from ym•. We're up against the deadline, so I'm going to 

withdl'aw the draft .Joint ll.eport and Thermo Fisher will have to file its ownll.eport Feel free 

to call rne -when yoM are prepared to discuss the case. 

Accordingly, on April30, Respondent filed a unilateral Report and moved for sanctions against 

FAA for ignoring the Judge's April 6 Order. FAA filed no Report of its own at<d ignored 

Respondent's Motion for Sanctions. 

Judge Rawald' s May 17 Show Cause Order 

Regional Counsel remained AWOL until the Judge ordered FAA to show cause why it has not 

"constructively withdrawn" its Complaint and tl1e why the Judge should not "dismiss the case 

with prejudice." Order to Show Cause at 2. 

3 
Report mld Rep{v of Respondent Fisher Scientific 

L-1 its Response to the Show Cause Order, F Al\ equivocated about whether Ms. Harper received 

Respondent's voice messages and argued that, even if she heard but chose to ignore them, 

Respondent could have simply indicated to the Judge t.hat she "agreed with the position 

articulated, even without [her] signature." Complainant's Response to Show Cause Order,~~ 5 

and 6. Despite repeated efforts, however, the undersigned had no way to !mow whether F A..f, 

had even received the draft Joint Report, much less whether Ms. Harper approved it. 

FAA told the Judge that Ms. Harper and Respondent's counsel "had a lengthy phone call 

discussing the issues in the case, as well as the information required by the Order," id. ~ 2, and 

that "the paTties did indeed meet and confer on April20, 2016, as required." I d.~ 4. FAA went 

on to claim that "the parties had a thorough discussion of the underlying facts of the case," id 

(emphasis supplied), and that Respondent's Motion for Sanctions is "filled with mistruths [sic]" 

r·r1 '"6) i_l-t., 11 . 

The undersigned is not entirely sure what a "mistruth" is, but he would be willing to sign an 

affidavit that each and every averment he has made to the Judge was true and correct and in full 

compliance with Rule 11 ofthe Federal Rules of Civil Procedure ("FRCP") and professional 

ethics requirements relating to candor before a tribunaL It is for the Judge to determine whether 

a 20 minute phone call, only two minLTtes of which was devoted to the merits of the case, and 

which Complainant's counsel cut short because she hadn't bothered to read the file, was 

anything resembling a "thorough discussion." 

By contrast, it speaks volumes that Ms. Harper did not sign FAA's Response to the Show Cause 

Order. It appears to have been approved by someone else whose name is not t-ypewTitten 

anywhere on the document and who has never entered an appearance in the case. FRCP ll(a) 

explicitly requires that "every pleading ... at"1d other paper must be signed by at least one 

attorney of record ... [and] [t]he court must strike an unsigned paper .... " FRCP 11 (b) provides 

that "by presenting ... a pleading ... or other paper ... an attorney certifies that to the best of the 

person's knowledge ... factual contentions have evidentiary support .... " Sanctions may be 

imposed on t.he "attorney ... or party," FRCP ll(c). Unless FA_A recants quicldy, Respondent 

plans to move for such sat•ctions because Ms. Hat-per's statement to the Judge that "the parties 

did indeed meet and confer [ at"1d] had a thorough discussion of the underlying facts of the case 

.... "is both highly material and plainly false. 

Report to Judge Rawald in Response to t.he Orders to Provide Requested Information 

In his June 2 Order, Judge Rawald admonished Respondent to ":file a Report including all of the 

information requested in the Order Directing the Pat-ties to Meet at"1d Confer." 

Respondent has diligently undertaken and continues to do everything humanly possible to 

prepare and submit a Report that would, among other objectives, lay out a "schedule for 

4 
Report and Reply of Respondent Fislzer Scientific 

completion of discover-y," proposed dates for preheaTing conferences, filing of prehearing 

motions and heating dates. Order to Meet a.1"1d Confer at 1-2. Unfortunately, because FAA has 

steadfastly avoided meeting with Respondent or participating in any sort of substantive 

discussion- even after the undersigned made additional telephone requests to Ms. Harper on 

May 31 and June 3, Respondent can only guess what the issues would be, much less what 

discovery would be needed to address them, how long it would take to complete such discovery 

or what witnesses would need to be called. 

With that said, Respondent provides below, to the greatest extent information is available at the 

moment, the following information requested by the numbered portions of the April 6 Order. 

Respondent's responsive information is presented in italics: 

1. The parties shall privately conduct an informal conference to meaningfully discuss 

litigation issues and proposed scheduling. 

PcESPONliliENT'S PcEJPLY 

FAA rebuffed multiple requests_ft-om Respondent's counsel for a meeting, starting on April 15, 

2016, on the grounds that it has been years since Regional Counsel hc<S reo.d the file. This has 

made it impossible for Respondent to address with FAA either litigation issues or proposed 

scheduling. 

2. The parties shall draft a Joint Report providing: 

a. a suggested venue, 

Without FAA's cooperation, Respondent has no WC[)l to know what witnesses would need to be 

called or what venue would be most convenient to them. How ever, Respondent tentatively 

suggests that TiVashington, DC, would be the appropriate venue because the Judge is here, 

Respondent's counsel is here and key Fisher>vitnesses are in the Northeastern United States. 

b. a proposed schedule for the completion of discove.')', 

Until FAA is compelled to participate in the infonnal conference referenced in Item# 1, above, it 

wiil remain impossible to know what witnesses the agency intend..s to present, what experts, if 

any, Respondent would need to call to testify and who possesses relevant information. The time 

5 
Report and Reply of Respondent Fisher Scientific 

needed to complete discoveiy, of course, will depend on how many witnesses are involved, where 

they are located, and what their schedules allaw for. Witnesses may also need additional time to 

refr·esh their recollections about events that occurredfive years ago. Respondent would, in any 

event, require production of physical evidence related to the alleged leak. Respondent 

understands fi·om a letter Mr. Vines sent on November 20, 20 j 4, that FAA either destroyed the 

bottle and the packaging material, including the box in which it ·was shipped, or allowed this 

evidence to be destroyed. It may take months to determine how much of the physical evidence 

continues to exist and what, if anything, experts can deduce ji·om it. Respondent may also need 

to seek sanctions against FAA on account of such destruction of evidence. 

1" .c- ,~ • c. a ~1st 01 any penmng motwns ... , 

RESPONDENT'S REPLY 

Respondent's lv/.otion to Dismiss Complaint for Insufficiency m1dj'or Complainant's Violation of 

Rule 208 was filed June 23, 2015. 

d. a proposed date for a telephonic preheaTing conference ... , 

Respondent is, of course, willing to participate in a prehem·ing conference, by telephone or in 

person, on July 20, 20 j 6, or nearly any other date that would suit the Judge's convenience. 

However, without more infonnation about the issues FAA will raise, Respondent is uncertain 

what could be accomplished. 

e. a proposed date for the filing of<my prehea.ing motions ... a.1d 

While Respondent cannot suggest a date for filing preheaTing motions, it likely ·would need to .file 

a motion for a more definite statement before it could.file its Answer. 

f. proposed hearing dates ... acceptable to all pa.'iies. 

6 
Report and Reply af Respondent Fisher Scientl"fic 

Respondent submits that no hearing will be needed in this case, but if a hearing will be held it 

requests the earliest date consistent ·with and allowable under the law and FAA's Rules of 

Practice. 

3. [service instructions] 

RES!'ONI!JENT'§ REJPJLY 

Respondent timely served~ in accordance with these instructions~ the best Report it could 

muster in light of the total lack ofresponseji·om FAA to the drqft Joint Report it offered 

Regional Counsel on April 20. 

Conclusion 

Respondent has no means to compel Regional Counsel to comply with the April 6 Order or to 

respond to Judge Rawald' s May 17 Show Cause Order. Fisher cannot provide any more 

requested information until FAA stops hiding behind the pending Motion to Dismiss. Judge 

Rawald has offered FA./\ multiple opportunities to comply with his Orders but the agency still 

refuses. 

WElliREFOF.E, Respondent requests that t.he Complaint be dismissed with prejudice. 

Dated: June 13, 2016 

Re~pectlj,Ill;y suj;mitted, ,' . ~ "' 

-,-.....,--

Jeuy/Ylf Cox~Esq 

2050 Jamieson Ave., Suite 1212 

Alexa.1dria, VA 22314 

(email) _;_;· :sL;ifiLt;ic\2IlGil:£.1.~':'uiTm'LC'c~'''" 

(tel}703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

7 

JERRY COX \>age: A-21 of 25 

2050 JAMIESON AVE APT 1212 

ALE)(ANDRIA, VA 22314-6827 

kSiU Cyde Date: 04/10i16- 05/09/15 

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JERRY COX Page: A-22 of 25 

2050 JAMIESON AVE APT 1212 

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Bill Cy<!e Date: 04/10/16- 05/09/15 

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Exhibit 9 
·,.=, ty:,·= ,p=-~ if=~ (~ ?~ -_11 L_-_--_~--~~----· r._.'l:_--- __ ~ ____ ._-.-~_, 1r=l t: ~. r~-- ; - -~- - ~· 

U.S. DlEPARTMENT OF TRANSPORTAUON 

OFFICE OF HEARINGS 

W ASHJNGTON, l!JIC 

FEl!JIERAlL A VIAHON ADMOOSTRATKON, } 

Complainant, 

V. 

} 

} 

} 

In the Matter of Fisher 

Scientific Company, LLC 

DocketNo. FAA-2015-1321 

} (Civil Penalty Action) 

lFlSJ\IER §CJIJENTli.FJI.C COMPANY, iLLC, 

Respondent. 

} 

} 

Judge Rawald 

P.ESPONIDENT'S MOTION 

TO S'IRJI.KE COMPJLAJI.NAN'f'§ RESPONSE TO SHOW CAUSE ORl!JilER 

AND TO 

lDJI§MJ§§ 1'1\IE COl'Vll"lLAINT AS MOOT 

History of the FAA's Inexcusable Delay in the Proceedings 

The Federal Aviation Administration's Southern Regional Colmsel ("Regional Counsel" or 

"FAA") seeks a $5,850 fine relating to a small shipment of lye almost 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: 

l. 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 of limitations 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 cmmsel 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 on May 31, 2016. No 

counsel of record for FAr\ signed the submission, however, so it violated Rule ll(a) of the 

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

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

FRCP 11 (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, government-wide statute of 

limitations batTing the commencement of any civil proceedings more than five years after the 

date the government's claim allegedly accmed. 28 U.S. C. Sec. 2462. See also U.S. v. Core 

Laboratories, 759 F.2d 480 (5'h Cir. 1985) and 3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 

1994.) 

It is lmdisputed that the alleged act at issue in this matter occtmed 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 ifF AA were to prevail on the 

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

conservatively estin1ates would consume at least three fuli 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 Government is batTed 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 

at1d slanm1ed down the phone in mid-conversation. Ms. Hat·per did not return the call. 

VvHEREFORE, Respondent submits that the Camp laint must be dismissed with prejudice on any 

or all of the grounds stated above. 

Dated: September 23, 2016 

/~ ''1 I.\ 

; \ c/ II 

.

;Respef:Jiull;l subrnitted, 

\ i

1 I I I \ \ ~.; 1

1

/,1 j / iJ_- /l 

--+-// I / / • /- }-') 

iJ'A-t. .. r 1.;.... i.....,./· 1 ! / Jen~ "N. 'C~; Esq. 1 

20&'0 JamiesonAv/, Suite 1212 

Alexandria, VA 22314 

(email)· 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

2 
Exhibit 10 
In the Matter of: 

Fisher Scientific Company5 LLC 

October 4, 2016 

Pretrial Conference 

Condensed Transcript with Word Index 

For The Record, inc. 

(301) 870~8025 - wvvw.ftrinc.net - (800) 921-5555 
Fisher Scientific Company, LLC 

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s.pp~a.dng. 

t·::· 

For The Record, Inc. 

10/4/2016 

3 

tl 

1 (Pages 1 to 4) 
Fisher Scientific Company, LLC 

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involved is the sodium hydroxide materiaL the Class 8 UN 

1824. if you-- if you go to the hnzardous materials 

table, it \Viii tell you exactly hmv it's regulate~ so 

that·s really the essence of those two paragraphs. 

TGDGE RAW ALD: Okay. And, so, lvlr. Cox, would 

you agree or disagree wil.h i\II:r_ Ellis? 

lvffi.. COX: I'm not entire I~,-- sure what he ju.<;t 

saicL other them l would just point out that in the 

amende~ no tic~, 4 and 5 changed. That 1vas filed more 

than t\vo years after the alleged incident I\nd they 

cha.Dged from the original notice, to the amended notice, 

to the complaint. So I'm not sure 1vhich of those they 

are saving: -- \\,-hich one he "s saving \Vas fflir notice to 

Resp~~d~rrt" that th~' neCcled t~- be~----~ 

1viR. ELLIS: The Paragraph 4 in the original 

notice \Vbich --

JUDGE RAW ALD: lvh'. Ellis, hold on one second. 

So~ MI. Coxo my queslion is, obviously· the language in 4 

and 5 arc different in the complaint than what they \Vere 

in the original notice, 4 and 5 in the complaint mirror 

"-rhffi's in the amended notice. 

What J asked of both parties was wheU1er the 

changes to 4 and 5, were in any way material such that 

the Respondent \Vas put unfali:ly on notice, so that \:Vould 

be a Rule 208 violation. 1v1L Ellis said, no, no, no, 4 

42 

and 5 were simply amended to make more clear what 

originally \Vas in ParagTaph 4, which yvas one sentence and 

they turned it into three or four sentences to explain 

more about that in response to your question at the 

:infonnal conference. 

imd so I guess, sir, my question is do you 

think that 4 and 5 m·e actually ne\v facts or arc they 

n1:erelv_rp.ak_iflg WSlie clear·what's ah·eady existent in the_ 

notice for proposed civil penalty from 2013? 

Iv1R COX: Clearly, new facts. Especially if 

you have in fi·ont of you amended notice of proposed civil 

penalty fileJuly 24,2014, Paramph 4 is still talkin£ 

about corks. Tlus case has nothing to do \Villi corks. 

JUDGE RAW ALD: Right. But it didn't make its 

\\-a}: into the complall1~ sir, so~I'm not going to wmn' 

about it. If it's not in lhe complaint, it's not an 

issue. So it's really not rn1 issue. 

I understand the Government can certainly drop 

things from U1e notice of proposed civil penalty and not 

make it in the c.omplainL In fact, ti1eY dropped 

admittedly half their violations in the complaint stage, 

so they initially alleged six violations in 2013, in the 

complaint there's only three. 

~·-.~·---so~~QT;~;IQliSIY·',-fueadvocacv was eftCctive at 

some nolnt because you were able to at least get some of 

10/4/2016 

those violations offthe table here. 

2 So- okay. So tbat' s all the questions and 

3 concen1s I have on the insufficiency and U1e 208 issue. 

4 Now. Mr. Cox has mentioned \he fact that he's 

:J also asked or mentioned tluee other bases. l 'rn not going 

6 to lllke argument on those issues today. I'm really 

7 -·lacused on the-procedural issues, whi.ch are a\ lh~ YelY 

8 threshold for issues under the regulations that go to 

9 whether lhe case exists or not And then we can discuss 

I 0 more about U1e possible sanctions or oilier things clown 

11 the road. 

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But at this moment I am not going to look at 

that. I want to look at these threshold issues and get 

. tl10se out dealt witlr, in my opinion first. TIJat's wlJat 

I'm looking at 

So Thith that understanding, Mr. Cox. do you 

have an:ything else you want to bring up? 

MR. COX: Judge, I would simph· like to note 

for the recor<l my objections that evervt!Jing that Mr. 

Ellis said is required-unde!:_ Rule l!J£._be st?!~l":,'!:_ 

exactly for tl1e san1e reason Ural the supposed rcspmJSe to 

your motion-- rm sorry; to your order to shmv cause 

should be stricken. And that i, going to be an 

· indepellctent issue, I guess, because the rules are really 

clear in Rule l L tlrat it has to be counsel of record. 

There's nothing in the response that-- there's 

no typervTitten infonnation as to who signed that supposed 

response, whether that's 1VIr. Ellis' sig:natm·e or not, I 

don't k:nmv. But there are a lot of factual allegations 

made that are just flat untlue. 

Aud if Ms. Hnrper is not "illing to put her 

siru:tature on that and 1isk sanction~_ for telling, as she 

calls them, mislluths; then I donot think that it's 

reallv 1ight for a Respondent to have to deal with an 

attomey who is not of Iecord ill the case. And I \Yould 

QQject to ihat. 

JUDGE RAW ALD: Okay. And, Mr. Ellis, let me J." ~­

tum to you. So. there is a complicating factor here. in 

I

'! the fact that Ivls. Hm]Jer has been noticeablv absent n·om 

.·the pror.;eeding. She didn't file anvthine in response to 1 ; 

my initial notice regulling the pmties to meet and ! ! 

i I confer: she did not file herself the response to notice 1 1 - II 

11 for show cause_ von filed !.hat for her: fu!d she has not 

appeared todav. 

TI1is is a problem, Cmmsel. There needs to be_ l1 

someone from the FAA \Vho is on this case and ready to 1,

1

' 

prosecute this Case, because rm proceeding: \Y]th this 

. --~q§__~_ I'm moving tl!_i~t-~ase fonvard either 1Y?-Y. A .nd J J 

if the FAA \Vants to not abandon Uris case. thev need to ! ( 

assign someone to this case who is going to be taking j! 

1 1 (Pages 41 to 44) 

For The Record, Inc. 
Fisher Scientific Company, LLC 

JlLI1J!L~b§. CU.§~.,_ 

2 And iflVls. Harper can't tnke p;;ut in the caseo 

_, you need to think about who else you want to assign to 

4 the matter, sir. 

5 lv!R ELLIS: I hear you loud and clear, Your 

6 Honor. 

I - ~) 

7 JUDGE RA WALD: Yes, sir. 1"-otd so 1 would think 

8 obout that further. 

9 _1\nd as lor Mr. Cox "s concems, 1 "ill lake them 

10 under advisement and I'll consider whether or not to 

l I consider them. 

12 Bnt I do appreciate everyone shmving up today 

13 and discussing the~e issues, lhey are important. I 

14 ""ill --

15 MR. COX: I have a question, Judge. 

16 JUDGE Rr'C W ALD: Yes, Mr. Cox? 

17 lviR. COX: Are you denying my motions? A.nv of 

18 my motions to dismiss? 

19 JUDGE RAW ALD: l have not made anv rulings on 

20 ~nv motions at this point, sir. So what I'm doing at the 

21 moment is l 'm taking these first trvo issues after 

21. ~u-gumcnt under advisement nnd I will work on issuing an 

23 opinion. 

.24 I will then look at the other issues you have 

25 raised more intensely nnd decide what to do about those 

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issues. 

1 do not plan on having arg1.m1cnt on those 

issues. but if I do. npou re,icwing them fmther. Ulink 

additional briefing or argument necessary, I will let the 

parties know. 

No. I understand your position on all three of 

those issues and I will look at U1em further and then 

decide ""hat rn do ""ilh them. I lk1Yen't made any 

decision )'el Mr. Co.\:_ in the short tcm1 

MR. ELLIS: Your Honor? Your Honor. I have a 

question. 

JUDGERAWALD: Yes. 

MR. ELLIS: Will we recei.-e a copy of Ulis 

transcript" 

JUDGE RA WALD: Well. so the tnmscript will 

come - I think it then gets passed to the dockeL but 

l"m not sure. But I will make sure that all parties 

receive a copy of the transcript once \Ye get one_ yes. 

MR. ELLIS: Thank yotL Your Honor. 

JUDGE RAW ALD: Okay. Mr. Co~. so --just so 

you understand_ what I will do is 1 ·will go ahead and 

issue a \Hitten order regarding U1ese t\vo motions alone 

and then look at the otl1er three issues fmtheL I don't 

tltink there's anything in those_ despite your concem 

that will be worth my looking at before I dispose of 

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10/4/2016 

these two vel)r essential <md baseline issues that need to 

be dealt "'.Vith. 

So, Ivir. Cox, any further questions from me? 

MR. COX: No. Just I want to be clenr fu:tt 

you're going to:-- it's )'Our intention to hold in 

abeyance the motion to strike and the motions to dismis::;, 

including the motion to dismiss on mootness, because of 

the five )'CEtr statute of limitations. 

You're going to decide upon the issue about 

whether the pleading meets the sufllciencv requirements 

before vou decide \Vhethcr the case is moot in the first 

. place. 

1v1R. ELLIS: HO\\' in the world \YOuld the-- rm 

sorry. 

-+7 

JUDGE RAW A.LD: Yes. TI1e reason \Vhy I'm doing 

that is because first of all, you raised the issue YC!}' 

recently of the Government hasn't had a chance to brief 

it and I think also that I really \Vant to deal with this 

yerv baseline issue that exists in the regulations 

there's a reason for ha\ing a case dismissed. I mem4 

1he:-;c are - tl1esc a_re things in the regulation that 

exist as possible reasons a complaint cEm be di~1nissed 

and responses allmved by that answer. So I ,·vant to get 

ilio:;c squared mvay. 

And then l will look at your new issue you·ve 

raised, ando if neccss<.uy, ask for briefjng: fi·om the 

Respondent -- oro excuse me~ the Complainant to respond 

to what you raised there_ ns far as the three or the fin~ 

year statute, sir. 

I'AR. COX: As long as 1 understand. Thank you. 

JIIDGE RAW ALD: Okay. And so, lvlr. Ellis, just 

so you unc1erstm1cl, ivir. Co;{ did lile s"Dmething last week 

raising the fact that there nre several other issues he 

thinks that the case nc:edc:d to be dismissed hc:causc of i i 

one of which is a five vern- statute of limitations. 

I do ask tlu1t vou not spend an}' time responding 

to that unui I direct thatvou do in a briefing_ okav. . ... - .·. ..~ ... · . 

sir? 

MR. ELLIS: Yes, Your Honor. 

.nJDGERAWALD: OkaY. So any other questions 

for me, mr. Elli::;? 

MR. ELLIS: No, Your Honor. 

JUDGE RAWALD: Okay. Last chance for anv 

questions, !vfr. Cox. 

11R. COX: Jusl to note that the rules require 

_ tl1e FAA to respond "\\itl1in, I UDnk it's ]l) dan to the 

motion Lo strike. 

RIDGE RAW ALD: I underswncl sir. But I do 

have some 11exibility as far as being a Judge and 

dictating how the schedule of events goes. A.nd sc- --

12 (Pages 45 to 48) 

For The Record, Inc. 
Fisher Scientific Company, LLC 

MR. COX: I understand. sir, but only if 

they "ve a~ked for an extension. If you take a close look 

-~ at tl1c regulations, they have to ask vou for an extension 

4 ::md state a reason whv. -·~-~~ ~ 

5 JUDGE Rl\ Vv'ALD: SIT, given m,y current posiltre in 

6 this case~ I don't want briefing on the issue, not rig]1t 

7 now. So I \~ill look more ~!yo~~is~~;-But I am 

8 stating here the Government should send a brief in 

9 response to your motion to strike at the morn~nt. 

!0 MR. COX: Understand. I understand. 

ll MR. ELLIS: Yes, Your Honor. 

12 JUDGE RAW ALD: Anything else for us to discuss? 

13 (No response.) 

14 .ITJDGE RA\V ALD: Okay. At tills point, lefs go 

15 ahead and-- I appreciate everyone taking the time today 

16 and giving me some good argument on the issues. So \\'c'l1 

17 go ahead and go back and look at hmv we're going to 

18 decide this case and then \-ve'll Jet vou kno\\' _in a written 

19 opinion how I decide ihese t\vo issue:; and then \Vhaes the 

20 next step in this case. 

21 So thank you for your time and Iefs go ahead 

22 cmd go otT the record. Thank you. 

23 MR. ELLIS: Thank you, Your Honor 

24 (\\'hereupon, at 11:05 a.m .. the hearing was 

2.5 concluded.) 

50 

CERTIFICATE OF REPORTER 

3 

4 I~ Karen Guy, hereby certify tl1at the foregoing 

5 proceedings were recorded by me via digital recording and 

6 reduced to typc\\Titing under my supervision; that I am 

7 neithercounsd for, related to, nor employed by any of 

8 the parties to the action in which these proceedings were 

9 transc1i.bed;. m1d further, that I am not a relative or 

10 employee of any attorney or counsel employed by the 

11 parties hereto, nor financially or othenvise interested 

12 in the outcome of the action. 

13 

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19 

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21 

22 

23 

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15 

KAREN GUY 

For The Record, Inc. 

10/4/2016 

13 (Pages 49 to 50) 
Exhibit 11 
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 Rawald 

ERRATA FOR OCTOBER 4, 2016, PRETRIAL [SIC, PREHEARING] 

CONFERENCE 

1. In the title, delete "pretrial" and insert in lieu thereof "pre-hearing." 

2. The transcript does not, but should, include the undersigned's objection, just before 

10:12 a.m., to proceeding with the hearing after agency counsel of record failed to 

appear. 

3. On p. 5, line 2, delete "admit" and insert in lieu thereof "dismiss." 

4. On p. 9, line 10, delete "thoughts" and insert in lieu thereof"former boss." 

5. On p. 34, line 7, delete "from defense." 

6. On p. 37, line 12, delete "through" and insert in lieu thereof"to prove." 

7. On p. 49, between the words "should" and "send," insert the word "not." 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASIDNGTON, DC 

FEDERAL AVIATION ADMINISTRATION, } 

Complainant, } 

} 

~ } 

} 

FISHER SCIENTIFIC COMPANY, LLC, } 

Respondent. } 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

AMENDED BRIEF IN SUPPORT OF 

RESPONDENT'S INTERLOCUTORY APPEAL OF RIGHT 

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

(hereinafter referred to as "Fisher") hereby appeals to the FAA decision-maker pursuant the 

Federal Aviation Administration Ruies of Practice, 14 C.F .R. Part I 3 (hereinafter "FAA Rules"), 

Rule 219(c), 14 C.P.R.§ 13.219(c), to dismiss the Complaint in the above-captioned matter due 

to the failure by the assigned Administrative Law Judge, Douglas Rawald ("the ALT'), to 

dismiss the case, as required by FAA Ruie 215, after the agency attorneys constructively 

withdrew the Complaint by missing four consecutive deadlines without excuse. In support of its 

Appeal, Fisher states the following: 

QUESTION PRESENTED 

Must the Complaint in a civil penalty action be dismissed with prejudice when agency counsel, 

by consistently failing to participate in the proceedings, ignoring multiple ALJ Orders and failing 

without excuse to appear at a pre-hearing conference ordered by the ALJ, has constructively 

withdrawn the Complaint? 
PURPOSE AND STANDARD OF REVIEW FOR THE APPEAL 

FAA long ago established the "interlocutory appeal of right" to help the Administrator prevent 

agency counsel, a private party respondent or an ALJ from wasting public and private resources 

on administrative litigation where, as a matter of law, one side or the other has failed to 

participate in the proceedings or to present its case. Accordingly, when it adopted Rule 219( c) in 

1990,1 FAA decided not to depend on an ALI to prevent needless litigation and provided, in 

pertinent part, as follows: "A party may file an interlocutory appeal ... without the consent of the 

administrative law judge ... in the case of ... (2)failure of the administrative law judge to 

dismiss the proceedings in accordance with § 13.215 .... " (Emphasis supplied.) 

The plain language of the Rule makes it clear that Respondent has presented a ripe question. The 

issue on appeal is not whether the ALJ erred by issuing an order or making a formal ruling, but 

whether he failed to take certain action that Rule 215 requires to be taken. FAA's clear intention 

was to prevent not just parties but also an ALJ from allowing wasteful litigation to proceed. That 

is why Rule 219 also specifically provides that, when the ALI's receives a Notice of Appeal, 

"the proceedings are stayed until the FAA decision-maker issues a decision on the interlocutory 

appeal." (Emphasis supplied.) 

Accordingly, it is up to the Administrator to review de novo and decide the answer to the legal 

question presented above. 2 

FACTS 

There is no dispute that Fisher offered a one-piece shipment containing one liter of sodium 

hydroxide solution (commonly known as "lye") by air five-and-a-half years ago, in July, 2011, 

that the package was properly declared as containing hazardous material and that it was properly 

labeled as a "limited quantity" shipment In June, 2015, four years after the shipment, FAA's 

Southern Regional Counsel ("agency counsel") filed a Complaint alleging, in pertinent part, that 

the lye was packaged in some respect that violated the Hazardous Materials Regulations 

("HMRs").3 

1 Federal Aviation Administration, "Rules of Practice for FAA Civil Penalty Actions," Final Rule, 55 Fed. Reg. 

27548,27567-68 (July 3, 1990) ("Final Rule"), codified atl4 C.F.R. Part 13. Previous FAA practice, which 

allowed the government and not private party respondents to file interlocutory appeals, was widely criticized as 

"'unfair and has the potential for abuse in unduly protracting litigation to the disadvantage of respondents." See also 

FAA, "Rules of Practice for Civil Penalty Actions," Notice of Proposed Rulemaking, 55 Fed. Reg. 15134, 15143 

("Proposed Rule") (Apr. 20, 1990). 2 Even on an appeal from an Initial Decision by an ALJ after a hearing, the FAA decision-maker must decide for 

itself whether the ALJ followed "applicable law, precedent and public policy'' FAA Rule 233(b)(2). 3 Complaint at 2 (June 4, 2015) (Exhibit 1). 

Respondent's Appeal of Right 2 
Fisher promptly moved to dismiss the Complaint based, in part, on agency counsel's failure to 

lodge at least one of the key allegations within the two-year time limit established by FAA Rule 

208.4 Agency counsel of record did not file a timely response to Respondent's Motion to 

Dismiss but the ALJ neve1theless moved the case forward. 5 

On April6, 2016, nearly a year after Respondent filed its Motion to Dismiss, the ALJ- without 

first deciding whether the dispositive motions resolved the case or whether Respondent would 

even be required to file an Answer- ordered the parties to meet and confer regarding litigation 

and scheduling issues and to submit a Joint Report on their meeting.6 After extraordinary efforts 

by the undersigned to get anyone in the Regional Counsel's office to return multiple phone calls 

and emails, agency counsel of record, Michelle Harper, Esq., finally phoned to say she was 

unable to answer even the most basic questions about the substance of the case because she had 

not looked at the file in years. She promised to review the file the following week and asked the 

undersigned to prepare a Joint Report. Respondent inimediately offered a draft Joint Report for 

her review and approval, but she never replied, despite more repeated calls from the undersigned. 

Respondent had no choice but to file a unilateral report and moved the ALJ for dismissal and 

other sanctions against agency counsel for ignoring his Order to meet and confer and for failing 

to file any report, in clear defiance of the ALJ' s demand. 7 Instead of dismissing the Complaint, 

the ALJ issued a Show Cause Order that stated an unequivocal threat: the Complaint would be 

considered "constructively withdrawn" unless agency counsel filed "a statement explaining the 

cause of their failure to comply" that "shall include ... the information requested in the Order 

directing the parties to meet and confer. "8 

Despite the ALJ' s unequivocal warning, agency counsel filed no response to the Show Cause 

Order that is cognizable under the FAA Rules and never submitted anything purporting to 

provide the information to be included in the Report required by the April 6 Order. 9 Someone 

whose name is not typewritten on the document submitted a two-page purp01ted third-hand 

account of a conversation between Ms. Harper and the undersigned, but the agency counsel of 

record did not sign the document. Failure to sign and thereby certifY the truthfulness of the 

factual representation presented in the purported response to the Show Cause Order violated 

4 Motion to Dismiss Complaint for Violation of Rule 208 (June 23, 2015) (Exhibit 2). 5 Agency counsel filed a late request for an extension of time- from 10 days to nearly two months- to reply 

to the Motion to Dismiss but offered no excuse for their late filing of the request and did not state any grounds 

acceptable under FAA rules for granting it. Opposition to Extension at 2 (July 7, 2015) (Exhibit 3). In complete 

disregard of controlling Rules, the ALJ- at that time, judge Goodwin- unlawfully granted the extension. 

Respondent later withdrew the motions it filed in 2015 because, after they had languished for 16 months, other 

reasons to dismiss the Complaint arose and rendered them unnecessary. 6 See Exhibit 4. 7 Respondent's Report in Response to Order and Motion to Sanction FAA's Noncompliance (Apr. 30, 2016) 

(Exhibit 5). 8 Order to Show Cause and Provide Requested Information (May 17, 2016) (Exhibit 6). 

9 Agency counsel's purpmted response to the Show Cause Order is attached as Exhibit 7 to this Brief only for the 

purpose of showing that it was never signed by agency counsel ofrecord. 

Respondent's Appeal of Right 3 
Federal Rule of Civil Procedure ll(a), which provides, in pertinent part, that any unsigned 

"pleading ... and other paper must be signed by at least one attorney of record" and that failure 

to "promptly correct" an unsigned paper after the omission has been called to the party's 

attention leads to a single, mandatory sanction: "the court must strike an unsigned paper" 

(emphasis supplied). FAA Rule 207 even more explicitly bans recognition of unsigned filings. 

It provides that the "attorney of record ... shall sign each document tendered for filing with the 

hearing docket clerk, the administrative law judge, the FAA decision-maker on appeal or served 

on each party" (emphasis supplied). Respondent pointed out this failure and, for the third time, 

moved again for dismissal. 10 

Instead of dismissing the Complaint at that point as required by Rule 219, the ALJ ordered the 

parties to appear at a Pre-hearing Conference on October 4, 2016, at 10:00 a.m. The undersigned 

counsel for Respondent was present. In complete keeping with Southern Regional Counsel's 

total non-participation in prosecuting the case, agency counsel failed to appear at the hearing. 

The ALJ spent almost 15 minutes trying to get someone at the office of Southern Regional 

Counsel to answer the phone. He fmally rounded up an attorney who was not counsel of record. 

The undersigned inunediate1y objected to any hearing on the matter after agency counsel of 

record had once again constructively withdrawn the Complaint11 but the ALJ, without 

explanation, insisted on proceeding. He started by asking why counsel of record, Michelle 

Harper, failed to appear and participate. The attorney said he could only speculate about the 

reasons for her nonappearance. 

12 The ALJ asked the attorney whether he was prepared to 

participate in the hearing. The attorney replied, "I am not prepared .... " 13 

Over Respondent's repeated objections, the ALJ insisted on prosecuting the matter himself 

whether FAA took part in the case or not. 14 Judge Rawald admitted there were multiple reasons 

to consider the Complaint to have been withdrawn. He noted that FAA counsel of record "has 

been noticeably absent from the proceeding. She didn't file anything in response to my initial 

notice requiring the parties to meet and confer; she did not file herself the response to notice for 

show cause; ... and she has not appeared today." Despite these serious lapses on the part of 

Regional Counsel, the ALJ essentially indicated that he intended to talce over from agency 

counsel: "There needs to be someone on this case because I'm proceeding with this case, I'm 

moving this case forward either way." 15 

10 See Exhibit 8. 11 Errata for Transcript of Pre-Hearing Conference ("Tr. Errata") (October 4, 2016) (Exhibit I 1). 12 Transcript ofPretrial [sic, Pre-Hearing] Conference ("Tr.") (October 4, 2016) (Exhibit 10) at 2-3. Under FAA 

Rule 219(d), Respondent's Appeal Brief was due within I 0 days of the ALJ's ruling that the case will go forward. 

The Office of Hearings never served the Transcript on Respondent, so Respondent's initial brief, filed October 13, 

2016, was based on the undersigned's notes and best recollection. 13 ld. at 3. 14 Id at 43-44. 15 /d. at 44-45 (emphasis supplied). 

Respondent's Appeal of Right 4 
At the conclusion of the hearing, the undersigned objected once again and asked for immediate 

consideration of Respondent's motion to strike the unsigned, purported response to the show 

cause order. 16 The ALJ, contrary to FAA Rule 207, not only failed to strike the unsigned 

document, he issued an order that agency counsel not file a timely response to the Motion to 

Strike17 

Respondent immediately filed the instant Appeal. 

ARGUMENT 

I. THE CRITERIA FOR RECOGNIZING A "CONSTRUCTIVE 

WITIIDRA W AL" OF A RESPONDENT'S REQUEST FOR A HEARING 

MUST BE APPLIED EQUALLY TO THE GOVERNMENT'S 

"CONSTRUCTIVE WITIIDRA W AL" OF A COMPLAINT. 

The Administrative Procedure Act, 5 U.S.C. § 551 et seq., forbids FAA to adjudicate the 

imposition of a civil penalty on a private party Respondent without first affording au opportunity 

for a fair hearing on the merits of the agency's allegations. For years, private parties have 

complained that FAA's civil penalty procedures are not only unfair, but in plain violation of due 

process rights guaranteed under the Fifth Amendment to the U.S. Constitution. Historically, 

FAA applied strict standards to private parties that were not applied to government "prosecutors" 

in civil penalty cases. Private parties were required to verify interrogatory responses under oath; 

no such requirement applied to FAA agency counsel. Private parties could not file interlocutory 

appeals; only FAA counsel could. Agency counsel were free to drag cases out long enough to 

make it difficult to "defend against the FAA's allegations because documents are inadvertently 

destroyed or witnesses become unavailable due to the agency's delay. 18 

FAA's procedures also were criticized for the lack of separation between ALJs, who are 

employed by the Trauspmiation Department, and prosecuting agency attorneys, who report to an 

"FAA decision-maker," who is supposed to render a final decision in au administrative appeal 

but is "basically prosecutorial in ... outlook and orientation."19 After judicial intervention in the 

late 1980s, FAA adopted the Rules of Practice that govem today to address criticism that the 

prior rules were "inadequate to ensure a system of adjudication that is both fair and appears 

fair."20 

16 See Exhibit 9. 17 Tr. at 49 and Tr. Errata. 18 See Final Rule at 27552-58; Proposed Rule at 15135-36. 19 Final Rule at 27551. 

20 Id. at 27550. 

Respondent's Appeal of Right 5 
The outcome of the instant appeal will indicate whether FAA is actually abiding by its own 

Rules or falling back into its old ways, thereby inviting new scrutiny by Congress and the federal 

courts. The basic issue is whether agency counsel can take a "fire-and-forget" approach to 

prosecuting a civil penalty case. More specifically, denial of this appeal would establish one set 

of mles for "constructive withdrawal" of a private party Respondent's Request for a Hearing and 

a policy of not applying the same standards to agency counsel's conduct to the point of 

immunizing them against a frnding that they "constructively withdrew" a Complaint. 

Over many years, ALJ s have repeatedly used the failure of a private party in a civil penalty 

proceeding to file a response to a show cause order or other required document as grounds to 

terminate the proceedings.21 More recently, Judge Rawald, the ALJ in the instant case, has made 

prolific use of constructive withdrawal, especially in connection with his April, 2016, mass 

mailing of Orders to Meet and Confer to parties in cases on his docket. When a party, in 

defiance of the ALJ' s Order to Meet and Confer, failed to communicate with opposing counsel 

and put them in the position of having to file a unilateral report, Judge Rawald repeatedly ruled 

that the party's failure to respond was, by itself, grounds to conclude that the noncompliant party 

had constructively withdrawn.22 A party's silence, too, is sufficient grounds to find constructive 

withdrawae3 He also found that a party's constructive withdrawal occurs when it "fails to 

appear at a hearing without good cause" and such failure "shall be construed as an abandomuent 

of the hearing process."24 Judge Rawald acknowledged that FAA Rule 215 gives him no choice 

in the matter because, when a party "withdraw[ s] a request for a hearing ... the administrative 

law judge shall dismiss the case with prejudice."25 

In every case Respondent has been able to identify, however, constructive withdrawal was 

always used against a private party Respondent and never against agency counsel. Judge 

Rawald, in particular, seems to have concluded that the govermuent is exempt from requirements 

to participate in an administrative process that they instigated by filing a Complaint. 

II. AGENCY COUNSEL "CONSTRUCTIVELY WITHDREW" FAA's 

COMPLAINT. 

In the cases referenced above, Judge Rawald recited the following fact pattern to justify 

dismissal of Respondents' request for a hearing: 

21 See, e.g., Matter of Bonanza Valley Aviation, Inc., 1994 WL 16054306 (May 4, 1994) (party failed to respond to 

Order to Show Cause); Matter of Edward C. Parks, 1999 WL 33739451 (Feb. 17, 1999) (party filed no response to 

Order to Show Cause); and Matter of Butte Aviation, 2004 WL 350392 (failure to file Answer is "constructive 

withdrawal ofthe request for a hearing"). 22 See, e.g., Matter of Christopher McCann, 2016 WL 3662616 (June 29, 2016) ("McCann") at I, n.l and Matter of 

!XL Premium Lubricants, Inc., 2016 WL 3662615 (June 28, 2016) ("IXL") at I, n.l. 23 McCann at 2, n.2; !XL at 1, n.2 24 McCann at 2, n.3; lXL at 1, n.3 (emphasis supplied). 25 McCann at 2; !XL at 2 (emphasis supplied). 

Respondent's Appeal of Right 6 
1. Respondent requested a hearing. 

2. Respondent was served with a Meet and Confer Order and an Order to Show Cause. 

3. Respondent failed to comply with the Meet and Confer Order. 

4. Respondent was "advised in the Order to Show Cause that further failure to participate in 

the proceedings may be deemed a constructive withdrawal of the request for hearing." 

5. Respondent failed to respond to the Order to Show Cause. 

6. Respondent's "failure to participate in the proceedings ... constitutes a constructive 

withdrawal of the Respondent's request for a hearing." 

In Respondent Fisher's Appeal, the fact pattern is as follows: 

1. Complainant filed a Complaint. 

2. Complainant was served with a Meet and Confer Order and ordered to file a Joint Report. 

3. Complainant refused to comply with the Meet and Confer Order and never flied either a 

Joint Report or a Unilateral Report. 

4. Complainant was served with an Order to Show Cause and threatened with dismissal if 

agency counsel of record failed to "file a statement explaining the cause of their failure" 

and include "information requested in the Order." 

5. Complainant filed no statement explaining the cause oftheir failure or including the 

requested information. 

6. In fact, Complainant flied no cognizable response whatsoever to the Order to Show 

Cause because the document agency counsel submitted was not signed or certified by 

counsel of record and must be stricken from the record under FRCP ll(a) and FAA Ruie 

207. 

7. Counsel of record did not even bother to appear at the Pre-Hearing Conference ordered 

for October 4, 2016. 

Certainly by the time agency counsel neglected to appear at the October 4 hearing, the ALJ was 

obligated to recognize a constructive withdrawal of the Complaint. If the FAA decision-maker 

rejects the instant Appeal and finds that such a constant lack of participation by agency counselas enumerated by the ALJ hirnself'6 - does not necessitate a finding of constructive withdrawal 

of a Complaint, agency counsel may be justified in considering themselves immune from 

dismissal. In effect, rejection of the Appeal would establish a "one-strike-and-you're-out" rule 

for private party Respondents and a blind eye toward exactly the same conduct by the 

government. This unbalanced duality could force tl1e FAA into federal court, where it would be 

compelled to explain how such disparate treatment comports with constitutional guarantees of 

due process. Similarly, among the regulated community, this precedent surely will create the 

impression of a double standard, which wouid negatively affect that co=unity's confidence in 

the FAA adjudicatory process as fair and unbiased. 

26 Tr. at 44. 

Respondent's Appeal of Right 7 
m. UPON WITHDRAWAL OF A COMPLAINT, RULE 219 REQUIRES THAT 

AN ALJ "SHALL DISMISS" THE CASE WlTH PREJUDICE. 

FAA Rule 219 is unequivocal. It specifically states that "an agency attorney may withdraw a 

complaint ... without the consent of' the administrative law judge. If an agency attorney 

withdraws the complaint ... the administrative law judge shall dismiss the proceedings ... with 

prejudice." (Emphasis supplied.) 

As Part II explains above, agency counsel constructively withdrew their Complaint on multiple 

occasions: by failing to file a timely response to the motions to dismiss in 2015; by ignoring the 

Order to Meet and Confer; by failing to file the report required in said Order; by failing to file a 

signed response to the Order to Show Cause; and, finally, by not bothering to appear at the Preconference Hearing the ALJ convened on October 4, 2016. Their withdrawal required no order, 

approval or recognition by the ALJ. The FAA decision-maker, in turn, has no choice under FAA 

Rule 215 other than to "dismiss the proceedings ... with prejudice." 

WHEREFORE, Respondent respectfully requests the agency decision-maker to immediately 

dismiss the Complaint with prejudice. 

Dated: November25, 2016 

Respondent's Appeal of Right 

q%j~ Jerry py eox, Esq. I 

2050 ramiesonAve., Suite 1212 

Alexandria, VA 22314 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

8 
CERTIFICATE OF SERVICE 

On November 25, 2016, the undersigned sent by the indicated type(s) of service at least one copy 

of the foregoing Notice on each of the persons listed below. 

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

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 Hand] 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Wilbur Wright Bldg., Suite 2W1000 

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 ColumbiaAve. 

College Park, GA 30337 

Respondent's Appeal of Right 

[One Copy by air courier] 

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 

F©vV\. D 0 [Original+ piTee Copies 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 

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

Ryan M. Landers, Esq. 

Senior Attorney 

Enforcement Division, Southern Team 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

P.O. Box 20636 

Atlanta, GA 30320 

/ 

9 
Exhibit 1 
U.S, lllEll'ARTMENT OFTRANSPORTATKON 

OFFICE OF HEARlli'!GS 

FEDERAL A VJ[ATION ADMJ[NliSTRATWN 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. F A.A. Docket No. 

JUDGE NOT YET ASSIGNED 

FISHER SCIENTIFIC COMPANY, L.L.C. 

Respondent. 

COMPLMNT 

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, 

pursuant to Rule 208 of the Rules ofPractice (14 C.F.R. 13.208), and states as follows: 

I. 

On May 18, 2015, Respondent, Fisher Scientific Company, LLC was advised through a Final 

Notice of Proposed Civil Penalty that the F A.A. proposed to assess a civil penalty in the amount 

of $6,500. On June I, 2015, the Agency Attorney received a written request for a hearing from 

the Respondent. 

II. 

1. On or about July 20, 2011, Fisher Scientific Company, L.L.C, ("Fisher") knowingly 

offered to United Parcel Service (UPS) a one piece shipment consisting of a 

specification fiberboard box containing hazardous materials for transportation by air. 

2. The above-mentioned shipment, assigned UPS tracking number/air waybill number 

1Z9V349ll325638264, was offered by Fisher for next day air transportation to the 

consignee, Genova Diagnostics, 63 Zillicoa Street, Asheville, NC 28801. 

3. On or about July 21, 2011, ground handling personnel at the UPS sort facility 

discovered the above-mentioned shipment leaking. 

4. The above-mentioned specification fiberboard box contained a one !-liter plastic 

bottle (with friction or screw-type cap) of "Acros Sodium Hydroxide IN Standard 

Solution." 
5. (a) "Acros Sodium Hydroxide IN Standard Solution" is classified as a hazardous 

material under the Department of Transportation Hazardous Materials Regulations 

(HMR) (49 C.F.R. § 172.101). 

(b) The proper shipping name of the material is sodium hydroxide solution. It is in 

Hazard Class 8 (Corrosive Liquid), Packing Group II, and has an assigned 

identification number ofUN!824. 

6. Further investigation showed that approximately 2 ounces of the above-described 

material had leaked into and through the fiberboard container. 

7. Fisher offered the above shipment of hazardous material for transportation by air and 

failed to use a means of containing the liquid in the form of a leakproof liner, plastic 

bag or other equally efficient means of containment 

8. Fisher offered the shipment of hazardous materials for transportation by air and failed 

to package it so there would be no identifiable release of hazardous material to the 

environment. 

9. Fisher offered the shipment of hazardous materials for transportation by air and failed 

to ensure the closure was secure and leakproof. 

10. By reason of the above, Fisher violated the following Department of Transportation 

Hazardous Materials Regulations (Title 49 of the Code ofFederal Regulations): 

a. Section 173 .24(b )(1) in that Fisher failed to use a package which was 

designed, constructed, maintained, filled, its contents so limited, and closed, 

so that under conditions normally incident to transportation, there would be no 

identifiable release of hazardous material to the environment 

b. Section 173 .24(f)(l) in that Fisher failed to use a package which had closures 

so designed and closed that under conditions (including the effects of 

temperature and vibration) normally incident to transportation, (i) there would 

be no identifiable release of hazardous materials to the environment from the 

opening to which the closure was applied, and (ii) the closure would be secure 

and leakproof. 

c. Section 173.27(e) in that Fisher failed to ensure that except as otherwise 

provided in this subchapter, a package containing liquids hazardous materials 

in Class 3, 4, or 8, or Division 5.1, 5.2 or 6.1 that are packaged and offered for 

transport in glass, earthenware, plastic, or metal inner packagings were 

packaged with absorbent materials as follows: ... 

(3)When absorbent materials are required and the outer 

packaging is not liquid tight, a means of containing the liquid 

in the event of a leakage must be provided in the form of a 
leakproof liner, plastic bag or other equally efficient means of 

containment 

Pursuant to 49 U.S.C. Section 5123(a), Fisher Scientific Co., L.L.C. is subject to a civil penalty 

not lower than $250 ($450 for training-related violations), nor greater than $75,000 ($175,000 if 

death, serious illness, severe injury, or substantial property damage results), for each violation of 

the Department of Transportation Hazardous Materials Regulations. 

Under the facts and circumstances of this case, a civil penalty of $5,850 is appropriate. This 

amount includes consideration of the Respondent's timely corrective action. 

WHEREFORE, the Agency, by counsel, respectfully requests that the Administrative Law Judge 

enter an order that Respondent be assessed a civil penalty in the amount of $5,850. 

day of June, 2015. 

Attorney 

Office of the Regional Counsel 

PLEASE NO'flE: 

Putsua.TJ.t to Title 14 CFR Section 13.209(a), the Respondent is required to file a written answer 

to this Complaint, or a written Motion to Dismiss if appropriate, not later than 3 0 days after the 

date shown on the Certificate of Service which follows. 
Exhibit 2 
U.S. DEll" ARTMIEN1' OF 1'RANSlP'OR1'A1'ION 

OFFICE OF HEARINGS 

WASID.NGTON, DC 

FEDERAL A VIAUON ADMJ[NllSTRAUON, } 

Complainant, 

V. 

} 

} 

} 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. F AA-2015-1321 

} (Civil Penalty Action) 

FISHER SCffiN1'llFlC COMlP' ANil, JLJLC, 

Respondent. 

} 

} 

Judge Goodwin 

MOTIONS 1'0 mSMISS COMJPJLAffl'f 

FOR INSUFFICIENCY AND FOR 

COMlP'JLAINAN1"S VIOJLAHON OF RUlE 2118 

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

(hereinafter re±imed to as "Fisher") moves to dismiss the Complaint in the above-captioned civil 

penalty proceeding on the followi_ng two independent grounds. First, the Complaint fails to state 

a "knowing" violation for which a civil penalty may be imposed. Second, by including 

allegations that were first made more than three years after the alleged incident, the Complaint 

violates Rule 208( d) of the Federal Aviation Administration's (hereinafter "FAA's" or "the 

Agency's") Rules of Practice ("Rules"). 

FAA's Southern Regional Colmsel ("Regional Counsel," "the Government" or "Complainant") 

makes, ar11ong others, two allegations concerning acts Fisher allegedly committed almost four 

years ago, on July 20, 2011, when Fisher shipped a single liter of a corrosive liquid commonly 

known as lye. First, Regional Counsel alleges that Respondent "knowingly offered ... a ... 

shipment ... containing hazardous materials for trar1sportation by air." Compl. ~ 1. Second, 

Regional Counsel claims Respondent "violated the ... hazar·dous materials regulations" 

("HMRs") because it "failed to ensure that [the bottle oflye was] ... packaged with absorbent 

materials .... " Compl. ~ 10.c. 
Respondent's Motion to Dismiss 

Motion to Dismiss for Insufficiency 

The Hazardous Materials Transportation Act ("HMTA"), Pub. Law No. 93-633,88 Stat. 2156, 

2160 (Jan. 3, 1975), codified as amended at49 U.S.C. § 5123(a)(1) (2011), allows the 

Government to impose a civil penaliy upon a "person who knowingly committed an act which is 

a violation of' the HMRs (emphasis supplied). A later recodification made a non-substantive, 

editorial change. It reworded the sentence to say the Government may impose a civil penaliy on 

a "person that knoViingly violates" the HMRs. Nowhere in the Complaint does Regional 

Counsel allege that Fisher "knowingly" committed any act which is a violation of any l:i~ It 

merely states that Respondent "knowingly offered" a declared shipment of hazardous materials. 

There are other, more specific allegations in the Complaint, but none of them allege a "knowing" 

violation. In the example referenced above, Regional Counsel claims Respondent ''violated" 49 

C.F.R. § 173.27(e), but there is no allegation that Fisher "knowingly" committed any act which 

violates it. 

The cited HMR applies certain packaging requirements to some hazardous materials shipments 

but not to others. In this case, the lye was a "limited quantity" shipment that was exempt from 

the specification packaging requirements and otherwise fully complied with all applicable 

HMRs. However, even if one were to assume that§ 173.27( e) did apply to the shipment when it 

was offered in 20 ll and that Fisher failed in some respect to comply with it or any other HMR, 

the HMT A's civil penaliy provision, as amended by the Hazardous Materials T ranspmtation 

Unifmm Safety Act of 1990 ("HMTUSA"), Pub. L. No., 101-615, 104 Stat. 3244,3259 (Nov. 

16, 1990), codified at 49 U.S.C. § 5123(a)(1 )(A) and (B) (2011 ), unquestionably requires the 

Agency to allege and prove that Fisher "knowingly committed an act which is a violation of' that 

or some other HMR. 

As explained in greater detail in Respondent's Memorandum in Support of the Motions to 

Dismiss, the statutory language governing the instant civil penalty proceeding is plain and 

unambiguous. Even if there were some reason to consider it ambiguous, the legislative histmy 

of clauses (A) and (B), which were added by the HMTUSA, leave no doubt that Congress 

adopted a new definition of the te1m "lmoV~ingly" for the specific purpose of prohibiting the 

Government from imposing a civil penaliy in a case involving transpmtation of hazardous 

mate1ials unless it can show that the Respondent had actual knowledge that its act or omission 

violated the HMRs or that its noncompliance resulted from some specific act of negligence on 

the part of the Respondent. 

Accordingly, the Complaint fails to state a violation of the federal hazardous mate1ials 

transpmtation statute or regulations and must be dismissed for insufficiency pursuant to Rule 

218, 14 C.F.R. § 13.218(f)(l). 

2 
Respondent's Motion to Dismiss 

Motion to Dismiss for Asserting a Claim About Which the Government Failed to Give Timely 

Notice 

As noted above, Regional Counsel asserts, among other claims, that Respondent "violated the ... 

hazardous materials regulations" because it "failed to ensure that [the bottle of lye was] ... 

packaged with absorbent materials .... " The HMRs in1posed no such requirement on the 

shipment at issue in this case, but even if one were to assume that there was a requirement for 

packaging the subject linllted quantity of lye with absorbent materials, Regional Counsel was 

obligated to give timely notice that the Government planned to base its Complaint on such a 

claim. 

FAA served a Notice of Proposed Civil Penalty ("the Notice") on July 3, 2013. During an 

Infonnal Conference, Respondent pointed out to Regional Counsel that the Notice was ex post 

facto, based almost entirely on HlVIRs that were not in effect in July, 2011, when Fisher shipped 

the subject package. The Notice contained no allegation whatsoever that Respondent was 

obligated to include "absorbent materials" or that Fisher failed to do so when it packaged the lye. 

In fact, this Notice did not even mention "absorbent materials." The first Notice of this claim 

was served not within two years, as required, but more than three years after the alleged 

incident, in FAA's Amended Notice ofProposed Civil Penalty ("the Amended Notice") dated 

July 24, 2014. Amended Notice~ f. 

Rule 208( d)(2) ofF AA's Rules provides, in pertinent part, that the judge "may dismiss the 

complaint or that part of the complaint alleging a violation that occurred more than nvo years 

before an agency attorney issued the notice of proposed civil penalty" to the respondent "[i]f the 

agency fails to show good cause for any delay .... " (Emphasis supplied.) 

There is no excuse or other good cause for Regional Counsel to keep Respondent in the dark for 

more than three years about the Agency's intended allegations. To reward Regional Counsel's 

failure to give timely notice by allowing this case to proceed would defeat the stated purposes 

and policies of Rule 208, grossly prejudice Respondent's opportunity to defend itself and 

constitute a denial of Respondent's due process rights under the U.S. Constitution. 

WHEREFORE, Respondent respectfully moves to dismiss the Complaint on the following two 

independent grounds: first, for insufficiency pursuant to Rule 218, 14 C.F.R. § l3.218(f)(l); 

and, second, to dismiss the Complaint for violating Rule 208 pursuant to 14 C.F.R. § 13.208(d). 

Even if the Complaint is not dismissed outright on account of Regional Counsel's violation of 

Rule 208, that portion of the Complaint alleging a failure by Respondent to include "absorbent 

materials" in the packaging for the subject materials (i.e., all of Complaint~ l O.c.) should be 

stricken, as alternatively provided in Rule 208( d). 

3 
Respondent's Motion to Dismiss 

Respondent recognizes the importance of the issues presented in this case to hazardous materials 

civil penalty cases in general and respectfully requests an opportunity to present oral argument in 

person on these motions. 

Dated: June 23, 2015 

Vienna, VA 22180 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, lnc., and 

Fisher Scientific Co., LLC 

4 
Exhibit 3 
U.S. DEP ARTJVillNT OF TRAl'TSPOR'fATION 

OFFICE OF HEARINGS 

W A.ll!!.Il\fGTON, DC 

REt::Ei\lE:D 

FEDERAL A V1ATION ADlVIINISTRATION, } 

Complainant, 

FISHER SCIENTIFIC COIVW Al'H', LLC, 

Respondent. 

} 

} 

} 

} 

} 

} 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAl\-2015-1321 

(Civil Penalty Action) 

Judge Goodwin 

RESPONDENT'S OPPOSITION TO 

COl\iiPLMNANT'S MOTION FOR EXTENSION 

Respondent Fisher Scientific Company, LLC, (hereinafter referred to as "Fisher") moved on 

June 23, 2015, to dismiss the Complaint in the above-captioned civil penalty proceeding because 

the Complaint fails to state a "knowing" violation for v>~hich a civil penal"Ly can be imposed and 

included allegations that were out-of-time and in violation of the Federal Aviation 

Administration's (hereinafter "F-1\Pc's" or "the Agency's") Rules of Practice ("Rules"). Instead 

of filing a timely response permitted by Rule l3.218(d), FAA's Southem Regional Counsel 

("Regional Cou.nsel") moved for an "Extention [sic, Extension] to File Response." Regional 

Counsel failed even to allege the presence of any grmmds to grant such a motion cognizable 

under Rule 13 .2l3(b) and otherwise failed to adhere to other applicable Rules. Accordingly, 

Complainant's Motion CfuJilOt lawfully be granted fu"l.d Regional Counsel must be considered to 

have waived FAA's opportunity to respond to Respondent's Motions to Dismiss. 

Rule 13.213(b) is clear. As with any other party, an FAA. "motion for an extension of time" 

must be filed with the judge "not later thau 7 days before" a response to a Respondent's vvritten 

motion "is due." Regional Counsel filed Fi\..i'c's motion for extension exactly zero days before 

the response was due. A judge has authority essentially to waive this seven-day re<Juirement 

only if "good cause for the late i:!ling is shown." Nowhere in Regional Counsel's Motion is there 

so much as a naked assertion that F A.A. had "good cause" to ftle zero days ahead of the due date 

instead of seven days ahead, as unequivocally required under the Rules. 

In any case, the Rules allow a judge to gra.11t an ex-tension of time to respond to a Motion to 

Dismiss only "if good cause for the extension is shoiNn." Once again, Regional Cmmsel failed 
Respondent's Opposition to Motion for Extension 

even to include so much as a declarative statement that such grounds exist. The Motion states 

that FAA desires "an extension in order to effectively respond [sic]." It does not even suggest 

there are any special circumstances or any other reasons whatsoever to conclude that the time 

otherwise allowed by the Rules was inadequate. Absent those circumstances, the Motion for 

Extension would have failed even if it had been lli11ely flied. 

Regional Counsel goes on to claim that Fisher will not be "prejudiced by an extension." This 

statement is false but, even if it were true, it does not constitute "good cause" for pem1itting FAA 

to ignore the seven-day advance filing rule for its Motion for E1.1:ension or the 1 0-day rule for 

filing FAA's response to Respondent's Motion to Dismiss. Rule 13.213 (b) is meaningless if 

Regional Colmsel can avoid it without making any pretense of an affirmative sho-wing why the 

requested extension is necessary. 

Regional Counsel's Motion is merely the latest example of how FAA's handling of this matter 

has prejudiced Fisher's ability to defend against the Complaint. The alleged incident occunec! in 

July, 2011. FA..A did not file any Notice in the mattenmtil July, 2013. That Notice made no 

allegation whatsoever that Fisher failed to employ a particular type of packaging product. FAA 

filed another Notice in July, 2014, more than three years after the alleged incident, which is 

based almost entirely on the previously missing allegation about packaging. FAA then waited 

until June, 2015- almost four years after the event-to file its Complaint. When Fisher moved 

to dismiss the Complaint in pmt because ofF Aic' s dilatory approach to the case, Regional 

Cmmsel's only response has been to seek an exl:ension to August 3, 2015, a elate that is beyond 

four years after the event. 

Mea11while, FAA has overseen or permitted the destruction of crucial evidence. If this case 

eventually goes to a hearing, witnesses on both sides potentially will be required to rely on 

nothing more than faded recollections. 

\lr;:'-l:EREFORE, Respondent prays that Regional Counsel's Motion for Extension be DENIED. 

Dated: July 7 ... 2015 Res~ec . kly':\lCirnittec! .. / I 1'\"\ ·-1 

' · .. Jl' '--'[\' ;, \ :;_/,; Jll 1/ 

' irl·'" ui· 

-...., __ -- -ff.. t/ 1 /'l' j 

Jen-y \y: Cox,~ Esq .. / 

272~jJallows Rc!., Suite 40 l 

Vienna, VA 22180 

(email)· 

(tel) 703-757-5866 

Counsel for Them1o Fisher Scientific, Inc., anc! 

Fisher Scientific Co., LLC 

2 
Exhibit 4 
In The Matter Of: 

SERVED: April6, 2016 

U.S. DEPARTJ\tlENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2015-1321 

Fisher Scientific Company, LLC 

) 

) 

) 

) 

) 

Case No. 201180700457 

Respondent 

ORDER DIRECTING THE P ARHES TO MEET AND CONFER REGARDING 

UHGAHON AND SCHEDULING ISSUES 

The above captioned case was reassigned to the undersigned judge on March 24,2016. By 

order of the Chief Administrative Law Judge, any previously established date for a prehearing 

conference or trial was suspended. Those dates are now vacated and there is a need to establish a 

new litigation schedule for this case. To assist the undersigned judge, the parties should meet 

and confer to propose a mutually agreeable schedule. 

An administrative law judge may hold conferences to, among other things, "settle [or] 

simplify the issues by consent of the parties." 1 Pursuant to 14 C.F.R. § 13.205(a)(l) and (7), it is 

hereby ORDERED: 

1. The parties shall privately conduct an informal conference to meaningfully discuss 

litigation issues and proposed scheduling. 

2. The parties shall draft a joint report providing: 

a. a suggested venue, 

b. a proposed schedule for the completion of discovery (or an indication that 

discovery is complete), 

c. a list of any pending motions.that have been previously filed but have yet to be 

ruled upon, 

d. a proposed date for a telephonic prehearing conference with the undersigned 

judge, 

1 14 C.F.R. § 13.205. 
e. a proposed due date for the filing of any prehearing motions (including a 

proposed date for a telephonic hearing on any filed motions, if so desired), and 

f. proposed hearing dates. The parties should provide at least three alternative dates 

on which the hearing may be h.eld that are acceptable to all parties. 

3. In addition to filing the report with the Federal Aviation Administration Hearing Docket 

Clerk in accordance with 14 C.F.R. § 13.210, the parties shall submit the report to the 

undersigned judge at the Office of Hearings by fax, express carrier, or personal delivery 

no later than 30 calendar days after the date of service of this order. 

Administrative Law Judge 

Attachment: Service List 

2 
Exhibit 5 
U.S. IllEJl'ARTlo/KENT OF TJRANSJl'ORTATION 

OFFICE OF HEAR.a"NGS 

WASJRfifNGTON, DC 

FEDERr'U. AVIATION ADJYllNJI§'IJP'..ATION, } 

Complainant, } 

} 

~ } 

} 

JFJ[§lFillii:R SOJEN'UFKIC OOMJl> ANY, JLJLIC, ) 

Respondent. } 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. F.~-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

REPORT OF FISHER SCKENTKFJIC ][N RESPONSE TO 

ORDER SERVEID AJI"Rll, 6, 2(Jl6, 

AND 

MOHON TO SANCTION FA_A'§ NONCOivWUANCE 

By Order entered Ap1il6, 2016, Judge Rawald directed Complainant, the Southern Regional 

Counsel of the Federal Aviation Administration (hereinafter referred to as "FAA") and 

Respondent Fisher Scientific Company, LLC (hereinafter "Fisher"), to file a Joint Report 

addressing certain pre-hearing matters that were listed in the Order, including "a list of any 

pending motions that have been previously filed but have yet to be ruled upon." 

Fisher regrets to report that FAA counsel essentialiy went "AWOL" and thwarted Fisher's 

diligent eftorts to respond to the Order with a Joint Report. Fisher's undersigned counsel 

telephoned the FA_A. attorney identified on the service list {N"".!r. Vines) on April IS, 2016. Mr. 

Vines did not answer his telephone, so Fisher's counsel left a voicemail stating that the call was 

in reference to the April 6 Order. Mr. Vines never returned the call. On April 18, the 

undersigned counsel emailed Nir. Vines, requesting a response to the April 15 voicemail. On 

April 19, Mr. Vines responded that a different FAA attorney was handling the case, even though 

FAA never updated the service list. 

On April 20, Ms. Michelle Harper phoned to say she was the attorney responsible for FAA's 

compliance with the Order. She asked Fisher's counsel to prepare a draft Joint Report, which the 

undersigned emailed to her a few minutes later. Fisher requested that she either concur vvith the 

draft and sign it or suggest any edits she thought appropriate. Ms. Harper did neither. 
Report of Fisher Scientific 

A week later, on April27, the undersigned phoned Ms. Harper but, once again, she did not 

answer her telephone. Fisher's counsel left a voicemail reminding her that Fisher was 

determined to comply with the Order but- without any response from her- it would be 

impossible to file the required Joint Report. Ms. Ha.t]Jer never responded to the voicemail. On 

April 29 -the deadline for finalizing and mailing the Joint Report- the undersigned telephoned 

Ms. Harper again, but she did not answer her telephone. Fisher's counsel indicated in a voice 

mail that ifF A.A. continued to ignore the proposed draft of the Joint Report, Fisher would have 

no choice but to withdraw it and file its own U11ilateral response to the Order. Ms. Harper did not 

return the call or otherwise respond. 

F A..A's apparent disregard of the April 6 Order is just the latest chapter in a five-year histor-y of 

the Office of Southern Regional Counsel dragging its feet and utterly ignoring applicable laws 

and Rules of Practice. 

This case arises from an alleged incident that occurred five years ago, on July 21, 2011. FAA 

waited until days before t.he statute of limitations expired and filed a Notice ofProposed Civil 

Penalty in July, 2013. ASter Fisher pointed out that the Notice was based on regulator-y 

requirements that were not in effect in 2011, FAA filed an Amended Notice on July 24,2014, 

more than three years after the alleged incident and more than one year after the statute of 

limitations expired. 

F LA waited almost another year, until June, 2015, to file its Complaint. On June 23, 2015, 

Respondent Fisher filed a Motion to Dismiss the Complaint for legal insufficiency and for being 

bmTed by the statute oflimitations. The FAA's own Rules of Practice allowed FAA 10 days to 

oppose Fisher's Motion to Dismiss, but the agency did not file its Memorandum in Opposition 

until August 17, 2015, almost two mont..hs after it was due. Fisher's Motion to Dismiss has been 

pending for nearly a year. 

The most appropriate way to sanction such egregiously dilatory conduct and get tins ancient case 

off the docket would be to order Southern Regional Counsel to SHOW CAUSE why dismissal 

should not be ordered on one or more of the following grounds: 

1. F Ll\.'s failure to comply with the April 6, 2016, Order. 

2. FA_A's default in failing to file a timely opposition to Respondent's June 23, 2015, 

Motion to Dismiss. (No extension was permitted under FAA's Rules of Practice for the 

reasons stated in Respondent's Opposition to FAA's Motion for Extension.) 

3. FAA's decision to wait more than three years after tl1e alleged incident and more than a 

year after the statute oflimitations expired to lodge crucial allegations in the .A .. rnended 

Notice. (Respondent's Memorandum in Support and its December21, 2015, Reply to 

FAA's Memorandu..m in Opposition, an additional copy of which is attached, explain in 

detail why the case is barred as out-of-time.) 

2 
Report of Fisher Sclentijic 

4. F!.cA's failure to state a legaily sufficient claim, as explained in Respondent's abovereferenced Memorandum in Support and its Reply to FAA's Memorandum. 

WHEREFORE, Respondent respectfully requests the Judge to command Agency respect for his 

Orders fuid for the substantive and procedural laws underlying the above-captioned case by 

DISMISSii.'TGwith prejudice FAA's Complaint. 

Respondent reiterates its request for in-person oral argument on the issues presented by its 

pending motions. 

Dated: April30, 2016 

Respectfully submitted, 

i ;',_ 

··.),; . .. I . -~., . !/;) ~ j 

Jerry vlcox, Esq. 

2050 Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

(em ail) •i::2L· cj;:&l£.i;t~:.GL~\\':'£2}2LD,;:2z 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

3 
Exhibit 6 
In The Matter Of: 

U.S. DEPARTMENT OF 'L4NSPORTATION 

OFFICE OF HE.ARII\JGS 

WASHINGTON, DC 

Docket No. FAA-2015-1321 

Fisher Scientific Company, LLC 

) 

) 

) 

) Case No. 201180700457 

Respondent ) 

ORDER 'JI"O SHOW CAUSE AND PROVmE REQUESTED KNFOR.!""\H1lON 

On Aptil 6, 20 16, the undersigned judge issued an Order Directing the Parties to Meet and 

Confer Regarding Litigation and Scheduling Issues in the above captioned case. The order 

required, inter alia, the parties to submit a joint report to the undersigned judge within 30 days of 

that order. 

On April30, 2016, the Respondent filed a unilateral report, stating that his attempts to meet 

and confer with the Complainant had failed. 1 

The Complan1ant failed to submit a repott or request for additional ti.Jne before the deadline.2 

ln accordance with 14 C.F .R. § l3 .205(a)(6), an administrative iaw judge is empowered to 

regulate the comse of a hearing. As previously noted by the F i'.A Administrator: 

[t]he Administrator expects that the parties v.~ll comply with orders issued by an ALJ during the 

he-aring stage of a proceeding. Ignoring an ALJ's orders cannot be cmmtenanced in an orderly 

system of adjudication.3 

Tl1e pmties m·e therefore reminded that failure to follow the tmdersigned administrative law 

judge's orders without good cause may result in sanctions4 Moreover. continued failure to 

1 Respondent failed. however. to provide all the information requested in the April 6, 20 I 6 Meet and Confer Order. 2 Counsel for the Complainant filed a notice of appearance on May 10,2016, but failed to include the information 

required by the undersigned judge's April 6, 2016 !Vleet and Confer Order or offer a response to Respondem' s 

assertions within his April 30: 2016 report. Notably, the counsel making her appearance was the. same person 

Respondent's counsel had cmrcsponded with regarding this matter as early as April20~ 2016. This counsel w~s 

therefore assigned to this matter well before the deadline for filing a response to the April 6, 20 16 Meet and Confer 

Order. 

3 American Airlr"nes, Inc., FAA Order No. 2002-15~ at 9 (May 20, 2002). 4 See id. (''Parties who disregard the ALrs orders do so at their O\Vl1 peril because the Administrator on appeal ··Nill 

uphold auy re:J>onable sanctions permitted by tbe Rules o!Pracdce that the ALJ imposes against a party for that 

behavior."). 

·-··:o::< 
pmtkipate in the proceedings as clirected by tlle undersigned judge may be deemed a 

constructive withdrawal of the request for hearing or complaint by the party demonstrating such 

a lack of interest in participating in these proceedings.' 

Pmsuant to 14 C.F.R. § l3.205(a)(l), (6), and (7), it is hereby ORDEREil: 

1. No later than June 1, 2!Wi, the Respondent shall file a report including all of the 

infmmation requested in the Order Directing the Parties to Meet and Confer Regarding 

Litigation and Scheduling Issues. 

2. No later than June 1, 2016, the Complainant shall file a statement explaining the cause of 

their failure to comply with the Order Directing the Parties to Meet and Confer Regarding 

Litigation and Scheduling Issues. 

3. The Complainant shall include in their statement the in:tommtion requested in the Order 

Directing the Parties to Meet and Confer Regarding Litigation and Scheduling Issues. 

4. If the Complainant fails to file this statement by the above deadline, the undersigned 

judge may issue a subsequent order finding the Complainant has construclively 

'l;vitbdrav.m from these proceedings and. pursuant to 14 C.F.R. § 13.215, dismiss the case 

with prejudice. 

Attachment: Service List 

DOUGLAS M. RA WALD 

Administrative Law Judge 

'See. e.g. IAL Power Supptc, Docket No. CPOl SOOO 15 (FAA Aug. 7, 2001) (ALJ constmed Respondent's silence 

ns a constmctive wirlldrawal of request for a heming), appeal dismissed, F A.A. Order No. 2002-1 0 (Apr. 17, 2001); 

B!ankson, Docket No. CP97EA0024 (Fi'A Sep. 11, 1997) (ALJ found failure to respond to previous orders 

constimred consn·uctive withdrawal). ~([d, FAA Order No. 98-21 (Oct. 9, 1998). See also Instead Balloon Sen•ices, 

FAA. Order No. 1998-23, at3 ('Nov.24, 1998) (affirming ALrs decision to find con-stmctive withdrawal when a 

party failed to appear at the 11earing \Vit110ut good cause); Apollo A & HS Company, FAA Order No. 20 11-4~ at 4 

0 an. i 4, 20 ll) ("Apollo's failure to appear at the he~ring and to pursue irs request fur hearing without good cause 

con::;tituted a consh·uct1ve \vithdrawat of jts requesr for hearing.''). 
Exhibit 7 
UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

FISHER SCIENTIFIC LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Douglas M. Rawald 

COMPLAliNANl''§ RESPONSE 

1'0 SHOW CAUSE Oll.IDER 

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

to the Order to Show Cause and Provide the Requested Information served May 17, 2016, 

and states the following: 

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

April 19,2016, and agreed to "meet" April 20,2016 at II 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 undersigned 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 April 20,2016. 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. Complain.ant submits Respondent's motion for sanctions is disingenuous on its 

face. The parties did indeed meet and confer on April 20, 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 unmeritorious is Respondent's assertion that the undersigned went 

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

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 ai1d 

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 mistruths. 

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 31" day of May, 2016. 

~~d. £/'~ F /h!711.f·/Js ;1-f/,../ley 

r 

ANDREA MICHELLE HARPER 

Senior Attorney 

Office of the Chief Counsel 

Enforcement Division, Southern Team 

2 
Exhibit 8 
U.S. llllEJP' AR'Il\l.ii:EN'I OF TI.ANSJPOR'IA 'IKON 

OlFJF1CE OlF n-u f;,AJRJ!NGS 

WASJBITNGTON, l!llC 

FEDERAL A VIAHON Al!llMINISTRA'fliON, } 

Complainant, } In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FA..A.-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

} 

v. } 

} 

HSHJ!£RSCKENTIFllC OOMJ'Al\TY, LLC, } 

Respondent. } 

RESPONl!llEN'I'S RElf'ORT liN RESPONSE 

TO ORDER ISSUED J Vl'TE 2, 2016, 

TO PROVIDE REQUESTED INFORI11l!ATKON 

AV'TD 

REl'LY TO COi'J.!Jl'LAllNAN'I'S RESPONSE TO SHOW-CAJITSE ORDER 

][§SUEID lo/if_AY 17, 2~H6 

Historv of the Proceedings 

The Federal Aviation Administration's Southern Regional Counsel ("Regional Counsel" or 

"F A_A.") seeks a $5,850 fine relating to a small shipment of lye five years ago. Respondent 

Fisher Scientific Company ("Fisher") moved to dismiss the case for several reasons, including 

FA ..A's failure to explain how the shipment could possibly have involved any lmo1Ning violation 

of the Hazardous Materials Regulations ("HMRs"). 

Fisher participated in two "informal conferences" ("ICs") with Regional Counsel. During the 

first IC, on July 16,2014, Fisher explained that the boilerplate Notice of Proposed Civil Penalty 

("NO PCP") that Regional Counsel served July 3, 2013, inciuded downright bizarre factual 

allegations and was based entirely on ]:-':;:JV[Rs that were notin effect on July 21, 2011, the date of 

the alleged incident. More specifically, Fisher pointed out to Regional Counsel during the 2013 

IC that the volume of lye being shipped (just one liter) was so small, the shipment was a 

"limited quantity" ("LQ") that was exempt from certain packaging and other requirements that 

would othervrise have applied. Regional Counsel wrote the NOPCP in 2013, after the ma.ximum 

volume for an LQ of!ye decreased to one-half liter, but the change in the HI'vffis was not and 

could not be retroactive to a shipment in 2011. 

More than a year later, on July 24, 2014, Regional Counsel served an Amended Notice of 

Proposed Civil Penalty ("A_WOPCP") that dropped allegations in the first Notice but added a 

' .. -_. 
Repmt and REp{~' of Respondent Fislaer Scientific 

completely new claim that, when Fisher prepared the subject shipment, it was somehow required 

to stuff the packaging with "absorbent material." Nine months later, on April 22,2015, Regional 

Counsel convened another IC with Fisher's senior in-house counsel and top hazardous materials 

transportation managers on the line. Respondent's counsel pointed out that, in addition to 

relying on .HMRs that were not in effect at the time of the alleged incident, this brand-new claim 

was time-barred because it was lodged more than a year after the applicable two-year statute of 

limitations passed. Respondent's counsel also asked then-Regional Counsel of record, Will 

Vines, Esq., to explain why FAA refused to accept that the LQ Exemption covered the subject 

shipment. Mr. Vines stammered for half a minute, then abruptly terminated the conversation 

without offering an answer. 

Regional Counsel served its Complaint in mid-June, 2015. Respondent promptly moved for 

dismissal. 

Judge Rawald's April 6, 2016, Order Directing the Parties to Meet and Confer Regarding 

Litigation and Scheduling Issues 

After the two ICs, Counsel for the parties had no other communication until Judge Rawald issued 

the April 6 Order. Fisher had to work hard to initiate contact. The u.ndersigned phoned il!lr. 

Vines on April 15 and left a voicemail specifically referencing the April 6 Order. Mr. Vines 

never returned the call. The undersigned then emailed .i'v1r. Vines on April 18. The following 

day, JVJr. Vines advised by email that a different FAA attorney, whom he identified as Micheile 

Harper, was handling the case for Complainant. lV'J.S. Harper had not entered an appearance in 

the matter but she phoned Respondent's counsel on April20. 

Telephone company records show that the entire April 20 conversation lasted 20 minutes 

(Attachment l }. It covered the following topics: (1) personal introductions; (2) Judge Rawald' s 

April 6 Order; (3) the content of the Joint Report to be filed in response to the April 6 Order; (4) 

Respondent's Motion to Dismiss the Complaint; and (5) Respondent's request to meet with 

FAA's newly assigned counsel to hear whether she, unlike Ivli. Vines, could explain why FA ..A 

contends that the subject shipment did not qualify for the LQ Exemption. 

Topic 1 consumed about five minutes of the conversation. On Topic 2, counsel mutually agreed 

that it was impossible to lc_rrow whether any discovery or hearing would be needed, much less to 

propose dates for such additional proceedings, because Fisher's Motion to Dismiss would be 

dispositive of the entire case. OnTopk 3, Respondent's counsel agreed to prepare a draft Joint 

Report to that effect SJ.!d FA..A' s counsel agreed to review it, to offer any needed edits and sign it 

if no edits were needed. Under Tojpk 4, FlV\ asserted that the Motion to Dismiss should be 

denied; Respondent's counsel explained why the Motion to Dismiss should be granted. 

2 
Report and Rep~v of Respondent Fisher Scientific 

Approximately 18 minutes into this 20-minute conversation, Respondent's counsel brought up 

Topic 5_ That part of the conversation, which is reproduced below in its entirety and as close to 

verbatim as possible, went as follows: 

JVJR. Cox: You know, it would really be a shame to insist that the Judge must decide the 

I'Vlotion to Dismiss tmd allow the proceedings to go forw~~rd if you will hm•e no case to present 

on the merits. We asked Prill VInes nwre tlum once to e."'!:plmn why the shipment was not 

exempt undel' the Limited Quantity Exenption Can you please explain that one to me? 

Iris. HARPER (CHUCKLING): I haven't looked at that file in years. 

MR. Cox: Jl;laybe this would be a good time to do that 

Ms. HARPER: OK, l'illook wt it mad get back to yo;g in the fi;·st half of n~Yl' week 

This portion of the conversation lasted approximately two minutes. 

Immediately after the April20 conversation, Respondent's counsel sent a draft Joint Report for 

Ms. Harper's review, edits and signature. Ms. Harper failed to respond. After hearing nothing 

from FAA for another week, on April 27, the undersigned phoned Ms. Harper to urge her to sign 

or suggest changes to the proposed Joint Report_ She did not answer her phone. She did not 

return the calL Two days later, on April29 (see Attaclli-uent l, entry for two-IPinute call to 

Atlanta), as the Judge's deadline for submitting the Joint Report loomed, the undersigned 

telephoned Ms. Harper again, leaving the following voice message, reproduced here verbatim: 

IVIR. Cox: This is Jerry Cox with Thermo Fisher in DC. I sent you a dmft Joint Repm't on 

April20 lmt never heard back from yolJI. We're up again!it the deadline, so I'm going to 

withdraw the draft .Joint Report a;'ld Thamo Fisher will have to file its own Report Feel free 

to call rne -when yol/!. n:re prepared to discuss the case 

Accordingly, on April 30, Respondent filed a unilateral Report and moved for sanctions against 

FAA for ignoring the Judge's April 6 Order. FAA filed no Report of its own and ignored 

Respondent's Motion for Sanctions. 

Judge Rawald's May 17 Show Cause Order 

Regional Counsel remained AWOL until the Judge ordered FA _A to show cause why it has not 

"constructively withdrawn" its Complaint and the why the Judge should not "dismiss the case 

with prejudice." Order to Show Cause at 2. 

3 
Report and Reply of Respondalt Fisher Scientific 

In its Response to the Show Cause Order, FAA equivocated about whether Ms. Harper received 

Respondent's voice messages a;'ld argued that, even if she heard but chose to ignore them, 

Respondent could have simply indicated to the Judge that she "agreed with the position 

articulated, even without Um] signature." Complainant's Response to Show Cause Order,~~ 5 

and 6. Despite repeated efforts, however, the undersigned had no way to know whether FAA 

had even received the draft Joint Report, much less whetl-ter Ms. Harper approved it. 

FAA told the Judge that Ms. Harper and Respondent's counsel "had a lengthy phone call 

discussing the issues in the case, as well as the information required by the Order," id. 'If 2, and 

that "the parties did indeed meet and confer on April20, 2016, as required." Id. 'If 4. FAA went 

on to claim that "the parties had a thorough discussion of the underlying facts of the case," id. 

(emphasis supplied), and that Respondent's Motion for Sanctions is "filled with mistruths [sic]" 

(id' ~ 6). 

The undersigned is not entirely sure what a "mistrnth" is, but he would be willing to sign an 

affidavit that each and every averment he has made to the Judge was true and correct and in full 

compliance with Rule 11 of the Federal Rules of Civil Procedure ("FRCP") and professional 

ethics requirements relating to candor before a tribunaL It is for the Judge to determine whether 

a 20 minute phone call, only two minutes of which was devoted to the merits of the case, and 

which Complainant's counsel cut short because she hadn't bothered to read the file, was 

anything resembling a "thorough discussion." 

By contrast, it speaks volumes that Ms. Harper did not sign FAA's Response to the Show Cause 

Order. It appears to have been approved by someone else whose name is not typewritten 

anywhere on the document and who has never entered an appearance in the case. FRCP 11(a) 

explicitly requires that "every pleading ... and other paper must be signed by at least one 

attorney of record ... [and} [t}he court must strike an unsigned paper .... " FRCP 1l(b) provides 

that ''by presenting ... a pleading ... or other paper ... an attorney certifies that to the best of the 

person's knowledge ... factual contentions have evidentiary support .... " Sanctions may be 

imposed on the "attorney ... or party," FRCP 11{c). Unless F P... A recants quicldy, Respondent 

plans to move for such sanctions because Ms. Ha.-per' s statement to t.he Judge that "the pa.-ties 

did indeed meet and confer [aitd] had a thorough discussion of the underlying facts of the case 

.... "is both highly material and plainly false. 

Report to Judge Rawald in Response to the Orders to Provide Requested Information 

In his June 2 Order, Judge Rawald admonished Respondent to "file a Report including all oftl1e 

information requested in tl1e Order Directing the Parties to Meet and Confer." 

Respondent has diligently undertaken and continues to do every.hing humanly possible to 

prepare and submit a Report that would, among other objectives, lay out a "schedule for 

4 
Report anll Repfv of Respondent Fisher Scientific 

completion of discovery," proposed dates for prehearing conferences, filing of prehearing 

motions and heacing dates. Order to Meet and Confer at 1-2. Unfortunately, because FAA_ has 

steadfastly avoided meeting with Respondent or participating in any sort of substantive 

discussion- even after the undersigned made additional telephone requests to Ms. Harper on 

May 31 and June 3, Respondent can only guess what the issues would be, much less what 

discovery would be needed to address them, how long it would take to complete such discovenJ 

or what witnesses would need to be called_ 

With that said, Respondent provides below, to the greatest extent information is available at the 

moment, the following information requested by the numbered portions of the April 6 Order_ 

Respondent's responsive information is presented in italics: 

L The parties shall privately conduct a.""J infonnal conference to meaningfully discuss 

litigation issues and proposed scheduling. 

FAA rebz!i/ed multiple requests ft·om Respondent's counsel for a meeting, starting on April 15, 

2016, on the gmunds that it has been years since Regional Counsel has read the file. This has 

made it impossible for Respondent to address with FAA either litigation issues or proposed 

scheduling. 

2. The parties shall draft a Joint Report providing: 

a_ a suggested venue, 

lRES!'ONDElTf'§ REl'JLY 

Without FAA's cooperation. Respondent has no way to know what witnesses would need to be 

called or what venue would be most convenient to them. How ever, Respondent tentatively 

suggests that Washington, DC, ·would be the appropriate venue because the Judge is here, 

Respondent's counsel is here and key Fisher witnesses are in the Northeastern United States. 

b. a proposed schedule for the completion of discovery, 

RESll'ONDEN'I'§ REPLY 

Until FAA is compelled to participate zi"l the inji:Jnnal corrference referenced in Item # 1, above, it 

wili remain impossible to know what witnesses the agency intends to present, what experts, if 

any, REspondent would need to call to testifY and who possesses relevant information. The time 

5 
Report and Rep{~1 of Respondent Fisher Sde;etific 

needed to complete discove;y, of course, will depend on haw many witnesses are involved, where 

they are located, and what their schedules allaw for. Witnesses may also need additional time to 

refresh their recollections about events that occurred five years ago. Respondent would, in any 

event, require production of physical evidence related to the alleged leak. Respondent 

understands from a letter Mr. Vines sent on November 20, 2014, that FAA either destroyed the 

bottle and the packaging material, including the box in ·which it was shipped, or allowed this 

evidence to be destroyed. It may take months to determine how much of the physical evidence 

continues to exist and what, if anything, experts can deduce ji·om it. Respondent may also need 

to seek sanctions against FAA on account of such destruction of evidence. 

c. a list of any pending motions ... , 

Respondent's lidotion to Dismiss Complaintfor Insufficiency and for Complainant's Violation of 

Rule 208 was flied June 23, 20}5_ 

d. a proposed date for a telephonic prehearing conference ... , 

Respondent is, of course, willing to pcn·ticipate in a prehearing conference, by telephone or in 

person, on July 20, 2016, or nearly any other date that would suit the Judge's convenience. 

Hmvever, without more information about the issues FAA will raise, Respondent is uncertain 

what could be accomplished. 

e. a proposed date for the filing of any prehearing motions ... and 

While Respondent cannot suggest a date for filing prehearing motions, it likely >I'Oulclneed to .file 

a motion for a more definite statement before it could.file its Answer. 

f. proposed hearing dates ... acceptable to all parties. 

6 
Reporl and Rep~v of Respondent Fisher ScienVfzc 

Respondent submits that no hearing·will be needed in this case, but ifa hearing will be held it 

requests the earliest date consistent with and allowable under the lml' and FAA's Rules qf 

Practice. 

3. [service instructions] 

RESPONDENT'S REPLY 

Respondent timely served- in accordance with these instructions- the best Report it could 

muster in light of the total lack ofresponse ji-om F .&:1 to the draft Joint Report it offered 

Regional Counsel on April 20. 

Conclusion 

Respondent has no means to compel Regional Counsel to comply with the April 6 Order or to 

respond to Judge Rawald' s May 17 Show Cause Order. Fisher can...•ot provide any more 

requested information until FAA stops hiding behind the pending Motion to Dismiss. Judge 

Rawaid has offered FAA multiple opportunities to comply with his Orders but the agency still 

refuses. 

WIIEREFORE, Respondent requests that the Complaint be dismissed with prejudice. 

Dated: June 13, 2016 

Respec--k'Vll3rsuj;>~itted, -- ' ~ ~- ; -,---~-

Jerry/Vi Cox~'E-sq. 

205Cl"Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

(email) j. ,;_co;i.iJ'·~~iCG'.&•~J:;:/;~''·':2illL':.C~:'..C::Z2 

(tel) 703-757-5866 

Counsel for TI1ermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

7 

JERRY COX 

2050 JAMIESON AVE p,pr 1212 

t'ILS(Ai\!DfUA, VA 22314-6827 

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JERRY COX 

2050 JAMIESON ME APT 1212 

ALEXANDRIA, VA 22314-6827 

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Exhibit 9 
t') ~~-= (~~~ ~~ ji "\ fJJI v.::: 

1 ' l .; ~l,. •""""" 

U.S. lOJEPARTMENT OF TRANSlP'ORTAUON 

OFFJ[CE OF HEA.RJlNGS 

WASHINGTON, DC 

FEDERAL AVIAHON ADM.Ji-wlSTRAT!lON, } 

Complainant, 

V. 

FISHER SCIE!'l'fliFIC COMJP' AlW, JLLC, 

Respondent. 

} 

} 

} 

} 

l 

} 

In the Matter ofFisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

RESPONDENT'S MOUON 

TO STRIKE COMPLAINANT'S RESPONSE TO SHOW CAUSE ORDER 

AJ\T][Jl TO 

Dl.§Mli.SS THE COMJP'LMN'f AS MOOT 

Historv of the FAA's Inexcusable Delay in the Proceedings 

The Federal Aviation Adminisu·ation's Southern Regional Counsel ("Regional Counsel" or 

"FAA") seeks a $5,850 fine relating to a small shipment of lye almost 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 t.l-Ie required 

Notice (per Respondent's Motion to Dismiss Complaint for Complainant's Violation 

of Rule 208); 

3. Regional Counsel failed to file a tin1ely 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 Administr-ative 

Law Judge's April 6, 2016, Order to confer with Respondent's cotmsel 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 on May 31,2016. No 

counsel of record for FAA signed the submission, however, so it violated Rule 11 (a) of the 

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

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

FRCP ll(a), "the comi 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 w1der the five-year, govermnent-wide statute of 

limitations barring the conm1encement of any civil proceedings more than five years after the 

date the govenm1ent's claim allegedly accmed. 28 U.S.C. Sec. 2462. See also US v. Core 

Laboratories, 759 F.2d 480 (S'h Ci:r. 1985) and 3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 

1994.) 

It is undisputed that the a!ieged act at issue in this matter occtmed on July 20, 2011. Timt was 

five years and two months ago. 

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

asking the Administrative Law Judge to devote considerable tin1e and effmi in deciding motions 

to dismiss that have been pending for the last 15 months and, even ifF A.A. were to prevail on the 

motions, Regional Counsel offers the prospect of even more wasted effmi in a hea:ting FAA 

conservatively estimates would consun1e at least three full days of the Judge's time. Even if one 

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

a $5,850 civil penalty, the Government is ba:tTed by statute from btinging 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 slanlllled down the phone in mid-conversation. Ms. Harper did not retw11 the call. 

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

or all of the grounds stated above. 

Dated: September 23,2016 

./\ {:~)1 / \ d 

;Respe~~~ll~ pu@I)litted, 

' f! I I ( \ 

\ . .t !/ I i ,'1 I c 

" •I lj' I I ,,,~ ·) 

"'----.+./ / ' / i /' / "''/,-

• i j "! I . d. /W I 

Jerry ~li. C 3; .csq. / ! i I 

20;10 ]3.!11ieson Avlf., Suite 1212 

Alexandria, VA 22314 

(email)· 

(tel) 703-757-5866 

Counsel for Thenno Fisher Scientific. Inc., and 

Fisher Scientific Co., LLC 

2 
Exhibit 10 
In the Matter of: 

Fisher Scientific Company, LLC 

October 4, 2016 

Pretrial Conference d 

Condensed Transcript with Wordlllldex 

For The Record, inc. 

(301) 870-8025 - www.ftrinc.net - (800) 921-5555 
Fisher Scientific Company, LLC 

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1 (Pages 1 to 4) 
Fisher Scientific Company, LLC 

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involved is the sodium hydroxide material, the Class 8 UN 

1824, if you- if you go to the hazardous materials 

t1ble~ it \Viii tell you exactly hmv it's regulate~ so 

that-s really the e-ssence of those hvo paragraphs. 

JUDGERAWALD: Okay. And, so,lvlr. Cox, would 

you agree or disagree \Yith lVfr. Ellis? 

lVlR. COX: I'm not entirely sure what he just 

said, other than I would jtL')t point out that~ 

amended I~otice~_ 4 a.J?-d 5 c~anged. That \vas filed more 

than two years after the alleged incident. And they 

ch~mged from the original notice, to the amended notice, 

lo the complaint So I'm not sure which of those they 

(IJe saving:-- ·which one he's saving \\'as fair notice to . ~. .• ~.-~.c=~= 

Respondent that they needed to be -

JvfR_ ELLIS: The Paragraph 4 in the original 

notice \vhich --

JUDGE RAWAI.D: !Vh·. Ellis, hold on one second 

So~ ]VIr. Cox~ my question is, obviolL">ly the language in 4 

and 5 are different in the complaint than what they were 

in the original notice, 4 and 5 in the complaint mirror 

what's in the mnended notice. 

What I asked of both parties was whether the 

cha.11ges to 4- and 5, \Vere in any \Yay material such timt 

the- Respondent was put unfairly on notice, so that 1,vould 

be a Rule 208 violation. lvfr. Ellis said, no, no, no, 4 

42 

;md 5 were sin1ply mnended to make more clear what 

miginally \vas in Paragraph 4, which \Vas one sentence and 

they tmned it into tln-ee or four sentences to explain 

more about that in response to yom question at t..hc 

lnformal conference. 

And so I guess, sir, mJ' question is do you 

thinl.,: that 4 ;md 5 are actually ne\v facts or arc they 

1}-leitJy _ ill,;~il?-Jl!!l9T~ <?l~lll: _,,)u_1t' s already existent in the 

notice for proposed civil penalty from 20] 3? 

!viR. COX: Clearlv, new facts. Especially if 

you have in front of you amended notice of proposed civil 

penalty file July 24, 2014, Paragraph 4 is still talking 

about corks. This case has notillng: to do ,·vilh corks. 

JUDGERAWALD: Right Butitdidn'tmakeits 

\Yay into the complainto sir, so )'m not rroinrr to \vonv 

about il If it's uot in 1he complaint, it's not an 

issue. So it's really not an issue. 

I understand the GorenmJent can certainly drop 

things from U1e notice of proposed civil penalty and not 

make it in the eomp1ainL In facL thev dropued 

admittedly' half their >Jiolations in the complaint stage, 

so they initially alleged sL-...:: violations in 2013, in the 

complaint there's only three. ~~~~~~~~=-~-~---~,---~-

., .. ~~~-·-:so;~ob\710USi~;,-the-advocacy was effective at 

::;orne nolnt because you \\-TCre able to at least get some of 

10/4/2016 

I those violations off tl1e table here. 

2 So- okay. So that's all tl1e questions and 

3 concerns I have on the insufficiency and the 208 issue. 

4 Now. Mr. Cox has mentioned the fact that he's 

) also asked or mentioned three other bases. I'm not £Ding 

6 to take argument on thoSe i_?~e_s today. I'm recJly 

7 --roCUSed-On the 1JfoCed-liraJ. issue~ which are at 1l1e very 

8 tiueshold for issues under the regulations that go to 

9 _J_vhether the case exists or not And then ·we can ctiscuss 

10 more about the possible sanctions or ot11er things down 

ll tl1e road. ~--

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But at tllls moment I amnol going to look at 

~ 

tlu11. I want to look at these threshold issues and get 

those oul dealt wiU1.. in my opinion first That's what 

rm looking at 

So with that understanding, Mr. Cox, do you 

have ail)1hing else you want to bring up? 

lvfR COX: Judge, I would simpJv li.ke to note -

for the recorcL my objections that everything that lv1r. 

Ellis said is required unde! Rule I! to be sa:!_cken,_ 

exactly for the san1e reason tl1at t11e supposed response to 

your motion-- I'm sorry: to your order to shmr cause 

should be stricic~IL And that is going to be an 

independent issue. I guess, because the rules me really 

clear in Rule l L tl1at it has to be counsel of record. 

-+4 

The1-e's nothing in the response that- there's 

no type'''.ritten infommtion as to who signed thal supposed 

response, whe-U1er that's M-. Ellis' signature or not, I 

don't know. But there at~e a lot of factunl allegations 

made that are ju~t Dat untrue. 

. And i£J\1s. Harper is ~Ol "illing to put her 

signature on thai and risk sanction:::. for telling, as she 

calls them, mi::.truths, then I don't think that it's 

reallv rirrht for a Rcsoondent to have to deal wilh an 

atiomey who is not of record in the cas~- And I would 

QQiect to thal. 

JUDGE RAW ALD: Okay. AJ1d, Mr. Ellis, let me \ j 

tum to you. So, there is a complicating factor here. in j' i.' 

the fact that lvls. Hmper has been noticeablv absent from 

. the proceeding. She didn'tfile anvtbing in response to ·,I, 

. my initial notice requiring the pmties to meet and 

'I confer: she did not file herself the response to notice ll 

for shmv cause. vou filed Uwt for her: and she has no1 j,J 

appeared todav. 

This is a pmblem, CounseL There needs to be 1

1 

someone from 1he FAA 1\·'ho is on this case and ready to l I 

prosecute this case, because I'm proceedinrr \Yifu this 

Cf!.Se. I-m movin2: tills case forwm-d either~],Y. 1-\nd 

if the FAA '\Vants to not abandon tills case. thev need to 

assign someone to this case who is going: to be takingII 

tt 

I! 

i! I' ,I 

11 (Pages 41 to 44) 

For The Record, Inc. 
Fisher Scientific Company, LLC 

45 

JJ!rt.iu_the _case. 

2 And if Ms. Harper can ·t take pmi in the case, 

.) you need to think about -,.:rho else you want to nssign to 

4 the matter, sir. 

) iVIR. ELLIS: I hear you loud and clear, Your 

6 Honor. 

7 JUDGE R_l\ WALD: Ye~. sir. And so I would think 

8 about that fmther. 

9 And as for Jvfr. Cox's concems~ 1 wi11 tak:e them 

10 under advisement and 1'11 ccmsider ·whether or not to 

ll consider lhem. 

12 But I do appreciate eve1yone showing: up today 

13 and discu._.;;.'ling tbe">e issues, they are impmianl I 

14- \\"ill --

!5 M!Z COX: I have a qnestion, Judge. 

l6 JUDGE RAW ALD: Yes, Mr. Co~? 

17 iVIl{. COX: i\re you denying: In'{ motions? Anv of 

18 my motions to dismiss? 

19 Jl.JDGE RA Vl ALD: I have not made anv ruhnes on 

:20 ~motions at Ihis pain~ sir. So \Vhat I'm doing at the 

21 moment is I'm taking these first t\vo issues after 

22 argumGnt tmder advisemeni and I wiH work on issuing an 

23 . opinion. 

24 I \Vill then look at the other issues vou haYe 

25 raised more intensely ood decide what to do about those 

46 

Issues. 

2 I do not plan on hming argument on those 

3 issues. but if I do. upon re,-iewing them further. think 

4 additional btiefing or argument necessary, I will let the 

5 parties knmv. 

6 No. I understand your position on all three of 

7 those issues and I will look at them fm1lter and then 

8 decide \Yhat I'll do with them. I haYen't made any 

9 decision yeL Mr. Cox. in the short term 

10 iV!R. ELLIS: Your Honor? Your Honor. 1 have a 

11 question. 

l1 JUDGE R_I\WALD: Yes. 

l3 iV!R. ELLIS: Will we receiYe a copy of this 

14 transcript'/ 

!5 JUDGE RAW ALD: Well. so the transcript \\ill 

!6 come -- I think it U1en gets passed to the docket but 

17 r m not sure. But I will make sure that all parties 

18 recei\'e a copy of the transcript once ·we get one. yes. 

19 MR. ELLIS: Thank you. Your Honor. 

20 JUDGE RA WALD: Okay. Mr. Cox. so-just so 

21 you unders1ancL what I will do is I will go ahead and 

22 issue a ·written order regarding these nvo motions atone __ )0 , and then look at the other Ulree issues further. I don't 

24 think there's anything in those, despite yourconcem .. 

25 that will be worth my looking at before l dispose of 

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)0 

~-) 

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10/4/2016 

these t\vo very essential and baseline issues that ne~d to 

be dealt with. 

So, Ivir. Cox, any further questions from me? 

1YIR. COX: No. Just I \Vant to be clear that 

you're going to --it's your intention to hold in 

abeyance the molion to strike and the motions to dismiss, 

including the motion to dismiss on mootness, because of 

the five year statute of limita.tions. 

You're going to decide upon the issue about 

whether the pleaclin2. meets the sufficiencv requirements 

before vou decide whether U1e case is mool in the frrsl 

. place. 

l'v1R ELLIS: How in tl1e world 1nm!d lite- I'm 

sorry. 

-!7 

JUDGE RA. \V ALD: Yes. D1e reason why 1 'm doing 

Uwt is because first of all, you raised the issue vmy 

nxcmtly of the Government hasn~t bad a chance to brief 

it and I think also that I reallv want to deal with this 

_verv baseline issue that exists in the regulations 

there's a reason for hmi.ng a case dismissed. I mean, 

these are- these are things in the regulation that 

exist as possible reasons a complaint can be dismissed 

and responses allowed by that answer. So I 1v;mt to get 

those squared away. 

And then I will look at your ne\:o.' issue you've 

~0 ,Q 

raised_ and., if necessary, ask for briefing ti·om the 

Respondent -- or, e~cuse me~ the Complainant to respond 

to what you raised there, as far as the three or the fixe 

:year statu teo sir. 

tAR. COX: As long as ltmderstand. Thank you. 

J\IDGE Rl\ W ALD: OkaY. And so, lvlr. Ellis, just 

so you understand, tvir. Cox did file something last ·week, 

raising the fact that there are sGveral other issues he 

thinks that Lhe case needed to be dismissed because of · · 

one of which is a five. vear statute of limitations. (I' 

t""i;;,I .;ct5

ooia9

sFk'ftle;;';:":=;l ";yi'o-:u-;-n;-:o;:-t::;s':p;':en;:d":':m:'ni::.·'=ll::;. m~e=rc::;·~::·p,:o;.:n;::dc:li::clg"- . to that until J direct that von do in a briefing, okay, ,: -~~-"~ 

MR ELLIS: Yes, Your Honor. 

JUDGE RI\WALD: Okay. So mty oUter questions 

for me~ mr. Ellis? 

MR. ELLIS: No, Your Honor. 

JUDGE RA WALD: Okay. Last chance for anv 

questions, tvf:r_ Co:-.::. 

l.viR COX Just to note thal the niles require 

. the FAA to respond within, I thli1k" it's l 0 davs to themotion to strike. 

JUDGE RA V/ALD: 1 understand_ sir. But I do 

hDve some 11exibility as far lli' being a Judile and 

dictating how the schedule of event:5 goes. And so --

12 (Pages 45 to 48 i 

For The Record, Inc. 
Fisher Scientific Company, LLC 

5 

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!VIR_ COX: I understand. sir, but only if 

theY've asked for an extension. If you take a close look 

at the regulations, thev have to ask you for an extension 

;md state: a reason why. 

JUDGE RAW ALD: Sir~ given my current posture in 

this case, I don't want briefing on the issue~ not rig]1t 

now. So r·,\~ll look more ~tyour issue. But I am 

stating here the Government should send a brief in 

response to ·your motion to strike at the moment. 

lVlK COX: Understond. I understand.· -

MR. ELLIS: Yes, Your Honor. 

JUDGE RA \V ALD: Jillything ei<;e for us to discuss'? 

(No response.) 

JUDGE RA \V ALD: Okay. At tlris painS let's go 

ahead and- I appreciate everyone taking the time today 

and giving me some good argument on the issues. So we'll 

go ahead and go back and look at hmv \:ve're going to 

decide this case and tl1en ·we'Jllet You kno\Y -in a written 

opinion how r decide i.hese two issues and then ·what's the 

next step in this case. 

So thank you for your time and lefs go ahead 

and go off the record. Thank you. 

MR. ELLIS: Thank you, Your Honor. 

24 (\Vhereupon, al J 1:05 a.m , the bearing was 

25 concluded.) 

50 

CERTIFICATE OF REPORTER 

3 

4 I, Karen Guy, hereby certify that the foregoing 

5 proceedings \vere recorded by me via digital recording and 

6 reduced to typew1i.ting under my supen'ision; that I am 

7 neither counsel for, related to, nor employed by any of 

8 the pat1ies to the action in \Vhich these proceedings were 

9 transc1i.bed; and further, that I am not a relative or 

10 employee of any attorney or counsel employed by the 

11 parties hereto, nor .financia11y or othenvise interested 

12 in the outcome of the action. 

i3 

14 

15 

16 

17 

18 

]9 

20 

2I 

22 

23 

24 

25 

KAREN GUY 

For The Record, Inc. 

10/4/2016 

13 (Pages 49 to 50) 
Exhibit 11 
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 Rawald 

ERRATA FOR OCTOBER 4, 2016, PRETRIAL [SIC, PREHEARING] 

CONFERENCE 

1. In the title, delete "pretrial" and insert in lieu thereof "pre-hearing." 

2. The transcript does not, but should, include the undersigned's objection, just before 

10:12 a.m., to proceeding with the hearing after agency counsel of record failed to 

appear. 

3. On p. 5, line 2, delete "admit" and insert in lieu thereof "dismiss." 

4. On p. 9, line 10, delete "thoughts" and insert in lieu thereof "former boss." 

5. On p. 34, line 7, delete "from defense." 

6. On p. 37, line 12, delete "through" and insert in lieu thereof"to prove." 

7. On p. 49, between the words "should" find "send," insert the word "not." 

\ 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASIDNGTON, DC 

FEDERAL AVIATION ADMINISTRATION, } 

Complainant, } 

} 

v. } 

} 

FISHER SCIENTIFIC COMPANY, LLC, } 

Respondent. } 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. F AA-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

AMENDED BRIEF IN SUPPORT OF 

RESPONDENT'S INTERLOCUTORY APPEAL OF RIGHT 

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

(hereinafter refeJTed to as "Fisher") hereby appeals to the FAA decision-maker pursuant the 

Federal Aviation Administration Rules of Practice, 14 C.F .R. Part 13 (hereinafter "FAA Rules"), 

Rule 219(c), 14 C.F.R. § 13.219(c), to dismiss the Complaint in the above-captioned matter due 

to the failme by the assigned Administrative Law Judge, Douglas Rawald ("the ALJ"), to 

dismiss the case, as required by FAA Rule 215, after the agency attorneys constructively 

withdrew the Complaint by missing four consecutive deadlines without excuse. In support of its 

Appeal, Fisher states the following: 

QUESTION PRESENTED 

Must the Complaint in a civil penalty action be dismissed with prejudice when agency counsel, 

by consistently failing to participate in the proceedings, ignoring multiple ALJ Orders and failing 

without excuse to appear at a pre-hearing conference ordered by the ALJ, has constructively 

withdrawn the Complaint? 
PURPOSE AND STANDARD OF REVIEW FOR THE APPEAL 

FAA long ago established the "interlocutory appeal of right" to help the Administrator prevent 

agency counsel, a private party respondent or an ALJ from wasting public and private resources 

on administrative litigation where, as a matter oflaw, one side or the other has failed to 

participate in the proceedings or to present its case. Accordingly, when it adopted Rule 219( c) in 

1990,1 FAA decided not to depend on an ALJ to prevent needless litigation and provided, in 

pertinent part, as follows: "A party may file an interlocutory appeal ... without the consent of the 

administrative law judge ... in the case of ... (2)failure of the administrative law judge to 

dismiss the proceedings in accordance with § 13.215 .... " (Emphasis supplied.) 

The plain language of the Rule makes it clear that Respondent has presented a ripe question. The 

issue on appeal is not whether the ALJ etTed by issuing an order or making a formal ruling, but 

whether he failed to take certain action that Rule 215 requires to be taken. FAA's clear intention 

was to prevent not just parties but also an ALJ from allowing wasteful litigation to proceed. That 

is why Rule 219 also specifically provides that, when the ALJ's receives a Notice of Appeal, 

"the proceedings are stayed until the FAA decision-maker issues a decision on the interlocutory 

appeal." (Emphasis supplied.) 

Accordingly, it is up to the Administrator to review de novo and decide the answer to the legal 

question presented above. 2 

FACTS 

There is no dispute that Fisher offered a one-piece shipment containing one liter of sodium 

hydroxide solution (commonly known as "lye") by air five-and-a-half years ago, in July, 2011, 

that the package was properly declared as containing hazardous material and that it was properly 

labeled as a "limited quantity" shipment. In June, 2015, four years after the shipment, FAA's 

Southern Regional Counsel ("agency counsel") f:tled a Complaint alleging, in pertinent part, that 

the lye was packaged in some respect that violated the Hazardous Materials Regulations 

("HMRs")? 

1 Federal Aviation Administration, "Rules of Practice for FAA Civil Penalty Actions," Final Rule, 55 Fed. Reg. 

27548,27567-68 (July 3, 1990) ("Final Rule"), codified at 14 C.F.R. Part 13. Previous FAA practice, which 

allowed the govemment and not private party respondents to file interlocutory appeals, was widely criticized as 

"unfair and has the potential for abuse in unduly protracting litigation to the disadvantage of respondents." See also 

FAA, "Rules of Practice for Civil Penalty Actions,'' Notice of Proposed Rulemaking, 55 Fed. Reg. 15134, 15143 

("Proposed Rule") (Apr. 20, 1990). 1 Even on an appeal from an Initial Decision by an ALI after a hearing, the FAA decision-maker must decide for 

itself whether the ALJ followed "applicable law, precedent and public policy." FAA Rule 233(b)(2). 3 Complaint at 2 (June 4, 2015) (Exhibit 1). 

Respondent's Appeal of Right 2 
Fisher promptly moved to dismiss the Complaint based, in part, on agency counsel's failure to 

lodge at least one of the key allegations within the two-year time limit established by FAA Rule 

208.4 Agency counsel of record did not file a timely response to Respondent's Motion to 

Dismiss but the ALJ nevertheless moved the case forward. 5 

On April6, 2016, nearly a year after Respondent flied its Motion to Dismiss, the ALJ- without 

frrst deciding whether the dispositive motions resolved the case or whether Respondent would 

even be required to file an Answer- ordered the parties to meet and confer regarding litigation 

and scheduling issues and to submit a Joint Report on their meeting.6 After extraordinary efforts 

by the undersigned to get anyone in the Regional Counsel's office to return multiple phone calls 

and emails, agency counsel of record, Michelle Harper, Esq., fmally phoned to say she was 

unable to answer even the most basic questions about the substance of the case because she had 

not looked at the file in years. She promised to review the file the following week and asked the 

undersigned to prepare a Joint Repmt. Respondent i=ediately offered a draft Joint Repmt for 

her review and approval, but she never replied, despite more repeated calls from the undersigned. 

Respondent had no choice but to file a unilateral report and moved the ALJ for dismissal and 

other sanctions against agency counsel for ignoring his Order to meet and confer and for failing 

to file any report, in clear defiance of the ALJ' s demand. 7 Instead of dismissing the Complaint, 

the ALI issued a Show Cause Order that stated an unequivocal threat: the Complaint would be 

considered "constmctively withdrawn" unless agency counsel filed "a statement explaining the 

cause of their failure to comply" that "shall include ... the information requested in the Order 

directing the parties to meet and confer."8 

Despite the ALJ' s unequivocal warning, agency counsel filed no response to the Show Cause 

Order that is cognizable under the FAA Rules and never submitted anything purporting to 

provide the information to be included in the Report required by the April 6 Order. 9 Someone 

whose name is not typewritten on the document submitted a two-page purpmted third-hand 

account of a conversation between Ms. Harper and the undersigned, but the agency counsel of 

record did not sign the document. Failure to sign and thereby certify the truthfulness of the 

factual representation presented in the purported response to the Show Cause Order violated 

4 Motion to Dismiss Complaint for Violation of Rule 208 (June 23, 2015) (Exhibit 2). 

5 Agency counsel filed a late request for an extension of time -from 10 days to nearly two months- to reply 

to the Motion to Dismiss but offered no excuse for their late filing of the request and did not state any grounds 

acceptable under FAA rules for granting it. Opposition to Extension at 2 (July 7, 2015) (Exhibit 3). ln complete 

disregard of controlling Rules, the ALJ- at that time, judge Goodwin- unlawfully granted the extension. 

Respondent later withdrew the motions it filed in 2015 because, after they had languished for 16 months, other 

reasons to dismiss the Complaint arose and rendered them unnecessary. 6 See Exhibit 4. 7 Respondent's Report in Response to Order and Motion to Sanction FAA's Noncompliance (Apr. 30, 2016) 

(Exhibit 5). 8 Order to Show Cause and Provide Requested Information (May 17, 2016) (Exhibit 6). 

9 Agency counsel's purported response to the Show Cause Order is attached as Exhibit 7 to this Brief only for the 

purpose of showing that it was never signed by agency counsel of record. 

Respondent's Appeal of Right 
Federal Rule of Civil Procedure 11 (a), which provides, in pertinent part, that any unsigned 

"pleading ... and other paper must be signed by at least one attomey of record" and that failure 

to "promptly correct" an unsigned paper after the omission has been called to the party's 

attention leads to a single, mandatory sanction: "the court must strike an unsigned paper" 

(emphasis supplied). FAA Rule 207 even more explicitly bans recognition of unsigned filings. 

It provides that the "attorney of record ... shall sign each document tendered for filing with the 

hearing docket clerk, the administrative law judge, the FAA decision-maker on appeal or served 

on each patiy" (emphasis supplied). Respondent pointed out this failure and, for the third time, 

moved again for dismissal. 10 

Instead of dismissing the Complaint at that point as required by Rule 219, the ALJ ordered the 

pmiies to appear at a Pre-hearing Conference on October 4, 2016, at 10:00 a.m. The undersigned 

counsel for Respondent was present. In complete keeping with Southem Regional Counsel's 

total non-participation in prosecuting the case, agency counsel failed to appear at the hearing. 

The ALJ spent almost 15 minutes trying to get someone at the office of Southem Regional 

Counsel to answer the phone. He finally rounded up an attomey who was not counsel of record. 

The undersigned immediately objected to any hearing on the matter after agency counsel of 

record had once again constructively withdrawn the Complaintn but the ALJ, without 

explanation, insisted on proceeding. He started by asking why counsel of record, Michelle 

Harper, failed to appear and participate. The attomey said he could only speculate about the 

reasons for her nonappearance. 

12 The ALJ asked the attomey whether he was prepared to 

participate in the hearing. The attomey replied, "I =not prepared ... _,u 

Over Respondent's repeated objections, the ALJ insisted on prosecuting the matter himself 

whether FAA took part in the case or not. 14 Judge Rawald admitted there were multiple reasons 

to consider the Complaint to have been withdrawn. He noted that FAA counsel of record "has 

been noticeably absent from the proceeding. She didn't file anything in response to my initial 

notice requiring the parties to meet and confer; she did not file herself the response to notice for 

show cause; ... and she has not appeared today." Despite these serious lapses on the part of 

Regional Counsel, the ALJ essentially indicated that he intended to take over from agency 

counsel: "There needs to be someone on this case because I'm proceeding with this case, I'm 

moving this case forward either way."15 

10 See Exhibit 8. 11 Enata for Transcript of Pre-Hearing Conference ("Tr. Errata") (October 4, 2016) (Exhibit!!). 12 Transcript ofPretrial [sic, Pre-Hearing] Conference ("Tr.") (October 4, 2016) (Exhibit 10) at2-3. Under FAA 

Rule 219(d), Respondent's Appeal Brief was due within 10 days of the ALl's ruling that the case will go forward. 

The Office of Hearings never served the Transcript on Respondent, so Respondent's initial brief, filed October 13, 

2016, was based on the undersigned's notes and best recollection. 13 Id. at 3. 14 !d. at43-44. 

15 ld. at 44-45 (emphasis supplied). 

Respondent's Appeal of Right 4 
At the conclusion of the hearing, the undersigned objected once again and asked for immediate 

consideration of Respondent's motion to strike the unsigned, purported response to the show 

cause order. 16 The ALJ, contrary to FAA Rule 207, not only failed to strike the unsigned 

docun1ent, he issued an order that agency counsel not file a timely response to the Motion to 

Strike. 17 

Respondent inlmediately filed the instant Appeal. 

ARGUMENT 

I. THE CRITERIA FOR RECOGNIZING A "CONSTRUCTIVE 

WITHDRAWAL" OF A RESPONDENT'S REQUEST FOR A HEARING 

MUST BE APPLIED EQUALLY TO THE GOVERNMENT'S 

"CONSTRUCTIVE WITHDRAWAL" OF A COMPLAINT. 

The Administrative Procedure Act, 5 U.S.C. § 551 et seq., forbids FAA to adjudicate the 

imposition of a civil penalty on a private party Respondent without first affording an opportunity 

for a fair hearing on the merits of the agency's allegations. For years, private parties have 

complained that FAA's civil penalty procedures are not only unfair, but in plain violation of due 

process rights guaranteed under the Fifth Amendment to the U.S. Constitution. Historically, 

FAA applied strict standards to private parties that were not applied to government "prosecutors" 

in civil penalty cases. Private parties were required to verify interrogatory responses under oath; 

no such requirement applied to FAA agency counsel. Private parties could not file interlocutory 

appeals; only FAA counsel could. Agency counsel were free to drag cases out long enough to 

make it difficult to "defend against the FAA's allegations because documents are inadvertently 

destroyed or witnesses become unavailable due to the agency's delay .

18 

FAA's procedures also were criticized for the lack of separation between ALJs, who are 

employed by the Transportation Department, and prosecuting agency attorneys, who report to an 

"FAA decision-maker," who is supposed to render a fmal decision in an administrative appeal 

but is "basically prosecutorial in ... outlook and orientation. " 19 After judicial intervention in the 

late 1980s, FAA adopted the Rules of Practice that govern today to address criticism that the 

prior rules were "inadequate to ensure a system of adjudication that is both fair and appears 

fair."20 

16 See Exhibit 9. 

17 Tr. at 49 and Tr. Errata. 

18 See Final Rule at 27552-58; Proposed Rule at 15135-36. 

19 Final Rule at 27551. 

20 !d. at 27550. 

Respondent's Appeal of Right 5 
The outcome of the instant appeal will indicate whether FAA is actually abiding by its own 

Rules or falling back into its old ways, thereby inviting new scrutiny by Congress and the federal 

courts. The basic issue is whether agency counsel can take a "fire-and-forget" approach to 

prosecuting a civil penalty case. More specifically, denial of this appeal would establish one set 

of rules for "constructive withdrawal" of a private party Respondent's Request for a Hearing and 

a policy of not applying the same standards to agency counsel's conduct to the point of 

immunizing them against a fmding that they "constructively withdrew" a Complaint. 

Over many years, ALJs have repeatedly used the failure of a private party in a civil penalty 

proceeding to file a response to a show cause order or other required document as grounds to 

terminate the proceedings.21 More recently, Judge Rawald, the ALJ in the instant case, has made 

prolific use of constructive withdrawal, especially in connection with his April, 20 16, mass 

mailing of Orders to Meet and Confer to parties in cases on his docket. When a party, in 

defiance of the ALJ's Order to Meet and Confer, failed to communicate with opposing counsel 

and put them in the position of having to file a unilateral report, Judge Rawald repeatedly ruled 

that the party's failure to respond was, by itself, grounds to conclude that the noncompliant party 

had constructively withdrawn.22 A party's silence, too, is sufficient grounds to fmd constmctive 

withdrawal.23 He also found that a party's constmctive withdrawal occurs when it "fails to 

appear at a hearing without good cause" and such failure "shall be construed as an abandonment 

of the hearing process. "

24 Judge Rawald acknowledged that FAA Rule 215 gives him no choice 

in the matter because, when a party "withdraw[ s] a request for a hearing ... the administrative 

law judge shall dismiss the case with prejudice."25 

In every case Respondent has been able to identify, however, constructive withdrawal was 

always used against a private party Respondent and never against agency counsel. Judge 

Rawald, in particular, seems to have concluded that the government is exempt from requirements 

to participate in an administrative process that they instigated by filing a Complaint. 

ll. AGENCY COUNSEL "CONSTRUCTIVELY WITHDREW" FAA's 

COMPLAINT. 

In the cases referenced above, Judge Rawald recited the following fact pattern to justifY 

dismissal of Respondents' request for a hearing: 

21 See, e.g., Matter of Bonanza Valley Aviation. Inc., 1994 WL 16054306 (May 4, 1994) (party failed to respond to 

Order to Show Cause); Matter of Edward C. Parks, 1999 WL 33739451 (Feb. 17, 1999) (party filed no response to 

Order to Show Cause); and Matter of Butte Aviation, 2004 WL 350392 (failure to file Answer is "constructive 

withdrawal of the request for a hearing"). 22 See, e.g., Matter of Christopher McCann, 2016 WL 3662616 (June 29, 2016) ("McCann") at I, n.l and Matter of 

JXL Premium Lubricants, Inc., 2016 WL 3662615 (June 28, 20 16) ("JXL") at I, n.l. 23 McCann at 2, n.2; JXL at 1, n.2 24 McCann at 2, n.3; !XL at I, n.3 (emphasis supplied). 25 McCann at 2; !XL at 2 (emphasis supplied). 

Respondent's Appeal of Right 6 
1. Respondent requested a hearing. 

2. Respondent was served with a Meet and Confer Order and an Order to Show Cause. 

3. Respondent failed to comply with the Meet and Confer Order. 

4. Respondent was "advised in the Order to Show Cause that further failure to participate in 

the proceedings may be deemed a constructive withdrawal of the request for hearing." 

5. Respondent failed to respond to the Order to Show Cause. 

6. Respondent's "failure to participate in the proceedings ... constitutes a constructive 

withdrawal of the Respondent's request for a hearing." 

In Respondent Fisher's Appeal, the fact pattern is as follows: 

1. Complainant filed a Complaint. 

2. Complainant was served with a Meet and Confer Order and ordered to file a Joint Report. 

3. Complainant refused to comply with the Meet and Confer Order and never filed either a 

Joint Report or a Unilateral Report. 

4. Complainant was served with an Order to Show Cause and threatened with dismissal if 

agency counsel of record failed to "file a statement explaining the cause of their failure" 

and include "information requested in the Order." 

5. Complainant filed no statement explaining the cause oftheir failure or including the 

requested information. 

6. In fact, Complainant filed no cognizable response whatsoever to the Order to Show 

Cause because the document agency cotmsel submitted was not signed or certified by 

counsel of record and must be stricken from the record under FRCP ll(a) and FAA Rule 

207. 

7. Counsel of record did not even bother to appear at the Pre-Hearing Conference ordered 

for October 4, 2016. 

Certainly by the time agency counsel neglected to appear at the October 4 hearing, the ALJ was 

obligated to recognize a constructive withdrawal of the Complaint. If the FAA decision-maker 

rejects the instant Appeal and fmds that such a constant lack of participation by agency com1sel -

as enumerated by the ALJ himself6 - does not necessitate a fmding of constructive withdrawal 

of a Complaint, agency counsel may be justified in considering themselves i.J.rm1une from 

dismissal. In effect, rejection of the Appeal would establish a "one-strike-and-you're-out" rule 

for private party Respondents and a blind eye toward exactly the same conduct by the 

government. This unbalanced duality could force the FAA into federal court, where it would be 

compelled to explain how such disparate treatment comports with constitutional guarantees of 

due process. Similarly, an10ng the regulated community, this precedent surely will create the 

impression of a double standard, which would negatively affect that community's confidence in 

the FAA adjudicatory process as fair and unbiased. 

26 Tr. at 44. 

Respondent's Appeal of Right 7 
III. UPON WITHDRAWAL OF A COMPLAINT, RULE 219 REQUIRES THAT 

AN ALJ "SHALL DISMISS" THE CASE WITH PREJUDICE. 

FAA Rule 219 is uuequivocal. It specifically states that "an agency attorney may withdraw a 

complaint ... without the consent of the administrative law judge. If an agency attorney 

withdraws the complaint ... the administrative law judge shall dismiss the proceedings ... with 

prejudice." (Emphasis supplied.) 

As Pmi II explains above, agency counsel constructively withdrew their Complaint on multiple 

occasions: by failing to file a timely response to the motions to dismiss in 20 I 5; by ignoring the 

Order to Meet and Confer; by failing to file the report required in said Order; by failing to file a 

signed response to the Order to Show Cause; and, finally, by not bothering to appear at the Preconference Hearing the ALJ convened on October 4, 2016. Their withdrawal required no order, 

approval or recognition by the ALJ. The FAA decision-maker, in tum, has no choice under FAA 

Rule 215 other than to "dismiss the proceedings ... with prejudice." 

WHEREFORE, Respondent respectfully requests the agency decision-maker to immediately 

dismiss the Complaint with prejudice. 

Dated: November 25, 2016 

Respondent's Appeal of Right 

• I 

ox, Esq. j 

2050 mnieson Ave., Suite 1212 

Alexandria, VA 223 I 4 

(tel) 703-757-5866 

Couusel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

8 
CERTIFICATE OF SERVICE 

On November 25,2016, the undersigned sent by the indicated type(s) of service at least one copy 

of the foregoing Notice on each of the persons listed below. 

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

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 

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 

0 [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 

Respondent's Appeal of Right 

[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 

hJlM\. 

00 [Original+ prFee Copies 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 

00 [One Copy by U.S. Mail] 

Ryan M. Landers, Esq. 

Senior Attorney 

Enforcement Division, Southern Team 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

P.O. Box 20636 

Atlanta, GA 30320 

9 
Exhibit 1 
U.S. ID.EP ARTM.EN'f OF TRANSPOR'fATKON 

OFFliCE OF H.EA.RliNGS 

F.ElDlERAL AVIATION AIDfvlliNliSTRATION 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. F.AA Docket No. 

JUDGE NOT YET ASSIGNED 

FISHER SCIENTIFIC COMPANY, L.L.C. 

Respondent. 

CO!VIIJ'LAliNT 

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, 

pursuant to Rule 208 of the Rules of Practice (14 C.F.R. 13.208), and states as follows: 

I. 

On May 18, 2015, Respondent, Fisher Scientific Company, LLC was advised through a Final 

Notice of Proposed Civil Penalty that the FAA proposed to assess a civil penalty in the amount 

of $6,500. On June 1, 2015, the Agency Attorney received a written request for a hearing from 

the Respondent. 

II. 

1. On or about July 20, 2011, Fisher Scientific Company, L.L.C, ("Fisher") lmowingly 

offered to United Parcel Service (UPS) a one piece shipment consisting of a 

specification fiberboard box containing hazardous materials for transportation by air. 

2. The above-mentioned shipment, assigned UPS tracking number/air waybill number 

1Z9V349ll325638264, was offered by Fisher for next day air transportation to the 

consignee, Genova Diagnostics, 63 Zillicoa Street, Asheville, NC 28801. 

3. On or about July 21, 2011, ground handling personnel at the UPS sort facility 

discovered the above-mentioned shipment leaking. 

4. The above-mentioned specification fiberboard box contained a one ]-liter plastic 

bottle (with friction or screw-type cap) of "Acros Sodium Hydroxide lN Standard 

Solution." 
5. (a) "Acros Sodium Hydroxide IN Standard Solution" is classified as a hazardous 

material under the Department of Transportation Hazardous Materials Regulations 

(HMR) (49 C.F.R. § 172.101). 

(b) The proper shipping name of the material is sodium hydroxide solution. H is in 

Hazard Class 8 (Corrosive Liquid), Packing Group II, and has an assigned 

identification number ofUNI824. 

6. Further investigation showed that approximately 2 ounces of the above-described 

material had leaked into and through the fiberboard container. 

7. Fisher offered the above shipment of hazardous material for transportation by air and 

failed to use a means of containing the liquid in the form of a leakproof liner, plastic 

bag or other equally efficient means of containment. 

8. Fisher offered the shipment of hazardous materials for transportation by air and failed 

to package it so there would be no identifiable release of hazardous material to the 

environment. 

9. Fisher offered the shipment of hazardous materials for transportation by air and failed 

to ensure the closure was secure and leakproof. 

I 0. By reason of the above, Fisher violated the following Department of Transportation 

Hazardous Materials Regulations (Title 49 of the Code ofFederal Regulations): 

a. Section 173 .24(b )(I) in that Fisher failed to use a package which was 

designed, constructed, maintained, filled, its contents so limited, and closed, 

so that under conditions normally incident to transportation, there would be no 

identifiable release of hazardous material to the environment. 

b. Section 173.24(f)(l) in that Fisher failed to use a package which had closures 

so designed and closed that under conditions (including the effects of 

temperature and vibration) normally incident to transportation, (i) there would 

be no identifiable release of hazardous materials to the environment from the 

opening to which the closure was applied, and (ii) the closure would be secure 

and leakproof. 

c. Section 173.27(e) in that Fisher failed to ensure that except as otherwise 

provided in this subchapter, a package containing liquids hazardous materials 

in Class 3, 4, or 8, or Division 5.1, 5.2 or 6.1 that are packaged and offered for 

transport in glass, earthenware, plastic, or metal inner packagings were 

packaged with absorbent materials as follows: ... 

(3)When absorbent materials are required and the outer 

packaging is not liquid tight, a means of containing the liquid 

in the event of a leakage must be provided in the form of a 
leakproof liner, plastic bag or other equally efficient means of 

containment 

Pursuant to 49 U.S. C. Section 5123(a), Fisher Scientific Co., L.L.C. is subject to a civil penalty 

not lower than $250 ($450 for training-related violations), nor greater than $75,000 ($175,000 if 

death, serious illness, severe injury, or substantial property damage results), for each violation of 

the Department of Transportation Hazardous Materials Regulations. 

Under the facts and circumstances of this case, a civil penalty of $5,850 is appropriate. This 

amount includes consideration of the Respondent's timely corrective action. 

WHEREFORE, the Agency, by counsel, respectfully requests that the Administrative Law Judge 

enter an order that Respondent be assessed a civil penalty in the amount of $5,850. 

Respectfully subrhitted this 

~Lkt~: 

day of June, 2015. 

Attorney 

Office of the Regional Counsel 

PLEASE NOTE: 

Pursuant to Title 14 CFR Section l3.209(a), the Respondent is required to file a written answer 

to this Complaint, or a written Motion to Dismiss if appropriate, not later than 30 days after the 

date shown on the Certificate of Service which follows. 
Exhibit 2 
U.S. DElE' ARTMEN'f OF TRANSJE'ORTA'fl!ON 

OFFICE OF HEARl!l"JGS 

W ASIDNG'fON, DC 

FEDERAL AVIATION ADMJI.NISTRA'fl!ON, } 

Complainant, 

v. 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

FISHER SCIENTIFIC COMPANY, lLLC, 

Respondent. 

} 

} 

} 

} 

} 

} 

Judge Goodwin 

MOTIONS TO mSMISS COMrLMN'f 

FOR INSUFFICIENCY AND FOR 

COMPJLA!NANT'S Vli:OlLAUON OF RVJLE 208 

Respondent Fisher Scientific Company, LLC, a subsidiaJ.y of Thermo Fisher Scientific, Inc., 

(hereinafter referred to as "Fisher") moves to dismiss the Complaint in the above-captioned civil 

penalty proceeding on the follo-wing two independent grounds. First, the Complaint fails to state 

a "knowing" violation for which a civil penalty may be imposed. Second, by including 

allegations that were first made more than three years after the alleged incident, the Complaint 

violates Rule 208(d) of the Federal Aviation Administration's (hereinafter "FAA's" or "the 

Agency's") Rules of Practice ("Rules"). 

FAA's Southern Regional Counsel ("Regional Counsel," "the Government" or "Complainant") 

malces, among others, t-wo allegations concerning acts Fisher allegedly committed almost four 

years ago, on July 20, 2011, when Fisher shipped a single liter of a cmrosive liquid commonly 

known as lye. First, Regional Counsel alleges that Respondent "knowingly offered ... a ... 

shipment ... containing hazardous materials for transportation by air." Compl. ~ 1. Second, 

Regional Counsel claims Respondent "violated the ... hazaJ.·dous materials regulations" 

("HMRs") because it "failed to ensure that [the bottle of lye was] ... packaged with absorbent 

materials .... " Compl. ~ lO.c. 
Respondent's Ivlotion to Dismiss 

Motion to Dismiss for Insufficiency 

The Hazardous Materials Transportation Act ("HiviT A"), Pub. Law No. 93-633, 88 Stat. 2156, 

2160 (Jan. 3, 1975), codified as amended at 49 U.S. C. § 5123(a)(l) (2011 ), allows the 

Government to impose a civil penalty upon a "person who knowingly committed r:m act which is 

a violation of' the HMR.s (emphasis supplied). A later recodification made a non-substantive, 

editorial change. It reworded the sentence to say the Government may impose a civil penalty on 

a "person that knowingly violates" the HMRs. Nowhere in the Complaint does Regional 

Counsel allege that Fisher "knowingly" committed any act which is a violation of any l:i~. It 

merely states that Respondent "lmov.ingly offered" a declared shipment of hazardous materials. 

There are other, more specific allegations in the Complaint, but none of them allege a "knowing" 

violation. In the example referenced above, Regional Counsel claims Respondent ''violated" 49 

C.F.R. § 173.27(e), but there is no allegation that Fisher "knowingly" committed any act which 

violates it. 

The cited HMR applies certain packaging requirements to some hazardous materials shipments 

but not to others. In this case, the lye was a "limited quantity" shipment that was exempt from 

the specification packaging requirements and otherwise :fi.illy complied with all applicable 

HiviRs. However, even if one were to asstune that § 173 .27( e) did apply to the shipment when it 

was offered in 2011 and that Fisher failed in some respect to comply with it or any other HMR, 

the l:i"MTA's civil penalty provision, as amended by the Hazardous Materials Transportation 

Uniform Safety Act of 1990 ("HMTUSA"), Pub. L. No., 101-615, 104 Stat. 3244, 3259 (Nov. 

16, 1990), codified at49 U.S.C. § 5123(a)(l)(A) and (B) (2011), unquestionably requires the 

Agency to allege and prove that Fisher "knowingly committed an act which is a violation of' that 

or some other HMR. 

As explained in greater detail in Respondent's Memorandllill in Support of the Motions to 

Dismiss, the statutory language governing the instant civil penalty proceeding is plain and 

unambiguous. Even if there were some reason to consider it ambiguous, the legislative hist01y 

of clauses (A) and (B), which were added by the HMTUSA, leave no doubt that Congress 

adopted a new definition of the term "lmowingly" for the specific purpose of prohibiting the 

Government fi"om imposing a civil penalty in a case involving transportation of hazardous 

matetials unless it can show that the Respondent had actual knowledge that its act or omission 

violated the HMRs or that its noncompliance resulted from some specific act of negligence on 

the part of the Respondent. 

Accordingly, the Complaint fails to state a violation of the federal hazardous materials 

transportation statute or regulations and must be dismissed for insufficiency pursuant to Rule 

218, 14 C.F.R. § 13.218(1)(1). 

2 
Respondent's Motion to Dismiss 

Motion to Dismiss for Asserting a Claim About Which the Gove=ent Failed to Give Timely 

Notice 

As noted above, Regional Counsel asserts, among other claims, that Respondent "violated the ... 

hazardous materials regulations" because it "failed to ensure that [the bottle oflye was] ... 

packaged \\'ith absorbent materials .... " The HMRs imposed no such requirement on the 

shipment at issue in this case, but even if one were to assume that there was a requirement for 

packaging the subject limited quantity oflye with absorbent materials, Regional Counsel was 

obligated to give timely notice that the Gove=ent planned to base its Complaint on such a 

claim. 

FAA served a Notice of Proposed Civil Penalty ("the Notice'') on July 3, 2013. During an 

Infonnal Conference, Respondent pointed out to Regional Counsel that the Notice was ex post 

facto, based almost entirely on HJV!Rs that were not in effect in July, 2011, when Fisher shipped 

the subject package. The Notice contained no allegation whatsoever that Respondent was 

obligated to include "absorbent materials" or that Fisher failed to do so when it packaged the lye. 

In fact, this Notice did not even mention "absorbent materials." The first Notice of this claim 

was served not within two years, as required, but more than three years after the alleged 

incident. in FAA's Amended Notice of Proposed Civil Penalty ("the Amended Notice") dated 

July 24, 2014. Amended Notice '11 f. 

Rule 208( d)(2) ofF AA's Rules provides, in pertinent part, that 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 "[i]f the 

agency fails to show good cause for any delay .... "(Emphasis supplied.) 

There is no excuse or other good cause for Regional Counsel to keep Respondent in the dark for 

more than three years about the Agency's intended allegations. To reward Regional Counsel's 

failure to give timely notice by allowing this case to proceed would defeat the stated purposes 

and policies of Rule 208, grossly prejudice Respondent's opportunity to defend itself and 

constitute a denial of Respondent's due process rights under the U.S. Constitution. 

VlHEREFORE, Respondent respectfully moves to dismiss the Complaint on the following two 

independent grounds: frrst, for insufficiency pursuant to Rule 218, 14 C.F .R. § 13.218(f)(l ); 

and, second, to dismiss the Complaint for violating Rule 208 pursuant to 14 C.F.R. § l3.208(d). 

Even if the Complaint is not dismissed outright on accOtmt of Regional Counsel's violation of 

Rule 208, that portion of the Complaint alleging a failure by Respondent to include "absorbent 

materials" in the packaging for the subject materials (i.e., all of Complaint 'IJl O.c.) should be 

stricken, as alternatively provided in Rule 208( d). 

3 
Respondent's 111.otion to Dismiss 

Respondent recognizes the importance of the issues presented in this case to hazardous materials 

civil penalty cases in general and respectfully requests an opportunity to present oral argument in 

person on these motions. 

Dated: June 23,2015 

Je~ . Jzx, ' q. 

277t9 Gallows Rd., Suite 401 

Vienna. VA 22180 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

4 
Exhibit 3 
U.S. DEP ARTlvillNT OF TRANSPORTATION 

OFJF][CJE OF HEAPJNGS 

WASHINGTON, DC 

RECEI\/E[) 

FEDERAL A'VL4TION ADJVTII'IISTRATION, } 

Complainani, 

v 

FISHER SCIENTI.FIC: CO!'J:P Al'rY, LLC, 

Respondent. 

} 

} 

} 

1 

f 

} 

} 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Goodwin 

RESPONDENT'S OPPOSITION TO 

COl\lll'LMNANT'S MOTION JFOR EXTENSION 

Respondent Fisher Scientific Company, LLC, (hereinafter referred to as "Fisher") moved on 

June 23, 2015, to dismiss the Complaint in the above-captioned civil penalty proceeding because 

the Complaint fails to state a "knowing" violation for which a civil penalty can be imposed and 

included allegations that were out-of-time and in violation of the Federal Aviation 

Aclm.inistration's (hereinafter "FAA's" or"the Agency's'') Rules ofPmctice ("Rules"). Instead 

of filing a timely response permitted by Rule 13.218( d), FAA's Southem Regional Cotmsel 

("Regional Counsel") moved for an "Extention [sic, Extension] to File Response." Regional 

Counsel failed even to allege the presence of any grolllids to grant such a motion cognizable 

under Rule 13 .213(b) and othervvise tailed to adhere to other applicable Rules. Accordingly, 

Complainant's Motion cannot iawfully be granted and Regional Counsel must be considered to 

have waived FAA's opportunity to respond to Respondent's Motions to Dismiss. 

Rule l3.213(b) is clear. As vvith any other party, an FAA "motion for an exteilSion of time" 

must be filed with the judge "not later than 7 days before" a response to a Respondent's written 

motion "is due." Regional Counsel filed F Al'> .. ' s motion for ex'tension exactly zero days before 

the response was due. A judge has authority essentially to waive this seven-day requirement 

only if "good cause for the late ±!ling is shown." Nowhere in Regional Counsel's Motion is there 

so much as a naked asse1tion that F .Af, had "good cause" to file zero days ahead of the due date 

instead of seven days ahead, as unequivocally required under the Rules. 

In any case, the Rules allow a judge to grant an ex'tension of time to respond to a l'v1otion to 

Dismiss only "if good cause for the extension is shovm." Once again, Regional Counsel failed 
Respondent's Opposition to JWotionfor Ex1ension 

even to include so much as a declarative statement that such grounds exist. The Motion states 

that FAA desires "an extension in order to effectively respond [sic]." It does not even suggest 

there are any special circumstances or at<y other reasons whatsoever to conclude that the time 

otherwise allowed by the Rules was inadequate. Absent those circumstances, the Motion for 

Extension would have failed even if it had been timely filed. 

Regional Counsel goes on to claim that Fisher will not be "prejudiced by an extension." This 

statement is false but, even if it were true, it does not constitute "good cause" for pennitting FAA 

to ignore the seven-day advance filing rule for its Motion for E?.'tension or the 1 0-day mle for 

filing FA _A's response to Respondent's Motion to Dismiss. Rule 13.213 (b) is meaningless if 

Regional Counsel can avoid it without making any pretense of an affirmative showing why the 

requested exi:ension is necessary. 

Regional Counsel's Motion is merely the latest example of how FAA's handling oftllis matter 

has prejudiced Fisher's ability to defend against the Complaint. The alleged incident occmTed in 

July, 2011. FAA did not file any Notice in the matter until July, 2013. That Notice made no 

allegation whatsoever tlmt Fisher failed to employ a pa:tticula:r type of packaging product. F A.A. 

filed another Notice in July, 2014, more u1a:t1 three years after the alleged incident, which is 

based almost entirely on the previously missing allegation about packaging. FAA then waited 

until June, 2015 -almost four years after the event-to file its Complaint. When Fisher moved 

to dismiss the Complaint in pa:tt because ofF AA' s dilatory approach to the case, Regional 

Counsel's only response has been to seek an extension to August 3, 2015, a date that is beyond 

four years after the event. 

Meanwllile, FAA has overseen or pemritted the deshuction of cmcial evidence. If tlris case 

eventually goes to a hearing, witnesses on both sides potentially will be required to rely on 

noiliing more than faded recollections. 

\"1/I-IEREFORE, Respondent prays that Regional Counsel's )!lotion tor Extension be DENlED. 

Dated: July 7, 2015 

' v ' 

Jeny vvt. Cox, Esq. I 

! 

2729 Gallows Rd., Suite 401 

,; 

Vienna, VA 22180 

(email) .•....... 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

2 
Exhibit 4 
In The Matter Of: 

SERVED: April16, 20116 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2015-1321 

Fisher Scientific Company, LLC 

) 

) 

) 

) 

) 

Case No. 2011S0700457 

Respondent 

ORDER DIRECTING THE PARTIES TO MEET AND CONFER REGARDING 

LITIGATION AND SCHEDULING ISSUES 

The above captioned case was reassigned to the undersigned judge on March 24, 2016. By 

order of the Chief Administrative Law Judge, any previously established date for a prehearing 

conference or trial was suspended. Those dates are now vacated and there is a need to establish a 

new litigation schedule for this case. To assist the undersigned judge, the parties should meet 

and confer to propose a mutually agreeable schedule. 

An administrative law judge may hold conferences to, among other things, "settle [or] 

simplifY the issues by consent of the parties."1 Pursuant to 14 C.F.R. § 13.205(a)(1) and (7), it is 

hereby ORDERED: 

1. The parties shall privately conduct an informal conference to meaningfully discuss 

litigation issues and proposed scheduling. 

2. The parties shall draft a joint report providing: 

a. a suggested venue, 

b. a proposed schedule for the completion of discovery (or an indication that 

discovery is complete), 

c. a list of any pending motions.that have been previously filed but have yet to be 

ruled upon, 

d. a proposed date for a telephonic prehearing conference with the undersigned 

judge, 

1 14 C.F.R. § 13.205. 
e. a proposed due date for the filing of any prehearing motions (including a 

proposed date for a telephonic hearing on any filed motions, if so desired), and 

f. proposed hearing dates. The parties should provide at least three alternative dates 

on which the hearing may be held that are acceptable to all parties. 

3. In addition to filing the report with the Federal Aviation Administration Hearing Docket 

Clerk in accordance with 14 C.F.R. § 13.210, the parties shall submit the report to the 

undersigned judge at the Office of Hearings by fax, express canier, or personal delivery 

no later than 30 calendar days after the date of service of this order. 

Administrative Law Judge 

Attachment: Service List 

2 
Exhibit 5 
U.S. DEJPARTNIENT OF TR.tJ,.N§ll'ORTATION 

OFFJ!ClE OF HEAJ'JD'\IGS 

WAS.lBIJINGTON, DC 

FEDERAIL A VJIATION AJDll\/[JIJ'>f[§TRATION, } 

Complainant, 

v_ 

FK§HJER SCIENTIFKC COMPAJ\'Y, JLJLC, 

Respondent. 

} 

} 

} 

} 

) 

J 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA_-2015-1321 

(Civil Penalty Action) 

Judge Rawa1d 

REPORT OF JI:I][§RJER SCIENTIF][IC liN RESlP'ONSJE TO 

OPJLlER §EJRVEID AlP'ruJL 6, 21H6, 

AND 

NIOTION TO SANCTION JFP,__A'§ NONCO!VillPUANCE 

By Order entered Ap1il 6, 2016, Judge Rawald directed Complainant, the Southern Regional 

Counsel of the Federal Aviation AdmiPJstration (hereinafter referred to as "FAA") and 

Respondent Fisher Scientific Company, LLC (hereinafter "Fisher"), to file a Joint Report 

addressing certain pre-hearing matters that were listed in the Order, including "a list of any 

pending motions that have been previously filed but have yet to be ruled upon'' 

Fisher regrets to report that FAA counsel essentially went "AWOL" and thwarted Fisher's 

diligent efforts to respond to the Order with a Joint Report. Fisher's undersigned counsel 

telephoned the FAA_ attorney identified on the service list (IV!r. Vines) on Aprill5, 2016_ Mr. 

Vines did not answer his telephone, so Fisher's counsel left a voicemail stating that the call was 

in reference to the April 6 Order. Mr. Vines never returned the calL On April 18, the 

undersigned counsel emailed Mr. Vines, requesting a response to the April 15 voicemaiL On 

April 19, iVJI. Vines responded that a different FAA attorney was handling the case, even though 

FAA never updated the service list 

On April 20, Ms. Michelle Harper phoned to say she was the attorney responsible for F A,b"' s 

compliance with the Order. She asked Fisher's counsel to prepare a draft Joint Report, which the 

undersigned emailed to her a few minutes later. Fisher requested that she either concur with the 

draft and sign it or suggest any edits she thought appropriate_ Ms. Harper did neither. 
Report of Fisher Scientific 

A week later, on April 27, the undersigned phoned Ms. Harper but, once again, she did not 

answer her telephone. Fisher's counsel left a voicemail reminding her that Fisher was 

determined to com.ply with the Order but- without any response from her- it would be 

impossible to file the required Joint Report. Ms. Harper never responded to the voicemail. On 

April 29 -the deadline for finalizing and mailing the Joint Report- the undersigned telephoned 

Ms. Harper again., but she did not answer her telephone. Fisher's counsel indicated in a voice 

mail that ifF AA continued to ignore the proposed draft of the Joint Report, Fisher would have 

no choice but to withdraw it and file its own unilateral response to the Order. Ms. Harper did not 

return the call or otherwise respond. 

FAA's apparent disregard of the April6 Order is just the latest chapter in a five-year history of 

the Office of Southern Regional Counsel dragging its feet and utterly ignoring applicable laws 

and Rules of Practice. 

This case arises from an alleged incident that occurred five years ago, on July 21, 2011. FAA 

waited until days before the statute of limitations expired and filed a Notice of Proposed Civil 

Penalty in July, 2013. After Fisher pointed out that the Notice was based on regulatory 

requirements that were not in effect in 2011, FAA filed an Amended Notice on July 24,2014, 

more than fbree years after the alleged incident and more than one year a..fter the statute of 

limitations expired. 

F AP.~ waited almost arwther year, Ul'ltil June, 2015, to file its Complaint. On June 23, 2015, 

Respondent Fisher filed a Motion to Dismiss the Complaint for !ega! insufficiency and for being 

barred by the statute oflimitations. The FAA's own Rules of Practice allowed FAA 10 days to 

oppose Fisher's Motion to Dismiss, but the agency did not file its Memorandum in Opposition 

until August 17, 2015, almost two months after it was due. Fisher's Motion to Dismiss has been 

pending for nearly a year. 

The most appropriate way to sanction such egregiously dilatory conduct and get thjs fu!cient case 

off the docket would be to order Southern Regional Counsel to SHOW CAUSE why dismissal 

should not be ordered on one or more of the following grounds: 

1. F .A_A's failure to comply 'with the April 6, 2016, Order. 

2. FAA's default in failing to file a timely opposition to Respondent's June 23, 2015, 

Motion to Dismiss. (No extension was pem1itted under F A..A' s Rules of Practice for the 

reasons stated in Respondent's Opposition to FAA's Motion for Extension.) 

3. FAA's decision to wait more than three years after the alleged incident and more than a 

year after the statute of limitations expired to lodge crucial allegations in the Ainended 

Notice. (Respondent's Memorandum in Support and its December 21, 2015, Reply to 

FA..A's Memorandum in Opposition, an additional copy of which is attached, explain in 

detail why the case is barred as out-of.time.) 

2 
Report of Fisher Scientific 

4_ FAP.~'s failure to state a legally sufficient claim, as explained in Respondent's abovereferenced Memorandum in Support and its Reply to FAA's Memorandum_ 

WHEREFORE, Respondent respectfully requests the Judge to command Agency respect for his 

Orders ai1d for the substantive and procedural laws underlying the above-captioned case by 

DISMISSll\TGwith prejudice FAA's Complaint 

Respondent reiterates its request for in-person oral argument on the issues presented by its 

pending motions. 

Dated: April 30, 2016 

Respectfully submitted_, 

' ,. '- --__ ,_-___ ' ,,. '_/) 

I erry w/C~x, Esq _ 

2050 Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

(email)-;: :s-2·~~-e:-.s.;:mr?\:SJ:,o;:~·~j_u-;-_~-'2 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

3 
Exhibit 6 
In The Matter Of: 

§ERVlED: May 17,2016 

U.S. DEPARTIVIENT OF TP.ANSPORTATION 

OFFICE OF :HEA_lUNGS 

WASHINGTON, DC 

Docket No. FAA-2015-1321 

Fisher Scientific Company, LLC 

) 

) 

J 

) Case No. 201180700457 

Respondent ) 

ORDER 'fO SHOW CAUSE AND PROVIDE REQUESTED fu'\!JFORJ.VL"' HON 

On Ap1il 6, 2016, the undersigned judge issued an Order Directing the Parties to Meet and 

Confer Regarding Litigation and Scheduling Issues in the above captioned case. The order 

required, inter alia, the parties to submit a joint report to the undersigned judge within 30 days of 

that order. 

On April30, 2016, the Respondent filed a unilateral report, stating that his attempts to meet 

and confer with the Complainant had failed. 1 

The Complainant failed to submit a rep01t or request for additional time before the deadline2 

In accordance with 14 C.F.R § 13 .205( a)( 6), an adminish·ative iaw judge is empowered to 

regulate the comse of a hearing. As previously noted by the FAA Administrator: 

[t]he Administrator expects that the parties will comply with orders issued by an AU dming the 

he-aring smge uf a proceeding. Ignoring an ALJ' s orders cannot be countenanced in an orderly 

system of adjudication.3 

The pa1ties are therefore reminded that failure to follow the tmdersigned administrative law 

judge's orders without good cause may result in sanctions.4 Moreover, continued failure to 

1 Respondent f.>iled, however. to provide all the information requested in the April 6, 20 I 6 Meet and Confer Order. 1 Counsel for The Complainant tiled a notice of appearance on May 10, 2016, but !niled to include the intonnmion 

required by rhe undersigned judge's Apri\6, 2016 Meet and Confer Order or offer a response to Respondent's 

assertions within his April 3 0: 2016 report. Notably~ the counsel making her appearance \Vas the same person 

Respondent's counsel had cmwsponded with regarding this matter as early as April20, 2016. This counsel was 

therefore assigned to this matter well before Ihe deadline for filing a response to the April 6. 2016 !vleet and Confer 

Order. 

3 Amertcan Airlines, Inc., FAA Order No. 2002-15, at 9 (lvfay 20, 2D02). 

4 See jJ. C'Parties \Vho disregard the ALrs orders do so at their ow11 peril because the Administrator on appeal \Vill 

uphold any reas.ouab!e sanctions pennitted by the Rules ofrracrice that the ALJ imposes against a party for that 

behavior.''). 

::::< 
pmticipate in the proceedings as directed by the undersigned judge may be deemed a 

constructive withdrawal of the request tor hearing or complaint by the party demonstrating such 

a lack of interest in participating in these proceedings.' 

Pmsuant to 14 C.F.R. § l3.205(a)(l), (6), and 0), it is hereby ORDERED: 

1. No later than Jane 1, 2016, the Respondent shall file a report includil1g all of the 

ilifmmation requested in the Order Directing the Parties to Meet and Confer Regarding 

Litigation ancl Scheduling Issues. 

2. No later than June 1, 24ll6. the Complainant shall file a statement explail1i.ng the cause of 

their failure to comply with the Order Directing the Parties to Meet and Confer Regarding 

Litigation and Scheduling Issues. 

3. The Complainant shall include in their statement the infmmation requested in the Order 

Directing the Parties to Meet and Confer Regarding Litigation and Scheduiil1g Issues. 

4. If the Complainant fails to file this statement by the above deadline, the tmdersigned 

judge may issue a subsequent order findffig the Complamant has constructively 

withdrawn from these proceedil1gs and. pursuant to 14 C.F.R. § 13.2I5, dismiss the case 

·with prejudice. 

Attachment: Service List 

DOUGLAS M. fu.\.WALD 

AdmillistTative Law Judge 

'See. e.g.. IAL Power Suppiy, Docket No. CP01 SOOO 15 (FAA Aug. 7, 2001) (ALJ consnued Respondent's silence 

as a conshuctive withdrawal of request for a hemin g), appeal dismissed, F A.A. Order No. 2002-l 0 (Apr. 17, 2002): 

Blanks on, Docket No. CP97EA0024 (FAA Sep. 11, 1997) (ALJ found failure to respond to previous orders 

consrimted constructive withdrawal). crO'a; FAA Order No. 98-21 (Oct 9, 1998). See also Jmtead BaUoon Sen•ices, 

F.'-\A Order No. 1998-23, at 3 (Nov. 24, 1998) (af:finning ALrs decision to fmd constructive "\Vithdrawal ""vhe11 a 

party failed to appe:1r at the hearing \\rithout good cause); Apollo A & HS Company, fAA Orde.r No. 2011-4, at 4 

(Jan. 14, 20 ll) ('"Apollo's failure to appear at the hearing end to pursue its request for hearing without good cause 

constituted a constructive witbdra'ival of its request for hearing.::)_ 
Exhibit 7 
UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MA TIER OF 

FISHER SCIENTIFIC LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Douglas M. Rawald 

COMli:'LA!NAN'f'S RESPONSE 

TO SHOW CAUSE ORJ!)ER 

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

to the Order to Show Cause and Provide the Requested Information served May 17, 2016, 

and states the following: 

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

Aprill9, 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 undersigned 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 April 20,2016. 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 April 20, 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 unmeritorious 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 mistruths. 

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 31" day oflV!ay, 2016. 

~t:? ~, jld/JA.f·/;5 ;1-f/or/Je)' 

h 

ANDREA MlCHELLE HARPER 

Senior Attorney 

Office of the Chief Counsel 

Enforcement Division, Southern Team 

2 
Exhibit 8 
U.S. J!]JEJP' ARTMEN'f OF TJR,,\NSJPORTA 'UON 

OiFJFICE OlF HJEAJP',Jl\TGS 

WASJE!!:l:NGTON, J!]JC 

FEJ!]JERAL A VTlA'fli:ON AJ!]JMJN![§TRATJI:ON, } 

Complainant, } 

} 

v. J 

} 

FISHJER SCJDEN'JLWliC COMPANY, LlLC, } 

Respondent. } 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

(Civil Penalcy Action) 

Judge Rawald 

RESPONDENT'S REPORT liN RESPONSE 

TO ORJ!]JER XSSIDLK:P J1UNE 2, 21H 6, 

TO PROVIDE REQUJE§TEil JINFORWIIA'UON 

Al'Jll 

REPLY TO COi'rlli'LAJ!NAI'l'f'S RESPONSE 1'0 SHOW-CAUSE OI'illER 

llSSUEIDlYKAY 17,2016 

Historv of the Proceedings 

The Federal Aviation Administration's Southern Regional Counsel ("Regional Counsel" or 

"F A.A.") seeks a $5,850 fine relating to a small shipment oflye five years ago. Respondent 

Fisher Scientific Company ("Fisher") moved to disrniss the case for several reasons, including 

FAA's failure to explain how the shipment could possibly have involved any knowing violation 

of the Hazardous Materials Regulations ("HMRs"). 

Fisher pculicipated in two "inforn-1al conferences" ("ICs") with Regional Counsel. Dming the 

first IC, on July 16,2014, Fisher explained that the boilerplate Notice of Proposed Civil Penalty 

("NOPCP") that Regional Counsel served July 3, 2013, included downright biza.rre factual 

allegations and was based entirely on Hll/lR.s that were not in effect on July 21, 2011, the date of 

the alleged incident. More specifically, Fisher pointed out to Regional Counsel during the 2013 

IC that the volume oflye being shipped (just one liter) was so small, the shipment was a 

"limited quantity" ("LQ") that was exempt from certain packaging and other requirements that 

would otherwise have applied. Regional Counsel wrote the NO PCP in 20i3, after the maximum 

volume for an LQ of lye decreased to one-halfliter, but the change in the HI\IIRs was not and 

could not be retroactive to a shipment in 2011. 

More than a year later, on July 24, 2014, Regional Counsel served an Amended Notice of 

Proposed Civil Penalty (".A_l\fOPCP") that dropped allegations in the first Notice but added a 
Report and Rep{r of Respondent Fisher Scientific 

completely new claim that, when Fisher prepared the subject shipment, it was somehow required 

to stuff the packaging with "absorbent material." Nine months later, on April 22, 2015, Regional 

Counsel convened another IC with Fisher's senior in-house counsel and top hazardous materials 

transportation managers on the line. Respondent's counsel pointed out that, in addition to 

relying on .B.Tht!Rs that were not in effect at the time of the alleged incident, this brand-new claim 

was time-barred because it was lodged more than a year after the applicable two-year statute of 

limitations passed. Respondent's counsel also asked then-Regional Counsel of record, Will 

Vines, Esq., to explain why FAA refused to accept that the LQ Exemption covered the subject 

shipment. Mr. Vines stammered for half a minute, then abruptly terminated the conversation 

without offering an answer. 

Regional Counsel served its Complaint in mid-June, 2015. Respondent promptly moved for 

dismissal. 

Judge Rawald' s April 6, 2016, Order Directing the Parties to Meet and Confer Regarding 

Litigation and Scheduling Issues 

After the two ICs, Counsel for the parties had no other communication until Judge Rawald issued 

the April 6 Order. Fisher had to work hard to initiate contact. The w>dersigned phoned Nlr. 

Vines on April 15 and left a voicemail specifically referencing the April 6 Order. 1\!Ir. Vines 

never returned the call. The undersigned then emailed NlT. Vines on April 18. The foil owing 

day, NlT. Vines advised by email that a different FAA attorney, whom he identified as Michelle 

Harper, was handling the case for Complainant. Ms. Harper had not entered an appearance in 

t.he matter but she phoned Respondent's counsel on April 20. 

Telephone company records show that the entire April 20 conversation lasted 20 minutes 

(Attachment 1). It covered the following topics: (1) personal introductions; (2) Judge Rawald's 

April 6 Order; (3) the content of the Joint Report to be filed in response to the April 6 Order; (4) 

Respondent's Motion to Dismiss the Complaint; and ( 5) Respondent's request to meet with 

F A-A..'s newly assigned counsel to hear whetl1er she, unlike Mr. Vines, could explain why FAA. 

contends that the subject shipment did not qualifY for the LQ Exemption. 

'fopk 1 consumed about five minutes of the conversation. On 'fopk 2, counsel mutually agreed 

that it was impossible to know whether any discovery or hearing would be needed, much less to 

propose dates for such additional proceedings, because Fisher's Motion to Dismiss would be 

dispositive of the entire case. On l'o!fiic 3, Respondent's counsel agreed to prepare a draft Joint 

Report to that effect and FAA's counsel agreed to review it, to offer any needed edits m>d sign it 

if no edits were needed. Under 'fopk 4, FAA asserted that the Motion to Dismiss should be 

denied; Respondent's counsel explained why the Motion to Dismiss should be granted. 

2 
Report and Reply of Respondent Fisher Scientific 

Approximately 18 minutes into this 20-minute conversation, Respondent's counsel brought up 

Topk 5. That part of the conversation, which is reproduced below in its entirety and as close to 

verbatim as possible, went as follows: 

!viR. Cox: You hfflow, it would really be a slu;me to insist that the Judge must decide the 

!~'lotion to Dismiss aml allow the proceedings to go forward ifyou will hwe no case to present 

on the merits. We asked WW Vines nwre than once to e.v;plmn why the 3hipment was not 

exempt under the Limited Quami!J' E:'!:ernption. Can ym; please e:;:plain that one to me? 

Ms. HARPER (CHUCKLING}: Jf haven't looked at that file in years. 

!viR. Cox: k!Taybe this would be a good time to do that. 

1\lfS. HARPER: OK, Jf'lllook {It it and get back to you in the first half of next week. 

This portion of the conversation lasted approximately two minutes. 

1-nmediately after the April20 conversation, Respondent's counsel sent a draft Joint Report for 

Ms. Harper's review, edits and signature. Ms. Harper failed to respond. After hearing nothing 

from fAA for anot.'ler week, on April27, the undersigned phoned Ms. Harper to urge her to sign 

or suggest changes to the proposed Joint Report. She did not answer her phone. She did not 

return the call. Two days later, on April 29 (see Atiaclli-nent l, entiY for ivvo-winute call to 

Atlanta), as the Judge's deadline for submitting the Joint Report loomed, the undersigned 

telephoned Ms. Harper again, leaving the foilowing voice message, reproduced here verbatim: 

111R. Cox: This is Jerry Cox with Thermo Fisher in DC. I sent you a draft Joint Report on 

April 2(} but never heard backfrom you. We're up against ti2e deadline, so Jf'm going to 

withdraw the draft Joint Repo11t and Thenno Fisher will have to file its own Report. Feel fitee 

to call yne ·when you are prepared to discuss the case 

Accordingly, on April30, Respondent filed a unilateral Report and moved for sanctions against 

F p.._p._ for ignoring the Judge's April 6 Order. FAA filed no Report of its own and ignored 

Respondent's Motion for Sanctions. 

Judge Rawald' s May 17 Show Cause Order 

Regional Counsel remained AWOL until the Judge ordered FAA to show cause why it has not 

"constructively withdrawn" its Complaint and the why the Judge should not "dismiss the case 

with prejudice." Order to Show Cause at 2. 

3 
Report and Rep{v of Respondent Fisher ScientiJlc 

In its Response to the Show Cause Order, F Af." equivocated about whether Ms. Harper received 

Respondent's voice messages and argued that, even if she heard but chose to ignore them, 

Respondent could have simply indicated to the Judge that she "agreed with the position 

articulated, even without [her] signature." Complainant's Response to Show Cause Order, lflf 5 

and 6_ Despite repeated efforts, however, the undersigned had no way to know whether FAA 

had even received the draft Joint Report, much less whether Ms. Harper approved it 

FAA told the Judge that Ms. Harper and Respondent's counsel "had a lengthy phone call 

discussing the issues in the case, as well as the imormation required by the Order," id. lf 2, and 

that "the parties did indeed meet a_'ld confer on April 20, 2016, as required." I d. 'If 4. FAA went 

on to claim that"theparties had a thorough discussion of the underlying facts of the case," id_ 

(emphasis supplied), and that Respondent's Motion for Sanctions is "filled with mistmths [sic]" 

f"d ;TI 6\ ,z ,_, 11 1-

The undersigned is not entirely sure what a "mistmth" is, but he would be willing to sign an 

affidavit that each <U!d every averment he has made to the Judge was true and correct <U!d in full 

compliance with Rule 11 of the Federal Rules of Civil Procedure ("FRCP") and professional 

ethics requirements relating to candor before a tribunaL It is for the Judge to determine whether 

a 20 minute phone call, only two minutes of which was devoted to the merits of the case, and 

which Complainant's counsel cut short because she hacln't bothered to read the file, was 

anything resembling a "thorough discussion'' 

By contrast, it spealcs volumes that Ms. Harper did not sign F .AA' s Response to the Show Cause 

Order. It appears to have been approved by someone else whose name is not typewritten 

anywhere on the document and who has never entered an appearance in the case. FRCP ll(a) 

explicitly requires that "every pleading ___ and other paper must be signed by at least one 

attorney of record ___ [and] [t]he court must strike an unsigned paper ____ " FRCP ll(b) provides 

that "by presenting .. _ a pleading .. _ or other paper ___ an attorney certifies thatto the best of the 

person's ki10wledge ___ factual contentions have evidentiary support ____ " Sanctions may be 

imposed on the "attomey ___ or party," FRCP ll(c)_ Unless F ii_Puecants quicldy, Respondent 

plans to move for such sanctions because Ms. Harper's statement to the Judge that "the parties 

did indeed meet and confer [and] had a thorough discussion of the underlying facts of the case 

____ "is both highly material and plainly false. 

Report to Judge Rawald in Response to the Orders to Provide Requested Information 

In his June 2 Order, Judge Rawald admonished Respondent to "file a Report including all of the 

information requested in the Order Directing the P<U-ties to Meet 1md Confer." 

Respondent has diligently undertalcen and continues to do everything humanly possible to 

prepare and submit a Report that would, among other objectives, lay out a "schedule for 

4 
Report an!l Rep~v of Responde-Fit Fisher Scientific· 

completion of discovery," proposed dates for prehearing conferences, filing of prehearing 

motions and hearing dates. Order to Meet and Confer at 1-2. Unfortunately, because FAA has 

steadfastly avoided meeting with Respondent or participating in any sort of substantive 

discussion- even after the undersigned made additional telephone requests to Ms. Harper on 

May 31 and June 3, Respondent can only guess what the issues would be, much less what 

discovery would be needed to address them, how long it would take to complete such discovery 

or what witnesses would need to be called. 

With that said, Respondent provides below, to the greatest extent information is available at the 

moment, the folio1.0ling information requested by the numbered portions of the April 6 Order. 

Respondent's responsive information is presented in italics: 

L The parties shall privately conduct an infom1al conference to meaningfully discuss 

litigation issues and proposed scheduling. 

RJESPON])lJEN'Jl"S RJElP'lLY 

F4A rebuffed multiple requests ft·om Respondent's counsel for a meeting, sinrting on April 15, 

2016, on the grounds that it has been years since Regional Counsel has read the file. This has 

made it impossible for Respondent to address with FAA either litigation issues or proposed 

scheduling. 

RJEQUESTE][l ][1\JFI!}RJ'\IJIA TION 

2. The parties shall draft a Joint Report providing: 

a. a suggested venue, 

Without FAA's cooperation. Respondent has no way to /mow what witnesses would need to be 

called or what venue would be most convenient to them. However, Respondent tentatively 

suggests that Washington, DC, would be the appropriate venue because the Judge is here, 

Respondent's counsel is here and key Fisher witnesses cu-e in the Northeastern United States. 

b. a proposed schedule for the completion of discovery, 

Until FAA is compelled to participate in the injimnal conference referenced in Item# 1, above, it 

will remain impossible to !mow what ~witnesses the agency intenrJ.s to present, what experts, it" 

any, Respondent would need to call to testtfy and who possesses relevant information. The time 

5 
Report and Rep~v of Respondent Fisher Scienti.fic 

needed to complete discove1y, of course, will depend on how many witnesses are involved, where 

they are located, and what their schedules allow for. Witnesses may also need additional time to 

re.fi·esh their recollections about events that occurred five years ago. Respondent would, in any 

event, require production o_f physical evidence related to the alleged leak. Respondent 

understands from a letter lvfr. Vines sent on November 20, 2014, that FAA either destroyed the 

bottle and the packagtng material, including the box in·which it was shipped, or allowed this 

evidence to be destroyed. It may take months to determine how much of the physical evidence 

continues to exist and what, if anything, experts can deduce from it. Respondent may also need 

to seek sanctions against FAA on account qf such destruction of evidence. 

c. a list of any pending motions ... , 

RESPONDENT'§ REJPL Y 

Respondent's lvfotion to Dismiss Complaintfor Insufficiency and for Complainant's Violation of 

Rule 208 was .filed June 23, 2015. 

d. a proposed date for a telephonic prehearing conference ... , 

Respondeni is, ofccmrse, willing to participate in a pre hearing COI?ference, by telephone or in 

person, on July 20, 2016, or nearly any other date that would suit the Judge's convenience. 

However, without more information about the issues FAA will raise, Respondent is uncertain 

what could be accomplished. 

e. a proposed date for the filing of any prehearing motions ... and 

RlESJPONl!J~N'f'§ REJPJL Y 

ifhiie Respondent cannot suggest a date for filing prehearing motions, it likely ·would need tofile 

a motion for a more definite statement before it could file its Answer. 

f. proposed hearing dates ... acceptable to all parties. 

P..ESPONDENT' § P.EPJL Y 

5 
Report and Reply of Respondent Fisher Scientific 

Respondent submits that no hearing will be needed in this case, but ifa hearing ·will be held, it 

requests the earliest date consistent with and allowable under the lmv and FAA's Rules of' 

Practice. 

3. [service instructions] 

Respondent timely served- in accordance ·with these instructions- the best Report it could 

muster in light of the toL!!llack ofresponse from FAA to the dmft Joint Report it offered 

Regional Counsel on April 20. 

Conclusion 

Respondent has no means to compel Regional Counsel to comply with the April 6 Order or to 

respond to Judge Rawald' s May 17 Show Cause Order. Fisher cannot provide any more 

requested information until FAA stops hiding behind the pending Motion to Dismiss. Judge 

Rawald has offered F ~'LA. multiple opportunities to comply with his Orders but the agency still 

refuses. 

WI-i::EREFORE, Respondent requests that the Complaint be dismissed with prejudice . 

Dated: June 13, 2016 

.' ,. , ' / I : ·-·· 

Jerry/W. Cox; Esq. 

2050}amieson Ave., Suite 1212 

Alexandria, VA 22314 

(email).~· ·~'::c:~:'l:<i:(Qi'.S:::S•:rc:g;c£.8":';2;JC,"''""' 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

7 

JERRY COX 

2050 JANIESON AVE f'PT 1212 

ALEXANDFIIA, VA 22314-6827 

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Exhibit 9 
WAS:m:NGTON, IDC 

FEIDERAL AVIATION ADMINIS'IRAHON, } 

Complainant, 

v. 

} 

} 

} 

In the Matter ofFisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

} (Civil Penalty Action) 

FISHER SCffiNUFJ!C COMPAtTx, LLIC, 

Respondent. 

} 

} 

Judge Rawald 

RESJP'ONIDENT'S MOHON 

TO S'IruKE COMJPLMNAN'f'S RESPONSE TO SHOW CAUSE ORDER 

ANil'fO 

]JJJ[SMISS THE COMll'lLAIINT AS MOOT 

History of the FAA's Inexcusable Delav 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 almost five-and-a-half years ago. 

L-1 the 15 months since Regional Counsel filed the Complaint, Respondent Fisher Scientific 

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

L The Complaint is legally insufficient because, even if the alleged facts were assumed 

to be true, it fails to state a c !aim for civil penalties under applicable statute (per 

Respondent's Motion to Dismiss Complaint for Insufficiency); 

2. The two-yea1· statute of limitations 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); a11d 

4. Regional Counsel invited dismissal of the Complaint by ign01ing the Administrative 

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

Joint Report (Jler Fisher's Motion to Sanction F A.A' s Noncompliai1Ce ). 

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 ll(a) of the 

Federal Rules of Civil Procedure (uFRCP'} Respondent promptly called this violation to 
RespondeJlt A1otion to Strike and ta Dismiss 

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

FRCP ll(a), "the comt 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 Comtsers persistent delay and disregard of applicable IUles and statutes has also 

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

limitations baning the commencement of any civil proceedings more than five years after the 

date the govemment's claim aliegedly accrued. 28 U.S.C. Sec. 2462. See also U.S. v. Core 

Laboratories, 759 F.2d 480 (5'h Cir. 1985) and 3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 

1994.) 

It is lmdisputed 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 tin1e and effmt in deciding motions 

to dismiss t.hat have been pending for the last 15 months and, even ifF A.A. were to prevail on the 

motions, Regional Counsel offers the prospect of even more wasted effort in a hearing F A.A_ 

conservatively estimates would consun1e 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 Govemment is baned by statute from btinging allY court action to 

compel payment. 

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

whetb.er 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 retm11 the calL 

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

or all of the grounds stated above. 

Dated: September 23,2016 

Jerv/ 6-N.IccJe/hlq. / 

!/ I 

20J'O Jamieson Av~;l, Suite 1212 

Alexandria, VA 22314 

( emaii)jr:_cc;r .. 

(tel) 703-757-5866 

Counsel for Thenno Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

2 
Exhibit 10 
In the Matter of: 

Fisher Scientific Company, LLC 

October 4, 2016 

Pretrial Conference 

Condensed Transcript with Wonl Index 

For The Record, inc. 

(301) 870-8025- www.ftrinc.net- (800) 921-5555 
Fisher Scientific Company, LLC 

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app~a.ring. 

t·Jd-2':/ i.s Un':: on --

For The Record, lnc. 

i0/4/2016 

1 (Pages 1 to 4) 
Fisher Scientific Company, LLC 

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involved is the sodium hydroxide material, the Class 8 UN 

1824, if you-- if you go to the hazardous materials 

table, it \Yil1 tell you exactly how it's regulate~ so 

Umt-s really the essence of those t'\vo paragraphs. 

TLJDGERAWALD: Okay. And, so,lvlr. Cox. would 

you agree or disagree with Jvlr. Ellis? 

lVIR.. COX: I'm not entirely sure what he just 

sui~ other than I would just point out that in th~ 

amended notice, 4 and 5 changed. That \Yas filed more 

than t\vo years after ihe alleged incident. And they 

changed from the original notice, to the amended notice, 

to the complaint So I'm not sure \vhich of those they-" 

nre ~aving --which one he's sayimr \Yas fair notice to . ~--~~~~~~---'"'~-----

Respondent that they needed to be --

IVIR. ELLIS: The Paragraph 4 in 1l1e original 

no lice 'vhich --

JUDGE RAW ALD: Mr. Ellis, hold on one seconcl 

So~ lVfr. Cox~ my question is, obviously the language in 4 

and 5 are different in the complaint than what they were 

in 1l1e original notice, 4 and 5 in the complaint mirror 

what's in the amended notice. 

Vvbat I asked of both parties was whether the 

changes to 4 and 5~ '~'ere in any '''aY material such that 

the Respondent V.'as put unfairly on notice, so that v·muld 

be a Rule 208 violation. lvfr_ Ellis said, no, no, no, 4 

42 

and 5 were simply amended to make more clear what 

originally yvas in Paragraph 4, Y\'hich was one sentence and 

they tume-d it into three or t()ur ::ientences lo explain 

more about that in response to your question at the 

infmn1al conference. 

And so I guess, sir, my question is do you 

think: that4 and 5 are actually ueyv facts or are they 

:ql,~J,"~lv _!!Jal<:iry~ JUOre -~lear Yvhat' s u}ready existent in the 

~for proposed civil penalty ifom 2013? 

]V[R_ COX: Clearly, new facts. Especially if 

;(on have in front of you amended notice of proposed civil 

penalty file July 24. 2014. Param-aph 4 is still talkinQ 

about ~orks. 1lns case haS nothing to do wilh corks. 

JUDGE RAW ALD: Right. Bnt it didn "t make its 

'Yay into the complainto sir, so.I'm not 2:oinrr to 'vmn' 

about it. Ir it's not in the complaint, it's not m1 

issue. So it's really not an issue. 

lundersrand the Government can certain1y c.lrop 

things from the notice of proposed civil penalty and not 

make it in the complaint In fact, thev dropped 

admittedly half their violations in the complaint stage, _ 

so thev initially alleged sL~ violations in 2013, in the 

compiaint there,'S-o!liv tl1ree~"~-~~~-~~~~·~,~~·~~-

·~·"~---~Sl\ ob~~~~~SJ~::·fu~fidvocacy was effective at 

some noint because you were able to at least get some of 

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10/4/2016 

those violations off the table here_ 

So -- okay. So 1haf s all the questions and 

concerns I have on the insufficiency and the 208 issue. 

Now, Mr_ Cox has mentioned Lhe fact that he's 

also asked or mentioned three other bases. I'm not go in£ 

(O lake argument Oil those issues today. ]"Ill really 

focused on lhe procedural issnes. whi-ch me at 111~ vel}" 

!lueshold for issnes Jlllder the regulations that go to 

whether lhe case exists or not. And then we can discuss 

more about il1e possible sanctions or otJ1er 1ltings clo,vn 

il1e road. 

But at lhis moment I am not going to look at 

ilmt. I want to look at these threshold issues and get 

· tlmse oul dealt with, in my opinion first. That's what 

rm looking at 

So with !lmt llllderstanding, Mr_ Cox. do vou 

have an~.,:thing else :;ron want to bring up? 

lv1R. COX: Judge~ I would simplY W<.c to not~ 

for !he recorcl my objections that e;-ervtbing thatlV!L 

Ellis said is required under Rule ll to be strickeiL 

exactly for the san1e reason that t11e supposecCrespol,l5e to 

your motion-- I'm sony. to your order to show cause 

should be stricken. And that is going to be an 

· indcpelldent isSue~ I guess, because the rules are really 

clear in Rule l L t!Jat it has to be counsel of record. 

There's nothing in the rc:sponse that- there's 

44 

no typeYviitten infmmation as to who signed that supposed 

response, v.'hdher that's 1v1r. Ellis' signattu·e or no~ I 

don't know. But there are a lot of factu<Jl allegutions 

made that are just flat untrue. 

~ Alldr.t'M:;:"ffalJ?eiTsllOl "ilJing to pnt her 

:;1mmture on that and 1isk sanctjonf:.for telling, as sh~ 

calls them, misUuths, then I don't think that it's 

reallv riilllt for a Respondent to have to deal ':rith an 

attorney \Vho is not of record in the case. And I would 

Qhject to that. 

JUDGE RAWALD: Okay. And. Mr. Ellis. let me l!. 

tum to .YOU. So. there is a complicating: factor here. in .. 

the fact that lvls. Hmper has been noticeablv absent from Jl 

_ the proceeding. She didn "t llle nnvthinQ in response to 'I •

1

1 

my initial notice regulling the pmties to meet and 'I confer: she did not file herself the response to notice I 1 

for show cause_ vou filed llwt _for her: and she has no1 jJ 

appeared todav _ 

Tills is a problem, Counsel. There needs t~~ 11 

. someone from the F/\A who is on this case and ready to l i 

prosecute this case, because rm proceectmu with this t I ,_, c!!s~J' m m~ this case fonvard either }Yay. J\.nd !.: 

1

, 

if the FAA 'vants to not abandon this case. thev need to I! 

assign someone to this case who is Qoine: to be taking \! I. :I 

1! (Pages 41 to 44) 

For The Record, Inc. 
Fisher Scientific Company, LLC 

_ ___]]:?J!_jp__the case. 

2 And if Ms. Hm-percan't take pmt in the case, 

3 you need to think about who else you \Vant to assign to 

4 the matter, sir. 

o lv!R ELLIS: Ihearyouloudandclear, Your 

6 Honor. 

I - ~J 

7 JUDGE Rl\. W ALD: Yes, sir. And so I would think 

8 nbouL that fmthcr. 

9 And as for Jvh·_ Cox's concems, 1 will lake them 

l 0 under advisement and I'H et1nsider \Vhether or not to 

11 consider them. 

12 But I do appreciate everyone showing up today 

U and discussing these issues, they are important. I 

14 \VilJ --

1) MR COX I have a question, Judge. 

16 JUDGE I0'\WALD: Yes, Jvh·_ Cox? 

17 NfR. COX: Are vou denying mY motions? Anv of 

l8 my motions to dismiss? 

19 JUDGE RAW ALD: I have rrot made anv rulings on 

20 ~nv motions at this point, sir. So \Vhat rm doing at Lhe 

21 moment is I'm taking these fir::.i hvo issues after 

22 argument tmder advisement and I ·will work on issu-ing an 

23 . oprmon. 

24 I will then look at the other issues you have 

25 raised more intensely and decide ·what to do about those 

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lSSUCS. 

I do not plan on having argument on those 

issues. bul if I do. upon reyic>Ving them further, think 

additional briefing or argument necessary, I will let the 

parties lmmv. 

No. l understmd your position on all three of 

those issues and I "ill look at them furtl1er and then 

decide \Ybat rn do \Yilh them. I haven't made any 

decision yeL Mr. Cox, in the short tem1. 

MR ELLIS: Your Honor'' Your Honor. llm·e a 

question. 

JUDGERAWALD: Yes_ 

MR. ELLIS: Will we receive a copy of this 

transcript"' 

JUDGE RAWALD: Well, so the transcript will 

come -I think it then gets passed to 1l1e docket but 

I'm not sure. But I will make sure that all parties 

receh·e a copy of the transcript once \Ye get one, yes. 

MR. ELLIS: Thank you. Your Honor. 

JUDGERAWALD: Okay. Mr. Cox, so -just so 

YOU understand_ what! will do is 1 will go ahead and 

issue a written order regarding these two motions alone 

3Jld then look at the other three issues further. I don "t 

thin1< there "s anything in those_ despite :your conceriL 

that will be worth my looking at before 1 dispose of 

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10/4/2016 

these n:vo Yery essential <:mel baseline issues that need to 

be dealt "\Yith. 

So, Ivlr. Cox, any further questions from me? 

lviR. COX: No. Just I vv-ant lo be clear that 

you're going to:-- it's your intention to hold in 

abeyance the motion to strike and the motions to dismiss, 

including the motion to dismiss on mootness, beca~~e of 

the five year statute of limitations. 

You're going to decide upon the issue about 

whether lhe pleading meets the su±Iiciencv requirements 

before vou decide whether the case is mool in t11e first 

. place. 

MR. ELLJS: How in the world would !he-- rm 

sorry. 

-+7 

JUDGE RA. W'ALD: Yes. The reason why rm doing 

that is because first of all, you raised the issue Yery 

recently of the Government ham't had a chance to brief 

it and I think also that I reall•{ ·want to deal \Vith this 

ye:rv baseline issue that exists in the regulations. 

there's a reason for haYing a case dismissed. I mem~ 

these. nre - these are things ju the regulation that 

exist as possible reasm1s a complaint can be dismissed 

and responses allowed by that answer. So I \Vant to get 

those squared away. 

And then 1 w:illlook at your ne'iY issue you ~ve 

48 

raisedo m1d, if necess<:ny, ask for briellng: fi·om the 

Respondent -- or, excuse me, the Complainant to respond 

to what you raised 1here, as far as Lhe three or the fiye 

vear statute, sir. 

.MR. COX: As long as I u..r1derstand. 111a..nk you. 

.TIJDGE RAW ALD: Okav. And so, Mr. Ellis, just 

so you understand, Mr. Cox did file something last week, 

raising the fact that there are several other issues he 

thinks l11at the ca:)"e- needed to be dismissed because o( 

one of which is a five vear statute of limitations. 

I do ask thal you not spend any time responding 

t9 tl~t until ~ect tha~ v~u do in a brid}gg, okay. 

sir? 

MR. ELLIS: Yes, Your Honor. 

JUDGE RAW ALD: Okay. So a.tlY other questions 

for me, mr. Ellis? 

MR ELLIS: No, Your Honor. 

JUDGE RAWALD: Ok!w. Last chance for anv 

questions, Mr. Cox.. 

1\ill.. COX: Jusl to note thal the rules require 

__ the FAA to respond witlrino I think- it's 1 U da\" s to the 

motion to strike. 

JUDGE RA \VALD: l understand. sir. But I do 

have some 11exibility 8S far as beinQ. a Jud!le and 

dictating how the schedule of events goes. And so --

12 (Pages 45 to 48) 

For The Record, Inc. 
Fisher Scientific Company, LLC 

IVIR COX: I understand, sir, bul only if 

they've asked for an extensio:q. If you take a close look 

_ at fue regulations, they have to ask vou for an extension 

4 and state a reason ·why. 

5 JUDGE RAW ALD: Sir, given my current post1rre in 

o this case, I don't "''aili briefing on the issue, not rig]1t 

now. So I -1~illlook mo;e at your i~-~But I am 

8 stating here the- Govemment should send a brief in 

9 response to :your motion to strike at the mo_mcnt. 

10 MK COX: Understand. I understand. 

ll i\1R ELLIS: Yes, Your Honor. 

12 JlTDGE RAW Al.D: Anything else for us to disctL;;;s? 

13 (No response.) 

14 JUDGERA\VALD: Okay. Atthispoint;let'sgo 

15 ahead and- I appreciate everyone talcing the time today 

16 and giving me some good argument on the issues. So 1ve'll 

17 go ahead and go back and look at hmv we're going to 

18 decide this case and then we~n let You know _in a written 

19 qpiiJimL.hm.v 1 decide these two issues and then \Vhat's the 

20 next step ii1 this case. 

21 So thank)'OU for your time and 1efs go ahead 

22 and go off the record. Thank you. 

23 IVIR. ELLIS: Thank you, Your Honor 

24 (Wbereupon~ at 11:05 a.m, the hearing \Vas 

25 concluded.) 

1 

0 

J 

CERTIF1CATE OF REPORTER 

+ I, Karen Guy, hereby certify that the foregoing 

50 

5 proceeding~ were recorded by me via digital recording and 

6 reduced to typewriting under my supervision; that I am 

7 neither counsel for, related 1o, nor employed by any of 

8 the pmties to the action in which these proceedings were 

9 transcribed; and fmi11er, that 1 am not a relative or 

I 0 employee of any attorney or counsel employed by the 

ll pari:ics hereto, nor financially or othern•ise interested 

12 in the outcome of the action. 

13 

14 

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l6 

17 

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2l 

22 

23 

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15 

KAREN GUY 

For The Record, Inc. 

10/4/2016 

13 (Pages 49 to 50) 
Exhibit 11 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

FEDERAL AVIATION ADMINISTRATION, } 

Complainant, } 

} 

~ } 

} 

FISHER SCIENTIFIC COMPANY, LLC, } 

Respondent. } 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

ERRATA FOR OCTOBER 4, 2016, PRETRIAL [SIC, PREHEARING] 

CONFERENCE 

1. In the title, delete "pretrial" and insert in lieu thereof "pre· hearing." 

2. The transcript does not, but should, include the undersigned's objection, just before 

10:12 a.m., to proceeding with the hearing after agency counsel of record failed to 

appear. 

3. On p. 5, line 2, delete "admit" and insert in lieu thereof "dismiss." 

4. On p. 9, line 10, delete "thoughts" and insert in lieu thereof "former boss." 

5. On p. 34, line 7, delete "from defense." 

6. On p. 37, line 12, delete "through" and insert in lieu thereof "to prove." 

7. On p. 49, between the words "should" and "send," insert the word "not." 

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 Rawald 

AMENDED BRIEF IN SUPPORT OF 

RESPONDENT'S INTERLOCUTORY APPEAL OF RIGHT 

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

(hereinafter referred to as "Fisher") hereby appeals to the FAA decision-maker pursuant the 

Federal Aviation Administration Rules ofPractice, 14 C.F.R. Part 13 (hereinafter "FAA Rules"), 

Rule 219(c), 14 C.F.R. § 13.219(c), to dismiss the Complaint in the above-captioned matter due 

to the failure by the assigned Administrative Law Judge, Douglas Rawald ("the ALJ"), to 

dismiss the case, as required by FAA Rule 215, after the agency attorneys constructively 

withdrew the Complaint by missing four consecutive deadlines without excuse. In support of its 

Appeal, Fisher states the following: 

QUESTION PRESENTED 

Must the Complaint in a civil penalty action be dismissed with prejudice when agency counsel, 

by consistently failing to participate in the proceedings, ignoring multiple ALJ Orders and failing 

without excuse to appear at a pre-hearing conference ordered by the ALJ, has constructively 

withdrawn the Complaint? 
PURPOSE AND STANDARD OF REVIEW FOR THE APPEAL 

FAA long ago established the "interlocutory appeal of right" to help the Administrator prevent 

agency counsel, a private party respondent or an ALJ from wasting public and private resources 

on administrative litigation where, as a matter oflaw, one side or the other has failed to 

participate in the proceedings or to present its case. Accordingly, when it adopted Rule 219( c) in 

1990,1 FAA decided not to depend on an ALJ to prevent needless litigation and provided, in 

pertinent part, as follows: "A party may file an interlocutory appeal ... without the consent of the 

administrative law judge ... in the case of ... (2)failure of the administrative law judge to 

dismiss the proceedings in accordance with § 13.215 .... " (Emphasis supplied.) 

The plain language of the Rule makes it clear that Respondent has presented a ripe question. The 

issue on appeal is not whether the ALJ erred by issuing an order or making a formal ruling, but 

whether he failed to take certain action that Rule 215 requires to be taken. FAA's clear intention 

was to prevent not just parties but also an ALJ from allowing wasteful litigation to proceed. That 

is why Rule 219 also specifically provides that, when the ALJ's receives a Notice of Appeal, 

"the proceedings are stayed until the FAA decision-maker issues a decision on the interlocutory 

appeal." (Emphasis supplied.) 

Accordingly, it is up to the Administrator to review de novo and decide the answer to the legal 

question presented above. 2 

FACTS 

There is no dispute that Fisher offered a one-piece shipment containing one liter of sodinm 

hydroxide solution (co=only known as "lye") by air five-and-a-half years ago, in July, 2011, 

that the package was properly declared as containing hazardous material and that it was properly 

labeled as a "limited quantity" shipment. In June, 2015, four years after the shipment, FAA's 

Southern Regional Counsel ("agency counsel") filed a Complaint alleging, in pertinent part, that 

the lye was packaged in some respect that violated the Hazardous Materials Regulations 

("HMRs")? 

1 Federal Aviation Adminisn·ation, "Rules of Practice for FAA Civil Penalty Actions," Final Rule, 55 Fed. Reg. 

27548,27567-68 (July 3, 1990) ("Final Rule"), codified at 14 C.F.R. Part 13. Previous FAA practice, which 

allowed the government and not private party respondents to file interlocutory appeals, was widely criticized as 

"unfair and has the potential for abuse in unduly protracting litigation to the disadvantage of respondents." See also 

FAA, "Rules of Practice for Civil Penalty Actions," Notice of Proposed Rulernaking, 55 Fed. Reg. 15134, 15143 

("Proposed Rule") (Apr. 20, 1990). 2 Even on an appeal from an Initial Decision by an ALJ after a hearing, the FAA decision-maker must decide for 

itself whether the ALJ followed "applicable law, precedent and public policy." FAA Rule 233(b)(2). 3 Complaint at 2 (June 4, 20 15) (Exhibit 1). 

Respondent's Appeal of Right 2 
Fisher promptly moved to dismiss the Complaint based, in part, on agency counsel's failure to 

lodge at least one of the key allegations within the two-year time limit established by FAA Rule 

208.4 Agency counsel of record did not file a timely response to Respondent's Motion to 

Dismiss but the ALJ nevertheless moved the case forward. 5 

On April6, 2016, nearly a year after Respondent filed its Motion to Dismiss, the ALJ- without 

first deciding whether the dispositive motions resolved the case or whether Respondent would 

even be required to file an Answer- ordered the parties to meet and confer regarding litigation 

and scheduling issues and to submit a Joint Report on their meeting. 6 After extraordinary efforts 

by the undersigned to get anyone in the Regional Counsel's office to return multiple phone calls 

and emails, agency counsel of record, Michelle Harper, Esq., fmally phoned to say she was 

unable to answer even the most basic questions about the substance of the case because she had 

not looked at the file in years. She promised to review the file the following week and asked the 

undersigned to prepare a Joint Report. Respondent immediately offered a draft Joint Report for 

her review and approval, but she never replied, despite more repeated calls from the undersigned. 

Respondent had no choice but to file a unilateral report and moved the ALJ for dismissal and 

other sanctions against agency counsel for ignoring his Order to meet and confer and for failing 

to file any report, in clear defiance of the ALJ' s demand. 7 Instead of dismissing the Complaint, 

the ALJ issued a Show Cause Order that stated an unequivocal threat: the Complaint would be 

considered "constmctively withdrawn" unless agency counsel filed "a statement explaining the 

cause of their failure to comply" that "shall include ... the information requested in the Order 

directing the parties to meet and confer."8 

Despite the ALI's unequivocal warning, agency counsel filed no response to the Show Cause 

Order that is cognizable under the FAA Rules and never submitted anything purporting to 

provide the information to be included in the Repmt required by the Apri16 Order.9 Someone 

whose name is not typewritten on the document submitted a two-page purported third-hand 

account of a conversation between Ms. Harper and the undersigned, but the agency counsel of 

record did not sign the document. Failure to sign and thereby certifY the tmthfulness of the 

factual representation presented in the purported response to the Show Cause Order violated 

4 Motion to Dismiss Complaint for Violation of Rule 208 (June 23, 2015) (Exhibit 2). 

5 Agency counsel filed a late request for an extension of time -from 10 days to nearly two months- to reply 

to the Motion to Dismiss but offered no excuse for their late filing of the request and did not state any grounds 

acceptable under FAA rules for granting it. Opposition to Extension at 2 (July 7, 2015) (Exhibit 3). In complete 

disregard of controlling Rules, the AL]- at that time, judge Goodwin- unlawfully granted the extension. 

Respondent later withdrew the motions it filed in 2015 because, after they had languished for 16 months, other 

reasons to dismiss the Complaint arose and rendered them unnecessary. 6 See Exhibit 4. 1 Respondent's Report in Response to Order and Motion to Sanction FAA's Noncompliance (Apr. 30, 2016) 

(Exhibit 5). 8 Order to Show Cause and Provide Requested Information (May 17, 20 16) (Exhibit 6). 

9 Agency counsel's purported response to the Show Cause Order is attached as Exhibit 7 to this Brief only for the 

purpose of showing that it was never signed by agency counsel of record. 

Respondent's Appeal of Right 3 
Federal Rule of Civil Procedure II (a), which provides, in pertinent part, that any unsigned 

"pleading ... and other paper must be signed by at least one attorney of record" and that failure 

to "promptly correct" an unsigned paper after the omission has been called to the party's 

attention leads to a single, mandatory sanction: "the court must strike an unsigned paper" 

(emphasis supplied). FAA Rule 207 even more explicitly bans recognition of unsigned filings. 

It provides that the "attorney of record ... shall sign each document tendered for filing with the 

hearing docket clerk, the administrative law judge, the FAA decision-maker on appeal or served 

on each party" (emphasis supplied). Respondent pointed out this failure and, for the third time, 

d move . "' d. . alto agam1or JSnnss . 

Instead of dismissing the Complaint at that point as required by Rule 219, the ALJ ordered the 

parties to appear at a Pre-hearing Conference on October 4, 2016, at 10:00 a.m. The undersigned 

counsel for Respondent was present. ln complete keeping with Southern Regional Counsel's 

total non-participation in prosecuting the case, agency counsel failed to appear at the hearing. 

The ALJ spent almost 15 minutes trying to get someone at the office of Southern Regional 

Counsel to answer the phone. He fmally rounded up an attorney who was not counsel of record. 

The undersigned immediately objected to any hearing on the matter after agency counsel of 

record had once again constructively withdrawn the Complaint11 but the ALJ, without 

explanation, insisted on proceeding. He started by asking why counsel of record, Michelle 

Harper, failed to appear and participate. The attorney said he could only speculate about the 

reasons for her nonappearance.

12 The ALJ asked the attorney whether he was prepared to 

participate in the hearing. The attorney replied, "I am not prepared .... " 13 

Over Respondent's repeated objections, the ALJ insisted on prosecuting the matter himself 

whether FAA took part in the case or not. 14 Judge Rawald admitted there were multiple reasons 

to consider the Complaint to have been withdrawn. He noted that FAA counsel of record "has 

been noticeably absent from the proceeding. She didn't file anything in response to my initial 

notice requiring the parties to meet and confer; she did not file herself the response to notice for 

show cause; ... and she has not appeared today." Despite these serious lapses on the part of 

Regional Counsel, the ALJ essentially indicated that he intended to take over from agency 

counsel: "There needs to be someone on this case because I'm proceeding with this case, I'm 

moving this case forward either wey." 15 

10 See Exhibit 8. 11 Errata for Transcript of Pre-Hearing Conference ("Tr. Errata") (October 4, 20 16) (Exhibit 11 ). 12 Transcript of Pretrial [sic, Pre-Hearing] Conference ("Tr.") (October 4, 2016) (Exhibit 1 0) at 2-3. Under FAA 

Rule 219( d), Respondent's Appeal Brief was due within 10 days of the ALl's ruling that the case will go forward. 

The Office of Hearings never served the Transcript on Respondent, so Respondent's initial brief, filed October 13, 

2016, was based on the undersigned's notes and best recollection. 

13 !d. at 3. 14 !d. at 43-44. 

"!d. at 44-45 (emphasis supplied). 

Respondent's Appeal of Right 4 
At the conclusion of the hearing, the undersigned objected once again and asked for immediate 

consideration of Respondent's motion to strike the unsigned, purported response to the show 

cause order. 16 The ALJ, contrary to FAA Rule 207, not only failed to strike the unsigned 

document, he issued an order that agency counsel not file a timely response to the Motion to 

Strike. 17 

Respondent immediately filed the instant Appeal. 

ARGUMENT 

I. THE CRITERIA FOR RECOGNIZING A "CONSTRUCTIVE 

WITHDRAWAL" OF A RESPONDENT'S REQUEST FOR A HEARING 

MUST BE APPLIED EQUALLY TO THE GOVERNMENT'S 

"CONSTRUCTIVE WITHDRAWAL" OF A COMPLAINT. 

TI1e Administrative Procedure Act, 5 U.S.C. § 551 et seq., forbids FAA to adjudicate the 

imposition of a civil penalty on a private party Respondent without first affording an opportunity 

for a fair hearing on the merits of the agency's allegations. For years, private parties have 

complained that FAA's civil penalty procedures are not only unfair, but in plain violation of due 

process rights guaranteed under the Fifth Amendment to the U.S. Constitution. Historically, 

FAA applied strict standards to private parties that were not applied to government "prosecutors" 

in civil penalty cases. Private parties were required to verifY interrogatory responses under oath; 

no such requirement applied to FAA agency counsel. Private parties could not file interlocutory 

appeals; only FAA counsel could. Agency counsel were free to drag cases out long enough to 

make it difficult to "defend against the FAA's allegations because documents are inadvertently 

destroyed or witnesses become unavailable due to the agency's delay. 18 

FAA's procedures also were criticized for the lack of separation between ALJs, who are 

employed by the Transportation Department, and prosecuting agency attorneys, who report to an 

"FAA decision-maker," who is supposed to render a final decision in an administrative appeal 

but is "basically prosecutorial in ... outlook and orientation."19 After judicial intervention in the 

late 1980s, FAA adopted the Rules of Practice that govem today to address criticism that the 

prior rules were "inadequate to ensure a system of adjudication that is both fair and appears 

fair."20 

16 See Exhibit 9. 

17 Tr. at 49 and Tr. Errata. 

18 See Final Rule at 27552-58; Proposed Rule at 15135-36. 19 Final Rule at 275 51. 

20 ld. at 27550. 

Respondent's Appeal of Right 5 
The outcome of the instant appeal will indicate whether FAA is actually abiding by its own 

Rules or falling back into its old ways, thereby inviting new scrutiny by Congress and the federal 

courts. The basic issue is whether agency counsel can take a "fiTe-and-forget" approach to 

prosecuting a civil penalty case. More specifically, denial of this appeal would establish one set 

of rules for "constructive withdrawal" of a private party Respondent's Request for a Hearing and 

a policy of not applying the same standards to agency counsel's conduct to the point of 

immunizing them against a fmding that they "constructively withdrew" a Complaint. 

Over many years, ALJ s have repeatedly used the failure of a private party in a civil penalty 

proceeding to file a response to a show cause order or other required document as grounds to 

terminate the proceedings. 21 More recently, Judge Rawald, the ALJ in the instant case, has made 

prolific use of constructive withdrawal, especially in connection with his April, 2016, mass 

mailing of Orders to Meet and Confer to parties in cases on his docket. When a party, in 

defiance of the ALI's Order to Meet and Confer, failed to communicate with opposing counsel 

and put them in the position of having to file a unilateral report, Judge Rawald repeatedly ruled 

that the party's failure to respond was, by itself, grounds to conclude that the noncompliant party 

had constructively withdrawn.22 A party's silence, too, is sufficient grounds to fmd constructive 

withillawal. 23 He also found that a party's constructive withdrawal occurs when it "fails to 

appear at a hearing without good cause" and such failure "shall be construed as an abandonment 

of the hearing process."24 Judge Rawald acknowledged that FAA Rule 215 gives him no choice 

in the matter because, when a party "withdraw[ s] a request fm a hearing ... the administrative 

law judge shall dismiss the case with prejudice."25 

In every case Respondent has been able to identifY, however, constructive withdrawal was 

always used against a private party Respondent and never against agency counsel. Judge 

Rawald, in particular, seems to have concluded that the government is exempt from requirements 

to participate in an adrninistTative process that they instigated by filing a Complaint. 

II. AGENCY COUNSEL "CONSTRUCTIVELY WITHDREW" FAA's 

COMPLAINT. 

In the cases referenced above, Judge Rawald recited the following fact pattern to justifY 

dismissal of Respondents' request for a hearing: 

21 See, e.g., Matter of Bonanza Valley Aviation, Inc., 1994 WL 16054306 (May 4, 1994) (party failed to respond to 

Order to Show Cause); Matter ofEdwm·d C. Parks, 1999 WL 33739451 (Feb. 17, 1999) (party filed no response to 

Order to Show Cause); and Matter of Butte Aviation, 2004 WL 350392 (failure to file Answer is "constructive 

withdrawal of the request for a hearing"). 22 See, e.g., Matter of Christopher McCann, 2016 WL 3662616 (June 29, 2016) ("McCann") at I, n.l and Matter ~f 

!XL Premium Lubricants, Inc., 2016 WL 3662615 (June 28, 2016) ("IXL") at I, n.L 23 McCann at2, n.2;/XL at I. n.2 24 McCann at 2, n.3; !XL at 1, n.3 (emphasis supplied). 25 McCann at 2; JXL at 2 (emphasis supplied). 

Respondent's Appeal of Right 6 
1. Respondent requested a hearing. 

2. Respondent was served with a Meet and Confer Order and an Order to Show Cause. 

3. Respondent failed to comply with the Meet and Confer Order. 

4. Respondent was "advised in the Order to Show Cause that further failure to participate in 

the proceedings may be deemed a constructive withdrawal ofthe request for hearing." 

5. Respondent failed to respond to the Order to Show Cause. 

6. Respondent's "failure to participate in the proceedings ... constitutes a constructive 

withdrawal of the Respondent's request for a hearing." 

In Respondent Fisher's Appeal, the fact pattern is as follows: 

1. Complainant filed a Complaint. 

2. Complainant was served with a Meet and Confer Order and ordered to file a Joint Report. 

3. Complainant refused to comply with the Meet and Confer Order and never filed either a 

Joint Report or a Unilateral Report. 

4. Complainant was served with an Order to Show Cause and threatened with dismissal if 

agency counsel of record failed to "file a statement explaining the cause of their failure" 

and include "information requested in the Order." 

5. Complainant filed no statement explaining the cause of their failure or including the 

requested information. 

6. In fact, Complainant filed no cognizable response whatsoever to the Order to Show 

Cause because the document agency counsel submitted was not signed or certified by 

counsel of record and must be stricken from the record under FRCP 11 (a) and FAA Rule 

207. 

7. Counsel of record did not even bother to appear at the Pre-Hearing Conference ordered 

for October4, 2016. 

Certainly by the time agency counsel neglected to appear at the October 4 hearing, the ALJ was 

obligated to recognize a constructive withdrawal of the Complaint. If the FAA decision-maker 

rejects the instant Appeal and finds that such a constant lack of participation by agency counselas enumerated by the ALJ himself26 - does not necessitate a finding of constructive withdrawal 

of a Complaint, agency counsel may be justified in considering themselves immune from 

dismissal. In effect, rejection of the Appeal would establish a "one-strike-and-you're-out" rule 

for private party Respondents and a blind eye toward exactly the same conduct by the 

government. This unbalanced duality could force the FAA into federal court, where it would be 

compelled to explain how such disparate treatment comports with constitutional guarantees of 

due process. Similarly, among the regulated community, this precedent surely will create the 

impression of a double standard, which would negatively affect that community's confidence in 

the FAA adjudicatory process as fair and unbiased. 

26 Tr. at 44. 

Respondent's Appeal of Right 7 
lll UPON WITHDRAWAL OF A COMPLAINT, RULE219REQUIRESTHAT 

AN ALJ "SHALL DISMISS" THE CASE WITH PREJUDICE. 

FAA Rule 219 is unequivocal. It specifically states that "an agency attorney may withdraw a 

complaint ... without the consent of the administrative law judge. If an agency attorney 

withdraws the complaint ... the administrative law judge shall dismiss the proceedings ... with 

prejudice." (Emphasis supplied.) 

As Part II explains above, agency counsel constructively withdrew their Complaint on multiple 

occasions: by failing to file a timely response to the motions to dismiss in 2015; by ignoring the 

Order to Meet and Confer; by failing to file the report required in said Order; by failing to file a 

signed response to the Order to Show Cause; and, finally, by not bothering to appear at the Preconference Hearing the ALJ convened on October 4, 2016. Their withdrawal required no order, 

approval or recognition by the ALJ. The FAA decision-maker, in tum, has no choice under FAA 

Rule 215 other than to "dismiss the proceedings ... with prejudice." 

WHEREFORE, Respondent respectfully requests the agency decision-maker to immediately 

dismiss the Complaint with prejudice. 

Dated: November 25, 2016 

Respondent's Appeal of Right 

Respectfully submitted, 

94Jiv&-P Jerry~ ox, Esq. j 

2050 ramieson Ave., Suite 1212 

Alexandria, VA 22314 

(email) .\_;_ Q2:~r_f_{i_Q_9_.tQ~1l~Jf~Tat_~g:~,:_?_§SO_i_~_i?~_Ie.~._fS-~111 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

8 
CERTIFICATE OF SERVICE 

On November 25, 2016, the undersigned sent by the indicated type(s) of service at least one copy 

of the foregoing Notice on each of the persons listed below. 

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

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 

0 [Original + One Copy by Hand] 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Wilbur Wright Bldg., Suite 2W1000 

600 Independence Ave., S.W. 

Washington, DC 20591 

0 [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 

Respondent's Appeal of Right 

[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 

R:x.,v'- 00 [Original+ pttee Copies 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 

00 [One Copy by U.S. Mail] 

Ryan M. Landers, Esq. 

Senior Attorney 

Enforcement Division, Southern Team 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

P.O. Box 20636 

Atlanta, GA 30320 

9 
Exhibit 1 
U.S. DEP A...Q.TMJENT OF TRANSPOR'fAT[ON 

OFFICE OF HEARINGS 

FllWERAJL Av"lATION A)[)JMJ[l'IISTRA'HON 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

FISHER SCIENTIFIC COMPANY, L.L.C. 

Respondent. 

FAA Docket No. 

JUDGE NOT YET ASSIGNED 

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, 

pursuant to Rule 208 of the Rules of Practice (14 C.F.R. 13.208), and states as follows: 

I. 

On May 18, 2015, Respondent, Fisher Scientific Company, LLC was advised through a Final 

Notice of Proposed Civil Penalty that the FAA. proposed to assess a civil penalty in the amount 

of $6,500. On June 1, 2015, the Agency Attorney received a written request for a hearing from 

the Respondent. 

II. 

1. On or about July 20, 2011, Fisher Scientific Company, L.L.C, ("Fisher") knowingly 

offered to United Parcel Service (UPS) a one piece shipment consisting of a 

specification fiberboard box containing hazardous materials for transportation by air. 

2. The above-mentioned shipment, assigned UPS tracking number/air waybill number 

1Z9V349Il325638264, was offered by Fisher for next day air transportation to the 

consignee, Genova Diagnostics, 63 Zillicoa Street, Asheville, NC 28801. 

3. On or about July 21, 20!1, ground handling personnel at the UPS sort facility 

discovered the above-mentioned shipment leaking. 

4. The above-mentioned specification fiberboard box contained a one !-liter plastic 

bottle (with friction or screw-type cap) of "Acros Sodium Hydroxide IN Standard 

Solution." 
5. (a) "Acros Sodiwn Hydroxide lN Standard Solution" is classified as a hazardous 

material under the Department of Transportation Hazardous Materials Regulations 

(HMR) (49 C.F.R. § 172.101). 

(b) The proper shipping name of the material is sodium hydroxide solution. It is in 

Hazard Class 8 (Corrosive Liquid), Packing Group II, and has an assigned 

identification number ofUN1824. 

6. Further investigation showed that approximately 2 ounces of the above-described 

material had leaked into and through the fiberboard container. 

7. Fisher offered the above shipment of hazardous material for transportation by air and 

failed to use a means of containing the liquid in the form of a leakproof liner, plastic 

bag or other equally efficient means of containment 

8. Fisher offered the shipment of hazardous materials for transportation by air and failed 

to package it so there would be no identifiable release of hazardous material to the 

environment 

9. Fisher offered the shipment of hazardous materials for transportation by air and failed 

to ensure the closure was secure and leakproof 

10. By reason of the above, Fisher violated the following Department of Transportation 

Hazardous Materials Regulations (Title 49 of the Code of Federal Regulations): 

a. Section 173.24(b)(l) in that Fisher failed to use a package which was 

designed, constructed, maintained, filled, its contents so limited, and closed, 

so that under conditions normally incident to transportation, there would be no 

identifiable release of hazardous material to the environment. 

b. Section 173 .24(£)(1) in that Fisher failed to use a package which had closures 

so designed and closed that under conditions (including the effects of 

temperature and vibration) normally incident to transportation, (i) there would 

be no identifiable release of hazardous materials to the environment from the 

opening to which the closure was applied, and (ii) the closure would be secure 

and leakproof. 

c. Section 173.27(e) in that Fisher failed to ensure that except as otherwise 

provided in this subchapter, a package containing liquids hazardous materials 

in Class 3, 4, or 8, or Division 5.1, 5.2 or 6.! that are packaged and offered for 

transport in glass, earthenware, plastic, or metal inner packagings were 

packaged with absorbent materials as follows: ... 

(3)When absorbent materials are required and the outer 

packaging is not liquid tight, a means of containing the liquid 

in the event of a leakage must be provided in the form of a 
leakproof liner, plastic bag or other equally efficient means of 

containment 

Pursuant to 49 U.S.C. Section 5123(a), Fisher Scientific Co., L.L.C. is subject to a civil penalty 

not lower than $250 ($450 for training-related violations), nor greater than $75,000 ($175,000 if 

death, serious illness, severe injury, or substantial property damage results), for each violation of 

the Department of Transportation Hazardous Materials Regulations. 

Under the facts and circumstances of this case, a civil penalty of $5,850 is appropriate. This 

amount includes consideration of the Respondent's timely corrective action. 

WHEREFORE, the Agency, by counsel, respectfully requests that the Administrative Law Judge 

enter an order that Respondent be assessed a civil penalty in the amount of $5,850. 

day ofJune, 2015. 

Attorney 

Office of the Regional Counsel 

PlLEASE NOTE: 

Pursuant to Title 14 CFR Section l3.209(a), the Respondent is required to file a written answer 

to this Complaint, or a written Motion to Dismiss if appropriate, not later than 30 days after the 

date shown on the Certificate of Service which follows. 
Exhibit 2 
U.S . .llElP" AR'IMEN'f OF 'fRANSlP'OR'fA'fiON 

OlFFllCE OJF HEARINGS 

WASHINGTON, DC 

lFEDERAJLAVIA'fiON ADMINXS'IRATIION, } 

Complainant, 

v. 

} 

} 

} 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

} (Civil Penalty Action) 

FISHER SCffiN'fiFXC COMJP' ANY, lLLC, 

Respondent. 

} 

} 

Judge Goodwin 

MOTIONS TO l!nSMI§§ COMPlLAifNT 

FOR XNSUFJFICffiN CY AND FOR 

COMPLAINANT'S VIOLATIION OJF RVLE 208 

Respondent Fisher Scientific Company, LLC, a subsidiary ofThermo Fisher Scientific, Inc., 

(hereinafter referred to as "Fisher") moves to dismiss the Complaint in the above-captioned civil 

penalty proceeding on the follo\-ving two independent grounds. First, the Complaint fails to state 

a "knowing" violation for which a civil penalty may be imposed. Second, by including 

allegations that were first made more than three years after the alleged incident, the Complaint 

violates Rule 208( d) of the Federal Aviation Administration's (hereinafter "FAA's" or "the 

Agency's") Rules of Practice ("Rules"). 

FAA's Southern Regional Counsel ("Regional Counsel," "the Government" or "Complainant") 

makes, among others, two allegations concerning acts Fisher allegedly committed almost four 

years ago, on July 20, 2011, when Fisher shlpped a single liter of a cmTosive liquid commonly 

known as lye. First, Regional Counsel alleges that Respondent "knowingly offered ... a ... 

shipment ... containing hazardous materials for transportation by air." CompL 'If L Second, 

Regional Counsel claims Respondent "violated the ... hazardous materials regulations" 

("H.MRs") because it "failed to ensure that [the bottle oflye was] ... packaged with absorbent 

materials .... " CompL 'If lO.c. 
Respondent's IV!otion to Dismiss 

Motion to Dismiss for Insufficiency 

The Hazardous Materials Transportation Act ("HMTA"), Pub. Law No. 93-633, 88 Stat. 2156, 

2160 (Jan. 3, 1975), codified as amended at 49 U.S.C. § 5123(a)(1) (2011), allows the 

Government to impose a civil penalty upon a "person who knowingly committed an act which is 

a violation of' the HMRs (emphasis supplied). A later recodification made a non-substantive, 

editorial change. It reworded the sentence to say the Government may impose a civil penalty on 

a "person that knowingly violates" the HMRs. Nowhere in the Complaint does Regional 

COlmsel allege that Fisher "knowingly" committed any act which is a violation of any li~. It 

merely states that Respondent "lmowingly offered" a declared shipment of hazardous materials. 

There are other, more specific allegations in the Complaint, but none of them allege a "knowing" 

violation. In the example referenced above, Regional Counsel claims Respondent "violated" 49 

C.F.R. § 173.27( e), but there is no allegation that Fisher "knowingly" committed any act which 

violates it. 

The cited HMR applies certain packaging requirements to some hazardous materials shipments 

but not to others. In this case, the lye was a "limited quantity" shipment that was exempt from 

the specification packa_,aing requirements and otherwise fully complied with all applicable 

HMRs. However, even if one were to assmne that§ 173.27(e) did apply to the shipment when it 

was offered in 2011 and that Fisher failed in some respect to comply with it or any other HMR, 

the IiMTA's civil penalty provision, as amended by the Hazardous Materials Transportation 

Uniform Safety Act of 1990 ("HMTUSA"), Pub. L. No., 101-615, 104 Stat. 3244, 3259 (Nov. 

16, 1990), codified at 49 U.S.C. § 5123(a)(l)(A) and (B) (2011), unquestionably requires the 

Agency to allege and prove that Fisher "knowiogly committed an act which is a violation of' that 

or some other HMR. 

As exp laioed in greater detail in Respondent's Memorandum io Support of the Motions to 

Dismiss, the statutory language goveming the instant civil penalty proceeding is plain and 

tmambiguous. Even if there were some reason to consider it ambiguous, the legislative history 

of clauses (A) and (B), which were added by the HMTUSA, leave no doubt that Congress 

adopted a new definition of the term "lmowingly" for the specific purpose of prohibiting the 

Government from imposing a civil penalty in a case involving transportation of hazardous 

materials unless it can show that the Respondent had aciual knowledge that its act or omission 

violated the HMRs or that its noncompliance resulted from some specific act of negligence on 

the part of the Respondent. 

Accordingly, the Complaint fails to state a violation of the federal hazardous materials 

transportation statute or regulations and must be dismissed for insufficiency pursuant to Rule 

218, 14 C.F.R. § 13.218(£)(1). 

2 
Respondent's Motion to Dismiss 

Motion to Dismiss for Asserting a Claim About Which the Govemment Failed to Give Timely 

Notice 

As noted above, Regional Counsel asserts, among other claims, that Respondent "violated the __ _ 

hazardous materials regulations" because it "failed to ensure that [the bottle oflye was] __ _ 

packaged with absorbent materials ___ ." The HMRs imposed no such requirement on the 

shipment at issue in this case, but even if one were to assume that there was a requirement for 

packaging the subject limited quantity oflye with absorbent materials, Regional Counsel was 

obligated to give timely notice that the Government planned to base its Complaint on such a 

claim. 

FAA served a Notice of Proposed Civil Penalty ("the Notice") on July 3, 2013. During an 

Informal Conference, Respondent pointed out to Regional Counsel that the Notice was ex post 

facto, based almost entirely on HlVIRs that were not in effect in July, 2011, when Fisher shipped 

the subject package. The Notice contained no allegation whatsoever that Respondent was 

obligated to include "absorbent materials" or that Fisher failed to do so when it packaged the lye. 

In fact, this Notice did not even mention "absorbent materials." The first Notice of this claim 

was served not within two years, as required, but more than three years after the alleged 

incident, in FAA's Amended Notice of Proposed Civil Penalty ("the Amended Notice") dated 

July 24,2014. il.mended Notice~ f. 

Rule 208( d)(2) ofF AA 's Rules provides, in pertinent part, that the judge "may dismiss the 

complaint or that part of the complaint alleging a violation that occurred more than nvo years 

before an agency attorney issued the notice of proposed civil penalty" to the respondent "[i]f the 

agency fails to show good cause for any delay----" (Emphasis supplied.) 

There is no excuse or other good cause for Regional Counsel to keep Respondent in the dark for 

more than three years about the Agency's intended allegations. To reward Regional Counsel's 

failure to give timely notice by allowing this case to proceed would defeat the stated purposes 

and policies of Rule 208, grossly prejudice Respondent's opp01tunity to defend itself and 

constitute a denial of Respondent's due process rights under tbe U.S. Constitution. 

WHEREFORE, Respondent respectfully moves to dismiss the Complaint on the following two 

independent grounds: fn·st, for insufficiency pursuant to Rule 218, 14 C.F.R. § l3.218(f)(1); 

and, second, to dismiss tbe Complaint for violating Rule 208 pursuant to 14 C.F.R. § l3.208(d). 

Even if the Complaint is not dismissed ouuight on accmmt of Regional Counsel's violation of 

Rule 208, that p01tion of the Complaint alleging a failure by Respondent to include "absorbent 

materials" in the packaging for the subject materials (i.e., all of Complaint~ lO.c.) should be 

su-icken, as alternatively provided in Rule 208( d). 

3 
Respondent's Motion to Dismiss 

Respondent recognizes the importance of the issues presented in this case to hazardous materials 

civil penalty cases in general and respectfully requests an opportunity to present oral argument in 

person on these motions. 

Dated: June 23, 2015 

Vienna, VA 22180 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

4 
Exhibit 3 
U.S. DEP AR'flYillNT OF TRAl"\JSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

F1ECEi\/E[) 

JUL - S 2015 

FEDERA_L AVI..41I'ION ADMINISTRATION, } 

Complainant, 

v. 

Fli.SHER SCIENTIFIC COMP AT'•r-u, LLC, 

Respondent. 

} 

} 

., 

f 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

} (Civil Penalty Action) 

} Judge Good·win 

} 

RESPONDENT'S OPPOSliTION TO 

COMPLAINANT'S MOTION FOR EXTENSION 

Respondent Fisher Scientific Company, LLC, {nereinafter referred to as "Fisher") moved on 

June 23,2015, to dismiss the Complaint in the above-captioned civil penalty proceeding because 

the Complaint fails to state a "!mowing" violation for '.vhich a civil pena!ry can be imposed and 

included allegations that were out-of-time and in violation oft.he Federal Aviation 

Adminisrration's (hereinafter "FA.A's" or"the Agency's'') Rules of Practice ("Rules"). Instead 

of filing a tirneiy response permitted by Rule 13 .218( d), FANs South em Regional Counsel 

("Regional Colmsel") moved for ai1 "Extention [sic, Extension] to File Response." Regional 

Counsel failed even to allege the presence of any grounds to grant such a motion cognizable 

under Rule 13.213 (b) and otherwise failed to adhere to other applicable Rules. Accordingly, 

Complainant's Motion cannot lawfully be granted and Regional Counsel must be considered to 

have waived F Af<_' s opportunity to respond to Respondent's Motions to Dismiss. 

Rule 13.213(b) is clear. f..B 1vith any other party, an FAA "motion for an extension of time" 

must be filed with the judge "not later than 7 days before" a response to a Respondent's \'VTitten 

motion "is due." Regional Counsel filed F itA's motion for ex-tension exactly zero days before 

the response was due. A judge has authority essentially to waive this seven-day requirement 

only if"good cause for the late filing is shown." Nowhere in Regional Counsel's Motion is there 

so much as a naked asse1tion that FAA had "good cause" to file zero days ahead of the due date 

instead of seven days ahead, as unequivocally required under the Rules. 

In any case, the Rules allow a judge to gra.TJ.t an ex1:ension of time to respond to a Motion to 

Dismiss only "if good cause for the extension is shown." Once again, Regional Cotmsel failed 
Respondent's Opposition to iWotionfor Extension 

even to include so much as a declarative statement that such grounds exist. The Motion states 

that FAA desires "an extension in order to effectively respond [sic]." It does not even suggest 

there are any special circumstances or any other reasons whatsoever to conclude that the time 

otherwise allowed by the Rules was inadequate. Absent those circumstances, the Motion for 

Extension would have failed even if it had been tin:tely filed. 

Regional Counsel goes on to claim that Fisher will not be "prejudiced by a:t1 extension." This 

statement is false but, even if it were true, it does not constitute "good cause" for pem1itting FAA 

to ignore the seven-day advance filing rule for its Motion for EJ.1:ension or the 1 0-day rule for 

filing FAA's response to Respondent's Motion to Dismiss. Rule 13.213(b) is meaningless if 

Regional Counsel Ca:t1 avoid it without making any pretense of an affirmative sho·wing why the 

requested extension is necessary. 

Regional Counsel's Motion is merely the latest example of how FAA's handling of this matter 

has prejudiced Fisher's ability to defend against the Complaint. The alleged incident occlmed in 

July, 2011. FAA did not file any Notice in the matter until July, 2013. That Notice made no 

allegation whatsoever that Fisher failed to employ a particular type of packaging product. F A.A. 

filed another Notice in July, 2014, more than three years after the alleged incident, which is 

based almost entirely on the previously missing allegation about packaging. FAA then waited 

until June, 2015 ~almost four years after the event ~to file its Complaint. When Fisher moved 

to dismiss the Complaint in pan because ofF AA' s dilatory approach to the case, Regional 

Counsel's only response has been to seek an extension to August 3, 2015, a date that is beyond 

four years after the event. 

Meanwhile, FAA has overseen or pemlitted the destruction of crucial evidence. If this case 

eventualiy goes to a hearing, witnesses on both sides poten1ially will be required to rely on 

nothing more than faded recollections. 

WHEREFORE, Respondent prays that Regional Colmsel's Jllotion for Extension be DENiED. 

Dated: July 7, 2015 

Jeny vj. Cox,VEsq. / 

272~j}allows Rd., Suite 401 

Vienna, VA 22180 

(email). ,~,,-,,,, _,--, ·' 

(tel) 703-757-5866 

Counsel for TI1ermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

2 
Exhibit 4 
In The Matter Of: 

SERVED: April 6, 2016 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2015-1321 

Fisher Scientific Company, LLC 

) 

) 

) 

) 

) 

Case No. 2011S0700457 

Respondent 

ORDER DIRECTING THE P ARTJIES TO MEET AND CONFER REGARDING 

LITIGATION AND SCHEDULING ISSUES 

The above captioned case was reassigned to the undersigned judge on March 24, 2016. By 

order of the Chief Administrative Law Judge, any previously established date for a prehearing 

conference or trial was suspended. Those dates are now vacated and there is a need to establish a 

new litigation schedule for this case. To assist the undersigned judge, the parties should meet 

and confer to propose a mutually agreeable schedule. 

An administrative law judge may hold conferences to, among other things, "settle [or] 

simplify the issues by consent of the parties."1 Pursuant to 14 C.F.R. § 13.205(a)(1) and (7), it is 

hereby ORDERED: 

1. The parties shall privately conduct an informal conference to meaningfully discuss 

litigation issues and proposed scheduling. 

2. The parties shall draft a joint report providing: 

a. a suggested venue, 

b. a proposed schedule for the completion of discovery (or an indication that 

discovery is complete), 

c. a list of any pending motions that have been previously filed but have yet to be 

ruled upon, 

d. a proposed date for a telephonic prehearing conference with the undersigned 

judge, 

1 14 C.F.R. § 13.205. 
e. a proposed due date for the filing of any prehearing motions (including a 

proposed date for a telephonic hearing on any filed motions, if so desired), and 

f. proposed hearing dates. The parties should provide at least three alternative dates 

on which the hearing may be held that are acceptable to all parties. 

3. In addition to filing the report with the Federal Aviation Administration Hearing Docket 

Clerk in accordance with !4 C.F.R. § 13.2!0, the parties shall submit the report to the 

undersigned judge at the Office of Hearings by fax, express catrier, or personal delivery 

no later than 3() calendar days after the date of service of this order. 

~ DOUGLAS M. RAW ALD 

Administrative Law Judge 

Attachment: Service List 

2 
Exhibit 5 
U.S. IllEPARTl\liDEN'f OF 'fRANSPOR'fATION 

0 FFKCE 0 lF iBlE/tPJIN GS 

WA§Ji3[[LiJG1'0N, I!lC 

JFEiiERAIL A VJATION AI!llV!Jll'ITS'fPJ.iTION, } 

Complainant, } 

} 

v_ } 

In the Matter of Fisher 

Scientific Company. LLC 

Docket No. FA.A-2015-1321 

} (Civil Penalty Action) 

JFK§.i!JiER SC:!JEN'fiJF.!IC COMPANY, l.JLC, 

Respondent. 

} 

} 

Judge Rawald 

REPORT OF JF][S.i!JiER SC.!IENTIJFJLC .!IN RESPONSE 'fO 

O.!IIDER §ERVEID APID.!I.. 6, 2016, 

AND 

MOTION 'fO §A.l~CTION FAA'§ NONCOlVTI'JLTIANCiE 

By Order entered April6, 2016, JudgeRawald directed Complainant, the Southern Regional 

Counsel of the Federal Aviation Administration (hereinafter referred to as "F A.A.") and 

Respondent Fisher Scientific Company, LLC (hereinafter "Fisher"), to file a Joint Report 

addressing certain pre-hearing matters that "vere listed in the Order, including "a list of any 

pending motions that have been previously filed but have yet to be ruled upon." 

Fisher regrets to report that F i\A_ counsel essentially went "AWOL" and thwarted Fisher's 

diligent efforts to respond to the Order with a I oint Report. Fisher's undersigned counsel 

telephoned the FAA. attorney identified on the service list (IV[r. Vines) on April 15,2016. Mr. 

Vines did not answer his telephone, so Fisher's counsel left a voicemail stating that the call was 

in reference to the April 6 Order. Mr. Vines never returned the calL On April 18, the 

undersigned counsel emailed Mr. Vines, requesting a response to the April 15 voicemail. On 

April 19, lVJ.r. Vines responded that a different FAA attorney was handling the case, even though 

FAA never updated the service list. 

On April 20, Ms. lv!ichelle Harper phoned to say she was the attorney responsible for F i\A_' s 

compliance with the Order. She asked Fisher's counsel to prepare a draft Joint Report, which tl1e 

undersigned emailed to her a few minutes later. Fisher requested that she either concur with the 

dru~ and sign it or suggest any edits she thought appropriate. Ms. Harper did neither. 
Report of Fisher Scientific 

A week later, on April27, the Ulldersigned phoned Ms. Harper but, once again, she did not 

answer her telephone. Fisher's counsel left a voicemail reminding herthatFisherwas 

determined to comply with the Order but- without any response from her- it would be 

impossible to file the required Joint Report. Ms. Harper never responded to the voicemail. On 

April 29 -the deadline for finalizing and mailing the Joint Report- the undersigned telephoned 

Ms. Harper again, but she did not answer her telephone. Fisher's counsel indicated in a voice 

mail that ifF AA continued to ignore the proposed draft of the Joint Report, Fisher would have 

no choice but to withdraw it and file its own unilateral response to the Order. Ms. Harper did not 

return the call or othenvise respond. 

FAA's apparent disregard of the April 6 Order is just the latest chapter in a five-year history of 

the Office of Southern Regional Counsel dragging its feet and utterly ignoring applicable laws 

and Rules of Practice. 

Tltis case arises from an alleged incident that occurred five years ago, on July 21,2011. FAA 

waited until days before t..he statute of limitations expired and filed a Notice of Proposed Civil 

Penalty in July, 2013. AJ'ter Fisher pointed out that the Notice was based on regulatory 

requirements that were not in effect in 2011, FAA filed an Amended Notice on July 24, 2014, 

more than three years after the alleged incident and more than one year a..fter the statute of 

limitations expired. 

FAA waited almost another year, lli'ltil June, 2015, to file its Complaint. On June 23, 2015_ 

Respondent Fisher filed a Motion to Dismiss the Complaint for legal insufficiency and for being 

barred by the statute of limitations. The FAY,'s own Rules of Practice allowed FAA 10 days to 

oppose Fisher's Motion to Dismiss, but the agency did not file its Memorandum in Opposition 

until August 17, 2015, almost two months after it was due. Fisher's Motion to Dismiss has been 

pending for nearly a year. 

The most appropriate way to sanction such egregiously dilatory conduct and get thJs fu!cient case 

off the docket would be to order Southern Regional Counsel to SHOW CAUSE why dismissal 

should not be ordered on one or more of the following grounds: 

1. FAA's failure to comply with the April 6, 2016, Order. 

2. FAA's default in failing to file a timely opposition to Respondent's June 23, 2015, 

Motion to Dismiss. (No extension was permitted under FAA's Rules of Practice for the 

reasons stated in Respondent's Opposition to FAA's Motion for Extension.) 

3. F kA.'s decision to wait more than three years after the alleged incident and more than a 

year after the statute of limitations expired to lodge crucial allegations in the A..inended 

Notice. (Respondent's Memorandum in Support and its December 21, 2015, Reply to 

F kA.'s Memorandum in Opposition, an additional copy of which is attached, explain in 

detBjl why the case is barred as out-of-time.) 

2 
Report of Fisher Scientific 

4. F A.A.'s failure to state a legally sufficient claim, as explained in Respondent's abovereferenced l'vlemorandum in Support fu""ld its Reply to FAA's Memorandum. 

WHEREFORE, Respondent respectfully requests the Judge to command Agency respect for his 

Orders &""ld for the substantive and procedural laws underlying the above-captioned case by 

DISMISSll'JG with prejudice FAA's Complaint. 

Respondent reiterates its request for in-person oral argument on the issues presented by its 

pending motions. 

Dated: April30, 2016 

Respech"'ully submitted, 

.---------. 

Jerry \Y'C~x~ Esq. 

2050 Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

(email).~· ::;:.;_:Q,22.20::;j::Jh£l.''.C:C:O:=BL':'L:O:Q.':Cc 

(tel) 703-757-5&66 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

3 
Exhibit 6 
In The Matter Of: 

U.S. DEPA..RTMENT OF TRANSPORTATION 

OFFICE OF HEARTI'-TGS 

WASHlNGTON, DC 

Docket No. FAA-2015-1321 

Fisher Scientific Company, LLC 

) 

J 

) 

) 

Case No. 2011S0700457 

Respondent 

ORDER TO SHOW CAUSE AND PROVIDE REQUESTED lLl"lFORlVL.O..TKON 

On April 6, 2016, the undersigned judge issued 8.1"1 Order Directing the Pfu-ties to Meet and 

Confer Regarding Litigation and Scheduling Issues in the above captioned case. The order 

required, inter alia, the parties to submit a joint report to the \llldersigned judge within 30 days of 

that order. 

On April30, 2016, the Respondent filed a unilateral report, stating that his altempts to meet 

and confer with the Complainant had failed. 1 

The Complainant failed to submit a repott or request tor additional time before the deadline2 

In accordance 'l'~th 14 C.F.R. § 13 .205(a)(6), an administrative law judge is empowered to 

regulate the course of a hearing. As previously noted by the FAA Administrator: 

[t)he Administrator expects that the parties will comply with orders issued by an AU dlll"ing the 

hearing stage of a proceeding. Ignoring an ALTs orders cannot be cmmtena11ced in an orderly 

system of adjudication.J 

The pmties are therefore reminded that tailure to follow the undersigned administrative law 

judge's orders ,.~;ithout good cause may result in sanctions4 Moreover, continued failure to 

1 Respond em failed, however. to provide all the information requested in the April 6, 2016 Meet and Confer Order. 

2 Counsel for the Complainant l1led a notice of appearance on May 10, 2016, but failed to include the information 

required by the undersignedjndge's April 6, 20!6Meet and Confer Order or offer a response to Respondent's 

assertions 1-vithin his: April 30:2016 report. Notably: the counsel maldng her appearance 1vas the same person 

Respondent's counsel had conesponded \Vith regarding this matter as early as April20: 2016. This counsel was 

therefore assigned to this matter well before the deadline for filing a response to the April 6, 2016 Meet and Confer 

Order. 

3 American Airlines, Inc., FAA Order No. 2002-15, at 9 {May 20~ 1001) . 

.± s~e id. (';Parties \vho disregard the ALJ"s orders do so ar theL- O\VTI peril because the Adminisn·ator on appeal \Vill 

uphold any reas.onab!e sanctions pemlitted by the Rules of Practice that the ALI imposes against a pany for that 

behavior.''). 

' .. ;:::::; 
participate in the proceedings as directed by the undersigned judge may be deemed a 

constructive withdrawal of the request for hearing or complaint by the party demonstrating such 

a lack of interest in participating in these proceedings. 5 

Pursuant to 14 C.F.R. § l3.205(a)(l), (6), and (7), it is hereby ORDERED: 

1. No later than June 1, 2016, the Respondent shall file a report including all of the 

intcmnation requested in the Order Directi.11g the Parties to Meet and Confer Regarding 

Litigation and Scheduling Issues. 

2. No later than June 1, 2lll6, the Complainant shall file a statement explaining the cause of 

their failure to comply '"lith the Order Directing the Parties to !Vleet a11d Confer Regarding 

Litigation and Scheduling Issues. 

3. The Complainant shall include in their statement the infmn1ation requested in the Order 

Directing the Parties to Meet and Confer Regarding Litigation and Scheduling Issues. 

4. If the Complainant fails to file this statement by the above deadline, the undersigned 

judge may issue a subsequent order finding the Complainant has constructively 

-vvithdrawn from these proceedings and, pursuant to 14 C.F .R. § 13 .215, dismiss the case 

Y~iith prejudice. 

Attachment: Service List 

DOUGLAS M. RA. WALD 

Administrative La'N Judge 

5 See. e.g .. IAL Po wei' Supply, Docket No. CPOl SOOO 15 (F AAAug. 7, 2001) (.A.LJ constmed Respondent's silence 

as a conshuctive witlrdrawal of request for a hearing), appeal dismissed. FAA Order No. 2002-10 (Apr. 17, 2002); 

Blanks on, Docket No. CP97EA0024 (FAA Sep. 11, 1997) (ALJ found faiiure to respond to previous orders 

constituted consn·uctive withdrawal). crfFd, FAA Order No. 98-2! (Oct. 9, 1998). See also Instead Balloon Services, 

F A.A.. Order No. 1998-23, at3 (!~ov. 24, 1998) (aff1J.11ing ALrs decision to find constructive withdrawal when a 

pariy· failed to appear at the hearing \vithout good cause); Apollo A & HS Company, FAA Order No. 2011-41 at 4 

(Jan. 14, 20 ll) ("Apollo's failure to appear anlle hearing and to pursue its request for hearing without good cause 

constituted a c-onstructiv·e \Vitbdra\val of jts request fur hearing.'"). 
Exhibit 7 
UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

FISHER SCIENTIFIC LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Douglas M. Rawald 

COMJI:'LAJLNANT'S JRESJI:'ONSE 

TO SHOW CAUSE ORDER 

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

to the Order to Show Cause and Provide the Requested Information served May 17,2016, 

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 L 

2. On April 20, 2016, the undersigned 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 ag;reed 

(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 April 20, 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 April 20, 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 unmeritorious 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. Furthem1ore, 

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 mistruths. · 

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 31" day of May, 2016. 

~c;7 £f£;S / /hfliiJ-/is fi-//,.-/ley 

fn 

ANDREA MICHELLE HARPER 

Senior Attorney 

Office of the Chief Counsel 

Enforcement Division, Southern Team 

2 
Exhibit 8 
U.§. DElt' AR.'IMENT OF '][']RANSI'ORTA HON 

OFF!ICE OF lRI !(AJP'JNG§ 

W A§mNIGTON, DC 

FEDERALAVTlA'IliON ADMINJ§TRA'Il!ON, } 

. '"i 

Complainant, } 

} 

v. } 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

fl§i,LH:R SCIDEN'J!JLlt'llC OQll\'iJ:Pfo..l\lY, lLLC, 

Respondent. 

} (Civil Penalty Action) 

} 

} 

Judge Rawaid 

RESPONDENT'S REPORT liN RESPONSE 

TO Oi!IDER llSSUED TiliNE 2, 21J16, 

TO PROVIDE REQUESTED llNFOIDMIAHON 

)1_1\TJj]) 

REPLY TO COThfi"LMNANT'§ RESPONSE TO SHOW-CAUSE ORDER 

ISSUED Nif_A Y l7, 2016 

Historv of u'le Proceedings 

The Federal Aviation Administration's Southern Regional Counsel ("Regional Counsel" or 

"F A.A.") seeks a $5,850 fine relating to a small shipment oflye five years ago. Respondent 

Fisher Scientific Company ("Fisher") moved to dismiss the case for several reasons, including 

FAA's failure to explain how the shipment could possibly have involved any knov-~ng violation 

of the Hazardous Materials Regulations ("ffil!l:Rs"). 

Fisher participated in two "informal conferences" ("ICs") with Regional CounseL During the 

first IC, on July 16,2014, Fisher explained that the boilerplate Notice of Proposed Civil Penalty 

("NOPCP") that Regional Counsel served July 3, 2013, included downright bizarre factual 

allegations and was based entirely on 1-'J.VIRs that were not in effect on July 21,2011, the date of 

the alleged incident_ More specifically, Fisher pointed out to Regional Counsel during the 2013 

IC that the volume of lye being shipped (just one liter) was so small, the shipment was a 

"limited quantity" ("LQ") that was exempt from certain packaging and other requirements that 

would otherwise have applied. Regional Counsel wrote the NO PCP in 2013, after the maximum 

volume for an LQ of lye decreased to one-half liter, but the change in the 1-lJ:\I!Rs was not and 

could not be retroactive to a shipment in 2011. 

More than a year later, on July 24, 2014, Regional Counsel served an Amended Notice of 

Proposed Civil Penalty (".A_NOPCP") that dropped allegations in the first Notice but added a 
Report and Rep{v of Respmuient ~4fsher Scientific 

completely new claim that, when Fisher prepared the subject shipment, it was somehow required 

to stuff the packaging with "absorbent material." J\line months later, on April22, 2015, Regional 

Counsel convened another IC with Fisher's senior in-house counsel and top hazardous materials 

transportation managers on the line. Respondent's counsel pointed out that, in addition to 

relying on BivfRs that were not in effect at the time of the alleged incident, this brand-new claim 

was time-barred because it was lodged more than a year after the applicable two-year statute of 

limitations passed. Respondent's counsel also asked then-Regional Counsel of record, Will 

Vines, Esq., to explain why FAA refused to accept that the LQ Exemption covered the subject 

shipment. Mr. Vines stammered for half a minute, then abruptly terminated the conversation 

without offering an answer. 

Regional Counsel served its Complaint in mid-June, 2015. Respondent promptly moved for 

dismissal. 

Judge Rawald's April 6, 2016, Order Directing the Parties to Meet and Confer Regarding 

Litigation and Scheduling Tssues 

AJ'ter the two ICs, Counsel for the parties had no other communication until Judge Rawald issued 

the April 6 Order. Fisher had to work hard to initiate contact. The undersigned phoned ilfrr. 

Vines on April 15 and left a voicemail specifically referencing the April 6 Order. Mr. Vines 

never returned the call. The undersigned then emailed Mr. Vines on April 18. The foil owing 

day, Mr. Vines advised by email that a different FAA attorney, whom he identified as Michelle 

Harper, was handling the case for Complainant. Ms. Harper had not entered a_n appearance in 

the matter but she phoned Respondent's counsel on April 20. 

Telephone company records show that the entire April 20 conversation lasted 20 minutes 

(Attachment 1 ). It covered the follovving topics: (l) personal introductions; (2) Judge Rawald' s 

April 6 Order; (3) the content of the Joint Report to be filed in response to the April 6 Order; ( 4) 

Respondent's Motion to Dismiss the Complaint; and (5) Respondent's request to meet with 

FAA's newly assigned counsel to hear whether she, unlike Mr. Vines, could explain why FA_!\ 

contends that the subject shipment did not qualify for the LQ Exemption. 

To!Jk 1 consumed about five minutes of the conversation. On Topic 2, counsel mutually agreed 

that it was impossible to lr..now whether any discovery or hearing would be needed, much less to 

propose dates for such additional proceedings, because Fisher's Motion to Dismiss would be 

dispositive of the entire case. On Topk 3, Respondent's counsel agreed to prepare a draft Joint 

Report to that effect and FAA's counsel agreed to review it, to offer any needed edits at<d sign it 

if no edits were needed. Under Topic 4, FAA asserted that the Motion to Dismiss should be 

denied; Respondent's counsel explained why the Motion to Dismiss should be granted. 

2 
Report m;d Reply of Respondent Fisher Scimztific 

Approximately 18 minutes into this 20-minute conversation, Respondent's counsel brought up 

Topk 5. That part of the conversation, which is reproduced below in its entirety and as close to 

verbatim as possible, went as follows: 

MR. Cox: You know, it woufd really be a shame to insist tlwi the Judge must decide the 

Motion to Dismiss aml allow the proceedings to go forward if you will have no case to present 

on the merits. We asked Vlill Vines more tht.m once to explain why the shipment was not 

exempt under the Limited Quantiyt Exemption Can you please explain that one to me? 

lvfs. hARPER (CHUCKLlNG): I haven't looked at that file in years. 

MR. Cox: Maybe this wouid be a good time to do tkat. 

M~s. HARPER: 01(, l'lllook mit and get back to you in the fi;st half of next week. 

This portion of the conversation lasted approximately two minutes. 

Immediately after the April20 conversation, Respondent's counsel sent a draft Joint Report for 

Ms. Harper's review, edits and signa..ture. Ms. Harper failed to respond. After hearing nothing 

from FAA for another week, on April 27, the undersigned phoned Ms. Harper to urge her to sign 

or suggest changes to the proposed Joint Report. She did not answer her phone. She did not 

return the call. Two days later, on April 29 (see Attach.;nent l, entry for two-minute call to 

Atlanta), as the Judge's deadline for submitting the Joint Report loomed, the undersigned 

telephoned Ms. Harper again, leaving the following voice message, reproduced here verbatim: 

MR. Cox: This is Jerry Cox with Thernw Fisher in DC. 1 sent you a draft Joint Report on 

April 20 but never heard lmck from you. We're up against tlte deadline, so I'm going to 

witJulrmv tlte draft Joint Report and Tile;mc Fish._<T will Jzm'e to file its own Report. Feel free 

to call ine when you llYe prepared to discM-ss the case. 

Accordingly, on April30, Respondent filed a unilateral Report and moved for sanctions against 

FA ..A for ignoring the Judge's April 6 Order. F />..A filed no Report of its own and ignored 

Respondent's Motion for Sanctions. 

Judge Rawald's May 17 Show Cause Order 

Regional Counsel remained AWOL until the Judge ordered F-AA to show cause why it has not 

"constructively withdrawn" its Complaint and the why the Judge should not "dismiss the case 

with prejudice." Order to Show Cause at 2. 

3 
Report and Repl_J' of Respondent Fisher Scientific 

L-1 its Response to the Show Cause Order, F P.J'L equivocated about whether Ms. Harper received 

Respondent's voice messages and argued t.hat, even if she heard but chose to ignore them, 

Respondent could have simply indicated to the Judge that she "agreed with the position 

articulated, even without [her] signature." Complainant's Response to Show Cause Order,~~ 5 

and 6. Despite repeated efforts, however, the undersigned had no way to know whether FAA 

had even received the draft Joint Report, much less whether Ms. Harper approved it. 

FAA told the Judge that Ms. Harper and Respondent's counsel "had a lengthy phone call 

discussing the issues in the case, as well as the information required by the Order," id. ~ 2, and 

that "the pa..rties did indeed meet and con:fer on April 20, 2016, as required." I d. ~ 4. FAA went 

on to claim that "the parties had a thorough discussion of the underlying facts of the case," id. 

(emphasis supplied), and that Respondent's Motion for Sanctions is "filled with mistruths [sic]" 

(id., ~ 6). 

The undersigned is not entirely sure what a "mistruth" is, but he would be willing to sign an 

affidavit that each and every averment he has made to the Judge was true and correct ai1d in full 

compliance with Rule 11 of the Federal Rules of Civil Procedure ("FRCP") and professional 

ethics requirements relating to candor before a tribunal. It is for the Judge to determine whether 

a 20 minute phone call, only two minutes of which was devoted to the merits of the case, and 

which Complainant's counsel cut short because she hadn't bothered to read the file, was 

anything resembling a "thorough discussion." 

By contrast, it speaks volumes that Ms. Harper did not sign FAA's Response to the Show Cause 

Order. It appears to have been approved by someone else whose name is not typewritten 

anywhere on the document and who has never entered an appearance in the case. FRCP ll(a) 

explicitly requires tl1at "every pleading ... ai1d other paper must be signed by at least one 

attorney of record ... [and] [t]he court must strike an unsigned paper .... " FRCP ll(b) provides 

that "by presenting ... a pleading ... or other paper ... an attorney certifies that to the best of the 

person's knowledge ... factual contentions have evidentiary support .... " Sanctions may be 

imposed on the "attorney ... or party," FRCP ll(c). Unless F f\Juecants quickly, Respondent 

plans to move for such sanctions because Ms. Hmper' s statement to the Judge that "the parties 

did indeed meet and con:fer [and] had a thorough discussion of the underlying facts of the case 

.... "is both highly material and plainly false. 

B&Jlort to Judge Rawald in Response to the Orders to Provide Requested Information 

In his June 2 Order, Judge Rawald admonished Respondent to "file a Report including all of tl1e 

information requested in the Order Directing the Parties to Meet ;u1d Con:fer." 

Respondent has diligently undertaken a..-td continues to do everything huma..-liy possible to 

prepare and submit a Report that ·would, among other objectives, lay out a "schedule for 

4 
Report aild Rep{v of Respondent Fisher Scientific 

completion of discovery," proposed dates for preheating conferences, filing of preheating 

motions and hefu-ing dates. Order to Meet and Confer at 1-2. Unfortunately, because FAA has 

steadfastly avoided meeting with Respondent or participating in any sort of substantive 

discussion- even after the undersigned made additional telephone requests to Ms. Harper on 

May 31 and June 3, Respondent can only guess what the issues would be, much less what 

discovery would be needed to address them, how long it would take to complete such discovery 

or what witnesses would need to be called. 

With that said, Respondent provides below, to the greatest extent information is available at the 

moment, the following information requested by the numbered portions of the April 6 Order. 

Respondent's responsive information is presented L,, italics: 

1. The parties shall privately conduct an informal conference to meaningfully discuss 

litigation issues and proposed scheduling. 

RESPONDENT'S REPLY 

FAA rebuffed multiple requests from Respondent's counsel for a meetjng, startjng on April 15, 

2016, on the grounds that it has been years since Regional Counsel has read the file. This has 

made it impossible for Respondent to address with FAA either litigation issues or proposed 

scheduling. 

iRJEQlUE§1'ED lLWFO:RlVKA UON 

2. The parties shall draft a Joint Report providing: 

a. a suggested venue, 

RESPONDENT'§ REPLY 

Without FA .A's cooperation, Respondent has no way to know what witnesses would need to be 

called or what venue would be most convenient to them. However, Respondent tentatively 

suggests that Washington, DC, ·would be the appropriate venue because the Judge is here, 

Respondent's counsel is here and key Fisher witnesses are in the Northeastern United States. 

b. a proposed schedule for the completion of discovery, 

Until EM is compelled to participate in the infonnal corr{erence referenced in Item # 1, above, it 

will remain impossible to know what witnesses the agency intend.s to present, what experts, if 

any, Respondent would need to call to testifY and who possesses relevant iriformation. The time 

5 
Report and Re_ply of RespOFident Fisher Scientffic 

needed to complete discove1y, of course, will depend on how many witnesses are involved, where 

they are located, and what their schedules allow for. Witnesses may also need additional time to 

r~fresh their recoliections about events that occurred five years ago. Respondent would, in any 

event, require production of physical evidence related to the alleged leak. Respondent 

understands ;i·om a letter Mr. Vines sent on November 20, 2014, that FAA. either destroyed the 

bottle and the packaging material, including the box in which it was shipped, or allowed this 

evidence to be destroyed. it may take months iD determine how much of the physical evidence 

continues to exist and ·what, ifanything, experts can deduce fi·om it. Respondent may also need 

to seek sOJJctions against FAA on account of such destruction of evidence. 

c. a list of any pending motions ... , 

RESPONDENT'§ REJP'L Y 

Respondent's lvfotion to Dismiss Complaintfor Insufficiency and for Complainant's Violation of 

Rule 208 was .filed June 23, 2015. 

RJEQliJJE§TJED INJFOID1ifil. TION 

d. a proposed date for a telephonic prehearing conference ... , 

Respondent is, of course, willing to participate in a preheating conference, by telephone or in 

person, on July 20, 2016, or nearly a;~y other date that would suit the Judge's convenience. 

How ever, without more infonnation about the issues FAA will raise, Respondent is uncertain 

what could be accomplished. 

e. a proposed date for the filing of any prehearing motions ... and 

RESPONDENT'§ P.JEJi.'LY 

While Respondent cannot suggest a date for filing pre hearing motions, it likely ·would need to .file 

a motion for a more definite statement before it cou/d.file its Answer. 

f. proposed hearing dates ... acceptable to all parties. 

6 
Report and Rep{v af Respmulent Fisher Scientf(ic 

Respondent submits that no hearing will be needed in this case, but ifa hearing wiil be held, ii 

requests the earliest date consistent·with and allowable under the law and FAA. 's Rules of 

Practice. 

3. [service instructions] 

RE§JPON:DENT'§ REJI:'LY 

Respondent timely served- in accordance ·with these instructions- the best Report it could 

muster in light of the total lack of response from FAA to the drcift Joint Report it ()/}ered 

Regional Counsel on April 20. 

Conclusion 

Respondent has no means to compel Regional Counsel to comply with the April 6 Order or to 

respond to Judge Rawald' s May 17 Show Cause Order. Fisher cannot provide any more 

requested information until FAA_ stops hiding behind the pending Motion to Dismiss. Judge 

Rawald has offered F Al\ multiple opportunities to comply with his Orders but the agency still 

refuses. 

V\'HEREFORE, Respondent requests that the Complaint be dismissed with prejudice. 

Dated: June 13, 2016 

----.~--.·-

Jerry\V Co!t:Esq 

2050Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

(email).'\· d~:U'.Q\c:S•:Jiii:£-;~.'Li:228i":;CLC2 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

7 

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2050 JA~11ESON AVE APT 1212 

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Exhibit 9 
REr~~:1\ tt::.C~, 

U.S. ]JEll' AR1'MENT OF 1'RAJ:'JS1l'ORTA ']['][ON -

OJFF:n:CE OF HiEARJING§ 

WASIDNIGTON, DC 

FEDERAL AV!AHON AflM]NJ[STRAHON, } 

Complainant, 

v. 

Fl§it-IER SCIJEN'filflC COMr ANY, JLJLC, 

Respondent. 

} 

} 

} 

} 

) 

) 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. F AA-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

RESPONDENT'S MOHON 

TO SHUKE COMll'JLAINANT'S RESlPON§lE 1'0 SHOW CAUSE ORDJER 

AND TO 

m:SM]S§ TJHE COIVll'JLAIN'f AS MOOT 

History of the FAA's Lnexcusable Delav 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 of lye almost 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 of limitations 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 Eh.1:ension); and 

4. Regional COlrnsel invited dismissal of the Complaint by ignoring the Administrative 

Law Judge's April6, 2016, Order to confer with Respondent's cotmsel and file a 

Joint Rep01t (Jler Fisher's Motion to Sanction FAA's Noncomplifu"l.Ce ). 

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 11 (a) of the 

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

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

FRCP ll(a), "the comt 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, government--vvide statute of 

limitations barring the commencement of ailY civil proceedings more than five years after the 

date the government's claim allegedly accrued. 28 U.S. C. Sec. 2462. See also US v. Core 

Laboratories, 759 F.2d 480 (5'11 Cir. 1985) and 3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 

1994.) 

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

five years and 1\vo months ago. 

It is pointless and grossly wasteful for Regional Com1sel 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 ifF AA were to prevail on the 

motions, Regional Counsel offers the prospect of even more wasted effmt in a heming FAA 

conservatively estimates >vmlld 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 Government is baned by statute from b1inging any court action to 

compel payment 

Respondent's counsel attempted to reach Regional Com1sel of record by telephone to ask 

whether this motion would be necessary, but her office receptionist refused to tal<e a message 

and slanm1ed down the phone in mid-conversation. Ms. Harper did not retum the call. 

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

or all of the grom1ds stated above. 

Dated: September 23, 2016 

,-\1 /\ L/i1 

Respe. Pjlll:li. ~u1ar· ned, 

J !I / { \ 

l. V 'f I i 

'. .lj/Jf i -

""-~/-, l I t ' /'1---.,tJ' 

I ; I J_.,., [;,J..., /kf / . en1y \~ . '-''-&; ,_,sq. / 

rj j 

205'0 Jamieson AVfL Suite 1212 

Alexandria, VA i2314 

(email) ·c_c .. · 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

2 
Exhibit 10 
In the Matter of: 

Fisher Scientific Company, LLC 

October 4, 2016 

Pretrial Conference 

Condelllsed Tr:mscript with Word Index 

F T1 . or - R ! I . ne ,ecom, nc. 

(301) 870~8025- www.ftrinc.net- (800) 921-5555 
Fisher Scientific Company, LLC 

-' 

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For The Record, Inc. 

1 (Pages 1 to 4) 
Fisher Scientific Company, LLC 

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involved is the sodium hyd.rox.iUe material, the Class 81JN 

1824~ lf you-- if you go to the hazardou') rnnterials 

table" it 1vi1i tell you exactly hm:v it's regulated, so 

tl1ars really the essence ofthose two paragraphs. 

JUDGERAWALD: Okay. And, so, lvlr. Cox, would 

you agree or disagree ·with :Mr. Ellis? 

Ivm .. COX: l'rn not entirely sure what he just 

said, other than I would jmt point out that in the 

amended notic~~ 4 and 5 changed. That "'vas filed more 

than hvo years after 1lle ulleg.ed incident A.nd they 

changed limn the original notice, to the amended notice, 

to the complaint So I'm not sure which of those they 

me savii1Q --·which one he's saying was fair notice to 

Resp~nd;~that tb.~v necd~-be ~=------

!viR. ELLIS: The Paragraph 4 in the original 

notice v,rhich --

JUDGE RAVlALD: Tvir. Ellis, hold on one second.. 

So, Iv1r. Cox., my question is, obviouslJ' the language in 4 

and 5 are different in the complaint 1llan what they were 

in the original notice, 4 and 5 in the compiaint mirror 

"ivha( s in the mnended notice. 

W11at I asked of both parties \vas -..vhether the 

changes to 4 and 5, \Vere i11 any way lll.:Lterial such that 

the Respondent was put unfairly on notice, so that ·would 

be a Rule 208 violation. lvfr. Ellis said, no, no, no, 4 

42 

and 5 were simply amended to make more clear what 

Oiibrina11y was in Paragraph 4, which yvas one sentence and 

they tumeU it into three or four sentences to exp1ain 

more about that in response to yom question at the 

informal conference. 

And so I guess, sir, my question is do you 

think that 4 and 5 are actually nc\v facts or arc they ~ 

lp-CJ~ly_:QJ.~*~g m_9r~ c)~az:_,yhal's already exislent in the 

notice for proposed civil penalty from 2013? 

MR. COX: Clearly, new facts. Especially if 

you have in front of you amended notice of proposed civil 

penalty file July 24, 2014, Pm·aQ:raph 4 is still talkinQ 

about corks. This case has nothing to do with corks. 

JUDGE RA WALD: Right. But it didn't make its 

\Yay into the complaint, si.r, so _I'm not 2:oimr to wmn' 

about iL lfit's not in rhe complaint, it's not an 

issue. So it'sreally not an issue. 

l understand the Government can certainly drop 

things from the notice of proposed civil penalty and not 

make it in the complaint In facL thev dropped 

admittedly half their violations in the complaint stage, _ 

so they initially alleged sL"'\: violations in 2013, in the 

complaint there's only three.--·~-~-···,·--·~·~~~---~---~~-

"·--~~-·-·so~-Ob\:~IOU:Sf~,~,~the·;dvocacv was effective at 

some nolnt because you were able to at least get some of 

10/4/2016 

those 'iolations off the toble here. 

2 So-- okay. So that's all the questions and 

3 concerns I have on the insufficiency and the 208 issue. 

4 Now. Mr. Cox has mentioned the fact that he's 

5 also asked or mentioned three other bases. I'm not going 

6 1.o take 8!gument on thoSe issu_e_s today. I'm rerJly: 

7 --~focused on the procedural issues, which are at the very 

8 threshoid for issues under the regulations 111at go to 

9 whether the case exists or not. And then we can discuss 

10 more about il1e possible sanctions or other tlllng_? clmYp_ 

II the road. 

11 But at lhis moment I am not going to look at 

13 that. I want to look at these threshold issues and get 

14 . tl1ose ouL dealt with, in mv opinion first. That's what 

15 I'm looking at. 

16 So with Umt understanding, Mr. Cox. do you 

17 futYe anything else you want to brll1g up? 

18 MR. COX: Judge, I would simplv like to note 

19 for the record, my objections 1hat everytlling that lVlr. 

20 Ellis said is requir~_d unde£B:!Jle I L!£. be strJ(:ken, 

21 exactly for the same reason tlmt the supposed response to 

22 your motion-- I'm sony, to your order to sllD'w cause 

13 should be stricken. And that is going to be an 

24 · independent issue~ I guess, because the rules are really 

25 clear in Rule 1 L that it has to be counsel of record. 

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There's nothing in the re::..vonsc that-- there's 

no type'i'i'litten infonnation as to who signed that supposed 

response, \·vhether that's :tvh·. E11is' signatlrre or not, I 

don't know. But there are a lot of factual allegations 

mnde that are just flat untrue. 

And if M,. Harper is nm wiliing to put her 

:?ignature on that and 1isk sanctions for telling, as she 

caUs them, mistruths, then I don't think that it's 

reallv 1ight for a Resvondent to have to deal with ail __ 

attorney who is not of record in the case. And I \VOuld 

obicct to t11aL 

JUDGERAWALD: Okay. And,Mr.Ellis,]etme f 

tum to you. So, there is a complicating factor bere..in 

the fact that Ivls. Hmper has been noticeablv absent from 

, the proceeding. She didn't file anvthing in response to 

my initial notice requlling the parties to meet and 

confer: she did not file herself the re:,ponse to notice 

for s110iN cause_ you filed !.hat for her: and she hns nol 

aweared todaY. 

I 

l 

I· 

Tills is a problem, Cmmsd. TI1ere need;;; to be_ J i 

. someone from the FAA who is on this case tmd readv to J! 

prosecute this case, because rm proceeding YVith this l I 

case, I'm moving this case fonvard either ·waY. 1-\nd ~,·j 

'i~FAA~;t~--;;ot abandon this case. -1J1~v need to 

11 assign ~omeone to this case who js goin~r to be takin~r ; ! 

I' I 

ll (Pages 41 to 44) 

For The Record, Inc. 
Fisher Scientific Company, LLC 

45 

_-.-Jl'}I-tW-_ilie case. 

2 And if lV1s. Hmper can't take part in the case, 

3 you nt:ed to think about \\'ho else you want to nssign to 

4 the matter, sir. 

) MR. ELLIS: I hear you loud and clear, Your 

6 Honor. 

7 JUDGE RA WALD: Yes, sir. And so I would think 

8 about that fmihec 

9 iilld as for 1v1r. Cox's concems, 1 will take them 

10 under ad-visement and I'll consider \Vhether or not to 

ll consider them. 

12 But I do appreciate ever:· one showing up today 

13 and discussing these issues, they are importnnL I 

14 will--

15 !viR COX I have a question, Judge. 

16 JUDGERAWALD: Yes,Mr.Co~? 

17 l\11.1-<.. COX: Are you denying my motions? i\..nY of 

18 mv motions to dismiss? 

19 JUDGE RAW ALD:. 1 have not made anv rulings on 

2.0 ~\' motions at lllls point, sir. So \Yhat rm doing at the 

21 moment is I'm taking these first t\vo issues after 

22 argtmletlltmder advisement and I wiil \York on issuing an 

23 . opinion. 

24 I \Yill then look at the oilier issues you haYe 

25 raised more intensely and decide what to do about those 

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issues. 

I do not platt on having argmnent -on those 

issues. but if! c!o_ upon reviewing them furtl1er. think 

additional briefing or argument necessary. I will lei the 

parties lmmv. 

No. I understand your position on all three of 

those issues and I \Villlook at them further and then 

decide" bat I'll do with them I hm·en't made any 

decision J·eL 1V1r. Co.~ in the short tern~ 

MR. ELLIS: Your Honor? Your Honor. I have a 

question. 

ruDGER..A.\VALD: Yes. 

MR. ELLIS: Will we recei,-e a copy of tltis 

transcript? 

ruDGE RAW ALD: Well. so the trm1script \\ill 

come - I think it then gets passed to the docket but 

I'm not sure. But I \\ill make sure that all parties 

recei\'e a cop)' of the transcript once we get one~ yes. 

MR. ELLIS: Thank you. Your Honor. 

JUDGERAW.!UJ): Okay. Mr. Co~. so -just so 

YOU understand. what I will do is I will go ahead and 

issue a ,,nuen order regarding these two motions alone 

and then look at 1l1e otl1er U':lree issues .fnrU1er. I don't 

think there's anything in those. despite your concem. 

that will be worth my looking at before I dispose of 

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these t\vo very essential and baseline issues thm need to 

be dealt \Yith_ 

So, Ivir. Cox, any further questions from me? 

lviR. COX: No. Just I want to be clear that 

you're going to:-- iL' s your intention to hold in 

abeyance the motion to stril::e and the- motions to dismiss, 

including the motion to dismiss on mootness, because of 

the five :year statute of limitations. 

You're going to decide upon the issue about 

\Yhether the pleadin!l meets the sufficiencv requirements 

before vou decide whether the case is moot in the first 

. place. 

.MR. ELLIS: How in U1e \Vorld would the --l·m 

sorry. 

-!7 

JUDGE RA \V J\l.D: Yes. The reason why 1'111 doing 

tl.J.nt is because first of all, you raised the is~ue Yery 

recently of the G ovemment hasn't had a chance to brief 

it and r think also that I really \Vant to deal with tills 

_yerv baseline issue tlmt exists in the regulations. 

there's a reason for having a case dismissed. I mem~ 

these are- th~sc ure things in the regulation that 

exist as possible reasons a complaint can be dismissed 

m1d responses allmYed by that ans\Yer. So I Wtlllt to get 

those squared away. 

And then 1 will look at yourne\\'" issue :...-ou've 

'" ~0 

raised, a11d, if necessm':-, ask for briefing: from the 

Respondent -- oro e:\.ClL':iC me, the Complainant 10 r~spond 

to yvhat you raised there, as far as the three or the fin-: 

y:ear stututc, sir. 

MR. COX: As long as I understand. Thank you. 

JliDGE RA Vi ALD: Okay. And so, lVIr. Ellis, just 

so vou understand, t\1r. Cox did file something last \Ye::k, 

raising the fact that there are several other issues he 

thinks llwt the case n~eded to he dismissed because of .. 

1

, 

one of 1.vhich is a five vear statute of limitations. 

I do ask thal you not spend any time responding 

_I_o tl~~:'il_~\llii1~l:ilr9I:;;d~ii~·e;;'c:;l';thi';';;at~v:;',o;::t:':l':id~o"ii::n::;a;'bi::n::i·:eri'i·i;:;n~-;;g:::, o~kf'-.,:;;.,:::~ ,="--- ~ 

sir? 

MR. ELLIS: Yes, Your I-Ionor. 

JUDGERAWALD: Okay. So any oU1erquestions 

for me~ mL Elli:s? 

MP .. ELLIS: No, Yow- Honor. 

JUDGE RA WALD: Okay. Lasl chance for any 

questions, Jvh·. Cox. 

1v1R. COX: Just to note thal_ the rules require 

. the FAA to respond witl1in. I think ifs !0 davs lo the 

motion to strike. 

JUDGE RA \\/A_LD: l undcrsiand, sir. But I dl> 

have some tlexibility as far as being a Jud!!e nnd 

dictating hm>..- the schedule of events goes. And so12 (Pages 45 to 481 

For The Record, Inc. 
Fisher Scientific Company, LLC 

-!9 

MR COX: I understand. sir. but only if 

thev 've asked for an extension. If von take a close look ---·---------- " _, at the regulations, tbev have to ask you for an extensi~m 

4 _ fll"!.,d: state a reason whv. 

5 JUDGE Ri-\ \V ALD: Sir, given my current posture in 

6 this case~ I don't want briefing on the issne, not right 

7 no\v. So I --yvilll~ok more ai you~iss~e. But I am 

8 stating here the Government should send a brief in 

9 response to your motion to strike at the moment. 

lO MK COX: Understand. I understand· " 

ll MR. ELLIS: Yes, Your Honor. 

12 JUDGE RA_ \V ALD: Anything else for u....:; to discuss? 

13 (No response.) 

14 JUDGE RA\VALD: Okay. At tllls poin~ let's go 

15 ahead and-- I appreciate everyone taking the time toda:y 

lG and giving me some good argument on the issues. So we'll 

17 go ahead and go back and look at hm:v we're going to 

18 decide this case and then we']] let vou L""lO\Y in a written 

19 o.p.i.11ion htJ\\' T decide ihese t'vo issues and then what's the 

20 next step in this case. 

21 So thank:you for your time and let's go ahead 

?? and go off the record. Thank: you. 

23 MR. ELLIS: Thank yon, Your Honor. 

24 (\I./hereupon, at 11:05 a.m., the heaii11g 'vas 

IS concluded.) 

2 CERTIFICATE OF REPORTER 

3 

4 l, Karen Guy, hereby certii)' that the forc;going 

5 proceedings were recorded by me via digital recording and 

6 reduced to typevaiting under my supenrision; that I am 

7 neither counsel for, related to, nor employed by an:• of 

8 the parties to the action in which these rn·oceedings were 

9 transcribed; and l'urther, that I am not a relative or 

10 employee of any attorney or counsel employed by the 

11 parties hereto, nor llnancially or othenvise interested 

12 in the outcome of the action. 

13 

!4 

15 

!6 

17 

18 

!9 

20 

21 

22 

23 

24 

25 

KAREN GUY 

For The Record, Inc. 

10/4/2016 

]} (Pages 49 to 50) 
Exhibit 11 
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. F AA-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

ERRATA FOR OCTOBER 4, 2016, PRETRIAL [SIC, PREHEARING] 

CONFERENCE 

1. In the title, delete "pretrial" and insert in lieu thereof "pre-hearing." 

2. The transcript does not, but should, include the undersigned's objection, just before 

10:12 a.m., to proceeding with the hearing after agency counsel of record failed to 

appear. 

3. On p. 5, line 2, delete "admit" and insert in lieu thereof "dismiss." 

4. On p. 9, line 10, delete "thoughts" and insert in lieu thereof "former boss." 

5. On p. 34, line 7, delete "from defense." 

6. On p. 37, line 12, delete "through" and insert in lieu thereof "to prove." 

7. On p. 49, between the words "should" and "send," insert the word "not."