# RECEI\/ED NOV 2 82016 

## 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 ofFisher 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 ofThermo 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 "FAARules"), 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 ofits 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 inthe proceedings, ignoring multiple ALJ Orders and failing without excuse to appear at a pre-hearing conference ordered bytheALJ, has constructively withdrawn the Complaint?PURPOSE AND STANDARD OF REVIEWFORTHE APPEAL FAA long ago established the "interlocutory appeal ofright" to help the Administratorprevent agency counsel, a private party respondent or anALlfrom wasting public and private resources on administrative litigation where, as a matter oflaw, one side or the other has failed to participate inthe proceedings or to present its case. Accordingly, when it adopted Rule 219(c) in 1990, 1 FAA decided not to depend on anALJ to prevent needless litigation and provided, in pertinent part, as follows: "Aparty may file an interlocutory appeal
... without the consent of the administrative lawjudge
... in the case of
... (2) failure ofthe administrative lawjudge to dismiss the proceedings in accordance with§ 13.215
...." (Emphasis supplied.) The plain language ofthe 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 notjustparties but also an ALlfrom allowing wasteful litigation to proceed. That is why Rule 219 also specifically provides that, when the ALJ's receives a Notice ofAppeal, "theproceedings are stayeduntil 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 ofsodium hydroxide solution (commonly known as "lye") by air five-and-a-halfyears 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 pertinentpart, that the lye was packaged in some respect that violated the Hazardous Materials Regulations ("HMRs"). 3

1 Federal Aviation Administration, "Rules ofPractice for FAA Civil Penalty Actions," Final Rule, 55 Fed. Reg. 27548,27567-68 (July 3, 1990) ("Final Rule"), codifiedat 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 ofrespondents." See also FAA, "Rules ofPractice for Civil Penalty Actions," Notice ofProposed 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 itselfwhether the ALJ followed "applicable law, precedent and publicpolicy." FAA Rule 233(b)(2). 3 Complaint at 2 (June 4, 2015) (Exhibit 1). Respondent's Appeal ofRight 

### 2Fisher promptly movedto dismiss the Complaint based, inpart, on agency counsel's failure to lodge at least one ofthe key allegations withinthe two-yeartime limit established by FAA Rule 208.4 Agency counsel ofrecord did not file a timely response to Respondent's Motion to Dismiss but the ALJ nevertheless movedthe 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~** orderedthe 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 eventhe most basic questions about the substance ofthe case because she had not looked at the file in years. She promised to reviewthe file the following week and asked the undersigned to prepare a Joint Report. Respondent immediately offered a draft JointReport 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 ofthe ALJ's demand.7 Instead ofdismissing the Complaint, the ALJ issued a Show Cause Order that stated anunequivocal threat: the Complaint would be considered "constructively withdrawn" unless agency counsel filed "a statement explaining the cause oftheir failure to comply" that "shall include
... the informationrequested 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 underthe FAA Rules andnever submitted anything purporting to provide the information to be included in the Report required by the April 6 Order.9 Someone whose name is nottypewritten on the document submitted a two-page purpmted third-hand account ofa 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 ofthe fuctual representationpresented inthe purported response to the Show Cause Order violated

4 Motion to Dismiss Complaint for Violation ofRule 208 (June 23, 2015) (Exhibit 2). 5 Agency counsel filed a late request for an extension oftime -from 10 days to nearlytwo months

- to reply to the Motion to Dismiss but offered no excuse for theirlate filing ofthe request and did not state any grounds acceptable under FAA rules for grantingit. Opposition to Extension at 2 (July 7, 2015) (Exhibit 3). In complete disregard ofcontrollingRules, theALJ- atthattime, 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 andProvide 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 Briefonly for the purpose ofshowing that it was never signed by agency counsel of record. 

### Respondent's Appeal ofRight 3Federal Rule ofCivil Procedure 11(a), which provides, in pertinentpart, that any unsigned "pleading
... and other paper must be signed by at least one attorney ofrecord" and that failure to "promptly correct" an unsigned paper after the omissionhas been called to the party's attention leads to a single, mandatory sanction: "the court muststrike an unsigned paper" (emphasis supplied). FAARule 207 evenmore explicitly bans recognition ofunsigned filings. Itprovides that the "attorney of record
... shallsign each document tendered for filing with the hearing docket clerk, the administrative lawjudge, 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 ofdismissing the Complaint at thatpoint as required by Rule 219, the ALJ orderedthe 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 inprosecuting the case, agency counsel failed to appear at the hearing. The ALJ spent almost 15 minutes trying to get someone at the office ofSouthern Regional Counsel to answer the phone. He finally rounded up an attorney who was not counsel ofrecord. The undersigned inm1ediately objectedto any hearing onthe matter after agency counsel of record had once again constructively withdrawn the Complaint11 but the ALJ, without explanation, insisted on proceeding. He startedby asking why counsel ofrecord, 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 onprosecuting the matter himself whether FAA took part in the case or not. 14 Judge Rawald admitted there were multiple reasons to consider the Complaintto have been withdrawn. He noted that FAA counsel ofrecord "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 herselfthe response to notice for show cause; ... and she has not appeared today." Despite these serious lapses onthe part of Regional Counsel, the ALJ essentially indicated that he intended to take over from agency counsel: "There needs to be someone onthis 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 ofPre-Hearing Conference ("Tr. Errata") (October 4, 2016) (Exhibit II). 12 Transcript ofpretrial [sic, Pre-Hearing] Conference ("Tr.") (October 4, 2016) (Exhibit I0) at 2-3. Under FAA Rule 219(d), Respondent's Appeal Briefwas due within I 0 days ofthe ALl's ruling thatthe case will go forward. The Office ofHearings 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 at43-44. 15 !d. at 44-45 (emphasis supplied). Respondent's Appeal ofRight 

### 4At the conclusion ofthe hearing, the undersigned objected once again and asked for inunediate consideration ofRespondent'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 CRITERIAFORRECOGNIZING A "CONSTRUCTIVE WITHDRAWAL" OF A RESPONDENT'S REQUEST FORA HEARING MUST BEAPPLIED EQUALLY TO THE GOVERNMENT'S "CONSTRUCTIVE WITHDRAWAL" OF A COMPLAINT. The Administrative Procedure Act, 5 U.S.C. § 551 etseq., forbids FAA to adjudicate the imposition ofa civil penalty on a private party Respondent without first affording an opportunity for a fair hearing on the merits ofthe agency's allegations. For years, private parties have complained that FAA's civil penalty procedures are not only unfair, but in plain violation ofdue 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 ofseparation betweenALJs, 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 Afterjudicialintervention in the late 1980s, FAA adopted the Rules ofPractice that govern today to address criticism that the prior rules were "inadequate to ensure a system ofadjudication that is bothfair 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 ofRight 5The outcome ofthe instant appeal will indicate whether FAA is actually abiding by its own Rules or falling backinto its old ways, thereby inviting new scrutiny by Congress and the federal courts. The basic issue is whether agency counsel cantalce a "fire-and-forget" approach to prosecuting a civil penalty case. More specifically, denial ofthis appeal would establish one set ofrules for "constructive withdrawal" ofa private party Respondent's Request for a Hearing and a policy ofnot applying the same standards to agency counsel's conductto the point of immunizingthem against a fmding that they "constructively withdrew" a Complaint. Over many years, ALJs have repeatedly used the failure ofa 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 ofconstructive withdrawal, especially in connection with his April, 2016, mass mailing ofOrders to Meet and Confer to parties in cases onhis docket. When a party, in defiance ofthe ALJ's Order to Meet and Confer, failed to co=unicate with opposing counsel and put them in the position ofhaving 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 inthe matter because, when a party "withdraw[s] a request for a hearing
... the administrative lawjudgeshall dismiss the case withprejudice."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, inparticular, seems to have concluded that the govemrnent is exempt from requirements to participate in an administrative process thatthey instigatedby filing a Complaint.



### ll. AGENCY COUNSEL "CONSTRUCTIVELYWITHDREW" FAA's 

### COMPLAINT. Inthe cases referenced above, Judge Rawald recited the following fact pattern tojustifY dismissal ofRespondents' request for a hearing:

21 See, e.g., Matter of Bonanza ValleyAviation, 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 ButteAviation, 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 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 ofRight 61. Respondent requested a hearing. 2. Respondent was served with a Meet and Confer Order and an Orderto Show Cause. 3. Respondent failed to comply withthe Meet and Confer Order. 4. Respondent was "advised inthe Orderto 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 inthe proceedings
... constitutes a constructive withdrawal ofthe 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 ofrecord failed to "file a statement explaining the cause oftheir failure" and include "informationrequested in the Order." 5. Complainant filed no statement explaining the cause oftheir failure or including the requested information. 6. Infact, 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 ofrecord and must be stricken from the record under FRCP ll(a) and FAA Rule 207. 7. Counsel ofrecord 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 ofthe Complaint. Ifthe FAA decision-maker rejects the instant Appeal and fmds that such a constant lack ofparticipation by agency counselas enumerated by the ALJ hirnself 26

- does not necessitate a finding ofconstructive withdrawal ofa Complaint, agency counsel may bejustified in considering themselves immune from dismissal. In effect, rejection ofthe Appeal would establish a "one-strike-and-you're-out" rule for private party Respondents and a blind eye toward exactly the same conductby 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 ofa 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 ofRight 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 lawjudge. Ifan agency attorney withdraws the complaint
... the administrative lawjudge shall dismiss theproceedings
... with prejudice." (Emphasis supplied.) As Part IIexplains above, agency counsel constructively withdrewtheir 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-makerto immediately dismiss the Complaint with prejudice. Dated: November 25,2016

Respondent's Appeal ofRight 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

8CERTIFICATE OF SERVICE

OnNovember 25, 2016, the undersigned sent by the indicated type(s) ofservice at least one copy ofthe foregoing Notice on each ofthe persons listed below.


### 00 [One Copy by U.S. Certified Mail] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey 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 ofTransportation Federal Aviation Administration Southern Region 170I ColumbiaAve. College Park, GA 30337

Respondent's Appeal ofRight [One Copy by air courier] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Ave., S.E. (Ell-310) 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 2Wl000 

### 00 [One Copy by U.S. Mail] Ryan M. Landers, Esq. Senior Attorney Enforcement Division, SouthernTeam U.S. Department ofTransportation 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 ofthe Rules ofPractice (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 ofProposed 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 ofthe material is sodium hydroxide solution. Ir 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 ofhazardous material for transportation by air and failed to use a means ofcontaining the liquid in the form of a leakproof liner, plastic bag or other equally efficient means ofcontainment. 8. Fisher offered the shipment ofhazardous 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 ofhazardous materials for transportation by air and failed to ensure the closure was secure and leakproof. 10. By reason ofthe above, Fisher violated the following Department ofTransportation Hazardous Materials Regulations (Title 49 ofthe Code ofFederal 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 ofhazardous 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 ofhazardous 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 aleakproof 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 ofTransportation Hazardous Materials Regulations. Under the facts and circumstances of this case, a civil penalty of $5,850 is appropriate. This amount includes consideration ofthe 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 ofthe Regional Counsel day ofJune, 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 ifappropriate, not later than 30 days after the date shown on the Certificate ofService which follows.

# Exhibit 2

### U.S. DEJl'AR'flVIENT OF TRANSPORTATION OFFICE OF HEAR.li'I!G§ WASHINGTON, DC

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

v. } } 

## l Inthe Matter ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 } (Civil Penalty Action) 

### FISHERSCffiN'fllFIC COMPANY,

### JLJ..C, Respondent. } } Judge Goodwi.n



### MOTION§ TO JI)][§MJSS COMPLAli.NT FORINSUFFICIENCYAND FOR COMPLAINANT'S VIOLAHON OF RUlE 208
RespondentFisher Scientific Compaoy, LLC, a subsidiary ofThermo Fisher Scientific, Inc., (hereinafterreferredto as "Fisher") moves to dismiss the Complaintinthe above-captioned civil penaltyproceeding onthefollowing two independent grounds. First, the Complaintfails to state

a "knowing"violation ±or whicha civil penalty maybe imposed. Second, by including allegations that were first made morethaothree years afterthe allegedincident, the Complaint violates Rule 208( d) ofthe Federal AviationAdministration's (hereinafter "FAA's"or "the Agency's") Rules ofPractice ("Rules''). FAA's SouthernRegional 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, whenFisher shipped a single liter ofa cmTosive liquid commonly knovvn as lye. First, Regional Counsel alleges that Respondent "knowingly offered ... a ... shipment ... containinghazardous materials for transportationby air." CompL

**~** 1. Second, Regional Counsel claims Respondent "violatedthe ... hazardous materials regulations" ("HMRs") because it "failedto ensure that [the bottle oflyewas] ... packagedwith absorbent materials ...." CompL

**~** 10.c.Respondent'sIvlotion to Dismiss
Motionto Dismiss for Insufficiency The Hazardous Materials Transportation Act ("Hiv1TA"), Pub. Law No. 93-633, 88 Stat. 2156, 2160 (Jan. 

### 3, 1975), 

### codifiedas amendedat 49 U.S.C. 

### §5123(a)(l) (2011), allows the Governmentto impose a civilpenalty upon a "personwho 

### knowingly committedan actwhich is
aviolation of'the HMRs 

### (emphasis supplied). A later recodification made a non-substantive, editorial change. It reworded

### the sentenceto say the Government may impose a civil penalty on
a "personthat knowingly violates" the Hl\{Rs. Nowhere in the Complaint does Regional Counsel allege that Fisher "knowingly" committed any actwhich is a violation ofany 

### li""MR. It merely states that Respondent "knowingly offered" a declared shipment ofhazardous materials.
There are other, more specific allegations inthe Complaint, but none ofthem allege a "knowing" violation. 

### Inthe example referenced above, Regional Counsel claims Respondent "violated" 49 C.F.R. 

### § 173.27(e),butthere is no allegationthat Fisher "knowingly" committed any actwhich violates it The cited HMR applies certainpackaging requirements to some hazardous materials shipments but notto others. In this case, the lye was a "limited quantity" shipmentthatwas exemptfrom the specificationpackagingrequirements and otherwise fully complied with 

### all applicable 

### Hiv1Rs. However, even ifone were to assumethat§ 173.27(e) did apply to the shipment when it
was offered in 20ll and that Fisher failed in some respectto comply withit or any other HMR, the H""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), 

### codifiedat49 U.S.C. 

### § 5123(a)(l)(A) and (B) (2011), unquestionably requires the Agency to allege and prove that Fisher "knowingly committedan act which is a violation of'that
or some other 

### HMR.
As explained in greater detail inRespondent's Memorandumin Support ofthe Motions to Dismiss, the statutory language governing the instant civil penalty proceeding is plain and unambiguous. Even 

### ifthere were some reasonto consider itambiguous, the legislative history ofclauses (A) and (B), which were added by the HMTUSA, leave no doubt that Congress adopted a new definition ofthe tenn "lmowingly" for the specific purpose ofprohibiting the Goverument from imposing a civilpenalty in a case involving transportation ofhazardous mate1ials unless it can showthatthe 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 ofthe Respondent Accordingly, the Complaint fails to state a violation ofthe federal hazardous materials transportation statute or regulations and mustbe dismissed for insufficiency pursuantto Rule 218, 14 C.F.R. 

### § l3.218(f)(1).

2Respondent'sMotion to Dismiss

Motion to Dismiss for Asserting a Claim About Which the Government Failedto Give Timely Notice As noted above, Regional Counsel asse1ts, among other claims, that Respondent "violated the ... hazardous materials regulations"because it "failedto ensure that [the bottle oflye was] ... packagedwith absorbentmaterials .... " The

### HMRs imposed no suchrequirement onthe shipment at issue in this case, but even ifone were to assume thatthere was a requirement for packaging the subject limited quantity oflye with absorbent materials, Regional Counsel was obligated to give timely notice thatthe Governmentplanned to base its Complaint on such a claim. FAA serveda Notice ofProposed Civil Penalty ("theNotice") onJuly 3, 2013. During an Infmmal Conference, Respondent pointed outto Regional Counsel that the Notice was expost facto, based almost entirely on HiviRs that were not in effect inJuly, 2011, when Fisher shipped tlle subjectpackage. The Notice contained no allegation whatsoever that Respondent was obligated to include "absorbentmaterials" or that Fisher failed to do so when it packagedthe lye. In fact, this Notice did noteven mention "absorbent materials." The frrst Notice ofthis claim
was servednot withintwo years, as required, but more than three years afterthe alleged incident, in FAA's Amended Notice ofProposed Civil Penalty ("the AmendedNotice") dated July 24,2014. Amended

**Notice~** f. Rule 208( d)(2) ofF AA's Rulesprovides, inpettinentpart, thatthejudge "may dismiss the complaint orthat part ofthe complaint alleging a violationthat occurred more than twoyears before an agency attorney issued the notice ofproposed civilpenalty" 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 inthe darkfur
more thanthree years about the Agency's intended allegations. To reward Regional Counsel's failure to give timely notice by allowingthis case to proceed would defeatthe stated purposes and policies ofRule 208, grossly prejudice Respondent's oppmtunity to defend itselfand constitute a denial ofRespondent's due process rights underthe U.S. Constitution. WHEREFORE, Respondentrespectfully moves to dismiss the Complaint onthe following two independentgrounds: 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 pursuantto 14 C.F.R. 

### § 13.208(d). Even 

### ifthe Complaint is not dismissed ouuight on account ofRegional Counsel's violation of Rule 208, that portion ofthe Complaint alleging a failure by Respondentto include "absorbent materials" in the packagingfor the subjectmaterials (i.e., 

### all of**Complaint~** 1D.c.) should be stricken, as alternatively provided 

### in Rule 208( d).

3Respondent'sMotion to Dismiss


### Respondentrecognizes the importance ofthe issues presented 

### in this case to hazardous materials civil penalty cases in general and respectfully requests an opportunityto present oral argnmentin person onthese 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 OFHEARINGS 

### WASHINGTON, DC 

# REC!EI\/E[)

FEDERAL

### AVJI.ATION ADlVTINISTRATION, } Complainant,
V. FISHER SCIENTIFIC COMPAl'l-1f, LJLC, Respondent. J } } } } } 

### Inthe Matter ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 (Civil Penalty Action) Judge Good\vi_n

llESPONDENT'S OPPOSITION TO COMPLAINAl'IT'S MOTION FOREXTENSION Respondent Fisher Scientific Company, LLC, (nereinafterreferredto as "Fisher") moved on June 23, 20 !5, to dismiss the Complaint inthe above-captioned civil penalty proceedingbecause the Complaint fails to state a "!mowing" violation for which a civil penalty canbe imposeD. and included allegations that were out-of-time andin violation ofthe Federal Aviation Administration's (hereinafter "FAA's" or "the Agency's'') Rules ofPractice ("Rules"). Instead offiling 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 evento allege the presence ofany grounds to grant such a moiion cognizable underRule 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 consideredto have waiveclFAA's opportunity to respond to Respondent's Motions to Dismiss. Rule 13.213(b) is clear. As with any other party, anF

### Alo. "motion for an extension oftime" must be filed witllthejudge "notlater than 7 days before" a response to a Respondent's written motion "is due." Regional Counsel filed FP,j;.'s motion for extension exactly zero days before the response was due. Ajudge has authority essentially to waive this seven-day requirement only 

### if"good causefor the late filing is shown." Nowhere inRegional Counsel's Motionis there so much as a naked assertion thatF 

### .AP, had "good cause" to file zero days ahead ofthe due date instead ofseven days al1ead, as unequivocally required under the Rules. 

### Inany case, the Rules allow ajudgeto grant an extension oftime to respond to a Motionto Dismiss only "ifgood cause for the extension is show11." Once again, Regional Cmmsel failedRespondent's Opposition to JlllotionjorExtension

even to include so much as a declarative statementthat such grounds exist. The Motion states that FAA desires "anextension in order to effectively respond 

### [sic]." It does not even suggest there are any special circumstances or any other reasons whatsoever to conclude thatthe time otherwise allowed by the Rules was inadequate. Absent those circumstances, the Motion for Extension would have failed even ifit had been timely filed. Regional Counsel goes on to claimthatFisher will not be "prejudicedby an extension." This statement is false but, even ifit were true, it does not constitute "good cause" for pennitting FAA to ignore the seven-day advance filing mle for its Motionfor 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 withoutmaking any pretense ofan affirmative sha;Fing why the requested e:x-rension is necessary. Regional Counsel's Motion is merely the latest example ofhow FAA's handling ofthis 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. ThatNotice made no allegation whatsoeverthatFisherfailed to employ a particular 

### type ofpackaging product. FAA. filed another Notice inJuly, 2014, more 

### tt'1au three years after the allegedincident, 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 fouryears after the event. Meanwhile, FAAhas overseen or pem1itted the destruction ofcrucial evidence. Ifthis 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;·. Jl'



### ~ 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
ORDERDIRECTING THE PARTIES TO 1\tffiET AND CONFERREGARDJ!NG UTllGATIONAND SCHEDULJ!NG ISSUES
The above captioned case was reassigned to the undersignedjudge onMarch 24,2016. By order ofthe ChiefAdministrative Law Judge, any previously established date for a prehearing conference ortrial was suspended. Those dates are now vacated and there is a need to establish a
new litigation schedule for this case. To assist the undersignedjudge, the parties should meet and confer to propose a mutually agreeable schedule. 

### An administrative lawjudge may hold conferences to, among other things, "settle [or] simplify the issues by consent ofthe 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. Theparties shall draft 

### ajointreport providing:
a. a suggested venue, b. a proposed schedule for the completion ofdiscovery (or an indication that discovery is complete), c. a list ofany pending motions.that have beenpreviously filed but have yet to be ruled upon, d. a proposed date for a telephonic prehearing conference withthe undersigned judge,

I 14 C.F.R. § 13.205.e. a proposed due date for the filing ofany prehearing motions (including a proposed date for a telephonic hearing on any filed motions, ifso 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 Clerkin accordance with 14 C.F.R. § 13.210, the parties shall submit the report to the undersignedjudge atthe Office ofHearings 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 5U.S. DEPA$'JflVIJEl'fF OF 'Jf.lR.ANSJP'OR'JfATION OFFICE OF tl!EAID""'NGS WA§HJIT"I/G'l!'ON, DC

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

### Complazimnt, 

### } 

### In theMatter ofFisher } Scientific Company, LLC 

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

### Respondent. } } } } DocketNo. 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, JudgeRawald directed Complainant, the Southern Regional Counsel ofthe Federal Aviation AdmiPistration (hereinafter referred to as "FAl\") and Respondent Fisher Scientific Company, LLC (hereinafter "Fisher"), to tile a Joint Report addressing certain pre-hearing matters thatwere listed in the Order, including "alist of any pending motions that have been previously filed buthave yet to be ruled upon-" Fisherregrets to reportthatFAA cou_nsel essentially went "AWOL" and thwarted Fisher's diligent efforts to respond to the Orderwith a Joint Report. Fisher's undersigned counsel telephoned the FA..A. attorney identified onthe 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 tothe April 15 voicemaiL On Aprill9, !Vlr. Vines responded that a differentFAA attorney was handling the case, even though 

### FleA never updated the service list On April 20, Ms. ]I;Iichelle Harper phonedto say she was the attorney responsible forF

**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 concurwith the draft and sign it or suggest any edits she thought appropriate. Ms. Harper did neither.Reportof Fisher Scierrtij7.c
A week later, on April 27, the undersigned phoned Ms. Harperbut, once again, she did not answer hertelephone. Fisher's counsel left a voicemail reminding her thatFisher was determined to comply with the Orderbut- without any response from her- itwould be impossible to file the required Joint Report. Ms. Haiper never responded to the voicemail. On April 29 -the deadline forfinalizing and mailing the Joint Report- theundersigned telephoned Ms. Harper again, but she did not a.>swer her telephone. Fisher's counsel indicated in a voice mail that ifFAA continued to ignore the proposed draft ofthe JointReport, Fisher would have no choice butto 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 ofthe April 6 Order isjustthe latest chapterin a five-year history of the Office ofSout.hern Regional Counsel dragging its feet and utterly ignoring applicable laws and Rules ofPractice. 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 ofProposed Civil Penalcy in July, 

### 2013. AfterFisherpointed outthattheNoticewas based on regulatory requirements thatwere notin 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, RespondentFisher filed a Motion to Dismiss the Complaint for legal insufficiency and for being baiTed by the statute oflimitations. The FA_A's own Rules ofPractice allowed F/'._A 

### 10 days to oppose Fisher's Motionto Dismiss, butthe agency did notfile its Memorandum in Opposition until August 

### 17, 2015, almost two months after itwas due. Fisher's Motionto Dismiss has been pending for nearly a year. The most appropriate way to sanction such egregiously dilatory conduct and get

### this ancient case offthe docket would be to order Southern Regional Counsel to SHOW CAUSE why dismissal should not be ordered on one ormore ofthe 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, Motionto Dismiss. ('No extension was permitted under FAA's Rules ofPractice for the reasons stated in Respondent's Opposition to F/'._A's Motion forFxtension.) 3. FAA's decision to waitmorethanthree years after the alleged incident and morethan 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'sMemorandum in Opposition, an additional copy ofwhich is actached, explain in detail why the case is barred as out-of-time.)

2Reportof Fisher Scientific 

### 4. FAA's failure to state alegaliy 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 requestfor 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



## \VASHl1.JGTON, DC

DocketNo. FAA-2015-1321 Fisher Scientific Company, 

### LLC ) ) ) ) ) Case No. 

### 2011S0700457 Respondent
ORDERTO SHOW CAUSE AND PROVIDJE PJEQUJESTED JlJ.'IFORJ\1.ATllON On Aptil 6, 2016, the undersignedjudge issued ili"1 

### OrderDirecting 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 ajointreport to the tmdersignedjudge within 

### 30 days 

### of that order. On April 3D, 2016, the Respondent filed aunilateral report, stating that his attempts to meet and confer with the Complainant had failed. 1 

### The 

### Complainant failed to submit a repott 

### orrequest tor additional tin1e before the 

### deadline2 

### In accordance v.ith 14 C.F.R. 

### § l3.205(a)(6), an adminish·ative lawjudge is empowered to regulate the course ofaheating. 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 ofaproceeding. Ignoring an ALJ's orders cannot be countenanced in an orde-rly system ofadjudie-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

1Respondent G"liled, however. to provide all tlte information requested inthe April 6, 2016 Meet and Confer Order. 2 Counsel forthe Complainant filed a notice ofappearance on May 10, 2016, bnt failed to include the information requiredby rhe undersignedjudge's April 6, 2016 Meet and Confer Order oT offer aresponse 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 aresponse to the April 6. 201 6 Meet and Confer Order. 'AmericanAirlines, 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 inthe proceedings as directedbythe undersiguedjudge maybe deemed a constructive withdra>val ofthe request torhearing or complaint by the party demonstrating sucb

a lack ofinterest in participating inthese 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 ofthe infmmationrequested 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 withthe OrderDirectingthe Parties to Meet and Confer Regarding Litigation and Scheduiing Issues. 

### 3. The Complaina..rtt shall include intheir statemem the i:n:tormation requested in the Order Directing the Parties to ]Vleet and Confer Regarding Litigation and Sc.hedniing Issues. 4. Ifthe Complainant fails to file t_his statement bythe above deadline, the trndersigned judge

### rnay issue 

### a subsequent 

### order finding 

### the Complainanthas constructively \'ritbdrawn from these proceedings and. pursuantto 14 C.F.R. 

### § 13 .215, dismiss tbe case 

### withprejudice.

Attachment: 

### SeniceList DOUGLAS 

### M. RlcWALD Administrative Law Judge

3 See, e.g, JAL PowerSupp[v, DocketNo. CPOl 300015 (FAAAug, 7, 2001) (i\LJ consnued Respondent's silence
as a constructive withdrawal orrequest for a hea:ting), appeal dismissed, FAA OrderNo. 2002-10 (Apr. 17, 2002): Blankson, DocketNo. CP97EA0024 (FAA Sep. 11, 1997) (ALJ found fuilure to respondto previous orders constituted consn·uctive withdrawal). aJ[c!, FAA OrderNo. 98-21 (Oct. 9, 1998), See also Instead Balloon Sen'ices, F

. .:V-\ Order No. 1998-23, at3 (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); ApolloA & HS Company, FAA OrderNo. 20 11·4, at 4 

### (lun, 14, 2011) 

### ("Apollo's failure to appear atthe hearing and to pursueirs request forhearing withoutgood cause constituted aconsn·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 DocketNo. 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 inthe case, as well as the information required by the Order Directing the Parties to Meet and Confer. At the end ofthe 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 ofthe 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 ofMay, 2016.



## -~~t:7- **ff~,** /dd.411]'i'f, 

### !ifl«/ley 

# r ANDREA MICHELLE HARPER Senior Attorney Office ofthe ChiefCounsel Enforcement Division, Southern Team



### 2

# Exhibit 8U.S. Iil.EJPAR'IM.EN'f OF 'Jf'RANSJPORTAUON 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 theMatter ofFisher Scientific Company, LLC DocketNo. FA.A-2015-1321 (Civil Penalty Action) Judge Rawald
RESPONJiJI.EN'I'§ REPORT 

### liN RESPONSE TO ORJiJIER ISSUED JllJNE 2, 20.1.6, TO PROVIDEREQUESTED JINFOR\ViiAHON 

### Al\JJlll REI'l. Y TO COiviJPLJ,\JINAN'I'S RESPONSE TO SHOW-CAUSE ORJlll.ER ISSUED W!AY 17, 2016 History ofthe Proceedings The Federal Aviation Administration's Southern Regional Counsel ("Regional Counsel" or "F A.A.") seeks a $5,850 fine relatingto a small shipment oflyefive years ago. Respondent Fisher Scientific Company ("Fisher") moved to dismiss the case for several reasons, including 

### FP..A's failure to explain howthe shipment could possibly have involved ai1Y knowing violation ofthe Hazardous MaterialsRegulations ("HMRs"). Fisherparticipated in two "informal conferences" ("ICs") with Regional Counsel. Duringthe first IC, onJuly 16, 2014, Fisher explained that the boilerplate Notice ofProposed Civil Penalty ("NOPCP") thatRegional Counsel served July 3, 2013, included downrightbizarre fuctual allegations and was based entirely on }':;JVIRs thatwere not in effect on July 21, 2011, the date of the alleged incident. More specifically, Fisher pointed outto Regional Counsel during the 2013 IC that the volume oflyebeing shipped (just one liter) was so small, the shipmentwas a "limited quantity" ("LQ") thatwas exempt from certain packaging and other requirements that would otherwise have applied. Regional Counsel wrote theNOPCP in 2013, after the maximum volume for an LQ oflye decreasedto one-halfliter, butthe change inthe 

### :Hl\llRs was not and couldnotbe retroactive to a shipment in 2011.
Morethan a yearlater, on July 24, 2014, Regional Counsel served an AmendedNotice of Proposed Civil Penalty ("ANOPCP") that dropped allegations in the first Notice but added aReportandRep{v of RespmuhmtFisherScientific completely new claim that, when Fisher preparedthe subject shipment, it was somehow required to stuffthe packaging with "absorbentmaterial." Nine months later, on April22, 2015, Regional Counsel convened another IC withFisher'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 ofthe alleged incident, this brand-new claim was time-barred because it was lodged morethan a year after the applicable two-year statute of limitations passed. Respondent's counsel also asked then-Regional Counsel ofrecord, Will Vines, Esq., to explain why FAA refbsed to accept that the LQ Exemption covered the subject shipment. Mr. Vines stammered for halfa minute, then abruptly terminated the conversation without offering an answer. Regional Counsel served its Complaintin mid-June, 2015. Respondent promptly moved for dismissal. Judge Rawald's April 6, 2016, OrderDirectingthe Parties to Meet a.11d Confer Regarding Litigation and Scheduiing Issues Afterthe 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 neverreturned the call. Theundersigned then emailed Mr. Vines on April 18. The foilowing day, 1\lfr. Vines advised by email that a differentFAA attorney, whom he identified as Michelle Harper, was handling the case for Complainant. Ms. Harperhad not entered an appearance in the matter but she phoned Respondent's counsel on April 20. Telephone company records showthatthe 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 ofthe Joint Report to be filed inresponse to the April 6 Order; (4) Respondent's Motion to Dismiss the Complaint; and (5) Respondent's request to meetwith 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 ofthe 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, becauseFisher's Motion to Dismiss would be dispositive ofthe entire case. On 

### 'fopk 3, Respondent's counsel agreed to prepare a draft Joint Reportto that effect and FAA's counsel agreed to review it, to offer any needed edits and sign it ifno edits were needed. UnderTojpic 4, FA..A asserted that the Motion to Dismiss should be denied; Respondent's counsel explained why the Motion to Dismiss should be granted.

2ReportandRep{v of RespondentFisherSclerztific Approximately 18 minutes into this 20-minute conversation, Respondent's counsel broughtup 

### Topk 5. Thatpa;i: ofthe conversation, which is reproduced below inits entirety and as doseto verbatim as possible, went as follows:
MR. Co.Y: You knaw, 

### itwouldreally bea shmne to i:nsist thattheJudge mustdecitle the i!Jlotian toDismiss amiallow theproceedings to go forward

## if you will have no case topresent


### on the merits. We asked 

### Will VInes nwre than once

### to explain why the

### shipmentwas not exemptunder theLimited QuantityExemption. Canyouplease explain thatone to me?


### l'vls. H4RPER (cr-ruCKWVG): 

### 1haven'tlookedat

### that file 

### inyears.
MR. 

### Cox: 1\tlaybe tltis w1midbe 

### agoodtimeto do that.


### Ms. HAF..PER: 

### OK, I'll look 11t 

### ii

### andgetbacktoyou in the fi;·st haf/ of ne..'i:l week.
This portion ofthe conversation lasted approximately two minutes. Immediately after the April20 conversation, Respondent's counsel sent a draft Joint Reportfor Ms. Harper's review, edits and signature. Ms. Harper failed to respond. Afterhearing nothing from 

### FA..A for another week, on April 27, the undersigned phoned 1Vls. Harperto urge her to sign
or suggest changes to the proposed JointReport. 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 submittingthe Joint Report loomed, the undersigned telephoned Ms. F..arper again, leavingthe following voice message, reproduced here verbatim:
MR. Cox· This is Jerry Coxwith Tltemw Fisher in 

### DC 1se;1tyou a draftJointReport on 

### Apri/2(} but

### 11everheardback fromyou. 

### We ':re up againstthe 

### deadline, so I'm going to 

### withdmw the draft JointReport

### and Tl1ernw Fisherwilllutve to file its own Repo:rt Feel free to call mewhenyou arepreparedto discuss the case. Accordingly, on April 30, Respondent filed aunilateral Report and moved for sanctions against 

### F

Aft._ for ignoringthe Judge's April 6 Order. 

### FP...A filed no Report ofits own and ignored Respondent's Motion for Sanctions. Judge Rawald's May 17 Show Cause Order Regional Counsel remained AWOLuntilthe Judge ordered FAAto show cause whyithas not "constructively withdrawn" its Complaint and thewhy 

### the Judge should not "dismissthe case ·with prejudice." Orderto Show Cause at 2.

3Reportand**Rep~v** of RespondentFisherScientific
ln its Responseto the Show Cause Order, 

### FAA equivocated about whetherMs. Harper received Respondent's voice messages and argued that, even ifshe 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 whetherFA..A had even 

### received the draft Joint Report, much less whetherMs. Harper approved it. FAAtold the Judge that Ms. Harper and Respondent's counsel "had a lengthy phone call discussingthe 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 "theparties had a thorough discussion of the underlying facts of the case," id 

### (emphasis suppiied), and thatRespondent's Motion for Sanctions is "filledwith mistruths [sic]" 

### (id., 'j[ 6). The undersigned is not entirely sure what a "mistruth" is, but he would be willing to sign an affidavitthat each and every averment hehas made to the Judge was true and correct and in fuil compliance with Rule 11 ofthe Federal Rules ofCivil Procedure ("FRCP") and professional ethics requirements relating to candorbefore a tribunaL Itis for the Judge to determine whether a 20 minute phone call, only two minutes ofwhich was devoted to the merits ofthe case, and which Complainant's counsel cut short because she hadn'tbothered to read the file, was anything resembling a "thorough discussion." By contrast, it speaks volumes thatMs. Harperdid 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 mustbe signed by at least one attorney ofrecord
.. [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 ofthe person's knowledge
... factual contentions have evidentiary support ...." Sanctions may be imposed on the "attorney
... orparty," FRCP ll(c). Unless FAArecartts quicldy, Respondent plans to move for such sanctions because lVls. Harper's statement to 1he Judge that "theparties did indeed meet and confer [and] had a thorough discussion oftheunderlying facts ofthe case

...."is both highly material and plainly false. Reportto Judge Rawald inResponse to the Orders toProvideRequested Information In his June 2 Order, Judge Rawald admonished Respondent to "file a Report including all ofthe informationrequested in the OrderDirecting 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

4ReportandRep{vof RespondentFisher Scientific compietion ofdiscovery," proposed dates for prehearing conferences, filing ofprehearing motions and hefuing dates. Order to Meet and Confer at 1-2. Unfortunately, because FAAhas steadfastly avoided meetingwith Respondent orparticipating in any sort ofsubstantive discussion- even afterthe undersigned made additional telephone requests to Ms. Harper on May 31 and June 3, Respondent can only guess whatthe issues would be, much less what discovery would be needed to address them, how long it would taketo complete such discovery
or what witnesses would need to be called. With tl1at said, Respondent provides below, to the greatest extent information is available atthe moment, the following information requested by the numbered portions ofilie 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 andproposed scheduling.

FAA rebujfedmultiple requests ji·om Respondent's counsel for a meeting, startingonApril 15, 2016, on the grounds that ithas beenyears since Regional Counsel has read thejile. This has made 

### it impossible forRespondent to adai·ess with FAA either litigation issues orproposed scheduling.

2. The parties shall draft a Joint Reportproviding: a_ a suggested venue, 

### RJE§JPOl'>lJDfENT' § REJP'LY FVithoutFAA's cooperation, Respondenthasnoway to /maw whatwitnesseswould need to be called orwhat venue would be mostconvenient to them. However, Respondent tentatively suggests that Washington, DC, would be the appropriate venue because the Judge is here, Respondent's counsel is here andkeyFisherwitnesses are in the Northeastern United States. 

### RJEQUJE§'JI'JED TI'IFOiRiriiATION b. a proposed schedule for 

### t_he completion ofdiscovery, 

### RJE§lPONDJEN'I'§ REPLY Until F_A_A is compelled toparticipate in the informal conference referenced in Item 

### # j, above, it 

### will remain impossible to /mow whatwitnesses the agency intends topresent, what experts, 

### if any, Respondentwouldneedto call to testifym1dwhopossesses l'l:!levanl information. The time

5ReportandRep4r of RespondentFisherScient{fic
needed to complete discove1y, of course, will depend on how mmtywitnesses are involved, where they are located, andwhat their schedules allowfor. Witnesses mayalso needadditional time to re.fi·esh their recollections about events that occurred.fiveyears ago. Respondentwould, in any event, requireproduction of physicalevidence relatedto the alleged leak. Respondent lmderstands·from a letterlvfr. Vines sent on November 20, 2014, thatFAA either destroyed the bottle and the packagingmaterial, including the box in ·which itwas shipped, or a/lmved this evidence to be destroyed. Itmay take months to determine how much of thephysical evidence continues to existand·what, if anything, experts can deduce from 

### it. Respondentmayalso need to seeksanctions againstFAA on account of such destruction of evidence.

c. a list ofany pendingmotions
..., 

### RESPONDENT'S REPLY Respondent'slvfotion to Dismiss ComplaintforInsufficiency and for Complainant's Violation of Rule 208 was.filedJune 23, 2015.

d. a proposed date for a telephonic prehearing conference
...,
Respondent is, of course, willing toparticipate in aprehem·ing conference, by telephone or in person, onJuly 20, 2016, or nearly any other date thatwouldsuit the Judge's convenience. H01vever, withoutmore information about the issues FAA will raise, Respondent is uncertain whatcould be accomplished.

e. a proposed date for the filing ofany prehea.ingmotions
... and

While Respondent cannotsuggest a datejorfiling prehearing

**motions~** it likelywouldneed tofile a motion for a more de.finite statement before 

### it could.file itsAnswer.



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

6Reportand

**Rep~v** af RespondentFisher Scientific Respondent submits thatno hearing

### will be needed in this case, but if a hearing

### will be held, 

### it recruests the earliest date consistentrvith andallowable under the law andFAll'sRules of " ,. Practice.



### 3. [service instructions]
Respondent timelyserved- in accord.ance with these instructions- the bestReport 

### it could muster in light of the total lack of response ji·omFAA to the dPojilointReport 

### it ojfered Regional Counsel onApril 20. 

### Conclusion Respondent has no means to compel Regional Counsel to comply with t.he April 6 

### Order orto respond to Judge Rawald'sMay 17 

### Show Cause Order. Fisher cannot provide any more requested information until FAA stops hidingbehind the pending Motion to Dismiss. Judge Rawald has offered FA/,,_ multiple opportunities to comply with his Orders butthe 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

7JERRY COX 2050 JAMIESON AVE APT 1212 >\LEXANORIA, VA 22314-6827

Dai-a Oet:aU
- Continued I:!.gp_ Data Plans Honday, 05109 04:2Sa DElta Tr<JJSfer Subtotcrl for Data Phm;;: Subtotal for !ill's: Picture/Vir!r;IJ Hesseges Sunday, 05103 2D,!lll41iB

**i,65'4,7~KB** i,654.754i0
04:4Sp Sent

**703~343~5911** Plf}t Video HSS 09.:5'Jp

**S~nt** flfi5·207m3222 Pic:t Video liS£ Subto'L!!.1 f-er P'icturcJV'ldoo liessag:as; 2 Total Data Detan P.ato Coda: lU\.SDG1 = Hal:i1le Share 1Ja1ue iSflB wHir llol1over Data !JllUlSG = Shared !Jes.sii,!Jing

-- **---···-·-~--** ----- --· 

### 'nt:> i'!\i7e2:2U

. ______ **Hit)~§"** C!lEEK CaU De-taU Piace !late Feature Tir.s £!lli!! Htmber Called T;;;day, 04l'i2 Co!!r. Code liin

**10:~0a** v;u...IL CL 703-757-2211 SBDV l[li 07:0Ep WiA!!.. CL 70>.757-221'1 S!IDV 1m Timrsday, U4/i4

**iO::~g** \lilA!'


### . 

### ' CL 702-7§7m221i SDDV Wi D!l:ZOp \'llAIL Cl 703-757-2211 S!!Di! 1!Jl Frldti}l, 04!15 03:30p 1fAAIL CL

**Til3~t.ot-22H** SlJUlf \i"l 

## ·'' Saturday, Otlii6 a4:04p ,1\RLlilfl VA 70:H121-<l015 S!IOV U4:0Jp fl.llLIItG VA 703-827-4015 HIDV ilond.ay, 04/i3 i2:5!Jp IJilJW.. Cl.

**703-757~22.f<i** S!IU1! l!ii Tuasday, IM/19 00:43p 1fi!All CL 703-757-221l S!lDV l[,'f li'ednes!lay, 0.1/20 03:5Sp VliAil CL 7{13-157*22.11 SUD\1 VH Friday, 04122 OD:47p V18!Hit V.4 703-757-5fl6i SiJDY @:Slip V1EffilA VA 7{iJ-i'57-5fl66 

### wov S.!lturday, 04/23 03:27p ![fiA!l CL

**703-757~22.1'\** srmv WI Thursday, 04/20 (]2:522 1fi!All Cl 703-757·22!1 ffiD\! lfil

**·w~2Ba** 1JW\IL Cl 71!1-757-Z<li i'DOV Yll TuaWay, 05/0S ii:4-iE!

**\'!&~~** IJA 703-757-lJBSB illDV 3 U11111SS U1llP.l1l

Airti!:is

**Ch<~rae.s** 0.00 0.00 0.10 0.00 0.00 0.00 0.00 o.oo 0.00 0.00 0.00 0.00 o.oo 0.00 0.00 3 0.00 0,011 0.00 0.011

0.@ 0.00 0.00 0.63

Ullllrldl Cilarpes 0.00 0.00 0.00 o.oo o.on o.oo 0.00 0.00 0.00 o.oo 0.00 o.oo Q.l][} 0.00 0.00 0.00 caaDeta!! Place Tl:ia Called Non!lay, D4/i1 Page: A-21 of 2.5 SU[_ C1rc:!e Date: 04/10/16- 05/09/15 Aceemm:

**@-t:'§o'9f~~**

**~a1uaciatio.fl** Account: FAN 05535137

--------- --

f/u:!ibar Called nate Rl.atllre Air'tlse: fWl llida !lin Chai"ij!lS
2 10 39 0.00 o.uo O.DO 

### o.ao 0.00 2 0.00 0 O.Q!I iO 0.00 O.Oil IJ)/Addl Charac.s 0.00 0.00 0.00 0.00 

### o.oo 0.00 0.00 

### o.oo 0.00 0.00 0.00 110;uop. ctJ::::.-;:

**i~; \::!.!3~** Ii1Hliii1

**~;f'** Frldey, 04115 ' 0 \Gi0:50a ATI.MIT GA

**4~·305·5200** 15liliV 2 29 0.00 

### o.oo 0.00 il.OD

**C-~-** -' SODV



### ' 2 arr

3 21 20 0.00 0.00 OJJO O.OB O.DO 0.00 O.GG 

### o.oo 0.00 0 0.00 i7 j 2 14 29 2 0.00 0.00 o.oo 0.00 0.10 O.GO 0.00 

### o.oa 0,00 i}.@ o.oo o.oo 0.00 0.00 0,00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 

# "'JERRY COX 2050 JAMIESON AVE APT 1212 ALEXANDRIA, VA 22314-6827

**.--~--·** ----- ·------------.----- ..,....-

_ _;.___ . Place

**~** lllll<d **Page~** A-22 of 25 Bit! Cye!e Date: 04/10/16- 05/09/16 Account:

**~~** t.:otmdaticm Aa:rn.mt; FAN 05536137

Visit us online at:

**'lftlU\rtJ~~att.c,:W';;"ft**

**Rat~** Feature

**t\irtiG~** lllll.ddl l1rr;;b£r C<J:ile!l Cr!!!e C::lde 

### mn Clulrues Cflaraes 0.00 0.00

-- --- ----·- ..

## _ .._ 2 

### o.no 0.00 lDIMol

**~**Frtd:rj, (MJ2.9 Charges

**~~h.-,15(l4:52p** l!TI.A!-IT Gli. 404-3115-5?.19 SDDV 2 

### o.oo 0.\:m Q Place Tine Called fl!!iili:r Caller! Rate Feat.Jre

**--:Mrt=~!,f** lllds Code Hin



### /j~ -i\>

**t!sdm:sd~·,** !14120

**~})1i:IJ4a** mamr cL 4M-aos-5229 Timr,s:dav. 04121 S!JOV

**_ao""~·** 

### o.oo 3 0.00 i 0.00 ·I 0.00 O.flO 4 0.00 5 0.00 2 0.00 1 0.00 i 0.@ 6 0.00 2 0.00 i 0.00 0 0.00 'I 0.00 15 O.flO 'I 0.00 2 0.00 i 

### o.oo 0.00 10 0.00 2 0.00 12 

### o.uo 2 

### o.oo 2 0.00 0.00 q 

### o.oo 4 

### o.on 36 0.00 2 0.00 1 0.00 2 0.00 0.00 in 

### o.oo 30 0.00 0.00 i 0.00 4 0.00 2 0.00 2 0.00 13 

### o.oo 2 

### o.oo o.no Q; O.DO 0.00 0.00 0.00 0.00 0.00 0.00 O.Gll 0.00 O.Ofi 0,011 

### o.oo 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 O.Gll 0.00 0.00 0.00 0.00 0.00 0.00 " 

### o.oo o.oo 0.00 0.00 O.flO 

### o.oo 0.00 

### o.oo 0.00 0.00 

### o.oo o.oo **~ Satur<~zy,**  04130 i0:46a

**TilWh~** CL 700-525-1]349 E!lfiV i9 0.00 0.00 TllSSdaJ, 05/03 ii:Ma lliWIU Cl 703·757-2211 SDOV 3 0.00 0.00 lffrlnesd.Ely, -G5J04



### --------

Ratu Cede: SDOV = Shared !iinutes Facture C003:

**Ci~** =CAll UA

... TTI!ffi Data Detail !ii1B ToJFrum Twtunit Rate IAlda Text Messages Sattmlay,114116 OB:13o Sent 603-714-434B TGXt tiessage ill1UI$ 0.00 OB:4ia RciJd £03-714-4340 Te1.."t Message rnJuim 

### o.oo 00:43a &mt 603-714-i-348 Text liessage @UlSG 0.00 GB:43a Sent 603-714-- Text Uessa_ge \Dli.MSS 

### o.oo

**o~:47ll** Rcvd 003-714·43l!l Teu;t Dessege UI!JjjS(l 0.00

**o~:57a**

# - lill3-7N-434B T-e:..i itessage lllllil$ 0.00 OO:Iilla Rc'lll 603-714-(<240 TeAt Ressa_ge m!LMSB 0.00

# 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_ } 

### } } } 

### } 

### } Inthe Matter offisher Scientific Company, LLC DocketNo. 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 ofthe FAA's Inexcusable Delay inthe Proceedings
The FederalAviationAdministration's SouthernRegional Counsel ("Regional Counsel" or 

### "F.M") seeks a $5,850 fine relating to a small shipment oflye almostfive-and-a-halfyears ago. Inthe 15 months since Regional Counsel filed the Complaint, Respondent Fisher Scientific Company ("Fisher") has movedto dismiss this case for the following four reasons:
1. The Complaintis legally insufficientbecause, even ifthe alleged facts were assumed
to be true, it fails to state a claimfor civil penalties under applicable statute (per Respondent'sMotionto Dismiss Complaint for Insufficiency); 2. The two-year statute oflimitations forinitiating such a claim under theFederal Aviation Actranmorethan a year before Regional Counsel servedthe required Notice (perRespondent's Motion to Dismiss Complaint for Complainant's Violation ofRule 208); 3. Regional Counselfailed to file a timely response to Respondent's Motion to Dismiss (per Respondent's Oppositionto Complainant's Motion torExtension); and 4. Regional Counsel invited dismissal ofthe Complaintby ignoringthe Administrative LawJudge's April6, 2016, Orderto conferwithRespondent's cmmsel and file a Joint Report (perFisher's Motionto SanctionFAA'sNoncompliance).
New and Additional Reasons to Dismissthe Complaint Regional Counselpurpmtedto file a Responseto Show Cause Order onMay 31, 2016. No counsel ofrecord for FAA signedthe submission,however, so itviolated Rule ll(a) ofthe FederalRules ofCivil Procedure ("FRCP"). Respondentpromptly called this violationtoRespondentJi>Jotion to Strike andto Dismiss Regional Counsel's attention; Regional Cmmseltookno corrective action. Accordingly, under FRCP ll(a), "the comt muststrike anunsigned paper" (emphasis supplied), and FAA mustbe deemed to have failed to respond to the Show Cause Order, much less to have provided any reason for the Judge notto dismiss the action for the reasons stated inthat Order. Regional Counsel's persistent delay and disregard ofapplicable rules and statutes has also rendered the Complaint essentially moot under the five-year, government-wide statute of limitations barring the commencement ofany civil proceedings morethan 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 3MCo. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994.) It is tmdisputedthatthe alleged act atissue in this matter occtmed onJuly 20, 2011. That was five years and two months ago. 

### Itis pointless and grossly wasteful for Regional Counsel to insist onpursuing this case. They are asking the Administrative LawJudge to devote considerable time and effmt in decidingmotions to dismiss that have been pending for the last 15 months and, even ifF AA were to prevail onthe motions, Regional Cotmsel offers the prospect ofeven more wasted effort in ahearing FAA conservatively estimates would consume at leastthree 

### full days ofthe Judge's time. Evenifone were to ass=ethatthe end result ofthat 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 attemptedto reach Regional Counsel ofrecord by telephone to ask whether this motionwould be necessary, but her office receptionist refused to take a message and slammed downthe phone inmid-conversation. Ms. H31·per did not retm11 the calL WHEREFORE, Respondent submits that the Complaint must he dismissed withprejudice on 311Y
or all ofthe grounds stated above.

Dated: September 23, 2016 J

# err!/W.ltd&/Esq. /"

**20~0** }31nieson

# AvlSuite 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 Transcriptwith 'Wonl Illldex



## For The Record, Inc. 

# (301) 870-8025 - www.ftrlnc.net- (800) 921-5555

## Fisher Scientific Company, LLC

4 5
7 8 9 10 ll 12 13 p 15 16 17 18 19 20 21 21 23
25

2 3
5
7
9 10 li 12 13 1.\ 15 16 17 18 19 20 21

24 25 --------------------------------)

::_, r;:.;:,_--. -

**~**

2 3
5 6 7 s 9 10 ll 12 13 14 15 16 17 1 s 19
21

24 25

6 7

10 11 12 13 14 15 16 17 IS 19 20 21

232-l25


## For The Record, Inc. 

## 10/4/2016
3

1 (Pages [to 4)

### Fisher Scientific Company, LLC

**~** 5 6 7 8 9 10 11 12 l3 14 15 16 17 18 19 20 2! 22 24 25

3 4 5 6 7 8 9 10 11 12 13 14 l -

**~)** 16 17 18 19 20 21 22 23 24 25 ll1Yolved is the sodiumhydroxide

**material~** the Class 8 UN 1824_ ifyou- ifyou go to the hazardous materials table, it wiii tell you exactly hm:v it's regulated, so U1atos really the essence ofthose 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 hejust saido other

**th~m** 1wouldjustpoint out that in the amended notice, 4 and 5 changed. 'I11at \Vas filed more than two years after the alleged incident. 1\ndthey changed from the original notice, to the amended notice, to the complaint. So I'mnot sure which ofthose 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 inthe 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 whatthey were in the original notice, 4 and 5 in the complaint mirror 1vhat's inthe runended notice. Vv11at I asked ofbothparties \Vas \Vhetherthe 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 orfour sentences lo explain more about that inresponse to your question at the infonnnl conference. And so I guess, sir, my question is do you think_ that4 and 5 are actually new facts or are they

**:g,~~relv IT!~kin.__&:!!lor~**  dem:

**\Vh~t'~** '!h·eady existent in- the. 1.!Q1iQsfor proposed civil penalty from 2013? MR. COX: Clearly, new facts. Especially if

**~cou** have in front ofyou amended notice ofproposed civil penalty file July 24. 2014, Pan12raph 4 is still talkina about corks. Ibis case has nothing to do 'With corks. JUDGE RAWALD: Right But itdidn't make irs '\Yay into the complaint, sir,

**so~I'm** not going to wmn· aboutit. Ifit's not in the complaint, it's not m1 issue. So it'sreally not an issue. I understand the Gm'ennnentcan certainly drop things fiDm G1e notice ofproposed civil penalty and not makeit in fue complaint In fact, theY dropped admittedly halftheir 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 offthe 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. Coxhas mentioned the factthat he's 5 also asked or mentioned three otherbases. 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 lmderthe regu]ations that go to 9 -wp_ether the case exists ornot. And then we can discuss 10 more about U1e possible sm1clions or oilier things_dmy]r 11 U1e road. 12 13 14 15 !6 18 !9 20 21 22 23 24 25

2 3 4 5 6 7 8 9 10 I! 12 13 14 !5 16 17 18 19 20 21 00 23 24 25 But atUris moment I am not going to look at that. I want to look at tl1ese threshold issues and get those oul dealt tvilh, inmy opinion frrst. That's what I'mlooking at So witl11hat understanding. Mr. Cox. do you have anything else you wantto bring up? MR. COX: Judge, I would simplv like to note for the record, my objections that everything_tllal !v!r. Ellis saidis required

**u_nde~-** Rule ll to be

**slri~ken.** exactlJ' for the same reason that the supposed response to your motion-- 

## rm sorry, to yourorder to show cause should be stricken. And that is going to be an · indepeiidentiSsuC, I guess, because the rules are really clear inRule l L that ithas to be counsel ofrecord. 44 'I11ere's nothing in the response that-- there's no

**type\"~;Titten** infmmation as to \Vlm signed that supposed response, \Vhether thafs Mr. Ellis' signatlJre or not, I don't know. But there are a lot offactual allegations made that m·ejust±1atuntrue. AndlfMS. Hmper is not \\illing to plll her signatureon that and 1isk sanction:-:.for telling, as she calls them, mishuths, then I don't think that it's reallv ri.g:ht for aResoondent to have to deal \Yith a.-1_ attomey 1vho is not ofrecord inthe 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 comoheating factor here. in -1 ; the fact thatlvis. l-Imper has been notlceablv absent from Ji·

.the proceeding. She didn't file onvtl:ring in response to 1 my initial notice requiring thepmties to meet and 

### !I " confer: she did not file herselfthe response to notice i l l j for show cause_ vou filed H1at for her: and she has not

**~** r j.l appearedtodaY. 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

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
2-1 25 _Ql!I.ti!f_

**the_~Q.~** And ifJYls. Harpercan·t take part in the case, you need to think about 1:vho elseyou want to

**as~ign** to the marteL sir. lv!R ELLIS: T bear you loud a11d clear, Your Honor. 

## ,- 'T)

JUDGE RAWALD: 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 ornot to consider them. ButI 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 RAWALD: Yes, Mr.

**Co~?** lv1R. COX: A.re you denying my molions? Anv of my motion::; to dismiss? JlJDGE RA\J.lALD: l have not made anv rulings on anv motions at tllls point, sir. So what I'mdoing at the moment is I'm taking these first trvo issues after argument tmder advisement and I wiH work onissuing an .opinion. I will then look atthe other issues youhoYe raised more intensely ond decide what to do about those

issues. 46
l do not planon having argument on tl1ose issues. but ifI do. upon rO\iewing them 1\uther. think additionB1 briefing or argument necessary, I will1et the parties know. No_ I understand yourposition onall three of those issues and T>Villlook at them further and then decide wbatI'll do with them. I haven't made any

**decisionye~** Mr. Cox. in the short term. MR. ELLIS: YourHonor? YourHonor. I have a qnestion. JUDGER..A.WALD: Yes. MR. ELLIS: Will we receiYe a copy of lhis transcript" JUDGE RAWALD: Well. so the transcript "ill come -- I think itthen gets passed to the docket but hnnot sure. But I will make sure that all parties recei\'e a copy ofthe transcript once '"e get one, yes. MR. ELLIS: Thankyou_ YourHonor. JUDGE RAWALD: 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 otherthree issues further. I don't think thereos anything in those, despite yourconcem that will be worth my looking atbefore 1dispose of 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 l7 18 19 20 2l 22 13 24 2.5

2 3 4 5 6 7 8 9 10 11 12 l3 14 15 16 17 18 19 20 21 21 

## i0/4/2016

tl1ese t\vo ver::/ essential and baseline issues that

**ne~d** to be dealt with. So, Ivlr. Cox, any further questions fromme? lviR. COX: No. JustT \\'<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 oflimitations. You're goingto decide upon !he lssue about whether Uw pleadingmeets the sufflciencv requirements before voudecide whether lhe case is moot in the first

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

sorry. -!-7

JUDGE RAWALD: Yes. The reasonwhy rmdoing that is because first ofallo }'ou raised the issue very recently ofthe Government hasn'thad a chance to brief it and 

### rthink also that I really \Yant to deal with this yerv baseline issue that exists: inthe 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 1will look at·y-ourne\\' 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 orthe

**fin~** year statute, sir. 1\11R. COX: As long as I understand. Thank you. .nmGE RA.WAlD: Okay. And so, Mr. Ellis, jusl so you understond, lv.fr. Cox did file something last JYeGk, raising the fact that there are several otherissues he thinks Uwt the case nc:edc:d to be: dismissed because: of one ofwhich is a five vear statute oflimitations. 

# ii I do ask thatyounot spend any time responding to that until I direct that von do in a briefing:_ okav.



## --- **--~------~** ..... . sir? MR. ELLIS: Yes, YourHonor. JUDGE RAWALD: 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 ofevents g:ocs. And so-· 

# I '

12 (Pages 45 to 48) 

## For The Record, inc.

### Fisher Scienti-Fic Company, LLC

4 5 6 7 8 9 10 i I 12 13 14 !5 IG 17 18 19 20 21 22 24 25

3 lV!R COX: I understand, sir, but only if they 'ye asked for an e:s_tension. Ifyou take a close look at the regulalions, they have to askyou for an extension and state a reason whv. 

### -·--

**~ ~**  -\9

JUDGE RJI...WALD:

**Sir~** given my current vosture in this case, 1don't \Vantbriefing on i.he issue, not right now. So 

### I\Vill

**l~ok** more atyour

### is;Ue. ButI am stating here the Govemment should send a brief in response to your motion to strike atthe 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, lefs go ahead and-- I appreciate everyone takingthe 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-eoillelvou knowin a \vritten QPi.ui.rulJlmv I decide these two issues and then 1:vhat's the ne:-.""1 step in this case. So thankyou for your time and lefs go ahead and go offtbe 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 neithercmmsel for, related to, noremployed 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 I0 employee ofany attorney orcounsel employed by the 11 parties hereto, norfinancially orothern·ise interested 12 in the outcome ofthe action. 13 14 15 16 17 18 

### 19 20 21 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. } Inthe Matter ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 (Civil Penalty Action) Judge Rawald



### ERRATA FOROCTOBER4, 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,justbefore 10:12 a.m., to proceedingwith the hearing after agency counsel ofrecord failed to appear. 3. On p. 5, line 2, delete "admit" and insertin lieu thereof"dismiss." 4. On p. 9, line 10, delete "thoughts" and insert in lieuthereof"formerboss." 5. On p. 34, line 7, delete "from defense." 6. On p. 37, line 12, delete "through" and insertin lieuthereof"to prove." 7. On p. 49, between thewords "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. } } } } } } Inthe Matter ofFisher Scientific Company, LLC Docket No. FAA-2015-1321 (Civil Penalty Action) Judge Rawald

AMENDED BRIEF IN SUPPORT OF RESPONDENT'S INTERLOCUTORYAPPEAL OF RIGHT Respondent Fisher Scientific Company, LLC, a subsidiary ofThermo Fisher Scientific, Inc., (hereinafter refeiTed to as "Fisher") hereby appeals to the FAA decision-maker pursuant the Federal Aviation Administration Rules ofPractice, 14 C.F.R. Part 13 (hereinafter "FAARules"), Rule 219(c), 14 C.F.R. § 13.219(c), to dismiss the Complaint inthe above-captioned matter due to the failure by the assigned Administrative LawJudge, Douglas Rawald ("the ALJ"), to dismiss the case, as required by FAARule 215, after the agency attorneys constructively withdrew the Complaint by missing four consecutive deadlines without excuse. In support ofits Appeal, Fisher states the following: QUESTION PRESENTED Must the Complaint in a civil penalty actionbe dismissed withprejudice 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 orderedby the ALJ, has constructively withdrawn the Complaint?PURPOSE AND STANDARD OF REVIEW FORTHE APPEAL FAA long ago established the "interlocutory appeal ofright" to help the Administrator prevent agency counsel, a private party respondent or an ALJfrom wasting public and private resources on administrative litigation where, as a matter oflaw, one side or the other has failed to participate inthe proceedings or to present its case. Accordingly, when it adopted Rule 219(c) in 1990, 1 FAA decided notto depend on anALJto prevent needless litigation and provided, in pertinentpart, as follows: "Aparty may file an interlocutory appeal
... without the consent of the administrative lawjudge
... inthe case of
... (2)failure ofthe administrative lawjudge to dismiss the proceedings in accordance with§ 13.215
...." (Emphasis supplied.) The plain language ofthe 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 betalcen. FAA's clear intention was to prevent notjustparties butalso an ALJfrom allowing wasteful litigation to proceed. That is why Rule 219 also specifically provides that, whenthe ALJ's receives a Notice ofAppeal, "theproceedings are stayeduntil 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 ofsodium hydroxide solution (connnonly known as "lye") by air five-and-a-halfyears 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. InJune, 2015, four years after the shipment, FAA's Southern Regional Counsel ("agency counsel") filed a Complaint alleging, inpertinentpart, that the lye was packaged in some respect that violated the Hazardous Materials Regulations 

### ("HMRs"). 3

1 Federal Aviation Administration, "Rules ofPractice for FAA Civil Penalty Actions," Final Rule, 55 Fed. Reg. 27548,27567-68 (July 3, 1990) ("Final Rule"), codifiedat 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 ofrespondents." See also FAA, "Rules ofPractice for Civil Penalty Actions," Notice ofProposed 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 itselfwhether 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 ofRight 2Fisher promptly moved to dismiss the Complaint based, inpart, on agency counsel's failure to lodge at least one ofthe key allegations withinthe two-year time limit established by FAA Rule 208.4 Agency counsel ofrecord did not file a timely response to Respondent's Motion to Dismiss but the ALJ nevertheless moved the case forward. 5
OnApril6, 2016, nearly a year after Respondent filed its Motion to Dismiss, the ALJ- without first deciding whetherthe dispositive motions resolved the case or whether Respondentwould even be required to file an Answer

- ordered the parties to meet and conferregarding litigation and scheduling issues and to submit a Joint Report on their meeting 6 After extraordinary effmts by the undersigned to get anyone inthe Regional Counsel's office to return multiple phone calls and emails, agency counsel ofrecord, Michelle Harper, Esq., fmally phoned to say she was unable to answer even the most basic questions about the substance ofthe case because she had not looked at the file in years. She promised to reviewthe file the following week and asked the undersigned to prepare a Joint Report. Respondent immediately offered a draft JointReport for her review and approval, but she never replied, despite more repeated calls from the undersigned. Respondent had no choice butto file a unilateral report and moved the ALI for dismissal and other sanctions against agency counsel for ignoring his Orderto meet and confer and for failing to file any report, in clear defiance ofthe ALJ's demand.7 Instead ofdismissing the Complaint, the ALI issued a Show Cause Orderthat stated an unequivocal threat: the Complaint would be considered "constructively witl1drawn" unless agency counsel filed "a statement explaining the cause oftheir 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 inthe 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 ofa 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 ofthe factual representationpresented in the purported response to the Show Cause Orderviolated

4 Motion to Dismiss Complaint for Violation ofRule 208 (June 23, 2015) (Exhibit 2). 5 Agency counsel filed a late requestfor an extension oftime- from 10 days to nearly two months- to reply to the Motion to Dismiss but offered no excuse for theirlate filing ofthe request and did not state any grounds acceptable under FAA rules for grantingit. Opposition to Extension at 2 (July 7, 2015) (Exhibit 3). In complete disregard ofcontrolling Rules, the AL)- at thattime,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 Briefonly for the purpose ofshowing that it was never signedby agency counsel of record. 

### Respondent's Appeal 

### ofRight 3Federal Rule ofCivil Procedure II(a), which provides, in pertinent part, that any tmsigned "pleading
... and otherpaper mustbe signed by at least one attorney ofrecord" 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). FAARule 207 even more explicitly bans recognition oftmsigned filings. 

### Itprovides that the "attorney of record
... shall sign each documenttendered for filing withthe hearing docket clerk, the administrative lawjudge, the FAA decision-maker on appeal or served on eachparty" (emphasis supplied). Respondentpointed out this failure and, for the third time, d . .. d'

. al 10 move agam <Or 1snnss
. Instead ofdismissing the Complaint atthatpoint as required by Rule 219, the

### ALI ordered the parties to appear at a Pre-hearing Conference on October 4, 2016, at I0:00 a.m. The undersigned cotmsel for Respondent was present. 

### In complete keeping with SouthernRegional 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 answerthe phone. He finally rotmded up an attorney who was not counsel ofrecord. The tmdersigned inlmediately objected to any hearing onthe matter after agency cotmsel of record had once again constructively withdrawnthe Complaint11 butthe ALJ, without explanation, insisted onproceeding. He started by asking why counsel ofrecord, Michelle Harper, failed to appear andparticipate. The attorney said he could only speculate about the reasons for her nonappearance. 12 The 

### ALI asked the attorney whetherhe was prepared to participate in the hearing. The attorney replied, "I am not prepared
...." 13
Over Respondent's repeated objections, the ALJ insisted onprosecuting the matter himself whether FAA tookpart 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 ofrecord "has been noticeably absent from tl1e proceeding. She didn't file anything inresponse to my initial notice requiring the parties to meet and confer; she did not file herselfthe 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 thathe intended to take over from agency counsel: "There needs to be someone onthis 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 ofPre-Hearing Conference ("Tr. Errata") (October 4. 2016) (Exhibit II). 12 Transcript ofpretrial [sic. Pre-Hearing] Conference ("Tr.") (October 4, 2016) (Exhibit I0) at 2-3. Under FAA Rule 219(d), Respondent's Appeal Briefwas due within 10 days ofthe ALl's ruling that the case will go forward. The Office ofHearings 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 ofRight 4At the conclusion ofthe hearing, the undersigned objected once again and asked for immediate consideration ofRespondent'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 FORRECOGNIZING A "CONSTRUCTIVE WITHDRAWAL" OF A RESPONDENT'S REQUEST FORA HEARING MUST BE APPLIED EQUALLY TO THE GOVERNMENT'S "CONSTRUCTIVE WITHDRAWAL" OF A COMPLAINT. The Administrative Procedure Act, 5 U.S.C. § 551 etseq., forbids FAA to adjudicate the imposition ofa civil penalty on a private party Respondent without first affording an opportunity for a fair hearing on the merits ofthe agency's allegations. Foryears, private parties have complained that FAA's civil penalty procedures are not only unfair, but in plain violation ofdue process rights guaranteed under the Fifth Amendmentto the U.S. Constitution. Historically, FAA applied strict standards to private parties that were not appliedto government "prosecutors" in civil penalty cases. Private parties were required to verify interrogatory responses under oath; no suchrequirement applied to FAA agency counsel. Private parties could notfile interlocutory appeals; only FAA counsel could. Agency counsel were free to drag cases out long enoughto 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 ofseparation 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 Afterjudicial intervention in the late 1980s, FAA adopted the Rules ofPractice that govern today to address criticism thatthe prior mles were "inadequate to ensure a system ofadjudicationthat is both fair and appears fair." 20

16 See Exhibit 9. 17 Tr. at49 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 ofRight 5The outcome ofthe instant appeal will indicate whether FAA is actually abiding by its own Rules or falling backinto its old ways, thereby inviting new scrutiny by Congress and the federal courts. The basic issue is whether agency counsel cantake a "fire-and-forget" approach to prosecuting a civil penalty case. More specifically, denial ofthis appeal would establish one set ofrules for "constructive withdrawal" ofa private party Respondent's Request for a Hearing and a policy ofnot applying the same standards to agency counsel's conduct to the point of immunizing them against a fmding thatthey "constructively withdrew" a Complaint. Over many years, ALJs have repeatedly used the failure ofa 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 inthe instant case, has made prolific use ofconstructive withdrawal, especially in connection withhis April, 2016, mass mailing ofOrders to Meet and Conferto parties in cases onhis docket. When a party, in defiance ofthe ALJ's Order to Meet and Confer, failed to communicate with opposing couusel and put them in the position ofhaving 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 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 lawjudge 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, inparticular, 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 "CONSTRUCTIVELYWITHDREW" FAA's COMPLAINT. 

### 1n the cases referenced above, Judge Rawald recitedthe following fact patterntojustify dismissal ofRespondents' request for a hearing:

21 See, e.g., Matter qf Bonanza ValleyAviation, 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 ButteAviation, 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 1, n.l. 23 McCann at 2, n.2; !XL at 1. n.2 14McCann at 2, n.3; !XL at I, n.3 (emphasis supplied). "McCann at 2; !XL at 2 (emphasis supplied). 

### Respondent's Appeal ofRight 

### 61. 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 withthe Meet and Confer Order. 4. Respondent was "advised inthe Order to Show Cause that further failme 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 "failme to participate inthe proceedings
... constitutes a constructive withdrawal ofthe Respondent's request for a hearing." InRespondent 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. Complainantrefused 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 Orderto Show Cause and threatened with dismissal if agency counsel ofrecord failed to "file a statement explaining the cause oftheir failme" and include "informationrequested in the Order." 5. Complainant filed no statement explaining the cause oftheir failme or including the requested information. 6. Infact, Complainant filed no cognizable response whatsoever to the Order to Show Cause because the document agency counsel submitted wasnot signed or certified by counsel ofrecord and mustbe stricken from the record under FRCP ll(a) and FAA Rule 207. 7. Counsel ofrecord did not even bother to appear atthe 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 ofthe Complaint. Ifthe FAA decision-maker rejects the instant Appeal and fmds that such a constant lack ofparticipation by agency counselas enumerated by the ALJ himself 26

- does notnecessitate a finding ofconstructive withdrawal ofa Complaint, agency counsel may bejustified in considering themselves immune from dismissal. In effect, rejection ofthe 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 ofa double standard, which would negatively affect that community's confidence in the FAA adjudicatory process as fair and unbiased.

26 Tr. at44. 

### Respondent's Appeal 

### ofRight 7

### ill. UPON WITHDRAWAL OFA 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. Ifan agency attorney withdraws the complaint
... the administrative lawjudge shall dismiss theproceedings
... with prejudice." (Emphasis supplied.) As Part II explains above, agency counsel constructively withdrewtheir Complaint onmultiple occasions: by failing to file a timely response to the motions to dismiss 

### in2015; 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 thanto "dismiss the proceedings
... withprejudice." WHEREFORE, Respondent respectfully requests the agency decision-maker to immediately dismiss the Complaint with prejudice. Dated: November 25,2016

Respondent's Appeal ofRight 

### (email) ! coxrdmo

### tonlacslrate).:Z'lassociales.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) ofservice at least one copy ofthe foregoing Notice on each ofthe persons listed below.


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

### 0 [Original + One Copy by Hand] Hearing Docket Clerk, AGC-430 Federal AviationAdministration Wilbur Wright Bldg., Suite 2W1000 600 Independence Ave., S.W. Washington, DC 20591 

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

Respondent's Appeal ofRight [One Copy by air courier] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey 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 2Wl000 

### 00 [One Copy by U.S. Mail] RyanM. Landers, Esq. Senior Attorney EnforcementDivision, Southern Team U.S. Department ofTransportation Federal AviationAdministration Southern Region P.O. Box 20636 Atlanta, GA 30320

/ 9

# Exhibit 1

### U.S. lDiEPARTMENT 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 ofthe 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 ofProposed 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, 20ll, 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 ofthe 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 ofhazardous material for transportation by air and failed to use a means ofcontaining the liquid in the form ofa leakproofliner, plastic bag or other equal!y efficient means ofcontainment. 8. Fisher offered the shipment ofhazardous materials for transportation by air and failed to package it so there would be no identifiable release ofhazardous material to the environment. 9. Fisher offered the shipment ofhazardous materials for transportation by air and failed to ensure the closure was secure and leakproof. I0. By reason of the above, Fisher violated the following Department of Transportation Hazardous Materials Regulations (Title 49 ofthe Code ofFederal 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 ofhazardous 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 ofhazardous 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

### leakproofliner, 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 ofTransportation Hazardous Materials Regulations. Under the facts and circumstances of this case, a civil penalty of $5,850 is appropriate. This amount includes consideration ofthe 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 ofJune, 2015.

Attorney Office ofthe 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 ifappropriate, not later than 3 0 days after the date shown on the Certificate ofService which follows.

# Exhibit 2

### U.S. DEll"ARTMENT OFTRANSPORT A'IliON OFFJ!CE OFHEARINGS WASHINGTON, DC

FEDERAL AVIATIONADMINlSTRATJ[ON, } Complainant, } } v. } Inthe Matter ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 } (Civil Penalty Action) 

### FISHERSCffiNTilFIC COMll"ANY, LLC, Respondent. } } Judge Goodwin



### MOTIONS TO DKSMISS COMPLAINT FORINSUFFICIENCY ANJ[) 

### FOR COMll"LAlNANT'§VIOLATION OF RULE 208
RespondentFisher Scientific Company, LLC, a subsidimy ofThermo Fisher Scientific, Inc., (hereinafterreferr-ed to as "Fisher")movesto dismiss the Complaint inthe above-captioned civil penaltyproceeding onthe followi.ng two independent grounds. First, the Complaintfails to state

a "knowing"violationfor which a civilpenalty may be imposed. Second, by including allegations that were first made more thanthree years aiterthe allegedincident, the Complaint violates Rule 208( d) ofthe Federal AviationAdministration's (hereinafter "FAA's" or ''the Agency's") Rules ofPractice ("Rules"). FAA's SouthernRegional Counsel ("Regional Counsel," "the Government" or "Complainant") makes, among others, t>vo allegations concerning acts Fisher allegedly committed almostfour years ago, on July 20, 2011, whenFisher shipped a single liter ofa conosiveliquid commonly known as lye. First, Regional Counsel allegesthatRespondent "knowingly offered ... a ... shipment ... containinghazardous materials for transportationby air." Compl.

**~** 

### 1. Second, Regional Counsel claims Respondent "violatedthe ... hazm·dous materials regulations" ("H.1VlRs") because it "failedto ensure that [thebottle oflye was] ... packagedwith absorbent materials ...." Compl.

**~** lO.c.Respondent'sMotion to Dismiss
Motionto Dismiss for InsUL4Jciencv
The Hazardous Materials Transportation Act ("HMTA"), Pub. Law No. 93-633, 88 Stat 2156, 2160 (Jan. 3, 1975), 

### codifiedas amendedat 49 U.S.C. 

### §5123(a)(l) (2011), allows the Governmentto impose a civil penalty upon a "personwho 

### knowingly committedan actwhich is
a

### violation of' the HMRs 

### (emphasis supplied). A laterrecodification made a non-substantive, editorial change. 

### Itrewordedthe sentence to say the Governmentmay impose a civil penalty on
a "personthatknowingly violates" the 

### HMR.s. Nowhere inthe Complaint does Regional Counsel allege thatFisher "lmowingly" committed any actwhich is a violation ofany HMR. It merely states that Respondent "lmowingly offered" a declared shipment ofhazardous materials.
There are other, more specific allegations inthe Complaint, but none ofthem allege a "knowing" violation. Inthe example referenced above, Regional Counsel claims Respondent "violated" 49 C.F.R. § 173.27(e), butthere is no allegationthat Fisher "knowingly" committed any act which violates it. The cited HMR applies certainpackaging requirements to some hazardous materials shipments but notto others. Inthis case, the lye was a "limited quantity" shipment that

### was exemptfrom the specificationpackagingrequirements and otherwise fully complied with all applicable HMRs. However, even ifone were 

### to assumethat§ 173.27(e) did apply to the shipment when it
was offered in 2011 andthat Fisher failed in some respectto comply with it or any other HMR, the HMTA's civil penalty provision, as amendedbythe Hazardous Materials Transportation Unifonn Safety Actof1990 ("HMTUSA"), Pub. 

### L. No., 101-615,104 Stat. 3244,3259 (Nov. 16, 1990), 

### codifiedat49 U.S.C. 

### § 5123(a)(l)(A) and (B) (2011), unquestionably requires the Agency to allege andprovetl1at 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 oftlle Motions to Dismiss, the statutory language governing the instant civil penalty proceeding is plain and unambiguous. Even iftl1ere were some reason to consider it ambiguous, the legislative history ofclauses (A) and (B), which were added byfue HMTUSA, leave no doubt that Congress adopted a new definition oftl1e term "lmowingly" for the specific purpose ofprohibiting the Government from imposing a civil penalty in a case involving transportation ofhazardous materials unless it can showthatthe Respondent had

### actual knowledge fuat its act or omission violated the HMRs or that its noncompliance resultedfrom some specific act of

### negligence on the part ofthe Respondent Accordingly, the Complaintfails to state a violation ofthe federal hazardous mate1ials transportation statute or regulations andmust be dismissed for insufficiency pursuant to Rule 218, 14 C.F.R. 

### § 13.218(f)(l).

2Respondent'sMotion to Dismiss

Motion to Dismiss for Asserting a Claim About Whichthe GovernmentFailedto Give Timely Notice As noted above, Regional Counsel asserts, among other claims, thatRespondent "violated the ... hazardous materials regulations"because it "failed to ensure that [the bottle oflye was] ... packaged with absorbent materials ...." TI1e HMRs imposed no suchrequirement onthe shipmentatissue intbis case, but even ifone were to assume that there was a requirement for packaging the subject limited quantity oflye with absorbentmaterials, Regional Counsel was obligated to give timely notice thatthe Governmentplannedto base its Complaint on such a claim. FAA served a Notice ofProposed Civil Penalty ("the Notice") onJuly 3, 2013. During an Informal Conference, Respondent pointed outto Regional Counsel thatthe Notice was expost facto, based almost entirely on Hl\I!Rs thatwere not in effect in July, 2011, whenFisher sbipped the subjectpackage. The Notice containedno allegation whatsoever that Respondent was obligatedto include "absorbent materials" orthat Fisher failedto do so when it packagedthe lye. 

### Infact, thisNotice did not even mention "absorbent materials." The first Notice ofthis claim
was served not within two years, as required, but more than three years afterthe alleged incident, in FAA's AmendedNotice ofProposed Civil Penalty ("the AmendedNotice") dated July 24, 2014. Amended Notice 

### 4f f. Rule 208( d)(2) ofF AA's Rules provides, in pe1tinentpart, that thejudge "may dismiss the complaintorthatpart ofthe complaint alleging a violationthat occurred more than two years before an agency attorney issuedthe notice ofproposed 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 thanthree years aboutthe Agency's intended allegations. To rewardRegional Counsel's failure to give timely notice by allowing this case to proceed would defeatthe stated purposes and policies ofRule 208, grossly prejudice Respondent's oppmtunity to defend itselfand constitute a denial ofRespondent's due process rights underthe U.S. Constitution. WHEREFORE, Respondentrespectfully moves to dismiss the Complaint onthe following two independent grounds: first, for insufficiency pursuantto Rule 218, 14 C.F.R. 

### § l3.218(f)(l); and, second, to dismiss the Complaint for violating Rule 208 pursuantto 14 C.F.R. § l3.208(d). Even ifthe Complaintis not dismissed outright on account ofRegionalCounsel's violation of Rule 208, that portion ofthe Complaint alleging a failure by Respondent to include "absorbent materials" inthe packaging for the subjectmaterials (i.e., all ofComplaint

### 4f lO.c.) should be stricken, as alternatively provided in Rule 208( d).

3Respondellt'sMotion to Dismiss 

### Respondentrecognizes the importance ofthe issues presented 

### in this case to hazardous materials civilpenalty cases 

### in general andrespectfully requests an opportunity to present oral argument in 

### person onthese 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. } } } } } } 

### Inthe Matter ofFisher Scientific Con1pany

**~** 

### LLC DocketNo. FAA-2015-1321 (Civil Penalty Action) Judge Goodwin

RESPONDENT'S OPPOSITION TO COl\iiPLMNAI'IT'S 

### MOTION FOREXTENSION Respondent Fisher Scientific Company, LLC, (hereinafter referred to as "Fisher") moved on Jtme 23, 2015, to dismiss the Complaint inthe 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 inviolation ofthe Federal Aviation Administration's (hereinafler "FAA's" or "the Agency's") Rules ofPractice ("Rules"). Instead offiling atimely 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 ofany 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 waivedFAA's opport:Lmity to respond to Respondent's Motions to Dismiss. Rule 13.213(b) is clear. As 

### vvith any other pa.-ty, anFAA "motion for an extension oftime" must be filed withthejudge "not later than 7 days before" aresponse to aRespondent's vvritten motion 

### "is due." Regional Cmmsel filed FAA's motion for ex.iension exactly zero days 

### be±ore the response was due. Ajudge has authority essentially to waive this seven-day requirement only if"goodcause 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 ofthe due date instead ofseven days 

### ahead, as unequivocally required under the Rules. In

### any case, the Rules allow ajudge to grant an extension oftime to respond to aMotion to Dismiss only "ifgood cause for the extension is shovm." Once again, Regional Cmmsel fulledRespondent's Opposition to MotionforExtension

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 ifit 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 ifit 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 ofan affirmative slwwingwhy the requested extension is necessary. Regional Counsel's Motion is merely the latest example ofhow FAA's handling ofthis 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 whatsoeverthat Fisherfailed to employ a p81ticular type ofpackagingproduct. 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 beento seek an extension to August 

### 3, 2015, a date that is beyond four years after the event. Meanwhile, FAAhas overseen orpermitted the destruction ofcrucial evidence. Iftllis case eventually goes to a he8l·ing, witnesses on both sides potentially will berequired to rely on nothing more thanfaded 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 

### 40l Vienna,VA 22180 (email) •.-. ·· •'C·-;· '·'' ,:._- (tel) 703-757-5866 Counsel for Thermo Fisher Scientific, Inc., and Fisher Scientific Co., LLC

2

# Exhibit 4In 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
ORDERDIRECTING THE P

### ARTffiS TOMEET AND CONFERREGARDING U'fl[GATION AND SCHEDULING ISSUES
The above captioned case was reassigned to the undersignedjudge on March 24, 2016. By order ofthe ChiefAdministrative 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 undersignedjudge, the parties should meet and confer to propose a mutually agreeable schedule. An administrative lawjudge may hold conferences to, among other things, "settle [or] simplifythe issues by consent ofthe parties." 1 Pursuant to 14 C.P.R. 

### § 13.205(a)(1) and (7), itis hereby ORDERED:
1. The parties shall privately conduct an informal conference to meaningfully discuss litigation issues and proposed scheduling. 2. The parties shall draft ajointreportproviding:
a. a suggestedvenue, b. a proposed schedule for the completion ofdiscovery (or an indicationthat discovery is complete), c. a list ofany pending motions.thathave beenpreviously filed but have yet to be ruled upon, d. a proposed date for a telephonic prehearing conference withthe undersigned judge,

1 14 C.P.R.§ 13.205.e. a proposed due date for the filing ofany prehearing motions (including a proposed date for a telephonic hearing on any filed motions, ifso desired), and 

### f. proposed hearing dates. The parties should provide at leastthree 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 undersignedjudge at the Office ofHearings by fax, express carrier, or personal delivery


### no laterthan 30 calendar days after the date ofservice ofthis order.

Administrative Law Judge

Attachment: Service List

2

# Exhibit 5

### U.S.

**JiliElPfo.J..~TJVIENT** 

### OF TRANSPORTATION 0 FlFKICE 0 F JBIEAJ'JNG§ W

### ASHJINGTON, DC

FlimERF.J:.. AVllATION ADJ'ViiiNK§TRATION, } 

### Complainant, } } 

### v_ } } 

### F][§JBIER SOENTTIF][IC ICOlVfi>Al\'Y, LJLC, } Respondent. } 

### In theMatter ofFisher Scientific Company, LLC DocketNo. 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, 

### ANII MOTJION TO SANCTION Fl-'v-\'§ NONICOWfi>UAN<CE By Order entered Ap1il6, 2016, Judge Rawald directed Complainant, the Southern Regional Counsel oftheFederal Aviation Administration (hereinafterreferred 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 buthave yetto be ruled upon'' Fisher regrets to report thatFAA counsel essentially went "AV.fOL" and thwartedFisher's diligent efforts to respond to the Orderwith a Joint Report Fisher's undersigned counsel telephonedthe FP,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 handlingthe case, even though F

### A.A never updatedthe service list On April 20, Ms. I\llichelle Harper phoned to say she was the attorney responsible forFAA's compliancewith the Order. She askedFisher's counsel to prepare a draft JointReport, 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.Reportof Fisher Sdentijlc
A week later, on April 27, the undersigned phoned Ms. Harperbut, once again, she did not answer hertelephone. Fisher's counsel left a voicemail reminding herthatFisherwas determined to comply with the Orderbut- without any response from her- itwould be impossible to file the required Joint Report. Ms. Harper never responded to the voicemail. On April 29 -the deadline forfinalizing and mailing the 

### Ioint Report- the undersigned telephoned Ms. Harper again, but she did not answer hertelephone. Fisher's cou..T1sel indicated in a voice mail that ifFAA continued to ignore the proposed draft ofthe Joint Report, Fisherwould 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 ofthe April 6 Order isjustthe latest chapterin a five-year history of the Office ofSouthern Regional Counsel dragging its feet and utterly ignoring applicable laws and Ruies ofPractice. This case arises from an alleged incident that occurred fiveyears ago, on July 21,2011. FAA waited until days before the statute oflimitations expired and filed a Notice ofProposed Civil Penalty inJuly, 2013. AfterFisherpointed out that theNotice was based on regulatory requirements thatwere not in effect in 2011, FAA filed an Amended Notice on July 24,2014, morethan t..hree years afcerthe 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, RespondentFisher filed a Motion to Dismiss the Complaint for legal insufficiency and for being baiTed by the statute oflimitations. The FPtA's own Rules ofPractice allowed FAA 10 days to oppose Fisher's Motion to Dismiss, butthe agency did not file its Memorandum in Opposition until August 17, 2015, almost two mont..hs after it was due. Fisher's Motionto Dismiss has been pendingfor nearly a year. The most appropriate way to sanction such egregiously dilatory conduct and getthis ancient case offthe docket would be to order Southern Regional Counsel to SHOW CAUSE why dismissal should not be ordered on one ormore ofthe 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 toRespondent's June 23, 2015, Motion to Dismiss. (No extension was permitted under FAA's Rules ofPractice for the reasons stated inRespondent's Opposition to F}I_JVs Motion forExtension.) 3. FA_A,_'s decision to wait more than three years after the aileged incident and morethan a year afierthe statute oflimitations expired to lodge crucial allegations in the Amended Notice. (Respondent's Memorandum in Support and its December21,2015, Reply to F**~\.l'>.'s** Memorandum in Opposition, an additional copy ofwhich is attached, explainin detail why the case is barred as OLrt-of.-time
..)

2Reportof 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 prejudiceFAA's Complaint. Respondent reiterates its requestfor 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 ThermoFisher Scientific, Inc., and Fisher Scientific Co., LLC

3

# Exhibit 6

### InThe Matter Of: 

## U.S. DEPiLRTivffi:N1 OF TRANSPORTATION OFFICE OF HEARil'-JGS

\VASHINGTON, DC 

## H

DocketNo. 

### FAA-2015-1321 Fisher Scientific Company, 

### LLC ) ) ) ) Case No. 201130700457 Respondent )


### ORIDIER 1'0 §HOW CAU§E AND PROVmJE REQUESTED liNFORt"'l<1i\.TllON OnAp1il 6, 2016, the undersignedjudge issLJed an OrderDirecting 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 ajointrep01t to the u11dersignedjudge within 30 days of that order. On April30, 2016. the Respondent filed a unilateral report, sTating that his attempts to meet and conferwith me Complainant had failed. 1 The Complainant failed to submit a report orrequest tor additional time before the deadline2 In accordance \Vith 14 C.F.R. 

### § l3.205(a)(6), an administr·ative Jawjudge is empoweredto regulate the course ofa hearing. As previously noted by the FAAAdministr-ator: [t]he Administrator expects thatthe pmties

**"~!!** comply \l-ith orders issued by an AU during the he-aring s1age ofaproceeding. Ignoring an A..LJ's orders canrrot be countenanced in an orderly system ofadjudication-' 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 inthe April 6, 20IGMeet and Confer Order. 2 Counsel for the Complainant filed a notice ofappearance onMay !0, 20!6, but failed to include the informarion required by the undersignedjudge's April 6, 20 !6 Meet and Confer Order or offer aresponse 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 aresponse to the April6, 2016 Meet and Confer Order. 'AmericanAirlines, 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 directedbythe undersignedjudge maybe deemed a constructiv-e withdrawal ofthe request tor hearing or complaint bythe party demonstrating such

a lack ofinterest in participating inthese 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 ofthe infmmationrequested inthe 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 'viththe OrderDirectillgthe Parties to Meet and ConferRegarding Litigation and Scheduling Issues. 3. The Complainant shall include intheil· statementthe infonuationrequested inthe Order Directingthe Parties to ]Vleet and Confer Regarding Litigation and SchedulmgIssues. 4. Ifthe Complainantfails to file this statement by the above deadline, the undersigned judge mayissue a subsequent order findillg the Complamanthas constructively '>vitbdrawn from these proceedi11gs and, pursuant to 14 CF.K 

### § 13.2.15, dismiss the case 

### withprejudice.

Attachment: Service List **=-~~-~~** --·cP /"

__ ) _/:;.-::::;:::::.::..:-/ £..
.

- ..¥.../"'

**c;""_..---~ ~**  ....._________ DOUGLAS M. R.A..WALD Administrative Law Judge

5 See. e.g .. IAL PowerSupply, DocketNo. CPO 1SOOO 15 (FAAAug. 7, 2001) (A.LJ constmed Respondent's silence
as a conshuctive witlu:lrawal ofrequest for a hearing), appeal dismissed, FAA. OrderNo. :2002-1 0 (Apr. 1?, 2002); B!ankson, DocketNo. CP97EA0024 (FAA Sep. 11.1997) (ALI found faiiure to respondto previous orders constimredconstTUctive 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 thehearing wirl1out good cause);Apollo A & HS Company, fAA OrderNo. 2011-4, at 4 

### (Jan. 14, 20ll) 

### ("Apollo's failure to appear at !he hearing and to pursueirs 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 Orderto 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 ofthe 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 aruling on the pending motion to dismjss. Consequently, both parties agreed to submit that statement in response to thejudge'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 ofthe ChiefCounsel Enforcement Division, Southern Team



### 2

# Exhibit 8U.§. 

### IDIElP'AJ.--._TMENT OF 

### 'JfRANSJPOllUATfi:ON OFFICE OF J8!.EA\P'J!NGS WASlillNG'ION, IDIC .JFEJD;ERAL AVliAHON AIDIM:ll'>ll!§T!RATION, } Complainant,

v. 

### } 1 J In theMatterofFisher Scientific Company, LLC DocketNo. FAA.-2015-1321 (Civil Penalty Action) JFJL§IJ!

**i~:R** 

### SCIENTIFIC COiYIPANY, LLC, Respondent. } } } } Judge Rawald 

### RE§l'ONDEN1"§ REPORT IN RESPONSE TO ORDERI§§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 ofthe Proceedings The Federal Aviation Administration's Southern Regional Counsei ("Regional Counsel" or "F A_A.") seeks a $5,850 fine relatingto a small shipment oflyefive years ago. Respondent Fisher Scientific Company ("Fisher") moved to dismiss the case for several reasons, including FAA's failure to explainhowthe shipment could possibly have involved any knowing violation ofthe Hazardous Materials Regulations 

### (":8-:MRs"). Fisherparticipated in two "infom1al conferences" ("ICs") with Regional CounseL Duringthe ±!rst IC, onJuly 16,2014, Fisher explained that the boilerplate Notice ofProposed Civil Penalty ("NO PCP")thatRegional Counsel served July 3, 2013, included downright bizarre factual allegations and was based entirely on HMRs that

### were notin effect on July 21, 2011, the date of the alleged incident. More specifically, Fisher pointed outto Regional Counsel during the 2013 IC that thevolume oflye being shipped (just one liter) was so small, the shipmentwas a "limited quantity" ("LQ") thatwas exempt from certain packaging and otherrequirements that would otherwise have applied. Regional Counsel wrote theNO PCP in 2013, after the maximum volume for an LQ oflye decreased to one-halfliter, butthe change inthe HIVJ:Rs was not and could not be retroactive to a shipmentin 2011.
Morethan a year later, on July 24, 2014, Regional Counsel served an AmendedNotice of Proposed Civil Penalty ("ANOPCP") that dropped allegations in the first Noticebut added aReportandRep{F of RespondentFisherScientific completely new claim that, whenFisher prepared the subject shipment, it was somehow required to stuffthe 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 outthat, in addition to relying on f-l:::J1,1RB that were not in effect at the time ofthe 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 ofrecord, Will Vines, Esq., to explain why FAA refused to acceptthatthe LQ Exemption covered the subject shipment. Mr. Vines stammered for halfa 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, OrderDirectingthe Parties to Meet and ConferRegarding Litigation and Scheduling Issues After the two ICs, Counsel for the parties had no other communication until Judge Rawald issued the April 6 Order. Fisherhad to work hard to initiate contact The undersigned phonedj\!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. Thefollowing day,**~Ar.** Vines advised by email that a differentFAA 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 showthatthe entire April 20 conversation lasted 20 minutes (Attachment 1). Itcovered the foilowing topics: (1) personal introductions; (2) Judge Rawald's April 6 Order; (3) the content ofthe Joint Reportto be filed in response to the April 6 Order; (4) Respondent's Motion to Dismiss the Complaint; and (5) Respondent's request to meetwith FAA's newly assigned counsel to hear whether she, unlikeIvir. Vines, could explain why FAA contends thatthe subject shipment did not qualify for the LQ Exemption. 

### 1'opk 1 consumed about five minutes ofthe 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, becauseFisher's Motion to Dismiss wouldbe dispositive ofthe entire case. On 

### 1'opk 3, Respondent's counsel agreed to prepare a draft Joint Reportto that effect and FAA's counsel agreed to review it, to offer any needed edits and sign it ifno 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 toDismiss should be granted.

2ReportandRepfv of RespondentFisherScientific Approximately 18 minutes intothis 20-minute conversation, Respondent's counsel broughtup Topic 5. That part ofthe conversation, whichis reproduced below inits entirety and as close to verbatim as possible, went as follows: 

### lYfR. Cox: You know, 

### itwould

### Feally lie a 

### shame to insistthat

### theJudge nmst

### decide the 

### 111otion to Dismiss andallow theproceedings to go forward if 

### youwill

### have rtw 

### case topresent
011 

### tl1e merits. We asked 

### PliifVines more tlum once to 

### e.:1.plmn whythes!dprnentwas 

### not exemptunder i!he Limited QuantityEx:emption. Canyouplease explain thatone to me?
ivfs. 

### HARPER (CHUCKLING): 

### I hll.Ven 

### 'tlooked atfiuu 

### file inyears.
MR. Cox: 

### 1¥Iaybe this 

### wo11ldbe a good

### time to 

### do that.


### Ms. HARPER: OK, I'fflook at

### itandgetback toyou inthe first ha(,f of next

### week
This portion ofthe conversation lasted approximately two minutes. Immediately afterthe April 20 conversation, Respondent's counsel sent a draft JointReportfor Ms. Harper's review, edits and signature. Ms. Harperfailed to respond. Afterhearing nothing from FAAfor another week, on April27, the undersigned phoned Ms. Harperto urge her to sign
or suggest changes to the proposedJointReport. She did not answerherphone. 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 deadlinefor submitting the JointReport loomed, the undersigned telephoned Ms. Harper again, leavingthe following voice message, reproduced here verbatim:
JVIR. 

### Cox: This isJerry 

### Coxwith Thenrw Fisher 

### inDC. 1sent

### you a 

### draftJointR.epm't on 

### April:ZO butne1•erheardback fromym•. We're up 

### againstthe deadline, soI'mgoingto 

### withdl'aw the draft .Jointll.eportand Thermo Fisher willhave to file its ownll.eport Feel free to callrne -when yoMare preparedto 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 ofits 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 FAAto show causewhy 

### ithas not "constructivelywithdrawn" its Complaint and tl1e whythe Judge should not "dismiss the case with prejudice." Orderto Show Cause at 2.

3ReportmldRep{v of RespondentFisherScientific 

### 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 ifshe 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 whetherFA..f, 

### had even received

### the draft 

### Joint Report, much less whether Ms. 

### Harper approved it. FAA toldthe Judge that Ms. Harper and Respondent's counsel "had a lengthy phone call discussingthe 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 "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 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 ofCivil Procedure ("FRCP") and professional ethics requirements relatingto candorbefore a tribunaL Itis for the Judge to determine whether a 20 minute phone call, only two minLTtes ofwhich was devoted to the merits ofthe 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 thatMs. 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 inthe case. FRCP ll(a) explicitly requires that "every pleading
... at"1d other paper must be signed by at least one attorney ofrecord
... [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 ofthe 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 statementto the Judge that "the parties did indeed meet and confer [at"1d] had a thorough discussion ofthe underlying facts ofthe case

...."isboth 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 ofthe information requested in the OrderDirecting 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 "schedulefor

4ReportandReplyof RespondentFislzerScientific completion ofdiscover-y," proposed dates for preheaTing conferences, filing ofprehearing motions and heating dates. Order toMeet a.1"1d Confer at 1-2. Unfortunately, because FAA has steadfastly avoided meetingwith Respondent orparticipatingin any sort ofsubstantive discussion- even afterthe undersigned made additional telephone requests to Ms. Harper on May 31 and June 3, Respondent can only guess whatthe issues wouldbe, much less what discovery would beneeded to address them, how longit would take to complete such discovery
or whatwitnesses would need tobe called. With that said, Respondent provides below, to the greatest extent information is available atthe moment, the following information requested by the numbered portions ofthe April 6 Order. Respondent's responsive information is presented 

### in italics:

1. The parties shall privately conduct an informal conferenceto meaningfully discuss litigation issues and proposed scheduling. 

### PcESPONliliENT'S PcEJPLY FAA rebuffedmultiple requests_ft-om Respondent's counsel for a meeting, startingonApril 15, 2016, on the grounds that ithas beenyears since Regional Counsel hc<S reo.d thefile. This has made 

### it impossible forRespondent to address with FAA either litigation issues orproposed scheduling.

2. The parties shall draft a JointReport providing: 

### a. a suggested venue,

Without FAA's cooperation, Respondent hasno WC[)l to know whatwitnesseswouldneed to be calledorwhat venue would be most convenientto them. However, Respondent tentatively suggests that TiVashington, DC, would be the appropriate venue because the Judge is here, Respondent's counsel is here and keyFisher>vitnesses are in the Northeastern United States.

b. a proposed schedulefor the completion ofdiscove.')',

Until FAA 

### is compelledtoparticipate in the infonnal conference referenced in Item# 1, above, it wiil remain impossible to know whatwitnesses the agency intend..s topresent, what experts, 

## if any, Respondentwouldneedto call to testifyandwhopossesses relevant information. The time

5ReportandReply of RespondentFisherScientific
needed to complete discoveiy, of course, will depend on how manywitnesses are involved, where they are located, andwhat their schedulesallawfor. Witnesses may alsoneedadditional time to refr·esh their recollections about events that occurredfiveyears ago. Respondentwould, in any event, requireproduction of physical evidence related to the alleged leak. Respondent understands fi·om a letterMr. Vines sent onNovember 20, 20j 4, thatFAA either destroyed the bottle and the packagingmaterial, including the box inwhich it·was shipped, or allowed this evidence to be destroyed. Itmay take months to determine how much of thephysical evidence continues to exist andwhat, if anything, experts can deduceji·om it. Respondentmay also need to seeksanctions against

### FAA on account of such destruction of evidence.

1" .c-

**,~** • c. a

**~1st** 01 any penmngmotwns ..., 

### RESPONDENT'S REPLY Respondent'slv/.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 toparticipate in aprehem·ing conference, by telephone or in person, on July 20, 20j 6, or nearly any otherdate that wouldsuit the Judge's convenience. However, withoutmore infonnation about the issues

### FAA will raise, Respondent is uncertain what could be accomplished.

e. a proposed date for thefiling of<my prehea.ing motions
... a.1d

While Respondent cannotsuggesta datefor filingpreheaTingmotions, 

### it likely ·wouldneed to.file a motion for a more definite statement before it could.file itsAnswer.



### f. proposed hearing dates
... acceptable to all pa.'iies.

6ReportandReply af RespondentFisher Scientl"fic Respondent submits that no hearing

### will be needed in this case, but if a hearing

### will be held it requests the earliestdate consistent·with andallowable under the law andFAA'sRules of Practice.

3. [service instructions] RES!'ONI!JENT'§ REJPJLY Respondent timely

**served~** in accordance with these

**instructions~** the bestReport itcould muster in lightof the total lack ofresponseji·om FAA to the drqftJoint Report it offered Regional Counsel onApril 20. Conclusion Respondenthas no means to compel Regional Counsel 

### to comply with theApril 6 Order orto respond to JudgeRawald's May 17 Show Cause Order. Fisher cannot provide any more requested information until FAA stops hidingbehind the pendingMotion toDismiss. Judge Rawald has offered FA./\ multiple opportunities to comply with his Orders butthe agency still refuses. WElliREFOF.E, Respondent requests thatt.he Complaintbe dismissed with prejudice.

Dated: June 13, 2016 **Re~pectlj,Ill;y** suj;mitted, ,' .

**~** "' -,-.....,-- Jeuy/Ylf



### Cox~Esq 2050Jamieson 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

7JERRY COX \>age: A-21 of 25 2050 JAMIESON AVE APT 1212 ALE)(ANDRIA, VA 22314-6827 kSiU Cyde Date: 04/10i16- 05/09/15 AceoMnt

**~~~~?** f"m.mdation

**Ac~ou~t:** FAN 05536137

Datcl Dei:ait -Continued

**Ti~e** Ta/Fn:m. Data Plans

**f~amfa**y, O!HOS 04:2Va Data T rarJSfer .Snbtoh:!l f(lr 02:ta Piam;: Subtotal for till's: PicturclVideo Ressege-s Sunday, 05/0S 04:4Sp Sent

**703-343~6911** 04:50p sent 1165-207-3"' **~** 20,S!l41ffi 1,1i54,75li(B 1,004,754@

Pfr:t Viden USG Pint Video liSS Subtob!i fur PicblrE:JV1deo Hessages: 2 Total Data DE:tnH P.ate Cods: \\HBGB-1 = Hubile

**S~are** Value 'ISGB wHh Ro11G1!er Data Uf!LHSG = Shared llessa!Jing



### eau OetaH. 

### . TOll 7!:!?·21U

**~~f?.~~-~~~** Rete

**C!l~e**

**~-1**

UUI..H$ UJIU!Sll

Place Rate Feat!.Jre A"!rtiES

**~** eai1eti Toesday, 04/"f2 iO:ll.Oa \liY.lL CL 07:0!p I!Hftll El Timrsday, 04114

**'!0:4~<1** VHAIL CL 09:2ilp VliA!l Cl FMday, 1]4/15 03:30p Vfl!Ul CL Saturday' 

### amo 04:04p A.fll.lli-G VA 04:05p ft..RUilB VJ, Honday, ll-1/ia il:5ilp. WJiiL Cl Tuesday, 04/19 OU:43p lflihll CL Uednesday, 04i20 03:5Bp 1%\ll Cl Friday, 04/22 OS:47p VlfJffll\ VA OG:50p Vrtllit!i. VA S:Iturda_v, M/2'3 03:27p WWl Cl rnursday, M/23 02:52c

**~Ui!L** CL i0!2"3a VIII ill Cl Ttm_c:rtay o frj/03 il:44a VlEl'ElA VA P.UJht!r Cailed 703-757-2211 j@w7!il-2211 703-7W·221i 703-757-2211 103-7W-221i 703.-&ZT-1!015 703-6"'21·4015 703-7Sl-22ii imJ-757-zm

**703-757~22.11**

**7a3-757~5385** 70J-757-5H66

**7D3-757~22fi** 703-757-2ll"l 703-757-2211 100-757-5855 C-\ld& Code n1n Cimrae;; SiJ!JlJ !ffl SDDV 

### vn SIJDV Wi S!JDV Wi SiJDV WI S!IDV SllilV &Jj)l[ \Ill SfJUV Vii SUDi1 VN ii!IDV SDOV S!IDV 1[iJ SDDV l[Ji ®DV Wi S!JDV 0.00 

### o.oo 0.00 O.GO 0.00 Cl.{IO 0.00 O.DD 0.00 

### o.oo 0.00 

### o.oo D.GO 0.00 0.00 3 IJ.QO 0.00 0.00 0.®

0.03 0.00 G.OO 0.00

lDIAddl Cimrpes O.OD 0.00 P1sce

**m~e** ca11ed l!milier Galled llonday, 114111

0.00 w;uop

**.tt.<:::::z~** ;m

**J.;U3-flll~!lii:i1** iJ .00 

### ff' Friday' 04fi5 'c\G 1D:50a ATUili G.l 404-31l5.0200 

### o.ao -...::., 0.00 O.GU 0.00 

### u.ao 0.00 0.00 0.00 O.DU 0.00 0.00 0.00 

## .. Rata Faature C!Jde Coda Hin

S!}IJ\f 1 2 10 39
2 B iO 1 j 2 29 2 36 23 0 9

3 27 20 8 17 1 2 14 ll 2 i\1rti!;3 Charrre!> 0.00 O.GO O.ilU 0.@ 0.00 0.0/i 0.00 0.00 0.00 0.00 0.00 0.00 0.00

**o.c~** O.IJ[l 0.00 

### o.oo 0.00

**0.0~** !i.OO 0.110 0.00 0.00 0.00 

### o.oo 0,00 0.00 0.00 lD/Addl Charllt!S 0.00 0.00 

### o.oo 0.00 

### o.oo 0.00 0.00 {].00 0.00 

### o.oo 0.00 0.00 0.00 0.00 o.lln 0.00 

### o.oo o.oo 0.00 0.00 0.00 0.00 

### o.oo o.oo o.oo o.oo 0.00 0.00 

# "'JERRY COX Page: A-22 of 25 2050 JAMIESON AVE APT 1212 ALEXANDRIA, VA 22314-6821' Bill Cy<!e Date: 04/10/16- 05/09/15 Aeeount

**f~l$M%~~** Fm..mdation AcGrJunt; FAN 05536137

Visit us online at: trlf"J\fw.att

..ccm

------- 

### ---------- -----

**----~** Place Raie Feature AirtfBe LDIMdl 

# ® . ')/«)@

**1'!0')1,.~~~1@** .. Ti§! Culled ::rn.hrrr Cz11€!1 Ci:!.!e Code illn CiETcras CbatcJes

------ ·----. **.-:J~R'f.C9J.L**.._______. __ --------·---·-· . ,.,_;o; 

### o.oo 0.00 Ca!t OE:-ta:n.

- Continued --· -------··- 2 0.00 0.00 Plm:a !late Feature

**:;'1\irt_"'~.** I.DII!rlol 03Frldlly, OM1!1 Tifie Ca11ed !/Wier

**C.a11e~** C.."iie Cllllil H'ln



### /:\~ss Charues \:);.®04:52p 1\TIJJ-IT Gi\ 41J4-305·5'..19 SDDV 2 

### o.oo 0.00 ® /:"'-:· t1sdffilsdey, O•H:W

**--~** ·•·• &!turdill', IJ413U

**:S:~1-i1:04a** IHCOIU CL 41J4-305-5220 row 

### _2d'"'"' 0.00 0.00 D 10:4&! TIIIlliii CL 7o-3a525-G349 S!JiiV 19 0.00 0.00 Tlmrsdav. 04121 Tuesday, 05!03 3 0.00 0.00 11:44a JliCOHI Cl 703-757-2211 SDIJV 3 O.GO 0.00 0.00 0.00 Hedriesrlay '·· 05!134 0.00 

### o.oo 

### ----- ---- 0.00 

### o.oo 4 0.00 0.00 5 0.00 0.00 2 0.00 0.00 1 

### o.oo 0.00 1 O.OD O.!ID 0 0.00 

### o.oo 2 0.00 O.GO ·j 

### o.oo -Q,fi-[} G 

### o.oo 0.00 0.00 

### o.oo 15 0.00 0.00 0.00 0.00 2 0.00 

### o.oo 1 

### o.oo 0.00 j 0.00 0.00 iO 0.00 0.00 2 0.00 0.00 i2 

### o.oo 0.00 2 0.00 0.00 ua.aop

**J;tlGvol~** ,.,_ 

### ·== __ ,.,.-- =-:----- 2 0.00 0.00 R:!ltil Cl:!:ig: 1\!adnesday,. W.i27 SDOV = Sh1;1red ftinutas 0.00 0.00 4 

### o.oo 0.00 fuature Clltla: < 0.00 0.00 38 0.00 O.OD ttl' = Cfill HA...1TIR13

**~~ --~·** 

**~** 05:00p All.NIT GA

**~114-305·1i229** SiiiiV 2 0.00 0.00 "' :.-:.--,o-..

**--~---** -- -·- ---· ·--- 1 0.00 0.00 Data !Jetan ""'-- 2 

### o.oo 0.00 TilE- ToJFmJJ TvpefUnit Batt! furle i O.fiO 0.00 Text Messsges iB 0.00 0.00 ii-:Iturday, 04/iO 35 0.00 D.OO OD:13a Sent

**liD3~7i4-434D** TeKt

**liesssrr~** lRJUlSS 0.00 00:4'18 Rovd 603-7144.."l!10 Text

**~esss-ge** Ul!UiSG 0.00 0.00 0.00 oa:43a Sent So:J-714·4348 Text Hessage um.nss 0.00 i 0.00 0.00 OB:43o S'snt

**50B~714~4B--1S** Te:rt ltessaga Ull!..HSS 0.00 4 0.00 0.00 OB:47a Revd 603-714-4340 Tart

**~sene** illiUiS& 0.00 2 0.00 0.00 o0:57a Sent 603·714-4346 Text l!essage ffilliiSG 

### o.oo 2 0.00 0.00 00:5!1a RC\!!1 im3-7i4-43<!0 TeJtt. P.-essaga unmS& 0.00 13 0.00 0.00 2 0.00 

### o.oo

# Exhibit 9·,.=, ty:,·=



### ,p=-~ **if=~ (~**  **?~** -_11 

### L_-_--_~--~~----· r._.'l:_---
__ 

### ~ ____

### ._-.-~_, 

# 1r=l

# t:

**~. r~--**  

### ; -

**-~-** 

### -

**~·** 

### U.S. DlEPARTMENT OF TRANSPORTAUON OFFICE OF HEARINGS WASHJNGTON, l!JIC FEl!JIERAlL A VIAHON ADMOOSTRATKON, } Complainant,

V. } 

### } } IntheMatter ofFisher 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 ofthe FAA's Inexcusable Delay inthe Proceedings
TheFederal Aviation Administration's Southern Regional Colmsel ("Regional Counsel" or "FAA") seeks a $5,850 fine relating to a small shipment oflye almost five-and-a-halfyears ago. 

### Inthe 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 Complaintis legally insufficientbecause, evenifthe alleged facts were aSsumed
to be true, itfails to state a claim for civilpenalties under applicable statute (per Respondent'sMotionto Dismiss Complaintfor Insufficiency); 2. Thetwo-year statute oflimitations for initiating such a 

### claim underthe Federal Aviation Act ran morethan a year before Regional Counsel served the required Notice (perRespondent's Motionto Dismiss Complaint for Complainant's Violation ofRule 208); 3. Regional Counsel failed to file a timely response to Respondent's Motion to Dismiss (per Respondent's Opposition to Complainant'sMotion for Extension); and 4. Regional Counsel invited dismissal ofthe Complaintby ignoring the Administrative LawJudge's April 6, 2016, Orderto confer withRespondent's cmmsel andfile a Joint Report (per Fisher's Motion to SanctionFAA'sNoncompliance).
New andAdditionalReasons to Dismiss the Complaint Regional Counselpurportedto file a Response to Show Cause Order onMay 31, 2016. No counsel ofrecord for FAr\ signedthe submission, however, so 

### itviolated Rule ll(a) ofthe FederalRules ofCivil Procedure ("FRCP"). Respondentpromptly called

### this violationtoRespondentltlotion to Strike and to Dismiss Regional Counsel's attention; Regional Counsel tookno corrective action. 

### Accordingly, under FRCP 11(a), "the court 

### muststrike anunsigned paper" (emphasis supplied), and FAA must be deemed to have failed to respondto the Show Cause Order, much less to haveprovided any reason forthe Judge notto dismiss the action for the reasons stated 

### inthat Order. Regional Counsel's persistent delay and disregard ofapplicable rules and statutes has also rendered the Complaint essentially moot under the five-year, government-wide statute of limitations batTing the commencement ofany civilproceedings more than five years afterthe 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 

### 3MCo. 

### v. Browner, 17 F.3d 1453 (D.C. Cir. 1994.) 

### It is lmdisputed that the alleged act atissue inthis 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 onpursuing this case. They are askingthe Administrative LawJudge 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 onthe motions, Regional Counsel offers the prospect ofeven more wasted effort in a heating FAA conservatively estin1ates would consume at least three fuli days ofthe Judge's time. Even ifone were to assume that the endresult ofthatproceeding would be a final order that Respondent pay
a $5,850 civil penalty, the Governmentis batTed by statute frombringing any court actionto compel payment. Respondent's counsel attempted to reach Regional Counsel ofrecord by telephone to ask whetherthis motionwould be necessary, but her office receptionist refused to take a message at1d slanm1ed downthephone in mid-conversation. Ms. Hat·per did notreturnthe call. VvHEREFORE, Respondent submits that the Camplaint must be dismissedwithprejudice on any
or all ofthe grounds stated above.

Dated: September 23, 2016 

# ''1

**/~** 

# I.\ ; \ c/ II

. ;Respef:Jiull;l subrnitted, 

### \ i1I 

## 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 Company 5 

# 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

5 6 7 s 9 !0 !! 12 13 14 !5 16 l7 IS !9 20 21 22
2-l25

2 3
5 G 7
9 lO ll l2 15 !4 l5 16 17 18 19 20 2! 22
24 25 (Ei: 1:2 a.m.·,

F.c:;' t::'

_ +-,-, 3-;J\>"3.!::

**!:2~ :-',·:·'::be~"**  _ ?lB.ci1'?d --s-:::. !·:.:::. :;:< 2.i2 'co o.c--t "' C• c: '-2"2l ,-s.:::·'·C r··n th'=- 2 3

6 7
9 10 ll ]} 13 1-1- 15 !6 17 18 19

23 24

3
5

10 11 12 13 14 15 10 l7 IS 19 20 11
23 **s.pp~a.dng.**

t·::·



### For The Record, Inc. 

## 10/4/2016
3

tl

1 (Pages 1 to 4)

### Fisher Scientific Company, LLC

:5 6 7 8 9 10 ll !2 13 14 !:5 !6 !7 18 19 20 ll 22 23 24 25

3 4 5 6 7 8 9 10 11 12 l3 14 15 !6 17 18 19 20 21 22 23 24 25 .lJ involved is the sodiumhydroxide materiaL the Class 8 UN 1824. ifyou-- ifyou go to the hnzardous materials table, it \Viii tell you exactly hmv it's

**regulate~** so that·s really the essence ofthose two paragraphs. TGDGE RAW ALD: Okay. And, so, lvlr. Cox, would you agree or disagree wil.h i\II:r_ Ellis? lvffi.. COX: I'mnot entire

**I~,--** sure what heju.<;t saicL other them l wouldjustpoint 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'mnot sure 1vhich ofthose 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 inthe original notice \Vbich

-- JUDGE RAWALD: lvh'. Ellis, hold on one second.

**So~** MI. Coxo my queslion is, obviously· the language in 4 and 5 arc different inthe complaint than whatthey \Vere in the original notice, 4 and 5 in the complaintmirror "-rhffi's in the amendednotice. What Jasked ofboth 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 clearwhat originally \Vas inParagTaph 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 inthe_ notice forproposed civil penalty from 2013? Iv1R COX: Clearly, new facts. Especially if you have in fi·ont ofyou amended notice ofproposed civil penalty fileJuly 24,2014,Paramph 4 is still talkin£ about corks. Tlus case has nothing to do \Villi corks. JUDGE RAWALD: Right. But it didn't make its \\-a}: into the

**complall1~** sir,

**so~I'm** not going to wmn' about it. Ifit'snot in lhe complaint, it's not an issue. So it'sreally not rn1 issue. I understand the Government can certainly drop things from U1e notice ofproposed civil penalty and not make it inthe c.omplainL In fact, ti1eY dropped admittedly halftheir violations in the complaint stage, so they initially alleged sixviolations in 2013, in the complaintthere's only three.

**~·-.~·---so~~QT;~;IQliSIY·',-fueadvocacv** was eftCctive at some nolnt becauseyou 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. Coxhas 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'mreally 7 -·lacused on the-procedural issues, whi.ch are a\

**lh~** YelY 8 threshold forissues under the regulations that go to 9 whether lhe case exists or not And then we can discuss I0 more about U1e possible sanctions or oilier things clown 11 the road. p 13 14 !:5 !6 !7 18 19 20 2! 22 23 24 25

2 3 4 5 G 7 8 9 10 11 12 13 14 !5 16 17 18 19 20 2! 22 23 24 0"

**~)** But at this moment I am notgoing to look at that. I want to look at these threshold issues and get

. tl10se out dealtwitlr, in my opinion first. TIJat's wlJat

I'mlooking at So Thith that understanding, Mr. Cox. do you have an:ything else youwant to bring up? MR. COX: Judge, I would simph· like to note forthe recor<l my objections that evervt!Jing that Mr. Ellis saidis 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

clearinRule l L tlrat it has to be counsel ofrecord.

There's nothingin the response that-- there's no typervTitten infonnation as to who signedthat supposed response, whether that's 1VIr. Ellis' sig:natm·e ornot, I don'tk:nmv. But there are a lot offactual allegations made that arejustflat untlue. Aud ifMs. Hnrperis not "illingto put her siru:tature on that and 1isk

**sanction~_**for telling, as she calls them, mislluths; then I donot think that it's reallv 1ightfor a Respondent to have to deal with an attomey who is not ofIecord ill the case. And I \Yould QQject to ihat. JUDGE RAWALD: Okay. And, Mr. Ellis, let me J."

**~­** tum to you. So. there is a complicating factor here. in 

# I 

# '! the factthat Ivls. Hm]Jerhas been noticeablv absent n·om .·thepror.;eeding. She didn'tfile anvthine inresponse to 1 ;

my initial noticeregulling the pmties to meet and 

## !! i I confer: she did not file herselfthe response to notice 1 1

- II 

### 11 for show cause_ von filed !.hat forher: fu!d she has not appeared todav. TI1is is a problem, Cmmsel. There needs to be_ l1 someonefrom theFAA \Vho is onthis case and ready to 1, 1 ' prosecutethis Case, because

## rm proceeding: \Y]th this

.



### --~q§__~_ I'mmoving



### tl!_i~t-~ase fonvard either 1Y?-Y. A
. nd JJ ifthe FAA\Vants to not abandon Uris case. thev need to 

## ! ( assign someoneto this case who is going to betaking 

## j!
11 (Pages 

### 41 to 

### 44) 

## For The Record, Inc.

### Fisher Scientific Company, LLC

**JlLI1J!L~b§. CU.§~.,_**  2 And iflVls. Harpercan't tnke p;;ut in the caseo

_, youneed to think about who else you wantto assign to 4 the matter, sir. 5 lv!R ELLIS: I hear you loud and clear, Your 6 Honor. I -

**~)**

7 JUDGE RAWALD: Yes, sir. 1"-otd so 1would think 8 obout that further. 9 _1\nd as lorMr. Cox"s concems, 1"ill lake them 10 under advisement and I'll consider whether ornot 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: Ihave a question, Judge. 16 JUDGE Rr'C WALD: Yes, Mr. Cox? 17 lviR. COX: Are you denying my motions? A.nv of 18 my motions to dismiss? 19 JUDGE RAWALD: 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 takingthese first trvo issues after 21.

**~u-gumcnt** under advisement nnd I will work on issuing an 23 opinion. .24 I will then look atthe otherissues youhave 25 raised moreintensely nnd decide whatto do about those

2 3 4 5 6 7 8 9 10 11 12 13 14 !5 16 17 !8 19 20 

### :n 12 2-+ 25 46 issues. 1do not planonhaving arg1.m1cnt on those issues. but ifI do. npou re,icwingthem fmther. Ulink additional briefing or argument necessary, I will let the parties know. No. I understand yourposition onall 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.\:_ inthe short tcm1 MR. ELLIS: YourHonor? YourHonor. 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 passedto the dockeL but l"m not sure. But I will make sure that all parties receive a copy ofthetranscript once \Ye get one_ yes. MR. ELLIS: Thank yotL Your Honor. JUDGE RAWALD: Okay. Mr.

**Co~.** so --just so youunderstand_ what I will do is 1·will go ahead and issue a \Hitten order regarding U1ese t\vo motions alone and thenlook at the otl1er three issues fmtheL I don't tltink there's anything inthose_ despite your concem thatwill be worth my looking atbefore I dispose of 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 l7 18 l9 20 2! 22 13 24 25 

## 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. JustI want to be clenr fu:tt you're goingto:-- it's )'Our intention to hold in abeyancethe motion to strike and the motions to dismis::;, including the motionto dismiss on mootness, because of the five )'CEtr statute oflimitations. You're goingto decide upon the issue about whether the pleadingmeets the sufllciencv requirements before vou decide \Vhethcr the case is moot inthe first

.place. 1v1R. ELLIS: HO\\' in the world \YOuld the-- rm

sorry. -+7

JUDGE RAWA.LD: Yes. TI1e reason \Vhy I'mdoing that is because first ofall,you raised the issue YC!}' recently ofthe Governmenthasn'thad a chance to brief it and I thinkalso 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 intheregulation 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 thenl will look atyour new issueyou·ve
raised, ando ifneccss<.uy, ask for briefjng: fi·om the Respondent

-- oro excuse

**me~** the Complainant to respond to what youraisedthere_ ns far as the three orthe

**fin~** year statute, sir. I'AR. COX: As long as 1understand. Thankyou. JIIDGE RAWALD: Okay. And so, lvlr. Ellis,just so you unc1erstm1cl, ivir. Co;{ did lile s"Dmething lastweek raising the fact that there nre several otherissues he thinks that the case nc:edc:d to be dismissed hc:causc of 

### i i one ofwhichis a five vern- statute oflimitations. I do ask tlu1t vou not spend an}' time responding to that unui I directthatvou do in abriefing_ 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 rulesrequire

_tl1e FAAto 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 howthe schedule ofevents goes. A.nd sc- -- 12 (Pages 45 to 48) 

### For The Record, Inc.

### Fisher Scientific Company, LLC

MR. COX: I understand. sir, butonly if they"ve

**a~ked** for an extension. Ifyou 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, givenm,y current posiltre in 6 this

**case~** I don't wantbriefing on the issue, not rig]1t 7 now. So 

### I

**\~ill** lookmore

**~!yo~~is~~;-But** I am 8 stating herethe Government should send a briefin 9 response to your motion to strike atthe

**morn~nt.** !0 MR. COX: Understand. I understand. ll MR. ELLIS: Yes, YourHonor. 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 andthen\-ve'll Jet voukno\\' _in a written 19 opinion how I decide ihese t\vo issue:; andthen \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. Thankyou. 23 MR. ELLIS: Thank you, Your Honor 24 (\\'hereupon, at 11:05 a.m .. the hearing was 2.5 concluded.) 50
CERTIFICATE OFREPORTER 3 4

**I~** Karen Guy, hereby certify tl1at theforegoing 5 proceedingswere 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 ofany attorney orcounsel employed by the 11 partieshereto, norfinancially orothenvise interested 12 in the outcome ofthe action. 13 !4 15 !6 17 18 19 20 21 22 23 24 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. } Inthe Matter ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 (Civil Penalty Action) Judge Rawald



### ERRATAFOROCTOBER4, 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, includethe undersigned's objection,justbefore 10:12 a.m., to proceedingwiththe hearing after agency counsel ofrecord 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"formerboss." 5. On p. 34, line 7, delete "from defense." 6. On p. 37, line 12, delete "through" and insertin lieuthereof"to prove." 7. On p. 49, between the words "should" and "send," insertthe word "not."U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASIDNGTON, DC

FEDERAL AVIATION ADMINISTRATION, } Complainant, } }

**~** 

## } } FISHER SCIENTIFIC COMPANY, LLC, } Respondent. } Inthe Matter ofFisher Scientific Company, LLC DocketNo. 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 ofThermo Fisher Scientific, Inc., (hereinafter referred to as "Fisher") hereby appeals to the FAA decision-maker pursuantthe Federal Aviation Administration Ruies ofPractice, 14 C.F.R. Part I3 (hereinafter "FAA Rules"), Rule 219(c), 14 C.P.R.§ 13.219(c), to dismiss the Complaint inthe above-captioned matter due to the failure by the assigned Administrative LawJudge, 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 ofits Appeal, Fisher states the following: QUESTION PRESENTED Mustthe Complaint in a civil penalty action be dismissed withprejudice when agency counsel, by consistently failing to participate inthe proceedings, ignoring multiple ALJ Orders and failing without excuse to appear at a pre-hearing conference ordered by the ALJ, has constructively withdrawnthe Complaint?PURPOSE AND STANDARD OF REVIEW FORTHE APPEAL FAA long ago established the "interlocutory appeal ofright" to help the Administrator prevent agency counsel, a private party respondent or anALJfrom wasting public and private resources on administrative litigation where, as a matter oflaw, one side or the other has failed to participate inthe proceedings or to present its case. Accordingly, when it adopted Rule 219(c) in 1990,1 FAA decided not to depend on an ALIto prevent needless litigation and provided, in pertinentpart, as follows: "A party may file an interlocutory appeal
... without the consent of the administrative lawjudge
... in the case of
... (2)failure ofthe administrative lawjudge to dismiss the proceedings in accordance with 

### § 13.215
...." (Emphasis supplied.) The plain language ofthe 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 notjustparties butalso an ALJfrom allowing wasteful litigation to proceed. That is why Rule 219 also specifically provides that, whenthe ALI's receives a Notice ofAppeal, "theproceedings are stayeduntil the FAA decision-maker issues a decision onthe interlocutory appeal." (Emphasis supplied.) Accordingly, itis 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 ofsodium hydroxide solution (commonly known as "lye") by air five-and-a-halfyears 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 pertinentpart, that the lye was packaged in some respect that violated the Hazardous Materials Regulations ("HMRs").3

1 Federal Aviation Administration, "Rules ofPractice for FAA Civil Penalty Actions," Final Rule, 55 Fed. Reg. 27548,27567-68 (July 3, 1990) ("Final Rule"), codifiedatl4 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 ofrespondents." See also FAA, "Rules ofPractice for Civil Penalty Actions," Notice ofProposed 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 itselfwhether 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 ofRight 2Fisher promptly moved to dismiss the Complaint based, inpart, on agency counsel's failure to lodge at least one ofthe key allegations withinthe two-year time limit established by FAA Rule 208. 4 Agency counsel ofrecord did not file a timely response to Respondent's Motionto Dismiss but the ALJ neve1theless movedthe 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 anAnswer- 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 ofthe 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 butto file a unilateral report and moved the ALJ for dismissal and other sanctions against agency counsel for ignoring his Orderto meet and confer and for failing to file any report, in clear defiance ofthe ALJ's demand.7 Instead ofdismissing 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 oftheir failure to comply" that "shall include
... the informationrequested 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 inthe 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 ofa conversation between Ms. Harper and the undersigned, but the agency counsel of recorddidnotsign the document. Failure to sign and thereby certifY the truthfulness ofthe factual representation presented inthe purported response to the Show Cause Order violated

4 Motion to Dismiss Complaint for Violation ofRule 208 (June 23, 2015) (Exhibit 2). 5 Agency counsel filed a late requestfor an extension oftime- from 10 days to nearly two months- to reply to the Motionto Dismiss but offered no excuse for theirlate filing ofthe request and did not state any grounds acceptable under FAA rules for grantingit. Opposition to Extension at 2 (July 7, 2015) (Exhibit 3). In complete disregard ofcontrolling Rules, the ALJ- atthattime,judge Goodwin- unlawfully grantedthe 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 Briefonly for the purpose ofshowing that it was neversigned by agency counsel ofrecord. Respondent's Appeal ofRight 

### 3Federal Rule ofCivil Procedure ll(a), which provides, in pertinentpart, that any unsigned "pleading
... and other paper must be signed by at least one attorney ofrecord" 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 muststrike an unsigned paper" (emphasis supplied). FAA Rule 207 even more explicitly bans recognition ofunsigned filings. 

### Itprovides thatthe "attorney of record
... shall sign each document tendered for filing with the hearing docket clerk, the administrative lawjudge, the FAA decision-maker on appeal or served on each party" (emphasis supplied). Respondent pointed outthis failure and, for the third time, moved again for dismissal. 10 Instead ofdismissing the Complaint at thatpoint 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 inprosecuting the case, agency counsel failed to appear at the hearing. The ALJ spent almost 15 minutes trying to get someone at the office ofSouthern Regional Counsel to answer the phone. He fmally rounded up an attorney who was not counsel ofrecord. The undersigned inunediate1y objected to any hearing onthe matter after agency counsel of record had once again constructively withdrawnthe Complaint11 butthe ALJ, without explanation, insisted on proceeding. He started by asking why counsel ofrecord, 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 onprosecuting the matter himself whether FAA tookpart inthe case or not. 14 Judge Rawald admitted there were multiple reasons to consider the Complaintto have been withdrawn. He noted that FAA counsel ofrecord "has been noticeably absent from the proceeding. She didn't file anything inresponse to my initial notice requiring the parties to meet and confer; she did not file herselfthe response to notice for show cause; ... and she has not appeared today." Despite these serious lapses onthe 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'mproceeding with this case, I'm moving this case forward either way." 15

10 See Exhibit 8. 11 Errata for Transcript ofPre-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 Briefwas due within I0 days ofthe ALJ's ruling that the case will go forward. The Office ofHearings 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 at43-44. 15 /d. at44-45 (emphasis supplied). 

### Respondent's Appeal ofRight 4At the conclusion ofthe hearing, the undersigned objected once again and asked for immediate consideration ofRespondent'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 Motionto Strike 17 Respondent immediately filed the instant Appeal.

ARGUMENT
I. THE CRITERIAFORRECOGNIZING A "CONSTRUCTIVE WITIIDRA WAL" OF A RESPONDENT'S REQUEST FORA HEARING MUST BE APPLIED EQUALLY TO THE GOVERNMENT'S "CONSTRUCTIVE WITIIDRA WAL" OF A COMPLAINT. The Administrative Procedure Act, 5 U.S.C. 

### § 551 etseq., forbids FAA to adjudicate the imposition ofa civil penalty on a privateparty Respondent without first affording au opportunity for a fair hearing onthe merits ofthe agency's allegations. For years, private parties have complained that FAA's civil penalty procedures are not onlyunfair, but in plain violation ofdue process rights guaranteed under the Fifth Amendment to the U.S. Constitution. Historically, FAA applied strict standards to private parties thatwere 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 enoughto make it difficult to "defend againstthe 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 ofseparation betweenALJs, who are employed by the Trauspmiation Department, and prosecuting agency attorneys, who report to an "FAA decision-maker," who is supposedto render a final decision 

### in au administrative appeal but is "basicallyprosecutorial in
... outlook and orientation." 19 Afterjudicial intervention inthe late 1980s, FAA adopted the Rules ofPractice that govemtoday to address criticism thatthe prior rules were "inadequate to ensure a system ofadjudication 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 ofRight 5The outcome ofthe 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 andthe 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 ofthis appeal would establish one set ofmles for "constructive withdrawal" ofa private party Respondent's Request for a Hearing and a policy ofnot applying the same standards to agency counsel's conductto the point of immunizing them against a frnding that they "constructively withdrew" a Complaint. Over many years, ALJs have repeatedly used the failure ofa 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 ofconstructive withdrawal, especially in connection with his April, 2016, mass mailing ofOrders to Meet and Confer to parties in cases on his docket. When a party, in defiance ofthe ALJ's Order to Meet and Confer, failed to communicate with opposing counsel and put them in theposition ofhaving to file a unilateral report, Judge Rawaldrepeatedly ruled thatthe 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 ofthe hearing process."24 Judge Rawald acknowledged that FAA Rule 215 gives himno choice in the matter because, when a party "withdraw[s] a request for a hearing
... the administrative lawjudge 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 exemptfrom 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 patterntojustify dismissal ofRespondents' 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 24McCann at 2, n.3; lXL at 1, n.3 (emphasis supplied). 25 McCann at 2; !XL at 2 (emphasis supplied). 

### Respondent's Appeal ofRight 

### 61. 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 withthe Meet and Confer Order. 4. Respondent was "advised inthe Orderto Show Cause that further failure to participate in the proceedings may be deemed a constructive withdrawal ofthe request for hearing." 5. Respondentfailed to respond to the Orderto Show Cause. 6. Respondent's "failure to participate in the proceedings
... constitutes a constructive withdrawal ofthe Respondent's request for a hearing." InRespondent 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. Complainantrefused to comply withthe Meet and Confer Order and neverflied 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 ofrecord failed to "file a statement explaining the cause oftheir failure" and include "informationrequested in the Order." 5. Complainant filed no statement explaining the cause oftheirfailure or including the requested information. 6. In fact, Complainant flied no cognizable response whatsoever to the Orderto Show Cause because the document agency counsel submitted was not signed or certified by counsel ofrecord and must be stricken from the record under FRCP ll(a) and FAA Ruie 207. 7. Counsel ofrecord 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 atthe October 4 hearing, the ALJ was obligated to recognize a constructive withdrawal ofthe Complaint. Ifthe FAA decision-maker rejects the instant Appeal and finds that such a constant lack ofparticipationby agency counselas enumerated by the ALJ hirnself'6

- does not necessitate a finding ofconstructive withdrawal ofa Complaint, agency counsel may bejustified in considering themselves immune from dismissal. In effect, rejection ofthe 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 FAAinto federal court, where it wouldbe compelled to explainhow such disparate treatment comports with constitutional guarantees of due process. Similarly, amongthe regulated community, this precedent surely will create the impression ofa 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 ofRight 7

## m. UPONWITHDRAWAL 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 lawjudge. Ifan agency attorney withdraws the complaint
... the administrative lawjudge shall dismiss theproceedings
... with prejudice." (Emphasis supplied.) As Part II explains above, agency counsel constructively withdrewtheir Complaint on multiple occasions: by failing to file a timely response to the motions to dismiss in2015; 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. Theirwithdrawal required no order, approval or recognition by the ALJ. The FAA decision-maker, in

### turn, has no choice under FAA Rule 215 other thanto "dismiss the proceedings
... withprejudice." WHEREFORE, Respondent respectfully requests the agency decision-maker to immediately dismiss the Complaint withprejudice. Dated: November25, 2016



### Respondent's Appeal ofRight 

# 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

OnNovember 25, 2016, the undersigned sent by the indicated type(s) ofservice at least one copy ofthe foregoing Notice on each ofthe persons listed below.


### 00 [One Copy by U.S. Certified Mail] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Ave., S.E. (Ell-310) Washington, DC 20590 D [Original+ One Copy by Hand] Hearing Docket Clerk, AGC-430 Federal AviationAdministration 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 ofTransportation Federal Aviation Administration Southern Region 1701 ColumbiaAve. College Park, GA 30337

Respondent's Appeal ofRight [One Copy by air courier] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey 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 2Wl000 D 

### 0 [One Copy by U.S. Mail] Ryan M. Landers, Esq. Senior Attorney Enforcement Division, SouthernTeam U.S. Department ofTransportation 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 ofthe 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 ofProposed 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 ofhazardous material for transportation by air and failed to use a means ofcontaining the liquid in the form ofa leakproofliner, plastic bag or other equally efficient means ofcontainment 8. Fisher offered the shipment ofhazardous 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 ofhazardous 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 ofTransportation Hazardous Materials Regulations (Title 

### 49 ofthe 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 ofhazardous 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 ofhazardous 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 aleakproof 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 ofTransportation Hazardous Materials Regulations. Under the facts and circumstances of this case, a civil penalty of $5,850 is appropriate. This amount includes consideration ofthe 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 ofthe 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 ifappropriate, not later than 30 days after the date shown on the Certificate ofService which follows.

# Exhibit 2

### U.S. DEll"ARTMIEN1' OF 1'RANSlP'OR1'A1'ION OFFICE OF HEARINGS WASID.NGTON, DC

FEDERAL AVIAUON ADMJ[NllSTRAUON, } Complainant,
V. } } } Inthe Matter ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 } (Civil Penalty Action) 

### FISHERSCffiN1'llFlC COMlP'ANil,

### JLJLC, Respondent. 

### } } Judge Goodwin



### MOTIONS 1'0mSMISS COMJPJLAffl'f FORINSUFFICIENCY AND FOR COMlP'JLAINAN1"S VIOJLAHON OF RUlE 2118
Respondent Fisher Scientific Company, LLC, a subsidiary ofThermo Fisher Scientific, Inc., (hereinafter re±imedto as "Fisher") moves to dismiss the Complaint inthe above-captioned civil penalty proceeding onthe followi_ng two independent grounds. First, the Complaintfails to state

a "knowing"violationfor which a civil penalty maybe imposed. Second, by including allegations thatwere first made morethanthree years after

### the alleged incident, the Complaint violates Rule 208( d) ofthe Federal AviationAdministration's (hereinafter "FAA's"or "the Agency's") Rules ofPractice ("Rules"). FAA's SouthernRegional 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, whenFisher shipped a single liter ofa corrosive liquid commonly known as lye. First, Regional Counsel alleges that Respondent "knowingly offered ... a ... shipment ... containing hazardous materials for trar1sportationby air." Compl.

**~** 1. Second, Regional Counsel claims Respondent "violatedthe ... hazar·dous materials regulations" ("HMRs") because it "failedto ensure that [the bottle oflye was] ... packagedwith absorbent materials ...." Compl.

**~** 10.c.Respondent'sMotion to Dismiss
Motionto Dismiss for Insufficiency The Hazardous Materials Transportation Act ("HMTA"), Pub. Law No. 93-633,88 Stat. 2156, 2160 (Jan. 3, 1975), 

### codifiedas amendedat49 U.S.C. 

### § 5123(a)(1) (2011), allows the Governmentto impose a civilpenaliy upon a "personwho 

### knowingly committedan actwhich is
aviolation of' the HMRs 

### (emphasis supplied). A later recodification made a non-substantive, editorial change. 

### Itrewordedthe sentence to say the Government may impose a civil penaliy on
a "personthat knoViingly violates" the 

### HMRs. Nowhere in the Complaint does Regional Counsel allege that Fisher "knowingly" committed any act which is a violation ofany

**l:i~** 

### It merely states thatRespondent "knowingly offered" a declared shipment ofhazardous materials.
There are other, more specific allegations inthe Complaint, but none ofthem allege a "knowing" violation. 

### Inthe 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 certainpackaging requirements to some hazardous materials shipments butnotto others. 

### In this case, the lye was a "limited quantity" shipmentthatwas exemptfrom the specificationpackagingrequirements and otherwise fully complied with all applicable HMRs. However, even ifone were to assume that§ 173.27(e) did apply to the shipmentwhen it
was offered in 20ll and that Fisherfailed in some respectto 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), 

### codifiedat 49 U.S.C. 

### § 5123(a)(1)(A) and (B) (2011),unquestionably requires the Agency to allege andprovethat Fisher "knowingly committedan act which is a violation of'that
or some other HMR. As explained in greater detail in Respondent'sMemorandum in Support ofthe Motions to Dismiss, the statutory language governing the instant civil penalty proceeding is plain and unambiguous. Even ifthere were some reasonto consider it ambiguous, the legislative histmy ofclauses (A) and (B), which were added by the HMTUSA, leave no doubtthat Congress adopted a new definition ofthe te1m
**"lmoV~ingly"** for the specific purpose ofprohibiting the Government from imposing a civil penaliy in a case involving transpmtation ofhazardous mate1ialsunless it can showthat the Respondent had

### actualknowledge that its actor omission violated the HMRs or that its noncompliance resultedfrom some specific act of

### negligence on the partofthe Respondent. Accordingly, the Complaintfails to state a violation ofthe federal hazardous mate1ials transpmtation statute orregulations and mustbe dismissed for insufficiency pursuant to Rule 218, 14 C.F.R. § 13.218(f)(l).

2Respondent'sMotion to Dismiss

Motionto Dismiss for Asserting a Claim About Whichthe Government Failed to Give Timely Notice As noted above, Regional Counsel asserts, among other claims, that Respondent "violatedthe ... hazardous materials regulations"because it "failed to ensure that [the bottle oflye was] ... packaged with absorbent materials ...." The 

### HMRs in1posed no suchrequirement on the shipment at issue inthis case, but evenifone were to assume thatthere was a requirement for packaging the subject linllted quantity oflye with absorbent materials, Regional Counsel was obligatedto give timely notice thatthe Governmentplannedtobase its Complaint on such a claim. FAA served aNotice ofProposed Civil Penalty ("theNotice") onJuly 3, 2013. During an Infonnal Conference, Respondent pointed outto Regional Counsel thatthe Notice was expost facto, based almost entirely on HlVIRs that were notin effect in July, 2011, whenFisher shipped the subjectpackage. The Notice contained no allegation whatsoeverthatRespondent was obligated to include "absorbent materials" orthat Fisher failed to do so whenitpackagedthe lye. Infact, this Notice did not even mention "absorbent materials." The first Notice ofthis claim
was served not withintwo years, as required, butmore than three years after the alleged incident, 

### in FAA's AmendedNotice ofProposed Civil Penalty ("the Amended Notice") dated July 24, 2014. Amended

**Notice~**

### f.
Rule 208(d)(2) ofF AA's Rulesprovides, in pertinentpart, thatthejudge "may dismiss the complaint orthat part ofthe complaint alleging a violationthat occurred more than nvo years before an agency attorney issued the notice ofproposed 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 inthe dark for
more thanthreeyears about the Agency's intended allegations. To reward Regional Counsel's failure to give timely notice by allowing this case to proceed would defeatthe stated purposes and policies ofRule 208, grossly prejudice Respondent's opportunity to defend itselfand constitute a denial ofRespondent's due process rights underthe U.S. Constitution. 

### WHEREFORE, Respondentrespectfully moves to dismiss the Complaint onthe following two independent grounds: first, for insufficiency pursuantto 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 ifthe Complaint is not dismissed outright on account ofRegional Counsel's violation of Rule 208,thatportion ofthe Complaint alleging a failure by Respondentto include "absorbent materials" in the packaging for the subjectmaterials (i.e., all of**Complaint~** lO.c.) should be stricken, as alternatively provided inRule 208( d).

3Respondent'sMotion to Dismiss
Respondent recognizes the importance ofthe issues presented 

### in this case to hazardous materials civilpenalty cases 

### in general and respectfully requests an opportunity to presentoral argumentin persononthese 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 3U.S. DEPARTJVillNT OF TRAl'TSPOR'fATION OFFICE OF HEARINGS 

### WA.ll!!.Il\fGTON, 

### DC 

# REt::Ei\lE:D

FEDERALAV1ATION ADlVIINISTRATION, } 

### Complainant,

FISHER SCIENTIFIC COIVWAl'H', LLC, 

### Respondent. } } } } } 

### } Inthe Matter ofFisher Scientific Company, LLC DocketNo. FAl\-2015-1321 (Civil Penalty Action) Judge Goodwin

RESPONDENT'S OPPOSITION 

### TO COl\iiPLMNANT'S MOTION FOREXTENSION Respondent Fisher Scientific Company, LLC, (hereinafter referred to as "Fisher") moved on June 23, 2015, to dismiss the Complaint inthe 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 inviolation ofthe Federal Aviation Administration's (hereinafter "F-1\Pc's" or "theAgency's") Rules ofPractice ("Rules"). Instead offiling 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 evento allege the presence ofany grmmds to grant such a motion cognizable underRule 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 consideredto have waivedFAA's opportunity to respond to Respondent's Motions to Dismiss. Rule 13.213(b) is clear. As with any other party, anFAA. "motion for an extension oftime" must be filed withthejudge "notlater 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. Ajudge has authority essentiallyto waive this seven-day re<Juirement only 

### if"good cause for the late i:!ling is shown." Nowhere in Regional Counsel's Motionis there so much as a naked assertion that FA.A. had "good cause" to ftle 

### zero days ahead ofthe due date instead of

### seven days ahead, as unequivocally required under the Rules. 

### Inany case, the Rules allow ajudgeto gra.11t an ex-tension oftime to respondto a Motionto Dismiss only 

### "ifgood cause for the extension is shoiNn." Once again, Regional Cmmsel failedRespondent's Opposition to Motionfor Extension

even to include so much as a declarative statementthat 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 whatsoeverto conclude thatthe time otherwise allowed by the Rules was inadequate. Absent those circumstances, the Motion for Extension would have failed even ifit had beenlli11ely flied. Regional Counsel goes on to claimthat Fisher will not be "prejudiced by an extension." This statement is false but, even ifit 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 ofan affirmative sho-wing why the requested extension is necessary. Regional Counsel's Motion is merely the latest example ofhow FAA's handling ofthis 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. ThatNotice made no allegation whatsoeverthat Fisher failed to employ a particular type ofpackaging 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 fouryears afterthe event- to file its Complaint. When Fishermoved to dismiss the Complaint in pmtbecause 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 fouryears after the event. Mea11while, FAA has overseen or permittedthe destruction ofcrucial evidence. 

### Ifthis case eventually goes to a hearing, witnesses on both sides potentially will be required to rely on nothing more thanfaded recollections. \lr;:'-l:EREFORE, Respondent prays that Regional Counsel'sMotion 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 

### 40l 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

DocketNo. FAA-2015-1321 Fisher Scientific Company, LLC 

### ) ) 

### ) ) ) CaseNo. 201180700457 Respondent
ORDERDIRECTING THE PARHES TO MEET AND CONFERREGARDING UHGAHONAND SCHEDULING ISSUES
The above captioned case was reassigned to the undersignedjudge onMarch 24,2016. By order ofthe ChiefAdministrative LawJudge, any previously established date for a prehearing conference or trialwas suspended. Those dates are nowvacated and there is a need to establish a
new litigation schedule for this case. To assist the undersignedjudge, the parties should meet and confer to propose a mutually agreeable schedule. An administrative lawjudge mayhold conferences to, among other things, "settle [or] simplifythe issues by consent ofthe 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 andproposed scheduling. 2. The parties shall draft ajointreport providing:
a. a suggested venue, b. a proposed schedule for the completion ofdiscovery (or an indication that discovery is complete), c. a list ofany pendingmotions.thathave beenpreviously filed buthave yet to be ruled upon, d. a proposed date for a telephonic prehearing conference withthe undersigned judge,

1 14 C.F.R. § 13.205.e. a proposed due date for the filing ofany prehearing motions (including a proposed date for a telephonic hearing on any filed motions, ifso 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 undersignedjudge at the Office ofHearings by fax, express carrier, or personal delivery


### no laterthan 30 calendar days after the date of service ofthis 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. } 

### Inthe Matter ofFisher Scientific Company, LLC DocketNo.**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 ofthe 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 thatFAA 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 neverreturned 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 neverupdated the service list. On April 20, Ms. Michelle Harper phonedto say she was the attorney responsible forFAA's compliance with the Order. She asked Fisher's counsel to prepare a draft Joint Report, which the undersigned emailedto 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. Harperdid neither.Reportof Fisher Scientific
A weeklater, on April27, the undersigned phoned Ms. Harperbut, once again, she did not answer hertelephone. Fisher's counsel left a voicemail reminding her thatFisher was determined to comply with the Orderbut- without any response from her- itwould 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 answerher telephone. Fisher's counsel indicated in a voice mail that ifF

### A.A. continued to ignore the proposed draft ofthe Joint Report, Fisher would have no choice butto withdraw it and file its own U11ilateral response to the Order. Ms. Harper did not return the call or otherwise respond. FA..A's apparent disregard ofthe April 6 Order isjustthe latest chapterin a five-year histor-y of the Office ofSouthern Regional Counsel dragging its feet and utterly ignoring applicable laws and Rules ofPractice. This case arises from an alleged incident that occurred five years ago, on July 21, 2011. FAA waited until days before t.he statute oflimitations expired and filed a Notice ofProposed Civil Penalty in July, 2013. ASterFisherpointed out that the Notice was based on regulator-y requirements that were not in effect in 2011, FAAfiled an Amended Notice on July 24,2014, more than three years afterthe alleged incident and more than one year after the statute of limitations expired. FLA waited almost another year, until June, 2015, to file its Complaint. 

### On June 23, 2015, RespondentFisher filed a Motion to Dismiss the Complaint for legal insufficiency and for being bmTed by the statute oflimitations. The FAA's own Rules ofPractice allowed FAA 10 days to oppose Fisher's Motion to Dismiss, butthe agency did not file its Memorandum in Opposition until August 17, 2015, almost two mont..hs after it was due. Fisher's Motionto Dismiss has been pending for nearly a year. The most appropriate way to sanction such egregiously dilatory conduct and gettins ancient case offthe docket would be to order Southern Regional Counsel to SHOW CAUSE why dismissal should not be ordered on one ormore ofthe following grounds: 

### 1. FLl\.'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, Motionto Dismiss. (No extension was permitted underFAA's Rules ofPractice for the reasons stated in Respondent's Opposition to FAA'sMotion for Extension.) 3. FAA's decision to wait morethan three years after tl1e alleged incident and morethan 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 ofwhich is attached, explain in detail why the case is barred as out-of-time.)

2Reportof 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 prejudiceFAA's Complaint. Respondent reiterates its requestfor 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 (email) •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

### InThe Matter Of: 

### U.S. DEPARTMENT OF 'L4NSPORTATION OFFICE OF HE.ARII\JGS

WASHINGTON, DC

Docket

### No. FAA-2015-1321 Fisher Scientific Company, LLC ) ) ) ) CaseNo. 201180700457 Respondent )
ORDER 'JI"O SHOW CAUSE AND PROVmE REQUESTED KNFOR.!""\H1lON On Aptil 6, 20 16, the undersignedjudge issued an OrderDirectingtheParties to Meet and Confer Regarding Litigation and Scheduling Issues in the above captioned case. The order required, 

### inter alia, the parties to submit ajoint report to the undersignedjudge within 30 days 

### of that order. On April30, 2016, the Respondent filed a unilateral report, stating that his attempts to meet and conferwith the Complainant had failed. 1 The Complan1ant failed to submit a repott orrequest for additional ti.Jne before the deadline.2 ln accordance with 14 C.F

### .R. § l3 .205(a)(6), an administrative iawjudge is empowered to regulate the comse ofa hearing. 

### As previously noted bythe 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 ofaproceeding. Ignoring an ALJ's orders cannot be cmmtenanced in an orderly system ofadjudication.3 Tl1e pmties m·e therefore remindedthat failure to follow the tmdersigned administrative law judge's orders without good cause may resultin sanctions4 Moreover. continued failure to

1Respondent failed. however. to provide all the information requested inthe April 6, 20 I 6Meet and Confer Order. 2 Counsel for the Complainant filed a notice ofappearance on May 10,2016, but failed to include the information required by the undersignedjudge's April 6, 2016 !Vleet and Confer Order or offer aresponse 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 aresponse to the April 6, 20 16 Meet and Confer Order. 3 American Airlr"nes, Inc., FAA OrderNo.

**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 undersignedjudgemaybe deemed a constructive withdrawal ofthe request for hearing or complaint by the party demonstrating such

a lack ofinterest 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 areport including all ofthe infmmationrequested 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 theirfailure to comply withthe OrderDirectingthe Parties to Meet and Confer Regarding Litigation and Scheduling Issues. 3. 

### The Complainant shall include in their statementthe in:tommtion requested inthe Order Directing the Parties to Meet and Confer Regarding Litigation and Scheduling Issues. 4. Ifthe Complainant fails to 

### file this statement by the above deadline, the undersigned judge may issue 

### a subsequent order 

### finding the Complainanthas construclively 'l;vitbdrav.mfrom these proceedings and. pursuantto 14 C.F.R. 

### § 13.215, dismiss the case 

### withprejudice.

Attachment: Service List DOUGLAS 

### M. RAWALD Administrative Law Judge

'See. e.g. IAL PowerSupptc, DocketNo. CPOl SOOO 15 (FAA Aug. 7, 2001) (ALJ constmed Respondent's silence
ns a constmctive wirlldrawal ofrequest for aheming), appeal dismissed, F A.A. OrderNo. 2002-1 0 (Apr. 17, 2001); B!ankson, DocketNo. CP97EA0024 (Fi'A Sep. 11, 1997) (ALJ found failure to respondto previous orders constimred consn·uctive withdrawal).

**~([d,** FAA OrderNo. 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); ApolloA & HS Company, FAA Order No. 20

**11-4~** at 4 

## 0an. i

### 4, 20ll)

### ("Apollo's failure to appear atthe

**he~ring** 

### and to 

### pursue irs requestfur 

### hearing without 

### good cause con::;tituted a consh·uct1ve \vithdrawat of jts requesr for hearing.'').

# Exhibit 7UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

IN THE MATTER OF FISHER SCIENTIFIC LLC DocketNo. 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 ofthe 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 theirJoint 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 ofthe 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 aruling 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 ofMay, 2016.

## ~~d.**£/'~** F 

### /h!711.f·/Js ;1-f/,../ley 

# r ANDREA MICHELLE HARPER Senior Attorney Office ofthe ChiefCounsel Enforcement Division, Southern Team



### 2

# Exhibit 8

### U.S. llllEJP'AR'Il\l.ii:EN'I OFTI.ANSJPOR'IA'IKON OlFJF1CE OlF n-u

### f;,AJRJ!NGS WASJBITNGTON, l!llC FEDERALAVIAHONAl!llMINISTRA'fliON, } Complainant, } In theMatter ofFisher Scientific Company, LLC DocketNo. 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 ORDERISSUED 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 ofthe Proceedings The Federal Aviation Administration's Southern Regional Counsel ("Regional Counsel" or "F A_A.") seeks a $5,850 fine relatingto a small shipment oflye five years ago. Respondent Fisher Scientific Company ("Fisher") moved to dismiss the case for several reasons, including FA ..A's failure to explain howthe shipment could possibly have involved any lmo1Ning violation ofthe HazardousMaterials Regulations ("HMRs"). Fisherparticipated in two "informal conferences" ("ICs") with Regional Counsel. During the first IC, on July 16,2014, Fisher explained that the boilerplate Notice ofProposed Civil Penalty ("NOPCP") thatRegional Counsel served July 3, 2013, inciuded downrightbizarre 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 outto Regional Counsel during the 2013 IC that the volume oflye being shipped (just oneliter) was so small, the shipmentwas a "limited quantity" ("LQ") that was exemptfrom 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-halfliter, butthe change inthe HI'vffis was not and could not be retroactive to a shipment in 2011. Morethan 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 Noticebut added a '..-_.Repmtand**REp{~'** of RespondentFislaer Scientific completely new claim that, when Fisher prepared the subject shipment, it was somehow required to stuffthe 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 thatwerenotin effect at the time ofthe alleged incident, this brand-new claim was time-barred because 

### itwas lodged more than a year after the applicable two-year statute of limitations passed. Respondent's counsel also asked then-Regional Counsel ofrecord, Will Vines, Esq., to explain why FAA refused to accept that the LQ Exemption covered the subject shipment. Mr. Vines stammered for halfa 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, OrderDirectingthe Parties to Meet and ConferRegarding Litigation and Scheduling Issues Afterthe 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. Thefollowing 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 phonedRespondent's counsel on April20. Telephone company records show thatthe 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 ofthe Joint Report to befiled inresponse 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 ofthe conversation. On Topic 2, counsel mutually agreed that itwas impossible to lc_rrow whether

### any discovery orhearing would be needed, much less to propose dates for such additional proceedings, because Fisher's Motion to Dismiss would be dispositive ofthe 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 ifno edits were needed. Under Tojpk 4, FlV\ asserted that the Motion to Dismiss should be denied; Respondent's counsel explained why the Motion toDismiss should be granted.

2Reportand

**Rep~v** of RespondentFisherScientific Approximately 18 minutes into this 20-minute conversation, Respondent's counsel broughtup Topic 5_ Thatpart ofthe conversation, which is reproducedbelow in its entirety and as closeto verbatim as possible, went as follows:
JVJR. Cox: You know, 

### itwouldreally be a shame to insistthattheJudge mustdecide the I'Vlotion to Dismiss tmdallow theproceedings togo**forw~~rd**

## if you will hm•e no case topresent
on the merits. We asked Prill VInes nwre tlum once to 

### e."'!:plmn why theshipmentwas not exempt undel' theLimited QuantityExenption Canyouplease explain thatone to me?

Iris. HARPER (CHUCKLING): I haven'tlookedatthat file inyears.
MR. Cox: Jl;laybe this wouldbe a good time to do that
Ms. HARPER: OK, l'illook 

### wt itmadgetback toyo;g in the fi;·st half of

**n~Yl'** week
This portion ofthe conversation lasted approximately two minutes. Immediately after the April20 conversation, Respondent's counsel sent a draft JointReportfor Ms. Harper's review, edits and signature. Ms. Harper failed to respond. After hearing nothing from FAAfor another week, on April 27, theundersigned phoned Ms. Harperto urge herto sign
or suggest changes to the proposed JointReport_ She did not answer herphone. 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 JointReportloomed, theundersigned telephoned Ms. Harper again, leavingthe following voice message, reproduced here verbatim:
IVIR. Cox: This is Jerry Coxwith Thermo Fisher inDC. I sentyou a dmftJointRepm't on April20 lmtneverheardback fromyolJI. We're up again!itthe deadline, so I'mgoing to withdraw the draft

### .JointReporta;'ld 

### Thamo Fisher 

### willhave to file its own Report Feel free to call rne -whenyol/!. n:repreparedto discuss the case Accordingly, on April 30, Respondentfiled aunilateral Report and moved for sanctions against FAA forignoring the Judge's April 6 Order. FAAfiled no Report ofits own and ignored Respondent'sMotion for Sanctions. Judge Rawald's May 17 Show Cause Order Regional Counsel remained AWOL until the Judge orderedFA _Ato show causewhy ithas not "constructively withdrawn" its Complaint and the why the Judge should not "dismissthe case with prejudice." Orderto Show Cause at 2.

3ReportandReplyof RespondaltFisher Scientific
In its Response to the Show Cause Order, FAA equivocated about whetherMs. Harper received Respondent's voice messages a;'ld argued that, even ifshe 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 whetherFAA had even received the draftJoint Report, much less whetl-terMs. Harper approved 

### it. FAA toldthe Judge that Ms. Harper and Respondent's counsel "had a lengthy phone call discussing the issues in the case, as well as the information requiredby 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 "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 mistruths 

### [sic]" (id'**~** 

### 6). The undersigned is not entirely sure what a "mistrnth" is, but hewould 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 ofCivil Procedure ("FRCP") and professional ethics requirements relatingto candorbefore a tribunaL Itis for the Judge to determine whether a 20 minute phone call, only two minutes ofwhich was devoted to the merits ofthe case, and which Complainant's counsel cut short because shehadn'tbothered to read the file, was anything resembling a "thorough discussion." By contrast, it speaks volumes thatMs. Harper did not sign FAA's Response to the Show Cause Order. It appears to havebeen approved by someone else whose name is not typewritten anywhere on the document and who has never entered an appearance inthe case. FRCP 11(a) explicitly requires that "every pleading
... and other paper mustbe signed by at least one attorney ofrecord
... [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 ofthe person's knowledge
... factual contentions have evidentiary support ...." Sanctions may be imposed on the "attorney
... orparty," FRCP 11{c). Unless FP.
.. 

### A recants quicldy, Respondent plans to move for such sanctions because Ms. Ha.-per' s statementto t.he Judge that "the pa.-ties did indeed meet and confer [aitd] had a thorough discussion ofthe underlying facts ofthe case

...."is both highly material and plainly false. Reportto 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 informationrequested in tl1e OrderDirecting the Parties to Meet and Confer." Respondent has diligently undertaken and continues to do every.hing humanly possible to prepare and submit a Report thatwould, among other objectives, lay out a "schedule for

4ReportanllRepfvof RespondentFisherScientific completion ofdiscovery," proposed dates for prehearing conferences, filing ofprehearing motions and heacing dates. Order to Meet and Confer at 1-2. Unfortunately, because FAA_ has steadfastly avoided meeting withRespondent orparticipating in any sort ofsubstantive discussion- even after theundersigned made additional telephonerequests to Ms. Harper on May 31 and June 3, Respondent can only guess whatthe issueswould be, much less what discovery would be needed to address them, how long

### it wouldtake 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 atthe moment, the following information requested by the numbered portions ofthe April 6 Order_ Respondent's responsiveinformation is presented in italics:

L The parties shall privately conduct a.""J infonnal conferenceto meaningfully discuss litigation issues andproposed scheduling.

FAA rebz!i/edmultiple requests ft·om Respondent's counsel for a meeting, startingon April 15, 2016, on the gmunds that ithas beenyears since Regional Counsel has read thefile. This has made 

### it impossible forRespondent to addresswith FAA either litigation issues orproposed scheduling.

2. The parties shall draft a Joint Report providing: a_ a suggested venue, lRES!'ONDElTf'§ REl'JLY WithoutFAA's cooperation. Respondent has no way to know whatwitnesseswould need to be calledorwhat 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 andkey Fisherwitnesses are in the Northeastern United States.

b. a proposed schedule for the completion ofdiscovery, RESll'ONDEN'I'§ REPLY Until FAA 

### is compelled toparticipate zi"l the inji:Jnnal corrference referenced in Item 

### # 1, above, 

### it wili remain impossible to know whatwitnesses the agency intends topresent, what experts, 

### if any, REspondentwouldneedto call to testifYandwhopossesses relevant information. The time

5Reportand

**Rep{~ 1**  of RespondentFisherSde;etific
needed to complete discove;y, of course, will depend on haw manywitnessesare involved, where they are located, andwhat their schedules allawfor. Witnesses may also needadditional time to refresh their recollections about events that occurred five years ago. Respondentwould, in any event, requireproduction of physical evidence related to the alleged leak. Respondent understands from a letterMr. Vines sent on November 20, 2014, thatFAA either destroyed the bottle and thepackagingmaterial, including the box in ·which itwas shipped, or allowed this evidence to be destroyed. 

### Itmay take months to determine 

### how much of thephysical evidence continues to existandwhat, 

## if anything, experts can deduceji·om 

### it. Respondentmay also need to seeksanctions against

### FAA on account of such destruction of evidence.



### c. a list ofany pending motions
..., Respondent'slidotion to Dismiss ComplaintforInsufficiency and for Complainant's Violation of Rule 208 wasfliedJune 23, 20}5_



### d. a proposed date for a telephonic prehearing conference
...,
Respondent is, of course, willing topcn·ticipate in aprehearingconference, by telephone or in person, on July 20, 2016, or nearly any otherdate thatwouldsuit the Judge's convenience. Hmvever, withoutmore information about the issuesFAA will raise, Respondent is uncertain what could be accomplished.



### e. a proposed date for the filing ofany prehearingmotions
... and

While Respondent cannotsuggesta datefor filingprehearingmotions, 

### it likely >I'Oulclneed to.file a motion for a more definite statement before it could.file itsAnswer.



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

6Reporland

**Rep~v** of RespondentFisher ScienVfzc 

### Respondent submits thatno hearing·will be needed in this case, but ifa hearing will be held it 

### requests the earliest date consistent with andallowable under the 

### lml' andFAA'sRules qf 

### Practice.

3. [service instructions] 

### RESPONDENT'S REPLY 

### Respondent timely served- in accordance with these instructions- the bestReport it could muster in light of the total lack ofresponse ji-om F .&:1 

### to the draftJointReportitoffered Regional Counsel onApril 20. Conclusion Respondent has no means to compel Regional Counsel to comply with the April 

### 6 Order or to respond to Judge Rawald'sMay 17 Show Cause Order. Fisher can...•ot provide any more requested information until FAA stops hidingbehindthe pendingMotion to Dismiss. Judge Rawaid has offered FAA multiple opportunities to comply with his Orders butthe agency still refuses. WIIEREFORE, Respondent requests thatthe 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

7JERRY COX 2050 JAMIESON AVE p,pr 1212 t'ILS(Ai\!DfUA, VA 22314-6827

Data. Oeta.U
- Continued Tiae Data Pl;;ns flonda)l, Olif09 04:2Ba Data Transfer Stlhtot-al for Data Pians: St!btiJtal for !ffi's: PictureJVidso }!ij-ssages Sunday, 05/08 1D,S!l41m

**i,654,7~1ffi.** 1,654,7G4KB
Q.J.:P,9p Sent 703-34S--59ii Pfct Video !1SS D4:SOp

**S~nt** 805-207-32.2:2. Pic:t Video HSG Subtote.1 for Picture/Video !lesseges: 2 Tota1 Data Detail Rato G!Jrls: im@fl1 = Hohile

**Shar~** Value iS!:B l-7it!t Uo11ovar Data UHU!SG =- Shared lles!la,ging

- -----·

**----~-** ---------

**--~- ------------~-**  

# ® HiDDEN atEK
------ ---- ----------- CaU DetaH P1ac:: 1me Cai1ad

**iiL~Jbar** f:ai1ed T;;;day, 04l'l2 10:4.0a \111J1JL CL 703-757-1211 Oi:OBp

**~iA!L** EL 7W-T57-22l1 Tlmrsda.y, Otlli4 i0:4aa VRA!l Cl 703-757Qi2H og::2.B!l Vl!AIL CL 703-1'5i'-22.1i Friday, 04/15 03:30p VAAJL CL 703-757-2211 Saturday, 04/iG 04:1)%p r .. I{LJ}[-s- VA 703-GZT-4015 04:0Sp Alll..il{lj VA 703·627-4015 flum!.ay, 04/iB 12:5llp WW!.. CL 103-15f-2l1i Tuesday, !i-1119 OB:43p \!"iiPJL CL 703-757-2211 H'adnestlay, 04/20 03:&3p IJHiill. CL 703-757-2211 Friday, 0412.2 08:•\'lp V!BIIJ\ VA 703-757·5366

**~9:50p VIE[~.\**  VA 103·157·5BS6 Saturday, (}!U23 03:27p V'rtAIL CL 7G3·757-Wi Thursday, 0-4122 OZ:52a IJAAll CL 703-757-2211 i0:23a lftllill. CL 703-757-Z!H Tu.aM'ey, 05!-03 ii:Ma \iillWA \fA

**103-757~5855** late Fe:at!.lre Corle- Code Min SDDlf Wi S!IDV w S.ODif 'Jlj 

### snnv VH SDDV Vii SDW S!Jl)lJ SDW WI SlJDli V.1 ®DV va SDDV 

### sow Sl}iJI! 1liJ SDDV lfrl iiiDV l!fi 

### sow 3 Airt:iES: Chamas 0.00 

### o.oo 0.00 O.OtJ 0.00 0.00 0,0!1 0.00 0.00 Q,OO 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 O.Oil

O.GD 

### a.uu 0.00 

### o.oo

lllf.I\J!rll

**ClJ<~rpe.s** 0.00 0.00 0.00 0.00 0.00 0.00 O.Oil 0.00 0.00 0.00 0.00 !J.OO 0.00 0.00 0.00 0.00 Place Ti"' called Hm:tday, W/1i



## .. Page: A-21 of 25 <li!! Cjrcle Dote; 04/10/16- 05/09/15 Accollnt

**~~**

**~cl.m;dation** A.ii:count: FAN 05536137

1/nili:!er Called

r!!!J-fiU-i1i3l nate Fl!ature Code Curia 'ilin
2 iO 39 j 2 

# ' iO

3 2:1 20 B i7 j 2 i4 19 2 Airtime Charges 0.00

**o.c~** 0.00 U.BD 0.00 O.CO 

### o.oo 0.00 

### o.oo 0.00 0.00 0.00 0.00 O.IID 0.00 0.00 0.00 0.00 0.00 

### o.oo O.lll1 

### o.oo 0.00 O.GD 

### o.oo o.oo 0.00 

### o.ao lDIAddl Cbargs 0.00 0.00 0.00 0.00 

### o.ou 0.00 0.00 O.GO 0.00 0.00 0.00 0.00 0.00 O.QU O.OG 0.00 0.00 0.00 0.00 0.00 0.00 

### o.oo 0.00 0.00 0.00 

### o.oo 0.00 

### o.ao (,!;

# ····~· JERRY COX 2050 JAMIESON ME APT 1212 ALEXANDRIA, VA 22314-6827

Place. illn,; Page: A-22. of 2.5 Bill

**~ttde** Date: 04/10/16- 05/09/16

**Aeeo~nt; :~~?YRW~~** 

**~OU!ildai:km** At:!b:Ot.mt FAN 05536137

Visit us online at: 1fl11ilH.-v..at"!:.coro
fu!.te Feature

**C~e** Code rti:n
2 AirtfEe GilEr!"' 0.00 O.OD IJJ/Addl

**Charru~s** 0.@ 

### o.no Place !late Feature 

### ,,f,irti!Ji' Carlfr COOe llin fi,:-Cllifrii§; IJJIA.!ldl G'3Fr1d<J, D·il2!1 Tise Celled

**'~ ;\,**  **~Jair.esrfay ~**  114!.2.0

**~'il:fl4a** !llCiiil! CL Timrsdav. 04121

OJ.iJOF

**~hGW.iw** tt"" IW --1 ,_,..,.-- =-:-- l;.'edfleS:de:y, e.!,.i2.7 

## z/cflf~ **'o.oo** 3 0.00 i 0.00 j 0.00 O.OD 4 0.00 5 0.00 2 0.00 1 

### o.oo O.QD 0 0.00 2 0.00 1 0.00 0 0.00 j O.DO 15 0.00 0.00 2 0.00 

### o.oo 0.00 10 0.00 2 0.00 i2 O.DO 2 

### o.oo 2 0.00 0.00 ,; 

### o.oo 4 0.00 30 0.00 2 0.00 0.00 2 

### o.oo i 0.00 'IS 

### o.uo 35 0.00 O.OD 7 0.00 4 O.llil 2 0.00 2 0.00 13 

### o.oo 2 

### o.oo Charges 0.00 0.00 0.00 0.00 

### o.oo {1,{)0 0.00 0.00 0.00 

### o.oo 0.00 0.00 0.0[1 0.00 

### o.oo 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 D.UO O.OIJ €1

0.00 0.00 0.00 O.OD 

### o.oo a D.UO 0.00 

### o.oo 

### o.oo 0.00 

### o.oo 0.00 0.00 0.03 0.00 0.00 

### o.oo **\.:~tl4:52p** I!TlP}Ii tA

-- saturday, 114130 **404~305-5'7..29** soov 0.00 i0:46a lJII))iiJ CL

**700~525-8349** SIJQV iS 0.00 0.00 Tussdey, 05105

**ii:~a ~Oill**  Cl 703-75i-221'1 SDDV 3 0.00 0.00 lrednesr!sy, 05Jn4

Rate COOs: SDDV = Sh!!rcd fiinutes Feature Cml.s: CW = CAlL

**liruT!R~** Data Detail Tii:!-2- ToiFron Typaltinlt Rate CaOO TeJtt Hes:sanes Satlll11ay, M/iB 00:13a Sent 6Q3..714-4..'l4ll Ter.t t1f5£mrre Ulilltsrd 0.00 OB:41a Rcvd 603-714-1."40 Text Ressage 1/!!UiS!l 0.00 03:4-Ja Sent 603-714-4318 Text Message m!U!Sil 0.00 O!J:4Sa

**s~nt** 603·714-4311l Tert !tassage- l.}Nlll$ 

### o.oo OB:47a Re.vd 603-714-43111 Te.l!i. ilessane IJUIJISS 0.00 08:5ia Sent 303-YM-4316 TeJ...t ltessage [q!!Ji$ 0.00 00:5lla R011d &'!3-714-4310 TeJ\t P.-cssaga UHlliffi 0.00

# Exhibit 9

### t')

**~~-= (~~~**  **~~** ji "\ fJJI

# v.::: 1 ' l .;

**~l,.** •""""" 

### U.S. lOJEPARTMENT OFTRANSlP'ORTAUON OFFJ[CE OF HEA.RJlNGS WASHINGTON,DC FEDERAL AVIAHON ADM.Ji-wlSTRAT!lON, } 

### Complainant,
V. 

### FISHERSCIE!'l'fliFIC COMJP'

### AlW,JLLC, 

### Respondent. } 

### } } } 

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


### RESPONDENT'S MOUON TO STRIKE COMPLAINANT'SRESPONSE TO SHOW CAUSE ORDER AJ\T][Jl 

### TO Dl.§Mli.SS THE COMJP'LMN'f AS MOOT
Historv ofthe FAA's Inexcusable Delay inthe Proceedings
The FederalAviation Adminisu·ation's Southern Regional Counsel ("Regional Counsel" or "FAA") seeks a $5,850 fine relating to a small shipment oflye almostfive-and-a-halfyears ago. Inthe 15 months since Regional Counsel filed the Complaint, Respondent Fisher Scientific Company ("Fisher") has movedto dismiss this case for the following four reasons: 

### 1. The Complaintis legally insufficient because, even ifthe alleged facts were assumed
to be true, itfails to state a claim for civilpenalties under applicable statute (per Respondent's Motionto Dismiss Complaint for Insufficiency); 2. The two-year statute oflimitations for initiating such a 

### claim under theFederal Aviation Act ran more than a year beforeRegional Counsel servedt.l-Ie required Notice (perRespondent's Motionto Dismiss Complaintfor Complainant'sViolation ofRule 208); 3. Regional Counsel failed to file a tin1ely response to Respondent's Motionto Dismiss (per Respondent's Opposition to Complainant's Motion for Extension); and 4. Regional Counsel invited dismissal ofthe Complaintbyignoringthe Administr-ative LawJudge's April 6, 2016, Orderto conferwithRespondent's cotmsel andfile a Joint Report (per Fisher's Motion to Sanction FAA'sNoncompliance).
New andAdditionalReasons to Dismiss the Complaint Regional Counsel purported to file a Response to Show Cause Order onMay 31,2016. No counsel ofrecordfor FAA signedthe submission,however, so itviolatedRule 11(a) ofthe FederalRules ofCivil Procedure ("FRCP"). Respondentpromptly calledthis violationtoRespondentiYJotion to Strike andto Dismiss 

### Regional Counsel's attention; Regional Counsel tookno conective action. Accordingly, under FRCP ll(a), "the comi 

### muststrike anunsigned paper" (emphasis supplied), and FAA must be deemedto have failed to respond to the Show Cause Order, much less to have provided any reason for the Judge notto dismiss the action for the reasons stated inthat Order. Regional Counsel's persistent delay and disregard ofapplicable rules and statutes has also renderedthe Complaint essentially moot w1der the five-year, govermnent-wide statute of limitations barring the conm1encement ofany civil proceedings more than five years afterthe 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 

### 3MCo. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994.) It is undisputedthatthe a!ieged act atissue inthis matter occtmed onJuly 20, 2011. Timt was five years and two months ago. 

### It is pointless and grossly wasteful for Regional CoUllSel to insist onpursuing this case. They are asking the Administrative LawJudge to devote considerable tin1e and effmiin deciding motions to dismiss thathave beenpending for the last 15 months and, even ifF A.A. were to prevail onthe motions, Regional Counsel offers the prospect ofevenmore wasted effmiin a hea:ting FAA conservatively estimates would consun1e at leastthree full days ofthe Judge's time. Even ifone were to assUllle thatthe endresult ofthat proceeding would be a final order that Respondentpay
a $5,850 civil penalty, the Government is ba:tTed by statute from btinging any court action to compel payment. Respondent's counsel attemptedto reachRegional Counsel ofrecord by telephone to ask whetherthis motionwould be necessary, buther office receptionist refused to take a message and slanlllled downthe phone inmid-conversation. Ms. Harper did not retw11 the call. 

### vVHEREFORE, Respondent submits that the Complaint mustbe dismissedwithprejudice on any
or 

### all ofthe 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

5 6 7 3 9 IO II 12 13 14 15 16 i7 IS I9 20 21 22 23
25

1 3 4 5 G 7

q 10 l1 12 !3 I4 15 IG 17 lS I9 20 2I
23
25 --------------------------------j

**~.** ( { a .rr..

- .5 2 1 3

6 7
9 10 ll 11 13 14 15 16 17 IS 19
2i 22

__,
25

6 7
9 Ill II !2 !3 1-+ 15 I6 17 IS

24 25


## For The Record, Inc. 

## 10/4/2016
3

[

**~** --

"l
. -
::;,:;., ;.;_r. 1 (Pages 1 to 4)

### Fisher Scientific Company, LLC

5 6 7 

### s 9 10 !I 12 l3 14 !5 !6 !7 18 !9 20 21 22 23 24 25

2 3 4 5 G 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 

### '' 23 24 25 .\I involvedis the sodium hydroxide material, the Class 8 UN 1824, ifyou- ifyou go to the hazardous materials

**t1ble~** it\Viii tell you exactly hmv it's

**regulate~** so that-s really the e-ssence ofthose hvo paragraphs. JUDGERAWALD: Okay. And, so,lvlr. Cox, would you agree or disagree \Yith lVfr. Ellis? lVlR. COX: I'm not entirely sure what hejust said, other than I wouldjtL')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'mnot sure which ofthose they (IJe saving:-- ·which onehe's saving\\'as fair notice to


### .

**~.** 

### .•

**~.-~.c=~=** Respondentthat 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 complaintthan whatthey were in the original notice, 4 and 5 in the complaintmirror what's inthe mnended notice. What I asked ofboth parties was whetherthe cha.11ges to 4- and 5, \Vere in any \Yay material such timt the- Respondentwas 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 clearwhat miginally \vas in Paragraph 4, which \Vas one sentence and they tmned it into tln-ee orfour 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 inthe notice for proposed civil penalty from 20] 3? !viR. COX: Clearlv, new facts. Especially if you havein front ofyou amended notice ofproposed 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 Ifit'suot in 1he complaint, it's not an issue. So it'sreally not an issue. I understand the GorenmJent can certainly drop things from U1e notice ofproposed civil penalty and not make it in the eomp1ainL In facL thev dropued admittedly' halftheir >Jiolations in the complaint stage, so they initially alleged sL-...:: violations in2013, in the complaint there's only three.

**~~~~~~~~=-~-~---~,---~-** .,..**~~~-·-:so;~ob\710USi~;,-the-advocacy** was effective at ::;orne nolnt becauseyou\\-TCre ableto atleast get some of 

## 10/4/2016

I those violations offtl1e 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 otherbases. I'm not £Ding 6 to take argument on thoSe

**i_?~e_s** today. I'mrecJly 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 ornot And then ·we can ctiscuss 10 more about the possible sanctions or ot11er things down ll tl1e road.

**~--** 12 13 14 15 16 17 18 19 20 21 22 23 24 25

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But at tllls moment I amnolgoingto look at tlu11. I want to look at these threshold issues and get

**~**

those oul dealt wiU1.. in my opinion first That's what rmlooking at So with that understanding, Mr. Cox, do you have ail)1hing else you want to bring up? lvfR COX: Judge, Iwould 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'msorry: to yourorder to shmr cause should be

**stricic~IL** And that is going to bean independent issue. I guess, because the rules me really clear in Rule l L tl1at it has to be counsel ofrecord. -+4 The1-e's nothing inthe response that- there's no type'''.ritten infommtion as to who signed thal supposed response, whe-U1er that'sM-. Ellis' signature ornot, I don'tknow. But there

**at~e** a lot offactunl allegations made that are

**ju~t** Dat untrue.

. And i£J\1s. Harperis

**~Ol** "illing to put her signature on thai andrisk 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 ofrecord in the

**cas~-** And I would QQiect to thal. JUDGE RAWALD: Okay. AJ1d, Mr. Ellis, letme \

### j tumto you. So, there is a complicating factor here. in j' i.' the fact thatlvls. Hmper has been noticeablv absent from

. the proceeding. She didn'tfile anvtbing in response to ·,I,

. my initial noticerequiring the pmties to meet and 'I

confer: she did not file herselfthe response to notice 

# ll for shmv cause. vou filed Uwt forher: and shehas no1 j,J appeared todav. This is a pmblem, CounseL There needs to be 11 someone from 1he FAA 1\·'ho is onthis case and ready to 

## lI prosecute this case, becauseI'm proceedinrr \Yifu this Cf!.Se. I-m movin2: tills case forwm-d

**either~],Y.** 1-\nd ifthe FAA '\Vants to not abandon tills case. thev need to assign someone to this case who is going: to be taking

# II 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 ifMs. 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 hearyou 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~** 1wi11 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: Ihave a qnestion, Judge. l6 JUDGE RAWALD: Yes, Mr.

**Co~?** 17 iVIl{. COX: i\re you denying: In'{ motions? Anv of 18 my motions to dismiss? 19 Jl.JDGE RA VlALD: I have not made anv ruhnes on :20

**~motions** at Ihis

**pain~** sir. So \Vhat I'mdoing 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 otherissues vouhaYe 25 raised more intensely ood decide what to do about those46 Issues. 2 I do not plan onhming argument on those 3 issues. but ifI do. upon re,-iewing themfurther. think 4 additional btiefing or argument necessary, I will let the 5 parties knmv. 6 No. I understand yourposition on all three of 7 those issues and I will look atthem 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? YourHonor. 1have a 11 question. l1 JUDGE R_I\WALD: Yes. l3 iV!R. ELLIS: Will we receiYe a copy ofthis 14 transcript'/ !5 JUDGE RAWALD: Well. so the transcript \\ill !6 come -- I think itU1en gets passed to the docket but 17 

### r m not sure. But I will make sure that all parties 18 recei\'e a copy ofthe transcript once ·we get one. yes. 19 MR. ELLIS: Thank you. YourHonor. 20 JUDGE RAWALD: Okay. Mr. Cox. so-justso 21 you unders1ancL whatI will do is I will go ahead and 22 issue a ·written orderregarding these nvo motions atone )0 

### __



## , and then look at the otherUlree issues further. I don't 24 think there's anything inthose, despite yourconcem .. 25 that will be worth my looking atbefore l dispose of 2 3 4 5 6 7 8 9 10 11 12 13 !4 15 16 l7 18 19 20 21 22 23 24 25

2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 !9 20 2! 00 )0

**~-)** 24 25 

## 10/4/2016

these t\vo very essential and baseline issues that

**ne~d** to be dealt with. So, Ivir. Cox, any further questions fromme? 1YIR. COX: No. Just I \Vant to be clear that you're goingto --it'syourintention to hold in abeyancethe molion to strike and the motions to dismiss, including the motionto dismiss on mootness, because of the five year statute oflimita.tions. You're going to decide upon the issue about whether the pleaclin2. meets the sufficiencv requirements beforevou decide whether U1e case is mool inthe frrsl

. place. l'v1R ELLIS: How in tl1e world 1nm!d lite- I'm

sorry. -!7

JUDGE RA. \VALD: Yes. D1e reason why 1 'm doing Uwt is because first ofall, youraised the issue vmy nxcmtly ofthe Government

**hasn~t** bad a chanceto brief it and I thinkalso thatI reallv want to deal with this _verv baseline issue that exists inthe 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 andresponses allowed by that answer. So I 1v;mtto get those squared away. And then I will look atyour ne\:o.' issue you've

**~0** ,Q raised_ and., ifnecessary, ask for briefingti·om the Respondent

-- or,

**e~cuse me~**  the Complainant to respond to whatyou raised there, as far as the three orthe fixe :year statu teo sir. tAR. COX: As long as ltmderstand. Thankyou. J\IDGE Rl\ WALD: 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 ofwhich is a five. vear statute oflimitations. 

### (I' t""i;;,I.;ct 

### 5 ooia



### 9 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, YourHonor. JUDGE RAWALD: Okay. Last chance for anv questions, tvf:r_ Co:-.::. l.viR COX Justto note thal the niles require

. the FAA to respond within, I 

### thli1k" it's l0 davs to themotion to strike. JUDGE RAV/ALD: 1understand_ sir. But I do hDve some 11exibility as far lli' being a Judile and dictating how the schedule ofevent:5 goes. And so -- 12 (Pages 45 to 48 i 

### For The Record, Inc.

### Fisher Scientific Company, LLC

5 6 7 8 9 10 il 12 ]3 14 15 16 l7 18 !9 20 21 22 23 !VIR_ COX: I understand. sir, but only if theY've asked for an extension. Ifyou take a close look at the regulations, thev have to ask you for an extension ;md state: a reason why. JUDGE RAWALD:

**Sir~** given my current posture in this case, I don't wantbriefing on the

**issue~** notrig]1t now. So

**r·,\~ll** look more

**~tyour** issue. But I am stating here the Government should send a briefin response to ·your motion to strike at the moment. lVlK COX: Understond. I understand.·

- MR. ELLIS: Yes, Your Honor. JUDGE RA \VALD: Jillything ei<;e for us to discuss'? (No response.) JUDGERA \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 issuesand then ·what's the next step in this case. So thankyou for your time and lefs go ahead and go offthe record. Thankyou. 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 theforegoing 5 proceedings \vere recorded by me via digital recording and 6 reduced to typew1i.ting under my supen'ision; that I am 7 neithercounsel for, related to, nor employed by any of 8 the pat1ies to the action in \Vhich these proceedings were 9 transc1i.bed; and further, thatI am not arelative or 10 employee ofany attorney or counsel employed by the 11 parties hereto, nor.financia11y orothenvise interested 12 inthe outcome ofthe 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 11U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

FEDERAL AVIATION ADMINISTRATION, } 

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

### Respondent. } In the Matter ofFisher Scientific Company, LLC Docket No. FAA-2015-1321 (Civil Penalty Action) Judge Rawald

ERRATAFOR OCTOBER 4, 2016, PRETRIAL [SIC, PREHEARING] CONFERENCE

1. In the title, delete "pretrial" and insertin lieu thereof"pre-hearing." 2. The transcriptdoes not, but should, include the undersigned's objection,justbefore 10:12 a.m., to proceedingwith the hearingafter agency counsel ofrecord failed to appear. 3. On p. 5, line 2, delete "admit" and insertin lieu thereof"dismiss." 4. On p. 9, line 10, delete "thoughts" and insertin lieu thereof"formerboss." 5. On p. 34, line 7, delete "from defense." 6. On p. 37, line 12, delete "through" and insertin lieuthereof"to prove." 7. On p. 49, between the words "should" find "send," insertthe word "not."

### \

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

FEDERALAVIATION ADMINISTRATION, } 

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

### Respondent. } Inthe Matter ofFisher 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 ofThermo Fisher Scientific, Inc., (hereinafter refeJTed 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 inthe above-captioned matter due to the failme bythe assigned Administrative Law Judge, Douglas Rawald ("the ALJ"), to dismiss the case, as required by FAA Rule 215, after the agency attorneys constructively withdrewthe Complaint by missing four consecutive deadlines without excuse. In support ofits Appeal, Fisher states the following: QUESTION PRESENTED Mustthe Complaint in a civil penalty action be dismissed with prejudice when agency counsel, by consistently failing to participate inthe proceedings, ignoring multiple ALJ Orders and failing without excuse to appear at a pre-hearing conference ordered by the ALJ, has constructively withdrawnthe Complaint?PURPOSE AND STANDARD OF REVIEW FOR THE APPEAL FAA long ago established the "interlocutory appeal ofright" to help the Administrator prevent agency counsel, a private party respondent or an ALJfrom wasting public and private resources on administrative litigation where, as a matter oflaw, one side or the other has failed to participate inthe proceedings or to present its case. Accordingly, when it adopted Rule 219(c) in 1990, 1 FAA decided not to depend on an ALJto prevent needless litigation and provided, in pertinent part, as follows: "Aparty may file an interlocutory appeal
... without the consent of the administrative lawjudge
... inthe case of
... (2)failure ofthe administrative lawjudge to dismiss the proceedings in accordance with 

### § 13.215
...." (Emphasis supplied.) The plain language ofthe 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 notjustparties butalso anALJfrom allowing wasteful litigation to proceed. That is why Rule 219 also specifically provides that, whenthe ALJ's receives a Notice ofAppeal, "theproceedings are stayeduntil the FAA decision-maker issues a decision onthe 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 ofsodium hydroxide solution (commonly known as "lye") by air five-and-a-halfyears ago, in July, 2011, that the package was properly declared as containing hazardous material and that itwas 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 pertinentpart, that the lye was packaged in some respect that violated the Hazardous Materials Regulations ("HMRs")?

1Federal Aviation Administration, "Rules ofPractice 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 ofrespondents." See also FAA, "Rules ofPractice for Civil Penalty Actions,'' Notice ofProposed 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 itselfwhether 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 ofRight 2Fisher promptly moved to dismiss the Complaint based, inpart, on agency counsel's failure to lodge at least one ofthe key allegations withinthe two-year time limit established by FAA Rule 208.4 Agency counsel ofrecord did not file a timely response to Respondent's Motion to Dismiss but the ALJnevertheless moved the case forward.5 On April6, 2016, nearly a year after Respondent flied its Motion to Dismiss, the ALJ- without frrst deciding whetherthe dispositive motions resolved the case or whether Respondent would even be required to file anAnswer- ordered the parties to meet and confer regarding litigation and scheduling issues and to submit a Joint Report ontheir 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., fmally phoned to say she was unable to answer even the most basic questions about the substance ofthe 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 ofthe ALJ's demand.7 Instead ofdismissing 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 oftheir failure to comply" that "shall include
... the informationrequested 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 nottypewritten on the document submitted a two-page purpmted third-hand account ofa conversation between Ms. Harper and the undersigned, but the agency counsel of record did notsign the document. Failure to sign and thereby certify the truthfulness ofthe factual representation presented in the purportedresponse to the Show Cause Order violated

4 Motion to Dismiss Complaint for Violation ofRule 208 (June 23, 2015) (Exhibit 2). 5 Agency counsel filed a late requestfor an extension oftime -from 10 days to nearly two months- to reply to the Motion to Dismiss but offered no excuse fortheirlate filing ofthe request and didnot state any grounds acceptable under FAA rules for grantingit. Opposition to Extension at 2 (July 7, 2015) (Exhibit 3). ln complete disregard ofcontrolling Rules, the ALJ- atthat 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 Briefonly for the purpose ofshowing that it was never signedby agency counsel of record. 

### Respondent's Appeal ofRightFederal Rule ofCivil Procedure 11(a), which provides, in pertinent part, that any unsigned "pleading
... and other paper must be signed by at least one attomey ofrecord" 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 muststrike an unsigned paper" (emphasis supplied). FAA Rule 207 even more explicitly bans recognition ofunsigned filings. 

### Itprovides that the "attorney of record
... shall sign each document tendered for filing withthe hearing docket clerk, the administrative lawjudge, 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 ofdismissing the Complaint atthatpoint 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 ofrecord. The undersigned immediately objected to any hearing onthe matter after agency counsel of record had once again constructively withdrawnthe Complaintn but the ALJ, without explanation, insisted onproceeding. He started by asking why counsel ofrecord, 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 preparedto participate in the hearing. The attomey replied, "I =notprepared
...

### _,u Over Respondent's repeated objections, the ALJ insisted on prosecuting the matter himself whether FAA tookpart 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 ofrecord "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 notfile herselfthe 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 indicatedthat he intended to take over from agency counsel: "There needs to be someone onthis case because I'mproceeding with this case, I'm moving this case forward either way." 15

10 See Exhibit 8. 11 Enata for Transcript ofPre-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 Briefwas due within 10 days ofthe ALl's ruling that the case will go forward. The Office ofHearings 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 ofRight 4Atthe conclusion ofthe hearing, the undersigned objected once again and asked for immediate consideration ofRespondent'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 Motionto Strike. 17 Respondent inlmediately filed the instant Appeal.



### ARGUMENT
I. THE CRITERIA FORRECOGNIZING A "CONSTRUCTIVE WITHDRAWAL" OF A RESPONDENT'S REQUEST FORA HEARING MUST BEAPPLIED EQUALLY TO THE GOVERNMENT'S "CONSTRUCTIVE WITHDRAWAL" OF A COMPLAINT. The Administrative Procedure Act, 5 U.S.C. 

### § 551 etseq., forbids FAA to adjudicate the imposition ofa civil penalty on a private party Respondent without first affording an opportunity for a fair hearing on the merits ofthe agency's allegations. For years, private parties have complained that FAA's civil penalty procedures are not only unfair, but inplainviolation ofdue process rights guaranteed underthe Fifth Amendmentto 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 enoughto 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 ofseparation between ALJs, who are employed by the Transportation Department, and prosecuting agency attorneys, who report to an "FAA decision-maker," who is supposedto render a fmal decision in an administrative appeal but is "basically prosecutorial in
... outlook and orientation." 19 Afterjudicial intervention inthe late 1980s, FAA adopted the Rules ofPractice that govern today to address criticism that the priorrules were "inadequate to ensure a system ofadjudication that is bothfair 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 ofRight 5The outcome ofthe 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 cantake a "fire-and-forget" approach to prosecuting a civil penalty case. More specifically, denial ofthis appeal would establish one set ofrules for "constructive withdrawal" of a private party Respondent's Request for a Hearing and a policy ofnot 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 usedthe failure ofa 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 ofconstructive withdrawal, especially in connection with his April, 20 16, mass mailing ofOrders to Meet and Confer to parties in cases onhis docket. When a party, in defiance ofthe ALJ's Orderto Meet and Confer, failed to communicate with opposing counsel and put them in the position ofhaving 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 suchfailure 

### "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 lawjudge 

### shall dismiss the case withprejudice."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, inparticular, seems to have concluded that the government is exemptfrom requirements to participate in an administrative process that they instigated by filing a Complaint.



### ll. AGENCY COUNSEL "CONSTRUCTIVELYWITHDREW" FAA's COMPLAINT. Inthe cases referenced above, Judge Rawald recited the following fact patterntojustifY dismissal ofRespondents' request for a hearing:

21 See, e.g., Matter of Bonanza ValleyAviation. 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 Orderto 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 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 ofRight 61. 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 withthe Meet and Confer Order. 4. Respondent was "advised inthe 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 ofthe 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 ofrecord failed to "file a statement explaining the cause oftheir failure" and include "informationrequested in the Order." 5. Complainant filed no statement explaining the cause oftheirfailure or including the requested information. 6. In fact, Complainant filed no cognizable response whatsoever to the Order to Show Cause becausethe document agency cotmsel submitted was not signed or certified by counsel ofrecord and must be stricken from the record under FRCP ll(a) and FAA Rule 207. 7. Counsel ofrecord 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 ofthe Complaint. Ifthe FAA decision-maker rejects the instant Appeal and fmds that such a constant lack ofparticipationby agency com1sel

- as enumerated by the ALJ himself6

- does not necessitate a fmding ofconstructive withdrawal ofa Complaint, agency counsel may bejustified in considering themselves i.J.rm1une from dismissal. In effect, rejection ofthe Appeal would establish a "one-strike-and-you're-out" rule for private party Respondents and a blind eye toward exactly the same conductbythe government. This unbalanced duality could force the FAA into federal court, where it would be compelled to explainhow such disparate treatment comports with constitutional guarantees of due process. Similarly, an10ng the regulated community, this precedent surely will create the impression ofa 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 ofRight 7

### III. UPONWITHDRAWAL OF A COMPLAINT, RULE 219 REQUIRES THAT AN ALJ "SHALL DISMISS" THE CASE WITH PREJUDICE. FAARule 219 is uuequivocal. It specifically states that "an agency attorney may withdraw a complaint
... without the consent of the administrative lawjudge. Ifan agency attorney withdraws the complaint
... the administrative lawjudge shall dismiss theproceedings
... with prejudice." (Emphasis supplied.) As Pmi II explains above, agency counsel constructively withdrewtheir Complaint on multiple occasions: by failing to file a timely response to the motions to dismiss in 20

### I5; 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 Orderto Show Cause; and, finally, bynot 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, intum, has no choice under FAA Rule 215 other than to "dismiss the proceedings
... withprejudice." WHEREFORE, Respondent respectfully requests the agency decision-maker to immediately dismiss the Complaint withprejudice. Dated: November 25, 2016

Respondent's Appeal ofRight • I ox, Esq. 

### j 2050 mnieson Ave., Suite 1212 Alexandria, VA 223I 4 (tel) 703-757-5866 Couusel for Thermo Fisher Scientific, Inc., and Fisher Scientific Co., LLC

8CERTIFICATE OF SERVICE

On November 25,2016, the undersigned sent by the indicated type(s) ofservice at least one copy ofthe foregoing Notice on each ofthe persons listed below. 

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

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

### 0 [One Copy by Air Courier] Andrea Michelle Harper, Esq. Senior Attorney Regional Counsel, ASO-7 U.S. Department ofTransportation Federal Aviation Administration SouthernRegion 1701 Columbia Ave. College Park, GA 30337



### Respondent's Appeal ofRight [One Copy by air courier] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey 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 2Wl000 

### 00 [One Copy by U.S. Mail] Ryan M. Landers, Esq. Senior Attorney Enforcement Division, Southern Team U.S. Department ofTransportation Federal AviationAdministration SouthernRegion P.O. Box 20636 Atlanta, GA 30320

9

# Exhibit 1

### U.S. ID.EPARTM.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 ofthe 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 ofProposed 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 ofthe 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 ofhazardous material for transportation by air and failed to use a means ofcontaining the liquid in the form of a leakproofliner, plastic bag or other equally efficient means ofcontainment. 8. Fisher offered the shipment ofhazardous 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 ofhazardous materials for transportation by air and failed to ensure the closure was secure and leakproof. I0. By reason ofthe above, Fisher violated the following Department ofTransportation Hazardous Materials Regulations (Title 49 ofthe 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 ofhazardous 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 ofhazardous 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 aleakproofliner, 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 ofTransportation Hazardous Materials Regulations. Under the facts and circumstances ofthis case, a civil penalty of $5,850 is appropriate. This amount includes consideration ofthe 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 ofJune, 2015.

Attorney Office ofthe 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 ofService which follows.

# Exhibit 2

### U.S. DElE'ARTMEN'f OF TRANSJE'ORTA'fl!ON OFFICE OFHEARl!l"JGS WASIDNG'fON, DC

FEDERALAVIATION ADMJI.NISTRA'fl!ON, } Complainant,


### v. Inthe Matter ofFisher Scientific Company, LLC Docket No. FAA-2015-1321 (CivilPenalty Action) 

### FISHERSCIENTIFIC COMPANY,lLLC, Respondent. } } } } } } Judge Goodwin



### MOTIONS TO mSMISS COMrLMN'f FORINSUFFICIENCYAND FOR COMPJLA!NANT'S Vli:OlLAUON OF RVJLE 208
Respondent Fisher Scientific Company, LLC, a subsidiaJ.y ofThermo Fisher Scientific, Inc., (hereinafterreferredto as "Fisher") moves to dismiss the Complaint inthe above-captioned civil penalty proceeding onthe follo-wing two independent grounds. First, the Complaintfails to state

a "knowing"violation for which a civil penalty maybe imposed. Second,by including allegations thatwere first made more thanthree years after the alleged incident, the Complaint violates Rule 208(d) ofthe Federal AviationAdministration's (hereinafter "FAA's"or "the Agency's") Rules ofPractice ("Rules"). FAA's SouthernRegional 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, whenFisher shipped a single liter ofa cmrosive liquid commonly known as lye. First, Regional Counsel alleges that Respondent "knowingly offered ... a ... shipment ... containinghazardous materials for transportationby air." Compl.

**~** 1. Second, Regional Counsel claimsRespondent "violatedthe ... hazaJ.·dous materials regulations" ("HMRs") because it "failedto ensure that [thebottle oflye was] ... packagedwith absorbent materials ...." Compl.

**~** lO.c.Respondent'sIvlotion to Dismiss
Motionto Dismiss for Insufficiency The Hazardous Materials Transportation Act ("HiviTA"), Pub. Law No. 93-633, 88 Stat. 2156, 2160 (Jan. 

### 3, 1975), 

### codifiedas amendedat49 U.S.C. 

### §5123(a)(l) (2011 ), allows the Governmentto impose a civil penalty upon a "personwho 

### knowingly committed

### r:m actwhich is
aviolation of'the HMR.s 

### (emphasis supplied). A later recodification made anon-substantive, editorial change. 

### Itrewordedthe sentence to saythe Governmentmay impose a civil penalty on
a "personthat knowingly violates" the 

### HMRs. Nowhere in the Complaint does Regional Counsel allege that Fisher "knowingly" committed any act which is a violation ofany

**l:i~.** It merely states that Respondent "lmov.ingly offered" a declared shipment ofhazardous materials.
There are other, more specific allegations inthe Complaint, but none ofthemallege a "knowing" violation. Inthe example referenced above, Regional Counsel claims Respondent ''violated" 49 C.F.R. § 173.27(e), butthere is no allegation that Fisher "knowingly" committed any act which violates it. The cited HMR applies certainpackaging requirements to some hazardous materials shipments butnotto others. In this case, the lye was a "limited quantity" shipmentthat was exemptfrom the specification packaging requirements and otherwise :fi.illy complied withall applicable 

### HiviRs. However, even ifone were to asstunethat 

### § 

### 173.27( e) did apply to the shipmentwhen it
was offered in 2011 and that Fisherfailed in some respect to comply with it or any other

### HMR, the l:i"MTA's civil penalty provision, as amended bythe Hazardous Materials Transportation Uniform Safety Act of 1990 ("HMTUSA"), Pub. 

### L. No., 101-615, 104 Stat. 3244, 3259 (Nov. 16, 1990), 

### codifiedat49 U.S.C. 

### § 5123(a)(l)(A) and (B) (2011), unquestionably requires the Agency to allege and provethat Fisher "knowingly committed an act whichis a violation of'that
or some other 

### HMR. As explained in greater detail in Respondent's Memorandllill in Support ofthe Motions to Dismiss, the statutory language governing the instant civil penalty proceeding isplain and unambiguous. Even 

### ifthere were some reason to consider it ambiguous, the legislative hist01y ofclauses (A) and (B), which were added bythe HMTUSA, leave no doubtthat Congress adopted a new definition ofthe term "lmowingly"for the specific purpose of prohibiting the Government fi"om imposing a civil penalty in a case involving transportation ofhazardous matetials unless itcan show that 

### the Respondenthad

### actual knowledge that its act or omission violated the HMRs orthat its noncomplianceresulted from some specific act of

### negligence on the part ofthe Respondent. Accordingly, the Complaintfails to state a violation ofthe federal hazardous materials transportation statute or regulations and mustbe dismissed for insufficiency pursuantto Rule 218, 

### 14 C.F.R. § 13.218(1)(1).

2Respondent'sMotion to Dismiss

Motionto Dismiss for Asserting a Claim About Whichthe Gove=entFailedto Give Timely Notice As noted above, Regional Counsel asserts, among other claims, that Respondent "violated the ... hazardous materials regulations"because it "failedto ensure that [the bottle oflyewas] ... packaged\\'ith absorbentmaterials .... " The 

### HMRs imposed no suchrequirementonthe shipment at issue inthis case, but even ifone were to assume that there was a requirement for packaging the subjectlimited quantity oflye with absorbentmaterials, Regional Counsel was obligatedto give timely notice thatthe Gove=entplannedto base its Complaint on such a claim. FAA served a Notice ofProposed Civil Penalty ("the Notice'') on July 3, 2013. During an Infonnal Conference, Respondent pointed outto Regional Counsel thatthe Notice was expost facto, based almost entirely onHJV!Rs that were not in effect inJuly, 2011, when Fisher shipped the subjectpackage. The Notice contained no allegation whatsoever that Respondent was obligated to include "absorbent materials" orthat Fisher failedto do so whenit packagedthe lye. Infact, this Notice did not even mention "absorbent materials." The first Notice ofthis claim
was served not within two years, as required, but more than three years afterthe alleged incident. in FAA's AmendedNotice ofProposed Civil Penalty ("the AmendedNotice") dated July 24, 2014. AmendedNotice '11

### f.
Rule 208(d)(2) ofF AA's Rules provides, inpertinentpart,thatthejudge "may dismiss the complaint orthat part ofthe complaint alleging a violationthat occurred more than twoyears before an agency attorney issued the notice ofproposed civil penalty" to therespondent "[i]fthe agency fails to show good cause for any delay ...."(Emphasis supplied.)
There is no excuse or other good cause for Regional Counselto keep Respondent inthe dark for
more thanthree years about the Agency's intended allegations. To reward Regional Counsel's failure to give timely notice by allowingthis case to proceed would defeatthe stated purposes and policies ofRule 208, grossly prejudice Respondent's opportunity to defend itselfand constitute a denial ofRespondent's due process rights underthe U.S. Constitution. VlHEREFORE, Respondentrespectfully moves to dismiss the Complaint onthe following two independent grounds: frrst, for insufficiency pursuantto Rule 218, 14 C.F.R. § 13.218(f)(l); and, second, to dismiss 

### the Complaint for violating Rule 208 pursuantto 14 C.F.R. § l3.208(d). Evenifthe Complaintis not dismissed outright on accOtmt ofRegional Counsel's violation of Rule 208, that portion ofthe Complaint alleging a failure by Respondent to include "absorbent materials" inthe packagingfor the subjectmaterials (i.e., all ofComplaint 'IJlO.c.) should be stricken, as alternatively provided inRule 208(d).

3Respondent's111.otion to Dismiss
Respondentrecognizes the importance ofthe issues presented 

### inthis case to hazardous materials civilpenalty cases ingeneral and respectfully requests an opportunity to present oral argument 

### in person onthesemotions.

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 3U.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:PAl'rY, LLC, Respondent. } } } 1 f } } 

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

RESPONDENT'S OPPOSITIONTO 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 inthe above-captioned civil penalty proceedingbecause the Complaintfails to state a "knowing" violation for which a civil penalty can be imposed and included allegations that were out-of-time andinviolation ofthe Federal Aviation Aclm.inistration's (hereinafter "FAA's" or"the Agency's'') Rules ofPmctice ("Rules"). Instead offiling 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 evento allege thepresence ofany grolllids to grant such a motion cognizable underRule 13 .213(b) andothervvise tailed to adhere to other applicable Rules. Accordingly, Complainant's Motion cannot iawfully be granted andRegional Counselmustbe consideredto have waivedFAA'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 oftime" must be filed withthejudge "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. Ajudge 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 thatF.Af, had "good cause" to file zero days ahead ofthe due date instead ofseven days ahead, as unequivocally required under the Rules. 

### Inany case, the Rules allow ajudgeto grant an ex'tension oftime to respond to a l'v1otion to Dismiss only "ifgood cause for the extension is shovm." Once again, Regional Counsel failedRespondent's Opposition to JWotionfor Ex1ension

even to include so much as a declarative statementthat 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 ifithad been timely filed. Regional Counsel goes on to claim that Fisher will not be "prejudiced by 

### an extension." This statement is false but, even ifit 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 ofan affirmative showingwhy the requested exi:ension is necessary. Regional Counsel's Motion is merely the latest example ofhow 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 matteruntil July, 2013. ThatNotice made no allegation whatsoevertlmt Fisherfailed to employ a pa:tticula:r type ofpackaging product. FA.A. filed another Notice in July, 2014, more u1a:t1 three years after the alleged incident, which is based almost entirely onthe 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 fouryears after the event. Meanwllile, FAAhas overseen orpemritted the deshuction ofcmcial evidence. 

### Iftlris case eventually goes to a hearing, witnesses onboth 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 4In The Matter Of: 

## SERVED: April16, 20116 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC

DocketNo. FAA-2015-1321 Fisher Scientific Company, LLC 

### ) ) 

### ) ) ) Case No. 2011S0700457 Respondent
ORDERDIRECTING THE PARTIES TOMEET AND CONFERREGARDING LITIGATION AND SCHEDULING ISSUES
The above captioned case was reassigned to the undersignedjudge onMarch 24, 2016. By order ofthe ChiefAdministrative LawJudge, 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 forthis case. To assist the undersignedjudge, the parties should meet and conferto propose a mutually agreeable schedule. An administrative lawjudge may hold conferences to, among other things, "settle [or] simplifY the issues by consent ofthe parties." 1 Pursuant to 14 C.F.R. 

### § 13.205(a)(1) and (7), it is hereby ORDERED:
1. Theparties shall privately conduct an informal conference to meaningfully discuss litigation issues and proposed scheduling. 2. The parties shall draft ajointreport providing:
a. a suggested venue, b. a proposed schedule for the completion ofdiscovery (or an indicationthat discovery is complete), c. a list ofanypendingmotions.that have beenpreviously filed but have yet to be ruled upon, d. a proposed date for a telephonicprehearing conference with theundersigned judge,

1 14 C.F.R. § 13.205.e. a proposed due date for the filing ofany prehearing motions (including a proposed date for a telephonic hearing on any filed motions, ifso desired), and f. proposed hearing dates. The parties should provide at leastthree 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 undersignedjudge at the Office ofHearings by fax, express canier, 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. DEJPARTNIENT OF TR.tJ,.N§ll'ORTATION OFFJ!ClE OF HEAJ'JD'\IGS WAS.lBIJINGTON, DC

FEDERAIL AVJIATION AJDll\/[JIJ'>f[§TRATION, } Complainant,


### v_ FK§HJER SCIENTIFKC COMPAJ\'Y, JLJLC, Respondent. 

### } } } 

### } ) 

## J Inthe Matter ofFisher Scientific Company, LLC DocketNo. 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 SANCTIONJFP,__A'§ NONCO!VillPUANCE By Order entered Ap1il 6, 2016, Judge Rawald directed Complainant, the Southern Regional Counsel ofthe 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 buthave yet to be ruled upon'' Fisher regrets to report thatFAA 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 thatthe call was in reference to the April 6 Order. Mr. Vines never returned the calL On April 18, the undersigned counsel emailedMr. Vines, requesting a response to the April 15 voicemaiL On April 19, iVJI. Vines responded that a different FAA attorney was handlingthe case, even though FAA never updatedthe service list On April 20, Ms. Michelle Harper phoned to say she was the attorney responsible for FA,b"'s compliancewith the Order. She asked Fisher's counsel to prepare a draft JointReport, which the undersigned emailedto 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.Reportof Fisher Scientific
A week later, on April 27, the undersigned phoned Ms. Harperbut, once again, she did not answer hertelephone. Fisher's counsel left a voicemail reminding her thatFisher was determined to com.ply with the Orderbut- 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 mailingthe Joint Report- the undersigned telephoned Ms. Harper again., but she did not answer her telephone. Fisher's counsel indicated in a voice mail that ifFAA continued to ignore the proposed draft ofthe JointReport, Fisher would have no choice butto 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 ofthe April6 Order isjustthe latest chapterin a five-year history of the Office ofSouthern Regional Counsel dragging its feet and utterly ignoring applicable laws and Rules ofPractice. This case arises from an alleged incident that occurred five years ago, on July 21, 2011. FAA waited until days before the statute oflimitations expired and filed a Notice ofProposed Civil Penalty inJuly, 2013. After Fisher pointed out thattheNotice was based on regulatory requirements that were not in effect in 2011, FAAfiled an Amended Notice on July 24,2014, more than fbree years afterthe 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, RespondentFisher filed a Motion to Dismiss the Complaintfor !ega! insufficiency and for being barred by the statute oflimitations. The FAA's own Rules ofPractice allowed FAA 10 days to oppose Fisher's Motion to Dismiss, butthe agency did not file its Memorandum in Opposition until August 17, 2015, almost 

### two months after itwas due. Fisher's MotiontoDismiss has been pending for nearly a year. The most appropriate way to sanction such egregiously dilatory conduct and getthjs fu!cient case offthe docket would be to order Southern Regional Counsel to SHOW 

### CAUSE why dismissal should not be ordered on one or more ofthe 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, Motionto Dismiss. (No extension was pem1itted under FA..A' s Rules ofPractice for the reasons stated inRespondent's Opposition toFAA's Motion forExtension.) 3. FAA's decision to wait morethan three years after the alleged incident and morethan a year after the statute oflimitations 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 ofwhich is attached, explain in detail why the case is barred as out-of.time.)

2Report

### of Fisher Scientific 

### 4_

**FAP.~'s** 

### failure to state alegally 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 requestfor in-person oral argument on the issues presented by its pending motions. Dated: April 30, 2016 

### Respectfully submitted_,

' ,. '-


### --

__,_- ___ ' ,,.

'_/) Ierry



### 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

DocketNo. 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 undersignedjudge 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 ajoint report to the undersignedjudge within 

### 30 days of 

### that order. On April30, 2016, the Respondent filed aunilateral report, stating that his attempts to meet and confer withthe 

### Complainant had failed. 1 

### TheComplainant failed to submit arep01t orrequest 

### for additional time before the deadline2 

### In accordance with 14 C.F.R 

### § 13 .205(a)(6), an adminish·ative iawjudge is empowered to regulate the comse ofa hearing. As previously noted by the FAA Administrator: [t]he Administrator expects thatthe partieswill comply with orders issued by 

### an AU dming 

### the he-aring smge ufaproceeding. Ignoring an ALJ's orders cannot be countenanced in an orderly system ofadjudication.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

1Respondent f.>iled, however. to provide all the information requested in the April 6, 20I6Meet and Confer Order. 1 Counsel for The Complainant tiled a notice ofappearance on May 10, 2016, but !niled to include the intonnmion requiredby rhe undersignedjudge's Apri\6, 2016 Meet and Confer Order or offer aresponse to Respondent's assertions within his April 30: 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 AmertcanAirlines, 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 inthe proceedings as directedby the undersigned

## judgemaybe 

## deemed a constructive withdrawal ofthe request torhearing or complaint by the party demonstrating such

a lack ofinterest in participating inthese 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 areport includil1g 

### all ofthe ilifmmationrequested inthe Order Directing the Parties to Meet and Confer Regarding Litigation ancl Scheduling Issues. 2. 

### No later than 

### June 1, 24ll6. 

### the Complainant shall file 

### astatement explail1i.ng the cause of theirfailure to comply withthe Order Directingthe Parties to Meet and Confer Regarding Litigation and Scheduling Issues. 3. 

### The Complainant shall include intheir statement the infmmation requested inthe Order Directingthe Parties to Meet and Confer Regarding Litigation and Scheduiil1g Issues. 4. 

### Ifthe 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. pursuantto 

### 14 C.F.R. 

### § 13.2I5, dismiss the case 

### ·withprejudice.

Attachment: Service List DOUGLAS M. fu.\.WALD AdmillistTative Law Judge

'See. e.g.. IAL PowerSuppiy, DocketNo. CP01 SOOO 15 (FAA Aug. 7, 2001) (ALJ consnued Respondent's silence
as a conshuctive withdrawal ofrequest for aheming), appeal dismissed, F A.A. OrderNo. 2002-l0 (Apr. 17, 2002): Blankson, DocketNo. CP97EA0024 (FAA Sep. 11, 1997) (ALJ found failure to respondto previous orders consrimtedconstructive withdrawal). 

### crO'a; FAA Order No. 98-21 (Oct 9, 1998). See also JmteadBaUoon 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 thehearing \\rithout good cause); ApolloA & HS Company, fAA Orde.rNo. 2011-4, at 4 

### (Jan. 

### 14, 20ll) ('"Apollo's failure to appear at the hearing end to 

### pursue its request for hearing withoutgood cause constituted a constructive witbdra'ival ofits request for hearing.::)_

# Exhibit 7

### UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

IN THE MATIEROF 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 inthe case, as well as the information required by the Order Directing the Parties to Meet and Confer. At the end ofthe 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 ofthe 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 aruling 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 ofthe ChiefCounsel Enforcement Division, Southern Team



### 2

# Exhibit 8

### U.S. J!]JEJP'ARTMEN'f OFTJR,,\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 ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 (Civil Penalcy Action) Judge Rawald


### RESPONDENT'S REPORT liN 

### RESPONSE TO ORJ!]JERXSSIDLK:P J1UNE 2, 21H6, 

### 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 ofthe Proceedings The Federal Aviation Administration's SouthernRegional Counsel ("Regional Counsel" or "F A.A.") seeks a $5,850 fine relatingto a small shipment oflyefive years ago. Respondent Fisher Scientific Company ("Fisher") moved to disrniss the case for several reasons, including 

### FAA's failure to explain howthe shipment could possibly have involved any knowing violation ofthe Hazardous Materials Regulations ("HMRs"). Fisher pculicipated in two "inforn-1al conferences" ("ICs") with Regional Counsel. Dmingthe first IC, on July 16,2014, Fisher explained that theboilerplateNotice ofProposed Civil Penalty ("NOPCP") thatRegional Counsel served July 3, 2013, included downrightbiza.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 outto Regional Counsel during the 2013 IC that the volume oflyebeing shipped (just one liter) was so small, the shipmentwas 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 oflye decreased to one-halfliter, butthe change inthe HI\IIRs was not and could not be retroactive to a shipment in 2011. Morethan a yearlater, on July 24, 2014, Regional Counsel served an Amended Notice of Proposed Civil Penalty (".A_l\fOPCP") that dropped allegations in the first Noticebut added aReportandRep{r of RespondentFisherScientific completely new claim that, whenFisherprepared the subject shipment, 

### it was somehow required to stuffthe packaging with "absorbent material." Ninemonths 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 werenotin effect at thetime ofthe alleged incident, this brand-new claim was time-barred because itwas lodged more than a year after the applicable two-year statute of limitations passed. Respondent's counsel also asked then-Regional Counsel ofrecord, Will Vines, Esq., to explain why FAA refused to acceptthatthe LQ Exemption covered the subject shipment. Mr. Vines stammered for halfa minute, then abruptly terminated the conversation without offering an answer. Regional Counsel served its Complaintin mid-June, 2015. Respondent promptly moved for dismissal. Judge Rawald's April 6, 2016, OrderDirectingthe Parties to Meet and ConferRegarding Litigation and Scheduling Issues Afterthe two ICs, Counsel forthe 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. Theundersignedthen emailed

### NlT. Vines on April 

### 18. Thefoilowing day, 

### NlT. Vines advised by email that a differentFAA attorney, whom he identified as Michelle Harper, was handlingthe case for Complainant. Ms. Harperhad not entered an appearance in 

### t.he matterbut she phoned Respondent's counsel on April 20. Telephone company records show thatthe entire April 20 conversation lasted 20 minutes (Attachment 

### 1). It coveredthe following topics: 

### (1) personal introductions; (2) Judge Rawald's April 6 Order; (3) the content ofthe Joint Report to befiled in response to the April 6 Order; (4) Respondent's Motion to Dismiss the Complaint; and (5) Respondent's request to meetwith FA-A..'s newly assigned counsel to hear whetl1er she, unlike Mr. Vines, could explain why FAA. contends that the subject shipment did not qualifY forthe LQ Exemption. 

### 'fopk 1 consumed about five minutes ofthe conversation. On 

### 'fopk 2, counsel mutually agreed that 

### itwas impossible to know whether

### any discovery orhearing would be needed, much less to propose dates for such additional proceedings, becauseFisher'sMotionto Dismiss would be dispositive ofthe entire case. On l'o!fiic 3, Respondent's counsel agreed to prepare a draft Joint Reportto that effect and FAA's counsel agreed to review it, to offer any needed edits m>d sign 

### it ifno edits were needed. Under 

### 'fopk 4, FAA asserted thattheMotion to Dismiss should be denied; Respondent's counsel explained why the Motion to Dismiss should be granted.

2ReportandReplyof RespondentFisherScientific Approximately 18 minutes into this 20-minute conversation, Respondent's counsel broughtup 

### Topk 5. That part ofthe conversation, which is reproduced below in its entirety and as close to verbatim as possible, went as follows:
!viR. Cox: You hfflow, 

### itwouldreally bea slu;me to insist thattheJudge mustdecide the

**!~'lotion** to Dismissamlallow theproceedings to go forward ifyou willhwe no case topresent


### on the merits. We 

### asked WW Vines nwre than once

### to e.v;plmn 

### why the 3hipmentwas not exemptunder theLimited Quami!J'E:'!:ernption. Canym;please e:;:plain thatone 

### to me?


### Ms. HARPER (CHUCKLING}: Jfhaven'tlooked atthat file in

### years.
!viR. Cox: k!Taybe this wouldbe a good timeto do that. 1\lfS. HARPER: OK, Jf'lllook {It 

### itandgetbacktoyou in the firsthalf of nextweek.
This portion ofthe conversation lasted approximately two minutes. 1-nmediately afterthe April20 conversation, Respondent's counsel sent a draftJoint Reportfor Ms. Harper's review, edits and signature. Ms. Harper failed to respond. Afterhearing nothing from fAA for anot.'ler week, on April27, the undersignedphoned Ms. Harper to urge her to sign
or suggest changes to the proposed JointReport. She did not answerher 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 submittingthe JointReportloomed, the undersigned telephoned Ms. Harper again, leavingthe foilowing voice message, reproduced here verbatim:


### 111R. Cox: 

### This is 

### Jerry Coxwith 

### Thermo Fisher in DC. I sentyou a 

### draftJointReport on 

### April2(} butneverheardbackfrom

### you. We're up against

### ti2e deadline, so Jf'm going to 

### withdraw the draftJoint

### Repo11tand 

### Thenno 

### Fisherwillhave 

### to file its 

### own 

### Report. Feel fitee to callyne ·whenyou are preparedto discuss the case Accordingly, on April30, Respondent filed aunilateral Report and moved for sanctions against Fp.._p._ for ignoring the Judge's April 6 Order. FAAfiled no Report of

### its own and ignored Respondent's Motion for Sanctions. JudgeRawald's May 17 Show Cause Order Regional Counsel remained AWOL until the Judge orderedFAAto show cause whyithas not "constructively withdrawn" its Complaint and thewhy the Judge should not "dismiss the case with prejudice." Orderto Show Cause at 2.

3ReportandRep{v of RespondentFisherScientiJlc
In its Response to the Show Cause Order, FAf." equivocated about whetherMs. Harper received Respondent's voice messages and argued that, even ifshe 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 toknow whetherFAA had even received the draft Joint Report, much less whetherMs. Harper approved 

### it FAAtoldthe Judge thatMs. Harper and Respondent's counsel "had a lengthy phone call discussingthe 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 madeto the Judge was true and correct <U!d in full compliance with Rule 11 ofthe Federal Rules ofCivil Procedure ("FRCP") and professional ethics requirements relating to candor before a tribunaL Itis for the Judge to determine whether a 20 minute phone call, only two minutes ofwhich was devoted to themerits ofthe 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 thatMs. 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 inthe case. FRCP ll(a) explicitly requires that "every pleading
___ and other paper mustbe signed by at least one attorney ofrecord
___ [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 ofthe person's ki10wledge
___ factual contentions have evidentiary support
____" Sanctions may be imposed on 

### the "attomey
___ or party," FRCP 

### ll(c)_ Unless Fii_Puecants quicldy, Respondent plans to movefor such sanctions because Ms. Harper's statementto the Judge that "the parties did indeed meet and confer [and] had a thorough discussion ofthe underlying facts ofthe case

____"is both highly material and plainly false. Report to Judge Rawald inResponse to the Orders to ProvideRequested Information 

### In his June 2 Order, Judge Rawald admonishedRespondent to "file a Report including all ofthe information requested in the OrderDirectingthe P<U-ties to Meet 1md Confer." Respondenthas 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

4Reportan!l

**Rep~v** of Responde-FitFisher Scientific· completion ofdiscovery," proposed dates for prehearing conferences, filing ofprehearing motions and hearing dates. Order to Meet and Confer at 1-2. Unfortunately, because FAAhas steadfastly avoided meetingwith Respondent orparticipating in any sort ofsubstantive discussion- even after theundersigned made additional telephone requests to Ms. Harper on May 

### 31 and June 3, Respondent can only guess whatthe issues wouldbe, much less what discovery would beneeded to address them, how long it wouldtake 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 atthe moment, the folio1.0ling information requestedby the numbered portions ofthe 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, sinrtingonApril 15, 2016, on the grounds that ithas beenyears since Regional Counsel has read the file. This has made it impossible forRespondent to addresswith FAA either litigation issues orproposed scheduling. 

### RJEQUESTE][l ][1\JFI!}RJ'\IJIA

### TION 2. The parties shall draft a JointReportproviding: 

### a. a suggested venue,

WithoutFAA's cooperation. Respondenthas no way to /mow whatwitnesseswouldneed to be calledorwhat venue would be mostconvenient to them. However, Respondent tentatively suggests that Washington, DC, would be the appropriate venue because the Judge 

### is here, Respondent's counsel is here andkeyFisherwitnesses cu-e in the Northeastern United States.

b. a proposed schedule for the completion ofdiscovery,

Until FAA 

### is compelled toparticipate in the injimnal conference referenced in Item# 1, above, it will remain impossible to !mow what

**~witnesses** the agency intenrJ.s topresent, what experts, 

## it" any, Respondentwouldneed to call to testtfy andwhopossesses relevant information. The time

5Reportand

**Rep~v** of RespondentFisherScienti.fic 

### needed to complete discove1y, of course, will depend on how many witnesses are involved, where they are located, andwhat their schedules allowfor. Witnesses may also needadditional time to re.fi·esh their recollections about events that occurred five years ago. Respondentwould, in 

### any event, requireproduction o_f physical evidence related to the allegedleak. Respondent understands from a letter lvfr. 

### Vines sent on November 20, 2014, 

### that FAA 

### either destroyed the bottle and thepackagtngmaterial, including the box in·which it

### was shipped, or allowedthis evidence to be destroyed. Itmay take months to determine how much of thephysical evidence continues to existandwhat, 

## if anything, experts can deducefrom it. Respondentmay also need to seeksanctions againstFAA on account qf such destruction of evidence.

c. a list ofany 

### pending motions
..., RESPONDENT'§ REJPLY 

### Respondent'slvfotion to Dismiss ComplaintforInsufficiency and 

### for Complainant's Violation of Rule 208 was.filed

### June 23, 2015.



### d. a proposed date for atelephonic prehearing conference
..., 

### Respondeni is, ofccmrse, willing toparticipate in aprehearing COI?ference, by telephone or in person, on July 20, 2016, 

### or nearly any otherdate that wouldsuit the Judge's convenience. However, withoutmore information about the issues FAA will

### raise, Respondent is uncertain what could be accomplished.

e. a proposed date for the filing ofany prehearing motions
... and

**RlESJPONl!J~N'f'§** REJPJL

### Y 

### ifhiie

### Respondent cannotsuggest a datefor filingprehearingmotions, it likely ·wouldneed tofile a motion for a more definite statement before it 

### could file itsAnswer.

f. proposed hearing dates
... acceptable to all parties. P..ESPONDENT'§ P.EPJLY

5ReportandReply of RespondentFisherScientific Respondent submits that no hearing

### will be needed in this case, but ifahearing

### ·will be held, 

### it requests the earliest date consistentwith andallowable under the lmv andFAA'sRules of' Practice.

3. [service instructions]
Respondent timely served- inaccordance ·with these instructions- the bestReport itcould muster in light of the toL!!llack ofresponse from FAA to the dmftJointReport it offered Regional Counsel onApril 20. Conclusion Respondent has no means to compel Regional Counsel to comply with the April 6 Order orto respond to Judge Rawald'sMay 17 Show Cause Order. Fisher cannot provide any more requested information until FAA stops hidingbehindthe pendingMotion to Dismiss. Judge Rawald has offered 

### F

**~'LA.** multiple opportunities to comply with his Orders butthe agency still refuses. WI-i::EREFORE, Respondentrequests thatthe 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

7JERRY COX 2050 JANIESON AVE f'PT 1212 ALEXANDFIIA, VA 22314-6827

Data Detail -Continued illE. To}Froa Data Plans Honday1 05/D9 04:20a Data Tr®Sfer Snbtotl!l for O&a Plans! Sutltota1 for Jill's:

**Pictur~/l!ideD** HessajJes SUJJday, !15/08 rvna/Unit 2B,E941ill i,654,75Jim i,654.754HB
04:4Sp Sent

**7D3~343-S91f** Pfct Video USG 04:5>Jp Ssnt

**lJfi5~207aS:i'?.!** Pict Video f"ISS Subtote.1 fur

**Pictu~J\fideo** llessayes: 2 Total Data Detail P.uto Cods: i1HSDG·J = !labile Share Val!!e 15Gn

**~ritil** Ro11orm> !lata UliU!SG = Sharad llesstlgin_g

HIDDEN CREEK ---·---··· ------------- **~** !ffiSfiSi

Place Rate

**F".:J~ture** Airtine .Tig flli1Sf! ri!!'ilber Cai1ed T11es.day, 04l'l2 i0:40a VtlJ.ll CL

**703~757·121i** 07:0ap VWli!.. CL

**7@..757~2211** Timraday, OM14

**10:·~a** Vi'll!L GL 7113-751-1.211 09-:26p VIWL Cl 703·157-221"! Friday, 114/iO 03:3ilp Wllli Cl i'TI3-ro-2211 SaturdaY, M/iG IJ4:!14p Aqufifl VA 703.-621-4015 04:05p fJUjil& 1!A 703-621-4015- llonday,

**0~/ilJ** 12:5ijp lfrli\TI. CL 703-757-2.211 Tuesdey, 04/i9- 00:4Jp Villill. CL TOo-757-2211 lfednesday, 04/20

**03:~Sp** WW:l CL

**703-757~2:211** Friday, 04/12 OD:•17p VWIIi\ v.a. i03-757-5D!6 oa:sap v:truiA Vil 7tl3-757-.5ll66 saturday, 04/23 !i3:27p VAAJl CL 703-75i-221i Timrsday, 04!2B 02:@1 i!iWL CL 703-757-2211

**10~23a** lftVi!l GL 703-757-2211 Tuasdoy, 05/0S ii:44a lfiEWiA VA

**703-757~5"055** C-Dde Code fiio Clzaroas SiJOV VH S!JDV !rfi SDDV 1J1j S!JDi! \fli illDV vn SDDV EllilV SOillJ \!1! SiiDV

**\~** Si!OV VH SDDV S!JOV S\JDV 1!1! IIDDV lfrl S!JDV l!H S'JDV 0.00 

### o.oa 0.00 0.00 g 0.00 O.OD Q.[][J 3 O.Gn 0.00 

### o.oo 0.00 

### o.ao 0.00 0.00 0.00 3 0.00 0.00 0.00 0.00

0.00 0.00 D.OO 0.00

LDIMdl Cfmraes 0.00 0.00 0.00 u.ao 

### o.oo 0.00 O.Oil 0.00 G.flD 0.@ 

### o.oo 0.00 (),{]\} 0.00 0.00 0.00 Place Tic-a Ga11ed Honday, W/1i Page: A-21 of 25 k3nl tyde

**o~te:** 04/10/16- 05/09/16 Aceon,'1t:

**~1.** !Foundatkm

**Ae~ount:** FAN 05536137

--------- --··--------

**-~-----** -·- ------ ---- i'ill::l7!::ll'o5iill@@

Uate Faatnre Nmlimr Called C!Jde Cr.de !Hn
2 !0 39
2 B 1G AirtilE Cliarpas O.ilil 0.00 O.tm 0.00 0.00 

### a.oo o.oo a.oo O.i!D LD/Adtll Clla.-..s 

### o.ao O.UD 0.00 

### o.oo 0.@ 0.00 0.00 0.00 0.00 O.OD 0.00

**w~uop a.;;;!~;.:;;**  **;;~j-f!U-tln1** '] 2 2B 0.00 O.IID O.DO O.OD

**~of'"** frida1', 04115 '1e> 10:50a !lllAliT GA 411<-SiJS-5200

**S~DV**



### ' 2 36 

# ' Zl 20
17 j 2 t4 29 2 0.00 

### o.oo 0.00 0.@ 0.00 0.00 O.Gij 

### u.oo 

### o.uo 0.00 

### o.oo 0.00 

### o.oo 0.00 0.00 O.GO 0.00 !1.00 0.0[} 0.00 0.@ 0.00 0.00 D.OO 0.00 

### o.oo 0.00 O.DO D.OD 0.00 0.00 0.@ 

# "'Place Tims 1211ed Umlli::r CB11ed i''>

**!isdr.esd~·,** IMIW

**-~f}ti:043** I{«Xi!H CL 4!14-SOS-5229 Th!irs:daw. 04/21 late

**~** SfJD\f

UJ.iiilp J:U.,,.,\,. cc •= 

### = ._.

**..,.-----,_~**

**('"~**

**··~** 05:011p AllA!ff Gii 404-305·5229

**~'DV** JERRY COX 2050 JAMIESON AVE APT 1212 ALEXANDRIA, VA 22314-6827



### -<'.:· !'age: A-22 of 25 Bill C)Jcle Date: 04/10/16-05/09/16 Atet:Jt!nt:

**@ffi\i&$~** Foundation Act:ti!Jl"'t: FAN 05536137

Visit us online at www ..at·,
..corn
F2ature C<Hle !Gn

**-------~-----··-** 2 Airtime ChEr(f'..s 0.00 0.00 lDIMOl Charoe.s 0.00 0.00 Feature 1,.f\ir:i;iWf lDifu!al

**~Friday** 1 04]29

**~** llln

**/!~lias** Charges 1);,G04:52p Ml.OJIT GA. 41.14-305·522.9 SODV 

### a 0.00 0.{)0 Qn-



### _ai'!il:::'~.oo c- Saturday. 04}30 0.00 G 10:46a lliGilliT CL 703-S25-liS49 SDDV 19 0.00 0.00 Tuesday, 05103 

### o.oo o.oo 11:Ma 

### rucoHJ CL 70J.75i-221"1 SDDV 3 0.00 

### o.oo 0.00 0.011

**\f~t!nesday,** 05104 0.00 0.00 0.011 

### o.oo 4 0.00 0,00 5 0.00 0.00 2 0.00 0.011 1 

### o.oo 0.00 j 0.00 0.00 0 0.00 0.00 2 0.00 0.00 1 0.00 0.00 0 0.011 0.00 ·j 0.00 

### o.no 15 0.00 0.00 0.00 

### o.oo 2 0.00 0,00 i 

### o.oo 0.00 1 0.00 0.00 10 

### o.oo 0.00 2 

### o.oo 0.00 i2 0.00 0.00 2 0.00 0,00 2 0.011 0.00 RID:o Ccffil; j 0.@ 0.00 51JOV =

**S~:srcd** ffinutes •) 

### o.no 0.00 Fani:ure 1::nd3: 4 0.00 0.00 30 0.00 0.00

**~l** = CIU.L U.illlllG 2 0,00 

### o.oo 0 0.00 0.00 Data Detail 2 0.00 0.00 Ticre ToiF11m Tvw/Unit Rats Code i 

### o.oo 0,00 Text Hessages !O 

### o.oo o.oo S.:Itl!fllay. 04116 35 0.00 0.00 03:1Ja Sent ti@.-714-4340 Text \'1t:Ssarre UHUi$: 0.00 OB:4·!a Rcvtl

**sos.m~'Mo** TEiL1: tiesssge tmUiSJ 0.00 0.00 

### o.oo OJ3:43a Sent 603-7i4-4Mll Tert Hsssage

**IT~UiSG** 0.00 7 0.00 0.00 00:4aa Sent

**503~7itl-4MS** Text ltessaga tiill.HOO 0.00 4 0.00 0.00 Oll:47a Rc.vd 603-7i4-4a4B Ta;rt il.sssege IDIUI$ 0.00 2 0.00 

### o.no 00:5ia Sent 6!13-714·1!346 Text H.essege IJillliSS 0.00 2 0.00 0.00 00:5!!a

**Ret~** &'13-714-(<2<!0 T mrt.

**Hesssg~** mllli.."G 0.00 !3 

### o.oo o.no 2 0.00 

### o.oo

# Exhibit 9

### WAS:m:NGTON, IDC FEIDERAL AVIATION ADMINIS'IRAHON, } Complainant,

v. 

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

### FISHERSCffiNUFJ!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 ofthe FAA's Inexcusable Delav inthe Proceedings
TheFederal Aviation Administration's Southern Regional Counsel ("Regional Counsel" or "FAA") seeks a $5,850 fine relating to a small shipment oflye almostfive-and-a-halfyears 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 insufficientbecause, even ifthe allegedfacts were assumed
to be true, it fails to state a c!aim for civil penalties under applicable statute (per Respondent's Motionto Dismiss Complaintfor Insufficiency); 2. The two-yea1· statute oflimitations for initiating such a claim under the Federal Aviation Actran morethan a year before Regional Counsel served the required Notice (perRespondent's Motionto Dismiss Complaintfor Complainant'sViolation ofRule 208); 3. Regional Counsel failed to file atimely response to Respondent's Motionto Dismiss (per Respondent's Opposition to Complainant's Motion for Extension); a11d 4. Regional Counsel invited dismissal ofthe Complaintby ign01ing the Administrative LawJudge's April 6, 2016, Orderto conferwithRespondent's counsel and file a Joint Report (Jler Fisher's Motion to SanctionFA.A'sNoncompliai1Ce).
New andAdditional Reasons to Dismiss the Complaint Regional Counsel purportedto file a Response to Show Cause Order on May 31,2016. No counsel ofrecord for FAA signedthe submission, however, so it violatedRule ll(a) ofthe FederalRules ofCivil Procedure (uFRCP'} Respondentpromptly called this violation toRespondeJltA1otion to Strike andtaDismiss 

### Regional Counsel's attention; Regional Cmmsel tookno corrective action. Accordingly, under FRCP ll(a), "the comt muststrike anunsignedpaper" (emphasis supplied), and FAA must be deemedto have failed to respond to the ShowCause Order, much less to have provided any reason for the Judge notto dismiss the action for the reasons stated 

### inthat Order. Regional Comtsers persistent delay and disregard ofapplicableIUles and statutes has also rendered the Complaint essentially moot under the five-year, government-wide statute of limitations baningthe commencement ofany civil proceedings more than five years afterthe 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.) Itis lmdisputed thatthe alleged act atissue in this matter occurred on July 20, 2011. Thatwas five years and two months ago. It is pointless and grossly wasteful for Regional Counsel to insist onpursuing this case. They are asking the Administrative LawJudge to devote considerable tin1e and effmtin deciding motions to dismiss t.hat have been pending for the last 15 months and, even ifF A.A. were to prevail onthe motions, Regional Counsel offers the prospect ofeven more wasted effort in a hearing F 

### A.A_ conservatively estimates would consun1e at least three full days ofthe Judge's time. Even ifone were to assume thatthe endresult ofthat proceeding would be a final order that Respondent pay
a $5,850 civil penalty, the Govemment is banedby statute from btinging allY court action to compel payment. Respondent's counsel attempted to reachRegional Counsel ofrecord by telephone to ask whetb.er this motionwouldbe necessary, buther officereceptionistrefused to take a message and slammed down thephone in mid-conversation. Ms. Harper did not retm11 the calL WHEREFORE, Respondent submits that the Complaint mustbe dismissed withprejudice on allY
or all ofthe 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

5 6 7 g 9 !0 11 12 13 !4 15 !6 17 18 19 20 21 22 24 ?.5

3
5 G 7
9 10 l1 12 l3 14 15 16 17 !S 19 20 21 T)

25 --------------------------------)

2

i-lr. 3

6 7
9 10 11 12 13 1-l 15 16 17
19
"1
23
25

5 6 7
9 10 11 12 13 14 15 16 17 18 19 20 21

25 **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

4 5 6 7 8 9 lO !I 12 13 14 15 16 !7 !8 19 20 21 22 24 25

2 3 4 5 6 7 8 9 10 ]] 12 13 14 !5 16 17 18 !9 20 21 22 23 24 25 involvedis the sodiumhydroxide material, the Class 8 UN 1824, ifyou-- ifyou go to the hazardous materials table, it \Yil1 tell you exactly how it's

**regulate~** so Umt-s really the essence ofthose t'\vo paragraphs. TLJDGERAWALD: Okay. And, so,lvlr. Cox. would you agree or disagree withJvlr. Ellis? lVIR.. COX: I'mnot entirely sure what hejust

**sui~** other than I wouldjustpoint 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'mnot sure \vhich ofthose 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 nolice '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 inthe complaintthan what they were in 1l1e original notice, 4 and 5 in the complaint mirror what's in the amendednotice. VvbatI asked ofboth parties was whetherthe changes to 4 and

**5~ '~'ere**  in any '''aY material such that the Respondent V.'as put unfairly onnotice, so that v·muld be a Rule 208 violation. lvfr_ Ellis said, no, no, no, 4 42 and 5 were simply amended to make moreclearwhat 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 inresponse to your question at the infmn1al conference. And so I guess, sir, my questionis 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 inthe

**~for** proposed civil penalty ifom 2013? ]V[R_ COX: Clearly, new facts. Especially if ;(on have in front ofyou amended notice ofproposed civil penalty file July 24. 2014. Param-aph 4 is still talkinQ about

**~orks.** 1lns case haS nothing to do wilh corks. JUDGE RAWALD: Right. Bnt it didn"t make its 'Yay into the complainto sir, so.I'mnot 2:oinrr to 'vmn' about it. 

### Irit's not inthe complaint, it's not m1 issue. So it's really not an issue. lundersrand the Government can certain1y c.lrop things from the notice ofproposed civil penalty and not makeitin the complaint In fact, thev dropped admittedly halftheirviolations in the complaint stage,
_ so thev initially alleged

**sL~** violations in2013, in the compiaintthere,'S-o!liv

**tl1ree~"~-~~~-~~~~·~,~~·~~-**

**·~·"~---~Sl\ ob~~~~~SJ~::·fu~fidvocacy**  

### was effective

### at some nointbecauseyouwere able to at least get some of 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 r

**~o**

2 3 4 5 6 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 

## 10/4/2016

those violations offthe table here_ So

-- okay. So 1hafs 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 ormentioned three otherbases. I'mnot go in£ (O lake argument Oil those issues today. ]"Illreally focused onlhe procedural issnes. whi-ch me at

**111~** vel}" !luesholdfor issnes Jlllder the regulations that go to whether lhe case exists or not. And thenwe can discuss more about il1e possible sanctions or otJ1er 1ltings clo,vn il1e road. But at lhis moment I am not goingto look at ilmt. I want to look at these threshold issues and get · tlmse oul dealt with, inmy opinion first. That's what



## rmlooking at So with !lmtllllderstanding, 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 saidis required under Rule ll to be strickeiL exactlyforthe san1e reasonthat t11e supposecCrespol,l5e to your motion-- I'm sony. to your orderto show cause should be stricken. And that is going to be an · indcpelldent

**isSue~** I guess, because the rules arereally

clear inRule l L t!Jat it has to be counsel ofrecord.

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 offactu<Jl allegutions made that arejustflat untrue.

**~** 

### Alldr.t'M:;:"ffalJ?eiTsllOl "ilJing to pnt her :;1mmture onthat and 1isk sanctjonf:.for telling, as

**sh~** calls them, misUuths, then I don'tthink thatit's reallv riilllt for a Respondent to have to deal ':rith an attorney \Vho is not ofrecord inthe 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
.. thefactthatlvls. Hmperhasbeen 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 herselftheresponse to notice I1 for showcause_ vou filed llwt _forher: and shehas no1 

## jJ appeared todav
_ Tills is a problem, Counsel. There needs

**t~~** 11

. someonefrom the F/\Awho is on this case and ready to 

# li prosecute this case, because rmproceectmu with this t

## I

,_,

**c!!s~J'**m

**m~**this casefonvard either}Yay. J\.nd !.: 1 , ifthe FAA 'vantsto not abandon this case. thev need to I! assign someoneto this case who is Qoine: to betaking 

### \! I. :I 

### 1! (Pages 41 to 44) 

## For The Record, Inc.

## Fisher Scientific Company, LLC

_ ___]]:?J!_jp__the case. 2 And ifMs. Hm-percan't take pmt in the case, 3 you needto think about who elseyou \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 forJvh·_ Cox's concems, 1will lake them l0 under advisement and I'H et1nsider \Vhether or not to 11 consider them. 12 ButI 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 RAWALD: Ihave rrot made anv rulings on 20

**~nv** motions at this point, sir. So \Vhat rm doing at Lhe 21 moment is I'm taking thesefir::.i hvo issues after 22 argument tmder advisement and I ·will work onissu-ing an 23
.oprmon. 24 I will then look atthe other issues you have 25 raised more intensely and decide ·whatto do about those

2 3 4 5 6 7 8 9 10 11 !2 !3 14 15 16 !7 18 19 20 11 22 23 24 25 46 lSSUCS.I do not planonhaving argument on those issues. bul ifI do. upon reyic>Ving themfurther, think additional briefing or argument necessary, I will letthe parties lmmv. No. l understmd yourposition on all three of those issues and I "illlook at them furtl1er and then decide \Ybat 

### rn do \Yilh them. I haven'tmade any decision yeL Mr. Cox, inthe short tem1. MR ELLIS: Your Honor'' Your Honor. llm·e a question. JUDGERAWALD: Yes_ MR. ELLIS: Will we receive a copy ofthis transcript"' JUDGE RAWALD: Well, so the transcript will come -Ithink it then gets passedto 1l1e docket but I'm not sure. But I will make sure that all parties receh·e a copy ofthe 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 1will go ahead and issue a written order regarding these two motions alone 3Jld then look at the otherthree issues further. I don "t thin1< there"s anything inthose_ despite :yourconceriL that will be worth my looking at before 1dispose of 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 11 22 23 24 25

2 3 4 5 6 7 8 9 Ill II 12 13 14 15 16 17 18 19 20 21 22 24 25 

# 10/4/2016

these n:vo Yery essential <:mel baseline issues thatneed to be dealt "\Yith. So, Ivlr. Cox, any further questions from me? lviR. COX: No. Just I vv-ant lo be clearthat you're going to:-- it'syourintention to hold in abeyancethe motion to strike and the motions to dismiss, including the motion to dismiss onmootness,

**beca~~e** of the five year statute oflimitations. You're going to decide upon the issue about whether lhe pleading meets the su±Iiciencv requirements before vou decide whetherthe case is mool in t11e first

. place. MR. ELLJS: How inthe world would !he-- rm

sorry. -+7

JUDGE RA.W'ALD: Yes. The reason why rmdoing that is because first ofall, you raised the issue Yery recently ofthe Government ham'thad a chance to brief it and I think also that I reall•{ ·want to deal \Vith this ye:rv baseline issue that exists inthe 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 canbe dismissed andresponses allowedby that answer. So I \Vant to get those squared away. And then 1w:illlook atyourne'iY issue you

**~ve** 48 raisedo m1d, ifnecess<:ny, askfor briellng: fi·om the Respondent

-- or, excuse me, the Complainant to respond to whatyou raised 1here, as far as Lhe three orthe fiye vear statute, sir. .MR. COX: As long as I u..r1derstand. 111a..nk you. .TIJDGE RAWALD: Okav. And so,Mr. Ellis,just so you understand, Mr. Cox did file something last week, raising the fact that there are several otherissues he thinks l11at the ca:)"e- needed to be dismissed because o( one ofwhich isa five vear statute oflimitations. I do askthal younot 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 RAWALD: 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 rulesrequire

__

the FAA to respondwitlrino I think- it's 1 Uda\" 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 ofevents 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. Ifyou take a close look

_ at fue regulations, they have to askvou 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 "''ailibriefing on the issue, notrig]1t now. So I

**-1~illlook** mo;e atyour

**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 RAWAl.D: Anything else for us to disctL;;;s? 13 (No response.) 14 JUDGERA\VALD: Okay. Atthispoint;let'sgo 15 ahead and- I appreciate everyonetalcing the time today 16 and givingme 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 Youknow _in a written 19 qpiiJimL.hm.v 1decide these two issuesand then \Vhat's the 20 next step ii1 this case. 21 So thank)'OU for your time and 1efs go ahead 22 and go offthe record. Thankyou. 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 theforegoing 50

5

**proceeding~** wererecorded by me via digital recording and 6 reduced to typewriting under my supervision; that I am 7 neithercounsel for, related 1o, noremployed by any of 8 the pmties to the action inwhich these proceedings were 9 transcribed; and fmi11er, that 1 am not a relative or I0 employee ofany attorney orcounsel employed by the ll pari:ics hereto, norfinancially orothern•ise interested 12 in the outcome of the action. 13 14 !5 l6 17 18 19 20 2l 22 23 24 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 ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 (Civil Penalty Action) Judge Rawald



### ERRATA FOR OCTOBER4, 2016, PRETRIAL [SIC, PREHEARING] CONFERENCE

1. In the title, delete "pretrial" and insertin lieu thereof"pre· hearing." 2. The transcript does not, but should, include the undersigned's objection,justbefore 10:12 a.m., to proceeding with the hearing after agency counsel ofrecord failed to appear. 3. On p. 5, line 2, delete "admit" and insertin lieu thereof"dismiss." 4. On p. 9, line 10, delete "thoughts" and insert in lieu thereof "formerboss." 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," insertthe word "not."U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

FEDERALAVIATION ADMINISTRATION, } 

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

### Respondent. } Inthe Matter ofFisher Scientific Company, LLC Docket No. FAA-2015-1321 (Civil Penalty Action) Judge Rawald

AMENDED BRIEF IN SUPPORT OF RESPONDENT'S INTERLOCUTORYAPPEAL OF RIGHT Respondent Fisher Scientific Company, LLC, a subsidiary ofThermo Fisher Scientific, Inc., (hereinafter referred to as "Fisher") hereby appeals to the FAA decision-maker pursuantthe 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 inthe 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 ofits Appeal, Fisher states the following: QUESTIONPRESENTED Must the Complaint in a civilpenalty action be dismissed with prejudice when agency counsel, by consistently failing to participate inthe proceedings, ignoring multiple ALJ Orders and failing without excuse to appear at a pre-hearing conference ordered by the ALJ, has constructively withdrawnthe Complaint?

### PURPOSE AND STANDARD OF REVIEWFOR THE APPEAL FAA long ago established the "interlocutory appeal ofright" to help the Administrator prevent agency counsel, a private party respondent or anALJfrom wasting public and private resources on administrative litigation where, as a matter oflaw, one side or the other has failed to participate inthe 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 pertinentpart, as follows: "Aparty may file an interlocutory appeal
... without the consent of the administrative lawjudge
... inthe case of
... (2)failure ofthe administrative lawjudge to dismiss the proceedings in accordance with 

### § 13.215
...." (Emphasis supplied.) The plain language ofthe 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 notjustparties butalso an ALJfrom allowing wasteful litigation to proceed. That is why Rule 219 also specifically provides that, when the ALJ'sreceives a Notice ofAppeal, "theproceedings are stayeduntil 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 ofsodinm hydroxide solution (co=only known as "lye") by air five-and-a-halfyears 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, inpertinent part, that the lye was packaged in some respect that violated the Hazardous Materials Regulations ("HMRs")?

1Federal Aviation Adminisn·ation, "Rules ofPractice for FAA Civil Penalty Actions," Final Rule, 55 Fed. Reg. 27548,27567-68 (July 3, 1990) ("Final Rule"), codifiedat 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 ofrespondents." See also FAA, "Rules ofPractice for Civil Penalty Actions," Notice ofProposed 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 itselfwhether 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 ofRight 2Fisher promptly moved to dismiss the Complaint based, inpart, on agency counsel's failure to lodge at least one ofthe key allegations withinthe two-year time limit established by FAA Rule 208.4 Agency counsel ofrecord 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 anAnswer- 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 inthe Regional Counsel's office to return multiple phone calls and emails, agency counsel ofrecord, Michelle Harper, Esq., fmally phoned to say she was unable to answer even the most basic questions about the substance ofthe case because she had not looked atthe file inyears. 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 ofthe ALJ's demand.7 Instead ofdismissing the Complaint, the ALJ issued a Show Cause Orderthat stated an unequivocal threat: the Complaint would be considered "constmctively withdrawn" unless agency counsel filed "a statement explaining the cause oftheir 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 providethe informationto be included inthe Repmt required by the Apri16 Order. 9 Someone whose name is not typewritten onthe document submitted a two-page purported third-hand account ofa conversationbetween Ms. Harper and the undersigned, but the agency counsel of record did not sign the document. Failure to sign and thereby certifY the tmthfulness ofthe factual representation presented inthe purportedresponse to the Show Cause Orderviolated

4 Motion to Dismiss Complaint for Violation ofRule 208 (June 23, 2015) (Exhibit 2). 5 Agency counsel filed a late request for an extension oftime -from 10 days to nearlytwo months- to reply to the Motion to Dismiss but offered no excuse for their late filing ofthe request and did not state anygrounds acceptable under FAA rules for grantingit. Opposition to Extension at 2 (July 7, 2015) (Exhibit 3). In complete disregard ofcontrolling Rules, the AL]- at thattime, 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 Briefonly for the purpose ofshowing that it was never signed by agency counsel of record. 

### Respondent's Appeal ofRight 

### 3Federal Rule ofCivil Procedure II(a), whichprovides, in pertinentpart, that any unsigned "pleading
... and other paper must be signed by at least one attorney ofrecord" and that failure to "promptly correct" an unsigned paper after the omissionhas been called to the party's attention leads to a single, mandatory sanction: "the court muststrike an unsigned paper" (emphasis supplied). FAARule 207 even more explicitly bans recognition ofunsigned filings. It provides thatthe "attorney of record
... shall sign each document tendered for filing with the hearing docket clerk, the administrative lawjudge, the FAA decision-maker on appeal or served on each party" (emphasis supplied). Respondentpointed outthis failure and, for the third time, d . "' d.

. alto move agam1or JSnnss
. Instead ofdismissing 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 SouthernRegional 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 ofSouthern Regional Counsel to answer the phone. He fmally rounded up an attorney who was not counsel ofrecord. The undersigned immediately objected to any hearing onthe matter after agency counsel of record had once again constructively withdrawnthe Complaint11 butthe ALJ, without explanation, insisted on proceeding. He started by asking why counsel ofrecord, 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 preparedto participate inthe hearing. The attorney replied, "I am notprepared
...." 13
Over Respondent's repeated objections, the ALJ insisted on prosecuting the matter himself whether FAA tookpart inthe case or not. 14 Judge Rawald admitted there were multiple reasons to consider the Complaint to have been withdrawn. He noted that FAA counsel ofrecord "has beennoticeably 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 herselfthe 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'mproceeding with this case, I'm moving this case forward either wey." 15

10 See Exhibit 8. 11 Errata for Transcript ofPre-Hearing Conference ("Tr. Errata") (October 4, 20 16) (Exhibit 11). 12 Transcript ofPretrial [sic, Pre-Hearing] Conference ("Tr.") (October 4, 2016) (Exhibit 10) at 2-3. Under FAA Rule 219(d), Respondent's Appeal Briefwas due within 10 days ofthe ALl's ruling that the case will go forward. The Office ofHearings 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 ofRight 4At the conclusion ofthe hearing, the undersigned objected once again and asked for immediate consideration ofRespondent's motionto 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 CRITERIAFORRECOGNIZING A "CONSTRUCTIVE WITHDRAWAL" OF A RESPONDENT'S REQUEST FORA HEARING MUST BE APPLIED EQUALLY TO THE GOVERNMENT'S "CONSTRUCTIVE WITHDRAWAL" OF A COMPLAINT. TI1e Administrative Procedure Act, 5 U.S.C. § 551 etseq., forbids FAA to adjudicate the imposition ofa civil penalty on a private party Respondent without first affording an opportunity for a fair hearing on the merits ofthe agency's allegations. For years, private parties have complained that FAA's civil penalty procedures are not only unfair, but in plain violation ofdue process rights guaranteed under the Fifth Amendmentto 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 notfile interlocutory appeals; only FAA counsel could. Agency counsel were free to drag cases out long enough to make it difficult to "defend againstthe 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 ofseparation 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 Afterjudicial intervention in the late 1980s, FAA adopted the Rules ofPractice that govemtoday to address criticism that the prior rules were "inadequate to ensure a system ofadjudication 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 at275 51. 20 ld. at 27550. Respondent's Appeal ofRight 5The outcome ofthe instant appeal will indicate whether FAAis 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 cantake a "fiTe-and-forget" approachto prosecuting a civilpenalty case. More specifically, denial ofthis appeal would establish one set ofrules for "constructive withdrawal" ofa private party Respondent's Request for a Hearing and a policy ofnot applying the same standards to agency counsel's conductto the point of immunizing them against a fmding that they "constructively withdrew" a Complaint. Over many years, ALJs have repeatedly used the failure ofa 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 ofconstructive withdrawal, especially in connection withhis April, 2016, mass mailing ofOrders to Meet and Conferto parties in cases on his docket. When a party, in defiance ofthe ALI's Order to Meet and Confer, failed to communicate with opposing counsel and put them inthe position ofhaving 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 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 fm a hearing
... the administrative lawjudge 

### shall dismiss the case withprejudice."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, inparticular, seems to have concluded that the government is exemptfrom requirements to participate in an adrninistTative process that they instigated by filing a Complaint.

II. AGENCY COUNSEL "CONSTRUCTIVELYWITHDREW" FAA's COMPLAINT. In the cases referenced above, Judge Rawald recited the following fact pattern tojustifY dismissal ofRespondents' request for a hearing:

21 See, e.g., Matter of Bonanza ValleyAviation, 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 ButteAviation, 2004 WL 350392 (failure to file Answer is "constructive withdrawal ofthe request for a hearing"). 22 See, e.g., Matter of ChristopherMcCann, 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 24McCann at 2, n.3; !XL at 1, n.3 (emphasis supplied). 25 McCann at 2; JXL at 2 (emphasis supplied). 

### Respondent's Appeal ofRight 61. Respondentrequested a hearing. 2. Respondent was served with a Meet and Confer Order and an Orderto Show Cause. 3. Respondent failed to comply with the Meet and Confer Order. 4. Respondent was "advised in the Orderto 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 ofthe Respondent's request for a hearing." InRespondent 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 ofrecord failed to "file a statement explaining the cause oftheir 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 counsel submitted was not signed or certified by counsel ofrecord and must be stricken from the record under FRCP 

### 11(a) and FAA Rule 207. 7. Counsel ofrecord 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 ofthe Complaint. Ifthe FAA decision-maker rejects the instant Appeal and finds that such a constant lack ofparticipation by agency counselas enumerated by the ALJ himself 26

- does not necessitate a finding ofconstructive withdrawal ofa Complaint, agency counsel may bejustified in considering themselves immune from dismissal. In effect, rejection ofthe 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 explainhow such disparate treatment comports with constitutional guarantees of due process. Similarly, among the regulated community,this precedent surely will create the impression ofa 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 ofRight 7

### lll UPONWITHDRAWAL 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. Ifan agency attorney withdraws the complaint
... the administrative lawjudge shall dismiss theproceedings
... 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 ignoringthe Orderto 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
... withprejudice." WHEREFORE, Respondent respectfully requests the agency decision-maker to immediately dismiss the Complaint withprejudice. Dated: November 25, 2016



### Respondent's Appeal ofRight 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) ofservice at least one copy ofthe foregoing Notice oneach ofthe persons listed below. 

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

### 0 [Original + OneCopy 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 ofTransportation Federal Aviation Administration Southern Region 1701 ColumbiaAve. College Park, GA 30337



### Respondent's Appeal 

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

### 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 2Wl000 

### 00 [One Copy by U.S. Mail] Ryan M. Landers, Esq. Senior Attorney Enforcement Division, Southern Team U.S. Department ofTransportation Federal Aviation Administration SouthernRegion P.O. Box 20636 Atlanta, GA 30320

9

# Exhibit 1

### U.S. DEPA...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 ofthe 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 ofProposed 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 ofthe 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 ofhazardous material for transportation by air and failed to use a means ofcontaining the liquid in the form ofa leakproofliner, plastic bag or 

### other equally efficient means ofcontainment 

### 8. Fisher offered the shipment ofhazardous materials for transportation by air and failed to package it so there would be no identifiable release ofhazardous material to the environment 9. Fisher offered the shipment ofhazardous materials for transportation by air and failed to ensure the closure was secure and leakproof 10. By reason ofthe above, Fisher violated the following Department ofTransportation Hazardous Materials Regulations (Title 49 ofthe Code ofFederal 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 ofhazardous 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 ofhazardous 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 aleakproof 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 ofTransportation Hazardous Materials Regulations. Under the facts and circumstances of this case, a civil penalty of $5,850 is appropriate. This amount includes consideration ofthe 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 ofthe 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 ifappropriate, not later than 30 days after the date shown on the Certificate ofService 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. } } } Inthe Matter ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 } (Civil Penalty Action) 

### FISHERSCffiN'fiFXC COMJP'ANY, lLLC, Respondent. } } Judge Goodwin



### MOTIONS TO l!nSMI§§ COMPlLAifNT FORXNSUFJFICffiNCY AND FOR COMPLAINANT'S VIOLATIION OJF RVLE 208
Respondent Fisher Scientific Company, LLC, a subsidiary ofThermoFisher Scientific, Inc., (hereinafter referred to as "Fisher") moves to dismiss the Complaint inthe above-captioned civil penalty proceeding onthe 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 thanthree years after the alleged incident, the Complaint violates Rule 208(d) ofthe Federal Aviation Administration's (hereinafter "FAA's" or "the Agency's") Rules ofPractice ("Rules"). FAA's SouthernRegional 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, whenFisher shlpped a single liter ofa cmTosive liquid commonly known as lye. First, Regional Counsel alleges that Respondent "knowingly offered ... a ... shipment ... containinghazardous materials for transportation by air." CompL 

### 'If L Second, Regional Counsel claims Respondent "violatedthe ... hazardous materials regulations" ("H.MRs") because it "failedto ensure that [the bottle oflyewas] ... packagedwithabsorbent materials ...." CompL 

### 'If lO.c.

### Respondent'sIV!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), 

### codifiedas amendedat 49 U.S.C. § 

### 5123(a)(1) (2011), allows the Governmentto impose a civil penalty upon a "personwho 

### knowingly committedan actwhich is
aviolation of'the HMRs 

### (emphasis supplied). A later recodification made a non-substantive, editorial change. 

### Itreworded the sentence to say the Government may impose a civilpenalty on a "personthat knowingly violates" the HMRs. Nowhere in the Complaint does Regional COlmsel allege that Fisher "knowingly" committed any act which is a violation ofany

**li~.** 

### It merely states that Respondent "lmowingly offered" a declared shipment ofhazardous materials.
There are other, more specific allegations inthe Complaint, but none ofthem allege a "knowing" violation. In

### the example referenced above, Regional Counsel claims Respondent "violated" 49 C.F.R. § 

### 173.27(e), butthere 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 exemptfrom the specificationpacka_,aing requirements and otherwise fully complied with all 

### applicable HMRs. 

### However, even ifone 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), 

### codifiedat49 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 aviolation of'that
or some other HMR. As explaioed in greater detail in Respondent's Memorandum io Support ofthe Motions to Dismiss, the statutory language goveming the instant civil penalty proceeding is plain and tmambiguous. Even ifthere were some reason to consider it ambiguous, the legislative history ofclauses (A) and (B), 

### which were added by the HMTUSA, leave no doubt that Congress adopted anew definition ofthe term "lmowingly" for the specific purpose ofprohibiting the Government from imposing a civil penalty in a case involving transportation ofhazardous materials unless it can show thatthe Respondent had 

### aciual knowledge that its act or omission violated the HMRs 

### orthat its noncompliance resulted from some specific act of

### negligence on the part ofthe Respondent. Accordingly, the Complaint fails to state aviolation ofthe federal hazardous materials transportation statute or regulations and must be dismissed for insufficiency pursuant to Rule 218, 14 C.F.R. § 13.218(£)(1).

2Respondent'sMotion to Dismiss

Motionto Dismiss for Asserting a Claim About Which the Govemment Failed to Give Timely Notice As noted above, Regional Counsel asserts, among other claims, thatRespondent "violated the
___ hazardous materials regulations" because it "failed to ensure that [the bottle oflyewas]
___ packaged with absorbentmaterials
___." The HMRs imposed no suchrequirement onthe shipment atissue inthis case, buteven ifone were to assume thatthere was a requirement for packaging the subject limited quantity oflye with absorbentmaterials, Regional Counsel was obligated to give timely notice thatthe Government planned to base its Complaint on such a claim. FAA served aNotice ofProposed Civil Penalty ("theNotice") onJuly 3, 2013. During an Informal Conference, Respondent pointed outto Regional Counsel that the Notice was expost facto, based almost entirely onHlVIRs that were not in effect in July, 2011, when Fisher shipped the subjectpackage. The Notice containedno allegationwhatsoeverthat Respondent was obligated to include "absorbent materials" orthat Fisher failedto do so whenitpackaged the lye. Infact, this Notice did not even mention "absorbent materials." The firstNotice ofthis claim
was served not withintwo years, as required, but more than threeyears after the alleged incident, inFAA's Amended Notice ofProposed Civil Penalty ("the AmendedNotice") dated July 24,2014. il.mended

**Notice~** 

### f.
Rule 208(d)(2) ofF AA's Rules provides, inpertinentpart, thatthejudge "may dismiss the complaint orthat part ofthe complaint alleging a violation that occurred more than nvo years before an agency attorney issuedthenotice ofproposed civilpenalty" 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 inthe dark for
more than three years about the Agency's intended allegations. Toreward Regional Counsel's failure to give timely notice 

### by allowing this case to proceed would defeatthe stated purposes and policies ofRule 208, grossly prejudice Respondent's opp01tunity to defenditselfand constitute a denial ofRespondent's due process rights undertbe U.S. Constitution. 

### WHEREFORE, Respondent respectfully moves to dismiss the Complaint onthe following two independent grounds: fn·st, for insufficiency pursuantto 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). Evenifthe Complaintis not dismissed ouuight on accmmt ofRegional Counsel's violation of Rule 208, that p01tion ofthe Complaint alleging a failure by Respondentto include "absorbent materials" in the packagingfor the subject materials (i.e., 

### all of**Complaint~** lO.c.) should be su-icken, as alternatively provided inRule 208( d).

3Respondent'sMotion to Dismiss


### Respondent recognizes the importance ofthe issues presented in 

### this case to hazardous materials civil penalty cases in general andrespectfully requests an opportunityto present oral argument in 

### person onthese 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 3U.S. DEP AR'flYillNT OF TRAl"\JSPORTATION

OFFICE OF HEARINGS WASHINGTON, DC 

# F1ECEi\/E[) JUL

- S2015

FEDERA_L AVI..41I'ION ADMINISTRATION, } Complainant,

v. Fli.SHER SCIENTIFIC COMP

## AT'•r-u, LLC, Respondent. } }

., f 

### In the Matter ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 } (Civil Penalty Action) } Judge Good·win }



### RESPONDENT'S OPPOSliTION TO COMPLAINANT'S MOTION FOR

### EXTENSION Respondent Fisher Scientific Company, LLC, {nereinafterreferred to as "Fisher") moved on June 23,2015, to dismiss the Complaint inthe above-captioned civilpenalty proceedingbecause the Complaint fails to state a "!mowing" violation for '.vhich a civil pena!ry canbe imposed and included allegations that were out-of-time and inviolation oft.he Federal Aviation Adminisrration's (hereinafter "FA.A's" or"the Agency's'') Rules ofPractice ("Rules"). Instead offiling a tirneiy response permittedby Rule 13 .218(d), FANs South em Regional Counsel ("Regional Colmsel") moved for ai1 "Extention [sic, Extension] to File Response." Regional Counsel failed evento allege thepresence ofany grounds to grant such a motion cognizable underRule 13.213(b) and otherwise failed to adhere to other applicable Rules. Accordingly, Complainant's Motion cannot lawfully be granted andRegional Counsel mustbe consideredto have waived FAf<_'s opportunity to respond to Respondent's Motions to Dismiss. Rule 13.213(b) is clear. f..B 1vith any other party, anFAA "motion for an extension oftime" must be filed withthejudge "notlater 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. Ajudge has authority essentially to waive this seven-day requirement only if"good cause for the late filing is shown." Nowhere in Regional Counsel's Motionis there so much as a naked asse1tion that FAA had "good cause" to file zero days ahead ofthe due date instead ofseven days ahead, as unequivocally required under the Rules. In any case, the Rules allow ajudgeto 

### gra.TJ.t an ex1:ension oftime to respondto a Motionto Dismiss only 

### "ifgood cause for the extension is shown." Once again, Regional Cotmsel failedRespondent's Opposition to iWotionforExtension

even to include so much as a declarative statementthat such grounds exist. The Motion states that FAA desires "an extension in order to effectivelyrespond [sic]." It does not even suggest there are any special circumstances or any other reasons whatsoeverto conclude that the time otherwise allowed by the Rules was inadequate. Absent those circumstances, the Motion for Extension would have failed even ifit had beentin:tely filed. Regional Counsel goes on to claim that Fisher will not be "prejudiced by a:t1 extension." This statement is false but, even ifit were true, it does not constitute "good cause" for pem1itting FAA to ignore the seven-day advance filing rule for its Motionfor 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 ofan affirmative sho·wing why the requested extension is necessary. Regional Counsel's Motion is merely the latest example ofhow FAA's handling ofthis matter has prejudiced Fisher's ability to defend against the Complaint. The alleged incident occlmed in July, 2011. FAA did not file any Notice inthe matteruntil July, 2013. ThatNotice made no allegation whatsoeverthat Fisherfailed to employ a particular type ofpackaging product. FA.A. filed another Notice in July, 2014, more than threeyears after the alleged incident, which is based almost entirely on the previously missing allegation about packaging. FAA then waited until June, 2015

**~almost** fouryears after the event

**~to** file its Complaint. When Fisher moved to dismiss the Complaint in panbecause 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 fouryears after the event. Meanwhile, FAAhas overseen or pemlittedthe destruction ofcrucial evidence. Ifthis case eventualiy goes to a hearing, witnesses onboth sides poten1ially will be required to rely on nothing more thanfaded recollections. WHEREFORE, Respondent prays that Regional Colmsel's Jllotion for Extensionbe 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

DocketNo. FAA-2015-1321 Fisher Scientific Company, LLC 

### ) ) 

### ) ) ) Case No. 2011S0700457 Respondent
ORDERDIRECTING THE PARTJIES TO MEET AND CONFERREGARDING LITIGATION AND SCHEDULING ISSUES
The above captioned case was reassigned to the undersignedjudge onMarch 24, 2016. By order ofthe ChiefAdministrative Law Judge, any previously established date for a prehearing conference ortrial was suspended. Those dates are nowvacated and there is a need to establish a
new litigation schedule for this case. To assist the undersignedjudge, the parties should meet and confer to propose a mutually agreeable schedule. 

### An administrative lawjudge mayhold conferences to, among otherthings, "settle [or] simplifythe issues by consent ofthe parties." 1 Pursuantto 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 ajointreport providing:
a. a suggestedvenue, b. a proposed schedule for the completion ofdiscovery (or an indicationthat discovery is complete), c. a list ofany pendingmotions that have beenpreviously filed buthave yet to be ruled upon, d. a proposed date for a telephonic prehearing conference withthe undersigned judge,

1 14 C.F.R. § 13.205.e. a proposed due date for the filing ofany prehearing motions (including a proposed date for a telephonic hearing on any filed motions, ifso 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 undersignedjudge atthe Office ofHearings by fax, express catrier, or personal delivery


### no later than 3() calendar days after the date ofservice ofthis 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/tPJINGS WA§Ji3[[LiJG1'0N, I!lC

JFEiiERAIL AVJATION AI!llV!Jll'ITS'fPJ.iTION, } Complainant, } } 

### v_ } In the Matter ofFisher Scientific Company. LLC DocketNo. 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 ofthe 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 "alist of any pending motions that have been previously filed buthave yet to be ruled upon." Fisher regrets to report thatFi\A_ counsel essentially went "AWOL" and thwarted Fisher's diligent efforts to respond to the Order with a Ioint Report. Fisher's undersigned counsel telephoned the FAA. attorney identified onthe 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 neverreturned 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 handlingthe case, even though FAA never updatedthe service list. On April 20, Ms. lv!ichelle Harper phoned to say she was the attorney responsible forFi\A_'s compliancewith the Order. She asked Fisher's counsel to prepare a draft JointReport, whichtl1e undersigned emailed to her a few minutes later. Fisherrequested that she either concurwith the**dru~** and sign 

### it or suggest any edits she thought appropriate. Ms. Harper did neither.Reportof Fisher Scientific
A weeklater, on April27, the Ulldersigned phoned Ms. Harperbut, once again, she did not answer hertelephone. Fisher's counsel left a voicemail reminding herthatFisherwas determined to comply with the Orderbut- 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 forfinalizing and mailing the Joint Report- theundersigned telephoned Ms. Harper again, but she did not answer her telephone. Fisher's counsel indicated in a voice mail that ifFAA continued to ignore the proposed draft ofthe Joint Report, Fisher would have no choice butto 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 ofthe April 6 Order isjustthe latest chapterin a five-year history of the Office ofSouthern Regional Counsel dragging its feet and utterly ignoring applicable laws and Rules ofPractice. Tltis case arises from an alleged incident that occurred five years ago, on July 21,2011. FAA waiteduntil days before 

### t..he statute oflimitations expired and filed a Notice ofProposed Civil Penalty in July, 2013. AJ'terFisherpointed out that theNotice was based on regulatory requirements thatwere 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. FAAwaited almost anotheryear, lli'ltil June, 2015, to file its Complaint. On June 23, 2015_ RespondentFisher filed a Motion to Dismiss the Complaintfor legal insufficiency and for being barred by the statute oflimitations. The FAY,'s own Rules ofPractice allowed FAA 10 days to oppose Fisher's Motion to Dismiss, but the agency did notfile 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 getthJs fu!cient case offthe docket would be to order SouthernRegional Counsel to SHOW CAUSE why dismissal should not be ordered on one ormore ofthe 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 ofPractice for the reasons stated inRespondent's Opposition to FAA's Motion for Extension.) 3. FkA.'s decision to wait more than three years after the alleged incident and morethan a year after the statute oflimitations expired to lodge crucial allegations in the A..inended Notice. (Respondent's Memorandum in Support and its December 21, 2015, Reply to FkA.'s Memorandum in Opposition, an additional copy ofwhich is attached, explain in detBjl why the case is barred as out-of-time.)

2Reportof FisherScientific
4. FA.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'sMemorandum. WHEREFORE, Respondent respectfully requests the Judge to command Agency respectfor his Orders &""ld for the substantive and procedural laws underlying the above-captioned case by DISMISSll'JGwith prejudiceFAA's Complaint. Respondent reiterates its requestfor 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

### InThe 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


### ORDERTO SHOW CAUSE AND PROVIDE REQUESTED lLl"lFORlVL.O..TKON OnApril 6, 2016, the undersignedjudge issued 8.1"1 OrderDirecting 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 ajointreport to the \llldersignedjudge 

### within 30 days 

### of that order. On April30, 2016, the Respondent filed a unilateral report, stating thathis 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 lawjudge is empoweredto regulate the course ofa hearing. As previouslynoted by the FAA Administrator: [t)he Administrator expects that the parties will comply with orders issued by an AU dlll"ing the hearing stage ofaproceeding. Ignoring an ALTs orders cannot be cmmtena11ced in an orderly system ofadjudication.J The pmties are therefore remindedthat tailure to follow the undersigned administrative law judge's orders

**,.~;ithout** good cause may result in sanctions4 Moreover, continued failure to

1 Respondem failed, however. to provide allthe information requested inthe April 6, 2016 Meet and Confer Order. 2 Counsel for the Complainant l1led a notice ofappearance onMay 10, 2016, but failed to include the information requiredby 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 aresponse to the April 6, 2016 Meet and Confer Order. 3 AmericanAirlines, Inc., FAA OrderNo. 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 ofPractice that the ALI imposes against apany for that behavior.''). ' .. ;:::::;

## participate inthe proceedings as directed bythe undersignedjudge maybe deemed a constructive withdrawal ofthe requestforhearing or complaint by the party demonstrating such

a lack ofinterest inparticipating 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 intcmnationrequested 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 '"liththe OrderDirecting the Parties to !Vleet a11d Confer Regarding Litigation and Scheduling Issues. 

### 3. The Complainant shall include 

### in their statementthe infmn1ation requested inthe Order Directing the Parties to Meetand Confer Regarding Litigation and Scheduling Issues. 

### 4. Ifthe Complainant fails to file this statement bythe above deadline, the undersigned judge may issue a subsequent order finding the Complainanthas constructively -vvithdrawn fromthese proceedings and, pursuantto 

### 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 Powei' Supply, DocketNo. CPOl SOOO 15 (FAAAug. 7, 2001) (.A.LJ constmed Respondent's silence
as a conshuctive witlrdrawal ofrequest for a hearing), appeal dismissed. FAA OrderNo. 2002-10 (Apr. 17, 2002); Blankson, DocketNo. CP97EA0024 (FAA Sep. 11, 1997) (ALJ found faiiure to respondto previous orders constitutedconsn·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);ApolloA & HS Company, FAA Order No. 2011-4 1 at 4 

### (Jan. 14, 20ll) 

### ("Apollo's failure to appear anlle 

### hearing and to pursue its request for hearing withoutgood cause constituted ac-onstructiv·e \Vitbdra\val ofjts requestfur 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 ofthe 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 thejudge'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 ofMay, 2016.



## ~c;7 

# £f£;S/ /hfliiJ-/is 

### fi-//,.-/ley 

# fn ANDREA MICHELLE HARPER Senior Attorney Office ofthe ChiefCounsel Enforcement Division, Southern Team



### 2

# Exhibit 8U.§. DElt'AR.'IMENT OF '][']RANSI'ORTAHON OFF!ICE OF lRI !(AJP'JNG§ WA§mNIGTON, DC FEDERALAVTlA'IliON ADMINJ§TRA'Il!ON, } . '"i 

### Complainant, } } v. } In theMatter ofFisher Scientific Company, LLC DocketNo. 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 ofu'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 oflyefive 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 ofthe Hazardous Materials Regulations ("ffil!l:Rs"). Fisherparticipatedin two "informal conferences" ("ICs") with Regional CounseL Duringthe first IC, on July 16,2014, Fisher explained that the boilerplate Notice ofProposed Civil Penalty ("NOPCP") thatRegional Counsel served July 3, 2013, included downrightbizarre factual allegations and was based entirely on 1-'J.VIRs thatwere notin effect on July 21,2011, the date of the alleged incident_ More specifically, Fisher pointed outto Regional Counsel during the 2013 IC thatthevolume oflyebeing shipped (just one liter) was so small, the shipmentwas a "limited quantity" ("LQ") thatwas exempt from certain packaging and otherrequirements that would otherwise have applied. Regional Counsel wrote the NO PCP in 2013, after themaximum volume for an LQ oflye decreased to one-halfliter, butthe change inthe 1-lJ:\I!Rs was not and could notbe retroactive to a shipment in 2011.
More than a yearlater, on July 24, 2014, Regional Counsel served an AmendedNotice of Proposed Civil Penalty (".A_NOPCP") that dropped allegations in the first Noticebut added aReportandRep{vof Respmuient

**~4fsher**Scientific completely new claim that, whenFisher prepared the subject shipment, it was somehow required to stuffthe packaging with "absorbent material." J\line months later, on April22, 2015, Regional Counsel convened another IC withFisher's senior in-house counsel and top hazardous materials transportation managers on the line. Respondent's counsel pointed outthat, in addition to relying on BivfRs that were notin effect at the time ofthe alleged incident, this brand-new claim was time-barred because itwas lodged morethan a year after the applicable two-year statute of limitations passed. Respondent's counsel also asked then-Regional Counsel ofrecord, Will Vines, Esq., to explain why FAA refused to acceptthat the LQ Exemption covered the subject shipment. Mr. Vines stammered for halfa 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 Directingthe 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 foilowing day, Mr. Vines advised by email that a differentFAA attorney, whom heidentified 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 conversationlasted 20 minutes (Attachment 1 ). It covered the follovving topics: 

### (l) personal introductions; (2) Judge Rawald's April 6 Order; (3) the content ofthe Joint Report to be filed in responseto the April 6 Order; (4) Respondent's Motion toDismiss the Complaint; and (5) Respondent's requestto 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 ofthe conversation. On 

### Topic 2, counsel mutually agreed that itwas impossible to lr..now whether any discovery or hearing would be needed, much less to propose dates for such additional proceedings, becauseFisher's Motionto Dismiss would be dispositive ofthe entire case. On 

### Topk 3, Respondent's counsel agreed to prepare a draft Joint Reportto that effect and FAA's counsel agreed to review it, to offer any needed edits at<d sign it ifno edits were needed. Under Topic 4, FAA asserted that the Motion to Dismiss should be denied; Respondent's counsel explained why the Motion toDismiss should begranted.

2Reportm;dReply of RespondentFisherScimztific Approximately 18 minutes into this 20-minute conversation, Respondent's counsel brought up 

### Topk5. That part ofthe conversation, which is reproduced below in its entirety and as close to verbatim as possible, went as follows:
MR. Cox: You know, 

### itwoufdreally be a shame to insist 

### tlwitheJudge 

### mustdecide 

### the Motion toDismiss amlallow theproceedings to go forward

## if you

### willhave no case topresent


### on the merits. We asked Vlill Vines more 

### tht.m onceto explain

### why theshipmentwas not exemptunder theLimited Quantiyt

### Exemption Can

### youplease explain thatone

### to me? lvfs. hARPER (CHUCKLlNG): I haven'tlookedatthat file inyears.
MR. Cox: Maybe this wouidbea goodtimeto do tkat.

**M~s.** HARPER: 01(, l'lllook mitandgetbacktoyou in the fi;sthalf of nextweek.
This portion ofthe conversation lasted approximately two minutes. Immediately after the April20 conversation, Respondent's counsel sent a draftJointReportfor Ms. Harper's review, edits and signa..ture. Ms. Harper failed to respond. After hearing nothing from FAAfor another week, on April 27, the undersignedphoned Ms. Harperto urge herto sign
or suggest changes to the proposed JointReport. She didnot answerherphone. She did not return the call. Two days later, on April 29 (see Attach.;nent l, entry for two-minute call to Atlanta), as theJudge's deadlinefor submitting the JointReport loomed, the undersigned telephoned Ms. Harper again, leavingthe following voice message, reproduced here verbatim:
MR. Cox: This isJerry Coxwith Thernw Fisher inDC. 1 sentyou a draftJointReport on April20 butnever heardlmck fromyou. We're up againsttlte deadline, so I'mgoing to witJulrmv tlte draftJointReportand Tile;mc Fish._<T

### willJzm'e to file its ownReport. Feel free to calline whenyou llYepreparedto discM-ss the case. Accordingly, on April30,Respondentfiled aunilateral Report and movedfor sanctions against FA 

### ..A for ignoring the Judge's April 6 Order. F

### />..A filed no Report ofits 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-AAto show causewhyithas not "constructively withdrawn" its Complaint and the why theJudge should not "dismiss the case with prejudice." Orderto Show Cause at2.

3ReportandRepl_J' of RespondentFisher Scientific 

### L-1 its Response to the Show Cause Order, F

### P.J'L equivocated about whetherMs. Harper received Respondent's voice messages and argued t.hat, even ifshe heard but chose to ignore them, Respondent could have simply indicated to the Judge that she "agreed with the position articulated, evenwithout [her] signature." Complainant's Response to Show Cause

**Order,~~** 5 and 6. Despite repeated efforts, however, the undersigned had no way to know whetherFAA had even receivedthe draft Joint Report, much less whether

### Ms. Harper approved it. FAAtoldthe Judge thatMs. 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 "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 mistruths [sic]" (id.,

**~** 

### 6). The undersigned is not entirely sure what a "mistruth" is, but he wouldbe willing to sign an affidavitthat each and every averment he has made to the Judge was true and correct ai1d in full compliance with Rule 11 ofthe Federal Rules ofCivil Procedure ("FRCP") and professional ethics requirements relatingto candorbefore a tribunal. Itis forthe Judge to determine whether a 20 minute phone call, only two minutes ofwhich was devoted to the merits ofthe case, and which Complainant's counsel cut short because she hadn'tbothered to read the file, was anything resembling a "thorough discussion." By contrast, it speaks volumes thatMs. 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 papermust be signed by at least one attorney ofrecord
... [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 ofthe person's knowledge
... factual contentions have evidentiary support ...." Sanctions may be imposed on the "attorney
... or party," FRCP ll(c). Unless Ff\Juecants quickly, Respondent plans to movefor such sanctions because Ms. Hmper's statementto the Judge that "the parties did indeed meet and con:fer [and] had a thorough discussion ofthe underlying facts ofthe case

...."is both highly material and plainly false. B&Jlort to Judge Rawald inResponseto the Orders to ProvideRequested Information 

### In his June 2 Order, Judge Rawald admonished Respondent to "file a Report including all oftl1e information requested in the OrderDirecting 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

4ReportaildRep{vof RespondentFisher Scientific completion ofdiscovery," proposed dates for preheating conferences, filing ofpreheating motions and hefu-ing dates. Order to Meet and Confer at 1-2. Unfortunately, because FAAhas steadfastly avoided meetingwith Respondent orparticipating in any sort ofsubstantive discussion- even after the undersigned made additional telephone requests to Ms. Harper on May 31 and June 3, Respondent can only guess whatthe issues would be, much less what discovery would be needed to address them, how long 

### it would take to complete such discovery
or whatwitnesses would need tobe called. With that said, Respondent provides below, to the greatest extentinformation is available at the moment, the following informationrequested bythe numbered portions ofthe April 6 Order. Respondent's responsive information is presented L,, italics:

1. The parties shall privately conduct aninformal conference to meaningfully discuss litigation issues andproposed scheduling. 

### RESPONDENT'S REPLY FAA rebuffedmultiple requests from Respondent's counsel for a meetjng, startjngonApril 15, 2016, on the grounds that ithasbeenyearssince Regional Counsel has read thefile. This has made 

### it impossible for Respondent to address with FAA either litigation issues orproposed scheduling. 

### iRJEQlUE§1'ED lLWFO:RlVKA

### UON 2. The parties shall draft a JointReport providing: 

### a. a suggested venue, 

### RESPONDENT'§ REPLY WithoutFA .A'scooperation, Respondenthas noway to know whatwitnesseswould need to be calledorwhat 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 andkeyFisherwitnesses are in the Northeastern United States.

b. a proposed schedule for the completion ofdiscovery,

Until 

### EM is compelled toparticipate in the infonnal corr{erence referenced in Item 

### # 1, above, 

### it will remain impossible to know whatwitnesses the agency intend.s topresent, what experts, 

## if any, Respondentwouldneedto call to testifYandwhopossesses relevant iriformation. The time

5ReportandRe_ply of RespOFidentFisherScientffic
needed to complete discove1y, of course, will depend on how many witnesses are involved, where they are located, andwhat their schedules allowfor. Witnesses mayalso needadditional time to

**r~fresh** their recoliections about events that occurred five years ago. Respondentwould, in any event, requireproduction of physical evidence related to the allegedleak. Respondent understands;i·om a letterMr. Vines sent on November 20, 2014, thatFAA. eitherdestroyed the bottle and thepackagingmaterial, including the box in which itwasshipped, or allowed this evidence to be destroyed. 

### itmay take months iD determine how much of thephysical evidence continues to exist and·what, ifanything, experts can deducefi·om it. Respondentmay also need to seeksOJJctions againstFAA on account of such destruction of evidence.



### c. a list of

### any pending motions
..., 

### RESPONDENT'§ REJP'LY Respondent'slvfotion to Dismiss ComplaintforInsufficiency and for Complainant's Violation of Rule 208was.filedJune 23, 2015. 

### RJEQliJJE§TJED INJFOID1ifil.TION d. a proposed date for a telephonic prehearing conference
...,
Respondent is, of course, willing toparticipate in apreheatingconference, by telephone or in person, on July 20, 2016, or nearly

**a;~y** other date that wouldsuit the Judge's convenience. However, withoutmore infonnation about the issuesFAA 

### will raise, Respondent is uncertain what could be accomplished.



### e. a proposed date for the filing ofany prehearing motions
... and 

### RESPONDENT'§ P.JEJi.'LY While Respondent cannotsuggest a datefor filingpre hearingmotions, it likely ·wouldneed to.file a motion for a more definite statement before it cou/d.file itsAnswer.



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

6ReportandRep{v af RespmulentFisher Scientf(ic Respondent submits that no hearing

### will be needed in this case, but ifa hearing

### wiil be held, ii requests the earliestdate consistent·with andallowable 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 bestReport itcould muster in light of the total lack of response from FAA to the drciftJointReportit ()/}ered RegionalCounsel onApril 20. Conclusion Respondent has no means to compel Regional Counsel to comply with the April 6 Order orto respond to Judge Rawald's May 17 Show Cause Order. Fisher cannot provide any more requested information until 

### FAA_ stops hidingbehind the pendingMotion to Dismiss. Judge Rawald has offeredFAl\ multiple opportunities to comply with his Orders but the agency 

### still refuses. 

### V\'HEREFORE, Respondent requests thatthe Complaintbe 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

7Data OetaU
- Continued @ Data P]ffilS Hllllday, 05/09 04:2Ua DatE Transfer Subtotal for ORa P1lil1s! Subtota1 for fill's: PfcturcNirlso Hessages Sunday, 115/08 04:49p Sent

**703~34a-59H** 04:-5-Dp s-aot B65·207a3n7 Subtotal for Pic.tiJRJVideo 1-lessages: Tota1 Oata Detail P.nte Gods: JERRY COX 2050

**JA~11ESON** AVE APT 1212 ALEJCANDfUA, VA 22314-6827

20,lli!411ll 1,554,75-:l!ill i,tm,754KB

Pn:i: Vidro USG Plat \Iiden HSS

2 0,01} 0.00 0.00

0.@ 

### o.ou 0.00 0.00 ilHSDG1 = Hah'ile Share Value 15GB

**wit~** f!o1loVEr Data Ui1LHSG = Shared !lessa,ging

**~**

**·~** Place

**~** £W.§Q Uwbar Cai7ed T.uas:day, 04/'12 10:.-lOa \1/UUL CL 703-7S7-2W 07:0Bp

**l!l~ll** CL 703-757-221'1 Thursday, 04/i4 10:43a !fr!Ail Cl 703-7Sfn22!i OS:21Jp Vi!A.Il Cl 703-751

**~221i** FMdny, D4i15 03:30p V'MIL Cl 703-757-Zm saturday, IJ:Ui/3 04:04p ARL1N!l. I!A 70J-1327-<W15 04:05p F.Rl..n$ VA

**703-627-~015**

**I;;:m~.ay,** M/ia 12.:5Vp WOOl C!.. 703-7.57-1211 Tuesday, 04/19 08:43p Wllill. CL 703-757-22"11 t£ednesday, 04i20 03:53p !1&\ll CL 703-757-221"1 Friday, 04122 03:41"p VJ8i,1\ VA 7D3-757-5fii5 !!B:Stlp VItlillA VA 703-7fil·5flnD SBturday, 04/23 03:27p \ijil\ll CL 703-757-22.11 Thursday, fl4/2B 02:5:8 VIAll Cl 703-757-2211 10:23a WlfliL C!.. 703-757-Z!ii Trras-day, Ct5!0S 1f:4-1a VIBmh I!A

**703-757~!iB66** Rate Feature C-1lde- Code liin S!JDV Wi SIJDV \lil 5lDV li'-' 

### ·" E!iDV WI smv Ill S!lDlJ &lli!V 

### sow Vii Si)DlJ 11;1 SUOV VH SDDV 

### svw SJOV WI SDDV lf.;f SDDV !Bj SDDlJ 3 **Airt'i~s** Charaas 0.00 

### o.oo 

### o.no O.Gti 0.00 0.00 O.!JO 0.(!0. 0.00 

### o.oo 0.00 0.00 o.ao O.GD 0.00 O.DO llliMdl CiH!raes 0.@ 

### o.no 0.00 O.GO 0.00 0.00 o.oa D.DO G.OO 0.00 0.00 0.00 o.uo 0.00 O.UD 0.00 Pla1:e Tiua Called Honday, 04/ii

uo;uop

**1:1'.;;:::.;~** m; 

### f'F Friday I 04115

**~~~010:50a** ATI.NIT

**G.~** 0.::__-,



### " Page: A-21 of 25 !li!! Cyde !late:: 04/10/16- 05/09/16 AccouM:

**~~**

**~01-!!lidaticm** ACCi!i!ii'M: FAI\l 055361.37



### ---------------

.. ---·----·--·-- -------- ----------- .. l'{l;:'l

**1~1 ·5/i!l~lii** 
natl:l Rlature NmiDer Called

**~** Cr.rla Hln

SDOV iO 39
2 6 i6
i 2 29 2 36 0 g

3 27 20 0 17 i 2 'il l9 2 ----···-'----------- ---·· Airt!!i9 CharnssO.ml**O.C~** 0.00 0.00 0.00 0.00 0.00 0.00 D.OO 0.00 O.OD O.!m D.OO O.llO 0.00 0.00 0.@ 

### o.oo 0.00 

### o.nn 0.00 

### o.oo 0.00 0.00 0.00 O.OD 0.00 o.oo lDIMdl Char®S 0.00 O.GO 0.00 0.00 O.Oli 0.00 0.00 O.OD 0.00 0.00 0.00 0.00 0.00 D.DO 0.00 0.00 O.Gfi O.OD 0.@ O.OD 0.00 D.DO 0.00 0.00 0.00 0,00 D.OO o.oo 

# "Place nEG r<:Hed ·.t>

**~.tsdr.asdGY ~**  M12D

**?:2:~]}11:04a** lRW!I Cl

**Th!Irsds~.** 04121 **li~r** Called JERRY COX 2050 JAMIESON AVE APT i212

**A.LEXA~!DRIA,** VA 22314-5927

late feature

**·"I\irti~** · 

### ewe Cotle mn

**(:,~~if~** lllOV



### _zdf~\e~.oo 3

4 2 1 ·j 

### a

**~** '1 0 1 15 

### o.oo 0.00 0.00 0.00 0.00 0.00 0.00 MO 0.00 0.00 0.00 O.DD 0.00 0.03 0.03 lDIMdl Cilarges 0.00 0.00 0.00 0.00 

### o.oo 0.00 0.00 0.00 0.@ 0.03 0.00 0.@ O.GO 0.00 0.00 Place

**Ti~** CullEd

**~Frltffi'J,** 04/29

**\_;t~M-:52p** lill.AJ-IT GA ,,_-;;. foaturdey, 04J3U 0 i0:41ia :rncmrr cL Tuesday, 05103 'i1:44a JllCOill Gl !l.,iJJes<lEy, 05104 Page: A-22 of 25 Bill C)•de Date: 04/10/16- 05/09/16 Aceount:

**@tw#i##~**

**~oundatirm A~t:~ount**  FAN 05536137

Visit us onUne at:

**1/tnilf'~M.a~i:~com**
Rate Feature Airtl<E illiMdl

**HlR..~r** Cn11ei

**C{!~e**

**~** ifin GfiEr!ES Charae5 0.00 0.00

·----·· 

### --·- 2 0.00 0.00 -4!14-305-5?..19 SDDV 2 0.00 O.GO ® 700-625-M-19 S!JOV 19 O.GO 

### o.ou 703A757-221i S!JIJV 3 0.00 

### o.oo

------ ----

UJ,""'4'

**:tUGO.l~** .... om-->

**,_,.,.---~** 1 2 1 j iO 2 12 2 2 0.00 0.00 

### o.oo o.oo 0.00 

### o.oo 0.00 0.!111 0,00 

### o.ou 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Rato C!l!!e;

**~nesfsy,** !:!!.i27 •! 4 30 2 2 j 10 35
7 4 2 2 13 2 0.00 0.00 0.00 0.00 

### o.oo 0.00 0.00 0.00 0.00 0.00 

### o.oo 0.00 0.00 

### o.no 0.00 0.00 

### o.oo 0.00 0.00 0.00 0.00 

### o.oo 0 0.00 0.00 

### o.oo o.oo 0.00 

### o.oo 0.00 0.00 0.00 0.00 0.00 

### o.oo SDDV = Sh!lred ftimrtas F-aahu'a Cud-:'!: ClJ =

**~ll** HA
...

**Ti:m~** Data

**Dei:a~l** Tim: TofFroJ Text Hess!iges &!tunlay' 04116 OO:l3a Ssnt

**603~714-4..~8** OG:41a ll:cvd 603-714-4340 03:43.a -Serrt 603-714-43@ 00:43a Ssnt 5Ga-7i4-4l-1-8 08:47a Rovd 603·714-43-IB

**0~:57a** Sent 6113·114·4MB !0:511a Rcilll 6113-714-4340 Tvm!lUnit Rate Code
Text ltessaue

**tffillh.~** 0.00 Text ltessaga tmUfSG 0.00 Text llessage !li!UlS& 0.00 Tart ltassage- !J11!RS5 0.00 Text "esssne 

### w.m 0.00 Ta}.t Uessage U!l!.iiS& 

### o.oo T

e)lt Hessaga Uillll.."'i 0.00

# 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. 

### } } } } 

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

### RESPONDENT'SMOHON TO SHUKE COMll'JLAINANT'S RESlPON§lE 1'0 SHOW CAUSE ORDJER AND TO m:SM]S§ TJHE COIVll'JLAIN'f AS MOOT History ofthe FAA's Lnexcusable Delav inthe Proceedings
TheFederalAviation Administration's Southern Regional Counsel ("Regional Counsel" or "FAA") seeks a $5,850 fine relating to a small shipment oflye almost five-and-a-halfyears ago. Inthe 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 Complaintis legally insufficientbecause, even 

### ifthe alleged facts were assumed
to be true, itfails to state a claim for civilpenalties under applicable statute (per Respondent'sMotionto Dismiss Complaintfor Insufficiency); 2. The two-year statute oflimitations forinitiating such a claimunderthe Federal Aviation Actran more than a year before Regional Counsel servedthe required Notice (per Respondent's Motionto Dismiss Complaintfor Complainant's Violation ofRule 208); 3. Regional Counsel failed to file a timely response to Respondent's Motion to Dismiss (per Respondent's Oppositionto Complainant'sMotion for Eh.1:ension); and 4. Regional COlrnsel invited dismissal ofthe Complaintby ignoringthe Administrative LawJudge's April6, 2016, Orderto conferwithRespondent's cotmsel and file a Joint Rep01t (Jler Fisher's Motionto Sanction FAA'sNoncomplifu"l.Ce).
New andAdditional Reasons to Dismissthe Complaint Regional Counselpurportedto file a Response to Show Cause Order onMay 31, 2016. No counsel ofrecord for FAA signed the submission, however, so it violated Rule 11 (a) ofthe Federal Rules ofCivil Procedure ("FRCP"). Respondentpromptly called this violation toRespondentJVlotion to Strike andto Dismiss 

### Regional Counsel's attention; Regional Counsel tookno corrective action. Accordingly, under FRCP ll(a), "the comtmuststrike anunsignedpaper" (emphasis supplied), and FAA must be deemedto have failed to respond to the Show Cause Order, much less to have provided any reason for the Judge notto dismiss the action for the reasons stated inthat Order. Regional Counsel's persistent delay and disregard ofapplicable rules and statutes has also renderedthe Complaint essentially moot under the five-year, government--vvide statute of limitations barring the commencement ofailY civil proceedings morethan 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 3MCo. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994.) 

### Itis tmdisputed thatthe alleged act atissue in this matter occurred on July 20, 2011. That was five years and 1\vo months ago. 

### Itis pointless and grossly wasteful for Regional Com1sel to insist on pursuing this case. They are asking the Administrative LawJudge to devote considerable time and effort in deciding motions to dismiss that have been pendingfor the last 15 months and, even ifFAA were to prevail onthe motions, Regional Counsel offers the prospect ofevenmore wasted effmt in a heming FAA conservatively estimates >vmlld consume at leastthree full days ofthe Judge's time. Even ifone were to assume thatthe endresult ofthat proceedingwould be a final orderthatRespondent pay
a $5,850 civil penalty, the Government is banedby statute from b1inging any court actionto compel payment Respondent's counsel attempted to reach Regional Com1sel ofrecord by telephone to ask whetherthis motion would be necessary, but her office receptionistrefused to tal<e a message and slanm1ed down the phone in mid-conversation. Ms. Harper did notretum the call. WHEREFORE, Respondent submits thatthe Complaint must be dismissed withprejudice on any or all ofthe 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 ; IJ_.,., [;,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 T 1

- 

# R ! 

# I

. or .ne ,ecom, nc. 

## (301)

**870~8025-** 

## www.ftrinc.net- 

## (800) 921-5555

### Fisher Scientific Company, LLC

-' 5 6 7 8 9 10 II 12 13 14 15 lG l7 18 19 20 21

25

3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 18 19 20 21 12
2-l25 --------------------------------)

10: D'.'

E: E: D I (l0:12a.m.'<

1.?-21. 3
5 6 7
9 10 II
13

**I~** 15 16 17 18 19
21
23 24 25 

## 10/4/2016
3
app'="ar:ing.

i _.:;

2 4

5
7

Jl] II 12 13 14 15 16 17 18 19 21) 1\
13



### For The Record, Inc. 1 (Pages 1 to 4)

### Fisher Scientific Company, LLC

4 5 6 7 g 9 10 II 12 l3 14 15 16 17 18 19 2(1 21 22 23 24 25

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 13 19 20 21 22 23 24 15 .j] involved is the sodium hyd.rox.iUe material, the Class 81JN

**1824~** lfyou-- ifyou go to the hazardou') rnnterials table" it1vi1i tell you exactly hm:v it's regulated, so tl1arsreally the essence ofthosetwo paragraphs. JUDGERAWALD: Okay. And, so, lvlr. Cox, would you agree or disagree ·with :Mr. Ellis? Ivm
.. COX: l'rn notentirely sure what hejust said, otherthan I wouldjmtpoint 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 limnthe original notice, to the amended notice, to the complaint So I'mnot sure which ofthose 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 whatthey were in the original notice, 4 and 5 in the compiaintmirror "ivha(s inthe mnended notice. W11at I asked ofboth 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 5were simply amended to make more clearwhat 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 forproposed civil penalty from 2013? MR. COX: Clearly, new facts. Especially if you have in front ofyou amended notice ofproposed civil penalty file July 24, 2014, Pm·aQ:raph 4 is still talkinQ about corks. This case has nothing to do with corks. JUDGE RAWALD: Right. Butit didn't make its \Yay into the complaint, si.r, so_I'm not 2:oimr to wmn' about iL lfit'snot 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 ofproposed civil penalty and not makeit in the complaint In facL thev dropped admittedly halftheirviolations in the complaint stage,
_ so they initially alleged sL"'\: violations in 2013, in the complaintthere's only

**three.--·~-~-···,·--·~·~~~---~---~~-**

**"·--~~-·-·so~-Ob\:~IOU:Sf~,~,~the·;dvocacv** was effective at some nolnt becauseyou were able to at least get some of 

## 10/4/2016

those 'iolations offthe 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 ormentioned three otherbases. I'm not going 6 1.o take 8!gument on thoSe issu_e_s today. I'mrerJly: 7

**--~focused**

## onthe 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. 1 1 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, inmv opinion first. That's what 15 I'mlooking 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 yourmotion-- I'msony, 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 inRule 1 L that it has to be counsel ofrecord.

2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 ]9 20 21 22 23 24 25 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'tknow. But there are a lot offactual allegations mnde that arejustflat untrue. And ifM,. 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 aResvondent to have to deal with ail
__ attorney who is not ofrecord inthe 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. Hmperhasbeen noticeablv absentfrom

, the proceeding. She didn't file anvthing inresponse to

my initial notice requlling the parties to meet and confer: she did not file herselfthe re:,ponse to notice for s110iN cause_ you filed !.hat forher: and she hns nol aweared todaY. 

# I l I· Tills is a problem, Cmmsd. TI1ere need;;; to be_ Ji

. someone from the FAA who is on this case tmd readv to 

### J! prosecute this case, because 

## rm proceeding YVith this 

## lI 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 iflV1s. Hmpercan't take part in the case, 3 yount:ed to think about \\'ho elseyou want to nssign to 4 the matter, sir. ) MR. ELLIS: I hearyou loud and clear, Your 6 Honor. 7 JUDGE RAWALD: Yes, sir. And so I would think 8 about that fmihec 9 iilld as for 1v1r. Cox's concems, 1will take them 10 under ad-visement and I'll consider \Vhether ornot to ll consider them. 12 ButI 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 RAWALD:. 1have 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 oilierissues youhaYe 25 raised more intensely and decide what to do about those

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 \9 20 ll 22 23 24 25 46 issues. I do not platton having argmnent-on those issues. but if!c!o_ upon reviewingthem furtl1er. think additional briefing or argument necessary. I will lei the parties lmmv. No. I understandyourposition onall three of those issues and I \Villlook at them further and then decide"batI'll do with them I hm·en't made any decisionJ·eL 1V1r.

**Co.~** in the short

**tern~** MR. ELLIS: Your Honor? YourHonor. I have a question. ruDGER..A.\VALD: Yes. MR. ELLIS: Will we recei,-e a copy of tltis transcript? ruDGE RAWALD: Well. so the trm1script \\ill come - I think it then gets passedto the docket but I'm not sure. But I \\ill make sure that all parties recei\'e a cop)' ofthe transcriptonce we get

**one~** yes. MR. ELLIS: Thankyou. YourHonor. JUDGERAW.!UJ): Okay. Mr.

**Co~.** so -justso YOU understand. what I will do is I will go ahead and issue a ,,nuen orderregarding 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. thatwill be worth my looking at before I dispose of 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25

2 3 4 5 G 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 2! 11 13 24 25 

## i 0/4/2016

these t\vo very essential and baseline issues thmneed 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 andthe- motions to dismiss, including the motionto dismiss on mootness,because of the five :year statute oflimitations. You're goingto decide upon the issue about \Yhether the pleadin!l meets the sufficiencv requirements before vou decide whether the case is mootin the first

. place..MR. ELLIS: How in U1e \Vorld would the --l·m

sorry. -!7

JUDGE RA\VJ\l.D: Yes. The reasonwhy 1'111 doing tl.J.nt is becausefirst ofall, you raised the

**is~ue** Yery recently ofthe Govemmenthasn'thad a chance to brief it and 

### rthinkalso that I really \Vant to deal with tills _yerv baselineissue 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 canbe dismissed m1d responses allmYed by that ans\Yer. So I Wtlllt to get those squared away. And then 1 will look atyourne\\'" issue :...-ou've 

### '"

**~0** raised, a11d, ifnecessm':-, ask for briefing: from the Respondent

-- oro e:\.ClL':iC me, the Complainant 10

**r~spond** to yvhat youraised there, as far as the three orthe fin-: y:ear stututc, sir. MR. COX: As long as I understand. Thank you. JliDGE RAVi 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 oflimitations. 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 RAWALD: Okay. Lasl chance for any questions, Jvh·. Cox. 1v1R. COX: Just to note thal_the rulesrequire

. the FAAto 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 ofevents 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. Ifvon take a close look 

### ---·---------- " _, at the regulations, tbev have to askyoufor an

**extensi~m** 4
_ fll"!.,d: state a reason whv. 5 JUDGE Ri-\\VALD: Sir, given my currentposture in 6 this

**case~** I don'twantbriefing on the issne,notright 7 no\v. So I

**--yvilll~ok** more

## ai

**you~iss~e.** But I am 8 statinghere the Government should send a briefin 9 response to yourmotion to strike at the moment. lO MK COX: Understand. Iunderstand· " ll MR. ELLIS: Yes, Your Honor. 12 JUDGE RA_\VALD: 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 everyonetaking 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 vouL""lO\Y in a written 19 o.p.i.11ion htJ\\' Tdecide ihese t'vo issues and then what's the 20 next step in this case. 21 So thank:you foryourtime and let's go ahead ?? and go offthe 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 theforc;going 5 proceedings wererecorded by me via digital recording and 6 reduced to typevaitingundermy supenrision; that I am 7 neithercounsel for, related to, noremployed by an:• of 8 the parties to the action inwhich these rn·oceedings were 9 transcribed; and l'urther, that I am not a relative or 10 employee ofany attorney orcounsel employed by the 11 partieshereto, norllnancially orothenvise interested 12 in the outcome ofthe 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 ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 (Civil Penalty Action) Judge Rawald



### ERRATA FOROCTOBER4, 2016, PRETRIAL [SIC, PREHEARING] CONFERENCE

1. In the title, delete "pretrial" and insert in lieu thereof"pre-hearing." 2. The transcript does not, butshould, include the undersigned's objection,justbefore 10:12 a.m., to proceeding with the hearing after agency counsel ofrecord failed to appear. 3. On p. 5, line 2, delete "admit" and insertin lieu thereof"dismiss." 4. On p. 9, line 10, delete "thoughts" and insert in lieu thereof"formerboss." 5. On p. 34, line 7, delete "from defense." 6. On p. 37, line 12, delete "through" and insertin lieu thereof "to prove." 7. On p. 49, betweenthe words "should" and "send," insertthe word "not."