:'\ 

### U.S. DEPARTMENT OF TRANSPORT ATIONl , ' OFFICE OFHEARINGS WASHINGTON, DC FEDERALAVIATION ADMINISTRATION, } Complainant, } } v. } } 

### FISHER SCIENTIFIC COMPANY, LLC, } Respondent. } In the Matter ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 (Civil Penalty Action) Judge Rawald



### RESPONDENT'S REPORT IN RESPONSE TO ORDERISSUED JUNE 2, 2016, TO PROVIDE REQUESTED INFORMATION AND REPLY TO COMPLAINANT'S RESPONSE TO SHOW-CAUSE ORDER ISSUED MAY 17,2016 History ofthe Proceedings The Federal Aviation Administration's Southern Regional Counsel ("Regional Counsel" or "FAA'') seeks a $5,850 fine relating to a small shipment oflye five years ago. Respondent Fisher Scientific Company ("Fisher") moved to dismiss the case for several reasons, including FAA's failure to explain how the shipment could possibly have involved any knowing violation oftheHazardous Materials Regulations ("HMRs"). Fisherparticipated in two "informal conferences" ("ICs") with Regional Counsel. Duringthe first IC, on July 16,2014, Fisher explained that the boilerplate Notice ofProposed civil Penalty ("NOPCP") that Regional Counsel served July 3, 2013, included downright bizarre factual allegations and was based entirely on HMRs thatwere not in effect on July 21, 2011, the date of the alleged incident. More specifically, Fisher pointed out to Regional Counsel during the 2013 IC thatthe volume oflyebeing shipped Gust one liter) was so small, the shipment was a "limited quantity" ("LQ") that was exempt from certain packaging and otherrequirements that would otherwise have applied. Regional Counsel wrote the NOPCP in 2013, after the maximum volume for an LQ oflye decreased to one-halfliter, butthe change in the HMRs was not and could not be retroactive to a shipment in 2011. More than a year later, on July 24,2014, Regional Counsel served an Amended Notice of Proposed Civil Penalty ("ANOPCP") that dropped allegations in the first Notice but added aReportandReply of RespondentFisher Scientific completely new claim that, whenFisher prepared the subject shipment, itwas somehow required to stuffthe packaging with "absorbentmaterial." Nine months later, on April22, 2015, Regional Counsel convened another IC with Fisher's senior in-house counsel and top hazardous materials transportation managers on the line. Respondent's counsel pointed out that, in addition to relying on HMRs 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 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 Afterthetwo ICs, Counsel for the parties had no other communication until Judge Rawald issued the April 6 Order. Fisherhad towork hard to initiate contact. The undersigned phoned Mr. 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. Thefollowing day, Mr. Vines advised by email that a different FAA attorney, whom he identified as Michelle Harper, was handling the case for Complainant. Ms. Harper had not entered an appearance in the matter but she phoned Respondent's counsel on April20. Telephone company records showthatthe entire April20 conversation lasted 20 minutes (Attachment 1 ). It covered the following topics: 

### (1) personal introductions; (2) Judge Rawald's April 6 Order; (3) the content ofthe Joint Report to be filed in response to the April 6 Order; ( 4) Respondent's Motion toDismiss the Complaint; and (5) Respondent's request to meet with FAA'snewly assigned counsel to hear whether she, unlike Mr. Vines, could explain why FAA 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 it was impossible to know whether

### any discovery or hearing would be needed, much less to propose dates for such additional proceedings, because Fisher's Motion to Dismiss would be dispositive ofthe entire case. On Topic 3, Respondent's counsel agreed to prepare a draft Joint Report to that effect and FAA's counsel agreed to review it, to offer any needed edits and sign it ifno edits were needed. Under Topic 4, FAA asserted that the Motion toDismiss should be denied; Respondent's counsel explained why the Motion to Dismiss should be granted.

2ReportandReply of RespondentFisher Scientiftc Approximately 18 minutes into this 20-minute conversation, Respondent's counsel broughtup Topic 5. 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, 

### itwouldreally be a shame to insist that theJudge mustdecide the Motion to Dismiss andallow theproceedings to go forward 

### if you willhave no case topresent on the merits. We asked Will Vines more than once to explain why theshipmentwas not exempt under theLimited Quantity Exemption. Canyouplease explain that one to me? Ms. HARPER (cHUCKLING): 

### I haven'tlookedatthat file inyears. MR. Cox: Maybe this wouldbe agoodtime to do that Ms. HARPER: 

### OK, I'll look at it andget back toyou in the first half of nextweek. This portion ofthe conversation lasted approximately two minutes. Immediately afterthe April 20 conversation, Respondent's counsel sent a draft Joint Report for Ms. Harper's review, edits and signature. Ms. Harperfailed to respond. Afterhearing nothing from FAA for anotherweek, on April27, the undersigned phonedMs. Harperto urge herto sign or suggest changes to the proposed Joint Report. She did not answer herphone. She did not return the call. Two days later, on April 29 (see Attachment 1, entry for two-minute call to Atlanta), as the Judge's deadline for submitting the Joint Report loomed, the undersigned telephoned Ms. Harper again, leaving the following voice message, reproduced here verbatim: 

### MR. Cox: This is Jerry Cox with Thermo Fisher in DC. I sentyou a draft JointReport on April20butneverheardback fromyou. We're up against the deadline, so I'mgoing to withdraw the draft JointReport andThermo Fisher willhave to file its ownReport Feel free to callmewhenyou areprepared to discuss the case. Accordingly, on April30, Respondent filed a unilateral Report and moved for sanctions against FAAfor ignoring the Judge's April 6 Order. FAA 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 FAAto show cause why ithas not "constructively withdrawn" its Complaint and the why the Judge should not "dismiss the case with prejudice." Orderto Show Cause at 2.

3ReportandReply of RespondentFisher Scientific
In its Response to the Show Cause Order, FAA equivocated about whetherMs. Harperreceived 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, evenwithout [her] signature." Complainant's Response to Show Cause Order, 

## '\l'il 5 and 6. Despite repeated efforts, however, the undersigned had no way to know whetherFAA had even receivedthe draft JointReport, much less whetherMs. Harper approved it. FAAtold the Judge thatMs. Harper and Respondent's counsel "had a lengthy phone call discussing the issues inthe case, as well as the information required by the Order," id. 'i[2, and that "the parties did indeed meet and confer on April20, 2016, as required." 

### !d. 'i[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 "filledwith mistruths [sic]" 

### (id., 'i!6). The undersigned is not entirely sure what a "mistruth" is, but he would bewilling 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 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 shortbecause she hadn'tbothered to read the file, was anything resembling a "thorough discussion'' By contrast, it speaks volumes that Ms. Harper did not sign FAA'sResponse 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

... or party," FRCP ll(c). Unless FAArecants quickly, Respondent plans to move for such sanctions because Ms. Harper's statement to the Judge that "the parties did indeed meet and confer [and] had a thorough discussion ofthe underlying facts ofthe case

...."is both highly material and plainly false. Reportto Judge Rawald inResponse to the 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 Order Directing the Parties to Meet and Confer." Respondent has diligently undertaken and continues to do everything humanly possible to prepare and submit a Report thatwould, among other objectives, lay out a "schedule for

4Report andReply of RespondentFisher Scientific completion ofdiscovery," proposed dates for prehearing conferences, filing ofprehearing motions and hearing dates. Order to Meet and Confer at 1-2. Unfortunately, because FAA has steadfastly avoided meeting with 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 wouldbe, much less what discovery would be needed to address them, how long it would take to complete such discovery or what witnesses would need to be called. With that said, Respondent provides below, to the greatest extent information is available at the moment, the following information requested by the numbered portions ofthe April 6 Order. Respondent's responsive information is presented in italics: 

### REQUESTED INFORMATION 1. The parties shall privately conduct an informal conference to meaningfully discuss litigation issues and proposed scheduling. 

### RESPONDENT'S REPLY FAA rebuffed multiple requests from Respondent's counsel for a meeting, startingonApril15, 2016, on the grounds that it has beenyears sinceRegional Counsel has read the file. This has made it impossible for Respondent to address with FAA either litigation issues orproposed scheduling. 

### REQUESTED INFORMATION 2. The parties shall draft a Joint Report providing: a. a suggested venue, 

### RESPONDENT'S REPLY Without FAA 's cooperation, Respondenthasnoway to know whatwitnesses wouldneed to be calledorwhat venue would be mostconvenient to them. However, Respondent tentatively suggests that Washington, DC, wouldbe the appropriate venue because the Judge is here, Respondent's counsel is here andkeyFisher witnesses are in the Northeastern United States. 

### REQUESTED INFORMATION b. a proposed schedule for the completion ofdiscovery, 

### RESPONDENT'S REPLY Until FAA is compelled toparticipate in the informal conference referenced inItem# 1, above, it will remain impossible to know whatwitnesses the agency intends topresent, whatexperts, 

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

5ReportandReply of RespondentFisher Scientific
needed to complete discovery, of course, will depend on how manywitnesses are involved, where theyare located, andwhat their schedules allowfor. Witnesses mayalso 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 deducefrom it. Respondentmayalso need to seeksanctions against FAA on acr:ount of such destruction of evidence. REQUESTED INFORMATION


### c. a list ofany pending motions

..., RESPONDENT'S REPLY Respondent'sMotion to Dismiss Complaint for Insufficiency andfor Complainant's Violation of Rule 208wasfiledJune 23, 2015. REQUESTED INFORMATION 

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

..., RESPONDENT'S REPLY Respondentis, of course, willing toparticipate in aprehearing conference, by telephone or in person, onJuly 20, 2016, or nearly any other date thatwouldsuitthe Judge's convenience. However, withoutmore information about the issuesFAA will raise, Respondent is uncertain whatcould be accomplished. REQUESTED INFORMATION


### e. a proposed date for the filing ofany prehearing motions

... and RESPONDENT'S REPLY While Respondentcannotsuggesta datefor filingpre hearingmotions, it likely wouldneedto file a motion for a more definite statement before itcould file itsAnswer. 

### REQUESTED INFORMATION f. 

### proposed hearing dates

... acceptable to all parties. 

### RESPONDENT'S REPLY

6ReportandReply of RespondentFisher Scientific Respondentsubmits that no hearingwill be needed in this case, but 

### if a hearingwill be held, it requests the earliestdate consistentwith andallowable under the law andl<-:4A 's Rules of Practice. 

### REQUESTED INFORMATION 3. [service instructions] 

### RESPONDENT'S REPLY Respondent timely served- in accordance with these instructions-· the bestReport itcould muster in light of the total lack of response from FAA to the draftJointReport it offered Regional Counsel onApril20. 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 hiding behindthe pending Motion to Dismiss. Judge Rawald has offered FAA multiple opportunities to comply with his Orders but the agency still refuses. WHEREFORE, Respondent requests that the Complaint be dismissed with prejudice.

Dated: June 13, 2016 Jamieson Alexandria, VA 22314 (email)

**®15.@RQ1!2ll.l.2l£.~1'-_at_<;:gy_'!~Qt:111t:,,H.Qll.l** (tel) 703-757-5866 Counsel for Thermo Fisher Scientific, Inc., and Fisher Scientific Co., LLC

7ReportandReply of RespondentFisher Scientific

CERTIFICATE OF SERVICE

On June 13, 2016, the undersigned sentby the indicated type(s) ofservice at least one copy of the foregoing Memorandum to each ofthe persons listed below.

D [One Copy by U.S. Certified Mail] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Ave., S.E. (Ell-310) Washington, DC 20590
D [Original + One Copy by Hand] HearingDocket Clerk, AGC-430 Federal Aviation Administration Wilbur Wright Bldg., Suite 2Wl000 600 Independence Ave., S.W. Washington, DC 20591 00 [One Copy by Air Courier] AndreaMichelleHarper, Esq. Senior Attorney Regional Counsel, AS0-7 U.S. Department ofTransportation Federal Aviation Administration Southern Region 170I Columbia Ave. College Park, GA 30337 0 [One Copy by air courier] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Ave., S.E. (Ell-310) Washington, DC 20590 0[0riginal +One Copy by Air Courier] Federal Aviation Administration 800 Independence Ave., S.W. Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2W1000 O[One Copy by U.S Certified Mail] Andrea Michelle Harper, Esq. Senior Attorney Office ofthe ChiefCounsel Enforcement Division, Southern Team U.S. Department ofTransportation Federal Aviation Administration Southern Region P.O. Box 20636 Atlanta, GA 30320

8

# ATTACHMENT 1JERRY COX 

# at&t 2050 JAMIESON AVE APT 1212 ALEXANDRIA, VA 22314-6827

- **~------~-----~--·-···-------** --- ------------ --------- 

## C@ 703 627-4015

.

**-----~** 

### --'-----·c.

**~**

### ___**::_cY'qfll!l~**C!>l(

**'··--~-~-------'** Data Detail -Continued IJ!! Iolfma TYAAIUnit Rate Code Data Plant Monday, 05109 04:28a Data Transfer 28,994KB III!SilGI 0.00 Subtot111l for Data Plans: 1,654,754Kll 0.00 Subtotal for KB's: 1,654,754Kll 0.00 P1cture/V1deo Messages Sunday. 05108 01:49p Sunt 703-343-0011 Met Video tfSG lllruiSG 0.00 OI:SOp Sent 665-207-3222 Plot Video IISG lllruiSG 0.00 Subtotal fur Picture/Video Kessages: 2 0.00 Total Data Detail 0.00 Rate Qxfa: III!SilGi = Hobtle Share Value 15GB with Rollover Data UUUiSG

**~** Shared llessaging

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

## @ 103151·221:1.

.

-- -" ----- .. -·- --- - -· --·--- **Hll)l)~ Cit~**  _ Call Detail Place Rate Feature Airtle LD/Addl lli! .ooJ!!t l!!!!lber can!ll! !ll!!!

**~** 

### run

**~ ~**  Tuesday, 04/12 10:40a VIIAIL CL 703-757-2211 S!lDV Ill! 1 0.00 0.00 07:0llp IIIIAlL CL 703-757·2211 SDDV Ill! I 0.00 0.00 Thursday. 04114 10:43a IIIIAlL CL 703·757-2211 SDDV Ill! 0.00 0.00 09:28p IIIIAlL CL 703-757-2211 SDDV VII 0.00 0.00 Friday. 04115 03:30p IIIIAIL CL 703-757·2211 SIJDV VII 3 0.00 0.00 Suturtiay, 04/16 04:04p AI!LII!SVA 703-627-4015 II!JOV 0.00 0.00 04:05p AI!LII!SVA 703-627·4015 SODV 0.00 0.00 Hontlay, 04118 12:50p IIIIAIL CL 703-757-2211 S!lDV VII 3 D.OO 0.00 Tue•day, 04/19 08:43p IIIIAIL CL 703-757-22!1 SIIDV VII 0.00 0.00 Wednesday, 04120 03:30p ll!All CL 703·757·2211 SIIDV 1ill 0.00 0.00 Friday, 04122 06:47p VleiiiiA VA 703-757·51166 SIJDV 1 O.OD 0.00 OB:50p Vlfll!iA VA 703-757·51166 SIIDV 1 0.00 0.00 Satorday, 04123 00:27p Vlllll Ct. 703-757-2211 SIIOV VII 0.00 0.00 Thursday, 04128 02:52a IIIIAIL CL 703-757-2211 SIJliV VII D.OO 0.00 1D:23a ll!All CL 703-757-2211 SIIOV VII 0.00 D.OO Tuesday, 05/00 11:44a VleiiiiA VA 703-757-51166 II!JDV 3 0.00 D.OO Page: A-21 of 25 Bill Cycle Date: 04/10/16- 05/09/16 Account:

**Gl!lli~~~** Foundation Account: FAN 05536137



### ---- ..• ---- -·-·-- ------------------ ------------- • .,..,-------------- --·- c 

## :@ • . 103 157,5866

·------- 

### -- ··----·-·--

**-----~-** 

### .Jl'RRY_c;ox

-- --- ---- Call Detail Place Rate Feature Airtime LD/Addl T1oe caned !l!!!iircalled Cm!e

**~** tlin

**~ ~**  Monday. 04111

**~~**

## .... **nnn""·~** cnmr 1 

### o.oo O.OD 2 0.00 0.00 1D 0.00 0.00 39 0.00 0.00 1 0.00 0.00 2 0.00 0.00 6 0.00 0.00 16 0.00 0.00 1 0.00 0.00 1 0.00 0.00 2 

### o.oo 0.00 wouop t.\t.ltfi r.n Olf.:H/U-fll:J1 iillllV 20 0.00 0.00 {;Friday, 04115 404·305-5200 S!lDV 2 0.00 0.00 

# •

G>10:50a ATUliTGA 36 

### o.oo D.OO 23 

### o.oo o.oo 8 D.OO 0.00 g 

### o.oo o.oo 0.00 0.00 

### ' a D.OO 0.00 27 0.00 

### o.oo 20 0.00 0.00 8 0.00 

### o.oo 17 0.00 0.00 1 0.00 0.00 2 D.OO D.OO 14 0.00 0.00 20 0.00 0.00 2 0.00 

### o.oo

# at&t

Call Detail

- Continued Place I!!!! caned lltalber called

**~ -~** liednaaday, 04/2!1 """911:04a ll/COftl Cl 404-305-5229 Thursdav. 04/21 Rate

**~** 

### soov

ua.vop :Z\IWh:toc IW '""

**'~''"** -..,.,.,...,.._ Wednesday, 04127 

### tos:oop

-

**~Jl!IIT** GA 

### 404·305·5221) 

### soov



### --------

**~~-~~-** JERRY COX Page: A-22 of 25 2050 JAMIESON AVE APT 1212 ALEXANDRIA, VA 22314-6827 BillCycle Date: 04/:I.0/16

- 05/09/16 Account: lll!allllllllllllilillllt Foundation Account: FAN 05536137

3 1 1 1 4 5 2 1 1 6 2 1 8 1 15 1 2 1 1 10 2 12 2 2 1 4 4 38 2 1 2 1 18 35

7 4 2 2 13 2 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0,00 o.oo 0.00 0.00 0.00 0.00 

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

### o.oo 0.00 O.OD D.OO 0.00 0.00 0.00 0.00 0.00 0.00 

### o.oo 0.00 0.00 

### O.oo 0.00 0.00 Visit us online at
**www~att-com** Place llill!!!

LD/Addl I!!"'FMday, 04/29 !l!!rJ!!! 1:'04:52p AT!A!IT GA Saturday' 04130 0.00 "' 10:4&1 lliCillll CL Tuesday. 05103 11:44a INCOH! CL Mnlber Callerl

404-3115-522!1 700-1!25-8349 700-757-2211 Rate Feature Airt1ee

**~** lllde !!I!!

**~**



### soov SOOV 500V 1 2 2 19 3 0.00 0.00 0.00 0.00 0.00 

### o.oo 0.00 0.00 llednesdey. **05~/"'04~------** 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 o.oo 0.00 0.00 0.00 0.00 0.00 0.00 0,00 0.00 0.00 0.00 o.oo 0.00 D.OD 0.00 o.oo 0.00 0.00
.. 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Rata Cede: SDDV =

**Sh~red** Rinutes f'eaturGCede: Cll = CAll liAlTI!II; Data Detail I!!! Text Heasages Saturday' 04/16 OB:13a Sent 08:41a Rcvd 08:43a Sent 08:43a Sent 08:47a Rtvd 08:57a Sent 08:59a l!cv1l 600-714-4348 603-714-4348 603-714-4348 603-714·4348 603-714-4348 603-714-4348 603-714-4348 Text Kessage TextNsasage Text Heasage Text Message Text Heasage Text Heasage Text Heasage lD/Addl

**~** 0.00 0.00 0.00. 0.00 0.00

o.oo 0.00 0.00 0.00 0.00 0.00 0.00