:'\ 

U.S. DEPARTMENT OF TRANSPORT A TIONl , ' 

OFFICE OF HEARINGS 

WASHINGTON, DC 

FEDERAL AVIATION ADMINISTRATION, } 

Complainant, } 

} 

v. } 

} 

FISHER SCIENTIFIC COMPANY, LLC, } 

Respondent. } 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

RESPONDENT'S REPORT IN RESPONSE 

TO ORDER ISSUED JUNE 2, 2016, 

TO PROVIDE REQUESTED INFORMATION 

AND 

REPLY TO COMPLAINANT'S RESPONSE TO SHOW-CAUSE ORDER 

ISSUED MAY 17,2016 

History of the Proceedings 

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

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

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

FAA's failure to explain how the shipment could possibly have involved any knowing violation 

of the Hazardous Materials Regulations ("HMRs"). 

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

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

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

allegations and was based entirely on HMRs that were not in effect on July 21, 2011, the date of 

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

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

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

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

volume for an LQ oflye decreased to one-halfliter, but the 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 a 
Report and Reply of Respondent Fisher Scientific 

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

to stuff the packaging with "absorbent material." Nine months later, on 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 of the alleged incident, this brand-new claim 

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

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

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

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

without offering an answer. 

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

dismissal. 

Judge Rawald' s April 6, 2016, Order Directing the Parties to Meet and Confer Regarding 

Litigation and Scheduling Issues 

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

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

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

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

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

contends that the subject shipment did not qualify for the LQ Exemption. 

Topic 1 consumed about five minutes of the 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 of the 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 

if no edits were needed. Under Topic 4, FAA asserted that the Motion to Dismiss should be 

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

2 
Report and Reply of Respondent Fisher Scientiftc 

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

Topic 5. That part of the conversation, which is reproduced below in its entirety and as close to 

verbatim as possible, went as follows: 

MR. Cox: You know, it would really be a shame to insist that the Judge must decide the 

Motion to Dismiss and allow the proceedings to go forward if you will have no case to present 

on the merits. We asked Will Vines more than once to explain why the shipment was not 

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

Ms. HARPER (cHUCKLING): I haven't looked at that file in years. 

MR. Cox: Maybe this would be a good time to do that 

Ms. HARPER: OK, I'll look at it and get back to you in the first half of next week. 

This portion of the conversation lasted approximately two minutes. 

Immediately after the April 20 conversation, Respondent's counsel sent a draft Joint Report for 

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

from FAA for another week, on April27, the undersigned phoned Ms. Harper to urge her to sign 

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

return the call. Two days later, on 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 sent you a draft Joint Report on 

April 20 but never heard back from you. We're up against the deadline, so I'm going to 

withdraw the draft Joint Report and Thermo Fisher will have to file its own Report Feel free 

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

Accordingly, on April30, Respondent filed a unilateral Report and moved for sanctions against 

FAA for ignoring the Judge's April 6 Order. FAA filed no Report of its own and ignored 

Respondent's Motion for Sanctions. 

Judge Rawald' s May 17 Show Cause Order 

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

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

with prejudice." Order to Show Cause at 2. 

3 
Report and Reply of Respondent Fisher Scientific 

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

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

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

articulated, even without [her] signature." Complainant's Response to Show Cause Order, '\l'il 5 

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

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

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

discussing the issues in the case, as well as the information required by the Order," id. '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 "the parties had a thorough discussion of the underlying facts of the case," id. 

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

(id., 'i!6). 

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

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

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

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

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

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

anything resembling a "thorough discussion'' 

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

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

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

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

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

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

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

imposed on the "attorney ... or party," FRCP ll(c). Unless FAA recants 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 of the underlying facts ofthe case 

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

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

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

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

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

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

4 
Report and Reply of Respondent Fisher Scientific 

completion of discovery," 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 or participating in any sort of substantive 

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

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

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

or what witnesses would need to be called. 

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

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

Respondent's responsive information is presented in italics: 

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, starting on April15, 

2016, on the grounds that it has been years since Regional Counsel has read the file. This has 

made it impossible for Respondent to address with FAA either litigation issues or proposed 

scheduling. 

REQUESTED INFORMATION 

2. The parties shall draft a Joint Report providing: 

a. a suggested venue, 

RESPONDENT'S REPLY 

Without FAA 's cooperation, Respondent has no way to know what witnesses would need to be 

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

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

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

REQUESTED INFORMATION 

b. a proposed schedule for the completion of discovery, 

RESPONDENT'S REPLY 

Until FAA is compelled to participate in the informal conference referenced in Item# 1, above, it 

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

any, Respondent would need to call to testifY and who possesses relevant information. The time 

5 
Report and Reply of Respondent Fisher Scientific 

needed to complete discovery, of course, will depend on how many witnesses are involved, where 

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

refresh their recollections about events that occurred five years ago. Respondent would, in any 

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

understands from a letter Mr. Vines sent on November 20, 2014, that FAA either destroyed the 

bottle and the packaging material, including the box in which it was shipped, or allowed this 

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

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

to seek sanctions against FAA on acr:ount of such destruction of evidence. 

REQUESTED INFORMATION 

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

RESPONDENT'S REPLY 

Respondent's Motion 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 

Respondent is, of course, willing to participate in a prehearing conference, by telephone or in 

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

However, without more information about the issues FAA will raise, Respondent is uncertain 

what could be accomplished. 

REQUESTED INFORMATION 

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

RESPONDENT'S REPLY 

While Respondent cannot suggest a date for filing pre hearing motions, it likely would need to file 

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

REQUESTED INFORMATION 

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

RESPONDENT'S REPLY 

6 
Report and Reply of Respondent Fisher Scientific 

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

requests the earliest date consistent with and allowable under the law and l<-:4A 's Rules of 

Practice. 

REQUESTED INFORMATION 

3. [service instructions] 

RESPONDENT'S REPLY 

Respondent timely served- in accordance with these instructions-· the best Report it could 

muster in light of the total lack of response from FAA to the draft Joint Report it offered 

Regional Counsel onApril20. 

Conclusion 

Respondent has no means to compel Regional Counsel to comply with the April 6 Order or to 

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

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

Rawald has offered 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 

7 
Report and Reply of Respondent Fisher Scientific 

CERTIFICATE OF SERVICE 

On June 13, 2016, the undersigned sent by the indicated type(s) of service at least one copy of 

the foregoing Memorandum to each of the persons listed below. 

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

The Hon. Douglas M. Rawald 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. (Ell-310) 

Washington, DC 20590 

D [Original + One Copy by Hand] 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Wilbur Wright Bldg., Suite 2Wl 000 

600 Independence Ave., S.W. 

Washington, DC 20591 

00 [One Copy by Air Courier] 

Andrea Michelle Harper, Esq. 

Senior Attorney 

Regional Counsel, AS0-7 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

170 I Columbia Ave. 

College Park, GA 30337 

0 [One Copy by air courier] 

The Hon. Douglas M. Rawald 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. (Ell-310) 

Washington, DC 20590 

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 2W1 000 

O[One Copy by U.S Certified Mail] 

Andrea Michelle Harper, Esq. 

Senior Attorney 

Office of the Chief Counsel 

Enforcement Division, Southern Team 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

P.O. Box 20636 

Atlanta, GA 30320 

8 
ATTACHMENT 1 
JERRY COX 

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2050 JAMIESON AVE APT 1212 

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