UNITED STATESDEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON,DC In the Matter

### of: FISHERSCIENTIFIC COMPANY,LLC FAAOrderNo. 2016-4 FDMS No. FAA-2015-1321 1

Served: December 8, 2016 ORDERDISMISSING INTERLOCUTORYAPPEAL2 Respondent Fisher Scientific Company, LLC ("Respondent" or "Fisher") has filed an Interlocutory Appeal ofRight. The underlying case involves a Complaint filed by the Federal Aviation Administration ("FAA" or "Complainant") alleging that in July of 2011, Fisher knowingly offered to United Parcel Service ("UPS") for transportation by air a !-liter plastic bottle containing sodium hydroxide solution, a corrosive hazardous material.

**Complaint~~** I, 4. The Complaint further alleges that about 2 ounces ofthe hazardous material leaked through the fiberboard box containing it. 

### !d. at

**~** 6. According to the Complaint, Fisher violated the following packaging provisions of the Hazardous Materials Regulations: 49 C.F.R. §§ 173.24(b)(l), 173.24(f)(l), and 173.27(e)(3). 

### Complaint

**~** I0. The Complaint seeks a civil penalty of$5,850. 

### !d. at 3. In Fisher's briefin support ofits Interlocutory Appeal ofRight, it states that "[t]here is no dispute that Fisher offered a one-piece shipment containing one liter of sodium hydroxide solution ... by air ... in July 2011, that the package was properly declared as containing hazardous material and ... was properly labeled as a 'limited quantity' shipment."

### Respondent's

1Generally, materials filed in the FAA Hearing Docket (except for materials filed in security cases) are also available for viewing at http://www.regulations.gov. 14 C.F.R. § 13.210(e)(l). 2The Administrator's civil penalty decisions, along with indexes ofthe decisions, the rules ofpractice, and other information, are available on the Jntemet at the following address: wwwfaa.govlaboutloffice _org/headquarters _offices/age/pol_adjudication/AGC400/Civil_Penaltyl. See 14 C.F.R. § 13.2JO(e)(2).Brief 

### at 2.

Fisher contends in this purported Interlocutory Appeal of Right that: (!) 

### Complainant failed to participate in the civil penalty proceedings inthis case (Fisher'sAmendedBrief 

### at I, 4, 7, 8); (2) Complainant's failure to participate in the proceedings constituted a constructive withdrawal ofthe Complaint (id. 

### at 6-8); (3) Administrative Law Judge ("ALJ") Douglas M. Rawald should have dismissed the proceedings with prejudice under 14 C.F.R. § 13.215 (id. 

### at I, 2); and (4) Fisher had the right to file an Interlocutory Appeal ofRight because 14 C.F.R. § 13.219(c)(2) states that a party may file an Interlocutory Appeal ofRight ifan ALJ fails to dismiss the proceedings in accordance with§ 13.215 (id. 

### at 2, 8). In reply, Complainant asks that Respondent's appeal be dismissed. Complainant's Reply Brief

### at I. 

### Fisher argues that Fisher's Interlocutory Appeal is premature because the ALJ has not yet ruled on whether Complainant constructivelywithdrewthe Complaint. !d. at 3-4. Complainant also argues that it did in fact participate in the proceedings and that it has never withdrawn the Complaint. !d. at I. It

### is well established that in an interlocutory appeal ofright, the scope ofreview is very limited. Alaska Airlines, 

### FAA Order No. 1991-54 at 9 (Nov. 6, !991). See also Detroit Metropolitan-Wayne CountyAirport, 

### FAA Order No. 1994-32 at 3 (Oct. 5, 1994) (stating that "the scope ofan interlocutory appeal is narrow"). The Rules ofPractice provide that "[a] party shall file a notice ofinterlocutory appeal ... after 

### the [ ALJ's] decision forming the basis ofan interlocutory appeal.... 14 C.F.R. § 13.219(d) (emphasis added). In this case, the ALJ has not yet issued a decisionthat would form the basis ofFisher's Interlocutory Appeal. 3 

### Thus, Fisher's Interlocutory Appeal is premature and must be dismissed. DetroitMetropolitan-Wayne County Airport, 

### FAA OrderNo. 1994-32 at 3.

3 Complainant characterizes Fisher's motion dated September23, 2016, as a motion to find the Complaint constructively withdrawn. Complainant's Reply Briefat 2-3. Atthe Prehearing Conference, the ALJ reserved deciding this motion as well as Fisher's other motions. Tr. 45; Order Staying Proceedings at I.
2For these reasons, Fisher's Interlocutory Appeal ofRight is dismissed as premature and notripe for review. This matteris remandedto the ALJ for furtherproceedings. Issued for the FAAAdministrator this__j""!uay of

## /)..u.e.,.h....._. 2016.4

ANTHON .PALLADINO Director andAdministrative Judge Office ofAdjudication, AGC-70

4Issued under authority delegated to the Director ofthe Office ofAdjudication by Memorandum dated March 28, 2016, under 49 U.S.C § 322(b) and 14 C.F.R. Part 13, Subpart G. This Delegation is published inthe Federal Register at 81 Fed. Reg. 24,686 (Apr. 26, 2016). 3