UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

In the Matter of: FISHER SCIENTIFIC COMPANY, LLC 

FAA Order No. 2016-4 

FDMS No. FAA-2015-1321 1 

Served: December 8, 2016 

ORDER DISMISSING INTERLOCUTORY APPEAL2 

Respondent Fisher Scientific Company, LLC ("Respondent" or "Fisher") has filed an 

Interlocutory Appeal of Right. 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 of the 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 ~ I 0. The Complaint seeks a civil 

penalty of$5,850. !d. at 3. 

In Fisher's brief in support of its Interlocutory Appeal of Right, 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 

1 Generally, 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). 

2 The Administrator's civil penalty decisions, along with indexes of the decisions, the rules of practice, 

and other information, are available on the Jntemet at the following address: 

wwwfaa.govlaboutloffice _ org/headquarters _offices/age/pol_ adjudication/A GC400/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 in this case (Fisher's Amended Brief at I, 4, 

7, 8); (2) Complainant's failure to participate in the proceedings constituted a constructive 

withdrawal of the 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 of Right because 14 C.F.R. 

§ 13.219(c)(2) states that a party may file an Interlocutory Appeal of Right if an 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 constructively withdrew the 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 of right, the scope of review is very 

limited. Alaska Airlines, FAA Order No. 1991-54 at 9 (Nov. 6, !991). See also Detroit 

Metropolitan-Wayne County Airport, FAA Order No. 1994-32 at 3 (Oct. 5, 1994) (stating that 

"the scope of an interlocutory appeal is narrow"). The Rules of Practice provide that "[a] party 

shall file a notice of interlocutory appeal ... after the [ ALJ' s] decision forming the basis of an 

interlocutory appeal .... 14 C.F.R. § 13.219(d) (emphasis added). In this case, the ALJ has not 

yet issued a decision that would form the basis of Fisher's Interlocutory Appeal. 3 Thus, Fisher's 

Interlocutory Appeal is premature and must be dismissed. Detroit Metropolitan-Wayne County 

Airport, FAA Order No. 1994-32 at 3. 

3 Complainant characterizes Fisher's motion dated September 23, 2016, as a motion to find the 

Complaint constructively withdrawn. Complainant's Reply Brief at 2-3. At the Prehearing Conference, 

the ALJ reserved deciding this motion as well as Fisher's other motions. Tr. 45; Order Staying 

Proceedings at I. 

2 
For these reasons, Fisher's Interlocutory Appeal of Right is dismissed as premature and 

not ripe for review. This matter is remanded to the ALJ for further proceedings. 

Issued for the FAA Administrator 

this __j""!uay of /)..u.e.,.h....._. 2016.4 

ANTHON .PALLADINO 

Director and Administrative Judge 

Office of Adjudication, AGC-70 

4 Issued under authority delegated to the Director of the Office of Adjudication 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 in the Federal Register at 81 Fed. Reg. 24,686 (Apr. 26, 2016). 

3