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

# RECEIVED
JUL -8 2015 

## HEARING DOCKET

FEDERAL AVIATION ADMINISTRATION, } Complainant, } }**~** 

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

RESPONDENT'S OPPOSITION TO COMPLAINANT'S MOTION FOR 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 proceeding because the Complaint fails to state a "knowing" violation for which a civil penalty can be imposed and included allegations that were out-of-time and inviolation ofthe Federal Aviation Administration's (hereinafter "FAA's" or "the Agency's") Rules ofPractice ("Ru1es"). Instead offiling a timely response permitted by Ru1e 13.218(d), FAA's Southern Regional Counsel ("Regional Counsel") moved for an "Extention [sic, Extension] to File Response." Regional Counsel failed evento 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 cannot lawfully be granted and Regional Counsel mustbe considered to have waived FAA's opportunity to respond to Respondent's Motions to Dismiss.

Ru1e 13.213(b) is clear. As with any other party, anFAA "motion for an extension oftime" must be filed withthejudge "not later than 7 days before" a response to a Respondent's written motion "is due." Regional Counsel filed FAA'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 cause for the late filing is shown." Nowhere in Regional Counsel's Motion is there
so much as a naked assertion that FAAhad "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 grant an extension oftime to respond to a Motion to Dismiss only "ifgood cause for the extension is shown." Once again, Regional Counsel failedRespondent's Opposition to Motionfor Extension

evento include so much as a declarative statement that such grounds exist. The Motion states that FAA desires "an extension in order to effectively respond [sic]." Itdoes not even suggest there are any special circumstances or any otherreasons whatsoeverto conclude thatthe time otherwise allowed by the Rules was inadequate. Absent those circumstances, the Motion for Extensionwould have failed even ifithad been timely filed. Regional Counsel goes on to claim that Fisher will not be "prejudicedby an extension." This statement is false but, even ifitwere true, it does not constitute "good cause" for permitting FAA to ignore the seven-day advance filing rule for its Motion for Extension or the 1 0-day rule for filing FAA's response to Respondent's Motionto Dismiss. Rule !3.2!3(b) is meaningless if Regional Counsel can avoid itwithoutmaking any pretense ofanaffirmative showingwhy 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 occurred in July, 2011. FAA did not file any Notice inthe matteruntil July, 2013. That Notice made no allegation whatsoever that Fisher failed to employ a particular type ofpackaging product. FAA filed another Notice inJuly, 2014, more than three years after the alleged incident, which is based almost entirely on the previously missing allegation about packaging. FAA thenwaited until June, 2015**~almost**four years after the event- to file its Complaint. When Fisher moved to dismiss the Complaint in part because ofF AA's dilatory approachto the case, Regional Counsel's only response has beento seek an extensionto August 3, 2015, a date that is beyond fouryears after the event. Meanwhile, FAAhas overseen or permitted the destruction ofcrucial evidence. Ifthis case eventually goes to a hearing, witnesses onboth sides potentially will be required to rely on nothing more thanfaded recollections.
WHEREFORE, Respondent prays thatRegional Counsel's otion for Extension be DENIED.
Dated: July 7, 2015

. Cox, Esq. allows Rd., Suite 401 I Vienna, VA 22180 (email) (tel) 703-757-5866 Counsel for Thermo Fisher Scientific, Inc., and Fisher Scientific Co., LLC

2Respondent's Opposition to Motionfor Extension

CERTIFICATE OF SERVICE

On July 7, 2015, the undersigned mailed at least one copy ofthe foregoing Oppositionto Motion for Extensionto each person listed below. [One Copy] William Vines, Esq. Regional Counsel, AS0-7 U.S. Department ofTransportation Federal AviationAdministration Southern Region P.O. Box20636 Atlanta, GA 30320

[One Copy] The Hon. Richard C. Goodwin Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Ave., S.E. (Ell-310) Washington, DC 20590 [Original and One Copy] Hearing Docket Clerk, AGC-430 Federal Aviation Administration Wilbur Wright Bldg., Suite 2W1000 600 Independence Ave., S.W. Washington, DC 20591

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