RECEl\/ED 

OCT 1 3 2016 

U.S. DEPARTMENT OF TRANSPORTATION G DOCKET 

OFFICE OF HEARINGS HEAR IN 

WASHINGTON, DC 

FEDERAL AVIATION ADMINISTRATION, } 

Complainant, } 

} 

~ } 

} 

FISHER SCIENTIFIC COMPANY, LLC, } 

Respondent. } 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. F AA-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

BRIEF IN SUPPORT OF RESPONDENT'S INTERLOCUTORY APPEAL OF RIGHT 

Respondent Fisher Scientific Company, LLC, a subsidiary of Thermo Fisher Scientific, Inc., 

(hereinafter referred to as "Fisher") hereby appeals to the FAA decision-maker pursuant the 

Federal Aviation Administration Rules of Practice, 14 C.F .R. Part 13 (hereinafter "FAA Rules"), 

Rule 219(c), 14 C.F.R. § 13.219(c), to dismiss the Complaint in the above-captioned matter due 

to the failure by the assigned Administrative Law Judge, Douglas Rawald ("the ALJ"), to 

dismiss the case, as required by FAA Rule 215, after the agency attorney withdrew the 

Complaint. In support of its Appeal, Fisher states the following: 

QUESTION PRESENTED 

Must the Complaint in a civil penalty action be dismissed with prejudice when agency counsel, 

by consistently failing to participate in the proceedings, ignoring multiple ALJ Orders and 

refusing to appear at a pre-hearing conference ordered by the ALJ, has constructively withdrawn 

the Complaint? 
PURPOSE AND STANDARD OF REVIEW FOR THE APPEAL 

FAA long ago established the "interlocutory appeal of right" to help the Administrator keep 

agency counsel, a private party respondent or an ALJ from wasting public and private resources 

on factual and legal disputes where, as a matter of law, one side or the other has no case to 

present.1 Accordingly, when it adopted Rule 219(c), FAA decided not to depend on an ALJ to 

prevent needless litigation and provided, in pertinent part, as follows: "A party may file an 

interlocutory appeal ... without the consent of the administrative law judge ... in the case of ... 

(2)failure of the administrative law judge to dismiss the proceedings in accordance with§ 

13.215 .... " (Emphasis supplied.) 

The plain language of the Rule malces it clear that the legal question on appeal is not whether the 

ALJ erred in issuing an order or maldng some sort of affirmative ruling, but whether ( s )he failed 

to take certain action that is required under Rule 215. To underscore FAA's intention to prevent 

an ALJ from allowing wasteful litigation to proceed, Rule 219 specifically provides that, upon 

the ALJ' s receipt of a notice of appeal, "the proceedings are stayed until the FAA decisionmaker issues a decision on the interlocutory appeal." (Emphasis supplied.) 

Accordingly, it is up to the Administrator to review de novo and decide the answer to the legal 

question presented above.2 

FACTS 

There is no dispute that Fisher offered a one-piece shipment containing one liter of sodium 

hydroxide solution (commonly known as "lye") by air in July, 2011, that the package was 

properly declared as containing hazardous material and that it was properly labeled as a "limited 

quantity" shipment. Four years after the shipment, in June, 2015, FAA's Southern Regional 

Counsel ("agency counsel") filed a Complaint alleging, in pertinent part, that the lye was 

packaged in some respect that violated the Hazardous Materials Regulations ("HMRs"). 3 

1 Federal Aviation Administration, "Rules of Practice for FAA Civil Penalty Actions," Final Rule, 55 

Fed. Reg. 27548,27567-68 Quly 3, 1990) ("Final Rule"), codified at 14 C.F.R. Part 13. Previous FAA 

practice, which allowed the government and not private party respondents to file interlocutory 

appeals, was widely criticized as "unfair and has the potential for abuse in unduly protracting 

litigation to the disadvantage of respondents." See also FAA, "Rules of Practice for Civil Penalty 

Actions," Notice of Proposed Rulemaking, 55 Fed. Reg. 15134, 15143 ("Proposed Rule") (Apr. 20, 

1990). 

z Even on an appeal from an Initial Decision by anAL! after a hearing, the FAA decision-maker must 

decide for itself whether the ALl followed "applicable law, precedent and public policy." FAA Rule 

233(b)(2). 

'Complaint at 2 (June 4, 2015) (Exhibit 1) 

Respondent's Appeal of Right 2 
Fisher promptly moved to dismiss the Complaint based, in part, on agency counsel's failure to 

lodge at least one of the key allegations within the two-year time limit established by FAA Rule 

208.' Agency counsel did not file a timely response to Respondent's Motion to Dismiss but the 

ALJ nevertheless moved the case forward. 5 

On April6, 2016, nearly a year after Respondent filed its Motion to Dismiss, the ALJ- without 

first deciding whether the dispositive motions resolved the case or whether Respondent would 

even be required to file an Answer- ordered the parties to meet and confer regarding litigation 

and scheduling issues and to submit a Joint Report on their meeting.6 After extraordinary efforts 

by the undersigned to get anyone in the Regional Counsel's office to return multiple phone calls 

and emails, agency counsel of record, Michelle Harper, Esq., fmally phoned to say she was 

tmable to answer even the most basic questions about the substance of the case because she had 

not looked at the file in years. She promised to review the file the following week and asked the 

undersigned to prepare a Joint Report. Respondent inmtediately offered a draft Joint Report for 

her review and approval, but she never replied, despite more repeated calls from the undersigned. 

Respondent had no choice but to file a unilateral report and moved the ALJ for dismissal and 

other sanctions against agency counsel for ignoring his Order to meet and confer and for failing 

to file any report, in clear defiance of the ALJ's demand.7 The ALJ then issued a Show Cause 

Order that stated an unequivocal threat: the Complaint would be considered "constructively 

withdrawn" unless agency counsel filed "a statement explaining the cause of their failure to 

comply" that "shall include ... the information requested in the Order directing the parties to 

meet and confer.''8 

Despite the ALJ' s unequivocal warning, agency counsel filed no response to the Show Cause 

Order that is cognizable under the FAA Rules and never submitted anything purporting to 

provide the information to be included in the Report required by the April6 Order.9 Someone 

whose name is not typewritten on the document submitted a two-page purported third-hand 

account of a conversation between Ms. Harper and the undersigned, but the agency counsel of 

4 Motion to Dismiss Complaint for Violation of Rule 208 (June 23, 2015) (Exhibit 2) 

s Agency counsel filed a late request for an extension of time- from 10 days to nearly two monthsto reply to the Motion to Dismiss but stated no excuse for their late filing of the request and no 

grounds acceptable under FAA rules for granting it. Opposition to Extension at 2 (July 7, 2015) 

(Exhibit 3). In complete disregard of controlling Rules, the ALl- at that time, judge Goodwinunlawfully granted the extension. Respondent later withdrew the motions it filed in 2015 because, 

after they had languished for 16 months, other reasons to dismiss the Complaint arose and 

rendered them unnecessary. 

6 See Exhibit 4. 7 Respondent's Report in Response to Order and Motion to Sanction FAA's Noncompliance (Apr. 30, 

2016) (Exhibit 5) 

s Order to Show Cause and Provide Requested Information (May 17, 2016) (Exhibit 6) 

9 Agency counsel's purported response to the Show Cause Order is attached as Exhibit 7 to this 

Brief only for the purpose of showing that it was never signed by agency counsel of record. 

Respondent's Appeal of Right 3 
record did not sign the document. Failure to sign and thereby certify the purported response to 

the Show Cause Order violated Federal Rule of Civil Procedure 11 (a), which provides in 

pertinent part that any unsigned "pleading ... and other paper must be signed by at least one 

attorney of record" and that failure to "promptly correct" an unsigned paper after the omission 

has been called to the party's attention leads to a single, mandatory sanction: "the court must 

strike an unsigned paper" (emphasis supplied). FAA Rule 207 is even more explicit. It provides 

that the "attorney of record ... shall sign each document tendered for filing with the hearing 

docket clerk, the administrative law judge, the FAA decision-maker on appeal or served on each 

party" (emphasis supplied). Respondent pointed out this failure and moved again for dismissal. 10 

Instead of dismissing the Complaint, the ALJ ordered the parties to appear at a Pre-hearing 

Conference on October 4, 2016, at 10 a.m. The undersigned counsel for Respondent was present. 

In complete keeping with Southern Regional Counsel's total non-participation in prosecuting the 

case, agency counsel failed to appear at the hearing. The ALJ spent about 20 minutes trying to 

get someone at the office of Southern Regional Counsel to answer their phone. He finally 

rounded up an attorney who was not counsel of record and asked why counsel of record failed to 

appear and participate at the hearing. The attorney offered no excuse for her non-appearance 

and replied that he had no clue where she was.

11 The ALJ asked the attorney whether he was 

prepared to participate in the hearing and present oral argun1ent. The attorney replied, "not 

really."12 Over Respondent's objections, the ALJ insisted on proceeding with the hearing. At 

the conclusion of the hearing, the undersigned objected once again and asked for immediate 

consideration of Respondent's motion to strike the unsigned, purported response to the show 

cause order. 13 The ALJ, without explanation and contrary to FAA Rule 207, not only failed to 

strike the unsigned doCUlllent, he ordered that agency counsel not file a timely response to the 

Motion to Strike. Instead, the ALJ armouoced his intention to "move this case forward."14 

Respondent inrmediately filed the instant Appeal. 

10 See Exhibit 8. 11 Transcript of Pre-Heating Conference ("Conference Transcript") (October 4, 2016) (Exhibit 10) at 

_. Under FAA Rule 219(d), Respondent's Appeal Brief was due within 10 days of the ALj's ruling 

that the case will go forward. The Office of Hearings, however, does not provide hearing transcripts 

within that timeframe. The representations about the content of the hearing are based on the 

undersigned's notes and best recollection and are subject to correction and revision if the 

transcript is contrary in any material respect. 

12 /d. at_. 

13 See Exhibit 9. 

14/d. at_. 

Respondent's Appeal of Right 4 
ARGUMENT 

L THE CRITERIA FOR RECOGNIZING A "CONSTRUCTIVE 

WITHDRAWAL" OF A RESPONDENT'S REQUEST FOR A HEARING 

MUST BE APPLIED EQUALLY TO "CONSTRUCTIVE WITHDRAWAL" 

OF A COMPLAINT. 

The Administrative Procedure Act, 5 U.S.C. § 551 et seq., forbids FAA to adjudicate the 

imposition of a civil penalty on a private party Respondent without first affording an opportunity 

for a fair hearing on the merits of the agency's allegations. For years, private parties have 

complained that FAA's civil penalty procedures are not only unfair, but in plain violation of due 

process rights guaranteed under the Fifth Amendment to the U.S. Constitution. Historically, 

FAA applied several dual standards to private patties and govemment prosecutors in civil 

penalty cases. Private patties were required to verify interrogatory responses under oath; FAA 

agency counsel were not. Private parties could not ftle interlocutory appeals; only FAA counsel 

could. Agency counsel were free to drag cases out long enough to make it difficult to "defend 

against the FAA's allegations because documents are inadvertently destroyed or witnesses 

become unavailable due to the agency's delay. 15 FAA's procedures also were criticized for the 

lack of separation between ALJs who are employed by the Transportation Department and 

prosecuting agency attorneys who report to an "FAA decision-maker" who is supposed to render 

a final decision in an administrative appeal but is "basically prosecutorial in ... outlook and 

orientation." 16 After judicial intervention in the late 1980s, FAA adopted the Rules ofPractice 

that govern today to address criticism that the prior rules were "inadequate to ensure a system of 

adjudication that is both fair and appears fair." 17 

The outcome of the instant appeal will indicate whether FAA is actually abiding by its own 

Rules or falling back into its old ways. The basic issue is whether agency counsel can tal(e a 

"fire-and-forget" approach to prosecuting a civil penalty case. More specifically, denial of this 

appeal would establish one set of rules for "constructive withdrawal" of a private party 

Respondent's Request for a Hearing and a policy of not applying the satne standards to agency 

counsel's conduct to the point of inununizing them against a finding that they "constructively 

withdrew" a Complaint. 

Over many years, ALJs have repeatedly used the failure of a private party in a civil penalty 

proceeding to file a response to a show cause order or other required document as grounds to 

15 See Final Rule at 27552-58; Proposed Rule at 15135-36. 

16 Final Rule at 27551. 

11 I d. at 27550. 

Respondent's Appeal of Right 5 
te1minate the proceedings. 18 More recently, Judge Rawald, the ALJ below, has made prolific use 

of constructive withdrawal, especially in connection with hls April, 2016, mass mailing of 

Orders to Meet and Confer to parties in cases on hls docket When a party, in defiance of the 

ALJ' s Order to Meet and Confer, failed to cornnmnicate with opposing counsel and put them in 

the position of having to file a unilateral report, Judge Rawald repeatedly ruled that this failure to 

respond was, by itself, grounds to conclude that the noncompliant party had constructively 

withdrawn. 19 A party's silence, too, is sufficient grounds to find constructive withdrawaL 20 He 

also found that a party's constructive withdrawal occurs when it "fails to appear at a hearing 

without good cause" and such failure "shall be construed as an abandonment of the hearing 

process."21 Judge Rawald acknowledged that FAA Rule 215 gives hlmno choice in the matter 

because, when a party "withdraw[ s] a request for a hearing ... the administrative law judge shall 

dismiss the case with prejudice."22 

In every case Respondent has been able to identifY, however, constructive withdrawal was used 

against a private party Respondent and never against agency counseL Judge Rawald, in 

particular, seems to have concluded that the government is exempt from requirements to 

participate in the administrative process they began by filing a Complaint 

ll. AGENCY COUNSEL "CONSTRUCTIVELY WITHDREW" THEIR 

COMPLAINT. 

In the cases cited above, the ALJ recited the following fact pattern to justify dismissal of 

Respondents' request for a hearing: 

l. Respondent requested a hearing. 

2. Respondent was served with a Meet and Confer Order and an Order to Show Cause. 

3. Respondent failed to comply with the Meet and Confer Order. 

4. Respondent was "advised in the Order to Show Cause that further failure to participate in 

the proceedings may be deemed a constructive withdrawal of the request for hearing." 

5. Respondent failed to respond to the Order to Show Cause. 

6. Respondent's "failure to participate in the proceedings ... constitutes a constructive 

withdrawal of the Respondent's request for a hearing." 

18 See, e.g., Matter of Bonanza Valley Aviation, Inc., 1994 WL 16054306 (May 4, 1994) (party failed 

to respond to Order to Show Cause); Matter of Edward C. Parks, 1999 WL 33739451 (Feb.17, 1999) 

(party filed no response to Order to Show Cause); and Matter of Butte Aviation, 2004 WL 350392 

(failure to file Answer is "constructive withdrawal of the request for a hearing"). 

19 See, e.g., Matter of Christopher McCann, 2016 WL 3662616 (lune 29, 2016) ("McCann") at 1, n.1 

and Matter of !XL Premium Lubricants, Inc., 2016 WL 3662615 (June 28, 2016) ("'XL") at 1, n.l. 

20 McCann at 2, n.2; !XL at 1, n.2 

21 McCann at 2, n.3; !XL at 1, n.3 (Emphasis supplied.) 

22 McCann at 2; !XL at 2 (Emphasis supplied.) 

Respondent's Appeal of Right 6 
In the instant Appeal, the fact pattern is as follows: 

1. Complainant filed a Complaint. 

2. Complainant was served with a Meet and Confer Order and ordered to file a Joint Report. 

3. Complainant refused to comply with the Meet and Confer Order and never filed either a 

Joint Report or a Unilateral Report. 

4. Complainant was served with an Order to Show Cause and threatened with dismissal if 

agency counsel failed to "file a statement explaining the cause of their failure" and 

include "information requested in the Order." 

5. Complainant filed no statement explaining the cause of their failure or including the 

requested information. 

6. In fact, Complainant filed no cognizable response whatsoever to the Order to Show 

Cause because the document agency counsel submitted was not signed by counsel of 

record and must be stricken from the record tmder FRCP ll(a) and FAA Rule 207. 

7. Counsel of record did not even bother to appear at the Pre-Hearing Conference ordered 

for October 4, 2016. 

Certainly by the time agency counsel neglected to appear at the October 4 hearing, the ALJ was 

obligated to recognize a constructive withdrawal of the Complaint. If the FAA decision-maker 

rejects the instant Appeal and finds that such a constant lack of participation by agency counsel 

does not necessitate a finding of constructive withdrawal of a Complaint, agency counsel can 

consider themselves immune from dismissal. In effect, rejection of the Appeal would establish a 

"one-strike-and-you're-out" rule fm private party Respondents and a blind eye toward exactly 

the same conduct by the government. That would put FAA back in federal court to explain how 

such disparate treatment can possibly comport with Constitutional due process guarantees, much 

less be perceived as fair by the regulated community. 

Ill. UPON WITHDRAWAL OF A COMPLAINT, RULE 217 REQUIRES THAT 

AN ALJ "SHALL DISMISS" THE CASE WITH PREJUDICE. 

FAA Rule 217 is unequivocal. It specifically states that "an agency attomey may withdraw a 

complaint ... without the consent of the administrative law judge. If an agency attorney 

withdraws the complaint ... the administrative law judge shall dismiss the proceedings ... with 

prejudice." (Emphasis supplied.) 

As Part II above explains, agency counsel constructively withdrew their Complaint on multiple 

occasions: by ignoring the Order to Meet and Confer; by failing to ftle the report required in that 

Respondent's Appeal of Right 7 
Order; by failing to file a signed response to the Order to Show Cause; and, fmally, by not 

bothering to appear at the Pre-conference Hearing the ALJ convened on October 4. They 

required no approval or recognition of their withdrawal by the ALJ. The FAA decision-maker, 

in turn, has no choice under FAA Rule 215 other than to "dismiss the proceedings ... with 

prejudice." 

WHEREFORE, Respondent respectfully requests the agency decision-maker to order immediate 

dismissal with prejudice of the above-captioned matter. 

Dated: October 13, 2016 

Respondent's Appeal of Right 

Alexandria, VA 22314 

(email) ](:_;)cs,;r;c•fllQlni'c's(':accoJ,"':~'sg':.E'i~'i.Q:•••·· 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

8 
CERTIFICATE OF SERVICE 

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

of the foregoing Notice on each of the persons listed below. 

0 [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 

0 [Original+ One Copy by Hand] 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Wilbur Wright Bldg., Suite 2Wl000 

600 Independence Ave., S.W. 

Washington, DC 20591 

0 0 [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 

1701 Co1umbiaAve. 

College Park, GA 30337 

Respondent's Appeal of Right 

0 [One Copy by air courier] 

The Hon. Douglas M. Rawald 

Office of Hearings, M-20 

U.S. Department of Transportation 

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

Washington, DC 20590 

00 [Original+ Three Copies by Air Courier] 

Federal Aviation Administration 

800 Independence Ave., S.W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Bnilding- Suite 2W1 000 

0 [One Copy by U.S. 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 

Jerry . 

9 
Exhibit 1 
U.S. DE.P ARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FE.DE.RALAVIAHON ADMIN1STRATWN 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. FAA Docket No. 

JUDGE NOT YET ASSIGNED 

FISHER SCIENTIFIC COMPANY, L.L.C. 

Respondent. 

COMPLAiNT 

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, 

pursuant to Rule 208 of the Rules of Practice (14 C.F.R. 13.208), and states as follows: 

I. 

On May 18, 2015, Respondent, Fisher Scientific Company, LLC was advised through a Final 

Notice of Proposed Civil Penalty that the FAA proposed to assess a civil penalty in the amount 

of $6,500. On June 1, 2015, the Agency Attorney received a written request for a hearing from 

the Respondent. 

II. 

l. On or about July 20, 2011, Fisher Scientific Company, L.L.C, ("Fisher") knO\XJingly 

offered to United Parcel Service (UPS) a one piece shipment consisting of a 

specification fiberboard box containing hazardous materials for transportation by air. 

2. The above-mentioned shipment, assigned UPS tracking number/air waybill number 

1Z9V34911325638264, was offered by Fisher for next day air transportation to the 

consignee, Genova Diagnostics, 63 Zillicoa Street, Asheville, NC 28801. 

3. On or about July 21, 2011, ground handling personnel at the UPS sort facility 

discovered the above-mentioned shipment leaking. 

4. The above-mentioned specification fiberboard box contained a one !-liter plastic 

bottle (with friction or screw-type cap) of "Acros Sodium Hydroxide lN Standard 

Solution." 
5. (a) "Acros Sodium Hydroxide IN Standard Solution" is classified as a hazardous 

material under the Department of Transportation Hazardous Materials Regulations 

(HMR) (49 C.F.R. § 172.101). 

(b) The proper shipping name of the material is sodium hydroxide solution. It is in 

Hazard Class 8 (Corrosive Liquid), Packing Group II, and has an assigned 

identification number ofUN1824. 

6. Further investigation showed that approximately 2 ounces of the above-described 

material had leaked into and through the fiberboard container. 

7. Fisher offered the above shipment of hazardous material for transportation by air and 

failed to use a means of containing the liquid in the form of a leakproof liner, plastic 

bag or other equally efficient means of containment. 

8. Fisher offered the shipment of hazardous materials for transportation by air and failed 

to package it so there would be no identifiable release of hazardous material to the 

environment. 

9. Fisher offered the shipment of hazardous materials for transportation by air and failed 

to ensure the closure was secure and leakproof. 

10. By reason of the above, Fisher violated the following Department of Transportation 

Hazardous Materials Regulations (Title 49 of the Code of Federal Regulations): 

a. Section 173 .24(b )( 1) in that Fisher failed to use a package which was 

designed, constructed, maintained, filled, its contents so limited, and closed, 

so that under conditions normally incident to transportation, there would be no 

identifiable release ofhazardous material to the environment. 

b. Section 173.24(f)(l) in that Fisher failed to use a package which had closures 

so designed and closed that under conditions (including the effects of 

temperature and vibration) normally incident to transportation, (i) there would 

be no identifiable release of hazardous materials to the environment from the 

opening to which the closure was applied, and (ii) the closure would be secure 

and leakproof. 

c. Section 173.27(e) in that Fisher failed to ensure that except as otherwise 

provided in this subchapter, a package containing liquids hazardous materials 

in Class 3, 4, or 8, or Division 5.1, 5.2 or 6.1 that are packaged and offered for 

transport in glass, earthenware, plastic, or metal inner packagings were 

packaged with absorbent materials as follows: ... 

(3)When absorbent materials are required and the outer 

packaging is not liquid tight, a means of containing the liquid 

in the event of a leakage must be provided in the form of a 
leakproof liner, plastic bag or other equally efficient means of 

containment 

Pursuant to 49 U.S.C. Section 5123(a), Fisher Scientific Co., L.L.C. is subject to a civil penalty 

not lower than $250 ($450 for training-related violations), nor greater than $75,000 ($175,000 if 

death, serious illness, severe injury, or substantial property damage results), for each violation of 

the Department of Transportation Hazardous Materials Regulations. 

Under the facts and circumstances of this case, a civil penalty of $5,850 is appropriate. This 

amount includes consideration of the Respondent's timely corrective action. 

\VHEREFORE, the Agency, by counsel, respectfully requests that the Administrative Law Judge 

enter an order that Respondent be assessed a civil penalty in the amount of $5,850. 

Attorney 

Office of the Regional Counsel 

PLEASE NOTE: 

Pursuant to Title 14 CFR Section 13.209(a), the Respondent is required to file a w-ritten answer 

to this Complaint, or a written Motion to Dismiss if appropriate, not later than 30 days after the 

date shown on the Certificate of Service which follows. 
Exhibit 2 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

FEDERAL AVIATION ADMINISTRATION, } 

Complainant, 

v. 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

FISB.~R SCIENTIFIC COMPANY, LLC, 

Respondent. 

} 

} 

} 

} 

} 

} 

Judge Goodwin 

MO'fiONS TO DISMliSS COMPLAINT 

FOR JINSUFFICIENCY AND FOR 

COMPLAJINAN'f'S VIOLATION OF RULE 208 

Respondent Fisher Scientific Company, LLC, a subsidiary of Thermo Fisher Scientific, Inc., 

(hereinafter referred to as "Fisher") moves to dismiss the Complaint in the above-captioned civil 

penalty proceeding on the follo-,ving two independent grounds. First, the Complaint fails to state 

a "knowing" violation for which a civil penalty may be imposed. Second, by including 

allegations that were first made more than three years after the alleged incident, the Complaint 

violates Rule 208( d) of the Federal Aviation Administration's (hereinafter "FAA's" or ''tbe 

Agency's") Rules of Practice ("Rules"). 

FAA's South em Regional Counsel ("Regional Counsel," "the Government" or "Complainant") 

makes, among others, two allegations concerning acts Fisher allegedly committed almost four 

years ago, on July 20, 2011, when Fisher shipped a single liter of a corrosive liquid commonly 

known as lye. First, Regional Counsel alleges that Respondent "knowingly offered ... a ... 

shipment ... containing hazardous materials for transpmtation by air." Compl. ~ 1. Second, 

Regional Counsel claims Respondent "violated the ... hazardous materials regulations" 

("HMRs") because it "failed to ensure that [the bottle of lye was] ... packaged with absorbent 

materials .... " CompL 'U 1 O.c. 
Respo11dent's Motion to Dismiss 

Motion to Dismiss for Insufficiency 

The Hazardous Materials Transportation Act (HMTA"), Pub. Law No. 93-633,88 Stat 2156, 

2160 (Jan. 3, 1975), codified as amended at49 U.S.C. § 5123(a)(l) (2011), allows the 

Government to impose a civil penalty upon a "person who knowingly committed an act which is 

a violation of' the HMRs (emphasis supplied). A later recodification made a non-substantive, 

editorial change. It reworded the sentence to say the Government may impose a civil penalty on 

a "person that kno'iliingly violates" the HMRs. Nowhere in the Complaint does Regional 

Counsel allege that Fisher "knowingly" committed any act which is a violation of any HMR. It 

merely states that Respondent "knowingly offered" a declared shipment of hazardous materials. 

There are other, more specific allegations in the Complaint, but none of them allege a "!mowing" 

violation. In the example referenced above, Regional Counsel clain1s Respondent "violated" 49 

C.F .R. § 173.27( e), but there is no allegation that Fisher "knowingly" committed any act which 

violates it. 

The cited HMR applies certain packaging requirements to some hazardous materials shipments 

but not to others. In this case, the lye was a "lin1ited quantity" shipment that was exempt from 

the specification packaging requirements and otherwise fully complied with all applicable 

HMRs. However, even if one were to assume that§ 173.27(e) did apply to the shipment when it 

was offered in 2011 and that Fisher failed in some respect to comply with it or any other HMR, 

the HMTNs civil penalty provision, as amended by the Hazardous Materials Transportation 

Unif01m Safety Act ofl990 ("HMTUSA"), Pub. L. No., 101-615, 104 Stat. 3244, 3259 (Nov. 

16, 1990), codified at 49 U.S.C. § 5123(a)(l)(A) and (B) (2011), unquestionably requires the 

Agency to allege and prove that Fisher "knowingly committed an act which is a violation of' that 

or some other HMR. 

As explained in greater detail in Respondent's Memorandum in Support of the Motions to 

Dismiss, the statutory language governing the instant civil penalty proceeding is plain and 

unambiguous. Even if there were some reason to consider it ambiguous, the legislative history 

of clauses (A) and (B), which were added by the HMTUSA, leave no doubt that Congress 

adopted anew definition of the tern1 "lmowingly" for the specific purpose of prohibiting the 

Government from imposing a civil penalty in a case involving transpo1tation of hazardous 

materials unless it can show that the Respondent had actual knowledge that its act or omission 

violated the HJI;1Rs or that its noncompliance resulted from some specific act of negligence on 

the part of the Respondent. 

Accordingly, the Complaint fails to state a violation of the federal hazardous materials 

transportation statute or regulations and must be dismissed for insufficiency pursuant to Rule 

218, 14 C.F.R. § l3.218(f)(l). 

2 
Respondent's Motion to Dismiss 

Motion to Dismiss for Asserting a Claim About Wnich the Government Failed to Give Timely 

Notice 

As noted above, Regional Counsel asserts, among other claims, that Respondent "violated the ... 

hazardous materials regulations" because it "failed to ensure that (the bottle oflye was] ... 

packaged with absorbent materials .... " The HMRs imposed no such requirement on the 

shipment at issue in this case, but even if one were to assume that there was a requirement for 

packaging the subject limited quantity oflye with absorbent materials, Regional Counsel was 

obligated to give timely notice that the Government planned to base its Complaint on such a 

claim. 

FAA served a Notice of Proposed Civil Penalty ("the Notice") on July 3, 2013. During an 

Informal Conference, Respondent pointed out to Regional Counsel that the Notice was ex post 

facto, based almost entirely on HMRs that were not in effect in July, 2011, when Fisher shipped 

the subject package. The Notice contained no allegation whatsoever that Respondent was 

obligated to include "absorbent materials" or that Fisher failed to do so when it packaged the lye. 

In fact, this Notice did not even mention "absorbent materials." The first Notice of this claim 

was served not Vvithin two years, as required, but more than three years after the alleged 

incident, in FAA's Amended Notice of Proposed Civil Penalty ("the Amended Notice") dated 

July 24, 2014. Amended Notice~ f. 

Rule 208( d)(2) ofF AA 's Rules provides, in pertinent part, that the judge "may dismiss the 

complaint or that part of the complaint alleging a violation that occurred more than two years 

before an agency attorney issued the notice of proposed civil penalty" to the respondent "(i]fthe 

agency fails to show good cause for any delay .... "(Emphasis supplied.) 

There is no excuse or other good cause for Regional Counsel to keep Respondent in the dark for 

more thao three years about the Agency's intended allegations. To reward Regional Counsel's 

failure to give timely notice by alloVving this case to proceed would defeat the stated pmposes 

aod policies of Rule 208, grossly prejudice Respondent's opportunity to defend itself and 

constitute a denial of Respondent's due process rights under the U.S. Constitution. 

WHEREFORE, Respondent respectfully moves to dismiss the Complaint on the following two 

independent grounds: first, for insufficiency pmsuant to Rule 218, 14 C.F.R. § 13.218(f)(l); 

and, second, to dismiss the Complaint for violating Rule 208 pursuant to 14 C.F.R. § 13.208(d). 

Even if the Complaint is not dismissed outright on acc01mt of Regional Counsel's violation of 

Rule 208, that portion of the Complaint alleging a failure by Respondent to include "absorbent 

materials" in the packaging for the subject materials (i.e., all of Complaint -,r 10.c.) should be 

stricken, as alternatively provided in Rule 208( d). 

3 
Respondent's Motion to Dismiss 

Respondent recognizes the importance of the issues presented in this case to hazardous materials 

civil penalty cases in general and respectfully requests an opportunity to present oral argument in 

person on these motions. 

Dated: June 23, 2015 

Vienna. VA 22180 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 
Exhibit 3 
U.S. DEP AJ1TJYIENT OF T~F>TSPORTATION 

OFFICE OF HEA.Rll"'lGS 

WASHINGTON, DC 

FEDERAL AVIATION ADMINISTRATION, } 

Complainant, 

V. 

FISH!;;RSCIENTII<'IC COMPAK\', LLC, 

Respondent. 

l 

} 

'-

) 

} 

} 

} 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Goodwin 

RESPONDENT'S OPPOSITION TO 

COMPLAil'lAN'I'S MOTION FOR EXTENSION 

Respondent Fisher Scientific Company, LLC, (hereinafter referred to as "Fisher") moved on 

June 23, 2015, to dismiss the Complaint in the above-captioned civil penalty proceeding because 

the Complaint fails to state a "!mowing" violation for which a civil penalty can be imposed and 

included allegations that were out-of-time 8l1d in violation of the Federal Aviation 

Administration's (hereinafter "FAA's" or"the Agency's") Rules of Practice ("Rules"). Instead 

of filing a timely response permitted by Rule 13.218(d), FAA's Southern Regional Colillsei 

("Regional Counsel") moved for an "Extention [sic, Extension) to File Response." Regional 

Counsel failed even to allege the presence of any grounds to gr8llt 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 Colmsel must be considered to 

have waived FAA's opportunity to respond to Respondent's Motions to Dismiss. 

Rule 13.213(b) is clear. As with any other party, an FAr'\. "motion for 811 extension of time" 

must be filed with the judge "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. A judge 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 assettion that FAA had "good cause" to file zero days ahead of the due date 

instead of seven days ahead, as unequivocally required under the Rules. 

In any case, the Rules allow a judge to grant an extension of time to respond to a Motion to 

Dismiss only "if good cause for the extension is shown." Once again, Regional Cotmsel failed 
Respondent's Opposition to Motion for EJ;.1ension 

even to include so much as a declarative statement that such grounds exist. TI1e Motion states 

that FAA desires "an extension in order to effectively respond [sic]." It does not even suggest 

there are any special circumstances or any other reasons whatsoever to conclude that the time 

otherwise allowed by the Rules was inadequate. Absent those circumstances, the Motion for 

Extension would have failed even if it had been timely filed. 

Regional Counsel goes on to claim that Fisher will not be "prejudiced by an extension." TI1is 

statement is false but, even if it were true, it does not constitute "good cause" for pennitting FAA. 

to ignore the seven-day advance filing mle for its Motion for El>.'i:ension or the 1 0-day rule for 

ftling FAA's response to Respondent's Motion to Dismiss. Rule 13.213(b) is meaningless if 

Regional Counsel can avoid it without malcing any pretense of an affirmative sho·wing why the 

requested extension is necessary. 

Regional Counsel's Motion is merely the latest example of how FAA's handling of this matter 

has prejudiced Fisher's ability to defend against the Complaint. The alleged incident occmTed in 

July, 2011. FAA did not file any Notice in the matter until July, 2013. That Notice made no 

allegation whatsoever that Fisher ±ailed to employ a particular type of packaging product. FAA 

filed another Notice in July, 2014, more than three years after the alleged incident, which is 

based almost entirely on the previously missing allegation about packaging. FAA then waited 

until June, 2015- ahnostfour years after the event-to file its Complaint. When Fisher moved 

to dismiss the Complaint in part because of FAA's dilatory approach to the case, Regional 

Counsel's only response has been to seek an extension to August 3, 2015, a date that is beyond 

four years after the event. 

Meanwhile, FAA has overseen or pennitted the destmction of crucial evidence. If tllis case 

eventually goes to a hearing, witnesses on both sides potentially will be required to rely on 

nothing more than faded recollections. 

\V'HEREFORE, Respondent prays that Regional Counsel's ]lv'!otion for E:A'i:ension be DENIED. 

'i 

Dated: July 7, 2015 

"1 - I Jerry vf. Cox, .t.sq. ' 

I . 

272~fiallows Rd., Smte 401 

Vienna, VA 22180 

(email) · 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 
Exhibit 4 
In The Matter Of: 

SERVED: April6, 2016 

U.S. DEPARTivJENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHJNGTON, DC 

Docket No. FAA-2015-1321 

Fisher Scientific Company, LLC 

) 

) 

) 

) 

) 

Case No. 201180700457 

Respondent 

ORDER DIRECTING THE l' ARTIES TO MEET AND CONFER REGARDING 

LITIGATION AND SCHEDULING ISSUES 

The above captioned case was reassigned to the undersigned judge on March 24, 2016. By 

order of the Chief Administrative Law Judge, any previously established date for a prehearing 

conference or trial was suspended. Those dates are now vacated and there is a need to establish a 

new litigation schedule for this case. To assist the undersigned judge, the parties should meet 

and confer to propose a mutually agreeable schedule. 

An administrative law judge may hold conferences to, among other things, "settle [or J 

simplify the issues by consent of the parties."1 Pursuant to 14 C.F.R. § 13.205(a)(l) and (7), it is 

hereby ORDERED: 

1. The parties shall privately conduct an informal conference to meaningfully discuss 

litigation issues and proposed scheduling. 

2. The parties shall draft a joint report providing: 

a. a suggested venue, 

b. a proposed schedule for the completion of discovery (or an indication that 

discovery is complete), 

c. a list of any pending motions. that have been previously filed but have yet to be 

ruled upon, 

d. a proposed date for a telephonic prehearing conference with the undersigned 

judge, 

I 14 C.F.R. § 13.205. 
e. a proposed due date for the filing of any prehearing motions (including a 

proposed date tor a telephonic hearing on any filed motions, if so desired), and 

f. proposed hearing dates. The parties should provide at least three alternative dates 

on which the hearing may be held that are acceptable to all parties. 

3. In addition to filing the report with the Federal Aviation Administration Hearing Docket 

Clerk in accordance with \4 C.F.R. § 13.2\0, the parties shall submit the report to the 

undersigned judge at the Office of Hearings by fax, express carrier, or personal delivery 

no later than 30 calendar days after the date of service of this order. 

Administrative Law Judge 

Attachment: Service List 

2 
Exhibit 5 
WA§HJINGTON,DC 

FEDERAL AVU\.'fiON .fo.D!VilJ'<!J[§TRATION, } 

Complainant, } 

} 

v ) 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA_-2015-1321 

} (Civil Penalty Action) 

FKSH!i<:R SCJIENTIFKC COIVIPAl'fY, LJLC, 

Respondent. 

) 

} 

Judge Rawald 

REPORT OF FISRiF:R SCJIENTIFJ!C IN RESPONSE TO 

ORDER SERVED APIDJL 6, 20hi, 

AJ\]]J}i 

MOHON 1'0 SANCTJI:ON FftcA'S NONCOJYIJPUANCE 

By Order enteredApril6, 2016, JudgeRawald directed Complainant, the Southern Regional 

Counsel of the Federal Aviation Administration (hereinafter refe11 ed to as "F A.A.") and 

Respondent Fisher Scientific Company, LLC (hereinafter "Fisher"), to tile a Joint Report 

addressing certain pre-hearing matters that were listed il> the Order, including "a list of any 

pending motions that have been previously filed but have yet to be ruled upon." 

Fisher regrets to report that FAA counsel essentially went "AWOL" and thwarted Fisher's 

diligent efforts to respond to the Order with a Joint Report. Fisher's undersigned counsel 

telephoned the FA.A. attorney identified on the service list (JVfr. Vines) on April 15,2016. Mr. 

Vines did not answer his telephone, so Fisher's counsel left a voicemail stating that the call was 

in reference to the April 6 Order. Jl!ir. Vines never retnrned the calL On April 18, the 

undersigned counsel emailed Mr. Vines, requesting a response to the April 15 voicemaiL On 

April 19, lJk Vines responded that a different FAA attorney was handling the case, even though 

FAA never updated the service list 

On April 20, Ms. Michelle Harper phoned to say she was the attorney responsible for FAA's 

compliance with the Order. She asked Fisher's counsel to prepare a dnn"t Joint Report, which the 

undersigned emailed to her a few minutes later. Fisher requested that she either concur >vith the 

draft and sign it or suggest any edits she thought appropriate. Ms. Harper did neither. 
Report of Fisher Sdentijlc 

A week later, on April27, the undersigned phoned Ms, Harper but, once again, she did not 

answer her telephone. Fisher's cow1selleft a voicemail reminding her that Fisher was 

detem1ined to comply with the Order but- without any response from her- it would be 

impossible to file the required Joint Report. Ms. Harper never responded to the voicemail. On 

April 29 -the deadline for finalizing and mailing the Joint Report- the undersigned telephoned 

Ms. Harper again, but she did not answer her telephone. Fisher's counsel indicated in a voice 

mail that ifF AA continued to ignore the proposed draft of the Joint Report, Fisher would have 

no choice but to withdraw it and file its own unilateral response to the Order. Ms. Harper did not 

return the call or otherwise respond. 

F AJ..i's apparent disregard of the April 6 Order is just the latest chapter in a five-year history of 

the Office of Southern Regional Counsel dragging its feet and utterly ignoring applicable laws 

and Rules of Practice. 

This case arises from an alleged incident that occurred ±1ve years ago, on July 21, 201 l. F A~A,. 

waited until days before Lh.e statute of limitations expired and filed a Notice of Proposed Civil 

Penalty in July, 20 !3. After Fisher pointed out that the Notice was based on regulatory 

requirements that were not in effect in 2011, FAA filed an Amended Notice on July 24, 2014, 

more than Lhree years after the alleged incident and more than one year after the statute of 

li1nitations expired. 

FAA waited almost another year, until June, 2015, to file its Complaint. On June 23, 2015, 

Respondent Fisher filed a Motion to Dismiss the Complaint for legal insufficiency and for being 

ba1red by the statute of limitations. The F p._p._'s own Rules of Practice allowed FAA 10 days to 

oppose Fisher's Motion to Dis!Iliss, but the agency did not file its Memorandum in Opposition 

until August 17, 2015, almost two months a..fTer it was due. Fisher's Motion to Dismiss has been 

pending for nearly a year. 

The most appropriate way to sanction such egregiously dilato:ry conduct and get this a..ncient case 

off the docket would be to order Southern Regional Counsel to SHOW CAUSE why dismissal 

should not be ordered on one or more of the following grounds: 

L FAA.'s failure to comply with the April6, 2016, Order. 

2. FA_A.'s default in failing to file a timely opposition to Respondent's June 23, 2015, 

Motion to Dismiss. (No extension was permitted under FAA's Rules of Practice for the 

reasons stated in Respondent's Opposition to FAA's Motion for Extension.} 

3. FAA's decision to wait more than three years after the alleged incident and more than a 

year after the statute of limitations expired to lodge cmcial allegations in the A1nended 

Notice. (Respondent's Memorandum in Support and its December 21,2015, Reply to 

F.A_A.'s Memorandum in Opposition, an additional copy of which is ar-t.ached, explain in 

detail why the case is barred as out-of-time.) 

2 
Report if Fisher Scientific 

4_ FAA's failure to state a legally sufficient daim, as explained in Respondent's abovereferenced Memorandum in Support il!id its Reply to FAA's Memorandum_ 

WHEREFORE, Respondent respectfully requests the Judge to command Agency respect for his 

Orders il!id for the substantive il!id procedural laws underlying the above-captioned case by 

DISl'tiliSSmG w1th prejudice FAA's Complaint 

Respondent reiterates its request for in-person oral argument on the issues presented by its 

pending motions. 

Dated: April30, 2016 

Respectfully submitted, 

_ .. ~-. .. 

Jerry w: C~x, Esq. 

2050 Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

(email) ,l~,c-~·-=cc ___ ~-""-"~ c~'-"-=''cco'c~-~~---

(tel) 703-757-5866 

Counsel for Thenno Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

3 
Exhibit 6 
In The l\llatter Of: 

U.S. DEPARTMENT OF TP-ANSPORTATION 

OFFICE OF :HE.AlUNGS 

W ASHTI\TGTON, DC 

) 

l Docket No. FAA-2015-1321 

Fisher Sciemific Company, LLC ) 

) Case No. 2011S0700457 

Respondent ) 

ORDER TO SHOW CAUSE AND PROVIDE REQUESTED KJ\!FOR!\1A.T!ON 

On Ap1il 6. 2016, the undersigned judge issued an Order Directing the Pmiies to Meet and 

ConfeT Regarding Litigation and Scheduling Issues in the above captioned case. The order 

required. inter alia. the parties to submit a joint report to the Lmdersignedjudge wit'lin 30 days of 

that order. 

On April30. 2016. the Respondent tiled a unilateral report. stating that his atiempts to meet 

and confer with the Complainant had ±ailed. 1 

The Complainant failed to submit a repo1t or request for additional time before the d.ead!ine2 

In accordance with 14 C.F.R. § l3.205(a)(6), an administrative law judge is empowered to 

regulate the course of a hearing. As previously noted by the Fii..A Administrator: 

[t]he Administrator expects that the parties will comply with orders issued by an ALJ during the 

hearing stage of a proceeding. Ignoring an ALJ" s orders carmot be countenance-d in an orde-rly 

system of adjudication.:~ 

The pmties are theretore reminded that failure to follow the undersigned administratiYe ia>v 

judge's orders vvithout good cause may result in sm1ctions.4 MmeoveL continued failure to 

'Respondent failed, however, to provide all the information requested in the April 6, 2016 Meet and Confer Order. 1 Counsel for the Complainant filed a notice of appearance on IV1ay 10, 2016~ but failed to include the infonnarion 

required by rhe undersigned judge"s Apri16. 2016 Meet and Confer Order or offer a response to Respondent's 

assertions \Vithin his April 30~ 2016 repmt. Notably~ the counsel making her appearance \Vas the same person 

Respondent's counsel had com:sponded with regarding this matter as early as April20, 2016. This counsel was 

therefore assigned to this matter well before the deadline tc1r filing a response to the April 6, 20 I 6 Meet and Confer 

Order. 

'American Airlines, inc., FAA Order No. 2002-15, at 9 (May 20, 2002). 

'S2e id. ("Parties who disregard the ALJ"s orders do so at tl1eir own peril because the Administ·ator on appeal will 

uphold any reasonable sanctions pennitted by the Rules of Practice that the ALJ imposes against a party for that 

behavior.'\ 
participate in the proceedings as directed by the undersigned judge may be deemed_ a 

constructiv-e withdrawal of the request tor hearing or complaint by the party demonstrating such 

a lack of interest in participating in these proceedings. 5 

Pmsuantto 14 C.F.R. § 13.205(a)(l), (6). and!}), it is hereby ORDERJED: 

1. No later than June 1, 2016, the Respondent shall ±ilea Teport including all of the 

infonuation requested in the Order Directing the Parties to Meet and Confer Regarding 

Litigation and Scheduling Issues. 

2. No later than June 1, 2016. the Complainant shall file a statement explaining the cause of 

their failure to comply with the Order Directing the Parties to Meet and Confer Regarding 

Litigation and Scheduling Issues. 

3. The Complainant shall include in their statemem the i:ofom1ation requested in the Order 

Directing the Parties to .!vleet and Confer Regm·ding Litigation and Scheduiing Issues. 

4. If the Complainant fails to file t..h.is statement by the above deadline, the undersigned 

judge may issue a subseqllent order finding the Complainant has constmctively 

"';ithdrawn from these proceedings and, pursuant to 14 Cf .R, § 13 .215, dismiss the ease 

with prejudice. 

Attachment: Service List 

DOUGLAS M. RA.WALD 

Administrative Law Judge 

5 See. e.g .. IAL Power Supply, Docket No. CP01 SOOO 15 (FAA Aug. 7, 2001) (ALJ constmed Respondent's silence 

as a consnuctive withdrawal of request for a hearing), appeal dismissed. F A..t\ Order No. 2002-1 0 (Apr. 17, 2002): 

B!ankson, Docket No. CP97EA0024 (FAA Sep. 11, 1997) (ALJ found failw·e to respond to prev-ious orders 

constinned constructive \vithdrawal)) af{'d: FAA Ord~r No. 98-11 (Oct 9, 1998). See also Instead Balloon SerTices~ 

FA.i\ Order No. 1998-23. at 3 CNov. 24, 1998) (affmning ALl's decision to tind constructiv.::: withdrawal when a 

pnny failed to appear at the l1eariug \vithout good cause)~ Apollo A & HS CompWD', fAA Order No.20 11-4-, at 4 

(Jan. 14, lOll) ("Apollo's failure to appear at rlre hearing and lo pursue irs request for hearing without good cause 

constituted a constTuctive ;,vitbdra.wal of its request for bearing."). 
Exhibit 7 
UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

FISHER SCIENTIFIC LLC 

Docket No. F AA-2015-1321 

(Civil Penalty Action) 

Judge Douglas M. Rawald 

COMPLAINANT'S RESPONSE 

TO SHOW CAUSE ORDER 

Complainant, by and through the undersigned counsel, hereby files its Response 

to the Order to Show Cause and Provide the Requested Information served May 17,2016, 

and states the following: 

1. Respondent's counsel and the undersigned attorney exchanged several emails on 

Aprill9, 2016, and agreed to "meet" April20, 2016 at 11 a.m. to discuss the case 

in accordance with the terms of the Order Directing the Parties to Meet and 

Confer. See Exhibit 1. 

2. On April 20, 2016, the undersigned and Respondent's counsel had a lengthy 

phone call discussing the issues in the case, as well as the information required by 

the Order Directing the Parties to Meet and Confer. At the end ofthe phone call, 

the parties agreed (emphasis added) that the information sought in the Order 

Directing the Parties to Meet and Confer could not be provided until there was a 

ruling on Respondent's Motion to Dismiss. Therefore, the parties agreed 

(emphasis added) to submit as such as their Joint Report. 

3. During this same phone call, Respondent's counsel offered to prepare the Joint 

Report for his signature, as well as the undersigned's signature. He emailed the 

report on April 20, 2016. See Exhibit 2. The Joint Report contained several errors, 

including the undersigned's name and appropriate FAA office. However, before 

the undersigned could correct those errors, Respondent's counsel filed his 

unilateral report and motion for sanctions. 

4. Complainant submits Respondent's motion for sa.nctions is disingenuous on its 

face. The parties did indeed meet and confer on April 20, 2016, as required. The 

parties had a thorough discussion of the underlying facts of the case and stated 

their respective positions. At the end of the discussion, both parties agreed it 
would be difficult to establish litigation deadlines without having a ruling on the 

pending motion to dismiss. Consequently, both parties agreed to submit that 

statement in response to the judge's order. Thus, Respondent's assertion that the 

conference did not take place is without merit. 

5. Equally unmeritorious is Respondent's assertion that the undersigned went 

"AWOL" Respondent claims several messages were left that were unreturned; 

however, the undersigned did not receive any voicemail messages. Furthermore, 

the undersigned did not receive any email messages from Respondent. 

6. Assuming, arguendo, Complainant did not return Respondent's messages, 

Complainant submits Respondent could have submitted a joiot report and 

indicated the undersigned agreed with the position articulated, even without the 

undersigned's signature. Instead, Respondent filed a pleading with the Court that 

was filled with mistruths. · 

7. With respect to the information requested in the Order Directing the Parties to 

Meet and Confer, Complainant submits Respondent's pending motion to dismiss 

is possible dispositive to the case. Therefore, Complainant requests that any 

litigation scheduling/deadlines and venue decisions be postponed until a ruling on 

the pending motion to dismiss. 

WHEREFORE, based on the foregoing, Complainant respectfully requests 

Respondent's Motion for Sanctions be denied. Additionally, Complainant requests any 

litigation scheduling be postponed until there is a ruling on Respondent's pending motion 

to dismiss. 

Submitted this 31" day of May, 2016. 

~J ,?/6, )Jd/lll.f-~ ;1-f/or/Je}/ 

in· 

ANDREA MICHELLE HARPER 

Senior Attorney 

Office of the Chief Counsel 

Enforcement Division, Southern Team 

2 
Exhibit 8 
U.S. DEl" t'JTlVi:ENT OF 'IP"'"<\U'TSPORTA 'II ON 

OFF.!:CE OF HEiLilUNGS 

WASBINGTON, DC 

FEDERAL AVIATION ADlYiiii'HSTlli.ATION, } 

Complainant, } In the Matter of Fisher 

Scientific Company, LLC 

Docket No. F.AA-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

} 

v_ } 

} 

FISl!i_!<_,R §CIENTJIF][C COlVWAl'-IY, LLC, } 

Respondent. } 

RESPONDENT'§ REPORT JfN 1tE§PONSE 

TO O:R!J;ER ][§§UED JUNE 2, 2016, 

TO PROVIDE REQUESTED JfNFOiRivJI.ATKOfi 

AND 

REPLY TO CO!VWLA_Il'lAN'I'§ RESPOI~SE TO SHOW-CAUSE ORDER 

ISSUED lVI:A Y 17, 2ill6 

Historv of the Proceedings 

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

"F !LA") 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 

F fi~A..'s failure to explain how the shipment couid possibly have involved any kl1m'~<ing violation 

of the Hazardous Materials Regulations ("Hl\/!Rs''). 

Fisher participated in tvvo "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 Cmn1sel served July 3, 2013, included downright bizarre factual 

allegations and was based entirely on I:iMRs 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 (just one liter) was so small, the shipment was a 

"limited quantity" ("LQ") that was exempt fi·om certain packagi_11g and other requirements that 

would otherwise have applied. Regional Counsel wrote the NO PCP in 2013, after the maximum 

volume for an LQ of lye decreased to one-half liter, but the change in the l":JV!Rs was not and 

could not be retroactive to a shipment in 201 L 

More than a year later, on July 24, 2014, Regional Cmmsel served ail P.inended Notice of 

Proposed Civil Penalty ("Al'!OPCP") that dropped allegations in the first Notice but added a 
Report and Rep{F of Res,_uondeut Fisher ScienfY.jic 

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

to stuff the packaging with "absorbent material." l'Tine months later, on April 22, 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 I-'ITv1Rs 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 F A.A refused to accept that the LQ Exemption covered the subject 

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

1vvithout oft"ering an ansvver. 

Regional Counsel served its Complaint in wid-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 

A.1-"ter the tvvo ICs, Counsel for the parries 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 April15 and left a voicemail specifically referencing the April 6 Order. Mr. Vines 

never returned the calL The undersigned then emailed jylr_ Vines on April 18. The following 

day, IVlr. Vines advised by email that a different FAA attorney, whom he identified as Michelle 

Harper, was handling the case for Complaina.-Jt. lVIs. 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 

(Ai1achment l )_ 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, unlikelvk Vines, could explain why FAA 

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

T0pk 1 consumed about five minutes of the conversation. On Topic 2, counsel mutually agreed 

that it was impossible to lmow whether mlJl discovezy 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 

Repo.-1 to that effect and F Jl-Jl.,' 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 Rep(!l of Respondent Fisher Scientific 

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 dose to 

verbatim as possible, went as follows: 

i11R. Cox: You know, it would really be a shame to insist that the Judge must decide the 

Motion to Dismiss aml allow the proceedi<tgs to go forward if you will have vw case to p?esent 

an the merits. We asked Will Vines nwre than once to ex:pfain why the shipment was not 

exernpt under the LiFnited Quantity Exelinptio;z. CaV2 you please e:~,._JJlaiua that one to fne? 

Jlds. HA_i?PER (CHUCKLING): I haven't looked at that file in ye<ws. 

1'YiR. Cox: lvfaybe this r.-voodd be a good tinee to do that. 

1Vfs~ I'-IARPER: OK'} l'.?llook £fi it and get !Jack to you in the first ha?f of nex.t 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. AJ.<i:er hearing nothing 

from F AJt for another week, on April 27, the nndersigned 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 April29 (see Attachment l, entry for two-minute call to 

Atlfu.>ta), 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: 

il1R. Cox: This is Jerry Cox ·with TherFPW Fisher in DC. I sent you a iira_ft Joint Report ou. 

April 20 but neve§· hem'd back from you. We're up against the deadline, so I'm going to 

witlulFa:w tlte drajt Joint Report and Thermo Fisher will have to file its own Report. Feel free 

to caH rne when yoe-E. are prepared to discuss the case. 

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

F A_P.._ 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 FA_A to show cause why it has not 

"constructively withdraw11" its Complaint and the why the Judge should not "dismiss the case 

with prejudice." Order to Show Cause at 2. 

3 
Report and Rep{l' of Respondent Ff:?her Scieniffic 

In its Response to the Shovt 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,~~ 5 

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

had even received the draft Joint Report, much less whether Ms. Ff_arper 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 weil as the infom1ation required by the Order," id. 'If 2, and 

that "the parties did indeed meet ili""ld confer on April20, 2016, as required." !d. ~ 4. F A.A. 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., 'l[ 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 ili""J.d 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 detennine 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 u1e 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 ... ili""ld other paper must be signed by at least one 

attorney of record ... [and] [t]he court must strike an unsigned paper .... " L'lCP 1l(b) provides 

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

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

imposed on the "attomey ... or part-y," FRCP 11 (c). Unless F .A_A recants quicldy, Respondent 

plans to move for such sanctions because Ms. Hili-per's statement to the Judge that "the pili-ties 

did indeed meet and confer [ili"ld] had a thorough discussion oft.he underlying facts of the case 

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

Rer-ort to Judge Rawald in Response to the Orders to Provide Requested Inforn1ation 

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

infom1ation requested in tl1e Order Directing the Parties to Meet and Confer." 

Respondent has diligently undertalcen an.d continues to do everything humanly possible to 

prepare and submit a Report that would, among otl1er objectives, lay out a "schedule for 

4 
Report mul Rep(v of Responde-rtf Fisher Scien"tt_fie 

completion of discover-y," proposed dates for prehearing conferences, filing of prehearing 

motions and hearing dates. Order to l'vieet and Confer at 1-2. Unfortunately, because FAA has 

steadfastly avoided meeting vlith Respondent or participating in any sort of substantive 

discussion- even after the undersigned made additional telephone requests to II/Is. Harper on 

May 31 a.11d June 3, Respondent ca11 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 fo!l owing information requested by the numbered portions of tbe April 6 Order. 

Respondent's responsive information is presented in italics: 

1. The parties shall privately conduct an informal conference to meaningfully discuss 

litigation issues and proposed scheduling. 

FA.A rebuffed multiple requests from Respondent's counsel for a meeting, starting on Aprill5, 

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

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

scheduling. 

2. The parties shall draft a Joint Report providing: 

a. a suggested venue, 

RE§l?OI'>IDENT' § REPLY 

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

called or>vhat 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. 

b. a proposed schedule for the completion of discovery, 

Until J'?AA is compelled to participate in the infonnal conjerence referenced in Item# 1, above, it 

will remain impossible to know what >l'itnesses the agenGJ' intends to present, what experts, if 

any, i'?.espondent would need to call to testijj; and who possesses relevant iriformation. ll1e time 

5 
Report and R~IJ~V of Respondent Fishe; Scienti_;-'ic 

needed to complete discoveJJl, 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 

refi·esh their recollections about events that occurred five years ago. Respondent would, in any 

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

understands fi·om a letter lvfr. 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 detennine how much of the physical evidence 

continues to exist and what, (/anything, experts can deduce fi·om it. Respondent may also need 

Ia seek sanctions against FAA on account of such destruction of evidence. 

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

Respondent's iid.otion to Dismiss Complainijor Insufficiency and for Complainant's Violation of 

Rule 208 was .filed June 23, 2015. 

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

Respondent is, of course, willing to participate in a preheating COJ?ference, by telephone or in 

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

However, without nzore information about the issues F.4.A will raise, Respondent is uncertain 

what could be accomplished. 

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

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

cr moNon for a nzore dejinite statenzent be_fore it could.file its Answer_ 

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

6 
Report and Rep4v of Respondent Fisher Scientific 

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

requests the earliest date consistent 1vith and allowable under the law and FA_A 's Rules of 

Practice. 

3. [service instructions] 

RESPONDENT'§ REPLY 

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

muster in light of the total lack ofres-ponseji·om FAA. to the draft Joint Report it ojfered 

Regional Counsel on April 20. 

Conclusion 

Respondent has no means to compel Regional Counsel to comply with t.he 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. 

Vl.I!EREFORE, Respondent requests that the Complaint be dismissed with prejudice. 

Dated: June 13, 2016 

RespectiV-Jly.su~n{itted, 

. - . • -·' I .-- ·---

J erry'vV. CoX: Esq. 

2050Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

( emai 1) ic. c:£i(Q_C;i3~~""'}~ ,,-S'~'iXc'c ~---,£,2 

(tel) 703-757-5866 

Counsel for Thenno Fisher Scientific, Inc., and 

Fisher Scientific Co., LLC 

7 

JERRY COX 

2050 jAMIESON AVE APT l212 

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Exhibit 9 
·c~~ r= ~\ ,:ij. rt, ·'""'7.0::.'1 -1'-"-'-~'"' 

U.S. DEl' ARTMENT OF TRAl'TSPORTAUOrJ '' ''"'' 

OFFICE OF HEARINGS 

WASHINGTON, DC 

FEDERAL A Vl'..ATION ADMKNJISTRATl!ON, } 

Complainant, } In the Maner of Fisher 

} Scientific Company, LLC 

V. 

FISHER SCffiNUF!C COMP AN'!', LLC, 

Respondent. 

} 

} 

} 

} 

Docket No. FAA-2015-1321 

(Civil Penalry Action) 

Judge Rawald 

IP'JESPONDENT'S MOTION 

TO STRll(E COMI'lLAINANT'S RESPONSE TO SHOW CAUSE ORDER 

AND TO 

lD>ISIVlliSS THE COiviiJPLAll'IT AS MOOT 

History of the FAA's Inexcusable Delay in the Proceedings 

The Federal Aviation Ad:n.1inistration's Southern Regional Counsel ("Regional Counsel" or 

"FAA") seeks a $5,850 fine relating to a small shipment oflye almost five-and-a-half years ago. 

Ln the 15 months since Regional Counsel filed the Complaint, Respondent Fisher Scientiftc 

Company ("Fisher") has moved to dismiss this case for the following four reasons: 

1. The Complaint is legally insufficient because, even if the alleged facts were assumed 

to be true, it fails to state a claim for civil penalties lmder applicable statute (per 

Respondent's Motion to Dismiss Complaint for Insufficiency); 

2. The rwo-year statute of limitations for initiating such a claim under the Federal 

Aviation Act ran more than a year before Regional Counsel served the required 

Notice (per Respondent's Motion to Dismiss Complaint for Complainant's Violation 

of Rule 208); 

3. Regional Counsel failed to file a tin1ely response to Respondent's Motion to Dismiss 

(per Respondent's Opposition to Complainant's Motion tor Eh.'tension); and 

4. Regional Cmmsel invited dismissal of the Complaint by ignoring the Administrative 

Law Judge's April6, 2016, Order to conterwith Respondent's counsel and file a 

Joint Repmt (per Fisher's Motion to Sanction FAA's Noncompliance). 

New and Additional Reasons to Dismiss the Complaint 

Regional Colmsel purported to file a Response to Show Cause Order on May 31,2016. No 

counsel of record for FAA. signed the submission, however, so it violated Rule ll(a) of the 

Federal Rules of Civil Procedure ("FRCP"). Respondent promptly called this violation to 
Respondent il1otion to Strike and to Dismiss 

Regional Counsel's attention; Regional Cmmsel took no corrective action. Accordingly, under 

FRCP ll(a), "the comt must strike an unsigned paper" (emphasis supplied), and FAA must be 

deemed to have failed to respond to the Show Cause Order, much less to have provided any 

reason for the Judge not to dismiss the action for the reasons stated in that Order. 

Regional Counsel's persistent delay and disregard of applicable rules and statutes has also 

rendered the Complai..r1t essentially moot nnder the five-year, government-wide statute of 

limitations barring the commencement of any civil proceedings more than five years after the 

date the govemment's claim allegedly accrued. 28 U.S.C. Sec. 2462. See also US. v. Core 

Laboratories, 759 F.2d 480 (5'11 Cir. 1985) and 3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 

1994.) 

It is undisputed that the alleged act at issue in this matter occurred on July 20, 2011. That was 

five years and two months ago. 

It is pointless and grossly wasteful for Regional Connsel to insist on pursuing this case. TI1ey are 

asking the Administrative Law Judge to devote considerable time and effmi in deciding motions 

to dismiss that have been pending for the last 15 months and, even ifF AA were to prevail on the 

motions, Regional Cotmse! offers the prospect of even more wasted effmt in a hearing FAA 

conservatively estimates would consnme at least three full days of the Judge's time. Even if one 

vvere to assume that the end result of that proceeding would be a final order that Respondent pay 

a $5,850 civil penalty, the Government is barred by statute from b1inging any court action to 

compel payment. 

Respondent's connsel attempted to reach Regional Counsel of record by telephone to ask 

whether this motion would be necessary, but her office receptionist refused to take a message 

and slanm1ed down the phone in mid-conversation. Ms. Harper did not retum the call. 

Vv'HEREFORE, Respondent snbmits that the Complaint must be dismissed with prejudice on any 

or all of the grounds stated above. 

Dated: September 23,2016 

I ' I . ' I ' ' 

Jerry ij/. Cd0; Esq. I 

20JO Jamieson Ave(: Suite 1212 

Alexandria, VA 22314 

(email)· 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co .. LLC 

7 
Exhibit 10