# RECEl\/ED OCT 1 32016 U.S. DEPARTMENT OF TRANSPORTATION 

## G DOCKET OFFICE OF HEARINGS 

## HEARIN WASHINGTON, DC

FEDERAL AVIATION ADMINISTRATION, } Complainant, } }

**~** 

### } } 

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



### BRIEF IN SUPPORT OF RESPONDENT'S INTERLOCUTORY APPEAL OF RIGHT
Respondent Fisher Scientific Company, LLC, a subsidiary ofThermo Fisher Scientific, Inc., (hereinafter referred to as "Fisher") hereby appeals to the FAA decision-maker pursuantthe Federal Aviation Administration Rules ofPractice, 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 ofits 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ignoring multiple ALJ Orders and refusing to appear at a pre-hearing conference ordered by the ALJ, has constructively withdrawn the Complaint?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 FORTHE APPEAL FAA long ago established the "interlocutory appeal ofright" to help the Administrator keep agency counsel, a private party respondent or anALJ from wasting public and private resources onfactual and legal disputes where, as a matter oflaw, 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 ALJto preventneedless litigation and provided, inpertinent part, as follows: "A party may file an interlocutory appeal
... without the consent of the administrative lawjudge
... in the case of
... (2)failure ofthe administrative lawjudge to dismiss the proceedings in accordance with§ 13.215
...." (Emphasis supplied.) The plain language ofthe Rule malces it clear that the legal question on appeal is notwhether the ALJ erred in issuing an order ormaldng some sort ofaffirmative ruling, butwhether ( s )he failed to take certain action that is required under Rule 215. To underscore FAA's intentionto prevent an ALJ from allowing wasteful litigationto proceed, Rule 219 specifically providesthat, upon the ALJ's receipt ofa notice ofappeal, "theproceedings are stayeduntil the FAA decisionmaker issues a decision onthe 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 ofsodium hydroxide solution (commonly known as "lye") by air in July, 2011, thatthe 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, inpertinent part, that the lyewas packaged in some respect that violated the Hazardous Materials Regulations ("HMRs").3

1 Federal Aviation Administration, "Rules ofPractice for FAA Civil PenaltyActions," Final Rule, 55 Fed. Reg. 27548,27567-68 Quly 3, 1990) ("Final Rule"), codifiedat 14 C.F.R. Part 13. Previous FAA practice, which allowed the government and notprivate partyrespondents to file interlocutory appeals, was widely criticized as "unfair and has the potential for abuse in unduly protracting litigation to the disadvantage ofrespondents." See also FAA, "Rules ofPractice for Civil Penalty Actions," Notice ofProposed Rulemaking, 55 Fed. Reg. 15134, 15143 ("Proposed Rule") (Apr. 20, 1990). zEven on an appeal from an Initial Decision by anAL! after a hearing, the FAA decision-maker must decide for itselfwhetherthe ALl followed "applicable law, precedentand public policy." FAA Rule 233(b)(2). 'Complaintat 2 (June 4, 2015) (Exhibit 1) Respondent'sAppeal ofRight 2Fisher promptly movedto dismiss the Complaint based, inpart, on agency counsel's failure to lodge at least one ofthe key allegations within the two-year time limit established by FAA Rule 

### 208.' Agency counsel did not file a timely response to Respondent's Motionto Dismiss but the ALJ nevertheless moved the case forward.5
On April6, 2016, nearly a year after Respondent filed its Motionto Dismiss, the ALJ- without first deciding whether the dispositive motions resolved the case or whether Respondent would evenbe required to file an Answer- orderedthe parties to meet and confer regarding litigation and scheduling issues and to submit a Joint Report ontheir meeting. 6 After extraordinary efforts by the undersigned to get anyone inthe Regional Counsel's office to return multiple phone calls and emails, agency counsel ofrecord, Michelle Harper, Esq., fmally phoned to say she was tmable to answer eventhe mostbasic questions about the substance ofthe case because she had not looked atthe file in years. She promisedto 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 butto 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 ofthe ALJ's demand. 7 The ALJthen 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 oftheir 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 inthe Report required by the April6 Order. 9 Someone whose name is nottypewritten on the document submitted a two-page purported third-hand account ofa conversation between Ms. Harper and the undersigned, but the agency counsel of

4 Motion to Dismiss Complaintfor Violation ofRule 208 (June 23, 2015) (Exhibit 2) sAgency counsel filed a late request for an extension oftime- from 10 days to nearly two monthsto replyto the Motion to Dismiss butstated no excuse for their late filing ofthe request and no grounds acceptable under FAA rules for granting it. Opposition to Extension at 2 (July 7, 2015) (Exhibit 3). In complete disregard ofcontrolling Rules, theALl- atthattime, judge Goodwinunlawfully granted the extension. Respondent later withdrew the motions it filed in 2015 because, after they hadlanguished for 16 months, otherreasons to dismiss the Complaint arose and rendered them unnecessary. 6 See Exhibit4. 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 7to this Briefonly for the purpose ofshowing that itwas never signed by agency counsel ofrecord. Respondent'sAppeal ofRight 3record did notsign the document. Failure to sign and thereby certify the purported response to the Show Cause Order violated Federal Rule ofCivil Procedure 11(a), which provides in pertinent partthat any unsigned "pleading
... and other papermust be signed by at least one attorney ofrecord" andthat failure to "promptly correct" anunsigned 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). FAARule 207 is even more explicit. 

### Itprovides that the "attorney of record
... shall sign each document tendered for filing with the hearing docket clerk, the administrative lawjudge, the FAA decision-maker on appeal or served on each party" (emphasis supplied). Respondentpointed out this failure and moved again for dismissal. 10
Instead ofdismissing 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 atthe office ofSouthern Regional Counsel to answer theirphone. He finally rounded up an attorney who was not counsel ofrecord and asked why counsel ofrecord failed to appear and participate atthe hearing. The attorney offered no excusefor 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 inthe hearing and present oral argun1ent. The attorney replied, "not really." 12 OverRespondent's objections, the ALJ insisted on proceeding with the hearing. At the conclusion ofthe hearing, the undersigned objected once again and asked for immediate consideration ofRespondent'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 orderedthat 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 ofPre-Heating Conference ("Conference Transcript") (October 4, 2016) (Exhibit 10) at

_. Under FAA Rule 219(d), Respondent's Appeal Briefwas due within 10 days ofthe ALj's ruling thatthe case will go forward. The Office ofHearings, however, does notprovide hearing transcripts within thattimeframe. The representations aboutthe content ofthe hearing are based on the undersigned's notes and best recollection and are subject to correction andrevision ifthe transcriptis contrary in any material respect. 12 /d. at_. 13 See Exhibit 9. 14/d. at_. Respondent's Appeal ofRight 4

### ARGUMENT
L THE CRITERIAFORRECOGNIZING A "CONSTRUCTIVE WITHDRAWAL" OF A RESPONDENT'S REQUEST FORA 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 ofa civil penalty on a private party Respondent without first affording an opportunity for a fair hearing onthe merits ofthe agency's allegations. For years, private parties have complainedthat FAA's civil penalty procedures are not only unfair, butin plainviolation ofdue 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. Privateparties could not ftle interlocutory appeals; only FAA counsel could. Agency counsel were free to drag cases out long enoughto 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 ofseparation 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 butis "basically prosecutorial 

### in
... outlook and orientation." 16 Afterjudicial intervention in the late 1980s, FAA adoptedthe Rules ofPractice that govern today to address criticismthat the priorrules were "inadequate to ensure a system of adjudication that is both fair and appears fair." 17 The outcome ofthe instant appeal will indicate whether FAA is actually abiding by its own Rules or falling back into its oldways. The basic issue is whether agency counsel can tal(e a "fire-and-forget" approach to prosecuting a civil penalty case. More specifically, denial ofthis appeal would establish one set ofrules for "constructive withdrawal" ofa privateparty Respondent's Request for a Hearing and a policy ofnot applying the satne standards to agency counsel's conductto the point ofinununizingthem against 

### afinding thatthey "constructively withdrew" a Complaint. Over many years, ALJs have repeatedly used the failure ofa 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 Id. at 27550. Respondent's Appeal ofRight 5te1minate the proceedings. 18 More recently, Judge Rawald, the ALJ below, has made prolific use ofconstructive withdrawal, especially in connectionwith hls April, 2016, mass mailing of Orders to Meet and Confer to parties in cases on hls docket When a party, in defiance ofthe ALJ'

### s Orderto Meet and Confer, failed to cornnmnicate with opposing counsel and put them in the position ofhaving to file a unilateral report, Judge Rawaldrepeatedly ruled that this failure to respond was, by itself, grounds to conclude thatthe noncompliant partyhad constructively withdrawn. 19 A party's silence, too, is sufficient grounds to find constructive withdrawaL20 He also found that a party's constructive withdrawal occurs whenit "fails to appear at a hearing without good cause" and such failure 

### "shall be construed as an abandonment ofthe hearing process."21 Judge Rawald acknowledgedthat FAA Rule 215 gives hlmno choice inthe matter because, when a party "withdraw[s] a request for a hearing
... the administrative lawjudge 

### 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 concludedthatthe government is exemptfrom requirements to participate inthe 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 patterntojustify 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 withthe Meet and Confer Order. 

### 4. Respondent was "advised inthe Orderto Show Cause that further failure to participate in the proceedings may be deemed a constructive withdrawal ofthe request for hearing." 

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

### 6. Respondent's "failure to participate inthe proceedings
... constitutes a constructive withdrawal ofthe Respondent's request for a hearing."

18 See, e.g., Matter of Bonanza ValleyAviation, Inc., 1994WL 16054306 (May 4, 1994) (party failed to respond to Orderto ShowCause); Matter of Edward C. Parks, 1999 WL 33739451 (Feb.17, 1999) (partyfiled no response to Order to ShowCause); andMatter of ButteAviation, 2004 WL 350392 (failure to file Answer is "constructivewithdrawal ofthe request for a hearing"). 19 See, e.g., Matter of ChristopherMcCann, 2016 WL 3662616 (lune 29, 2016) ("McCann") at 1, n.1 andMatter 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'sAppeal ofRight 6In

### 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 withthe 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 oftheir failure" and include "informationrequested in the Order." 5. Complainant filed no statement explaining the cause oftheir 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) andFAA Rule 207. 7. Counsel ofrecord 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 atthe October 4 hearing, the ALJ was obligated to recognize a constructive withdrawal ofthe Complaint. Ifthe FAA decision-maker rejects the instant Appeal and finds that such a constant lack ofparticipation by agency counsel does not necessitate a finding ofconstructive withdrawal ofa Complaint, agency counsel can consider themselves immune from dismissal. In effect, rejection ofthe 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 explainhow such disparate treatment canpossibly 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 WITHPREJUDICE. FAA Rule 217 is unequivocal. It specifically states that "an agency attomey may withdraw a complaint
... without the consent of the administrative lawjudge. 

### Ifan agency attorney withdraws the complaint
... the administrative lawjudge shall dismiss theproceedings
... 

### 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'sAppeal ofRight 7Order; 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 oftheir 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, Respondentrespectfully requests the agency decision-maker to order immediate dismissal withprejudice ofthe above-captioned matter. Dated: October 13, 2016

Respondent'sAppeal ofRight 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) ofservice at least one copy ofthe foregoing Notice on each ofthe persons listed below.


### 0 [One Copy by U.S. Certified Mail] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 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 ofTransportation Federal Aviation Administration SouthernRegion 1701 Co1umbiaAve. College Park, GA 30337

Respondent'sAppeal ofRight 

### 0 [One Copy by air courier] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey 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 2W1000 

### 0 [One Copy by U.S. Mail] Andrea Michelle Harper, Esq. Senior Attorney Office ofthe ChiefCounsel Enforcement Division, Southern Team U.S. Department ofTransportation Federal Aviation Administration Southern Region P.O. Box 20636 Atlanta, GA 30320

Jerry
.

9

# Exhibit 1

### U.S. DE.PARTMENT 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, pursuantto Rule 208 ofthe Rules ofPractice (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 ofProposed 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 ofthe 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 ofhazardous material for transportation by air and failed to use a means ofcontaining the liquid in the form of

### a leakproofliner, plastic bag or other equally efficient means ofcontainment. 8. Fisher offered the shipment ofhazardous materials for transportation by air and failed to package it so there would be no identifiable release ofhazardous material to the environment. 

### 9. Fisher offered the shipment ofhazardous materials for transportation by air and failed to ensure the closure was secure and leakproof. 10. By reason ofthe above, Fisher violated the following Department ofTransportation Hazardous Materials Regulations (Title 49 ofthe Code ofFederal 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 ofhazardous 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 aleakproofliner, 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 ofTransportation Hazardous Materials Regulations. Under the facts and circumstances of this case, a civil penalty of $5,850 is appropriate. This amount includes consideration ofthe Respondent's timely corrective action. \VHEREFORE, the Agency, by counsel, respectfully requests that the Administrative Law Judge enter an orderthat Respondent be assessed a civil penalty in the amount of$5,850.

Attorney Office ofthe 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 ifappropriate, not later than 30 days after the date shown onthe Certificate ofService which follows.

# Exhibit 2

### U.S. DEPARTMENT OFTRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

FEDERAL AVIATION ADMINISTRATION, } Complainant,
v. Inthe Matter ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 (Civil Penalty Action)

**FISB.~R** 

### SCIENTIFIC COMPANY, LLC, Respondent. 

### } } } } } } Judge Goodwin



### MO'fiONSTO DISMliSS COMPLAINT FORJINSUFFICIENCY AND FOR COMPLAJINAN'f'S VIOLATION OFRULE 208
Respondent Fisher Scientific Company, LLC, a subsidiary ofThermo Fisher Scientific, Inc., (hereinafter referred to as "Fisher") movesto dismissthe Complaint inthe above-captioned civil penalty proceeding onthe follo-,ving two independent grounds. First, the Complaintfails to state

a "knowing"violationfor which a civil penalty may be imposed. Second, by including allegations thatwere first made morethanthree years afterthe alleged incident, theComplaint violates Rule 208(d) ofthe FederalAviation Administration's (hereinafter "FAA's" or ''tbe Agency's") Rules ofPractice ("Rules"). FAA's South emRegional Counsel ("Regional Counsel," "the Government" or "Complainant") makes, among others, two allegations concerning acts Fisher allegedly committed almost four years ago, onJuly 20, 2011, when Fisher shipped a single liter ofa corrosive liquid commonly known as lye. First, Regional Counsel allegesthatRespondent "knowingly offered ... a ... shipment ... containinghazardous materials for transpmtation by air." Compl.

**~** 

### 1. Second, Regional Counsel claims Respondent "violatedthe ... hazardous materials regulations" ("HMRs") because it "failedto ensure that [thebottle oflye was] ... packaged with absorbent materials ...." CompL 

### 'U 1 O.c.

### Respo11dent'sMotion 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), 

### codifiedas amendedat49 U.S.C. 

### §5123(a)(l) (2011), allows the Governmentto impose a civilpenalty upon a "personwho 

### knowingly committedan actwhich is

aviolation of' the HMRs 

### (emphasis supplied). A laterrecodificationmade a non-substantive, editorial change. Itrewordedthe sentenceto say the Government may impose a civilpenalty on

a "personthatkno'iliingly violates" the HMRs. Nowhere inthe Complaint does Regional Counsel allege that Fisher "knowingly" committed any act which

### is a violation ofany HMR. It merely states thatRespondent "knowingly offered" a declared shipment ofhazardous materials.
There are other, more specific allegations 

### inthe Complaint,but none ofthem allege a "!mowing" violation. Inthe example referenced above, Regional Counsel clain1s Respondent "violated" 49 C.F

### .R. § 173.27( e), butthere is no allegationthatFisher "knowingly" committed any actwhich violates it. The cited HMR applies certain packagingrequirements to some hazardous materials shipments but notto others. Inthis case, the lye was a "lin1ited quantity" shipmentthatwas exemptfrom the specificationpackaging requirements and otherwise fully complied with 

### all applicable HMRs. However, evenifone wereto assume that§ 173.27(e) did apply to the shipment whenit
was offered in 2011 and thatFisherfailed 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), 

### codifiedat49 U.S.C. 

### § 5123(a)(l)(A) and 

### (B) (2011), unquestionably requires the Agency to allege andprovethatFisher "knowingly committed an act whichis a violation of' that

or some other HMR. As explained in greater detail in Respondent's Memorandum in Support ofthe Motions to Dismiss, the statutory language governing the instant civil penalty proceeding is plain and unambiguous. Evenifthere were some reasonto consideritambiguous, the legislative history ofclauses (A) and 

### (B), which were addedby the HMTUSA, leave no doubtthat Congress adopted anew definition ofthe tern1 "lmowingly" for the specific purpose ofprohibiting the Governmentfrom imposing a civil penalty in a case involvingtranspo1tation ofhazardous materials unless it can showthatthe Respondenthad

### actual knowledge that its act or omission violated the HJI;1Rs or thatits noncompliance resulted from some specific act of

### negligence on the partofthe Respondent. Accordingly, the Complaint fails to state a violationofthe federal hazardous materials transportation statute orregulations andmustbe dismissedfor insufficiency pursuantto Rule 218, 14 C.F.R. §l3.218(f)(l).

2Respondent'sMotion to Dismiss

Motionto Dismiss for Asserting a Claim About Wnichthe Government Failed to Give Timely Notice As noted above, Regional Counsel asserts, among other claims, that Respondent "violated the ... hazardous materials regulations" because it "failedto ensurethat (the bottle oflyewas] ... packagedwith absorbentmaterials .... " The HMRs imposed no suchrequirement onthe shipment atissue inthis case, but even ifone were to assume thatthere was a requirement for packaging the subject limited quantity oflyewith absorbent materials, Regional Counsel was obligated to give timely notice that the Governmentplannedto base its Complaint on sucha claim. FAA served aNotice ofProposed CivilPenalty ("theNotice") onJuly 3, 2013. During an Informal Conference, Respondentpointed outto Regional Counsel thatthe Notice was expost facto, based almost entirely on HMRs thatwere not ineffectinJuly, 2011, when Fisher shipped the subjectpackage. TheNotice contained no allegation whatsoeverthatRespondent was obligatedto include "absorbent materials" orthatFisher failed to do so whenitpackaged the lye. In fact, this Notice did not even mention "absorbent materials." The first Notice ofthis claim
was served not Vvithin two years, as required, butmore than threeyears afterthe alleged incident, inFAA's AmendedNotice ofProposed Civil Penalty ("the AmendedNotice") dated July 24, 2014. Amended **Notice~** 

### f. Rule 208( d)(2) ofF AA's Rules provides, inpertinentpart, thatthejudge "may dismiss the complaint orthatpart ofthe complaint alleging a violation that occurred morethan two years before an agency attorney issued the notice ofproposed civilpenalty" 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 inthe dark for
more thaothreeyears 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 statedpmposes aodpolicies ofRule 208, grossly prejudice Respondent's opportunity to defend itselfand constitute a denial ofRespondent's due process rights underthe U.S. Constitution. WHEREFORE, Respondent respectfully moves to dismiss the Complaint onthe following two independent grounds: first, for insufficiencypmsuantto Rule 218, 14 C.F.R. 

### § 13.218(f)(l); and, second, to dismiss 

### the Complaint for violating Rule 208pursuant to 14 C.F.R. 

### § 13.208(d). Even 

### ifthe Complaintis not dismissed outright on acc01mt ofRegional Counsel's violation of Rule 208, thatportion ofthe Complaint alleging a failure by Respondent to include "absorbent materials" inthepackaging for the subject materials (i.e., all ofComplaint

### -,r 10.c.) should be stricken, as alternatively provided inRule 208( d).

3Respondent'sMotion to Dismiss 

### Respondentrecognizes the importance ofthe issues presented in

### this case to hazardous materials civil penalty cases in

### general and respectfullyrequests an opportunity to present oral argument in 

### person onthese 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. DEPAJ1TJYIENT OF **T~F>TSPORTATION** 

### OFFICE OF HEA.Rll"'lGS WASHINGTON,DC

FEDERAL AVIATION ADMINISTRATION, } Complainant,
V. 

### FISH!;;RSCIENTII<'IC COMPAK\',LLC, Respondent. 

## l } '- ) } } 

### } Inthe Matter ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 (Civil PenaltyAction) Judge Goodwin



### RESPONDENT'S OPPOSITIONTO COMPLAil'lAN'I'S MOTION FOREXTENSION RespondentFisher Scientific Company, LLC, (hereinafterreferredto as "Fisher") moved on June 23, 2015, to dismiss the Complaint inthe above-captioned civil penalty proceedingbecause the Complaint fails to state a "!mowing" violation for which a civil penalty canbe imposed and included allegations that were out-of-time 8l1d in violation ofthe Federal Aviation Administration's (hereinafter "FAA's" or"the Agency's") Rules ofPractice ("Rules"). Instead offiling a timely response permittedby Rule 13.218(d), FAA's Southern Regional Colillsei ("Regional Counsel") moved for an "Extention [sic, Extension) to File Response." Regional Counsel failed evento allege the presence ofany grounds to gr8llt such a motion cognizable underRule 13.213(b) and otherwise failed to adhere to otherapplicable Rules. Accordingly, Complainant's Motion cannot lawfully be granted and Regional Colmsel mustbe consideredto have waivedFAA's opportunity to respond to Respondent's Motions to Dismiss. Rule 13.213(b) is clear. As withany other party, anFAr'\. "motion for 811 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. Ajudgehas authority essentially to waive this seven-day requirement only if"good cause for the late filing is shown." Nowhere in Regional Counsel's Motionis there
so much as a naked assettion thatFAAhad "good cause" to file 

### zero days ahead ofthe due date instead of

### seven days ahead, as unequivocally required under theRules.
In any case, the Rules allow ajudgeto grant an extension oftime to respondto a Motionto Dismiss only "ifgood cause for the extensionis shown." Once again, Regional Cotmsel failedRespondent's Opposition to Motionfor EJ;.1ension



### even to include so much as a declarative statementthat such grounds exist. TI1e Motion states that FAA desires "anextension in order to effectively respond [sic]." It

### does not even suggest there are any special circumstances or any other reasons whatsoever to conclude thatthe time otherwise allowed by the Rules was inadequate. Absent those circumstances, the Motion for Extension would have failed even ifithad been timely filed. Regional Counsel goes on to claim that Fisher will 

### not be "prejudiced by 

### an extension." TI1is statement is false but, even ifit 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'sresponse to Respondent's Motion to Dismiss. Rule 13.213(b) is meaningless if Regional Counsel can avoid it without malcing any pretense ofan affirmative sho·wing 

### why the requested extension is necessary. Regional Counsel's Motion is merely the latest example ofhowFAA's handling ofthis matter has prejudiced Fisher's ability to defend against the Complaint. The alleged incident occmTed in July, 2011. FAA did not file any Notice inthe matter until July, 2013. ThatNotice made no allegation whatsoever that Fisher ±ailed to employ a particulartype 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 then waited until June, 2015- ahnostfouryears 

### afterthe event- to file its Complaint. When Fishermoved to dismiss the Complaint in partbecause ofFAA'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 fouryears 

### after the event. Meanwhile, FAA has overseen orpennittedthe destmction ofcrucial evidence. If

### tllis case eventually goes to a hearing, witnesses onboth 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

### InTheMatter Of: 

## SERVED: April6, 2016 

## U.S. DEPARTivJENT OF TRANSPORTATION OFFICE OF HEARINGS WASHJNGTON, DC

DocketNo. FAA-2015-1321 Fisher Scientific Company, LLC 

### ) ) ) ) ) CaseNo. 201180700457 Respondent ORDERDIRECTING THE 

### l' ARTIES TO MEET AND CONFERREGARDING LITIGATION AND SCHEDULINGISSUES

The above captioned case wasreassignedto the undersignedjudge onMarch 24, 2016. By order ofthe ChiefAdministrative Law Judge, any previously established date for a prehearing conference ortrial was suspended. Those dates are nowvacated andthere is a need to establish a

new litigation schedule for this case. To assistthe undersignedjudge, the parties should meet and confer to propose a mutually agreeable schedule. 

### An administrative lawjudgemayhold conferences to, among other things, "settle [or 

## J simplify the issues by consent ofthe parties." 1 Pursuantto 14 C.F.R. § 13.205(a)(l) and (7), it is hereby ORDERED:
1. Theparties shall privately conduct an informal conference to meaningfully discuss litigationissues andproposed scheduling. 2. Theparties shall 

### draft ajointreportproviding:
a. a suggestedvenue, b. a proposed schedule for the completion ofdiscovery (or anindicationthat discovery is complete),
c. a list ofany pending motions.thathave beenpreviously filed buthave yetto be ruledupon, 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 ofany prehearing motions (including a proposed date tor a telephonic hearing on any filed motions, ifso 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 undersignedjudge at the Office ofHearings by fax, express carrier, or personal delivery
no later than 30 calendar days after the date of service ofthis order.



### Administrative Law Judge

Attachment: Service List

2

# Exhibit 5WA§HJINGTON,DC

FEDERAL 

### AVU\.'fiON .fo.D!VilJ'<!J[§TRATION, } Complainant, } } v ) 

### IntheMatter ofFisher Scientific Company, LLC DocketNo. 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 ofthe 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 thatFAA counsel essentially went "AWOL" and thwarted Fisher's diligent efforts to respond tothe 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 neverretnrned 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 withthe Order. She asked Fisher's counsel to prepare a dnn"t Joint Report, whichthe undersigned emailed to her a few minutes later. Fisherrequested that she either concur >vith the draft and sign it or suggest any edits she thought appropriate. Ms. Harper did neither.Reportof Fisher Sdentijlc
A weeklater, on April27, the undersigned phoned Ms, Harperbut, once again, she did not answer hertelephone. Fisher's cow1selleft a voicemail reminding her that Fisher was detem1ined to comply with the Orderbut- without any response from her- 

### itwould 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 hertelephone. Fisher's counsel indicated in a voice mail that ifFAA continued to ignore the proposed draft oftheJoint Report, Fisher would have no choice butto withdraw it and file its own unilateral response to the Order. Ms. Harper did not return the call or otherwise respond. FAJ..i's apparent disregard ofthe April 6 Orderisjustthe latest chapterin a five-year history of the Office ofSouthern Regional Counsel dragging its feet and utterly ignoring applicable laws and Rules ofPractice. 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 oflimitations expired and filed a Notice ofProposed Civil Penalty in July, 20!3. AfterFisher pointed out that the Notice was based on regulatory requirements thatwere not in effect in 2011, FAA filed an Amended Notice on July 24, 2014, more than Lhree years afterthe 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 toDismiss the Complaint for legal insufficiency and for being ba1red by the statute oflimitations. The Fp._p._'s own Rules ofPractice allowed FAA 10 days to oppose Fisher's Motion to Dis!Iliss, butthe agency did not file its Memorandum in Opposition until August 17, 2015, almost two months a..fTer it was due. Fisher'sMotionto Dismiss has been pending for nearly a year. The most appropriate way to sanction such egregiously dilato:ry conduct and getthis a..ncient case offthe docket would be to order Southern Regional Counsel to SHOW CAUSE why dismissal should not be ordered on one ormore ofthe 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 toRespondent's June 23, 2015, Motion to Dismiss. (No extension was permitted under FAA'sRules ofPractice for the reasons stated in Respondent's Opposition to FAA's Motion forExtension.} 3. FAA's decision to wait more than three years after the alleged incident and more than a year after the statute oflimitations 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 ofwhich is ar-t.ached, explain in detail why the case is barred as out-of-time.)

2Report 

### 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

### InThe l\llatter Of: 

## U.S. DEPARTMENT OF TP-ANSPORTATION OFFICE OF :HE.AlUNGS

W ASHTI\TGTON, DC
) l DocketNo. 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 undersignedjudge issued an Order Directing 

### the Pmiies to Meet and ConfeT Regarding Litigation and SchedulingIssues in the above captioned case. The order required. 

### inter alia. the parties to submit ajoint report to the Lmdersignedjudge wit'lin 30 days of that order. On April30. 2016. the Respondent tiled a unilateral report. stating thathis atiempts to 

### meet and conferwith 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 lawjudge is empowered to regulate the course ofa 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 ofaproceeding. Ignoring an ALJ"s orders carmotbe 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 ofappearance on IV1ay 10,**2016~** but failed to include the infonnarion required by rhe undersignedjudge"s Apri16. 2016 Meet and Confer Order or offer aresponse 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 aresponse to the April 6, 20 I 6 Meet and Confer Order. 'AmericanAirlines, 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 ofPractice that the ALJ imposes against a party for that behavior.'\

## participate in 

## the proceedings as directed by the undersignedjudge maybe deemed_ a constructiv-e withdrawal ofthe request torhearing or complaint by the party demonstrating such
a lack ofinterest in participating inthese 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 ofthe infonuationrequested 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 withthe Order Directing the Parties to Meet and Confer Regarding Litigation and Scheduling Issues. 3. The Complainant shall include in their statememthe i:ofom1ation requested in the Order Directing the Parties to .!vleet and Confer Regm·ding Litigation and Scheduiing Issues. 4. Ifthe Complainant fails to file t..h.is statement by the above deadline, the undersigned judge may issue a subseqllent order finding the Complainanthas constmctively "';ithdrawnfrom 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 ofrequest 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 respondto prev-ious orders constinned constructive \vithdrawal)) af{'d: FAA

**Ord~r** No. 98-11 (Oct 9, 1998). See alsoInstead 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)~** ApolloA & HS CompWD', fAA Order No.2011-4-, 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. FAA-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 ofthe 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 aruling 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 ofMay, 2016.



### ~J 

# ,?/6,

**)Jd/lll.f-~** ;1-f/or/Je}/ 

# in· ANDREA MICHELLE HARPER Senior Attorney Office ofthe ChiefCounsel Enforcement Division, SouthernTeam



### 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 theMatter ofFisher Scientific Company, LLC DocketNo. 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:AY 17, 

### 2ill6 Historv ofthe 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 howthe shipment couid possibly have involved any

**kl1m'~<ing** violation ofthe Hazardous Materials Regulations ("Hl\/!Rs''). Fisherparticipated in tvvo "informal conferences" ("ICs") with Regional CounseL Duringthe first IC, on July 16,2014, Fisher explained that the boilerplate Notice ofProposed Civil Penalty ("NOPCP") thatRegional 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, Fisherpointed outto Regional Counsel during the 2013 IC thatthe volume oflye being shipped (just one liter) was so small, the shipmentwas a "limited quantity" ("LQ") that was exemptfi·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 oflye decreased to one-halfliter, butthe change inthe l":JV!Rs was not and could not be retroactive to a shipment in 201 L Morethan a year later, on July 24, 2014, Regional Cmmsel served ail P.inended Notice of Proposed Civil Penalty ("Al'!OPCP") that dropped allegations in thefirst Noticebut added aReportandRep{F of Res,_uondeutFisherScienfY.jic completely new claim that, when Fisher prepared the subject shipment, 

### it was somehow required to stuffthe 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 outthat, in addition to relying on I-'ITv1Rs that were not in effect at the time ofthe alleged incident, thisbrand-new· claim was time-barred because it was lodged morethan a year afterthe applicable two-year statute of limitations passed. Respondent's counsel also asked then-Regional Counsel ofrecord, Will Vines, Esq., to explain why FA.A refused to acceptthat the LQExemption covered the subject shipment Mr. Vines stammered for halfa 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, OrderDirectingtheParties to Meet and ConferRegarding Litigation and SchedulingIssues A.1-"ter the tvvo ICs, Counsel for the parries had no other communication until Judge Rawald issued the April 6 Order. Fisherhad 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 differentFAA 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 showthatthe entire April20 conversationlasted 20 minutes (Ai1achment l)_ It coveredthe following topics: (1) personal introductions; (2) JudgeRawald's April 6 Order; (3) the content ofthe Joint Reportto befiled in response to the April 6 Order; (4) Respondent's Motion to Dismiss the Complaint; and (5) Respondent's request to meetwith FAA's newly assigned counsel to hear whether she, unlikelvk Vines, could explain why FAA contends thatthe subject shipment did not qualify for the LQ Exemption. 

### T0pk 

### 1 consumed about five minutes ofthe conversation. On 

### Topic 2, counsel mutually agreed that it was impossible to lmow whether mlJldiscovezy orhearing would be needed, much less to propose dates for such additional proceedings, becauseFisher'sMotionto Dismiss would be dispositive ofthe entire case. On 

### Topic 3, Respondent's counsel agreed to prepare a draft Joint Repo.-1 to that effect and FJl-Jl.,'s counsel agreed to review it, to offer any needed edits and sign it ifno edits were needed. Under Topic 4, FAA asserted that the Motion to Dismiss should be denied; Respondent's counsel explained why theMotion to Dismiss should be granted.

2ReportandRep(!l of RespondentFisherScientific Approximately 18 minutes into this 20-minute conversation, Respondent's counsel broughtup Topic 5. That part ofthe conversation, which is reproduced below in its entirety and as doseto verbatim as possible, went as follows: i11R. Cox: You know, 

### itwould really be a shame to insist that theJudge must decide the Motion toDismiss amlallow theproceedi<tgs to go forward 

## if you will have vw case top?esent an the merits. We asked Will Vines nwre than once to ex:pfain why the shipmentwas not 

### exernpt under theLiFnited QuantityExelinptio;z. CaV2 youplease

**e:~,._JJlaiua** 

### that one tofne? Jlds. HA_i?PER (CHUCKLING): I haven'tlookedatthat file inye<ws. 

### 1'YiR. Cox: lvfaybe this 

### r.-vooddbe a good

### tinee to do that.

**1Vfs~** 

### I'-IARPER: OK'} l'.?llook £fi it 

### andget !Jack to you in the 

### first ha?f of 

### nex.t

**week~** This portion ofthe conversation lasted approximately two minutes. Immediately afterthe April 20 conversation, Respondent's counsel sent a draft Joint Report for Ms. Harper's review, edits and signature. Ms. Harperfailed to respond. AJ.<i:er hearing nothing from FAJtfor another week, on April 27, the nndersigned phoned Ms. Harper to urge herto sign or suggest changes to the proposed Joint Report. She did not answer herphone. 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 submittingthe 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 

### inDC. I sentyou a iira_ftJointReport ou. April20butneve§· hem'd back fromyou. We're up againstthe deadline, so I'mgoing to witlulFa:w tlte drajt Joint Reportand Thermo Fisher willhave to file its own Report. Feel free to caH rne whenyoe-E. arepreparedto discuss the case. Accordingly, on April30, Respondent filed a unilateral Report and moved for sanctions against FA_P.._ for ignoring the Judge's April 6 Order. FAA filed no Report ofits 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 causewhy it has not "constructively withdraw11" its Complaint and the why the Judge should not "dismiss the case with prejudice." Orderto Show Cause at 2.

3ReportandRep{l' of RespondentFf:?her Scieniffic In its Response to the Shovt Cause Order, FAA equivocated about whetherMs Harperreceived Respondent's voice messages and argued that, evenif she heardbut 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 whetherEAA had even 

### received the draftJointReport, much less whetherMs. Ff_arper approved it. FAAtold the Judge thatMs. 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 "theparties had a thorough discussion of the underlying facts of the case," id. 

### (emphasis supplied), and that Respondent's Motion for Sanctions is "filledwith mistruths 

### [sic]" (id., 'l[ 6). The undersigned is not entirely sure what a "mistruth" is, but hewould 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 oftheFederal Rules ofCivil Procedure ("FRCP") and professional ethics requirements relating to candor before a tribunal. Itis for the Judge to detennine whether a 20 minute phone call, only two minutes ofwhich was devoted to the merits ofthe case, and which Complainant's counsel cut short because she hadn't bothered to read u1e file, was anythingresembling a "thorough discussion'' By contrast, it speaks volumes that Ms. Harper did not sign FAA'sResponse 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 mustbe signed by at least one attorney ofrecord
... [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 thatto the best ofthe person's lmowledge
... factual contentions have evidentiary support ...." Sanctions may be imposed on the "attomey
... orpart-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 ofthe case

...."is both highly material and plainly false. Rer-ort to 

### Judge Rawald in Response to the Orders to ProvideRequested Inforn1ation In his June 2 Order, Judge Rawald admonished Respondent to "file a Reportincluding all ofthe infom1ation requested in tl1e OrderDirecting the Parties to Meet and Confer." Respondenthas diligently undertalcen an.d continues to do everything humanly possible to prepare and submit a Report thatwould, among otl1er objectives, lay out a "schedule for

4Report mulRep(vof Responde-rtfFisher Scien"tt_fie completion ofdiscover-y," proposed dates for prehearing conferences, filing ofprehearing motions and hearing dates. Order to l'vieet and Confer at 1-2. Unfortunately, because FAA has steadfastly avoided meeting vlith Respondent orparticipating in any sort ofsubstantive discussion- even after theundersigned made additional telephone requests to II/Is. Harper on May 

### 31 a.11d June 3, Respondent ca11 only guess whatthe issues would be, much lesswhat discovery would beneeded to address them, how longit would taketo 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 bythe numbered portions oftbe 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 ithas beenyearssince Regional Counsel has reo.d thefile. This has made it impossible forRespondent 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, Respondenthasno way to know whatwitnesses would need to be calledor>vhat venue wouldbe 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 andkey Fisherwitnesses are in the Northeastern United States.

b. a proposed schedule for the completion ofdiscovery,

Until J'?AA is compelled toparticipate in the infonnal conjerence referenced in Item# 1, above, it will remain impossible to know what >l'itnesses the agenGJ' intends topresent, what experts, if any, i'?.espondent wouldneed to call to testijj; andwhopossesses relevant iriformation. ll1e time
5Reportand

**R~IJ~V** of RespondentFishe;Scienti_;-'ic needed to complete discoveJJl, of course, will depend on how manywitnesses are involved, where they are located, andwhat their schedules allowfor. Witnesses may also needadditional time to refi·esh their recollections about events that occurred five years ago. Respondentwould, in any event, requireproduction ofphysical evidence related to the alleged leak. Respondent understands fi·om a letterlvfr. Vines senton November 20, 2014, thatFAA either destroyed the bottle and thepackagingmaterial, including the box in which it was shipped, or allowed this evidence to be destroyed. Itmay take months to detennine how much of thephysicalevidence continues to exist andwhat, (/anything, experts can deduce fi·om 

### it. Respondentmayalsoneed Ia seeksanctions againstFAA on account of such destruction of evidence.



### c. a list ofany pending motions
..., Respondent'siid.otion to Dismiss ComplainijorInsufficiency and for Complainant's Violation of Rule 208 was.filedJune 23, 2015.



### d. a proposed date for a telephonic prehearing conference
..., Respondentis, of course, willing toparticipate in apreheating COJ?ference, by telephone or in person, onJuZv 20, 2016, or nearly any other date that ·wouldsuit 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 ofany preheating motions
... and
While Respondent cannotsuggest a datefor filing prehearingmotions, it likely wouldneedto.file 

### cr moNon 

### for a 

### nzore dejinite statenzent be_fore it 

### could.file its

### Answer_

f: 

### proposed hearing dates
... acceptable to all 

### parties.

6ReportandRep4v of RespondentFisher Scientific Respondent submits that no hearingwill be needed in this case, but if a hearingwill be held. ii requests the earliest date consistent1vith andallowable under the law andFA_A 's Rules of Practice.

3. [service instructions] 

### RESPONDENT'§ REPLY Respondent timely served- in accordance with these instructions- the bestReport it could muster in light of the total lack ofres-ponseji·om

### FAA. to the draft JointReport it ojfered Regional Counsel onApril20. Conclusion Respondenthas 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 cannotprovide any more requested information until FAA stops hiding behind the pending Motion toDismiss. Judge Rawald has offered FAAmultiple opportunities to comply with his Orders butthe agency still 

### refuses. Vl.I!EREFORE, Respondentrequests 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 (emai1) ic.**c:£i(Q_C;i3~~""'}~ ,,-S'~'iXc'c** **~---,£,2** (tel) 703-757-5866 Counsel for ThennoFisher Scientific, Inc., and Fisher Scientific Co., LLC

7JERRY COX 2050 jAMIESON AVE APT l212 _C\.U!Y.ANDR!Ar VA. 22314-6827



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# Exhibit 9

## ·c~~

# r=

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# 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 ofFisher } Scientific Company, LLC V. 

### FISHER SCffiNUF!C COMPAN'!', LLC, Respondent. } 

### } } } DocketNo. 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 ofthe FAA's Inexcusable Delay inthe 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 almostfive-and-a-halfyears 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 insufficientbecause, even ifthe alleged facts were assumed to be true, it fails to state a claim for civil penalties lmder applicable statute (per Respondent's Motionto Dismiss Complaint for Insufficiency); 2. The rwo-year statute oflimitations for initiating such a claim under the Federal Aviation Actran more than a year before Regional Counsel served the required Notice (per Respondent's Motion to Dismiss Complaint for Complainant's Violation ofRule 208); 3. Regional Counsel failed to file a tin1ely response to Respondent's Motionto Dismiss (per Respondent's Opposition to Complainant's Motion tor Eh.'tension); and 4. Regional Cmmsel invited dismissal ofthe Complaint by ignoring the Administrative Law Judge's April6, 2016, Orderto conterwith Respondent's counsel and file a Joint Repmt (perFisher's Motion to Sanction FAA's Noncompliance). New and Additional Reasons to Dismiss the Complaint Regional Colmselpurportedto file a Response to Show Cause Order on May 31,2016. No counsel ofrecord for FAA. signedthe submission, however, so 

### it violated Rule ll(a) ofthe FederalRules ofCivil Procedure ("FRCP"). Respondentpromptly called this violation toRespondent il1otion to Strike andto Dismiss 

### Regional Counsel's attention; Regional Cmmsel took no corrective action. Accordingly, under FRCP ll(a), "the comt muststrike an unsigned paper" (emphasis supplied), and FAA must be deemed to have failed to respondto the Show Cause Order, much less to haveprovided any reasonfor the Judge notto dismiss the action for the reasons stated inthat Order. Regional Counsel's persistent delay and disregard ofapplicable rules and statutes has also rendered the Complai..r1t essentially moot nnder the five-year, government-wide statute 

### of limitations barring the commencement ofany 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 

### 3MCo. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994.) It is undisputed thatthe 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 ofevenmore wasted effmt in a hearing FAA conservatively estimates would consnme atleast three full days ofthe Judge's time. Even ifone vvere to assume that the endresult ofthat proceeding would be a final order that Respondentpay a $5,850 civil penalty, the Government is barredby statute from b1inging any court action to compel payment. Respondent's connsel attempted to reach Regional Counsel ofrecord by telephone to ask whetherthis motion would be necessary, but her office receptionist refused to take a message and slanm1ed down the phone inmid-conversation. Ms. Harper did notretumthe call. Vv'HEREFORE, Respondent snbmits that the Complaint must be dismissed withprejudice on any or all ofthe grounds stated above.

Dated: September 

### 23,2016 I ' 

### I
. ' I ' ' Jerry ij/. 

### Cd 0;

### 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