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

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E,L\RING DOCKET
FEDERAL AVIATION ADMINISTRATION, } Complainant, } }
v. } } FISHER SCIENTIFIC COMPANY,LLC, } Respondent. } IntheMatter ofFisher Scientific Company, LLC DocketNo. FAA-2015-1321 (Civii Penalty Action) Judge Rawald

REPORT OF FISHER SCIENTIFIC IN RESPONSE TO ORDER SERVEDAPRIL 6, 2016, AND MOTION TO SANCTIONFAA'S NONCOMPLIANCE By Order entered April6, 2016, JudgeRawald directed Complainant, the Southern Regional Counsel ofthe Federal Aviation Administration (hereinafter referred to as "FAA'') and RespondentFisher Scientific Company, LLC (hereinafter "Fisher"), to file a Joint Report addressing certain pre-hearing matters that were listed in the Order, including "alist ofany pending motions that have been previously filed but have yet to be ruled upon."
Fisherregrets to report thatFAA 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 FAA attorney identified on the service list (Mr. Vines) on April15, 2016. Mr. Vines did not answer his telephone, so Fisher's counsel left a voicemail stating thatthe call was in reference to the April 6 Order. Mr. Vines never returned the call. On April 18, the undersigned counsel emailed Mr. Vines, requesting a response tothe April15 voicemail. On April 19, Mr. Vines responded that a different FAA attorney was handling the case, even though FAAnever 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 draft Joint Report, which the undersigned emailed to her a few minutes later. Fisherrequested that she either concurwith the draft and sign it or suggest any edits she thought appropriate. Ms. Harper did neither.Reportof Fisher Scientific

A weeklater, on April27, the undersigned phoned Ms. Harperbut, once again, she did not answer her telephone. Fisher's counsel left a voicemail reminding herthatFisherwas determined to comply with the Orderbut- without any response from her- it wouldbe impossible to file the required Joint Report. Ms. Harpernever responded to the voicemail. On April 29 -the deadline for finalizing and mailingthe JointReport- the undersigned telephoned Ms. Harper again, but she did not answer hertelephone. Fisher's counsel indicated in a voice mail that1fFAA continued to ignore the proposed draft ofthe JointReport, 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.

FAA's apparent disregard ofthe April 6 Order isjustthe latest chapterin a five-year history of the Office ofSouthern Regional Counsel dragging its feet and utterly ignoring applicable laws andRules ofPractice.
This case arises from an alleged incidentthat occurred five years ago, on July 21,2011. FAA waited until days before the statute oflimitations expired and filed a Notice ofProposed Civil Penalty in July, 2013. AfterFisherpointed out thatthe Notice was based on regulatory requirements that were not in effect in 2011, FAAfiled an Amended Notice on July 24,2014,
more than three years afterthe alleged incident and more than one year after the statute of limitations expired.

FAAwaited 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 forbeing barredby the statute oflimitations. The FAA's own Rules ofPractice allowed FAA 10 days to oppose Fisher'sMotion to Dismiss, butthe agency did not file its Memorandum in Opposition until August 17, 2015, almost two months after itwas due. Fisher'sMotion to Dismiss has been pending for nearly a year.
The most appropriate way to sanction such egregiously dilatory conduct and get this ancient case offthe docket would be to order SouthernRegional Counsel to SHOW CAUSE why dismissal should notbe ordered on one or more ofthe following grounds: l. FAA's failure to comply with the April 6, 2016, Order. 2. FAA's default in failing to file a timely opposition toRespondent's June 23, 2015, Motionto Dismiss. (No extension was permitted underFAA'sRules ofPractice for the
reasons stated inRespondent's Opposition toFAA'sMotion for Extension.) 3. FAA's decision to waitmore than three years after the alleged incident and more than a year afterthe statute oflimitations expired to lodge crucial allegations in the Amended Notice. (Respondent's Memorandum in Support and its December 21, 2015, Reply to FAA'sMemorandum in Opposition, an additional copy ofwhich is attached, explain in detail why the case isbarred as out-of-time.)

2Report of Fisher Scientific

4. FAA's failure to state a legally sufficient claim, as explained in Respondent's abovereferencedMemorandum in Support and its Reply to FAA'sMemorandum. WHEREFORE, Respondent respectfully requests the Judge to command Agency respect for his Orders and for the substantive and procedural laws underlying the above-captioned case by DISMISSINGwith prejudiceFAA's Complaint. Respondentreiterates its request for in-person oral argument on the issues presented by its pending motions. Dated: April 30, 2016 Respectfully submitted,

Jerry ox, Esq. 2050 Jamieson Ave., Suite 1212 Alexandria, VA 22314 (email)

**.l£Q!f{!!)J2Q!'Qill<K~1flils:gyil§~£llil.e~.(;QI!l** (tel) 703-757-5866 Counsel for Thermo Fisher Scientific, Inc., and Fisher Scientific Co., LLC

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CERTIFICATE OF SERVICE

On April 30, 2016, the undersigned sent by the indicated type ofservice at least one copy ofthe foregoing Joint Report to each ofthe persons listedbelow.

D [One Copyby U.S. Postal 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[0riginal + One Copy by Postal Mail] HearingDocket Clerk, AGC-430 Federal Aviation Administration Wilbur Wright Bldg., Suite 2W1000 600 Independence Ave., S.W. Washington, DC 20591

D [One Copyby Air Courier] Michelle Harper, Esq. Regional Counsel, AS0-7 U.S. Department ofTransportation Federal Aviation Administration Southern Region 1701 Columbia Ave. College Park, GA 30337 0 [One Copy by Air Courier] The Hon. Douglas M. Rawald Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Ave., S.E. (E11-310) Washington, DC 20590

D [Original +One Copy by Air Courier] Federal Aviation Administration 800 Independence Ave., S.W. Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2W1000
0[0ne Copy by U.S. Postal Mail] Michelle Harper, Esq. Regional Counsel, ASO-7 U.S. Department ofTransportation Federal Aviation Administration Southern Region P.O. Box 20636 College Park, GA 30320

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