U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

El\ ll IV 

E,L\RING DOCKET 

FEDERAL AVIATION ADMINISTRATION, } 

Complainant, } 

} 

v. } 

} 

FISHER SCIENTIFIC COMPANY, LLC, } 

Respondent. } 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

( Ci vii Penalty Action) 

Judge Rawald 

REPORT OF FISHER SCIENTIFIC IN RESPONSE TO 

ORDER SERVED APRIL 6, 2016, 

AND 

MOTION TO SANCTION FAA'S NONCOMPLIANCE 

By Order entered April6, 2016, JudgeRawald directed Complainant, the Southern Regional 

Counsel of the Federal Aviation Administration (hereinafter referred to as "FAA'') and 

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

addressing certain pre-hearing matters that were listed in 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 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 that the 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 to the April15 voicemail. On 

April 19, Mr. 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 draft Joint Report, which the 

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

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

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

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

determined 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 that1fFAA 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. 

FAA'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 five years ago, on July 21,2011. FAA 

waited until days before the statute of limitations expired and filed a Notice of Proposed Civil 

Penalty in July, 2013. 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 three years after the alleged incident and more than one year after the statute of 

limitations 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 

barred by the statute of limitations. The FAA's own Rules of Practice allowed FAA 10 days to 

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

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

pending for nearly a year. 

The most appropriate way to sanction such egregiously dilatory conduct and get this ancient 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 April 6, 2016, Order. 

2. FAA'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 crucial allegations in the Amended 

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

FAA's Memorandum in Opposition, an additional copy of which is attached, explain in 

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

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Report of Fisher Scientific 

4. FAA's failure to state a legally sufficient claim, as explained in Respondent's abovereferenced Memorandum in Support and its Reply to FAA's Memorandum. 

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 

DISMISSING with prejudice FAA's Complaint. 

Respondent reiterates 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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Report of Fisher Scientific 

CERTIFICATE OF SERVICE 

On April 30, 2016, the undersigned sent by the indicated type of service at least one copy of the 

foregoing Joint Report to each of the persons listed below. 

D [One Copy by U.S. Postal 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[0riginal + One Copy by Postal Mail] 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Wilbur Wright Bldg., Suite 2W1000 

600 Independence Ave., S.W. 

Washington, DC 20591 

D [One Copy by Air Courier] 

Michelle Harper, Esq. 

Regional Counsel, AS0-7 

U.S. Department of Transportation 

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 of Transportation 

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 of Transportation 

Federal Aviation Administration 

Southern Region 

P.O. Box 20636 

College Park, GA 30320 

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