UNITED STATES DEPARTMENT OF TRANSPORT AT 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

J&B ENTERPRISES, INC. d/b/a. RHYTHM 

SHINE, 

e E I w 

JUL ! 5 2009 

Mg. 

AIRPORT/ENVIRONMENTAL 

LAW, AGC-600 

n 

Complainant, 

FAA Docket No. 16-08-07 

V. 

METROPOLITAN NASHVILLE AIRPORT 

AUTHORITY, 

- c 

Respondent. 

3---

RESPONDENT METROPOLITAN NASHVILLE AIRPORT AUTHORITY'^ g 

M0TM N FOR AIS IMMEDIATE STAY AND AN EXTENSION OF TIME TO FILE 

REPLY TO APPEAL 

1. Respondent Metropolitan Nashville Airport Authority (MNAA) moves, pursuant to 14 

C.F.R. §§ 16.11 and 16.19, for an extension of time to file its Reply to the Appeal filed by 

Complainant J&B Enterprises, Inc. in the above-captioned matter, and for an immediate stay 

pending an FAA decision on this motion. 

2. On July 8'^ 2009, Complainant filed both its Appeal fi-om the Director's Determination 

issued on May 5, 2009, and a Motion to Supplement the Record on Appeal. Complainant 

attached two documents to its Appeal as Appendix A, and four others to its Motion to 

Supplement the Record, and has moved to have both sets of documents added to the Record on 

Appeal. 

3. Shortly after filing this Motion for an Extension of Time, MNAA will file, pursuant to 14 

C.F.R. § 16.19(c), its Opposition to Complainant's Mofion to Supplement the Record on Appeal, 

based on the fact that the documents submitted by Complainant are untimely, irrelevant and 
prejudicial. Moreover, some of the documents were previously submitted to the FAA and have 

already been explicitly excluded by the Director because they were not served on the Authority. 

See Director's Determinafion, May 5, 2009, at p. 9, notes 57 and 58; see also Complainant's 

Motion to Supplement the Record on Appeal at f 1. 

4. In addition, pursuant to 14 C.F.R. § 16.19(a), and in accordance with other FAA rulings 

under Part 16, MNAA will simuhaneously file a Motion to Strike New Issues Raised on Appeal 

and Not Considered Below, requesting that the FAA strike new issues raised by J&B Enterprises 

in its appeal as improperly raised and not appropriately considered by the Associate 

Administrator for Civil Rights. See, e.g., Boston Air Charter v. Norwood Airport Commission, 

FAA Docket No. 16-07-03 at 15 (Final Decision and Order, August 14, 2008) ("New allegations 

or issues should not be presented on appeal"). 

5. In accordance with 14 C.F.R. § 16.33(c), Respondent's Reply to the Appeal is due on 

July 31, 2009. An extension of time to file Respondent's Reply is needed because it would be 

unreasonable and prejudicial to require Respondent to prepare its Reply before Respondent 

knows whether the FAA will grant or deny Complainant's motion to supplement the 

Administrative Record, and whether the FAA will grant or deny Respondent's motion to strike 

the new issues raised on appeal that were not raised below or considered by the Director. In 

short, MNAA cannot know how to respond appropriately to the Appeal until the FAA has 

determined the extent of the Administrative Record and the issues to be considered on appeal. 

6. Therefore, Respondent requests an extension of the deadline for filing its Reply to 

Complainant's Appeal until 20 days after the FAA rules on Complainant's Motion to 

Supplement the Record and Respondent's Motion to Strike New Issues on Appeal. 

7. In addition. Respondent requests that its time to reply to Complainant's Appeal be stayed 

immediately during the period while the motions are under consideration. MNAA notes that 
FAA granted J&B Enterprises a similar stay while its Motion for Extension of Time to File 

Appeal was under consideration (see attached email dated June 4, 2009 fi-om Elizabeth Newman 

to Arthur P. Berg, Thomas R. Devine, and Thomas Henderson). 

8. An extension of time and an immediate stay while the motion for an extension of time is 

pending are both necessary and appropriate to ensure fimdamental fairness in adjudicating J&B's 

Appeal before the FAA. Granting MNAA's request will avoid unnecessary time and effort by 

Respondent, which would otherwise be forced to address documents and issues that should be 

stricken by the FAA. Moreover, granting MNAA's request will ensure that it will respond only 

to documents and issues that FAA determines are properly before the agency on appeal, thus 

avoiding confiision in the record and conserving agency resources in reviewing the appeal. 

9. While MNAA is anxious for this case to be resolved on the merits, so as to remove a 

cloud that this proceeding casts over the Authority's ACDBE program at the Airport and its 

current efforts to contract for a shoeshine concessionaire, the actions taken by J&B in seeking to 

introduce new documents and new issues during the administrative appeal of the case make the 

request for an immediate stay and an extension of time necessary in order for MNAA to reply 

effectively and appropriately to the Appeal and to conserve agency resources in reviewing the 

appeal. 

10. Counsel for Respondent, Lisa Reynolds, contacted Thomas J. Henderson., counsel for 

J&B Enterprises, regarding an extension of time on July 13, 2009. Mr. Henderson responded on 

July 14, 2009 that J&B Enterprises opposes an extension of time. 

WHEREFORE, Respondent MNAA respectfully requests an extension of time until 20 

days after the FAA rules on the Complainant's Motion to Supplement the Record and 

Respondent's Motion to Strike New Issues, and in addition requests that FAA immediately stay 
Respondent's time to reply to Complainant's Appeal while the motion for an extension of fime is 

pending. 

th Respectfully submitted this 14'" day of July, 2009 

Robert Watson 

Metropolitan Nashville Airport Authority 

One Terminal Drive, Suite 501 

Nashville, TN 37214 

Telephone: (615) 275-1637 

Facsimile: (615)275-4302 

Thomas Devine 

KAPLAN KIRSCH & ROCKWELL LLP 

1001 Connecticut Ave NW, Suite 800 

Washington, DC 20036 

Telephone: (202) 955-5600 

Facsimile: (202) 955-5616 

Arthur P. Berg 

KAPLAN KIRSCH & ROCKWELL LLP 

641 Lexington Ave. Suite 1409 

New York, NY 10022 

Telephone: (212) 328-9515 

Facsimile: (646)514-5440 

Lisa Reynolds 

KAPLAN KIRSCH & ROCKWELL LLP 

1675 Broadway, Suite 2300 

Denver, CO 80202 

Telephone: (303) 825-7000 

Facsimile: (303) 825-7005 

Counsel for Respondent Metropolitan Nashville Airport Authority 
—Original Message— 

From: elizabeth.newman@faa.gov [mailto:elizabeth.newman@faa.gov] 

Sent: Thursday, June 04, 2009 11:49 AM 

To: Arthur P. Berg 

Cc: Thomas R. Devine; Thomas Henderson 

Subject: RE: J&B Enterprises Motion for Extension of Time to Appeal 

Nashville's counsel may file an answer in support or in opposition to the motion within 10 days after service. The Director 

will not rule upon the motion until the time to file elapses unless a filing is made earlier. The appeal time is effectively 

stayed during the period while the motion is under consideration. 

Elizabeth Newman 

Attorney-Airports Law Branch AGC-610 

FAA Office of the Chief Counsel 

800 Independence Ave., SW 

Washington, DC 20591 

202-267-7713 

202-267-5769 (Fax) 

This message is intended only for the use of the individual or entity to which it is addressed and may contain information 

that is privileged, confidential, and exempt from disclosure under applicable law. 
f S 

CERTIFICATE OF SERVICE 

I hereby certify that I have this day served the foregoing Motion for an Immediate Stay 

and an Extension of Time to File Reply to Appeal on the following persons at the following 

addresses by overnight Federal Express: 

FAA Office of the Chief Counsel 

Part 16 Airport Proceedings Docket, AGC-610 Room 925 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Original and 3 copies VIA Federal Express No. 7967 7491 5758 

Thomas J. Henderson 

Henderson Law Firm, PLLC 

Suite 350 

1425 K Street, NW 

Washington, DC 20005 

One Copy VIA Federal Express No. 7977 6216 6782 

Elizabeth Newman 

Office of the Chief Counsel, Airports and Environmental Law Branch 

Federal Aviation Administration 

800 Independence Avenue, SW, Room 923-M 

Washington, DC 20591 

1 courtesy copy VIA Federal Express No. 7977 6218 2860 

Dated this 11 M^ day of July, 2009: 

U^)M^ ^ 

Lisa A. Reyn(6lds 

Counsel for Respondent MNAA