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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

and THE STATE OF FLORIDA, 

ex rel. ROBERT V. SMITH, 

Qui Tam Plaintiff,

v. CASE NO.: 3:20-cv-03678/MCR/ZCB

JAY A. ODOM; OKALOOSA 

COUNTY, BOARD OF COUNTY

COMMISSIONERS,

Defendants.

__________________________________________________________________

PLAINTIFFS’ MOTION TO AMEND THE JUDGMENT

__________________________________________________________________

Plaintiffs, United States of America and the State of Florida, ex rel. Robert V. 

Smith (“Relator”), through undersigned counsel, file this motion to amend the Order 

dismissing Relator’s Complaint pursuant to Fed. R. Civ. P. 59(e) and 60(b), and 

respectfully shows as follows:

On June 22, 2023, the Court entered an Order dismissing Relator’s 

Complaint (the “Order”). ECF 76. Rule 59(e) provides that “[a] motion to alter or 

amend a judgment must be filed no later than 28 days after the entry of the 

judgment.” This Motion is timely filed. “The only grounds for granting [a Rule

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59] motion are newly-discovered evidence or manifest errors of law or fact.” Arthur

v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quoting In re Kellogg, 197 F.3d 

1116, 1119 (11th Cir. 1999)).

“Additionally, under Rule 60(b)(1), a party may seek relief from a final 

judgment based on mistakes in the application of law.” MacPhee v. MiMedx Grp.,

Inc., No. 22-10633, 2023 WL 4418636, at *19 (11th Cir. July 10, 2023) (citing 

Parks v. U.S. Life & Credit Corp., 677 F.2d 838, 839–40 (11th Cir. 1982)). And 

Rule 60(b)(6) provides that a “court may relieve a party ... from a final judgment ... 

for any other reason that justifies relief.” Id.

The Order contains manifest errors of law and fact and mistakes in 

application of law. 

I. Application of Public Disclosure Bar 

Relator’s Amended Complaint alleges a chronology of various schemes by 

Odom and the County in violation of the False Claims Act. The schemes involved 

different parties and occurred at different times. Moreover, each Count in the 

Amended Complaint is broken down based on the time period and parties involved. 

The Order analyzed two news articles in making its ruling on public 

disclosure. Those two news articles, however, did not contain public disclosure of 

all of the allegations made by Relator. In particular, there was no public disclosure 

of the covert takeover of Miracle Strip Aviation by Simmons and Ward, as straw 

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men for Odom, as alleged in paragraphs 52-53, 101-110, 136-142 of the Amended 

Complaint. Rather, the news articles focused only on Odom’s acquisition of the 

competition after the covert takeover by Simmons and Ward. The March 29, 2014 

news article quoted in the Order stated: “Last year, a company associated with 

Destin Jet owner Jay Odom bought out the competition at Destin Airport.” This 

reference, however, was not to the earlier, covert take over by Ward and Simmons 

but only the later corporate purchase of the stock in the entity used by Ward and 

Simmons. 

As alleged in the Amended Complaint, Odom caused false claims to the 

Government during the period of the Simmons and Ward covert takeover. The 

facts underlying those false claims were not disclosed in the news articles or by any 

other means that would constitute public disclosure as defined under the False 

Claims Act. Moreover, there was no public disclosure of later and continuing 

violations of the False Claims Act as detailed in the Amended Complaint. 

Moreover, the news articles do not contain all of the allegations (X and Y) 

from which readers could infer that a fraud had been committed. Indeed, the 

articles discussed grant assurances, but as argued by Defendants, the article noted 

that the FAA had been informed of some facts regarding the FBOs at DTS and 

allegedly had “washed their hands” of the issues. The articles, however, did not 

reveal the true facts as alleged by Relator – that the FAA was not privy to all of the 

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relevant facts, had not formally reviewed the potential exclusive rights issues, and 

had not blessed or sanctioned Odom’s (and then another company’s) complete 

control and ownership of both FBOs at DTS that created an illegal monopoly in 

continuing violations of grant assurances and federal law. 

The Order states:

Odom and the County also argue that the Amended Complaint fails to 

adequately plead fraud because the FAA had been informed of the 

circumstances and thus could not have been misled. The Court agrees.

Order at 22. 

What the FAA knew is an issue of fact that has yet to be determined. As 

alleged, the FAA had not been informed of all of the circumstances regarding the 

FBOs and operations at DTS. As a result, it is plausible that the government could 

have been misled. 

In the recently issued decision, the Eleventh Circuit, in Palm Beach Cnty. v. 

Fed. Aviation Adm'r, 53 F.4th 1318, 1327 (11th Cir. 2022),

1

analyzed the 

implication of an airport sponsor’s reliance on implicit approvals by the FAA in a 

situation where the FAA was never formally asked to provide an analysis of the 

factual situation at issue as it related to statutory compliance and grant assurances. 

Any analysis done by the FAA had been based on incomplete facts. As a result, 

 

1 This case was issued by the Eleventh Circuit on November 18, 2022, shortly 

before Relator filed its Opposition to the Motion to Dismiss. 

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the court held that an informal complaint reviewed on incomplete facts did not 

result in an FAA determination and was not analogous to an FAA approval. The 

Court went on to emphasis:

We have seldom, if ever, encountered any other party who has argued 

that because it has not followed the law for years, it should not be 

required to do so now.

Id. at 1334. 

Here, similar to Palm Beach Cnty., as alleged in the Amended Complaint, the 

FAA was never asked to formally analyze the circumstances that occurred at DTS

regarding the FBOs. As further alleged in the Amended Complaint, the County did 

not seek a formal opinion from the FAA Office of General Counsel as the FAA had 

suggested the County do in order to ensure compliance and to obtain a formal 

approval. Amended Complaint at ¶ 80 (“Okaloosa County never obtained a legal 

opinion from the FAA Office of General Counsel as recommended by the FAA.”). 

Moreover, the record does not support that the FAA was told that it was going to 

allow one FBO to consolidate the two existing FBOs into an impermissible 

monopoly in violation of federal statute.

Defendants cannot now rely on communications and an informal review that 

were made with less than full disclosure of the facts. Such a partial review is not 

analogous to an FAA approval made after disclosure of all relevant facts.

Accordingly, the public disclosure bar should not apply. 

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II. Statutory Prohibition on Exclusive Rights

The Order states that the “FAA considers the airport sponsor’s willingness to 

make the airport available to additional reasonably qualified providers, and thus, the 

FAA makes a discretionary decision in consideration of the circumstances in 

determining whether an exclusive right was created in violation of federal law.” 

Order at 21. The Order’s conclusion in this regard is based upon a manifest error of 

law and fact. This conclusion is based on an erroneous assumption that the County 

could meet the statutory exception to an exclusive rights prohibition that would 

allow the FAA to make a “discretionary decision.” 

As alleged in the Amended Complaint, the FAA does not have discretion to 

allow a single FBO where, as here, such a situation would create an Exclusive Right 

as defined by federal statute. Relator properly alleged that the applicable federal 

statutes and the specific circumstances at DTS demonstrated that DTS did not meet

the exception in the federal statutes that might permit a single FBO. See, e.g., ECF 

71-5 page 21; Amended Complaint ¶¶ 29-40. 

The Order cites to 49 U.S.C. § 47107(a)(4)(A)–(B) in finding that an 

exclusive rights violation was not adequately alleged. The Order, however, did not 

consider that an airport sponsor, like the County, is mandated to also comply with 

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49 U.S.C. § 40103(e).2 Relator properly alleged application of this statute, which 

the FAA Airport Compliance Manual (Order 5190.6B) makes clear that airport 

sponsors are mandated to comply with to receive federal funds. ECF 71-5 page 21; 

Amended Complaint ¶ 29. Relator also alleged the specific facts regarding the 

County’s non-compliance with this statute. See, e.g., Amended Complaint ¶¶ 29,

30, 32, 33. 

The relevant portion of 49 U.S.C. § 40103 provides:

(e) No Exclusive Rights at Certain Facilities. — A 

person does not have an exclusive right to use an air 

navigation facility on which Government money has 

been expended. However, providing services at an 

airport by only one fixed-based operator is not an 

exclusive right if—

(1) it is unreasonably costly, burdensome, or 

impractical for more than one fixed-based operator to 

provide the services; and

(2) allowing more than one fixed-based operator to 

provide the services requires a reduction in space 

leased under an agreement existing on September 3, 

1982, between the operator and the airport.

49 U.S.C. § 40103(e) (emphasis added). 

 

2 Any time federal money is used for grants involving airports, the provisions 

of 49 U.S.C. § 40103(e) apply. On the other hand, 49 U.S.C. § 47107 only applies 

to AIP grants. The County is subject to both provisions. 

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The legislative history of subsection (2) indicates that the words “on 

September 3, 1982” were added for clarity when the statute was amended on July 

5, 1994. (Pub. L. 103-272 § 1(e), July 5, 1994, 108 Stat. 101). In other words, the 

reference to the date was meant to act as a grandfather clause with respect to the 

statute for any leases that were existing on September 3, 1982. 

The Amended Complaint properly alleges that DTS had two FBOs that were 

initially covertly taken over by one of the existing operators and then the County, 

as airport sponsor, allowed one operator to control and operate both FBOs. See

ECF No. 71-3. As alleged, the County, as airport sponsor, cannot avoid the 

exclusive rights prohibition because it does not meet the exception available in 49 

U.S.C. § 40103. For that reason, the FAA does not have the ability to make a 

“discretionary decision” to excuse an exclusive right created in violation of federal 

laws. 

The Supreme Court in Chevron USA Inc. v. Natural Resources Defense 

Counsel, Inc. 467 U.S. 837 (1984) stated:

When a court reviews an agency’s construction of the statute which it 

administers, it is confronted with two questions. First, always, is the 

question whether Congress has directly spoken to the precise question 

at issue. If the intent of Congress is clear, that is the end of the matter; 

for the court, as well as the agency, must give effect to the 

unambiguously expressed intent of Congress.

See also Palm Beach Cnty., 53 F.4th at 1334 (quoting Barton v. U.S. Att'y Gen., 904 

F.3d 1294, 1298 (11th Cir. 2018) (“And of course, ‘if we determine — employing

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traditional tools of statutory construction — that Congress has spoken clearly, we do

not defer to the agency's interpretation of the statute, because we must give effect to

the unambiguously expressed intent of Congress.’”). 

Here, the statute is clear that the exclusive rights exception does not apply 

when the relevant lease was created after the date of the statute. Moreover, the 

exception is not applicable because two FBOs already exist at DTS. See United

States v. Garcon, 54 F.4th 1274, 1280 (11th Cir. 2022) (quoting Korman v. HBC

Fla., Inc., 182 F.3d 1291, 1296 (11th Cir. 1999) (“But we must ‘take the provision 

as Congress wrote it, and neither add words to nor subtract them from it.’”)

Therefore, the Amended Complaint properly alleges an improper exclusive 

right was created and the FAA does not have discretion to determine otherwise.

III. Amended Complaint Is Plead With Particularity

The Order states:

"Given the government’s consistent decisions over the years to approve 

the County’s grant applications despite the public disclosures and the 

County’s disclosures to the FAA, an FCA claim based on false grant 

assurances is not adequately stated or alleged with the requisite 

particularity."

Order at 24. 

This finding assumes the County’s factual disclosures were accurate and 

disregards that the County, as alleged in the Amended Complaint, did not make full 

factual disclosures to the FAA regarding the FBOs at DTS and the County’s plan 

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to allow one FBO operator to control and operate two FBOs as an impermissible 

monopoly. Moreover, what the Government knew when it made its decisions to 

approve grant applications is an issue of fact that has yet to be determined. 

There are ample allegations in the Amended Complaint that address the 

County’s insufficient disclosures to the FAA regarding its plans and its failure to 

obtain a formal opinion from the FAA General Counsel’s office. See e.g. Amended 

Complaint 64-66. As a result, any approvals by the FAA were based on incomplete 

facts and false or fraudulent statements.

IV. Relator’s Allegations Are Not “Gossip”

The Order specifically references Relator’s allegations as “gossip.” It is 

unclear how Relator’s allegations can be considered “gossip” when the standard on 

a motion to dismiss is to consider all allegations as true. 

As alleged, Mr. Smith had internal, behind the gate access to the airport and 

had relationships developed over the years with the employees and others who 

worked and used the airport. Thus, he was in a position to gather relevant 

information related to the false claims made by Odom and the County. As a result, 

none of the allegations can properly be written off and considered nothing but 

“gossip,” where the allegations must be accepted as true. 

Moreover, the recent amendments to the False Claims Act permit

consideration of second-hand information. 

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V. Recent FAA Case Relevant to this Action

The County argued that violations of Grant Assurances were not material 

and that the FAA would continue to allow funding even in the face of Grant 

Assurance violations. A recent case decided by the FAA, Timberview Helicopters, 

Inc. v. Okaloosa County, Florida, FAA Docket No. 16-21-14,3 which notably 

involves the same airport that is at issue in this case, is contrary to the County’s 

position. A copy of the FAA’s decision is attached as Exhibit “A.” 

In the County’s Memorandum of Law submitted in Timberview, the County 

described numerous communications with the FAA resulting in investigations. The 

County stated: "Further, the County has exercised its authority under Assurance 

22(h) to address safety issues, subject to a final determination by the FAA." The 

County also described "subsequent conference calls" attended by "over a dozen 

FAA employees."

Notwithstanding, the FAA Director found the County in violation of Grant 

Assurance 22, even though the County had multiple discussions with the FAA 

regarding Timberview over several years. In other words, communications with 

the FAA alone are not enough to avoid a grant assurance violation. Context and 

content of those communications matter. 

 

3 This case was only recently decided, after briefing on the motion to dismiss 

was completed. 

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Moreover, the FAA’s ruling in Timberview further demonstrates the 

materiality of grant assurance violations where the FAA will not approve any grant 

applications until grant assurance violations are corrected. In particular, the FAA 

held: 

We find that Okaloosa County, Florida, is in violation of its Federal 

obligations regarding Grant Assurance 22, Economic 

Nondiscrimination, as set forth in its airport grant assurances and 

existing Federal statutes.

* * * * * 

Pending the FAA’s approval of a corrective action plan, this office will 

recommend to the Director, Office of Airport Planning and 

Programming (APP-1), to withhold approval of any applications 

submitted by Okaloosa County for discretionary funding for projects

authorized under 49 U.S.C. § 47115.

In sum, grant assurance violations, liked those alleged here, are 

material. Moreover, informal communications with the FAA, absent a formal 

determination, will not excuse the creation of an impermissible exclusive 

right.

VI. Request to Amend Complaint to Plead Additional Specifics

To comply with Rule 9(b), a complaint must allege “facts as to time, place, 

and substance of the defendant's alleged fraud, specifically the details of the 

defendant's allegedly fraudulent acts, when they occurred, and who engaged in 

them.” United States ex rel. Mosley v. Walgreen Co., No. 18-CV-80200, 2023 

2023 WL 4016997, at *2 (S.D. Fla. May 11, 2023) (internal citations omitted).

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The Amended Complaint contains details of the defendants’ allegedly 

fraudulent acts, when they occurred, and who engaged in them. Notwithstanding, 

in light of the Court’s ruling, Relator seeks leave to amend the Complaint to allege 

additional facts, including additional facts that demonstrate he is an original 

source.

In particular, Relator can explain the connection with the sources to render 

the “gossip” label inapplicable and otherwise provide additional detail regarding 

how he learned of the allegations. Moreover, in some instances, the Order 

requires Relator to prove that the County did not do something. In that regard, 

during the pendency of this action, Relator has requested public records in an 

attempt to prove a negative. If granted leave, Relator will add allegations that 

demonstrate that the County cannot show that it made full disclosures to the FAA 

and received the blessing or approval from the FAA to bestow upon one FBO an 

exclusive right in violation of federal law. 

WHEREFORE, Relator, Robert Smith respectfully requests that this Court 

amend the Order and deny Defendants’ Motion to Dismiss or in the alternative, grant 

Relator leave to amend the Complaint.

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Respectfully submitted this 20th day of July 2023. 

/s/ Elizabeth C. Billhimer

ELIZABETH C. BILLHIMER

Florida Bar No. 0121986

CLARK PARTINGTON

4100 Legendary Drive, Ste. 200.

Destin, Florida 32541

(850) 650-3304 telephone

(850) 650-3305 facsimile 

ebillhimer@clarkpartington.com

fkendall@clarkpartington.com

bgilman@clarkpartington.com

Attorney for Robert V. Smith

CERTIFICATE OF COMPLIANCE AS TO WORD COUNT

I hereby certify that, as required by Local Rule 7.1(F), this Opposition 

contains 7,947 words, counted as provided in Local Rule 7.1(F).

/s/ Elizabeth Billhimer 

ELIZABETH BILLHIMER

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been 

served by electronic mail via the Court’s transmission of the Notice of Electronic 

Filing to the following, this 20

th day of July 2023:

A. BENJAMIN GORDON, III

Anchors Gordon, P.A.

2113 Lewis Turner Blvd., Suite 100

Fort Walton Beach, FL 32547

bgordon@anchorsgordon.com

aizzo@anchorsgordon.com

cyndi@anchorsgordon.com

mary@anchorsgordon.com

SARAH WILBANKS

NATHANIEL H. HUNT

PETER J. KIRSCH

Kaplan Kirsch & Rockwell LLP

1675 Broadway, Suite 2300

Denver, CO 80202

swilbanks@kaplankirsch.com

nhunt@kaplankirsch.com

pkirsch@kaplankirsch.com

COUNSEL FOR DEFENDANT

JAY A. ODOM

GREGORY T. STEWART 

LYNN M. HOSHIHARA 

KERRY A. PARSONS 

Nabors, Giblin & Nickerson, P.A. 

1500 Mahan Drive, Suite 200 

Tallahassee, Florida 32308 

(850) 224-4070 

(850) 224-4073 Facsimile 

gstewart@ngnlaw.com 

lhoshihara@ngnlaw.com 

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kparsons@ngnlaw.com 

legal-admin@ngnlaw.com

COUNSEL FOR DEFENDANT

OKALOOSA COUNTY, BOARD OF COUNTY COMMISSIONERS

DAVID M. SOBOTKIN

Trial Attorney

U.S. Department of Justice

Civil Division, Fraud Section

Post Office Box 261

Ben Franklin Station

Washington, D.C. 20044

(202) 353-1291

David.m.sobotkin@usdoj.gov

ATTORNEY FOR PLAINTIFF

UNITED STATES OF AMERICA

And by regular U.S. mail to the State of Florida

CHRISTOPHER A. KNIGHT

Office of the Attorney General

State of Florida

PL-01 The Capitol

Tallahassee, FL 32399-1050

Christopher.knight@myfloridalegal.com

And 

JIMMY PATRONIS, Chief Financial Officer

Florida Department of Financial Services

200 East Gaines Street

Tallahassee, FL 32399

/s/ Elizabeth C. Billhimer

ELIZABETH C. BILLHIMER

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