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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’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS 

__________________________________________________________________ 

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

Smith (“Relator”), through undersigned counsel, files this Opposition to Defendants’ 

Motion to Dismiss (the “Opposition”). In support, Relator states: 

I. ARGUMENT 

A. Standard of Review 

On a motion to dismiss, the Court “must ‘view the allegations of the complaint 

in the light most favorable to the plaintiff[s], consider the allegations of the 

complaint as true, and accept all reasonable inferences therefrom.’” La Grasta v. 

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First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004). For purposes of Rule 

12(b)(6), a court generally may not look beyond the pleadings.” U.S. ex rel. Osheroff 

v. Humana Inc., 776 F.3d 805, 811 (11th Cir. 2015). A district court may, however, 

consider an extrinsic document on Rule 12(b)(6) review “if it is (1) central to the 

plaintiff's claim, and (2) its authenticity is not challenged[,]” Id. For analysis of 

public disclosure, however, the court may only consider information from the 

enumerated sources listed in the False Claims Act (“FCA”). 31 U.S.C. 

§3730(e)(4)(A). 

B. Claims are Not Barred by Public Disclosure 

Defendants’ Motion glosses over the 2010 FCA amendments. See Health 

Care and Education Reconciliation Act, Pub.L. 111–152 (2010). Defendants cite 

cases construing earlier versions of the FCA without apprising the court that earlier 

versions of the FCA are not applicable here. 

The 2010 amendments narrowed the class of disclosures that trigger the public 

disclosure bar and radically changed the “hurdle” for relators. United States ex rel. 

Saldivar v. Fresenius Med. Care Holdings, Inc., 841 F.3d 927, 932 n.1 (11th Cir. 

2016); U.S. ex rel. Moore & Co., P.A. v. Majestic Blue Fisheries, LLC, 812 F.3d 

294, 298 (3d Cir. 2016). 

Relevant changes to the 2010 FCA are italicized below: 

(4)(A) The court shall dismiss an action or claim under this 

section, unless opposed by the Government, if substantially the 

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same allegations or transactions as alleged in the action or claim 

were publicly disclosed — 

(i) in a Federal criminal, civil, or administrative hearing in 

which the Government or its agent is a party;

(ii) in a congressional, Government Accountability Office, or 

other Federal report, hearing, audit or investigation; or 

(iii) from the news media, 

unless the action is brought by the Attorney General or the person 

bringing the action is an original source of the information. 

(B) For purposes of this paragraph, "original source" means an 

individual who either (i) prior to a public disclosure under 

subsection (e)(4)(A), has voluntarily disclosed to the 

Government the information on which allegations or transactions

in a claim are based, or (2) who has knowledge that is 

independent of and materially adds to the publicly disclosed 

allegations or transactions, and who has voluntarily provided 

the information to the Government before filing an action under

this section. 

31 U.S.C. §3730(e)(4)(A), (B) (emphases added). 

Information disclosed in a criminal, civil, or administrative hearing now 

qualifies as a public disclosure only if the information was disclosed in a federal case 

to which the government was a party. Id. Information disclosed in a federal or state 

case between private parties no longer constitutes public disclosure. Osheroff, 776 

F.3d at 812. 

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The 2010 amendments also expanded the definition of "original source." 

Original source status now turns on whether relator has “knowledge that is 

independent of and materially adds to the publicly disclosed allegations or 

transactions." Majestic Blue Fisheries, LLC, 812 F.3d at 299. Significantly, Relator 

no longer must possess "direct ... knowledge" of the fraud to qualify as an original 

source. The focus now is on what independent knowledge the Relator added to what 

was publicly disclosed. 

 The Eleventh Circuit applies the three-part Cooper test to determine if public 

disclosure bars an action: (1) have plaintiff’s allegations been disclosed in the 

enumerated sources set out in the FCA; (2) if so, are the allegations in the complaint 

“substantially the same” as the allegations or transactions contained in public 

disclosures; and (3) if yes, is the plaintiff an “original source” of that information. 

Osheroff, 776 F.3d at 812. 

1. Allegations Were Not Publicly Disclosed 

The court first determines if the “allegations” on which Relator’s claims are 

based were publicly disclosed. Because the Cooper test does not define 

“allegations,” the Eleventh Circuit utilizes the formula set forth in United States ex 

rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649 (D.C. Cir. 1994) to 

assess if information constitutes an “allegation.” United States ex rel. v. Mortg. Invs. 

Corp., 987 F.3d 1340, 1353–54 (11th Cir. 2021). 

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Under Springfield, “one generally must present a submitted statement or claim 

(X) and the true set of facts (Y), which shows that X is untrue. These two things 

together allow the conclusion (Z) that fraud has occurred.” Fresenius Med. Care 

Holdings, Inc., 841 F.3d at 935. There is no “allegation” of fraud unless each 

variable is present: 

[W]here only one element of the fraudulent transaction is in the public 

domain (e.g., X), the qui tam plaintiff may mount a case by coming 

forward with either the additional elements necessary to state a case of 

fraud (e.g., Y) or allegations of fraud itself (e.g., Z). 

Id. 

Here, only limited facts are in the public domain, but those facts do not 

constitute “allegations” under Springfield. Moreover, those limited facts do not 

allow the conclusion that a fraud has occurred. Relator also has brought forth 

additional elements necessary to state a case for fraud and allegations of fraud itself. 

As a result, the public disclosure bar does not apply. 

 Defendants do not address the Springfield formula. Rather, Defendants 

incorrectly argue that any facts in the public domain that may also appear in the 

Amended Complaint1 automatically invoke the public disclosure bar. Defendants 

do not analyze if the disclosed facts are “allegations” and/or if the allegations of 

fraud as alleged by Relator are in the public domain. 

a. Defendants Rely On Sources Not Enumerated in FCA 

1

 Citation to the Amended Complaint, ECF 33, will appear as “Compl.¶___.” 

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The FCA limits consideration of what allegations may constitute public 

disclosure to only those made in specific enumerated sources. Allegations are 

considered publicly disclosed only if made “in a Federal criminal, civil, or 

administrative hearing in which the Government or its agent is a party; in a 

congressional, Government Accountability Office, or other Federal report, hearing, 

audit or investigation; or from the news media.” 31 U.S.C.A. §3730(e)(4)(A). 

Defendants stray from this statutory mandate and rely on information outside these 

enumerated sources. 

It is undisputed that Relator’s allegations were not disclosed in a federal court 

proceeding in which the Government was a party or a congressional, Government 

Accountability Office, or other federal report, hearing, audit or investigation. 

 Contrary to the FCA, Defendants seek judicial notice of facts from a state 

court case. The FCA does not permit consideration of information from a state court 

case to analyze public disclosure. Osheroff, 776 F.3d at 812. In any event, the state 

court case cited by Defendants does not contain any “allegations” of fraud at issue 

here. 

Defendants’ reliance on “public records pursuant to Florida public records 

laws” in considering public disclosure under the FCA is improper. The 2010 

amendments restricted public disclosure to allegations from “federal reports” not 

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state public records. It is undisputed that no federal reports include allegations at 

issue in this case. 

Notably, Defendants rely on United States ex rel. Brown v. Bank United Tr. 

2005-1, 235 F. Supp. 3d 1343, 1359 (S.D. Fla. 2017) to argue that “public records” 

and materials obtained through discovery qualify as public disclosures under the 

FCA. Defendants, however, fail to apprise the court that Brown specifically states 

that all of the conduct at issue in that case occurred prior to 2009. As a result, the 

2010 FCA amendments did not apply. Rather, Brown relied on the prior, broader 

version of the FCA not applicable here. The amended FCA does not allow 

consideration of state public records to analyze public disclosure.2

b. News Media Does Not Contain Allegations of Fraud 

The term “news media” has a broad sweep. Osheroff, 776 F.3d at 813 

(concluding newspaper advertisements and clinics' publicly available websites, 

intended to disseminate information about clinics' programs, qualify as news media 

for purposes of public disclosure provision). State court and public records, even if 

publicly available on a website, cannot properly be considered “news media.” Doing 

so reads out other provisions of the FCA limiting consideration of only “federal” 

cases and reports when assessing public disclosure. United States v. Fuentes-Rivera, 

2

 Even if the FCA did not bar consideration of state public records, those 

records do not contain “allegations” of fraud under Springfield. 

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323 F.3d 869, 872 (11th Cir. 2003) (“[W]hen interpreting a statute, it is necessary to 

give meaning to all its words ‘so that no words shall be discarded as being 

meaningless, redundant, or mere surplusage.’”). 

Defendants’ Motion cites only two news articles properly considered “news 

media. Those articles did not put the government on notice of “allegations” of fraud 

alleged in the Complaint. 

In “Turburlence at Destin Airport,” certain facts appear that pertain to DTS. 

Notwithstanding, there were no “allegations” of fraud as defined under Springfield. 

In the article, Odom denied holding any interest in Regal Air. Moreover, the airport 

representative said “[i]f he [Odom] has acquired ownership of Regal Air, the first 

thing he needs to do is admit that” and “acknowledging that Odom has yet to 

formally document takeover of Regal Air.” 

Odom argued in the article that two FBOs could not co-exist at DTS in the 

environment of declining general aviation activity. Relator alleges this is false. The 

article notes that the County would require Odom to show proof of shrinking fuel 

revenue and numbers showing why it makes sense to have a single FBO. Relator 

alleges this was not possible and there was no reason to have a single FBO. 

Importantly, the article notes that if the county commissioners accepted Odom’s 

proposal, “it would then take Odom’s case to the FAA.” Relator alleges the case 

was never taken to the FAA. In other words, there was no allegation of fraud in the 

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article. Rather, the article only discussed particular facts but not allegations that 

constitute the fraud alleged in the Complaint. 

In Destin Airport Works to Resolve Possible FBO Anti-Trust Violation, Odom 

again denies ownership of Regal Air. Rather, Odom’s entity, Sterling noted that it 

had “purchased only managing control of Regal Capital LLC, a separate legal entity 

that happens to be the owner of single-member LLC Regal Air Destin.” The article 

notes the airport authority agreed that fuel sales data suggested the airport could not 

support two FBOs and an “FAA review of the matter is expected before a decision 

to merge the two locations is made.” Relator alleges that information in this article 

is false and there was never an FAA review. 

The information in the articles do not constitute “allegations” under 

Springfield and are insufficient to apprise the government of violations of grant 

assurances. Importantly, these two articles pre-date the allegations of false claims 

created as a result of the County allowing Odom to merge the FBOs and operate as 

a monopoly. At the time of the articles, the County had not yet sanctioned Odom’s 

common ownership and branding of the FBOs. As a result, Relator’s allegations in 

that regard could not have been publicly disclosed through the news articles. 

Notwithstanding the broad sweep of “news media,” Defendants seek to rely 

on “public emails,” “publicly disclosed annual report and financial statements,” and 

“publicly available county agendas and grant applications” that are not “news 

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media.” Defendants do not cite where “public emails”3 and “publicly disclosed 

annual report and financial statements,” are available on the internet at a particular 

internet site. The FCA no longer permits consideration of state public records 

requests when assessing public disclosure. With regard to “publicly available county 

agendas and grant applications,” Defendants cite a link at 

https://onbase.okaloosaclerk.com/ that is not active and does not link to any 

documents. Because the site is not “readily accessible,” it is not properly considered 

news media under the FCA. In any event, these other sources of information do not 

constitute public disclosure of “allegations” required by the Springfield formula. 

c. Odom’s 2012 Covert Purchase of Miracle Strip Aviation Was 

Not Publicly Disclosed 

Allegations of Odom’s 2012 covert purchase of Miracle Strip Aviation using 

Regal Capital, LLC and strawmen Phillip Ward and John Simmons were not 

publicly disclosed under the first prong of the Cooper test. See Compl.¶52-62; 101-

110. Defendants do not contend otherwise and did not address these allegations in 

their Motion. 

3

 With regard to emails between the FAA and Okaloosa County, “public 

disclosure bar applies only where there has been a disclosure outside of the 

government.” United States ex rel. Ortiz v. Mount Sinai Hosp., 256 F. Supp. 3d 443, 

454 (S.D.N.Y. 2017); United States ex rel. Chiba v. Guntersville Breathables, Inc., 

421 F. Supp.3d 1241, 1260 (N.D. Ala. 2019). 

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Defendants suggest possible disclosure of certain facts from paragraph 118 in 

a news articles. Motion at 11. The article cited, however, does not include 

allegations of Odom’s purchase of Miracle Strip Aviation using strawmen to create 

an exclusive right in 2012. As alleged, Odom caused grant applications and requests 

for payment to be made during this period based on knowingly false or fraudulent 

information, which form the basis for claims under the FCA. Compl.¶117, 120-121, 

128, 130, 136-142. 

2. Facts in News Media Are Not Substantially The Same

The second prong of Cooper is not reached because “allegations,” as defined 

under Springfield (and not just facts), were not publicly disclosed. 

If the court disagrees, under the second prong the court analyzes if the 

Complaint's allegations are “substantially the same” as publicly disclosed 

“allegations” or transactions. The key inquiry is if any disclosures could have put 

the government on notice of the fraud alleged in the complaint.” United States ex 

rel. Zafirov v. Fla. Med. Assocs. LLC, No. 8:19-CV-1236-KKM-SPF, 2021 WL 

4443119, at *7 (M.D. Fla. Sept. 28, 2021). Several factors are considered in 

determining whether this standard is met: “whether relators present genuinely new 

and material information beyond what was publicly disclosed; whether relators 

allege ‘a different kind of deceit’; whether relators’ allegations require ‘independent 

investigation and analysis to reveal any fraudulent behavior’; ‘whether relators’ 

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allegations involve an entirely different time period than publicly disclosed 

allegations; and whether relators ‘supplied vital facts not in the public domain[.]’” 

Foster v. PHH Mortg., No. 20-CV-4230, 2022 WL 4605096, at *8 (N.D. Ill. Sept. 

30, 2022). 

Any facts deemed publicly disclosed through the two news articles could not 

have put the government on notice of the fraud alleged in the Complaint. Relator 

alleges that some facts in the articles are false. The Complaint also contains a 

multitude of allegations not publicly disclosed. Relator mounts a viable FCA case 

because he has come forward with additional elements to state fraud and allegations 

of fraud. 

Relator’s “allegations” are not substantially the same as any publicly 

disclosed facts. Thus, Relator’s Complaint is not barred. 

3. Relator is the Original Source 

Where there is no finding of “public disclosure,” of “allegations,” the court 

does not reach the question whether relator is an “original source” of the information 

forming the basis of his suit. U.S. ex rel. Williams v. NEC Corp., 931 F.2d 1493, 

1500 (11th Cir. 1991) (holding that “original source” inquiry only necessary after a 

factual determination that the qui tam suit is based on information publicly disclosed 

in the FCA enumerated sources). If the court finds any public disclosure, Relator 

addresses his status as an original source, defined as: 

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an individual who either (1) prior to a public disclosure under 

subsection (e)(4)(A), has voluntarily disclosed to the 

Government the information on which allegations or transactions

in a claim are based, or (2) who has knowledge that is 

independent of and materially adds to the publicly disclosed 

allegations or transactions, and who has voluntarily provided 

the information to the Government before filing an action under

this section. 

31 U.S.C. §3730(e)(4)(B). 

 Relator has knowledge that is independent of and materially adds to any 

publicly disclosed information and provided that information to the government 

before filing this action. The genesis of Relator’s independent knowledge is detailed 

in the Complaint and includes, for example, his continuous access over the years to 

operations at DTS and interactions with its employees. See, e.g., Compl.¶44-47, 53, 

76, 105, 107, 116, 133. 

Defendants myopically focus on Relator no longer maintaining an aircraft at 

DTS after the early 2000s to try to minimize information Relator has collected as an 

original source. In particular, Defendants completely ignore Relator’s other 

allegations “during all relevant time periods” regarding his work as a commercial 

pilot, being part of the local airport community, regularly interacting with the FBOs 

at DTS, having behind the gate access to the flight line and employees of the FBOs, 

and communicating with FBO employees and the airport community about 

operations and activities at DTS. Id. 

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Relator mounts a viable FCA case because he has come forward with 

additional elements to state a case of fraud and allegations of fraud. In particular, 

Relator has alleged, among other things, that Odom was the covert owner, through 

strawmen, of Miracle Strip Aviation (see 1.c. supra), during which time the County 

applied for and received payment on grants, and in fact, Odom later owned and 

controlled all of Regal Air, all of which rendered applicable grant assurances and 

requests for payment false. Relator also alleged that the basis for any proposed 

merger of the two FBOs as referenced in the articles was false, because actual 

economic conditions at DTS did not justify a merger. Relator alleged sufficient 

activity at DTS to support operations of two FBO. See, e.g., Compl.¶72, 73. 

Relator also alleges neither the County nor Odom took Odom’s case to the 

FAA for review or approval. The FAA was never notified of the consolidation or 

merger of the two FBOs, which occurred after the news articles were published. 

Relator alleges this consolidation or merger violates the statutory exclusive rights 

prohibitions. Relator also alleges the FAA directed the County to obtain a legal 

opinion from the FAA Office of General Counsel, but the County never obtained a 

legal opinion. Compl.¶79-80. Moreover, Relator alleges the County did not notify 

the FAA of all relevant facts, including facts regarding the deal it ultimately reached 

with Odom giving him exclusive control over both FBOs at DTS. Compl.¶90. 

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Relator also alleges he was denied an opportunity to lease or develop a new 

FBO at DTS, which is a separate violation of grant assurances. Compl.¶91. Relator 

alleges the County denied his request based on lease agreements the County gave 

Odom and Destin Jet to avoid costly litigation, allowing Destin Jet to own and 

control both leases and operate as a monopoly for decades into the future. 

Compl.¶92. Moreover, Relator alleges that the County also denied his request 

because there was no available land, notwithstanding that technically two FBOs still 

exist at DTS albeit with the County improperly allowing Destin Jet and its successors 

to operate both FBOs under a single brand to the exclusion of all others. Compl.¶93. 

Relator also alleged the County never disclosed to the FAA that it denied a request 

by another aeronautical service provider to operate at DTS. None of these allegations 

were publicly disclosed. 

 Defendants falsely argue that Relator went to the press and disclosed facts 

regarding DTS. Motion at 5. The Complaint does not allege Relator went to the 

press with facts contained in the articles. On the contrary, as alleged, Relator went 

to Sunil Harmon, the County Airports Director, to discuss problematic changes at 

DTS. Compl.¶70, 135. Harmon then raised the information in a County meeting, 

which was attended by a reporter who wrote an article. 

C. Amended Complaint States a Claim 

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To state a claim under the FCA, plaintiff must plausibly allege that a 

defendant: (1) presented a false claim; (2) with knowledge that the claim was false; 

and (3) the false claim was material to the Government's decision to pay the claim. 

Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1052 (11th Cir. 2015). The 

Complaint meets these elements. The Complaint alleges false claims were 

presented, Defendants knew their claims and underlying conduct was false or 

fraudulent and the false claims were material. Moreover, contrary to Defendants’ 

contention, the government did not have prior knowledge of the allegations. 

1. Complaint Alleges the County Was Not in Compliance with Grant 

Assurances 

The Complaint includes detailed allegations with regard to exclusive rights, 

including citation to the relevant statute, provisions of the FAA Compliance Manual 

5190.6B,86 FR 68719 (“FAA Manual”) and FAA case law. The Complaint also 

alleges non compliance with federal law, grant assurances, and exclusivity 

regulations. 

The FAA Manual states “the sponsor [the County] may not grant a special 

privilege or a monopoly to anyone providing aeronautical services on the airport or 

engaging in an aeronautical use. The intent of this restriction is to promote 

aeronautical activity and protect fair competition at federally obligated airports.” 

§8.1. Defendants selectively cite from the FAA Manual. In the same section cited 

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by Defendants, the FAA Manual states: “However, the airport sponsor cannot, as a 

matter of convenience, choose to have only one fixed-base operator (FBO) to 

provide services at the airport regardless of the circumstances at the airport.” In 

collaboration and at the insistence of Odom, the County chose to have one entity 

operate two FBOs for convenience and to avoid costly litigation. 

Defendants argue that a violation of an exclusive right occurs only when an 

airport sponsor unreasonably excludes a qualified applicant. On the contrary, the 

FAA Manual defines exclusive right: 

as a power, privilege, or other right excluding or debarring another from 

enjoying or exercising a like power, privilege or right. An exclusive 

right may be conferred either by express agreement, by imposition of 

unreasonable standards or requirements or by another means. Such a 

right conferred on one or more parties, but excluding others from 

enjoying or exercising a similar right or right, would be an exclusive 

right. 

§8.2 The County, as airport sponsor, has the obligation to “operate the airport 

without granting or permitting any exclusive right to conduct any aeronautical 

activity at the airport.” FAA Manual p.2-13. 

 Defendants cite provisions from the “Single Activity” section of the FAA 

Manual. Motion at 17. Defendants fail to explain that, at all relevant times after 

Odom built the second FBO, DTS did not involve a “single activity.” Rather, DTS 

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had two FBOs with two separate leases, albeit both run as a monopoly by Odom and 

his successors. 

Defendants also omit that in the same section, the FAA Manual explains that 

49 U.S.C. §40103(e) prohibits exclusive rights even where there is a single activity. 

The only exception is where it is unreasonably costly, burdensome, or impractical 

for more than one FBO to provide services and allowing more than one FBO to 

provide services requires a reduction in space leased under an agreement existing on 

September 3, 1982, between the operator and the airport. Both conditions must be 

met for this exception to apply. DTS does not meet this exception. 

 As alleged, there originally was only one FBO at DTS. Odom and the County 

sued to force the City of Destin to allow Odom to obtain a second FBO. Compl.¶51, 

n.1. After opening the second FBO, Odom covertly gained control of the first FBO, 

knowing it would create an exclusive right. Id.¶5, 52, 62. When the County became 

aware of Odom’s actions, the County did not order Odom to divest his covertly 

acquired FBO interest or issue a competitive offering for others to compete to run 

the second FBO. FAA Manual §8.9b. Rather, the County knowingly allowed Odom 

an exclusive right to continue ownership and control of both FBOs and never 

disclosed these facts to the FAA. 

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Because there were two FBOs at DTS, section §8.9d cited by Defendants 

about a second FBO reducing the space leased under an existing agreement with a 

single FBO does not apply. There were two FBOs and Odom did not have to reduce 

his leased space. Rather, the County allowed Odom to double his leased space to 

the detriment of competition and the public, even when Odom argued there was less 

public need. These actions violate the exclusive rights prohibitions. There is no 

justification in the law for allowing Odom and his successors to control both FBOs 

as a monopoly. 

As alleged, Relator requested the County lease him an existing FBO at DTS 

or allow him to develop a new FBO. Compl.¶91-94. The County did not allow 

Relator to complete the application process or ask to assess his qualifications. Id.

Rather, the County summarily rejected Relator by letter.4

 The County denied the 

request based on the “lease agreements” given to Destin Jet and Odom allowing 

them to exclusively operate both FBOs as a monopoly. Id. The County did not deny 

Relator’s request based on qualifications or alleged failure to complete the 

application process as falsely argued by Defendants. 

4

 Relator requests that the Court take judicial notice of the rejection letter he 

received from the County. The letter is central to the allegations made in the 

Complaint. 

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 The County falsely asserted there was no available land, even though two 

FBOs still exist at DTS that are exclusively operated under a single brand as a 

monopoly. These actions violate grant assurances against exclusive rights. As 

alleged, the County never disclosed to the FAA that it denied a request by another 

service provider to operate at DTS. 

It is ironic that Odom raises qualifications to operate an FBO. When Odom’s 

strawmen, Simmons and Ward, covertly took over Miracle Strip Aviation, their 

qualifications were not assessed by the County. Notwithstanding, the County 

allowed them to operate the FBO. It could be said that requiring others to go through 

a lengthy application process to assess qualifications but allowing Odom’s strawmen 

to avoid that process, is the grant of a special privilege or right in violation of 

exclusive rights. See City of Pompano Beach v. FAA, 774 F.2d 1529, 1537 n.9, 1543 

n.14 (11th Cir. 1985). 

The Complaint alleges the County certified compliance with its grant 

assurances while knowing it had granted Odom special privileges and exclusive 

rights to the detriment of Relator and the public. Specifically, Odom and his 

successors were granted full control of two FBOs to the exclusion of everyone else. 

The County also improperly allowed Odom to extend the lease term of both FBO 

leases. Compl.¶124. 

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2. False Representations as to Grant Assurance Compliance Were 

Material to Government Payment Decisions 

The FCA defines “material” as “having a natural tendency to influence, or be 

capable of influencing, the payment or receipt of money or property.” Universal 

Health Servs., Inc. v. United States ex rel. Escobar, 579 U.S. 176, 182 (2016). The 

materiality element seeks to limit the scope of FCA liability to claims for which the 

government “would have attached importance to the violation in determining 

whether to pay the claim.” Yates v. Pinellas Hematology & Oncology, P.A., 21 F.4th 

1288, 1300 (11th Cir. 2021). 

No single factor is dispositive of materiality; relevant factors include: (1) 

whether the requirement is a condition of government payment, (2) whether 

misrepresentations went to the essence of the bargain, and (3) to the extent the 

government had actual knowledge of misrepresentations, the effect on the 

government's behavior.” United States ex rel. Bibby v. Mortg. Inv'rs Corp., 987 F.3d 

1340, 1347 (11th Cir. 2021). 

a. Grant Assurances are a Condition of FAA’s Grant Payments 

“[T]he Government's decision to expressly identify a provision as a condition 

of payment is relevant, but not automatically dispositive” to the materiality analysis. 

Mortg. Invs. Corp., 987 F.3d at 1347. Since 1938, there has been a statutory 

prohibition on exclusive rights (49 U.S.C. §40103(e)), which is independent of the 

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parallel grant assurance requirement at 49 U.S.C. §47107(a)(4) (“A person does not 

have an exclusive right to use an air navigation facility on which Government money 

has been expended.”). The term “exclusive right” was “intended to describe a 

power, privilege, or other right excluding or debarring another or others from 

enjoying or exercising a like power, privilege, or right.” City of Pompano Beach v. 

F.A.A., 774 F.2d 1529, 1542 (11th Cir. 1985). “The type of exclusive right 

prohibited by section 1349(a) has been described as ‘one of the sort noxious to the 

anti-trust laws.’” Id. (citing Aircraft Owners and Pilots Association v. Port Authority 

of New York, 305 F.Supp. 93, 105 (E.D.N.Y.1969)). 

For approval of grants, the Secretary of Transportation, by statute, requires 

written assurances that exclusive rights will not be given at airports. 49 U.S.C.A. 

§47107. “Upon acceptance of an AIP grant, the assurances become a binding 

contractual obligation between the airport sponsor and the federal government.” 

FAA Manual §1.9. 

Defendants knew the FAA would refuse to pay grant funds based on 

noncompliance with the prohibition on exclusive rights. See Escobar, 579 U.S. at 

194-195 (“[P]roof of materiality can include, but is not necessarily limited to, 

evidence that the defendant knows that the Government consistently refuses to pay 

claims in the mine run of cases based on noncompliance with the particular statutory, 

regulatory, or contractual requirement.”). 

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The FAA Manual makes clear that, if an exclusive right exists and no matter 

how it was created, the FAA will not award a sponsor an AIP grant until the 

exclusive right is removed from the airport. §§ 8.4d; 8.11.b. Defendants cannot 

argue they were not aware of the importance of the exclusive rights grant assurances 

since they sought enforcement of those very same grant assurances when Defendants 

sued the City of Destin to reverse denial of Odom’s application to establish a second 

FBO at DTS (“DTS Litigation”). Compl.¶51, n.2. 

Federal law and regulations designate exclusive right grant assurances as a 

condition of grant award and payment. See Mortg. Invs. Corp., 987 F.3d at 1347

(“The relevant VA regulation clearly designates that requirement a condition to 

payment. . . . [and] weighs in favor of materiality.”); Skydance Helicopters, Inc. v. 

Sedona-Oak Creek Airport Auth., No. 16-02-02, Director’s Determination (Mar. 7, 

2003) (holding violation of grant obligations would result in withholding of grant 

funds without corrective action). Defendants do not dispute that grant assurances 

are a condition of acceptance and payment of grants. Therefore, this factor weighs 

in favor of materiality. 

b. Misrepresentations of Grant Compliance Go to Essence of 

the Bargain 

“[O]ne factor in the materiality inquiry is whether the requirement at issue 

goes to the essence of the bargain with the government—i.e., whether the 

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requirement is a central part of the regulatory program.” Pinellas Hematology & 

Oncology, P.A., 21 F.4th at 1301; Mortg. Invs. Corp., 987 F.3d at 1347–48 

(considering extent to which requirement “violated is central to, or goes ‘to the very 

essence of[,] the bargain.’”)); see also Escobar II, 842 F.3d at 110 (considering the 

centrality of the ... requirements in the context of the regulatory program). 

“The exclusive rights provision is the oldest federal obligation affecting 

federally funded airports.” FAA Manual §8.3b. “[T]he FAA deems that the grant of 

an exclusive right at any airport upon which federal funds has been expended is 

contrary to applicable federal law.” City of Pompano Beach v. F.A.A., 774 F.2d 1529, 

1542 (11th Cir. 1985); Boca Airport, Inc. v. FAA, 389 F.3d 185 (D.C. Cir. 2004) 

(discussing Grant Assurance 23, prohibition on exclusive rights and failure to end 

exclusive right rendering airport ineligible for FAA grants); FAA Manual §8.3c. 

(Title 49 contains prohibition against exclusive rights in three locations). As agency 

policy, “[t]he FAA considers it inappropriate to provide federal funds for 

improvements to airports where the benefits of such improvements will not be fully 

realized by all users due to the inherent restrictions of an exclusive monopoly on 

aeronautical activities.” FAA Manual §8.4 The obligations under Grant Assurance 

23, Exclusive Rights continue without limit as long as the airport is used as a public 

use airport. FAA Manual §4.6. 

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Here, the misrepresentations as to grant assurance compliance go to the very 

essence of the bargain. Federal law does not allow the creation of exclusive rights. 

City of Pompano Beach, 774 F.2d at 1542 (prohibited exclusive right described as 

“one of the sort noxious to the anti-trust laws”); FAA Manual §8.4 (Federal statutory 

law prohibits sponsors from granting exclusive right). 

Defendants do not dispute that false representations as to exclusive right grant 

assurances go to the essence of the bargain. Therefore, this factor weighs in favor 

of materiality. 

c. FAA Did Not Have Knowledge of Grant Assurance 

Violations 

Escobar does not distinguish between inadvertent mistakes and intentional 

violations. What matters is simply whether the government knew “that certain 

requirements were violated.” Mortg. Invs. Corp., 987 F.3d at 1349–50; see United 

States ex rel. McBride v. Halliburton Co., 848 F.3d 1027, 1034 (D.C. Cir. 2017) 

(explaining analysis is focused on “what actually occurred” rather than on testimony 

that hypothesizes what might have occurred). “Assessing the government's actual 

knowledge requires that we drill down to when that knowledge was acquired, and 

what exactly the government learned.” Mortg. Invs. Corp., 987 F.3d at 1348 (citing 

United States ex rel. Harman v. Trinity Indus. Inc., 872 F.3d 645, 668 (5th Cir. 

2017)) (finding no materiality as a matter of law only after determining there was 

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“no question about ‘what the government knew and when’”). Here, there are still 

many questions about what the government actually knew and when it knew that 

preclude a finding of no materiality. 

Defendants assert that the Complaint “establishes that, since at least 2013, the 

Government regularly approved the County’s grant applications with knowledge of 

the FBO arrangements alleged by Realtor.” Motion at 24. Defendants cite only to 

paragraphs 77-78 of the Complaint. Notably, although Defendants assert alleged 

knowledge “since at least 2013,” paragraph 77 begins with “in or around September 

2014.” Defendants point to no facts that relate back to government knowledge 

“since at least 2013.” 

As alleged, the County reported to the FAA around September 2014 that 

Odom advised that Destin Jet had acquired ownership in Regal Air without the 

consent or approval of Okaloosa County and asked if the acquisition would result in 

Okaloosa County being in violation of its Grant Assurances 5 and 23. 

Allegations regarding the FAA’s response to the County’s inquiry appear in 

paragraphs 78-79 of the Complaint. The FAA provided general information about 

the nature of federal compliance obligations and recommended the County review 

the lease agreement with its attorney to determine if Odom’s actions constituted a 

breach of the lease. The FAA cautioned the County about issues related to exclusive 

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rights. The FAA then suggested that the County obtain a legal opinion from the 

FAA Office of General Counsel. Compl.¶79. 

Defendants argue that this partial disclosure of information to the FAA 

renders the grant assurances immaterial because the government “knowingly” 

continued to pay funds. Motion at 24.5 On the contrary, as alleged, the County never 

obtained a legal opinion from the FAA Office of General Counsel as recommended 

by the FAA. Compl.¶80. As a result, the FAA did not obtain additional information 

about the facts and circumstances surrounding Destin Jet’s acquired ownership in 

Regal Air to assess whether an exclusive right was created. Moreover, the County 

intentionally did not make the FAA aware of how the County ultimately handled the 

disclosure by Odom that Destin Jet had acquired an ownership interest in Regal Air 

without consent or approval of the County. The County also did not tell the FAA it 

allowed Odom to obtain exclusive control of both FBOs at DTS and no other land 

was available on the airport for another FBO. Thus, the FAA could not and did not 

know “that certain requirements were violated.” Escobar, 579 U.S. at 195. 

The FAA also was never apprised that the County allowed Odom to extend 

the lease terms with both FBOs and continued to allow Odom and his successors a 

monopoly for decades to come. Moreover, the FAA was never apprised that another 

5

 Contrary to Defendants’ assertion, the Complaint does not “concede” that the 

government made payments with knowledge of the FBO acquisition at DTS. 

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aeronautical service provider was denied an opportunity to lease an existing FBO or 

to develop a new FBO at DTS. Compl.¶91-93. In addition, the FAA was never 

made aware of Odom’s actions in using strawmen Simmons and Ward to acquire 

Miracle Aviation in 2012. As a result, it cannot be said that the government 

“knowingly” continued to pay funds when it did not know a majority of the relevant 

facts necessary to conclude grant assurance violations. 

Defendants argue the FAA was fully aware an “exclusive right” issue could 

arise in the future but continued to bestow grants even with this knowledge. Motion 

at 24. With regard to materiality, the focus is whether the government knew “certain 

requirements were violated,” (Escobar, 579 U.S. at 195), not whether violations 

could arise in the future. 

At this stage, there is sufficient evidence to support a finding of materiality, 

where the grant assurances are a condition of payment, required by federal statute, 

and a central part of the FAA’s regulatory program, but where there is insufficient 

evidence the government had actual knowledge of violations but continued to award 

and pay grants to DTS. See Mortg. Invs. Corp., 987 F.3d at 1351 (“And even if we 

viewed the VA's continued issuance of guaranties as “strong evidence” of 

immateriality . . . . [a] factfinder would still have to weigh that factor against others, 

including, as relevant here, the fee and charges requirement being a condition to 

payment and essential to the IRRRL program.”). 

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D. There Are Sufficient Allegations to Support Odom Acted 

 Knowingly 

Liability under the FCA arises only when a defendant acted “knowingly.” See

§§3729(a)(1)(A) & (a)(1)(B); Urquilla-Diaz, 780 F.3d at 1058. Under the FCA, 

“knowing” and “knowingly” mean that a person: (i) has actual knowledge of the 

information; (ii) acts in deliberate ignorance of the truth or falsity of the information; 

or (iii) acts in reckless disregard of the truth or falsity of the information; and no 

proof of specific intent to defraud is required. 31 U.S.C. §3729(b). A defendant 

need not, however, have acted with the specific intent to defraud the United States. 

Pinellas Hematology & Oncology, P.A., 21 F.4th at 1303. Reckless disregard is the 

lowest scienter threshold under the FCA. When Congress added reckless disregard 

to the FCA, it intended to capture “the ostrich type situation” where an individual 

buries his head in the sand and fails “to make simple inquiries which would alert 

him that false claims are being submitted.” Id. A person acts with reckless 

disregard—and thus “knowingly”—under the FCA when he “knows or has reason 

to know of facts that would lead a reasonable person to realize that harm is the likely 

result of the relevant act.” Id. Defendants can be said to have acted with actual 

knowledge given intimate knowledge of grant assurances and exclusive rights but at 

the very least acted with reckless disregard. 

In 2012, Odom, while owning the second FBO, covertly purchased the first 

FBO, using strawmen. Compl.¶51,n.1. Odom was well aware of the exclusive rights 

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prohibitions. Id. As alleged, in the DTS Litigation, Defendants sued to establish a 

second FBO at DTS. In the DTS Litigation, Defendants’ relied on the “Exclusive 

Rights” prohibition in both the Federal Code and Federal Grant Assurances, arguing 

that the City of Destin was mandated to provide competition among aeronautical 

service providers at DTS. Compl.¶51,n.1.6

Defendants argued in the DTS Litigation that, other than land used by the 

existing FBO and land eyed for a second FBO, any other property at DTS was 

wetlands and could not support a third FBO. Importantly, before the DTS Litigation 

was filed, Odom testified at a quasi-judicial hearing before the City of Destin related 

to the creation of the second FBO: 

[T]his is the only remaining spot of the airport that can accommodate 

this facility. And the County is required to provide a location for a 

second FBO under federal rules that they can't do something to create 

a monopoly environment. So that's why there has to be a location for a 

second FBO. 

Transcript, p. 19:9-15. The DTS Litigation resulted in the City of Destin allowing 

Odom to build a second FBO at DTS. 

Less than three years after invoking exclusive rights, grant assurances and 

federal law to obtain his FBO, Odom then covertly purchased all of the stock in the 

6

 Relator requests judicial notice of the Petition for Writ of Certiorari and 

Appendix 1 containing the Quasi Judicial Hearing Transcript filed by Defendants in 

the DTS Litigation referenced in and central to the Complaint. Relator is filing a 

separate Request for Judicial Notice. 

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first FBO, Miracle Strip Aviation. Compl.¶52. Odom’s actions in this regard 

created a monopoly and were directly contrary to the federally mandated 

requirement for competition at DTS. Id. Odom’s actions caused the County to 

falsely certify compliance with grant assurances when making application for grants 

in violation of the FCA. It is disingenuous for Defendants to now try to feign 

ignorance of the importance and materiality of the exclusive rights prohibition and 

grant assurances, when Defendants relied on the importance and materiality of those 

same exclusive rights prohibition in the DTS Litigation. 

E. Fraud is Plead with Particularity 

Rule 9(b) provides that a party alleging fraud “must state with particularity 

the circumstances constituting fraud” but may allege scienter generally. UrquillaDiaz., 780 F.3d at 1051. To satisfy this heightened-pleading standard, the relator 

has to allege “facts as to time, place, and substance of the defendant's alleged fraud,” 

particularly, “the details of the defendants' allegedly fraudulent acts, when they 

occurred, and who engaged in them.” Id.

Relator has alleged fraud with particularity. As alleged, Odom and the County 

created an effective monopoly at DTS in violation of federal law. The violations 

were material to the government’s decision to pay grant money to the County. In 

particular, the FAA Manual specifically states that the FAA “will not award a 

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sponsor an []AIP grant until that exclusive right is removed from the sponsor's 

airport.” FAA Manual §8.4d. 

Relator alleged in detail when, where and how the illegal monopoly at DTS 

was created, including, but not limited to, what actions Odom took to initially create 

the monopoly and what actions the County took to continue the monopoly. 

Moreover, Relator specifically alleged the false statements were made in claims to 

the government to obtain grant monies and provided a summary of grant monies the 

County received based on false statements and claims over the relevant time period. 

See United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943) (contractors' 

misrepresentation that they satisfied a non-collusive bidding requirement for federal 

program contracts violated the False Claims Act because “[t]he government's money 

would never have been placed in the joint fund for payment to respondents had its 

agents known the bids were collusive”). 

As discussed supra, the grant assurances as detailed in the Complaint are 

central to the payment of grant funds. If the FAA knew about the false statements 

and violations of the prohibition on exclusive rights and other grant assurances, it 

never would have paid grant funds to the County. See Escobar, 579 U.S. at 196. 

F. Complaint Does Not Demonstrate that Claims are Time Barred 

Statute of limitations should not be resolved on Motion to Dismiss where all 

information to do so is not plainly set forth in the Complaint. A statute of limitations 

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bar is “an affirmative defense, and ... plaintiff[s][are] not required to negate an 

affirmative defense in [their] complaint.” La Grasta, 358 F.3d at 845–46. “[A] Rule 

12(b)(6) dismissal on statute of limitations grounds is appropriate only if it is 

‘apparent from the face of the complaint’ that the claim is time-barred.” Omar v. 

Lindsey, 334 F.3d 1246, 1251 (11th Cir.2003). Moreover, the Florida FCA was 

amended in 2009 to define the limitations term solely on the basis of the Attorney 

General’s knowledge of the facts giving rise to the claims. Barati v. State, 198 So.3d 

69, 73 n.2 (Fla. 1st DCA 2016); §68.089(1), Fla. Stat. 

Not all facts necessary to consider the affirmative defense of statute of 

limitations are apparent on the face of the Complaint. In particular, the issue of when 

facts material to the right of action were known or reasonably should have been 

known by the official of the United States charged with responsibility to act in the 

circumstances or the Florida Attorney General are not apparent on the face of the 

Complaint. 

The FCA provides that an action may not be brought more than 6 years after 

the violation is committed or “more than 3 years after the date when facts material 

to the right of action are known or reasonably should have been known by the official 

of the United States charged with responsibility to act in the circumstances, but in 

no event more than 10 years after the date on which the violation is committed, 

whichever occurs last.” §3731(b). 

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 In Cochise Consultancy, Inc. v. United States ex rel. Hunt, 139 S. Ct. 1507, 

1513 (2019), the Supreme Court held that the FCA's limitations discovery rule 

applies to a qui tam action in which the United States does not intervene. The Court 

further held that the commencement of the limitations period under the discovery 

rule depends on the knowledge of the United States official charged with 

responsibility to act, not the knowledge of the relator. Id. at 1514 (emphasis added). 

Where the Government has declined to intervene, relators are permitted to 

bring suit after the expiration of the FCA’s normal six year statute of limitations so 

long as the government official charged with responsibility to act does not know and 

should not reasonably have known of the alleged fraud. The Florida FCA contains 

a limitations discovery provision similar to the FCA. §68.089(1). 

For purposes of analyzing the tolling provisions of the FCA, it is not apparent 

on the face of the Complaint when “the official of the United States charged with 

responsibility to act” knew or should have known of the alleged fraud Id. at 1513. 

Similarly, it is not apparent from the face of the Complaint when the Attorney 

General of Florida obtained knowledge of the relevant facts. Thus, the 

commencement of the limitations period under the FCA and Florida FCA discovery 

rule cannot be analyzed on a Rule 12(b)(6) motion to dismiss. 

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Accordingly, dismissal on statute of limitations grounds is not appropriate 

because it is not apparent from the face of the complaint that the claims are timebarred. 

G. Florida FCA Claims Not Publicly Disclosed 

The Florida FCA provides for dismissal only where substantially the same 

allegations or transactions as alleged in the action were publicly disclosed “in a ... 

civil ... hearing in which the state is a party.” 68.087(3), Fla. Stat. Defendants argue 

that the initial unsealing of this case in December 2020 constitutes a public 

disclosure. On the contrary, the State of Florida was not a party to this action when 

the earlier version of the Complaint was initially unsealed. As a result, the unsealed 

complaint cannot constitute a disclosure in a “civil hearing in which the state is a 

party.” Id. Thus, dismissal is not warranted. 

H. Dismissal With Prejudice and Award of Fees is Not Warranted 

Defendants’ arguments for dismissal with prejudice and for fees are 

unsupported. In particular, Defendants sought dismissal on the basis of an earlier 

version of the FCA and relied on case law construing the old law. For all of the 

reasons set forth above, the Court should deny Defendants’ Motion. 

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WHEREFORE, Relator, Robert Smith respectfully requests that this Court 

deny Defendants’ Motion to Dismiss. 

 Respectfully submitted this 28th day of November 2022. 

/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 28th day of November 2022: 

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 

Case 3:20-cv-03678-MCR-ZCB Document 68 Filed 11/28/22 Page 37 of 38
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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

ASHLEY MOODY, ATTORNEY GENERAL 

Office of the Attorney General 

State of Florida 

PL-01 The Capitol 

Tallahassee, FL 32399-1050 

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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