UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

Aero Ways, Inc., 

Complainant 

Delaware River & Bay 

Authority, 

Respondent 

FAA Docket No. 16-09-12 

<~:> 

o> 

1 

COMPLAINANT AERO WAYS. INC. . CONSOLIDATED RESPONSE AND MEMORANDUM^' 

TO RESPONDENTS MOTION TO DISMISS ' - '-^ 

AND NOW comes Complainant, Aero Ways, Inc., by and through the 

undersigned counsel, and Pursuant to Title 14, Code of Federal 

Regulations Part 16, Hereby responds to the Delaware River and Bay 

Authority's (DRBA) Motion to Dismiss as follows: 

INTRODUCTION 

Aero Ways, Inc., filed a Complaint in this matter, with 

numerous referenced supporting documents and exhibits, in full 

compliance with the provisions of 14 CFR Part 16.23. The 

definition of a complaint in 14 CFR Part 16.3 is very broad, and 

encompasses "anything allegedly done or omitted to be done by any 

person in contravention of any provision of any act." (Emphasis 

added). This regulatory language was set forth in the definitions 

section of Part 16 for the purpose of establishing how the 

complaint itself is to be construed. Contrary to this very broad 

definition. Respondent appears to argue erroneously in the Motion 

to Dismiss that the comprehensive Part 16 Complaint filed herein is 
to be construed very narrowly and strictly, and that if any part of 

the complaint is defective, then the entire matter must be 

dismissed. 

Further, "noncompliance" is also defined very broadly in 14 

CFR Part 16.3 as "anything done or omitted to be done by any person 

in contravention of any provision of the Act." (Emphasis added). 

Contrary to this broad definition. Respondent here again appears to 

erroneously argue in the Motion to Dismiss that the Complainant's 

comprehensive Part 16 Complaint is to be construed very narrowly 

and strictly, and that if any part of the complaint fails to show 

noncompliance, then the entire complaint and matter must be 

dismissed. In fact, the Complaint and relevant facts clearly 

evidence that Respondent continues to this day to engage in a 

pattern of discriminatory and anti-competitive conduct to 

selectively restrict aeronautical services at KILG, and that Aero 

Ways, Inc., continues to be directly and substantially affected by 

the Respondent's current, continuous and ongoing noncompliance. 

The comprehensive Complaint in this matter fully complies with 

14 CFR Part 16.23, supports discrimination and noncompliance by the 

Respondent, and was not initially dismissed after review by the 

Director pursuant to 14 CFR Part 16.27. In Respondent's Answer to 

the Complaint, Respondent fails to address many, if not most of 

the factual allegations contained in the Complaint which support a 

finding of noncompliance, and in fact Respondent selectively misstates most of the facts and time-lines which were set forth 

succinctly, concisely and comprehensively in the Complaint, with 

all referenced supporting documents. As such. Respondent has 

failed to properly Answer the Complaint. 

Pursuant to the Administrative Procedures Act it is 

Respondent, who filed the instant Motion to Dismiss, that has the 

burden of proof, 5 U.S.C. § 556(d), Director, Office of Worker's 

Compensation Programs, Department of Labor v. Greenwich Collieries, 
512 US 267, 272 (1994). Respondent's Motion to Dismiss is only 

supported by one(l), four page verified document from the Airport 

Director, (Respondent's Exhibit 2), which document is far from 

comprehensive, fails to address most of the issues presented by the 

Complainant in the Complaint, is self serving, intentionally 

selective, fails to address most of the issues and arguments in the 

Respondent's own Motion to Dismiss, and is contradictory on its 

face^. 

Finally, if the Respondent is successful in this motion he 

will continue to violate federal obligations and regulations. The 

Respondent is attempting to obtain a dismissal in order to avoid a 

ruling on the merits of the Part 16 Complaint and to avoid 

accountability for its actions against Aero Ways, Inc.. Such a 

result would clearly allow the Respondent to flagrantly and 

vexatiously undermine the FAA's governmental mandate and authority, 

and respectfully, should not be condoned or permitted by the F7VA. 

The Respondent has deliberately ignored the contentious dispute 

between themselves and Aero Ways, Inc., and still the Respondent's 

true motive is transparent - to do everything possible to avoid its 

day of reckoning. The Respondent continues to this hour with 

obstructionist conduct^ against Aero Ways, Inc., which respectfully 

cannot be condoned. 

'Example, in Paragraph 15 of Respondent's Exhibit 2, the 

Airports Director discusses at length that Aero Ways, Inc. failed 

to respond in any way to their request for information, then in 

Paragraph 16 fully discusses Aero Ways, Inc.'s response. 

^ Last week Respondent sent a Demand Letter to C. Belmont 

Holdings, LLC, a parent company to Aero Ways. Inc., requesting 

funds for monies that they had already received and for checks 

that they cashed. Further aggravating the situation is the fact 

that no one at the DRBA will talk to Aero Ways, Inc. personnel, 

which is averred in the Complaint. 
FAILURE TO DENY 

That Respondent filed an Answer in this matter generally 

denying Aero Ways, Inc's averments. This general denial may be 

acceptable under various state rules but is not acceptable or even 

permissible under the Federal Rules of Procedure, FRCP 8(b), Wright 

and Miller, 5, Federal Practice and Procedure 2d. § 1265(1990). As 

such, the Respondent's Answer is procedurally defective and the 

generally denied averments are "admitted". 

REPLY TO RESPONDENT ARGUMENTS 

I. CURRENT COMPLIANCE 

The Respondent mis-states the case law interpretation in the 

instant issue, and is completely disingenuous in the recitation of 

time frames. 

The current matter has been one continuous discriminatory 

matter as set forth in the Complaint, and to suggest that the case 

law cited precludes the filing of a complaint after such time as 

resolution and settlement discussion requires is completely false. 

To begin with, the Respondent states, "after the passage of 28 

months, the actions complained of do not appear to qualify as 

current airport sponsor action"^. This is a disingenuous statement 

as most of those months were delays on the part of the Respondent, 

in settlement and requesting additional legal information, rewriting Airport Minimum Standards, and requesting continuances 

herein. The Respondent's own Motion to Dismiss, (pg. 21), states 

that the DRBA was first informed about Pre-Complaint Resolution 

procedures by Complainant on June 25, 2008, which is 21 months 

prior to the writing of this Response. 

Page 24 of the Respondent's Memorandum. 
The term "current compliance" is case and fact specific, as 

the mere compliance with 14 CFR Rule 16, and its specific 

settlement requirement found in 14 CFR Part 16.21, can take months 

if not years to complete. In the instant case the Respondent 

requested two extensions of time after the filing of the Complaint 

for the purpose of engaging in meaningful settlement. This alone 

is case specific. Complainant has clearly and concisely showed 

that the instant matter has been one continuous and related course 

of conduct and discrimination on the part of respondent, requiring 

after many months and years, the intervention of the FAA to 

resolve. 

Further, Respondent cites Richard E. Treere v. County of San 

Diego, California, FAA Docket No. 16-99-15,2004 WL 3198209, at *S, 

which states that "the FAA will consider as grounds for dismissal 

of such allegations the successful action , o f th e airpor t sponso r t o 

cur e any alleged or potential past violation." (Emphasis added). 

In the instant case, the airport sponsor/Respondent did nothin g to 

"cure" a potential violation, and as such the holding in this case 

is not on point, and does not apply to the instant facts. The 

whole issue of Aero Ways, Inc. now being an FBO'' is nothing more 

than a red herring, as Complainant had no choice but to become an 

FBO in an attempt to work around Respondent's fueling violations, 

and this issue is one of the relevant issues in this action as pled 

in the Complaint. Again, the Respondent's motives are transparent 

and disingenuous, as he can not simply take selective parts of the 

Complaint and use them as grounds to dismiss the entire matter. 

II. FAILED TO SUBMIT SUFFICIENT EVIDENCE 

As stated above, the definition of complaint in 14 CFR Part 

16.3 is very broad, and encompasses "anything allegedly done or 

''Fixed Base Operator. 
omitted to be done by any person in contravention of any provision 

of any act". (Emphasis added). This regulatory language was set 

forth in the definitions section of Part 16 for the purpose of 

establishing how the complaint itself is to be construed. Contrary 

to this very broad definition. Respondent appears to argue 

erroneously in the Motion to Dismiss that the comprehensive Part 16 

Complaint filed herein is to be construed very narrowly and 

strictly, and that if any part of the Complaint is defective, then 

the entire matter must be dismissed. As to the Motion to Dismiss, 

the burden of proof is on Respondent not on Complainant, and in the 

instant matter Respondent did nothing more than copy and include in 

the Motion most of Complainant's exhibits, and only one (1) four 

page supporting Declaration. 

Most compelling is Respondent's own position and statements 

regarding the issue of Complainant submitting sufficient evidence. 

On page one (1) of the Respondent's Motion to Dismiss is the 

following statement: 

"Some claims fail to state causes of action. Some are 

entirely unsupported - without any basis in the record. 

Some allegations are actually contrary to the record. 

Some allegations are supported only by unsworn statements 

that are largely hearsay and made without personal 

knowledge". 

Accepting arguendo the Respondent's statement. Respondent is 

admitting that some of Complainant's allegations are in fact 

supported by law and fact, which fact in and of itself would 

require the FAA to dismiss Respondent's motion. Lastly, there is 

the issue of hearsay. 

Finally, although the Complainant does not agree that the 

allegations in the complaint are hearsay, this point is moot as the 

FAA and NTSB have accepted hearsay, and even double hearsay, in all 

DOT/FAA administrative cases, stating that the Federal Rules of 
Civil Procedure and Evidence are mere guidelines. In Administrator 

V. Ferguson. NTSB Order No. EA-5360 at 10-11 (2008) (citing 

Petition of Carv A. Neihane, NTSB Order No. EA-5166 (2005)), the 

NTSB Board stated that it is not bound be the Federal Rules of 

Evidence, but considers them to be "non-binding guidance." The 

Board went on to hold that it is not bound by evidentiary or 

procedural rules that apply in other courts. Furthermore, the 

Board is aware of the wide latitude that the Administrative 

Procedures Act provides agencies concerning the admissibility of 

evidence at administrative hearings, 5 U.S.C. § 556(d) and 

Administrator v. Angstadt, NTSB Order No. EA-5421, (2008) . 

III. THE AUTHORITY'S RESPONSE TO THE SPECIFIC COUNTS 

This section in the Respondent's Memorandum is more of an 

expanded answer or closing argument than a Motion to Dismiss. As 

such, for judicial economy. Complainant incorporates herein the 

Complaint and all supporting documents in response to this section. 

In further response, this matter is not about Aero Ways, Inc. 

versus XO Jet. Respondent spends much time reciting facts that are 

at issue and go to the merits of this matter, and which do not 

properly belong in a Motion to Dismiss. Some of the facts and 

issues that are fully plead in Complainant's Complaint and that 

Respondent fails to specifically deny in his Answer and Motion to 

Dismiss are: 

a) At no time prior to this action did Respondent know of the 

fact that XO Jet was a Part 135 Operator, and the Exhibits provided 

in the Compliant show it was not until this matter was filed that 

Respondent investigated same, and Respondent then obtained the 135 

Operating Certificate; 
b) That the Respondent has no idea whether XO Jet operates 

aircraft requiring avgas, however, this fact is irrelevant as all 

individuals on the field with a fuel station, must have avgas; (See 

Exhibit "J", page 15, of the Complaint) 

c) That Respondent completely failed to address the facts set 

forth in the Complaint regarding the relevant time line herein. 

The time line had Respondent first telling Aero Ways, Inc. that it 

could not fuel aircraft because the aircraft were not owned by Aero 

Ways, Inc.. When Aero Ways, Inc. told Respondent that XO Jet did 

not own its aircraft either, the Respondent next took the position 

that XO Jet could fuel its own aircraft because they were a 

Fractional Subpart K operator. After XO Jet's Fractional Subpart 

K status was refuted by Aero Ways, Inc.'s expert James Dornak^, the 

Respondent' s next step on the continuing road of discrimination was 

to use the Part 135 defense. These actions were not addressed at 

all in the Answer by Respondent; (See Exhibit "H" of the Complaint) 

d) That to this date Respondent has failed and/or refused to 

communicate with Aero Ways, Inc.; (See Exhibit "E" of the 

Complaint) 

e) That material representations made by Mr. Donald Raineir to 

Aero Ways, Inc., were materially breached^, and for unknown reasons 

Mr. Raineir was later terminated from his Senior Management 

position with the Respondent; 

f) That Respondent's Airports Manager came into Aero Ways, 

Inc., producing self serving selective case law in support of his 

position. 

^Former FAA Inspector at the Philadelphia FSDO. 

* These representations were plead in the Complaint, but were 

not addressed by the Respondent. As such, Mr. Raineir's 

deposition will therefore be necessary. 
IV. FAILURE TO STATE A CAUSE OF ACTION 

Again, this section in the Respondent's Memorandum is more of 

an expanded answer or closing argument than a Motion to Dismiss. 

As such, for judicial economy. Complainant incorporates herein 

their Complaint and all supporting documents in response to this 

section. 

Complainant's well pled Complaint, with relevant supporting 

documentation, more than adequately states and supports a cause of 

action under the "Act" as defined in 14 CFR Part 16.3, is not 

purely speculative, and is not simply wrong as Respondent suggests. 

This shotgun approach deals with facts at issue and goes to the 

merits of the matter, and should not properly be set forth in a 

Motion to Dismiss. As previously stated above, Complainant 

questions Respondent's own contradictory position and statements 

regarding the issue of Complainant submitting sufficient evidence. 

On page one (1) of the Respondent's Motion to Dismiss is the 

following statement: 

"Some claims fail to state causes of action. Some are 

entirely unsupported - without any basis in the record. 

Some allegations are actually contrary to the record. 

Some allegations are supported only by unsworn statements 

that are largely hearsay and made without personal 

knowledge". 

Finally, although this section in Respondent's Memorandum sets 

forth facts at issue. Complainant will briefly address them. 

1) Respondent did not at all relevant times inform Aero Ways, 

Inc. that XO Jet was a 135 operator; Complainant still maintains 

that Respondent after the fact obtained and supplied the 135 

Certificate. 
2) The lack of communication, which continues today, had 

nothing to do with attorney client privilege, but rather malice, 

retribution and discrimination. 

3) The amended "current" policies of the Respondent are also 

a serious fact at issue, as for the most part, unlike other airport 

authorities. Respondent had no policies at all on the relevant 

issues. 

4) The gate reader issue is nothing more than an example of 

the continued discriminatory practices by Respondent against Aero 

Ways, Inc.. This fact at issue, which is fully described by Aero 

Ways, Inc.'s CEO in Complaint Exhibit "F" page 180-184, only became 

an issue when the Respondent's airport manager sent Aero Ways, Inc. 

an e-mail stating that "most importantly" is the fact that the two 

aircraft described in your e-mail were not on the airfield at the 

time of the incident. In fact, after receiving information under 

the Freedom of Information Act, it was substantiated that Aero 

Ways, Inc. was correct. 

CONCLUSION 

For the foregoing reasons set forth in this Consolidated 

Response, it is respectfully requested that the Respondent's Motion 

to Dismiss be denied and dismissed, and further the Respondent be 

Temporarily Enjoined from continuing any discriminatory or 

retributory actions against Aero Ways, Inc., during the pendency of 

this action, or until further Order. 

Respectfully Submitted, 

^JOSEPH^MICHAEL LAMONACA 

Attorney for Aero Ways, Inc. 
CERTIFICATE OF SERVICE 

I hereby certify that on this 29*^*^ day of March, 2010, served 

the foregoing Response to Motion to Dismiss on the following 

persons at the following addresses by: 

Federal Express: 

Office of the Chief Counsel 

FAA Part 16 Airport Proceedings Docket, AGC-610 

Room 925 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Regular Mail: 

R. Judson Scaggs, Jr. 

Leslie A. Polozoti 

Pauletta J. Brown 

Morris, Nichols, Arsht and Tunnell, LLP 

1201 Market Street, 18th Floor 

P.O. Box 1347 

Wilmington, DE 19899-1347 

ph MichaeJs^amonaca 

Counsel for Aero Ways, Inc. 

New Castle County Airport 

PO Box 10583 

Wilmington, DE 19850-0583 

(610) 558-3376 office 

(302) 221-2347 fax