# FOLEY

FOLEY & LARDNER LLP

VIA ELECTRONIC MAIL AND CERTIFIED MAIL Office ofthe ChiefCounsel ATIN: FAA Part 16 Docket Clerk AGC-600 Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591 9-AWA-AGC-Part-16@faa.gov January 9, 2015 ATIORNEYS AT iJ;.W 111 HUNTINGTON AVENUE BOSTON , MASSACHUSETTS 02199 617

.342.4000 TEL 617.342.4001 F AX WWW

.F OLEY.COM WRITER'S DIRECT LINE 617

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.4033 dbannard@foley.com EMAIL CLIENT /MADER NUMBER 103341 -0 104

Re: 

### Skydive Myrtle Beach, Inc. v. Harry County Dep 't 

### of Airports FAA DocketNo. 16-14-05

- Letter in Opposition to Motion to Supplement the Pleadings Dear Sir /Madam: We represent the Respondent, Horry County Department ofAirports ("HCDA") in the captioned matter. At 8:31 p.m. on December 31, 2014, Complainant Skydive Myrtle Beach, Inc. ("SDMB") filed a Motionto Supplement the Pleadings (the "Motionto Supplement") in the captioned matter. Section 16.23(j) of 14 CFRprovides that amendments or supplements to the pleadings in a complaint filed under 14 CFR Part 16 will notbe allowed without showing good causethrough a motion and supporting documents. Forthe reasons set forth below, SDMB 's Motionto Supplement should be denied as failing to demonstrate good cause, failing to demonstrate any claim pursuant to which the Federal Aviation Administration ("FAA") may grant relief, and inappropriately overburdening the resources ofthe FAA and HCDA by seekingto conflate the captioned matter with the ongoing state law litigationbetween SDMB and HCDA in the South Carolina courts. 1. SDMB HAS NOT MET THE STANDARD FOR SHOWING GOOD CAUSE FOR FILING THE ADDITIONAL MATERIALS LISTED IN EXHIBIT 1TO THE MOTION TO SUPPLEMENT, AND THE MOTION TO SUPPLEMENT SHOULD BE DENIED. Section 16.23(j) of 14 CFRprovides that amendments or supplements to the pleadings in a complaint filed under 14 CFR Part 16 will not be allowed without showing good cause through a motion and supporting documents. SDMB has failed to demonstrate good cause for failing to include in its prior filings with the FAA the over 2,500 pages ofdocuments listed on 13 pages of Exhibit 1 attached to the Motion to Supplement. Upon a review ofSDMB 's summary ofsuch documents, it appears that the vast majority ofthese documents have been previously included with SDMB's earlier filings with the FAA. The primary "new" material appears to relate to the
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Minimum Standards and Requirements for Aeronautical Activities at Grand Strand Airport (CRE), Conway-Horry County Airport (HYW) and Twin City Airport (5J9) dated April 1, 2014 (the "Minimum Standards") that became effective May 20, 2014, including an excerpt from the minutes ofthe April 4, 2014 Horry County Council Administration Committee ("Administration Committee") meeting. For SDMB to show "good cause", SDMB "
... mustprovide an excusable explanation for not submitting the records earlier in the proceeding." Denison v. Astrue, (2010 WL 744935 at *6) (Slip Op.) (E.D. La. Mar. 1, 2010). "Good cause does not exist when the claimanthad the opportunity to obtain the new evidence before the administrative record closed but failed to do so without providing sufficient explanation." Mouser v. Astrue, 545 F. 3d 634, 637 (8th Cir., 2008), quoting Hepp v. Astrue, 511 F. 3d 798, 808 (8th Cir. 2008). In this case, SDMB filed their claim under Part 16 on July 1, 2014, nearly three months after the public meeting ofthe Administration Committee at which the Minimum Standards were considered, and nearly six weeks after the final reading ofthe Minimum Standards before the Horry County Council, when the Minimum Standards became final. The Minimum Standards are a public document and the five different public meetings noted in the Motion to Supplementby SDMB at which they were considered were all properly noticed and open to the public
. Not only did SDMB have ample opportunity to obtain the Minimum Standards before it filed its Part 16 Complaint against HCDA, it also had multiple opportunities to comment on them publicly. 1 As one court has noted, "Plaintiffs failure to exercise the diligence necessary to obtain the operative [evidence] does not meet the good cause requirement
...." Estes v.Astrue, (2012 WL 423372) (slip op.) (D. Utah 2012). "To demonstrate good cause, the claimant must demonstrate that the new evidence was unavailable earlier." Mayes v.Massanari, 276 

### F. 3d 453 , 463 (9th Cir. 2001). In this case, the vast majority ofthe materials that SDMB seeks to introduce, including the Minimum Standards, were available well prior to its original complaint was filed. The Motion to Supplement should be denied. 2. SDMB INCORRECTLY SEEKS TO CONFLATE STATE LAW MATTERS WITH ITS FEDERAL LAW CLAIMS BEFORE THE FAA. The majority ofthe Motion to Supplement consists ofallegations ofmisconductby various members ofthe South Carolinajudiciary and Horry County officials and County Councilors, and the majority ofthe materials that SDMB seeks to add to the record appear to relate to these allegations. 2

1 For example, as the minutes ofthe Administration Committee meeting on April4, 2014, included in SDMB's Motion to Supplement as Exhibit I note, "notices ofthe meeting were provided to the press stating the time, date, and place ofthe meeting." and "Public Input: There was none." 2 SDMB's recitation ofevents relating to an alleged "failure to timely produce documents" apparently refers to the state law action. There has been no discovery in the instant matter. Complainant continues to conflate its state law and FAA claims, which must be heard separately
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To the extent that these claims asserted by SDMB have any validity, they raise issues ofSouth Carolina and Horry County law, and are not subject to resolution by the FAA under Part 16. In each ofits filings with the FAA in the instant matter, SDMB has sought to introduce claims and supporting evidence relating to matters that have nothing to do with federal aviation law. The FAA should refuse to permit SDMB to clutter the record in this matter with state law issues that are irrelevant to a Part 16 complaint and deny the Motionto Supplement. 3. SDMB SEEKS TO IMPROPERLY INTRODUCE ADDITIONAL ALLEGATIONS OF VIOLATIONS OF GRANT ASSURANCE NO. 22, BUT SDMB'sALLEGATIONS DO NOT STATE ACLAIM FOR WHICH RELIEF CAN BE GRANTED BY THE FAA. To the extent that SDMB actually improperly asserts a new claim in the Motion to Supplementthat could constitute a violation ofa federal grant assurance, the evidence proffered by SDMB demonstrates that HCDA has not engaged in unjustly discriminatory conduct. As the Administration Committee minutes cited in SDMB's Motion to Supplement state, the Minimum Standards"
... set a platform as to how the tenants [at HCDA's three general aviation airports] would be treated equally
.. .." 

### Itis true that where a pre-existing agreement between HCDA and a tenant would conflict with the Minimum Standards, the agreement's provisions would supersede those of the Minimum Standards until the expiration or termination ofthat agreement, but SDMB fails to cite an example ofhow this provision unjustly discriminates against SDMB. The sole example ofa provision ofthe Minimum Standards cited by SDMB is an insurance requirement that applied to all operators ofaircraft in which persons were transported for hire, and ironically, the insurance requirements are one ofthe provisions ofthe Minimum Standards that are being amended to reduce coverage requirements in response to comments from other tenants at CRE. Not only does adoption ofthe Minimum Standards 

### notunjustly discriminate against SDMB, the Minimum Standards provide a fair and open set ofguidelines for all aeronautical service providers, including SDMB, seeking to operate at HCDA's general aviation airports. SDMB has failed to show good cause for its failure to file any ofthe approximately 2,500 pages ofadditional documents that it seeks to introduce to supplement this matter. SDMB seeks to inappropriately conflate this matter with its state law claims already pending in the South Carolina courts. SDMB improperly seeks to assert newclaims, but even ifthe FAA were to allow such claims to be advanced, SDMB has not demonstrated any violation offederal aviation law. The FAA should deny SDMB's Motion to Supplement. 

### * * * We are also filing an electronic copy ofthis documentpursuant to the procedure set forth in 14 CFR 

### § 16
. 13(h).

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### Thank you for your attention to this matter. lfl

### can be ofassistance in any way, please do not hesitate to contact me.

DYB Enclosures

cc: Robert G. Eastman, Esq., Attorney for SDMB (via electronic mail and certified mail) Patricia Apone, Director ofAirports (via electronic mail) Jason Terreri, Assistant Director ofAirports (via electronic mail) Arrigo Carotti, Esq., County Attorney (via electronic mail) H. 

### Randolph Haldi, Esq., Deputy County Attorney (via electronic mail) Jeffrey R. Blease, Esq., Foley & 

### Lardner LLP Jaclyn V. Piltch, Esq. , Foley & 

### Lardner LLP

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### CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing Respondent Horry County Department ofAirports' Rebuttal in Support ofIts Answer and Affirmative Defenses to Complainant Skydive Myrtle Beach, Inc.'s Part 16 Formal Complaint and Statement ofMaterial Facts, including supporting documents, on the following persons at the following addresses, by electronic mail in accordance with 14 CFR Part 16 

### § 16.13(h), and by certified mail:

Office ofthe ChiefCounsel ATTN: FAA Part 16 Docket Clerk AGC-600 Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 9-AWA-AGC-Part-16@faa.gov

Dated: January 9, 2015

4850-6408-2208.2 

### Counsel for Skydive Myrtle Beach, Inc
. Robert G. Eastman, Esq
. Eastman & Associates, LLC P.O. Box. 180 Charleston, SC 29402 robertgeastman@msn.com