FOLEY 

FOLEY & LARDNER LLP 

VIA ELECTRONIC MAIL AND CERTIFIED MAIL 

Office of the Chief Counsel 

A TIN: FAA Part 16 Docket Clerk 

AGC-600 

Federal Aviation Administration 

800 Independence A venue, 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 FAX 

WWW.FOLEY.COM 

WRITER'S DIRECT LINE 

617.342.4033 

dbannard@foley.com EMAIL 

CLIENT/MADER NUMBER 

103341-0104 

Re: Skydive Myrtle Beach, Inc. v. Harry County Dep 't of Airports 

FAA Docket No. 16-14-05 - Letter in Opposition to Motion to 

Supplement the Pleadings 

Dear Sir/Madam: 

We represent the Respondent, Horry County Department of Airports ("HCDA") in the 

captioned matter. At 8:31 p.m. on December 31, 2014, Complainant Skydive Myrtle Beach, Inc. 

("SDMB") filed a Motion to Supplement the Pleadings (the "Motion to Supplement") in the 

captioned matter. Section 16.23(j) of 14 CFR provides 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. For the reasons set forth below, SDMB's 

Motion to 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 seeking to conflate the 

captioned matter with the ongoing state law litigation between 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 1 TO THE MOTION TO SUPPLEMENT, AND THE 

MOTION TO SUPPLEMENT SHOULD BE DENIED. 

Section 16.23(j) of 14 CFR provides 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 of documents listed on 13 pages of 

Exhibit 1 attached to the Motion to Supplement. Upon a review of SDMB's summary of such 

documents, it appears that the vast majority of these documents have been previously included with 

SDMB's earlier filings with the FAA. The primary "new" material appears to relate to the 

BOSTON 

BRUSSELS 

CHICAGO 

DETROIT 

JACKSONVILLE 

LOS ANGELES 

MADISON 

MIAMI 

MILWAUKEE 

NEW YORK 

ORiJ;.NDO 

SACRAMENTO 

SAN DIEGO 

SAN 'FRANCISCO 

SHANGHAI 

SILICON VALLEY 

TAL!J;.HASSEE 

TAMPA 

TOKYO 

WASHINGTON. D.C. 

4817-6518-7873.5 
:FOLEY 

FOLEY & LARDNER LLP 

Office of the Chief Counsel 

January 9, 2015 

Page 2 

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 " ... must provide an excusable explanation for not 

submitting the records earlier in the proceeding." Denison v. As true, (201 0 WL 744935 at *6) (Slip 

Op.) (E.D. La. Mar. 1, 2010). "Good cause does not exist when the claimant had 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 of the Administration Committee at 

which the Minimum Standards were considered, and nearly six weeks after the final reading of the 

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 Supplement by 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 of the 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 of allegations ofmisconduct by various 

members ofthe South Carolina judiciary and Horry County officials and County Councilors, and the 

majority of the materials that SDMB seeks to add to the record appear to relate to these allegations. 2 

1 For example, as the minutes of the Administration Committee meeting on April4, 2014, included in SDMB's 

Motion to Supplement as Exhibit I note, "notices of the meeting were provided to the press stating the time, date, and 

place of the meeting." and "Public Input: There was none." 

2 SDMB 's recitation of events 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. 

4817-6518-7873.5 
:FOLEY 

FOLEY & LARDNER LLP 

Office of the Chief Counsel 

January 9, 2015 

Page 3 

To the extent that these claims asserted by SDMB have any validity, they raise issues of South 

Carolina and Horry County law, and are not subject to resolution by the FAA under Part 16. In each 

of its 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 Motion to Supplement. 

3. SDMB SEEKS TO IMPROPERLY INTRODUCE ADDITIONAL ALLEGATIONS OF VIOLATIONS OF 

GRANT ASSURANCE NO. 22, BUT SDMB's ALLEGATIONS DO NOT STATE A CLAIM FOR 

WHICH RELIEF CAN BE GRANTED BY THE FAA. 

To the extent that SDMB actually improperly asserts a new claim in the Motion to 

Supplement that could constitute a violation of a 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 .... " It is 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 of that agreement, but SDMB fails to cite 

an example of how this provision unjustly discriminates against SDMB. The sole example of a 

provision of the Minimum Standards cited by SDMB is an insurance requirement that applied to all 

operators of aircraft in which persons were transported for hire, and ironically, the insurance 

requirements are one of the provisions of the Minimum Standards that are being amended to reduce 

coverage requirements in response to comments from other tenants at CRE. Not only does adoption 

of the Minimum Standards not unjustly discriminate against SDMB, the Minimum Standards 

provide a fair and open set of guidelines 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 of the approximately 2,500 

pages of additional 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 new claims, but even if the FAA were to allow such 

claims to be advanced, SDMB has not demonstrated any violation of federal aviation law. The FAA 

should deny SDMB's Motion to Supplement. 

* * * 

We are also filing an electronic copy of this document pursuant to the procedure set forth in 

14 CFR § 16.13(h). 

4817-6518-7873.5 
:FOLEY 

FOLEY & LARDNER LLP 

Office of the Chief Counsel 

January 9, 2015 

Page 4 

Thank you for your attention to this matter. lfl can be of assistance 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 of Airports (via electronic mail) 

Jason Terreri, Assistant Director of Airports (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 

4817-6518-7873.5 
CERTIFICATE OF SERVICE 

I hereby certify that I have this day served the foregoing Respondent Horry County 

Department of Airports' Rebuttal in Support of Its 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 of the Chief Counsel 

ATTN: FAA Part 16 Docket Clerk 

AGC-600 

Federal Aviation Administration 

800 Independence A venue S W 

Washington, DC 20591 

9-A W A-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