UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC FAADOCKETN0.16-15-07 WILLIAM ALFRED HICKS, JR. alk/a BILLY HICKS, Complainant
v. CITY OF MOUNT AIRY, NORTH CAROLINA; and THE COUNTY OF SURRY, NORTH CAROLINA; tlnough the MOUNT AIRY/SURRY COUNTY AIRPORT AUTHORITY, Respondent.

SubmittedBy: Randolph M. Jan1es, N.C. BarNo. 10,000 Attorney for Complainant RANDOLPH M. JAMES, P.C. P.O. Box 20069 Winston-Salem, NC 27120 Phone: (336) 724-7707 Facsimile: (336) 724-9722 Email: rmjames(ZV,rmjameslaw.com ) 

### ) ) COMPLAINANT'S REPLY TO ) RESPONDENTS' MOTION FOR ) LEAVE TO FILE OPINION AND ) JUDGMENT OF THE UNITED ) STATES DISTRICT COURT AND ) REQUEST FOR JUDICIAL ) NOTICEOF THE SAME 

### ) ) 

# ) RECEIVED JAN 11 2016 PART 16 DOCKETS

Pursuant to 14 CPR, 

### §16.19(c), William AlfredHicks, Jr., by and through counsel, hereby replies to Respondent's Motion for Leave to File the Opinion and Judgment ofthe United States District Court for the Middle District ofNorth Carolina in Hicks v. Airport Authority et 

### ai. and Respondents' Request for Judicial Notice ofthe Same. 

### CONCISE STATEMENT OF FACTS Complainant, William Alfred Hicks, Jr. ("Billy" or "complainant"), a past member ofthe Mount Airy/Surry County Airport Authority and pasttenant atthe Airport itself, filed a formal complaint pursuant to Title 14 CPR, Part 16, against the Mount Airy/Surry CountyAirport Authority, the governing body ofthe Mount Airy/Surry County Airport ("KMWK"), as designated by the City ofMount Airy and the County ofSurry, both located inNorth Carolina, who are the Sponsors ofthe Airport. The Mount Airy/Surry County Airport Authority (herein "Airpo1t Authority") are appointedbythe Sponsors and make the policy and procedure needed to operate the facility. Billy's Complaint arises from actions taken by the MountAiry/Surry County Airport Authority ("Airport Authority) that Billybelieves violate the Sponsor Assurances assumed by the Airport Authority when accepting funding grants. The Federal Aviation Administration ("FAA") hasjurisdictionto determine compliance with obligations and assurances pertaining to the Airport ImprovementProgramthrough Title 49 U.S.C. §47101, 

### et. seq., and Airport Sponsor Assurances through 49 U.S.C. §47107, 

### etseq. Respondents have filed another motion in the case, a Motion for Leave to File the Opinion and Judgment in federal district litigationbetweenthe parties, and have requested judicialnotice ofthe Opinion and Judgment inthat case. 

### REPLY Respondents continue intheir attempt to make this FAA Complaint about the termination ofBilly's hangar lease, instead ofthe pattern and practice ofactions which reward those who support the Airport Authority in actions to support the granting ofan ex violations oftheir Sponsor Assurances. In the Part 16 formal complaint process, each party must file documents sufficient to present all the relevant facts to determine ifan airport sponsor is in compliance. 14 CFRPart 16, §29. Here, bothparties have had the opportunityto file pleadings which relate to the charge thatthe Mount Airy-Surry County Airport Authority is inviolation oftheir Sponsor Assurances.

2Additional documents pertaining to the litigationbetweenthe parties is irrelevant, as the decision bythe North Carolina Middle District Court in CaseNumber 1:15-cv-38 does not find facts or law answering the question as to whether the Airport Authority is in violation oftheir federal obligations. I. Jurisdiction The FAA Compliance program is designed to achieve the airport sponsor's voltmtary compliance with the Federal obligations the airport accepts when developed withFAA assistance. ScottMeyer v. City of Cincinnati, OH, FAA DocketNo. 16-12-14 (Director's Deterrnination)(Aprill2, 2014), p. 10. In addressing allegations ofnon-compliance, the FAA is making a decision about whether the airport is currently incompliance with applicable federal obligations. 

### Jd. Specifically, the FAA is empowered to investigate and adjudicate a complaint that an airport proprietor has violated the binding Sponsor Assmances. 14 CFR §l6.l(a). The FAAhasjurisdictionto determine compliance with obligations and assmances pertaining to the Airport Improvement Programthrough Title 49 U.S.C. §47101, et seq., and Airport Sponsor Assurances through 49 U.S.C. §47107, et seq. The FAA designed the Airport Compliance Program to assist in ensming a safe national system ofpublic use airports, which are operatedbythe sponsors in a manner which is consistent with the federal obligations. The Mount Airy/Surry County Airport is a federally-obligated airport. As such, the Airport Authority must comply with the assmances for Airport Sponsors. Though KMWK's original obligations were only pursuantto Title VI, Civil Rights Act and the Statutory Exclusive Rights Prohibition as the original grants had expired, KMWK has been accepting new grants since at least 2010, which would impose new Federal Obligations tiedinto those grants.
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### H. Facts Pertinent to Respondents' Motion for Leave to File Opinion and Judgment from 1:15-CV-38. The Complainant filed suit againstRespondents in the Middle District ofNorth Carolina due to his beliefthe disparate treatment bythe Airport Authority violated Complainant's constitutional rights. InRespondents' Motion for Leave to File Opinion andJudgment ofthe United States District Court for the Middle District ofNorth Carolina in Hicks v. Authority et al., MDNC Case No. 1:15-CV-38 and Request forJudicial Notice ofthe Same (herein "Motion for Leave to File Opinion and Judgment"), Respondents state boththe Complainant and Respondents have referred to the federal complaint and amended complaint inthe pleadings such thatthe Opinion and Judgment are relevantto this proceeding. (Motion, '1]1). Respondent omits that Complainant has only referenced the federal litigation inresponse to arguments made by Respondents inmotions, andhas not relied onthe federal litigation in support ofthe Part 16 Complaint. Other than the conclusory statement that the Opinion and Judgment are relevant, Respondents offer no proofofthe documents relevance. Billy, inhis Part 16 Complaint, did notrefer to the complaint or amended complaint from the federal court case, nor relied onthe issues inthe federal litigation to supporthis Complaint. Ofthe 45 Exhibits submitted withthe Part 16 Complaint, the federal complaint or amended complaint are not included. Respondents, intheir Motionto Dismiss or inthe Alternative for Summary Judgment ("Motion to Dismiss"), reviews the prior litigation history betweenthe parties -referencing a state court summary ejectment case and the federal lawsuit. (Motion to Dismiss, pp. 3-5). The Motionto Dismiss Exhibit 7 is a composite exhibit oflawsuits Respondents argued were relevantto Billy's Part 16 Complaint. (Motion to Dismiss, Ex. 7, AN). This includes the Hicks complaint in federal court (Id., Ex. 7H) and the first amended



### 4complaint infederal court (Id., Ex. 7N). Again, Respondents offer no reason why the documents

are relevant,just offers the documents as exhibits to the Motion to Dismiss. In Billy's responseto the Motionto Dismiss, the litigation is mentioned in one sentence: "Billy andthe Airport Authority have been in involved in litigation over the lease termination, including the declaratoryjudgment action and summary ejectment action relating to the hangar lease and a federal lawsuit arising from the retaliationBilly has faced for opposing the special treatment ofthe sole FBO at KMWK.." (Complainant's Response to Respondents' Motionto Dismiss or in the alternative Motion for SummaryJudgment, p. 4). Complainant does not rely onthe federal litigation in his Response to the Motionto Dismiss, because the litigation between Billy and the Airport Authority is not at issue inthe Part 16 Complaint. Respondents mistakenly argued in the Motionto Dismiss thatthe Part 16 action

was designedto force the Airport Authority to issue Billy a lease suchthat the state court litigation is abar due to res judicata and collateral estoppel (Motion, p. 7, '1[6), however, a request thatthe "FAA broker a new lease" (Motion, p. 7, '1[6) was not reliefrequested by Billy in the Part 16 Complaint. As the claims at issue are different inthe state court litigation (summary ejectment onthe lease) a11d the federal litigation (equal protection, due process) from the claims at issue inthe Part 16 Complaint (violation ofsponsor assurances), Billy's Part 16 Complaint is not precluded by either the state or federal litigation. Respondents' Answer to the Complaint again references the state ejectment action and federal litigation, onpp. 4-5, inthe fact section. (Answer, pp. 4-5). Respondents' Answer also incorporates the exhibits, affidavits, and motions previously filed, which included a reference to the federal litigation. (Answer, p. 8). Though Respondents state the federal litigation amended complaintwas cited in support for its affrrmative defenses ofresjudicata and collateral estoppel



### 5(Motion for Leave to File Opinion and Judgment, p. 2, '1(1), the Answer actually states the claims about the lease tennination and waiting list removal are barred by resjudicata and collateral estoppel for the state summary ejectment litigation, not the federal litigation. (Answer, p. 20, '1(8). Complainantthenreferences the litigation in his Reply, stating the litigation betweenthe parties

were attempts at resolution. (Reply to Answer, p. 6). Though Respondents have repeatedly attempted to drag the federal (and state) litigation betweenthe Complainant and Respondents into the Part 16 adjudication, the federal litigation is notrelevant to the Part 16 Complaint. Billy's Part 16 Complaint does include some ofthe same facts listed inthe prior litigation, as support for his argumentthe Airport Authority operates in a
manner which is in violation ofthe Airport Sponsor Assmances. The Part 16 Complaint also includes many additional facts about a pattern and practice ofbehavior bythe Airport Authority which was not relevantto the federal litigation, and were not included inthe federal pleadings. 

### HI. The Documents 

### Offered in the Motion 

### for Leave 

### to File Are NotRelevant to the Part 16 Proceedings. Each party must file the documents it considers sufficient to present all relevant facts and arguments necessary for a determination as to whether the sponsor is in compliance. 14 CFR 16 

### §16.29(b)(1). Inrendering its decision, the FAAmayrely on the Complaint and responsive pleadings. Id. Relevance is not defined in 14 CFR §16.3 (Definitions). The Federal Rules of Evidence define relevance as evidence which "has any tendency to make a fact more or less probable than it wouldbe without the evidence; andthe fact is ofconsequence in determining the action." Fed. R. Evidence 401. The Respondents bear the bmden ofprooffor their motions orrequests, as well as the bmdeninproving an affirmative defense. PlatinumAviation andPlatinum Jet Center BMIv. Bloomington-NormalAirportAuthority, FAA DocketNo. 16-06-09 (March 5, 2008), p. 13. 

### 6Respondents have offered no case law, no evidence and no argument as to why the federal litigation arising from a constitutional claim would be relevant to the issue ofsponsor compliance. Respondents have not shown why the Opinion and Judgment ofthe District Court would make any fact more or less probable, nor how itis ofconsequence in determining the action on whether the Airport Authority has violated its sponsor assurances. In

### Platinum, the parties were previously involved in state litigation to resolve contract issues, and even though the Illinois state court fmmd the Platinum agreements valid and enforceable under Illinois law, the FAA found the same agreements were inviolation ofthe sponsor assurances and had to be modified, ruling the Complainants' contractual rights were subordinated to the Respondents' federal obligations. 

### Platinum, p. 15. "The Part 16 process ensures respondents comply with their agreements with the federal government to protect and
serve the public interest. The resolution, though unsatisfactory to the Complainants, meets the Respondent's federal obligations regarding this issue.Jd., pp. 15-16. In

### Platinum, the litigation was relevantto the part 16 complaint, as the complainant argued the sponsor could not unilaterally modify a valid and enforceable agreement. Unlike 

### Platinum, the lease agreement here has been litigated inthe state summary ejectment action, and Billy discussed the lease termination and summary ejectment as factual support for the retaliation and disparate treatment claims in the federal litigation. Billy did not base his Part 16 Complaint uponthe federal litigation nor is he seeking to have the FAA enforce his prior lease agreement such that the Opinion and Judgment inthe federal litigation would be relevant to the Part 16 Complaint.

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### A. The federal litigationwas not used in Respondents' resjudicata 

### or collateral estoppel defenses, whichwere based npon the state summary ejectment action. Theres judicata and collateral estoppel defenses raisedbythe Respondents were raised for the claims arising from the lease termination, based uponthe state ejectment action, notthe federal litigation. See Respondents' Motion to Dismiss, p. 7,

**~6** ("the claim is at its core a contract dispute which was previously litigated); Answer, p. 20,

**~8** ("Complainant's claims regarding the lease and the waiting list have been litigated in state court and are banedbyresjudicata and collateral estoppel."). At the time those defenses were raised, there was no final judgment in the federal litigation, suchthat the Respondents couldhave beenreferring to the federal case as "previously litigated". As such, the Opinion and Judgment from 1:15-CV-38 are not relevantto the resjudicata or collateral estoppel defenses raised by Respondents. Res judicata, or claim preclusion, precludes re-litigating claims where a court of competentjurisdictionhas issued a finaljudgment onthe merits against the identical parties (or

one inprivity) ifthe causes ofaction are the same. In Re Naples, FAA DocketNo. 16-01-15 (Final Agency Decision and Order)(Aug. 25, 2003), p. 21 (citingAlliedPilotsAss/n v. Pension Benefit Guar. Corp., 2003 U.S.App. LEXIS 13898, *9 (D.C. Cir. July 11, 2003); Hollandv. Nat'l MiningAss'n, 309 F.3d 808, 813 (D.C. Cir. 2002); and Citibank, 

### NC. v. Data Lease Financial Corp., 904 F.2d 1498, 1501 

### (llth Cir. 1990)).



### Tho~gh the parties inHick's federal litigation included the Airport Authority, the causes ofaction are notthe same, as the federal litigation did not involve the grant assurances, which

are the issue inthe FAA Part 16 Complaint. Naples, p. 23. As there canbe no claim preclusion for a case on different claims, the Opinion and Judgment are notrelevantto Respondents' res judicata defense.

8Collateral estoppel, or issue preclusion, bars issues which have beenpreviously litigated whenthose issues are identical. Naples, p. 23. Again, the Part 16 Complaint deals exclusively with a determination on whether Respondents are inviolation ofgrant assurances; the issues in the federal litigation, as canbe seen from the complaint and amended complaint, did not deal with grant assurances butwith whether the Airport Authority's treatment ofBilly Hicks violated his constitutional rights. See Naples, p. 23-25. Additionally, comity, defmed as respecting another adjudicatory bodyby giving effect to its case law, does not require the FAAto follow a district court decision. Naples, p. 24. Comity is discretionary, not obligatory, and Respondents have offered no argmnent or support onwhy a federal constitutional claim ofequal protection or due process would apply to the determination ofwhetherthe Airport Authority has violated its sponsor assurances. Respondents cannotboot strap the federal litigation into their res judicata and collateral estoppel defense to argue the relevance ofthe federal Opinion and Judgment. As canbe seen in the complaint and amended complaint already entered into the record bythe Respondents, the federal action did not seek tore-litigatethe lease termination from the state ejectment action, but sought a determination on whether the actions by the Airport Authority (including the lease termination) were a violation ofBilly's constitutional rights. The claims raised inthe complaint and amended complaint inthe federal case were based uponthe Airport Authority's actions violating the constitutional protections against disparate treatment and due process. (Motion to Dismiss, Ex. 7H, 7N). The federal litigation carmot be used in a resjudicata or collateral estoppel defense to the Part 16 determination ofwhether the AirportAuthority violated sponsor assurances.



### 9Though Respondents state the Opinion and Judgment are relevant to theproceedings (Motion for Leave,

**~4**), they offer no prooffor the alleged relevance. Respondents have the burden ofproofintheir motions, and simply submitting documents the documents do not meet the burdenifthey fail to explainhowthe documents supporttheir specific allegations. See JetAway v. Montrose County, FAA DocketNo. 16-08-01 (Director's Determination)(July 2, 2009), p. 8, FN 7. While in some cases, a state or federal lawsuitmay be relevant to a Part 16 proceeding, the FAAis not boundby court decisions onissues covered by grant assurances. See Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina, FAA DocketNo. 16-14-05 (Director's Determination)(October 

### 7, 2015), p. 31. Issues such as eviction or lease tenninations can bereviewed bythe FAA, and canbe considered withinthe scope ofthe applicable grant assurances. Id., p. 32. However, Complainant did notrely uponthe federal litigation in his Complaint, and Respondents have offered no proofonwhythe federal litigation is relevant, nor whythe Opinion and Judgment ofthe federal court should be entered as part of the pleadings in this Part 16 Complaint. CONCLUSION As the outcome oflitigationbetweenthe parties is not relevant to the whether the Respondents are inviolation ofthe grant assurances, the Respondents' Motion for Leave to File the Opinion and Judgment in 1:15-CV-38 and their Request for JudicialNotice shouldbe denied.

This, the 31 day ofDecember, 2015.

1011 an olph M. James, N.C. BarNo. 10,000 Attorney for Complainant P.O. Box 20069 Winston-Salem, NC 27120 Phone: (336) 724-7707 Facsimile: (336) 724-9722 Email: rmjames@rmjameslaw.com

### CERTIFICATE OF SERVICE I, Randolph M. James, certify on December 31, 2015, I filed and served 

### this Complainant's Replyto Respondents' Answer (together with all the attachments and exhibits hereto), byplacing the original andthree copies addressed to the FAAin a prepaid, first-class envelope in the custody ofthe United States mail as defined by Title 14 CFRPart 16, §16.3, and by mailing a copy to counsel ofrecordby depositing the foregoing inU.S. mail, addressed to: FAA Part 16 Docket Clerk, AGC-600 Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 (Original and Three Copies) Howard C. Jones, II 105 West Fourth Street, Suite 400-E Winston-Salem, NC 27101 Attorney for Motmt Airy/Snrry County Airport Authority

12 Edwin M. Woltz 119 Rawley Avenue MountAiry, NC 27030 Attorney for the County ofSurry, NC Hugh B. Campbell, III 235 E. Independence Blvd. PO Box 1846 Mount Airy, NC 27030 Attorney for the City ofMount Airy, NC

Randolph M. James, N.C. Bar No. 10,000 Attorney for Complainant P.O. Box 20069 Winston-Salem, NC 27120 Phone: (336) 724-7707 Facsimile: (336) 724-9722 Email: rmjames@rmjameslaw.com