V, « 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

J&B ENTERPRISES, INC. d/b/a. RHYTHM 

SHINE, 

Complainant, 

V. 

METROPOLITAN NASHVILLE AIRPORT 

AUTHORITY, 

Respondent. 

S El ¥ 

AUliGG - - 33 ; 2008 

AIRPORT/ENVIRONMENTAL 

LAW, AGC-600 

FAA Docket No. 16-08-07 

— H 

CD 

' " 1 

RESPONDENT METROPOLITAN NASHVILLE AIRPORT AUTHORITY'S MOTION ^: 

TO STRIKE COMPLAINANT'S UNAUTHORIZED REPLY TO RESPONDENT'S 

OPPOSITION TO COMPLAINANT'S MOTION TO SUPPLEMENT THE RECORD 

c:3 

1. On July 27, 2009, Complainant J&B Enterprises, Inc. ("J&B") filed a "Reply On Motion 

To Supplement" simultaneously with its "Opposition to Respondent's Motion To Strike New 

Issues On Appeal." 

2. Respondent Metropolitan Nashville Airport Authority ("MNAA") objects to this 

unauthorized filing of the "Reply on Motion to Supplement" by J&B, and respectfiilly requests 

that the FAA strike the proffered filing because it is in violation of Part 16's prescribed 

procedures. 

3. 14 C.F.R. Section 16.19 provides that "[a]n apphcation for an order or ruling not 

otherwise specifically provided for in this part shall be by motion. . . . [A]ny party may file an 

answer in support of or in opposition to a motion ..." provided that the answer is filed within ten 
days of the mofion. 14 C.F.R. § 16.19(c). Part 16 does not allow a reply to the opposition to a 

motion, 

4. Here, Complainant filed a Motion to Supplement the Record on Appeal on July 8, 2009. 

On July 16, 2009, MNAA filed its Opposition To Complainant's Motion To Supplement The 

Record on Appeal. Subsequently, J&B ignored Section 16.19, and on July 27 2009 filed a Reply 

on its Motion To Supplement The Record, as part of its filing titled Reply on Motion to 

Supplement The Record And Opposition To Respondent's Motion To Strike New Issues On 

Appeal. 

5. MNAA respectfully requests that the FAA strike from Complainant's July 27'^ filing all 

references to J&B's Motion to Supplement the Record. See Exhibit 1 (Redlined copy of 

Complainant's Motion showing portions proposed to be stricken). Part 16's procedures provide 

for a motion and an answer, and no more. See Order, Sept. 12, 2007, Lo-Yu-Sun v. Port of 

Seattle, FAA Docket No. 16-06-13 at p. 8, n.3 (attached as Exhibit 2) (holding that 

Complainant's Reply in support of its motion was an unauthorized pleading and granting 

Respondent's motion to strike the reply: "Section 16.19 permits a motion and an answer to the 

motion. It does not permit a reply.") 

6. The FAA is required to enforce its own regulations, including internal procedural 

regulations. Service v. Dulles, 354 U.S. 363, 388 (1957): United States ex rel. Accardi v. 

Shaughnessy, ZAl U.S. 260, 265 (1954) (agency regulations prescribing internal procedures have 

force and effect of law). 

7. Part 16 is intended to be an expedited proceeding. See Order, Sun v. Port of Seattle, 

(Exhibit 2) at 5 ("Part 16 is an accelerated administrative process, intended to expedite 

substantially the handling and disposition of airport-related complaints.") Permitting 
unauthorized filings would run counter to this intention in violation of the FAA's own 

regulations, and would prejudice MNAA in its defense of the claims against it. Consequently, 

MNAA respectfully requests that its Motion to Strike Complainant's Unauthorized Reply be 

granted. 

Respectfully submitted this 31st day of July, 2009: 

Robert Watson 

Metropolitan Nashville Airport Authority 

One Terminal Drive, Suite 501 

Nashville, TN 37214 

Telephone: (615) 275-1637 

Facsimile: (615)275-4302 

Arthur P. Berg 

KAPLAN KIRSCH & ROCKWELL LLP 

641 Lexington Ave. Suite 1409 

New York, NY 10022 

Telephone: (212) 328-9515 

Facsimile: (646)514-5440 

Thomas Devine 

KAPLAN KIRSCH & ROCKWELL LLP 

1001 Connecticut Ave NW, Suite 800 

Washington, DC 20036 

Telephone: (202) 955-5600X568 

Facsimile: (202) 955-5616 

Lisa Reynolds 

BCAPLAN KIRSCH & ROCKWELL LLP 

1675 Broadway, Suite 2300 

Denver, CO 80202 

Telephone: (303) 825-7000 

Facsimile: (303) 825-7005 
CERTIFICATE OF SERVICE 

I hereby certify that I have this day served the foregoing Motion To Strike 

ComplainaDt's Unauthorized Reply To Respondent's Opposition To Complainant's 

Motion To Supplement The Record on the following persons at the following addresses 

by overnight Federal Express: 

FAA Office of the Chief Counsel 

Part 16 Airport Proceedings Docket, AGC-610 Room 925 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Original and 3 copies VIA Federal Express No. 7968 2608 7168 

Thomas J. Henderson 

Henderson Law Firm, PLLC 

Suite 350 

1425 K Street, NW 

Washington, DC 20005 

One Copy VIA Federal Express No. 7968 2609 2410 

Elizabeth Weir 

Office of the Chief Counsel, Airports and Environmental Law Branch 

Federal Aviation Administration 

800 Independence Avenue, SW, Room 923-M 

Washington, DC 20591 

1 courtesy copy VIA Federal Express No. 7968 2609 6622 

Dated this 7 ' day of July, 2009: 

Lis Lisaa A. . Reynolds 

Counsel for Respondent MNAA 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

J&B ENTERPRISES, INC., 

d/h/a/ RHYTHM SHINE, 

Complainant, 

METROPOLITAN NASHVILLE AIRPORT 

AUTHORITY, 

Respondent. 

Docket No.: 16-08-07 

COMPLAINANT J&B ENTERPRISES' »EW:¥^ 

ON MOTION TO SUPPLEMENT THE RECORD AND OPPOSITION 

TO RESPONDENT'S MOTION TO STRIKE NEW ISSUES ON APPEAL 

Complainant J&B Enterprises, Inc., d/b/a/ Rhythm Shine (hereafter "Complainant" or 

"J&B"), by its counsel, hereby responds to Respondent Metropolitan Nashville Aiipoit 

Authority's ("MNAA") Oppusitiun To Cuuiplaiiiant'j Motion To Supplement Tho Rooord On 

Appeal And Motion To Strike New Issues On Appeal. For die reasons outlined in J&B's July 

17, 2009 Opposition to MNAA's Motion for Immediate Stay and an Extension of Time to File 

Its Reply, the Assistant Administrator should decide these matters in connection with deciding 

the appeal of the Director's Determination. The MNAA is not entided to a separate, advance 

decision of whctfacf the recofd should be oupplomontad-Mid what issues will be addressed in the 

appeal. 

For me addmoiml itiasuiis staual btduw, when these matleis me dceidfcd, the Asaiatent 

Adminiatrater should exeieise her discretion to supplement the iLcuid, as JAB lias requesttal; In 

addition, upon reviewing the record, the Assistant Administrator should find duit J&B's 

complaint squaiely alleged retaliatory conduct and that MNAA was in violation of the FAA Part 

26 regulation prohibiting retaliation, and diat the Director's Determination discussed the 

allegations, but only in the context of disparate impact and treatment claims and, thus. 
erroneously failed to sqpply the law recognizing retaliation as discrimination to those allegations. 

Fuitha, after reviewing the entire record, including the factual assertions and exhibits in 

MNAA's Answer and Motion to EHsmiss, and the Director's Determination, the Assistant 

Administrator should find that J&B's ctHnplaint alleged that the Hudson-Olympic Supply joint 

venture did not satisfy ACDBE requirements and that MNAA directly put at issue its obligations 

to determine and monitor those factors regarding the independent operation of Olympic required 

for ACDBE status. The Assistant Administrator also should find and conclude that the 

Director's Determination purported to make findings that the Hudson-Olympic joint venture 

satisfied ACDBE requirements and that MNAA satisfied its obligations to determine and 

monitor the ACDBE status of Olympic, but erred in reaching those conclusions because it failed 

to consider or require facts that established that Olympic operated independently and satisfied all 

the requirements for ACDBE status in the Part 23 regulations and the FAA's Joint Venture 

Guidance and that MNAA had performed and satisfied its obligations to determine and monitor 

those factors, as required for it to credit and count Olympic as ACDBE participation under those 

same regulations and FAA Joint Venture Guidance. 

For all these reasons, J&B's motion to supplement should be giaiited and MNAA's 

motion to strike should be denied. 

-REPLY ON MOTION TO SUPPLEMENT^ 

MNAA opposes gupplementatioB of the iccotd to tnelude the six doeutncnta feferrcd to in 

the motion 4luu, letteis attually submitted to the FAA in Jauuaiy and Febiuaty 2009 by J&D 

/>w jc in connection wifli the appeal, a June 19,2008 letter fiom J AD'a then-attemey to MNAA 

and two lettwp dated in Jonuniy and May of 2009 appended to the appeal regaidbig Uie DBE 

status uf Olympic in a uuiitrattual lelatiundiip witli Hudson at die BWI aiipuit in Maiyland. 

nie&e will be addicaaed in tumi 
"f list, die duee letteis fiom JAB pmselu die FAA weie JAD's attempt to supplement flie 

tecofd with material it thought bore on the issnes associated with the compiaiiit.—Although 

physically in the record, the DD eachided ihtm from the record becanse diey were impropetiyfilod and "not seived preperiy." DD at 9 A nn. 57 and 58. MNAA aeknewledges that they were 

aubmittftd in auppert of JAD's ease bat complaina that they contain '^unsubstantiated facta and 

eonelusoiy statements:"—MNAA Oppeaition at 4.—Theae decnmcnta meet the test for 

aupplemcntation stated in the cases upon which MNAA relies, as JAB sought to and believed 

UiLji wcie submitting them to die FAA prior to the DD. Further, that the DD excised these pw jc 

submissions from the ircord for lack of service seems unjnst 'm the absence of evidwico that J&B 

wd!> iiifmmed by the FAA in die comse of flie&e conmmnitations diat the documents needed to 

be served on MNAA to be oonaidorod. 

Second, the MNAA's opposition is correct in poiittuig out Uiat the motion to supplement 

was wrung in stating that flic June 19, 2008 letter from J&B's then-attomey to MNAA was 

referred to m the, July 30,2008 lUtu of Complanit. 3ee MNAA Opposition at 4 ii. 1. On fuitliei 

review of the Complaint, it is not so referenced and that statement m ciTor. Thus, that ground for 

aupplemcntation does not exist. However, the document was sent to and presumably is in the 

possession of MNAA and, although not before the Direotor, its consideration on appeal will not 

I MNAA. 

-ftird, the two letters containing die findings of the Maryland Aviation Adminiatmtien 

that Olympic waa net operating indepcndenfly of Iludaon such that it did not qualify as an 

ACDBE, Appendix D to the appeal, and die Januafy 9, 2009 letter to M. Freilieh, FAA'a 

Direetof of DDE Compliance, Wcatern Region, from M. Rosales, complaining that Iludaon and 

Olympic weie upeiatiiig a "sliam ACDBE joint veiitui'e[] at BWI aiiport," attached as Appendix 

A to the appeol, both satisfy the test for aupi^ementntion stated in the cases upon which MNAA 

3 
relies, ttfl they were not known or available to J&iB prior to the DP and were submitted by 

niotiuu with the appeal as soon as Uiey were known, hi addition, alUiougli not pievioualy known 

to JAB, these documents sfufuld have been known to MNAA aa the entity responsible for 

monitoring the ACDBE status of Olympic, and weie available to the FAA at the time of and 

should have been eenaidefcd by the Director in making his determination. Finally, they oro 

unqueotionobly relevant to the issue of the viability of the Hudson-Olympic Supply joint venture 

at issue before the Director as^ in this appeal, as demonatmted below. 

OPPOSITION TO MOTION TO STRIKE 

MNAA enoneously argues that two issues raised in J&B's appeal are "new" or are 

"raised for the first time" in the appeal. The two issues claimed to be new are MNAA's 

retaliation against J&B for complaining that it was not in compliance with ACDBE regulations, 

and the viability of the Hudson-Olympic Supply joint venture as satisfying ACDBE regulations 

and the FAA's Joint Venture Guidance. Each is considered in turn below and, for the reasons 

indicated, neither issue is new or raised for the first time on appeal. Thus, MNAA's motion to 

strike should be denied. 

MNAA's Retaliation Against J&B 

The Complaint, on page 1, specifically alleged that MNAA was in violation of 49 CFR 

26.109. That regulation explicitiy provides: 

S 26.199 What are the ndcs gDverning infimnatMMi, confideiitiallty, cooperatioii, and 

intfanidation <Hr retaliatkm? 

(d) Intimidation and retaliation. If you are a recipient, contractor, or any other participant 

in the program, you must not intimidate, threaten, coerce, or discriminate against any 

individual or fiim for the purpose of interfering widi any right or privilege secured by this 

part or because the individual or firm has made a cranplaint, testified, assisted, or 

participated in any manner in an investigation, proceeding, or hearing under this part If 

you violate this prohibition, you are in noncompliance with this part. 
(emphasis added). 

Hie Complaint also contains specific allegations of discrimination as retaliatory conduct 

by bodi MNAA and Hudson. It alleged, at p. 3, that "Hudson has discriminated against J&B 

based on race by resorting to tactics of intimidation to force J&B to collaborate in an artifice that 

would pennit Hudson to continue the fraudulent performance of its concession management 

contract with the MNAA." (Emphasis supplied.) It also alleged that J&B was "threatened with 

removal from the premises by MNAA and Hudson" when it refused to submit to Hudson's 

discriminatory treatment. Id. 

The Complaint also expressly alleged that MNAA retaliated against J&B after it 

complained that MNAA was not complying with DBE regulations in terminating its existing 

concession agreement and giving it notice that MNAA would issue a new RFP for a shoe shine 

concession. Specifically, the Complaint alleged that, rather than meeting to attempt to resolve 

J&B's concerns that MNAA was not operating in compliance with die ACDBE regulations, as 

requested in J&B's April 16 letter, "instead the MNAA responded by temunating the contract 

with J&B." Complaint, p. 4. Finally, the Complaint specifically requested relief to remedy 

MNAA's retaliation in terminating (hat concession agreement. The Complaint requested "an 

Agency directive prohibiting MNAA from terminating the concession agreement with J&B until 

after the Agency conducts a compliance review of all aspects of the contract performance of 

Hudson regarding the management of concessions at the [MNAA]." Complaint, p. S. 

These allegations were discussed in the Director's Determination. See, e.g., DD at 2, 8. 

Unfortunately, it considered them, if at all, only in the context of a potraitial disparate impact or 

disparate treatment claims. See, e.g., DD at 20, 25. The DD simply failed to acknowledge the 

explicit claims of retaliation stated in the Complaint or to recognize diat the Supreme Court 

consistraitiy has held that "[rjetaliation against a person because that person has complained of 

5 
... discrimination is another form of intentional ... discrimination...." Jackson v. Birmingham 

Bd. ofEduc, 544 U.S. 167,173-174 (2005) (citations omitted). 

Thus, the failure of die DD to recognize and consider J&B's retaliation claim did not 

result from any lack of allegations that MNAA terminated J&B's existing concession agreement 

in response to the letter suggesting ACDBE regulatory violations. Instead, it resulted ftom the 

DD's failure to recognize that the plain factual allegations of retaliation constituted a violation of 

Tide VI regulations. This is most clearly demonstrated by the fact that, although die DD 

constantiy referred to the U.S. Department Of Justice Tide VI Legal Manual for guidance, it 

completely ignored the fact that retaliation is explicitly included, along with disparate treatment 

and disparate impact, in the definition of "What Constitutes Discriminatory Conduct?" in that 

Manual. That Manual, in the same section to which the DD constantiy referred, outlines that 

retaliation is discriminatory conduct and the elements of a retaliation claim that matoh the 

allegations of the Complaint. That section, in part, provides as follows: 

Vin. What Constitutes Discriminatory Conduct? 

C. Retaliation 

A complainant may bring a retaliation claim under Titie VI or under a Tide VI 

regulation that prohibits retaliation. For example, most agency Tide VI regulations 

provide that "[n]o recipient or odier person shall intinudate, threaten, coerce, or 

discriminate against any individual for the purpose of interfering with any right or 

privilege secured by [Tide VT|, or because he has made a complaint, testified, assisted, or 

participated in any maimer in an investigation, proceeding or hearing under this subpart." 

28 C.F.R. § 42.108(e) (Departinent of Justice Regulation). 

To establish a prima facie case of retaliation, the investigating agency must first 

determine if the complainant can show (1) that he or she engaged in a protected activity, 

(2) that the recipient knew of the complainant's protected activity, (3) that the recipient 

took some sort of adverse action against the coiiq>lainant, and (4) that diere was a causal 

connection between the complainant's protected activity and the recipient's adverse 

actions. 

See http://www.usdoi. pov/crt/grants statutesAegaInian.php#Retaliation (last visited 7/26/09). 

6 
Accordingly, die Complaint's allegation of retaliation is not a "new" issue. Instead, it is 

an issue properiy raised as a failure of the DD to reach a "conclusion of law ... made in 

accordance with applicable law, precedent, and public policy," and the DDs failure to make 

findings of fact regarding discrimination that "are supported by a preponderance of reliable, 

probative, and substantial evidence." See Airborne Flying Sendee, Inc., v. City of Hot Springs, 

Arkansas, FAA Docket No. 16-07-06, (May 2,2008) (Fmal Decision and Order) page 14 (citing 

Ricks V. Millineton Municipal Airport, FAA Docket No. 16-98-19, (December 30, 1999) (Final 

Decision and Order). 

MNAA*s Compliance With ACDBE Pn^ram R^ulattons 

The Complaint alleged that Olympic's participation in the AMS-Olympic Joint Venture 

did not satisfy ACDBE participation requirements. Complaint, p. 2. It also alleged that diat 

MNAA "was fully aware of the deficiencies with [sic] respect to the amount of ACDBE 

participation, but in concert with Hudson chose to ignore them." Id. The Complaint also alleged 

that J&B was the only ACDBE-eligible entity "operating under the contract awarded to Hudson" 

at the MNAA and diat Hudson failed to meet either the percentage of the joint venture 

participation or subcontract participation. Id., at 3. In these respects, the Complaint alleged diat 

MNAA was in violation of 49 CFR §§ 26.41 and 26.47(b). Id., at 2. The Director's 

Determination ("DD") pointed out that the proper regulatory provisions for requirements of the 

ACDBE program were 49 CFR §§ 23.59 and 23.57 and fliat its review would be under fliose 

sections. DD, at 18 n. 62. Finally, the Complaint specifically requested as relief "a compliance 

review of all aspects of the contract performance of Hudson regarding the management of 

concessions at the [MNAA]." Complaint, p. 5. 

MNAA's Answer and Motion to Dismiss certainly recognized the Complaint as having 

raised the larger issue whether it was operating its ACDBE program in compliance with FAA 

7 
regulations, rather than some narrowly defined question. This is most easily demonstrated by the 

heading MNAA chose for that section of its argument: "MNAA Has Operated Its ACDBE 

Program in Good Faith and Has Fostered DBE Participation in Its Concessions." MNAA 

Answer, at 30. 

It the argument that followed, MNAA did not simply respond to the specific issues of 

whether Olympic was certified in Tennessee at the time of the RFP and the 51% percent 

ownership interest^ Instead, it went on to assert affirmatively that "the Joint Venture with 

Olynqiic Supply was a 'viable partnership'... [and] w[as] 'responsive' to the requirements of 

Part 23" at the time of the RFP, and submitted as an Exhibit its analysis of die proposed Joint 

Venture. MNAA Answer, at 32; Item 10 Ex. 34. That Exhibit included summary statements 

purporting to be analyses and conclusions regarding levels of capital contribution, participation 

in daily operations, management functions and commercially useful function in the proposed 

Hudson-Olympic Joint Venture. See Item 10 Be. 34, at p. 2. Indeed, MNAA's Answer and 

Motion to Dismiss explicitiy argued not only that the Hudson-Olympic arrangement was a 

"viable partnership," but that it had "rejected the proposed joint venture agreement of another 

proposal" for apparent failure to satisfy the requirements of 49 CFR Part 23. Id. MNAA argued 

diat it "carefully considered the DBE participation in all the NG&S proposals," "in keeping with 

its obligations und^ Part 23." MNAA Answer, at 32. MNAA also there referred to, relied on 

' On those nanow issues, MNAA purported to provide evidence that Olynqnc was certified in both Maryland and 

Tennessee at the time of the RFP submission, yet the only material submitted relating to Maryland was not a DBE 

certification but an affidavit of only one owner of 01ynq>ic seeking DBE status in January 2006, and the form itself 

indicates that an affidavit of only one owner is not sufficient See Item 8, Ex. 32, at 3-4. Of course, at the time 

MNAA submitted this affidavit in response to the Complaint, the Maryland Aviation Administration was refusing to 

recognize or count Olympic's participation as an ACDBE in a similar agreement with Hudson at the BaltimoreWashington bitemational Airport See Appeal ^pendix B. Hius, MNAA was either so uninformed as to Olynqpic 

that it was oblivious to the fact that it had lost its home-state status as counting as an ACDBE, or was aware but 

withheld that infixmation from the FAA and J&B in responding to the Conq>laim here. Moteovn, die only 

documoit MNAA submitted relating to Tennessee is not a DBE certification, but what appears to be only an undated 

printout Item 8, Ex. 32, at 5. Thus, the only certification of Olympic as a DBE in the record is that issued by 

MNAA itself. Item 8, Ex. 32, at 1-2. 

8 
and put before the Director as an exhibit the FAA's Joint Venture Guidance. MNAA Answer, at 

31; Item 10 Ex. 33. 

Further, in its statement of facts, MNAA also asserted that its ACDBELO "is responsible 

for ensuring that the Airport's concessions program complies with FAA requirements" and thus, 

among other things, "monitors participation rates and reports those rates to the FAA." MNAA 

Answer, at 6; Item 8 (Gooding Affidavit) (emphasis added). The Answer then asserts that "[t]he 

concessions covered by a master concession lease with Hudson, which are at issue here, also 

exceeded MNAA's goal of 15.7% ACDBE participation" because "[i]n FY 2008, 17% of gross 

receipts of Hudson's News and Gift retail concessions were attributed to DBEs." MNAA 

Answer, at 6 (emphasis added). 

Thus, the Complaint and MNAA's Answer and Motion to Dismiss squarely put at issue 

the viability of the Hudson-Olympic partnership in the joint venture under the ACDBE 

regulations and the FAA's Joint Venture Guidance. MNAA's answer specifically put at issue 

the propriety of MNAA's assessment of the viability of that partnership at the time of the RFP, 

its ongoing monitoring of the joint venture, its attribution of 17% of the gross receipts of the joint 

venture as ACDBE participation and its reporting of that rate of ACDBE participation to die 

FAA. Having responded to the C(»nplaint with these asserted facts and arguments regarding die 

validity of the Hudson-Olympic partnership and how that joint venture should be counted for 

ACDBE participation, MNAA cannot now claim diat these same issues are "new" or are raised 

for the first time on appeal. 

Finally, the Director's Determination ("DD") considered the issue broadly, as the parties 

had fiiamed the issue. It recognized that "[t]he Complainant alleges that AMS-Olympic 

Nashville, a Joint Venture (the Hudson Group)...failed to meet the 15.7 percent contract goal 

that was set in the solicitation." DD, at 18. And its formulation of Issue 1 for determination 
encompassed both whether the Joint Venture met the contract concession goal and whether 

MNAA complied with Part 23. Id. Moreover, the DD purported to make specific findings that 

that "Respondent counted the Hudson Group's proposed amount of ACDBE participation (17 

percent) correctly ... and that the Hudson Group met the ACDBE contract goal of 15.7 percent" 

based on evidence indicating that "ACDBE participation of 17 percent was attributed to the joint 

venture participation of Olympic Supply." Id., at 19 (emphasis added). 

What the DD failed to do, and the error identified in the appeal, was to make inquiries 

and findings necessary to conclude that the Hudson-Olympic joint venture satisfied ACDBE 

requisites and goals and, thus, to recognize that the record did not contain evidence to support 

MNAA's contention that it had satisfied its responsibilities in scrutinizing the Hudson-Olympic 

joint venture under the FAA's Joint Venture Guidance. These responsibilities included what 

airports are required to do in reviewing joint venture participation, see Item 10, Ex. 33 at 11-18, 

monitoring ACDBE participation in joint ventures, see Item 10, Ex. 33 at 23-25, and counting 

ACDBE participation in joint venhires. See Item 10, Ex. 33 at 18-23.^ hi short, die DD 

recognized and framed the issue to be determined as the broad question whether MNAA properly 

evaluated the joint venture participation of Olympic Supply but then completely ignored the 

^ See also, e.g., 49 CJ.R. § 23.55: 

How do recipients count ACDBE participation toward goals for items other than car rentals? 

(a) You count only ACDBE participation that results fiom a commerdally usefiil function.... 

(d) When an ACDBE perfnms as a participant in a joint venture, count a portion of the gross receipts equal 

to the distinct, clearly defined portion of Hie work of the concession that the ACDBE performs wiHi its own 

forces toward ACDBE goals. 

(i) If a firm has not been certified as an ACDBE in acc<ndance with the standards in this part, do not count 

the firm's participation toward ACDBE goals. 

(j) Do not count the work performed or gross receipts earned by a firm <^ r its eligibility has been removed 

toward ACDBE goals.... 

(emphasis added). 

10 
requirements and FAA's Joint Venture Guidance in determining that the joint venture properly 

met the ACDBE goals and MNAA properly administered its program. That is the error properly 

identified from die DD and the record and raised on appeal. 

WHEREFORE, Complainant J&B Enterprises, Inc., respectfiilly requests diat-ita Motion 

to Supplement be granted and that MNAA's Motion to Strike be denied. 

Respectfidly submitted, 

Thomas J. Henderson 

Thomas J. Henderson 

Henderson Law Firm, PLLC 

1425 K Street, NW, Suite 350 

Washington, DC 20005 

(202) 587-5687 Telephone 

(202) 587-5601 Facsimile 

Counsel for Complainant 

J&B Enterprises, Inc. 

11 
CERTIFICATE OF SERVICE 

I hereby certify that I have this day served the foregoing Opposition to Respondent's Motion 

For Immediate Stay And An Extension Of Time To File Reply on the following persons at the 

following addresses, by first class mail this 27th day of July, 2009: 

ArtiiurP.Berg 

Kaplan Kirsch & Rockwell LLP 

641 Lexington Ave., Suite 1409 

New York, New York 10022 

Thomas R. Devine 

Kaplan Kirsch & Rockwell LLP 

1001 Connecticut Ave., N.W. 

Suite 800 

Washmgton, D.C. 20036 

Lisa Reynolds 

Kaplan Kirsch & Rockwell LLP 

1675 Broadway, Suite 2300 

Denver, CO 80202 

Robert Watson 

MNAA 

One Termmal Drive, Suite 501 

Nashville, TN 37214 

Thomas J. Henderson 

Thomas J. Henderson 

Counsel for Complainant 

J&B Enterprises, Inc. 

12 
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09/13/2007 11:31 FAX 

121002/011 

UNITED STATES-DEPARTMENT OF TRANSPORT ATTOM. 

FEDERAL AVIAtlON ADMINISTRATION 

WABmNCTON,D.C. 

Lo-Yu-Sun, 

Complainant 

v. 

Port of Seattle 

Respondent 

FAA Docket No. 16-06-13 

ORDER 

On September 14,2006, Complainant (or "Petitioner") Lo-Yu-Sun, through counsel, filed 

a Complaint with the Federal Aviation Administration (FAA) under 14 C.F.R. Part 16 

against the Port of Seatde (Respondent) alleging the Port failed to cairy out the objectives 

of the Airport Concession Disadvantaged Business Enterprise (ACDBE) program imder 

49 C.F.R. § 23.1, and discrimination in violation of 49 CF Jl. § 26.7. 

On October 6,2006, the FAA issued a Notice advising the parties that the Complaint had 

been docketed and that the Respondent Port of Seattle was required to file an answer 

within 20 days. The FAA noted Host International Inc. (Host), was not the Fed^al 

airport sponsor, proprietcnr, or operator, and was not a proper party to a Part 16 case, and 

that the Complainant had not submitted any supporting documentation with his 

Complaint. 

On October 20,2006, Respondent filed a Designation of Persons to Receive Service for 

the Port of Seatde and requested a 60-day extension of time in which to file its Answer. 

On October 26,2006, the FAA granted Respondent's request for an extension of time to 

file the Answer and advised that the Answer would now be diie on December 26,2006, 

On December 18,2006, Complainant filed documents in support of his September 14, 

2006 Complaint. 

On December 22,2006, Complainant filed a Motion to Amend Complaint to Provide 

Additional Infiiraiation Pursuant to 14 C.F.R. § i6.23(g). 
09/13/2007 11:31 FAX 1003/011 

SrRespondent filed its Opposition to Complainant's Motion to. 

Amend Complaint and a Motion for Extension of Time to file its Answer. 

On January 17,2007, the FAA issued an order granting Complainant's Motion to Am«id 

Complaint to Provide Additional Ihfonnation, and providing Respondent Port of Seattle 

with an additional 30 days to file its Answer. 

On Februaiy 15,2007, Respondent filed its Answer, Motion to Dismiss, and a 

Memorandum of Points and Audiorities and Affidavit in Support of its Answer and 

Motion to Dismiss. 

On February 15,2007, Complainant filed a Second Motion to Amend Complaint, an 

Amended Complaint, and four declarations. 

On Febniaty 23,2007, Respondent filed an Opposition to Complainant's Second Motion 

to Amend its Complaint. 

On March 2, 2007, Complainant filed a Reply in Support of Second Motion to Amend 

Complaint and a Declaration. 

On March 7, 2007, Complainant filed his Opposition to Respondent's Motion to Dicnuss. 

On March 8,2007, Respondent filed a Joint Motion to (1) Strike Complainant's 

Unauthorized Reply to Respondent's Opposition to Complainant's Second Motion to 

Amend the Complaint; (2) Strike Complainant's Untimely Opposition to the Port's 

Motion to Dismiss; and (3) Bar Complainant firom Submitting an Untimely Reply to 

Respondent's Answer to the Complaint. 

Background 

The FAA has before it the following motions: 

• Respondent's Motion to Dismiss the First Amended Complaint 

• Complainant's Second Motion to Amend Complaint 

• Respondaat's Opposition to Complainant's Second Motion to Amend die 

Complaint 

• Complainant's Reply in Support of Second Motion to Amend Complaint and a 

Declaration 

• Complainant's Opposition to Respondent's Motion to Dismiss Fiist Amended 

Complaint 

• Respondent's Motion to Strike Complainant's Unauthorized Reply to 

Respondent's Opposition to Con^jlainant's Second Motion to Amend Complaint 

• Respondent's Motion to Strike Complainant's Untimely Opposition to the Port's 

Motion to Dismiss First Amended Complaint, and 

• Respondent's Motion to Bar Complainant fi-om Submitting an Untimely R«ply to 

Respondent's Answer to die First Amended Complaint. 
09/13/2007 11 32 FAX 

li|004/011 

Complainant's Second Motion to Amend Complaint' 

In this Motion, Complainant requests the FAA to replace the name of the Complainant as 

an individual, "Lo-Yu-Sua," wifli the Washington cotporation, "Sun's inc." Complainant 

now advises that "Sun's Inc.," rather than "Lo-Yu-Sun," is certified as an Airport 

Concessionaire Disadvantaged Business Enterprise (ACDBE). 

To support his request. Complainant states that the two airport concessions discussed in 

the Complaint - China First Express and Manchu Wok - are/Vere operated by Sun's Inc., 

the certified ACDBE. Complainant advises that on January 5,2006, he transfciTed his 40 

percent ownership interest in Sun's Inc. to a Mr. Yu (who is now the 100 percent 

shareholder), but that he serves as vice president and general manager of Sim's Inc. 

Complainant states that the Complaint was brought under his name as an individual 

ratlier than Sun's Inc. because his attorney who filed his Complaint was not aware of the 

change of ownership stmcture, or that Complainant no longer had any ownership interest. 

Complainant indicates that the ownership issue was not brought to his attention - and 

hence his attorney's attention - until on or about February 7,2007, when a review of 

Sxm's Inc's ownership strucmre by the State of Washington's Office of Minority and 

Women's Business Enterprises (OMWBE) brought out the fact that the company's 

ownership had changed. Complainant advises that the Complaint was brou^t under bis 

came as an individual because his position and duties as vice president and general 

manager had not changed after January 5,2006, and he did not realize that a more 

specific reference to him as the minority owner or part owner was needed. 

Complainant's cotmsei in a Declaration states that he had not previously been awaie diat 

Complainant only owned a minority 40 percent imerest in Sun's Inc., and that it was not 

until January 31,2007 diat he teamed fi-om Mr. Sun that Sun was not the sole owner of 

Sun's Inc. and that Sun had transferred his 40 percent iiiterest to Mr. Yu. 

Complainant urges the FAA to pennit him to file a second amended complaint in the 

name of Sun's Inc., arguing that: (1) the Director has discretion to accept the amended 

complaint under 14 C.F.R. 16.11(a); there would be no prejudice to Respondent; (2) case 

law, legislative history, and similar rules of practice support acceptance of an amended 

* The FAA already provided Conq>lauiant with one opportunity to amend his Complaint. On 

October 6,2006, die FAA placed Complainant on notice that his Conq>l8int lacked any 

supporting documentation, that Fait 16 required that pleadings be accornpanied by supporting 

documentation upon which the parties rely, and that die Complainant has the burden of proof to 

establish his Complaint. Over diree months later, on December 18,2006, Complainant filed 

documents in support of its September 14,2006 Complaint. On December 22, 2006, 

Complainant filed a Motion to Amend his Complaint. However, pursuant to die FAA'e October 

26,2006 letter, the Respondent's Answer was due on December 26, 2006. In its January 17, 

2007, Order, the FAA advised Complainant that the supporting documentation should have been 

filed widi his September 14, 2006 Complaint and that hia -failUFe to do so has delayed the 

proceeding. Despite Complainant's error, the FAA granted Complainant's first request to amend 

the complaint as necessary or appropriate for a fair and complete hearing of the matter. 
09/13/2007 11 :32 FAX 

glOOS/OII 

-Fn^t^pi^t-mt-m-thfrintflfflirt of faimpwc; C^) smrff FAA nilgs, including Part 16. find their 

genesis in the Federal Rules of Civil Procedure (FRCP), die latter should be highly 

Jfl'tir^'-i"''' tKr-PafiP hn^rrt •< liKffr-aT pntiVy frtwaTf^ ihe, armmdmemt f>f pjyadings: UndCT 

Rule 15 of tiie FRCP, parties may amend their pleadings once as a matter of'course at any 

time before a responsive pleading is served; (4) Respondent has suffered no prejudice. 

Complainant has not acted in bad faith and its Complaint is not fiitile; (5) United States 

Department of Transportation rules (14 C.FJI. 302^) provide that an application maybe 

amended prior to the filing of answers thereto; and since Complainant filed his amended 

complaint prior to Respondent filing its Answer, Respondent has not suliered any 

prejudice. 

In reply, Respondent argues; (1) the Second Motion to Amend Complaint finis to meet 

appropriate legal standards moluding those discussed in Foman v. Davis. 371 U.S. 178 

(1962); (2) the Motion was filed after Respondent filed its Answer; (3) Complainant is 

asking to amend his Complaint more than five months after filing his initial Complaint, 

and that Complainant has had ample time to make this latest change; (4) the fact that 

Complainant's counsel was unaware of the defects in the Complaint is immaterial; the 

Complainant is ultimately responsible for the prosecution of the proceeding; in both 

instances, Complainant has filed both of his motions to amend the Complaint at about the 

same time Respondent's Answer was due; (5) permitting Complainant to amend his 

Complaint yet again would be extremely pr<5judicial to Respondent because (a) it would 

be an undue burden to require it, for a seconid time, to revise its Answer and Motion to 

Dismiss to respond to new facts and allegations (particularly since Respondent based its 

Motion to Dismiss in part on the fact that Mr. Lo-Yu-Sun is not a certified ACDBE), and 

(b) Respondent's legal position has been exposed to Complainant since Complainant has 

already seen Respondent's response to the initial and amended complaints; (6) 

Complainant intentionally lied in a fi'audulent manner in his Complaint and has acted in 

bad faith; (7) Complainant's conduct and representations in this proceeding are 

inconsistent with the Part 23 and Part 26 requirements that the socially and economically 

disadvantaged individual maintain ownership and control over the business; Mr, Sun 

brought the Complaint in his individual capacity as die owner and operator of China First 

Express and Manchu Wok; Respondent has already submitted to FAA extensive 

correspondence concerning matters raised in the Complaint all of which have come fi'om 

or been directed to Mr. Sun; Respondent has no relationship with the actual owner of 

Sun's Inc., Mr. Yu. The latter has not been involved in any recent discussions or 

communications with Respondent regarding China First Express or Manchu Wok, and 

has had no role in this proceeding. 

DKiision 

The FAA hereby grants Complainant's Second Motion to Amend Complaint As 

Complainant asserts, the proper identification of the parties to this proceeding will 

elimmate any waste of time and resources in having to correct the confusion later on, and 

will facilitate the efficiency of the proceeding, 
09/13/2007 11:32 FAX 

iioos/oii 

t|i.u/i»»T.,'<tl-|.» T7A A ppfniifn thm Mfitinn trt Ainf^ri wiTh rp.luctanr.e, in part because Part 1 fi 

is an accelCTated administrative process, intended to expedite substantially the handing 

Moreover, in a January 17,2007 letter, the FAA admonished Complainant that his failure 

to support his September 14,2006 Complaint with supporting documentation, as Part 16 

expressly requires, had already delayed this proceedbg. And as Respondent points out, 

each time that Complainant has requested to amend his Complaint, it has been s^ved on 

or about the day that Respondent's Answer was due. The Complainant, who has now 

filed two motions to amend complaint, is dierefore nlaced on notice that even under 

FRCP 15; "repeated failure to cure deficiencies by amendments previously allowed" 

serves as a ground to deny leave to amend. Foman. 371 U.S. at 182. 

Accordingly, no fiirther motions to amend the complaint will be entertained in this 

proceeding. 

Analysis 

We look to Federal law when deciding the issue of complaint amendment under Part 16 

because that rule contains no specific amendment provision. Federal Law sets a very 

liberal standard for parties to amend complaints, hi fact, outright refusal to grant the 

leave without any justifying reason may constitutes an abuse of discretion and is 

inconsistent with die ^irit of the Federal Rules. Fon?an. 371 U.S. at 182. Rule 15 of die 

FRCP proAfides tiiat a party may amend its complaint once '*as a matter of course" before 

a responsive pleading is served. Subsequently, the '^arty may amend the party's pleading 

only by leave of court or by written consent of the adverse party and leave shall be fieely 

given when justice so requires." Fed. R. Civ, P. 15(a). 

The Supreme Court has interpreted "freely given when justice so requires" to mean that 

"[i]n the absence of any apparent or declared reason - such as undue delay, bad faith or 

dilatory motive on the part of the movant, repeated fidlure to cure deficiencies by 

amendments previously allowed, undue prejudice to the opposing party by virtue of 

allowance of the amendment, futility of the amendment^ etc. - the leave sought should, as 

the rules require, be fireely given." Foman. 371 U.S. at 182. See also PCD Programs. 

Ltd. v. Leiehton. 833 F.2d 183, 185(9*Cir. 1987) (Rule 15'spolicy of favoring 

amendments to pleadings should be applied with "extreme liberality,"). "A liberal, proamendment ethos dominates the intent and judicial construction of Rule 15(a)." 

3 Moore's Federal Practice f 15.14[1] (3d ed. 2003). Two additional factors are 

sometimes used to determine whethor justice requires grantingleave to amend: judicial 

economy and whether a party previously amended a pleading. 3 Moore's Federal 

Practice! 15.15[1] (3d ed. 2003), 

The intent of the rule is '^o assist the disposition of Utigation on the merits of the case 

rather than have pleadings become ends in themselves." Summit Office Fade, hic, y. U.S, 

Steel Corp.. 639 F.2d 1278,1284 (5tb Cir. 1981). hi exercising its discretion, "a court 

must be guided by the undfflying puipose of Rule 15 - to facilitate decision on the merits 

rather than on the pleadings or technicalities." PCD Programs. 833 F.2d at 186. Courte 
09/13/2007 11.-32 F.'tX 

@i 007/011 

6 

" •illDlllll flMfly t;mnt Hl'^M^-fTr^liI jnriffdi^''^^'^l -"'•p;°^i'^»^ ^ V"P^'{; Fe^J?ral Pfj^ctice 

115.14[3] (3d ed. 2003). Also, a motion to make an amendment is to be liberally grMited 

claim. McCartin v. Norton. 674 F.2d 1317,1321 (9di Cir.1982). 

We now turn to die factors used to determine the propriety of a motion fbr leave to 

amend. Undue prejudice, considered by flie courts to be key factor, may result fi»m 

delay by the movant in requesting leave to amend, but the passage of tiirie alone is 

usually not enough to deny leave to amend. Sss PCD Programs. 833 F.2d at 186)( delay 

by itself is insufSclent to justify denial of leavie to amend). In most cases, comts will 

deny leave to amend only if the non-moving party is in fact prejudiced by the delay. 

Prejudice is especially likely to exist if the amendment involves new theories of recovery 

or would require additional discovery. If delay is unduly excessive, however, courts may 

deny leave to amend on that factor alonei Moore's Federal Practice. Tf 15.15[2] 

(Bender/Lexis on-line edition accessed May 24,2007). 

Complainant argues that Respondent would" silffer no prejudice. Re^ondent disagrees, 

arguing it has been prejudiced because it would be burdensome to require it to revise its 

pleadings a second time to respond to new facts and allegations (particularly since 

Respondent based its Motion to Dismiss in part on the fact that Mr. Lo-Yu-Sun is not a 

certified ACDBE); their legal position has been exposed to ComplainantYi.e^ 

Complainant has attempted to amend its pleading after a responsive pleading has been 

served); and Complainant waited too long to file. Under the case law, undue prejudice is 

likely to exist if the amendment involves new theories of recovery or would require 

additional discovery, or if the delay is unduly excessive. 

It is unlikely that Respondent will be required to conduct additional discovery* Also, as a 

result of his jnistake, Complainant will not be seekii^ new theories of recovery. 

Complainant's allegations have not substantially changed and there should be no need for 

"a great deal of additional discovery." Atchinson v. District of Coluin)[;)ia- 73 F.3d 418, 

426 (D.C, Cir. 1996). Moreover, Respondent should not have been surprised by the 

proposed amendment since the subleases are between Respondent's lessee, Host, and 

China First Express and Manchu Wok and Sun's Inc., not Lo-Yu-Sun. Respondent's 

Febmary 15, 2007 Memorandum on Points and Authorities, p. 11, 

In addition, due to the fact that under the rules of Part 16, Complainant would have the 

right to file a new complaint imder the name of "Sun's Inc" if FAA were to deny 

Complainant's Second Motion to Amend and dismiss the complaint in its entii^ety without 

prepudice, any prejudice to Respondent is minimized. 

The Complainant's proposed amendment will not change the factual bases of his claims. 

The Complaint was written as if Lo-Yu-Sun was an ACDBE - the amendment merely 

substitutes the correct party, Sun's Inc. The proposed amendment will not unduly 

increase discovery, delay the proceeding, or suiprise Reqiondent, Youell v. FNU 

Russell. 2007 WL 709041 (D. N.M. 2007), 
09/13/2007 11 32 FAX 

(Hooa/on 

-^^t't'f'-fx^yi-^'Trrrmihft^et^ nnt nnTTirfitiiteJindiif Hflny, pspficially since the matter is qtill in 

the pleadings stage. See Doe v. McMillan. 566 F.2d 713,720 p,C.Cir.l977) (upholding 

"fl deiJi'iU Mf l"?'^'' *•'• "••'••?''^ *'• "i^'* f •p*'" a^iftQg<i>;>Ti anH a rM»w HftfanHflnt more thai)L three 

years after litigation began), cert, denied. 435 U-S. 969 (1978); Jones v, Childers. 18 F,3d 

899,909 (11"* Cir. 1994)(court found undue delay whai plaintiff motioned to add 

affirmative defenses four years after complaint filed); and DRR- L.L.C. v. Sears. 171 

F.R-D. 162,167-168 (D. Del. I997)(party's delay m moving to amend complaint two and 

one-half years after entry of summary judgment constituted unfair prejudice to opposing 

party). 

Bad faith is defined as "dishonesty of beUef or puipose." Black's Law Dictionary (8th cd. 

2004). A "dilatory" motive is one that tends to cause delay. J^. The Respondents 

describe Mr. Sun's practices as "negligent and dilatory" and allege that he has 

"intentionally lied in a fi-audulent manner." Port of Seattle's Opposition to 

Complainant's Second Motion to Amend Complaint (Feb. 23,2007), p. 4. However, the 

record reveals only neghgence on Mr. Sun's part. As Mr. Sun argues, it has been readily 

apparent diat his claim concerns the entity certified as the ACDBE. Moreover, 

Respondent Port acknowledges that the subleases between Complainant and Host 

International, Inc, were written as between "Sun's Inc." and Host, and not "Lo-Yu-Sun" 

and Host. So the Port was at least on notice tiiat die ACDBE was "Sun's hic" (or "Sun's 

Inc. d/b/a China First Restaurants") and not "Lo>Yu-Sun." Respondent's February 15, 

2007 Memorandum on Points and Authorities, p. 11. 

Concerning repeatedfailure to cure deficiencies by amendments previously allowed, this 

is a factor occasionally used by the courts when considering denial of a motion for leave 

to amend. The case law indicates that a court's discretion over amendments is especiallybroad "where the court has already given a plaintiff one or niore opportututies to amend 

his complaint." DCDLfrograms, 833 F.2d at 186, n, 3. citipg Mir v. Fosburg. 646 F.2d 

342,347 (9* Cir. 1980). Here, while Complainant has moved for a second op3x>rtunity to 

amend his complaint, the FAA does not view this fact as enough to outweigh the benefit 

to this proceeding of having identification of the parties corrected early on during the 

pleadings stage. Also, if the FAA were to deny Complainant's Second Motion to 

Amend, under the rules of Part 16 and dismiss'the complaint in its entirety without 

prejudice. Complainant would have the right to file a new complaint under the name of 

"Sun's tic," Requiring Complainant to refile would fiirther delay this proceeding and 

waste FAA's limited resources. 

Concerning iiitility, courts will generally not grant leave to amend where the amendment 

merely restates the same facts as the original complaint in different terms, rea.<i8erts a 

claim on which the court previously ruled, fails to state a legal theory, or could not 

withstand a motion to dismiss. Moore's Federal Practice, f 15.15{3] (Bender/Lexis online edition accessed May.24, 2007). The proper party to tibis proceeding is "Sun's Inc" 

ladier dian "Lo-Yu-Sua" It would not be fiitile to permit Complainant to amend its 

Complaint to correct its error in naming the proper party bringing the complaint. 

Complainant is not simply restating the facts in different terms. Nor is he reasserting a 

previously ruled claim or failing to state a legal theory. §§§. Banl^v. Pitt. 928 F,2d 1108, 
09/13/2007 11:33 FAX 

©009/01 1 

1112 f 11*^ Cir. 199lVplaintiff^<hQiiJd hnvp nfynrmnity tn amend wht^n mor e carefiiHy 

drafted complaint might state claim)(overTUled in part on other grounds). 

Concerning judicial economy, courts generally consider how die amendment woii33 

affect the use of judicial resources and die impact on die judicial syatem, Mooie's 

Federal Practice. If 15.15[13 (Bender/Lexis on-line edition accessed May 24,2007)), If 

anything, granting Complainant's Second Motion to Amend Complaint will actually 

expedite these proceedings. As stated before, if the FAA were to deny Complainant's 

Motion and disnuss the complaint in its entirety, it would necessarily be without 

prejudice to refiling. Assuming Complainant would refile, denying Complainant's 

Motion would only delay the disposition on the merits, hi granting Complainant's 

Motion, the FAA finds no prejudice to the administration of Part 16. Moreover, the 

public has an interest in prompt resolution of disputes. 

ACCORDINGLY, it is ordered that: 

Complainant's Second Motion to Amend Complaint is granted. No fiirther motions to 

amend the complaint will be entertained in this proceeding.'' 

Respondent's Motion to Strike Complainant's Unauthorized Reply to Respondent's 

Opposition to Complainant's Second Motion to Amend Complaint and Respondent's 

Motion to Strike Complainant's Untimely Opposition to die Port's Motion to Dismiss 

First Amended Complaint are granted.' 

Responderit's Motion to Dismiss die First Amended Complaint is denied as moot due to 

the admission of the second amended complaint in this proceeding. 

Respondent's Motion to Bar Complainant fi-om Submitting an Untimely Reply to 

Respondent's Answer to the First Amended Complaint is denied as moot due to the 

admission of the.second amended complaint in this proceeding. 

^ la pangrapb 6.2 of the second amencled con^laint imder "Prayer For Kelief' Coo^laiDant requests 

damages for ita rea«onable expenses and losses. The FAA is noi authorized to award ntonetary damages 

lutider Part 16. Relief under Part {6 is limited to oiden of oompliance punuaot to section 16.109(a). 

^ ComplainaDt's "reply" of March 2,2007, in suppoTt of its second Tiiotion to axoead die-con^laint was an 

unauthorized pleading. Section 16.19 penrdts a modon and an answer to die motion. It does notpemot a 

reply. Complainant's March 7,2007, opposition to Respondent's February IS, 2007, Motion to Dismiss 

First Aiijended Complaint was ttntiniely. Under secdOd 16.1 S>(c) an sjMwer to a motion must be tiled within 

10 days, Even adding an additionBl 3 days under the mail nilc under 16.n(c), Coiz^lainant's response to 

the motion to diuniss •wta uatiinely. Further, Complainant did not provide any explanation for the untimely 

filing and the record provides nime. 
08/13/2007 11:33 FAX ^,,^^^^, 

9 

r.npont3cTit tr "y^i " - " •'"'•"'•^ t^ t^*- '^•^^nA omMidpd nnmplaint. with a motion to : _ 

dismiss if appropriate, within 30 days of die service date of this order. Thereafter 

Complainant may file a Reply and Respondent a Rebuttal pursuant to die time periods in 

14 C.F.R, § 16.23(e), (£). No otiier pleadings will be accepted from either party in this 

proceeding unless requested by the FAA. 

O^A^ SEP 1 2 2X37 

David L. Bennett 

Director, Office of Airport Safety 

and Standards^ 

" The FAA's Oflice for Civil Rights has authority to adjudicate and issue decisions in cases involving civU 

rights allegations filed under 14 CFR Part 16, such as this case. .On Fe^niaiy 22,2002, the Director of tibe 

Office of Airport Safety and Standards delegated to the Deputy Assistant Administrator for Civil Rights the 

authority to prepare and issue director's deteimmatlans pursuant to 14 CFR Part 16 On Jaavaiy 17,2007. 

the Deputy .Assistant Administrator for Civil Rights issued the first orda ia this case grantii^ the first 

motion to amend complaint. Since that time the position of the Deputy Assistant Admiaistrator for O'vil 

Rights has become vacant without an acting official. In the interim the Director, Office of S«£!ty and 

Standards shall act as ibe decision maker. 
09/13/2007 11:33 FAX HOII/OI I 

10 

CERTIFTQTr n v fippvrry. 

I HEREBY CERTIFY diat on September (o ^ , 2007.1 caused to be placed in the 

United States mail (first class, postage paid) or personally delivered a true copy of the 

foregoing doctiment address to: 

Mr. Rodney L. Umberjger, Jr. 

Ms. Claire J. Hur 

Williams, Kasmer & Gibbs, PLLC 

601 Union Street, Suite 4100 

Seattle, WA 98101-2380 

Fax (206) 628-6611 

Mr. Craig R. Watson 

General Counsel 

Port of Seattle 

P.O. Box 1209 

Seattle, WA 98111-1209 

Mr. Arthur P. Berg 

Mr. Daniel S. Reimer 

Kaplan, Kirsch & Rockwell LLP 

730 Fifth Avenue, Suite 900 

New York, NY 10019 

Fax (646) 514-5440 

FAA Part 16 Airport Proceedings Docket (AGC-610) 

Of&ce of Civil Rights, ACR-4 

Shaiice TCeJeffersOTT'^^ , ^ 

Airports and Environmental Law Division 

Office of die Chief Counsel i 

IM