UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

J&B ENTERPRISES, INC., 

d/b/a/ RHYTHM SHINE, 

Complainant, 

METROPOLITAN NASHVILLE AIRPORT 

AUTHORITY, 

Respondent. 

Docket No.: 16-08-07 

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COMPLAINANT'S RESPONSE TO RESPONDENT'S MOTION 

TO SUPPLEMENT THE RECORD ON APPEAL 

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

"J&B"), by its counsel, hereby responds to the motion of Respondent, Metropolitan Nashville 

Airport Authority ("MNAA") to supplement the record on appeal. 

1. In considering MNAA's Motion the Assistant Administrator should be aware that the 

materials not previously a part of the record that it seeks to admit are largely irrelevant to the 

issues presented in this appeal: 1) whether MNAA discriminated against J&B in administering 

its shoeshine concession, including by retaliating against J&B after it complained that MNAA 

was violating ACDBE regulations by failing to make good on its promise to restore J&B's direct 

concession; 2) whether the record contains evidence that MNAA undertook the analyses required 

to determine whether the Hudson Group actually satisfied FAA joint venture requirements 

necessary to support the Director's Determination that the Hudson Group met Respondent's 

ACDBE goal; and 3) whether MNAA's conduct was contrary to the administrative, general and 

compliance requirements of 49 C.F.R. Parts 23 and 26 and Federal Grant Assurances Nos. 30 

and 37. 
2. To the extent the proposed supplemental material has relevance, it does not support 

MNAA's position. Instead, examination of the RFPs reinforces MNAA's admission and the 

uncontradicted evidence that it retaliated against J&B. Not only did MNAA terminate J&B's 

concession and put it out to bid, but in issuing the RFP MNAA changed the terms of the 

concession from what it previously had agreed with J&B would be terms of the direct 

concession. Thus, the RFP followed and was a result of MNAA's primary act of retaliation—its 

decision to terminate the existing direct concession agreement and to refiise to actually enter into 

the agreed-upon continued direct concession agreement with J&B. But in formulating the RFP, 

MNAA did not simply offer J&B the same opportunity for that direct concession through a 

competitive bid; instead, MNAA changed and worsened the terms of proposed shoe shine 

concession m the RFP. The RFP specified different and less desirable locations than those 

agreed to with J&B, provided smaller space than agreed to with J&B, and not only eliminated the 

financial assistance in building out the space it had promised J&B, but imposed substantial 

upfront financial barriers to operating the concession. Ramsey Affidavit at Tjf 7, 8; Declaration 

of James Druett at ^I 4 & exhibits (attached). And MNAA refiised to alter these new and 

worsened terms for the concession in the RFP even after J&B identified them for MNAA in the 

first RFP. Ramsey Affidavit at Iff 7-9; Druett Declaration at ^ 4, 5. Thus, MNAA's changed and 

worsened terms of the concession in the RFP fiirthered its retaliation against J&B for its April 

15,2008 letter stating that MNAA and Hudson were violating ACDBE regulations and stating its 

intention to file a formal complaint if matters were not resolved. DD Item 10, Ex. 29.' 

' The right to file a complaint, as described in J&B's April 15, 2008 letter, is protected by the FAA's regulations, 

including 49 C.F.R. § 26.109(d). This is not a case in which the alleged retaliation is in response to a dispute over a 

contract matter that is unrelated to any ACDBE regulations. See Waller v. Wichita Airport Authority, FAA Docket 

No. 16-98-13 at 5 Director's Determination issued March 12, 1999 ("Cony)lainant alleges 'apparent retaliation' as a 

result of refusing to do work not included in the Purchase Order," which obviously does not "interfere!] with a right 

or privilege secured by Part 23."). 

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3. Moreover, the affidavit and RFP that MNAA seeks to add to the record fail to supply a 

legitimate basis for the reversal of MNAA's position before the letter of agreeing to enter into a 

direct concession agreement with J&B on agreed-upon terms to its position after the letter of 

terminating its existing concession agreement with J&B, refiising to enter into the agreed-upon 

direct concession and deciding to issue a RFP for that concession on different terms. Ramsey 

Affidavit at *|ff 3, 9. J&B originally won the concession through a competitive process and 

faithfiilly performed on the concession agreement it earned. Druett Declaration at J^ 2-3. The 

record makes clear that the direct concessions retained under MNAA's master plan were not put 

out for RFPs, and that the RFP for J&B's shoe shine concession was targeted at a single 

concessionaire—^an Afiican American-owned ACDBE that had complained that MNAA was 

violating ACDBE regulations in not finalizing a restoration of its direct concession relationship. 

Nor can MNAA's unlawfiil retaliation be justified by a post hoc argument that the retaliation 

may result in more fiuids for MNAA. Ramsey Affidavit at | | 15-19. Discrimination caimot be 

justified because it may be more profitable for the party discriminating. 

4. Finally, if the Assistant Administrator grants MNAA's motion, she also should 

supplement the record with the attached Declaration of James Druett, in order that the record 

reflects both parties' statements regarding the subject matter of the supplementation. 

Respectfiilly submitted. 

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. 
UNITCD STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

Docket No.: 16-08-07 

J&B ENTERPRISES, INC., 

d/b/a/ RHYTHM SHINE, 

Complamant, 

METROPOLITAN NASHVILLE AIRPORT 

AUTHORITY, 

Respondent. 

DECLARATION OF JAMES DRUETT 

I, James Druett, under penahy of perjury, hereby make the following statements based 

upon my personaJ knowledge: 

1. I am an owner of J&B Enteiixises, Inc., d/b/a/ Rhythm Shine (hereafter "J&B"), 

and a competent aduh who is more than 18 years of age. 

2. J&B b^an its shoe shine concession with MNAA at the Nashville Airport by 

successfully submitting a pn^X)sal in response to an RFP in 1992. 

3. In die years after winning the shoe shine c(Micessi<Ma. J&B craisistently pofonned 

its oblig8ti<Mis under Utat concession agreement with MNAA. 

4. The shoe shine CMicession described in die 2009 RFPs issued by MNAA differed 

fiom the terms of the direct concession MNAA agreed to with J&B Enteipiises in late 2007 and 

early 2008 in that die locations were different than those we had agreed tt> with MNAA, die 

locations were smaller in square foet than those to ^i^iich we agreed widi MNAA, and rather than 

MNAA agreeing to advance Ifae cost of building out the space fix' the omcession, the RFP^ 
required the bidder to make an iqvfiront investment of $75.00 per square foot of space. Tlie 

locations and space as m the RFPs are indicated in the attached exhibits. 

5. Aldious^ J&B mfcmned MNAA of diese proUems wifli die RFPs, MNAA did not 

change any of the terms in the RFPs. 

I declare under penalty of peguiy that the foregoing is true and correct 

Dated: Sq)tanberI3,2009 

James Druett 

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CERTIFICATE OF SERVICE 

I hereby certify that I have this day served the foregoing Complainants' Response to 

Respondent's Motion to Supplement the Record on Appeal and the attached Declaration of 

James Druett on the following persons at the following addresses, by first class mail this 14th 

day of September, 2009: 

Arthur P. Berg 

Kaplan JCirsch & 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 

Washington, D.C. 20036 

Lisa Reynolds 

Kaplan Kirsch & Rockwell LLP 

1675 Broadway, Suite 2300 

Denver, CO 80202 

Robert Watson 

MNAA 

One Terminal Drive, Suite 501 

Nashville, TN 37214 

hjThomas J. Henderson 

Counsel for Complainant 

J&B Enterprises, Inc.