MURPHY, HESSE, TOOMEY & LEHANE, LLP Attorneys AtLaw

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### Please respondto Quincy

VIA OVERNIGHT MAIL AND EMAIL (9-AWA-AGC-Part-16@faa.gov) Office ofthe ChiefCounsel Attention: FAA Part 16 Docket Clerk AGC-600 Federal Aviation Administration 800 Independence Ave., S.W. Washington, D.C. 20591 Aithur P. Murphy James A. Toomey Katherine A. Hesse Michael C. Lehane John P. Flynn Regina Williams Tate Edward F. Lenox, Jr. Mary Ellen So\.V)'rda David A. DeLuca Donald L Graham Andrew 1. Waugh Geoffrey P. Wermuth Katlnyn M. Murphy Alisia St. Florian Thomas W. Colomb Brandon H. Moss Kevin F. Bresnahan

June 13, 2016 Doris R. MacKenzie Ehrens Jean E. Zeiler Clifford R. Rhodes, Jr. Karis L. North BryanR. Le Blanc ]\i[ichael J. Maccaro Brian P. Fox Lauren C. Galvin Tami L. Fay Kier B. Wachterhauser Sarah A. Catignani Lena-Kate Ahern Felicia S. Vasudevan
AnnM. O'Neill, Senior Counsel



## RECEIVED JUN 1

## 52016 PART 16 DOCKETS



### Re: Part16 Complaint: Boston ExecutiveHelicopters v. Town of Norwood, Massachusetts andNorwoodAirport Commission; DocketNo. 16-15-05 Respondent'sMotion for Leave to File aSupplementalRebuttal Dear Sir or Madam:
Pursuant to 14 C.F.R. 

### § 16.19, the Respondents inthe above-referenced matter, the Town ofNorwood, Massachusetts and the Norwood Airport Commission (collectively, "Respondents"), respectfully move the Federal Aviation Administration ("FAA"), for leave to file a Supplemental Rebuttal in connection with the above-referenced Part 16 Complaint. If leave is granted, the Respondents' Supplemental Rebuttal is set forth below, along with Respondents' Exhibits 142 through 144. 1

1For purposes ofconsistency, the Respondents continue the sequence ofexhibit numbering from their previously filed Answer and Rebuttal.MURPHY, HESSE, TOOMEY & LEHANE, LLP Attorneys At Law Office ofthe ChiefCounsel Attention: FAA Part 16 Docket ClerkAGC-600 Federal Aviation Administration June 13, 2016 Page 2

A. Respondents' Motion for Leave to File a Supplemental Rebuttal The Respondents state that good cause exists for this Motion for Leave to File a Supplemental Rebuttal. To that end, the Respondents seekto further address an issue relevant to the above-referenced Part 16 Complaint: the litigious and adversarial conduct ofthe Complainant, Boston Executive Helicopters, LLC ("BEH"). BEH's aforesaid conducthas continued

- and, indeed has been exacerbated

- while the above-referenced Part 16 Complaint remains pending review by the FAA. As discussed below and as reflected inExhibits 142 through 144, BEH has maintained three (3) separate lawsuits inMassachusetts federal and state courts arising out ofthe issues encompassed in the above-referenced Part 16 Complaint. Two (2) ofthese lawsuits were directly filed againstthe Respondents

- one ofwhich was filed in October 2015, months after the above-referenced Part 16 Complaint was docketed. While the Respondents were notnamed as defendants in BEH'sthird lawsuit, inApril 2016, BEH nonetheless served eleven (11) separate subpoenas upon Norwood Memorial Airport officials and their undersigned attorney, seekingto compel production ofvarious "documents" and deposition testimony. BEH's conduct in connection with these three (3) lawsuits reflects BEH's litigious and adversarial nature, and the corresponding litigation risk emanating from BEH. Moreover, BEH's conduct only confirms the reasonableness ofthe Respondents' responses to BEH, as well as the reasonableness ofthe requirements imposed by the Respondents in connection withthe fixedbase operator ("FBO") commercial permit and lease sought by BEH. B. Supplemental Rebuttal While an airport business has a "rightto pursue complainants and lawsuits to protect [its] interest," the FAAhas recognized that it has the "rightto protect itselffrom the possibility of future costly and frivolous litigation." Jacquelin R. Ashton & Kent J. Ashton v. City ofConcord, N.C., FAADocketNo. 16-02-01 (Director's Determination, August 22, 2003). Stated otherwise, an airport sponsor is permittedto safeguard itselffrom litigationrisk and future litigation. See FlightLine Aviation, Inc. v. City ofShreveportthrough Shreveport Airport Authority, FAA Docket. No. 16-07-05 (Director's Determination, March 7, 2008); Glyn Johnson d/b/aZoo City Skydivers v. Yazoo County & Yazoo County Port Commission, FAA DocketNo. 16-04-06 (Director's Determination, February 9, 2006).
For example, in Jacquelin R. Ashton, one ofthe complainants had a past history of litigation and FAA complaints, and threatened future litigation. See FAA DocketNo. 16-02-01 (Director's Determination, August 22, 2003). The respondent city inthat matter declined toMURPHY, HESSE, TOOMEY & LEHANE, LLP Attorneys At Law Office ofthe ChiefCounsel Attention: FAA Part 16 Docket Clerk AGC-600 Federal AviationAdministration June 13, 2016 Page 3

lease space at the airport to the complainant or anyone associated with the complainant

- which the respondent city characterized as a "veryprudent business decision"

- because it was undisputed thatthe complainant expected to continue with unjustified complaints against the respondent city. See id. The reasoning ofthe respondent city was "that less contact with the Complainants should result in less litigation"; the FAAinturn concludedthat such a conclusion was "not unreasonable." See id. The FAA also held that the respondent city's decision not to engage in a business agreement withthe complainant to lease space at an airport was reasonable and consistent with FAA Order 5 l90.6A. See id. As explained in detail intheir Answer and Rebuttal, the Respondents have acted in accordance withthe FAA's Grant Assurances and applicable federal, state and local requirements

- with a clear intent ofprotecting the welfare and safety ofthe users ofthe Norwood Memorial Airport ("Airport"). By contrast, BEH has engaged in unjustified dilatory, adversarial and litigious conduct

- which continues to date. Exhibit 142 contains the Complaint and Motionto Dismiss inthe matter ofBoston Executive Helicopters, LLC v. Maguire, Norfolk Superior Court Civil ActionNo. 1482CV01591, a lawsuit that BEH filed inNovember 2014 against the Town ofNorwood, Norwood Airport Manager, Assistant Norwood AirportManager, Norwood General Manager, various NorwoodAirport Commissioner Members, Norwood Airport Commission, Norwood Town Clerk, Norwood Airport CommissionRecording Secretary, and Norwood Memorial Airport. This lawsuit arose out ofwhat amounted to hundreds ofcategories ofrequests that BEH servedupon various Town ofNorwood officials during November 2014, in which BEH sought a substantial volume ofdocuments and otherrecords over multi-year periods, purportedly under the Massachusetts Public Records Law ("Public Records Lawsuit"). BEH's public records requests were overbroad intime and scope, among other defects. Compliance withthese public records requests wouldhave essentiallyparalyzed the operations ofthe Town ofNorwood and the Airport, given the substantial time, effort and cost entailed in searching for, redacting, and producingpaper records, electronic records, and other miscellaneous records. Following a directive by the Norfolk Superior Court, the scope ofBEH's public records requests was substantially narrowed and curtailed, limitedto two (2) members oftheNorwood Airport Commission and the Airport Manager, for an approximate two (2) year period. Responsive electronic records were produced to BEH in September 2015

- amounting to approximately 7,169 pages ofemails and electronic documents from over2,100 separate files for only three (3) individuals over atwo (2) yearperiod, using searchterms specific to BEH andMURPHY, HESSE, TOOMEY & LEHANE, LLP Attorneys At Law Office ofthe ChiefCounsel Attention: FAAPart 16 Docket Clerk AGC-600 Federal Aviation Administration June 13, 2016 Page 4
Christopher Donovan.2 However, BEH has declined to dismiss the Public Records Lawsuit

- and infact has signaled its intentto continue to litigate it

- andtherefore this lawsuit remains ongoing. Exhibit 143 contains the Complaint, Amended Complaint, and Motions to Dismiss the Amended Complaint inthe matter ofBoston Executive Helicopters, LLC v. Maguire, Norfolk Superior Court Civil ActionNo. 1582CV01280/United States District Court for Massachusetts Civil ActionNo. l:15-cv-13647-RGS. The named defendants also had previously served Motions to Dismissthe Complaint, which were rendered moot bythe Amended Complaint that BEH subsequently filed. This lawsuit was originally filed in state court in October 2015, and thenremoved to federal court onthe basis offederal questionjurisdiction ("Federal Lawsuit"). Inthe Federal Lawsuit, BEH seeks injunctive relief, declaratory relief, and alleged damages in excess of$2.7 million. The gravamen ofBEH's claims involve its alleged actions to establish an FBO business at the Airport and alleged treatment towards BEH. The various defendants deny BEH's claims and have filed Motions to Dismiss the Amended Complaint, which remainpending. Finally, Exhibit 144 contains copies ofeleven (11) subpoenas that BEH served in connection withthe matter ofBoston Executive Helicopters v. FlightLevel Norwood, LLC, Norfolk Superior Court Civil ActionNo. 1582CV00213. This lawsuit includes claims relating to a property dispute between BEH and the incumbent FBO, FlightLevel Norwood, LLC, as well as antitrust claims that BEH asserted against FlightLevel Norwood, LLC ("BEH/FlightLevel Lawsuit"). Neitherthe Respondents nor any Town ofNorwood officials are parties to the BEH/FlightLevel Lawsuit. Yet, in April 2016, BEH served a total ofapproximately eleven (11) subpoenas, seeking production ofdozens ofcategories of"documents" in paper and electronic format from the deponents and live deposition testimony.
In the BEH/FlightLevel Lawsuit, subpoenas were served upon the Keeper ofRecords of the Airport, the Airport Manager, three (3) Norwood Airport Commission Members, and the

2 As noted below, BEH has served six (6) subpoenas upon various Airport officials, seeking a multitude ofcategories ofpaper and electronic "documents" in the separate lawsuit itfiled against FlightLevel Norwood, LLC. Giventhe number ofrespondents and time period entailed, it is a reasonable estimate thatthe response to these documents subpoenas will easily surpass the results from the Public Records Lawsuit, interms oftime, volume ofdocuments reviewed, redacted and produced, and cost.MURPHY, HESSE, TOOMEY & LEHANE, LLP Attorneys At Law Office ofthe ChiefCounsel Attention: FAA Part 16 Docket Clerk AGC-600 Federal Aviation Administration June 13, 2016 Page 5
Respondents' undersigned attorney. Otherthan the Keeper ofRecords ofthe Airport, for which only "documents" were sought, every other deponent was required to produce "documents" and to appear at a deposition conducted by BEH to provide testimony. The Respondents' undersigned attorney filed a motion for reliefwith the Norfolk Superior Court

- which BEH opposed and is currently pending

- while the remaining deponents objected under the Massachusetts Rules ofCivil Procedure. Compliance withthese subpoenas

- in a lawsuit involving a private dispute between BEH and FlightLevel Norwood, LLC, among other parties

- wouldrequire the Norwood Airport CommissionMembers, Airport Manager, and their attorney, to incur substantial cost and effort to produce requested records and to appear at depositions. BEH's litigious and adversarial conduct is thus arelevant issue inthe above-referenced Part 16 Complaint, and demonstrates thatthe Respondents' conducthas been reasonable and in an effortto protectthe Respondents from unnecessary litigation and the financial risk presented by BEH. Consequently, for the reasons stated herein, and inthe Respondents' Answer and Rebuttal, the Respondents respectfully request that the FAA: (I) dismiss BEH's abovereferenced Part 16 Complaint; (2) decline to investigate BEH's above-referenced Part 16 Complaint; (3) determine that the Respondents have complied with the FAA's Grant Assurances; and (4) take no further action in the above-referenced matter. Thank you for your courtesy inthis matter.MURPHY, HESSE, TOOMEY & LEHANE, LLP Attorneys At Law Office ofthe ChiefCounsel Attention: FAA Part 16 Docket Clerk AGC-600 Federal AviationAdministration June 

### 13, 2016 Page 6

CERTIFICATE OF SERVICE I, BrandonH. Moss, counsel to the Respondents, Town ofNorwood, Massachusetts and Norwood Airport Commission in Boston Executive Helicopters, LLC v. Town ofNorwood, Massachusetts and Norwood Airport Commission, FAA Docket No. 16-15-05, hereby certify that onthis 

### 13th day ofJune 2016, a copy ofthe foregoing document was served via overnight mail and email as follows: Complainant, Boston Executive Helicopters, LLC (one copy): Timothy I. McCulloch, Esquire Hinshaw & Culbertson LLP 2375 East Camelback Road, Suite 750 Phoenix, AZ 85016 TMcCulloch@hinshawlaw.com

FAA Part 16 Airport Proceedings Docket (original and three (3) copies): Office ofthe ChiefCounsel Attention: FAA Part 16 Airport Docket Clerk AGC-600 Federal AviationAdministration 800 Independence Avenue, S.W. Washington, D.C. 20591 9-AWA-AGC-Part-16@faa.gov

929741vl Brandon H. Moss