MURPHY, HESSE, TOOMEY & LEHANE, LLP 

Attorneys At Law 

CROWN COLONY PLAZA 

300 CROWN COLONY DRIVE 

SUITE 410 

QUINCY, MA 02169 

75-101 FEDERAL STREET 

BOSTON, MA 02110 

ONE MONARCH PLACE 

SUITE 1310R 

SPRINGFIELD, MA 01144 

TEL: 617-479-5000 FAX: 617-479-6469 

TOLL FREE: 888-841-4850 

W\VW.mhtl.com 

Please respond to Quincy 

VIA OVERNIGHT MAIL 

AND EMAIL (9-AWA-AGC-Part-16@faa.gov) 

Office of the Chief Counsel 

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 

Bryan R. 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 

Ann M. O'Neill, Senior Counsel 

RECEIVED 

JUN 1 5 2016 

PART 16 DOCKETS 

Re: Part 16 Complaint: Boston Executive Helicopters v. Town of Norwood, 

Massachusetts and Norwood Airport Commission; Docket No. 16-15-05 

Respondent's Motion for Leave to File a Supplemental Rebuttal 

Dear Sir or Madam: 

Pursuant to 14 C.F.R. § 16.19, the Respondents in the 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 

1 For purposes of consistency, the Respondents continue the sequence of exhibit numbering from 

their previously filed Answer and Rebuttal. 
MURPHY, HESSE, TOOMEY & LEHANE, LLP 

Attorneys At Law 

Office of the Chief Counsel 

Attention: FAA Part 16 Docket Clerk AGC-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 seek to further address an issue relevant to 

the above-referenced Part 16 Complaint: the litigious and adversarial conduct of the 

Complainant, Boston Executive Helicopters, LLC ("BEH"). BEH's aforesaid conduct has 

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 in Exhibits 142 through 144, BEH has maintained 

three (3) separate lawsuits in Massachusetts federal and state courts arising out of the issues 

encompassed in the above-referenced Part 16 Complaint. Two (2) of these lawsuits were 

directly filed against the Respondents - one of which was filed in October 2015, months after the 

above-referenced Part 16 Complaint was docketed. While the Respondents were not named as 

defendants in BEH's third lawsuit, in April 2016, BEH nonetheless served eleven (11) separate 

subpoenas upon Norwood Memorial Airport officials and their undersigned attorney, seeking to 

compel production of various "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 of the Respondents' responses to BEH, as well as the 

reasonableness of the requirements imposed by the Respondents in connection with the fixedbase operator ("FBO") commercial permit and lease sought by BEH. 

B. Supplemental Rebuttal 

While an airport business has a "right to pursue complainants and lawsuits to protect [its] 

interest," the FAA has recognized that it has the "right to protect itself from the possibility of 

future costly and frivolous litigation." Jacquelin R. Ashton & Kent J. Ashton v. City of Concord, 

N.C., FAA Docket No. 16-02-01 (Director's Determination, August 22, 2003). Stated otherwise, 

an airport sponsor is permitted to safeguard itself from litigation risk and future litigation. See 

FlightLine Aviation, Inc. v. City of Shreveport through Shreveport Airport Authority, FAA 

Docket. No. 16-07-05 (Director's Determination, March 7, 2008); Glyn Johnson d/b/a Zoo City 

Skydivers v. Yazoo County & Yazoo County Port Commission, FAA Docket No. 16-04-06 

(Director's Determination, February 9, 2006). 

For example, in Jacquelin R. Ashton, one of the complainants had a past history of 

litigation and FAA complaints, and threatened future litigation. See FAA Docket No. 16-02-01 

(Director's Determination, August 22, 2003). The respondent city in that matter declined to 
MURPHY, HESSE, TOOMEY & LEHANE, LLP 

Attorneys At Law 

Office of the Chief Counsel 

Attention: FAA Part 16 Docket Clerk AGC-600 

Federal Aviation Administration 

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 "very prudent business decision" - because it was 

undisputed that the complainant expected to continue with unjustified complaints against the 

respondent city. See id. The reasoning of the respondent city was "that less contact with the 

Complainants should result in less litigation"; the FAA in turn concluded that 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 with the complainant to lease space at an airport was reasonable 

and consistent with FAA Order 5 l 90.6A. See id. 

As explained in detail in their Answer and Rebuttal, the Respondents have acted in 

accordance with the FAA's Grant Assurances and applicable federal, state and local 

requirements - with a clear intent of protecting the welfare and safety of the users of the 

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 Motion to Dismiss in the matter of Boston 

Executive Helicopters, LLC v. Maguire, Norfolk Superior Court Civil Action No. 

1482CV01591, a lawsuit that BEH filed in November 2014 against the Town of Norwood, 

Norwood Airport Manager, Assistant Norwood Airport Manager, Norwood General Manager, 

various Norwood Airport Commissioner Members, Norwood Airport Commission, Norwood 

Town Clerk, Norwood Airport Commission Recording Secretary, and Norwood Memorial 

Airport. This lawsuit arose out of what amounted to hundreds of categories of requests that BEH 

served upon various Town of Norwood officials during November 2014, in which BEH sought a 

substantial volume of documents and other records over multi-year periods, purportedly under 

the Massachusetts Public Records Law ("Public Records Lawsuit"). 

BEH' s public records requests were overbroad in time and scope, among other defects. 

Compliance with these public records requests would have essentially paralyzed the operations 

of the Town ofNorwood and the Airport, given the substantial time, effort and cost entailed in 

searching for, redacting, and producing paper 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, limited to two (2) members of the Norwood 

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 of emails and electronic documents from over 2,100 separate files for 

only three (3) individuals over a two (2) year period, using search terms specific to BEH and 
MURPHY, HESSE, TOOMEY & LEHANE, LLP 

Attorneys At Law 

Office of the Chief Counsel 

Attention: FAA Part 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 in fact has signaled its intent to continue to litigate it - and therefore this lawsuit remains 

ongoing. 

Exhibit 14 3 contains the Complaint, Amended Complaint, and Motions to Dismiss the 

Amended Complaint in the matter of Boston Executive Helicopters, LLC v. Maguire, Norfolk 

Superior Court Civil Action No. 1582CV01280/United States District Court for Massachusetts 

Civil Action No. l:15-cv-13647-RGS. The named defendants also had previously served 

Motions to Dismiss the Complaint, which were rendered moot by the Amended Complaint that 

BEH subsequently filed. This lawsuit was originally filed in state court in October 2015, and 

then removed to federal court on the basis of federal question jurisdiction ("Federal Lawsuit"). 

In the Federal Lawsuit, BEH seeks injunctive relief, declaratory relief, and alleged 

damages in excess of $2. 7 million. The gravamen of BEH' 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 remain pending. 

Finally, Exhibit 144 contains copies of eleven (11) subpoenas that BEH served in 

connection with the matter of Boston Executive Helicopters v. FlightLevel Norwood, LLC, 

Norfolk Superior Court Civil Action No. 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"). 

Neither the Respondents nor any Town of Norwood officials are parties to the 

BEH/FlightLevel Lawsuit. Yet, in April 2016, BEH served a total of approximately eleven (11) 

subpoenas, seeking production of dozens of categories 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 of Records 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 of categories of paper and electronic "documents" in the separate lawsuit it filed 

against FlightLevel Norwood, LLC. Given the number of respondents and time period entailed, 

it is a reasonable estimate that the response to these documents subpoenas will easily surpass the 

results from the Public Records Lawsuit, in terms of time, volume of documents reviewed, 

redacted and produced, and cost. 
MURPHY, HESSE, TOOMEY & LEHANE, LLP 

Attorneys At Law 

Office of the Chief Counsel 

Attention: FAA Part 16 Docket Clerk AGC-600 

Federal Aviation Administration 

June 13, 2016 

Page 5 

Respondents' undersigned attorney. Other than the Keeper of Records of the 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 relief with the Norfolk Superior Court - which BEH 

opposed and is currently pending - while the remaining deponents objected under the 

Massachusetts Rules of Civil Procedure. Compliance with these subpoenas - in a lawsuit 

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

would require the Norwood Airport Commission Members, 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 a relevant issue in the above-referenced 

Part 16 Complaint, and demonstrates that the Respondents' conduct has been reasonable and in 

an effort to protect the Respondents from unnecessary litigation and the financial risk presented 

by BEH. Consequently, for the reasons stated herein, and in the 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 in this matter. 
MURPHY, HESSE, TOOMEY & LEHANE, LLP 

Attorneys At Law 

Office of the Chief Counsel 

Attention: FAA Part 16 Docket Clerk AGC-600 

Federal Aviation Administration 

June 13, 2016 

Page 6 

CERTIFICATE OF SERVICE 

I, Brandon H. Moss, counsel to the Respondents, Town of Norwood, Massachusetts and 

Norwood Airport Commission in Boston Executive Helicopters, LLC v. Town of Norwood, 

Massachusetts and Norwood Airport Commission, FAA Docket No. 16-15-05, hereby certify 

that on this 13th day of June 2016, a copy of the 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 of the Chief Counsel 

Attention: FAA Part 16 Airport Docket Clerk AGC-600 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

9-AWA-AGC-Part-16@faa.gov 

929741vl 

Brandon H. Moss