Benjamin H. Klein

LAW OFFICES OF PAUL A. LANGE, LLC

80 Ferry Boulevard

Stratford, CT 06615

Phone: (203) 375-7724

Fax: (203) 375-9397

bhk@lopal.com

UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC

Pro-Flight Aviation, Inc.

Complainant,

v. Docket No. 16-15-03

City of Renton, Washington

Respondent.

/

COMPLAINANT’S MOTION FOR LEAVE TO FILE SUR-REBUTTAL TO 

RESPONDENT’S REBUTTAL 

Complainant Pro-Flight Aviation, Inc. (“PFA”), pursuant to 14 C.F.R. § 16.19 and 

§16.23(j), hereby moves for leave to file and files this Sur-rebuttal to the City of Renton, 

Washington’s (“Respondent” or “City”) Rebuttal (“Rebuttal”) to PFA’s Reply to the Answer 

(“Reply”). The Sur-rebuttal is necessary and should be permitted in order to allow PFA to 

address new matters that occurred subsequent to the filing of the Reply; namely, the 

continuing retaliatory measures that Respondent has taken against PFA in response to PFA’s 

filing of the Complaint in this matter. For the foregoing reasons, PFA hereby moves for 

leave to file the brief sur-rebuttal set forth below.
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SUR-REBUTTAL

Respondent Continues to Retaliate Against PFA for Filing the Part 16 Complaint

As discussed in the Reply, Respondent is requiring PFA to submit a new application 

for an Operating Permit to conduct FBO operations at the Airport, despite the fact that PFA 

notified the Airport of its intention to renew before the permit expired on July 31, 2015.

Declaration of Bernard A. Paholke in Support of Reply, dated September 3, 2015 (“Paholke 

Reply Dec.”) ¶ 6, 8. Respondent argues that this punitive action is warranted because the 

Operating Permit imposes a 90 day advance notice requirement for renewal in order to permit 

the Airport the opportunity to “consider any changed conditions” and PFA, admittedly, did 

not provide notice of its intention to renew 90 days in advance. Declaration of Jonathan 

Wilson in Support of Renton’s Rebuttal, dated October 7, 2015 (“Wilson Rebuttal Dec.”) ¶ 2. 

However, instead of merely having PFA wait for 90 days from its notification while 

the Airport contemplates “changed conditions,” Respondent is requiring PFA to submit an 

entirely new application for an Operating Permit, and has stated that the process will take “at 

least” three months and that the outcome is uncertain (i.e., PFA may not be awarded the 

permit). Paholke Reply Dec. ¶ 3. This retaliatory measure serves no legitimate business 

purpose: it appears designed solely to threaten PFA’s business – one that is owned by a 

husband and wife team that has faithfully served the GA users of the Airport for over 20 

years, and has invested millions of dollars in equipment and infrastructure to do so. 

Conveniently, Respondent’s approach also allows it to argue, incorrectly (see Reply, Section 

IV), that PFA no longer has standing to bring the Part 16 Complaint, and thus, that the FAA 

should ignore the very serious allegations contained therein.
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Since the Reply was filed, Respondent has taken its desire to punish PFA to new 

lengths. Now, over two months after PFA submitted its completed Operating Permit 

application, Respondent is requiring it to submit a business plan demonstrating how PFA will 

be able to profitably operate within the boundaries of the 750 Parcel. Declaration of Bernard 

A. Paholke in Support of PFA’s Sur- Rebuttal, dated October 16, 2015 (“Paholke SurRebuttal Dec.”), Ex. A. Respondent justifies this late, burdensome request by stating that the 

“facts and circumstances” have changed since PFA’s original Operating Permit was granted

in 2011 and that the Airport needs more information regarding PFA’s proposed operations. 

Wilson Rebuttal Dec. ¶ 3.

PFA has been operating on the field for over 20 years, its business model and the 

scope of its operations are well known, and its sister company, Renton Gateway Center

always makes its required payments to the City on time; thus, it is hard to understand what 

additional information or proof of profitability Respondent could reasonably require.

Moreover, the Operating Permit application does not call for a business plan, nor was PFA 

required to submit one with its application in 2011. Complaint, Ex. 5 at pg. 20 (Airport 

Leasing Policies). All that is required is a description of the commercial aeronautical 

activities to be performed and the means and methods for providing such, all of which PFA 

submitted with its application. Wilson Rebuttal Dec., Ex. JW Rebuttal 1. 

Additionally, and as further evidence of its violations of Grant Assurance 22,

Respondent has not required others seeking Operating Permits to submit business plans in 

support of their Operating Permit applications. Paholke Sur-Rebuttal Dec. ¶ 3. Upon 

information and belief, Respondent did not require a business plan from Rainier Flight 
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Services (a similarly situated user) when it entered into a lease with Respondent in November 

2014, to provide FBO services from a smaller footprint than that which is occupied by PFA, 

or when it entered into the lease for the 820 Parcel in August 2015.

1 Clearly then, 

Respondent’s stated reason for requiring a business plan in support of its Operating Permit 

application should be disregarded as nothing other than pretext that allows it to punish PFA

for raising questions regarding Respondent’s grant assurance compliance, and for daring to 

challenge the operations of the City’s largest employer at the Airport.

As of the date of this filing, PFA continues to provide FBO services at the Airport 

and the City has not asked it to desist, despite PFA’s direct inquiries on this point. Paholke 

Reply Dec. ¶¶ 9-12. Respondent’s strenuous argument to the FAA that PFA lacks 

authorization to operate at the Airport and thus standing to bring its complaint, combined 

with its silence to PFA’s inquiries as to whether it is permitted to operate while its 

application is being processed, is further proof that Respondent created the Operating Permit 

“issue” solely to: (1) dissuade PFA from continuing with its Part 16 Complaint; and (2)

manufacture the unavailing argument that PFA now lacks standing to continue challenging 

Respondent’s unlawful actions. Complainant respectfully submits that the FAA should see 

Respondent’s tactics for what they are – bullying – and consider them in the overall context 

of PFA’s allegations.

 

1 As discussed in the Reply, Rainier’s “lease” of the 820 Parcel provides further evidence that 

it was not offered to PFA in good faith after Boeing expressed interest in 2013. Reply pgs. 16-17. 

Rainier is subleasing the parcel back to the City until June 2019 (and paying no rent), during which 

time Respondent will be leasing it to Boeing. Paholke Sur-Rebuttal Dec., Ex. B. Thus, the 

760/770/820 Parcels will all be occupied by Boeing until mid-2019 at the earliest. 
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CONCLUSION

For the foregoing reasons, Pro-Flight respectfully requests the FAA to grant its 

Motion for Leave to File a Sur-Rebuttal and consider the arguments contained therein when 

deciding the above-captioned matter.

Dated October 16, 2015

Respectfully submitted,

 

 /s/___________________

 Benjamin H. Klein 

LAW OFFICES OF PAUL A. LANGE, LLC

 80 Ferry Boulevard

Stratford, CT 06615

 Phone: (203) 375-7724

 Fax: (203) 375-9397

 bhk@lopal.com

Attorney for Complainant
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CERTIFICATE OF SERVICE

I hereby certify that I have this day caused the foregoing Motion for Leave to file SurRebuttal to be served electronically, with prior written consent, on the following:

Zanetta L. Fontes

Senior Assistant City Attorney

1055 South Grady Way

Renton, WA 98057

zfontes@rentonwa.gov

Dated October 16, 2015

 _/s/_________________________

Benjamin H. Klein