UNITED STATES DEPARTMENT OF TRANSPORTATlQfiL 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

J&B ENTERPRISES, INC. c^b/a 

RHYTHM SHINE, 

lEGEOW H 

JUi 17 Z009 

AIRPORTS/ENVIRONMENTAL 

LAW. AGC-600 ' 

Complainant, 

V. FAA Docket No. 16-08-07 

METROPOLITAN NASHVILLE 

AIRPORT AUTHORITY 

Respondent. 

RESPONDENT METROPOLITAN NASHVILLE AIRPORT AUTHORITV.<= 

OPPOSITION TO COMPLAINANT'S MOTI ^ TO SUPI-LIS T 

THE RECORD ON APPEAL AND MOTION TO STW ^ 

NEW ISSUES RAISED ON APPEAL 

Respondent Metropolitan Nashville Aiiport Authority (MNAA) opposes 

Complainant J&B Entetprises Inc.'s Motion to Supplement the Record on Appeal and 

requests that FAA deny the motion in all respects. In addition, MNAA moves to strike 

new issues raised by Complamant for the first time in its appeal. Issues which were no, 

raised in the pleadings and which were not considered by the Director may not be 

considered by the Assistant Admimstrator and should be stricken as contrary to the 

provisions of Part 16 that are designed to ensure fundamental fairness to the parties in 

proceedings such as this. Granting MNAA's motion will also spare both MNAA and the 

FAA the burden of addressing issues not properly raised on appeal. 
I. OPPOSITION TO COMPLAINANT'S MOTION TO SUPPLEMENT THE 

RECORD ON APPEAL 

On July 8, 2009, Complainant filed an Appeal of the Director's Determination in 

this matter and, by separate filing, requested that the FAA supplement the record on 

appeal with six documents: three letters sent by Complainant to the FAA during the 

pendency of this matter before the Director, but not served on MNAA; one letter sent by 

Complainant's previous counsel to MNAA over a month before the Complaint v^^as 

submitted; and finally, two letters regarding the ACDBE program at a different airport 

(Baltimore-Washington International Airport, or BWI) and administered by a different 

airport sponsor (Maryland Aviation Administration). These two letters were dated 

January 9, 2009 and May 12, 2009. 

For the following reasons. Complainant's motion to supplement the record should 

be denied as to all six documents. 

Under the rules mandated by 14 C.F.R. Part 16, each party is required to file with 

its pleadings all documents "that it considers sufficient to present all relevant facts and 

argument necessary for the FAA to determine whether the airport sponsor is in 

compliance" with its grant assurances. 14 C.F.R. § 16.29(b). In addition, relevant 

documents reasonably available to Complainant after the pleadings closed but before the 

Director's Determination was issued should be submitted by motion under § 16.19(a). 

James Vernon Ricks, Jr. v. Millington Municipal Airport Authority, FAA Docket No. 16-

98-19, WL 1295210 at *15, n.3 (December 30, 1999) (Final Decision and Order). The 

FAA is entitled to rely entirely on the Complaint and responsive pleadings in making its 

initial determination. Id. at 16.29(a). 
If parties were permitted to supplement a record without any showing that the 

new evidence is relevant and could not have been obtained before the Director issued a 

Determination, the administrative process would be endless, defeating the goal of 

expedited procedures provided under Part 16. Roadhouse Aviations at *11. Thus, in a 

Part 16 appeal, new evidence will not be considered if the party seeking to admit it could 

reasonably have known of its availability. Id. (citing Charles H. Koch, Jr., 

Administrative Law and Practice, Vol. 1, § 6.76 (1997)). A party "may not correct a 

mistake in its original selection of evidence by compelling the agency to consider it on 

appeal." Ricks v. Millington Municipal Airport Authority, 1999 WL 1295210 at *15, n.3. 

Based on these principles, the FAA has routinely denied requests to admit 

evidence when the party seeking to admit it fails to show that the evidence could not have 

been discovered or presented to the agency before the Director issued a Determination. It 

should similarly deny Complainant's request to re-open the record and supplement it with 

new documents. See, e.g., Roadhouse Aviations, FAA 16-05-08; James Vernon Ricks, 

Jr., FAA 16-98-19. J&B was required to submit all available documents in support of its 

Complaint. 14 C.F.R. § 16.23(b)(2). Having failed to do so, J&B now seeks to 

supplement the record to correct its mistakes, but has made no showing in its motion of 

any legal justification to justify its request. It has neither explained why the documents 

dated before May 5, 2009 were not already submitted into the record before the Director 

and served on MNAA, nor has it provided a single citation to legal authority to support 

its request to admit new evidence into the record on appeal. 

Significantly, although J&B acknowledges in its motion that the FAA has already 

decided not to admit the three letters sent firom J&B to the FAA before the Director's 
e\ 

Determination (Complainant's Motion to Supplement at 1) (citing Director's 

Determination at 9 and nn. 57 and 58), it does not allege that the Director's decision to 

exclude the letters was erroneous. It merely suggests that the letters - which were 

essentially ex parte communications, because they were not served on MNAA - "shed 

light" on the actions and circumstances surrounding the relationship between MNAA and 

J&B Enterprises and should therefore be admitted for consideration on appeal. Rather 

than shedding new light, however, the J&B letters merely re-state Complainant's 

argument and recite unsubstantiated facts and conclusory statements, ostensibly in 

support of Complainant's case. Even if they were otherwise admissible, it is impossible 

to see how these letters could assist the Assistant Administrator in considering an appeal 

of the Director's Determination. 

As to the June 19, 2008 letter fi-om J&B's previous counsel, Anthony Robinson, 

to MNAA's in-house counsel, Robert Watson, the Motion to Supplement provides 

absolutely no explanation as to why the letter was not included with the Complaint, and 

provides no reason why the letter should be admitted now. This letter was sent by J&B's 

counsel approximately one month before the Complaint was filed. J&B elected not to 

include it with the Complaint, and should not be permitted to do so now.' 

Of the two letters regarding the ACDBE audit that took place at BWI, one was 

dated approximately four months before the Director's Determination was issued; the 

other is dated a few weeks after the DD. The letters discuss a matter that took place at 

' In its Motion to Supplement the Record, Complainant makes the inexplicable claim that the 

"Complaint's complaint letter" referred to this June 19, 2008 letter, citing to "Item 1 at p. 4" in FAA 

Exhibit 1 in the Index of Administrative Record. Motion to Supplement at \2. Nowhere does Item 1 (the 

Complaint) refer to a June 19, 2008 letter from J&B to MNAA, at page 4 or anywhere else in the 

Complaint. MNAA could find no reference to a June 19, 2008 letter anywhere in the Complaint, the 

unnumbered and unpaginated exhibits attached to the Complaint, or anywhere else in the record. 
another airport, under the auspices of a different airport sponsor. Complainant seeks to 

have these letters admitted to support a new allegation raised for the first time on appeal 

r 

and based on the improper suggestion that non-compliance with FAA Guidance by a 

Joint Venture at one airport is a sufficient basis for inferring non-compliance by a 

separate Joint Venture at a different airport. Again, J&B provides the FAA with no 

explanation as to why these letters should be admitted, other than asserting without 

explanation that they are relevant to issues addressed in the appeal. 

Complainant's Motion to Supplement the Record should be denied, as to the three 

letters the FAA has already decided to exclude; the single letter that was in J&B's 

attorney's files before the Complaint was filed; and the two letters regarding a separate 

compliance issue at a different airport. None of these documents will assist the Assistant 

Administrator in reviewing the Director's Determination, and none meet the standards 

required for new evidence presented after the record has been closed. 

H. NEW ISSUES RAISED FOR THE FIRST TIME ON APPEAL AND NOT 

CONSIDERED BY THE DIRECTOR SHOULD BE STRICKEN FROM 

THE APPEAL 

In addition to requesting that the FAA deny Complainant's Motion to Supplement 

the Record, MNAA also requests that the FAA strike two issues raised for the first time 

by Complainant in its appeal. First, Complainant alleges for the first time that MNAA's 

decision not to renew J&B's contract when it expired in August 2008 constituted 

retaliation against J&B, whose counsel had sent a letter to MNAA alleging the Authority 

had violated its ACDBE program.^ Appeal at 2-6. Complainant also alleges for the first 

^ Complainant repeatedly mischaracterizes MNAA's allegedly retaliatory action as having "terminated" 

the contract with J&B Enterprises. What MNAA did, as shown in the record and even in the excerpted 

statements from MNAA employees quoted by J&B in the Appeal, was to elect not to renew J&B's contract, 

to proceed with a new RFP for a direct lease with a shoeshine concessionaire, to encourage J&B to respond 
time that Olympic Supply, a DBE that is part of a Joint Venture at Nashville Airport, is 

not operating with sufficient independence firom its Joint Venture partner to satisfy 

FAA's Joint Venture Guidelines. Appeal at 20-21. Neither of these allegations was 

raised by J&B in its Complaint;^ consequently neither MNAA nor the Director 

considered them and the Director did not rule on them. As such, they are entirely 

inappropriate issues for consideration on appeal. 

The rule governing final Agency review of Director's Determinations in 

proceedings under Part 16 provides that "[rjeview by the Assistant Administrator is 

limited to an examination of the Director's Determination and the Administrative Record 

upon which such determination was based." Roadhouse Aviations, 2007 WL 1966160 at 

*9. New allegations or issues should not be presented on appeal. Id. 

Simply put, an appellant cannot allege error in a Determination concerning an 

issue that the parties did not raise and the Director did not consider. Aerodynamics of 

Reading v. Reading Regional Airport Authority, FAA Docket No. 16-00-03, WL 

1085346 (July 23, 2001) (Final Decision and Order). In Aerodynamics of Reading, the 

Complainant had initially made an argument regarding airport fee and rental structure 

based on a comparison of its rental payments to those of other competing FBOs. Id. at 

*12. In its appeal, the Complainant shifted its claim to argue (for the first time) that its 

rental value was not based on the appraised value. The Administrator declined to 

consider the latter issue, noting that "the Director could not have erred in failing to 

to the new RFP and, in the interim, to allow J&B to continue as the shoeshine concessionaire on a monthto-month basis. Director's Determination at 8, 32; see also Complainant's Appeal at 4, 7-10. 

As discussed below, the only issues J&B raised in its complaint regarding the Olympic-Hudson joint 

venture related to whether Olympic was a certified ACDBE in Tetmessee and the percentage interest of 

Olympic in the joint venture. MNAA addressed those issues and the Director ruled on them in his 

Determination. 
address an issue that was not raised or argued in the initial complaint, and the Associate 

Administrator will not consider this issue on appeal." Id. 

Even when a new allegation is based on existing facts properly in the record, the 

Assistant Administrator will not consider an issue not raised or argued in the initial 

complaint. BMI Salvage Corp. & Blueside Svc. Inc. v. Miami-Dade County, Florida, 

FAA Docket No. 16-05-16, WL 926176 at *18-19 (March 5, 2007) (Final Decision and 

Order) (refusing to consider allegation regarding exclusive access that was not presented 

in the Complaint or Reply; even though the allegation was based on existing facts 

previously presented, the allegation itself represented a new issue.) 

Under this rule, the FAA should strike fi-om the appeal both the allegation that 

MNAA retaliated against J&B and the allegation that MNAA did not properly investigate 

the adequacy of the Joint Venture as defined by FAA Guidance. Although retaliation 

could be raised as a form of intentional discrimination in a Part 16 case concerning 

ACDBE compliance, this allegation was not made anywhere in the Complaint in this 

case. Instead, it has been raised for the first time on appeal. Indeed, Complainant 

attempts to blame the Director for "fail[ing] completely to recognize" what it now alleges 

was retaliatory behavior, in spite of Complaint's utter failure to allege retaliation in its 

pleading. Complainant's Appeal at 4. The Director cannot be faulted for not 

"recognizing" an argument that was not presented to him. Indeed, the fact that the 

Director did not address this new argument is compelling evidence that it was not 

contained in the Complaint. 
Similarly, Complainant never alleged that the Joint Venture between Olympic 

Supply and Hudson did not conform to FAA's Joint Venture Guidance"* or that Olympic 

did not fiilly participate in the joint venture. Instead, J&B simply alleged (incorrectly) in 

the Complaint that Olympic Supply was not a certified ACDBE, and (also incorrectly) 

that Olympic was required to have at least 51% ownership in the Joint Venture. MNAA 

addressed both of these issues to the Director's satisfaction. Director's Determination at 

18-19. MNAA never addressed the issue of compliance with the Joint Venture Guidance, 

nor did the Director consider it, because Complainant never raised it. 

As with the retaliation issue. Complainant's Appeal faults the Director for failing 

"to make inquiries and findings" based on an issue not raised below. Appeal at 19. 

Specifically, Complainant argues that the Director should have gone beyond the 

allegations and the evidence in the record to conduct an independent investigation into 

Olympic Supply's business practices at other airports. Id. at 21. But this new allegation 

cannot be shoehomed into the existing ones actually raised in the Complaint simply by 

couching it as part of an overall claim that MNAA did not comply with 49 CFR Part 23. 

It is a separate allegation, raised for the first time on appeal, and should not be considered 

by the Assistant Administrator.^ Part 16 explicitly states that the Director may issue a 

Determination based solely on the Complaint, accompanying documents, and the airport 

sponsor's response. 14 C.F.R. § 16.29(b). Thus, J&B was on notice that its complaint 

"* The FAA released its guidance regarding Joint Ventures on August 8, 2008, approximately one week 

after J&B filed its Complaint, but nine months before the Director issued a Determination in this matter, 

giving J&B plenty of time to move to amend its complaint, if it so chose, based on the newly issued 

Guidance. 

' There is absolutely no evidence in the record to support a claim that the Joint Venture in the instant case 

is not in compliance with FAA Guidance. The two letters regarding the audit at BWI are not part of the 

record on appeal and are at any rate irrelevant, as they do not relate to the AMS-Olympic Joint Venture at 

Nashville Airport. And, as previously noted, in rendering his determination the Director is entitled to rely 

entirely on the Complaint and responsive pleadings. Id. at 16.29(a). 
and supporting documents must contain all issues, arguments, and evidence upon which it 

relied, and upon which the Director could base his Determination. 

These two newly-raised issues should be also be stricken fi-om the Appeal on 

grounds of fiindamental fairness. Respondent should not be forced to incur additional, 

burdensome litigation expenses defending against a constantly moving target, contrary to 

the provisions of Part 16. J&B seeks, in effect, to amend its Complaint and introduce 

new evidence long after the time for doing so has passed, and after it has seen that the 

issues it did raise were rejected by the Director. In essence, J&B seeks to retry its case 

before the Assistant Administrator. Part 16 does not permit this. The Director found that 

MNAA had been "fully responsive" in resolving "all issues raised by the Complainant." 

Director's Determination at 32. New issues can not now be raised on appeal. 

WHEREFORE, Respondent MNAA respectfully requests that the FAA deny in 

all respects Complainant's motion to supplement the record on appeal, and that it grant 

Respondent's request to strike the new issues raised by Complainant for the first time on 

appeal and not considered by the Director. 

Respectfully submitted this 16* day of July, 2009: 

Robert Watson Arthur P. ^ 

Metropolitan Nashville Airport Authority KAPLAN KIRSCH & ROCI^WELL LLP 

One Terminal Drive, Suite 501 641 Lexington Ave. Suite 1409 

Nashville, TN 37214 New York, NY 10022 

Telephone: (615) 275-1637 Telephone: (212) 328-9515 

Facsimile: (615)275-4302 Facsimile: (646)514-5440 
Thomas Devine 

KAPLAN KIRSCH & ROCKWELL LLP 

1001 Connecticut Ave NW, Suite 800 

Washington, DC 20036 

Telephone: (202) 955-5600 

Facsimile: (202) 955-5616 

Lisa Reynolds 

KAPLAN KIRSCH & ROCKWELL LLP 

1675 Broadway, Suite 2300 

Denver, CO 80202 

Telephone: (303) 825-7000 

Facsimile: (303) 825-7005 

Counsel for Respondent Metropolitan Nashville Airport Authority 

10 
CERTIFICATE OF SERVICE 

I hereby certify that I have this day served the foregoing Opposition to 

Complainant's Motion to Supplement the Record on Appeal and Motion to Strike 

New Issues Raised on Appeal 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. 7967 8254 3446 

Thomas J. Henderson 

Henderson Law Firm, PLLC 

Suite 350 

1425 K Street, NW 

Washington, DC 20005 

One Copy VIA Federal Express No. 7967 8255 7291 

Elizabeth Newman 

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. 7967 8256 9148 

Dated this [h ^ day of July, 2009: fi ^ ^ 

Lisa A. Reynolds' 

Counsel for Respondent MNAA 
/ ^ 

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