BEFORE THE UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION

THE FLIGHT SHOP, INC. D/B/A PROFESSIONAL AIR, and AERO FACILITIES, LLC

Complainants,
v. Docket No. 16-14-12 CITY OF BENDRespondent.

ANSWER TO MOTION Pursuant to 14 C.F.R. 

## § 16.19(c), the City ofBend (“City”), submits this Answerto the Motion to Supplementthe Record (“Motion”) submitted on August 13, 2015byThe Flight Shop, Inc. d/b/a Professional Air (“Pro Air”) and Aero Facilities, LLC (“Aero Facilities”) (together “Complainants”). 1. Complainants seekto insert into the adminsitrative record an email dated 02/12/2008 from Susan Palmeri, a former Bend Airport Managerwho served in that capacity for approximately one year until early2009, Complaint

## ¶ 18, to Eric Grindy, who was the City’s Real Estate Manager until April 2008 (“Email”). In her Email, Ms. Palmeri raises concerns with what she describes as “Aero Facilities Phase III agreement,” and suggests a meeting to dicuss the issue with John Russell and Pete Schannauer. Atthe time, Mr. Russell was the City’s Economic Development Director and Mr. Schannauerwas outside City attorney; both served in their respective capacities until late in 2008.2. While the Citytakes no position on whetherthe Motion should be granted, the City

objects to the Complainants’ characterization ofthe Email as providing critical evidence and absolute proof.

. . thatthe reason Respondent has engaged in a series ofunjustly discriminatory and improper actions against both Complainants is because it realized that a series oftransactions Respondent entered into with Aero Facilities was in direct conflict with its grant assurances. Motion at 1-2. Such characterization is baseless. 3. First, the Email does not explain and provides no hint ofwhythe formerAirport Manager believed thatthe Aero Facilities agreements conflicted with the City’s GrantAssurances. Moreover, Complainants do not allege thatthe former Airport Managertook any action “to get out” ofthe agreements, as she appreantly believed the City should. In fact, Complainants themselves allege that it was not until Ms. Palmeri left and the nextAirport Manager arrived that the City’s “attitude changed.

. . stopped cooperating and began to overtly discriminate against the Complainants.” Complaint

## ¶ 11. 4. Second, as amply demostrated in the Consolidated Answer, Motion to Dimiss, and Motion for Summary Judgement (“Answer”), and in the Rebuttal, the City has not engaged in unjustly discriminatory and improper actions againt Complainants or in favor ofothers. See, e.g., Answer at 4-15 and 47-57; Rebuttal at 3-15. 5. Third, and most importantly, the City does not believethatthe agreements it entered into with Aero Facilities forthe development ofportions ofthe east side ofthe Airport are in conflict with the City’s obligatiosn underthe GrantAssurances. As already shown in detail, the City has retained all ofthe rights and powers necessaryto operate the Airport and to perform all ofthe tems and conditions ofthe GrantAssurances, Answerat43-45, and the City has not granted an exclusive rightto Aero Facilities, Answer at45-46. The Complainants are the only ones

2suggesting thatthe Aero Facilities agreements conflict with GrantAssurances, see Answer at 38-

40, and they are wrong. Conclusion The new, late evidence that Complainants nowseekto introduce into the administrative record does not show whatthe Complainants claim it shows. Thus, to the extentthatthe Director grants the Motion, he should acceptthe Email forwhat it is: an internal exchange between two mid-level City employees evidencing certain unspecified concerns thatthe former Airport Manager had atthe time the Email was written. That is all the Email shows, and it proves nothing more.

Pablo 0. Nüesch Katharine M. Mapes Jessica R. Bell Spiegel & McDiarrnid LLP 1875 Eye Street, N.W. Suite 700 Washington, DC 20006 Email: pablo.nuesch~spiegelmcd.com Phone: 202-879-4000 Fax: 202-393-2866 Attorneys forthe City ofBend, Oregon

August 24, 2015 Respectfully submitted,

3Certificate ofService

I hereby certifythat I have today, the 24th day ofAugust, 2015, caused the foregoing Answerto Motion to be served electronically, on the following:

Leonard D. Kirsch, Esq. McBreen & Kopko 500 North Broadway Jericho, NY 11753 lkirsch~rnklawnyc.com Martin E. Hansen, Esq. Francis, Hansen & Martin LLP 1148 NW Hill St. Bend, OR 97701 meh@francishansen.com Attorneys for Complainants

Pablo 0. Nuesch