UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC. 

J&B ENTERPRISES, INC., 

dlhld RHYTHM SHINE, 

Complainant, 

V. 

EOEDW 

J^N 0 8 2009 

PART16 DOCKETS 

Docket No.: 16-08-07 

c:3 

- a 

C 3 

METROPOLITAN NASHVILLE AIRPORT 

AUTHORITY, 

Respondent. 

DESIGNATION OF PERSON TO RECEIVE NOTICE 

Communications to Complainant with respect to this matter should be sent to: 

Thomas J. Henderson 

Henderson Law Firm, PLLC 

Suite 350 

1425 K Street, NW 

Washington, DC 20005 

(202) 587-5687 Telephone 

(202) 587-5601 Facsimile 

tjh@hendersonfirm.net 

MOTION FOR EXTENSION OF TIME TO FILE APPEAL 

Complainant J&B Enterprises, Inc., d^/a/ Rhythm Shine (hereafter "Complainant" or 

"J&B"), by its counsel and pursuant to 14 C.F.R. §§ 16.11 and 16.19, respectfully requests a 

thirty (30) day extension of time in which to appeal the Director's Determination in this matter. 

1. On May 5, 2009, the Director of the Office of Airport Compliance and Field Operations 

entered a determination of J&B's complaint that Respondent was operating in violation of 49 

C.F.R. Part 23, Participation of Disadvantaged Business Enterprise in Airport Concessions, and 

C.F.R. Part 26, Participation by Disadvantaged Business Enterprises in Department of 

Transportation Financial Assistance Programs. Pursuant to 14 C.F.R § 16.33(b), the thirty days 

for Complainant to appeal will run on June 8, 2009. 
2. Pursuant to 14 C.F.R. § 16.11(a), Federal Aviation Administration ("FAA") is authorized 

to extend "any time period prescribed where necessary or appropriate for a fair and complete 

hearing of matters before the agency." 

3. Complainant respectfiilly suggests that the circumstances presented here make a thirty 

(30) day extension of time to appeal both "necessary [and] appropriate for a fair and complete 

hearing" of this matter. 

4. First, Complainant has just retained counsel to handle the appeal of this matter. 

Additional time is necessary for new counsel to familiarize himself with the record and 

adequately prepare an appeal. 

5. Second, Complainant has been unrepresented in this matter since relatively early in the 

proceedings. Thus, new counsel does not have the benefit of the work product of any existing 

counsel in analyzing the record and preparing an appeal. 

6. Third, the record reflects that Complainant has not previously had the assistance of 

counsel in responding to the factual assertions and submissions or the legal arguments of 

Respondent. As is clear fi^om the Director's Determination, this matter involves the application 

of a sophisticated set of regulations and assurances, and the underlying legal standards, to an 

extensive set of facts. Providing the opportunity for both parties to present their positions with 

the assistance of counsel is certainly "appropriate for a fair and complete hearing" of this matter, 

and serves the FAA's interest in interpreting its regulatory regime and determining compliance 

through a rigorous adversary process. 

7. Fourth, the Director's Determination is a substantial legal document that will require 

additional time for proper analysis before submitting an appeal. The Determination is a 3 3-page, 

single-spaced document that identifies and reaches findings and conclusions on four issues. The 

Determination includes lengthy discussions of the factual assertions and submissions of the 

2 
parties and the Administrative Record contains volumes of 49 exhibits submitted by the parties 

as well as additional materials apparently obtained fi^om FAA files. 

8. Fifth, the basis for and record upon which the Director's Detomination was made caimot 

fiilly be examined at present because some of the documents included in the Administrative 

Record have not been provided to Complainant. Specifically, Items 11 and 12 in the Index of 

Administrative Record, FAA Exhibit 1 to the Director's Determination appear to be a number of 

reports and documents fi"om the files and databases of the FAA. While the content of these 

materials may be known to Respondent as the party receiving assistance from and submitting 

reports to the FAA, it is not known to Complainants. The Complainant has not received copies 

of these documents and, therefore, cannot evaluate that portion of the record. Together with this 

motion. Complainant is requesting copies of these documents from the FAA. 

9. Sixth, the Director's Determination addresses, interprets and decides issues of substantial 

importance to the FAA ACDBE Program. These include: whether Respondent complied with 

the ACDBE contract goal and the manner in which such goals can be met through joint ventures, 

49 C.F.R. §§ 23.59, 23.57 and 23.3 and DOT/FAA Joint Venture Guidance; whether 

Respondent's concession policies had an unlawftil disparate impact on the basis of race in 

violation of 49 C.F.R. §§ 23.9 and 26.7(b); whether Respondent's concession policies 

discriminated on the basis of race in violation of 49 C.F.R. §§ 23.9, and 26.7(a); and, whether 

the Respondent's actions were contrary to the administrative, general or compliance 

requirements of 49 C.F.R. Parts 23 and 26 and Federal Grant Assurances Nos. 30 and 37. 

Determinations of these issues are of importance not only to the parties to this matter but to the 

FAA and to airport authorities and concessionaires and DBEs across the country. Carefiil review 

of decisions on these issues after fiill briefing by parties represented by counsel is in the interest 

of the FAA ACDBE Program and serves the interests of justice. 

\ / 
10. Seventh, granting the extension of time requested will not cause any prejudice to the 

Respondent. Indeed, Complainant continues to operate at the request of Respondent. See 

Respondent's Exhibit 30, June 6, 2008 letter, p. 2 ("It is our expectation J&B will continue to 

provide shoeshine service on a month-to-month basis until the conclusion of the competitive 

process."). And, although yet another RFP now has been issued for a shoe shine concession at 

Respondent's facility (SHOE SHINE SERVICE CONCESSION (Posted 5/21/09) at 

https://wwvv.flynashville.com/business/default.aspx?BD=299), the deadline for submissions of 

proposals is not until July 16, 2009 {see Request for Proposal package at p. 10) and any decision as 

to responses to that RFP, if any, as well as conmiencement of operations by another 

concessionaire, if any, will not occur until after that time. 

11. New counsel for Complainant contacted counsel for Respondent and requested consent to 

this request for an extension of time. Counsel for Respondent refused consent and indicated that 

Respondent would oppose this motion. Because counsel for Respondent indicated that the 

motion would be opposed, new counsel for Complainant inquired as to the basis for the 

opposition. In response, counsel for Respondent indicated that J&B's complainant was 

"fiivolous" and that Respondent did not wish to expend ftuther ftinds in opposing the complaint. 

12. Neither of the reasons offered by counsel for Respondent represent cognizable 

"prejudice" that would result from granting this extension. Respondent's claim that the 

complaint is "frivolous" is belied by the Director's Determination and its extensive discussion of 

the complaint, the facts and the applicable law. The fact that Respondent will incur legal fees in 

responding to an appeal is not prejudice. 

12. A review of the record in this matter reveals that neither party has consented to any 

request by the other for extensions of time. 
13. The record also reveals that the FAA granted a request by counsel for Respondent for a 

60-day extension of time to respond to the complaint. See Administrative Record Item 5. The 

reasons offered by counsel for Respondent for that 60-day extension were that the complaint and 

Complainant's exhibits "will take a substantial amount of time to analyze and answer" and that 

"Counsel for Respondent MNAA was only retained [three days earlier] and will need time to" 

investigate the facts. See Administrative Record Item 4, y^ 5, 6. These reasons, according to 

counsel for Respondent, made "an extension.. .necessary and appropriate for a fair and complete 

hearing of the matter before the FAA." Id. at TI 6. Complainant respectfially suggests that these 

same reasons are presented in this motion and provide the same basis for the FAA to grant the 

request for the more modest extension in this motion. 

14. The record in this matter also reveals that the FAA granted itself an extension of time in 

which to decide this matter. See Administrative Record Item 17 "March 10, 2009 FAA Notice of 

Extension of Time," extending the time to decide the matter to May 5, 2009. 

15. Complainant respectfiilly suggests that equity, as well as the interests of justice, require that 

Complainant be afforded this modest extension of time to appeal where both the Respondent and 

the FAA have been allowed more time in which to analyze and articulate their positions in this 

matter. 

15. Finally, the FAA has granted extensions of time to appeal in circumstances similar to 

this. See, e.g.. Platinum Aviation and Platinum Jet Center BMI v. Bloomington-Normal Airport 

Authority, Docket No. 16-06-09, July 2, 2007 Order for Extension of Time (granting 

complainant's motion for extension of almost 60 days, over opposition of respondent, given that 

complainants "did not receive with service the additional exhibits which FAA added to the 

administrative record, and [existing] counsel's prior conmiitments.") 
t 

J 

16. Complainant respectfiilly requests that the FAA expedite consideration of this motion 

pursuant to 14 C.F.R. § 16.11(a) to decide the motion as soon as possible and before the close of 

business on Monday June 8, 2009. In order to expedite Respondent's prompt response to the 

motion, counsel for Complainant has agreed to counsel for Respondent's request that the motion 

be provided to him by electronic mail so the matter can be ripe for determination prior to the 

curtent date for appeal. Such service is indicated in the certificate of service below. 

WHEREFORE, Complainant J&B Enterprises, Inc., respectfully requests a thirty (30) 

day extension of time in which to appeal the Director's Determination in this matter, pursuant to 

14 C.F.R. §§ 16.11 and 16.19, to assure a "fair and complete hearing of the matter." 

submitted. 

! ^ 

Thomasr J. Henderson 

Henderson Law Firm, PLLC 

Suite 350 

1425 K Street, NW 

Washington, DC 20005 

(202) 587-5687 Telephone 

(202) 587-5601 Facsimile 

E-mail: tjh@hendersonfirm.net 

Counsel for Complainant 

J&B Enterprises, Inc. 

i f 
CERTIFICATE OF SERVICE 

I hereby certify that I have this day served the foregoing Motion for Extension of Time to File 

Appeal on the following persons at the following addresses, electronic mail addresses and 

facsimile numbers by electronic mail, facsimile and first class mail this 3rd day of June, 2009: 

Arthur P. Berg 

Kaplan Kirsch & Rockwell LLP 

641 Lexington Ave., Suite 1409 

New York, New York 10022 

(212)328-9515 

Facsimile number: (646) 514-5440 

E-mail address: aberg(g)kaplankirsch.com 

Thomas R. Devine 

Kaplan Kirsch & Rockwell LLP 

1001 Connecticut Ave., N. W. I 

Suite 800 I 

Washington,DC. 20036 / 

(202) 955-5600 ' 

Facsimile number: (202) 955-5616 

E-mail address: tdevine@kaplankirsch.com 

Lisa Reynolds 

Kaplan Kirsch & Rockwell LLP 

1675 Broadway, Suite 2300 

Denver, CO 80202 

(303) 825- 7000 

Facsimile number: (303) 825-7005 

Robert Watson 

MNAA 

One Terminal Drive, Suite 501 

Nashville, TN 37214 

(615)275-1637 

Facsimile number: (615) 275-4302 

Counsel for Complainant 

J&B Enterprises, Inc.