FAA Docket No. 16-14-04

UNITED STATES DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

ASSOCIATE ADMINSTRATOR FOR AIRPORTS

NATIONAL BUSINESS AIRCRAFT ASSOCIATION, KRUEGER AVIATION, INC., HARRISON FORD, JUSTICE 

AVIATION, KIM DAVIDSON AVIATION, INC., AERO FILM, YOURI BUJKO, JAMES ROSS, PARAMOUNT 

CITRUS LLC, AND AIRCRAFT OWNERS AND PILOTS ASSOCIATION,

Complainants,

v.

CITY OF SANTA MONICA,

Respondent.

Appeal from the Director’s Determination

Issued by Director Byron K. Huffman, Dated December 4, 2015

PETITION OF RESPONDENT CITY OF SANTA MONICA 

TO SUPPLEMENT THE RECORD ON APPEAL 

PURSUANT TO 14 C.F.R. § 16.33(f)

MARSHA JONES MOUTRIE

JOSEPH LAWRENCE

LANCE S. GAMS

IVAN CAMPBELL

SANTA MONICA CITY ATTORNEY’S 

OFFICE

1685 Main Street, Room 310

Santa Monica, CA 90401

Telephone: (310) 458-8336

G. BRIAN BUSEY

PAUL VARNADO*

JAMES SIGEL*

MORRISON & FOERSTER LLP

2000 Pennsylvania Avenue, NW

Washington, DC 20006

Telephone: (202) 887-1500

ZANE O. GRESHAM

MORRISON & FOERSTER LLP

425 Market Street

San Francisco, CA 94105

 Telephone: (415) 268-7000

Counsel for Respondent City of Santa Monica
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Pursuant to 14 C.F.R. § 16.33(f), the City of Santa Monica (“City”) hereby submits that 

good cause exists for the Associate Administrator for Airports of the Federal Aviation 

Administration (“FAA”) to consider limited new evidence presented in the City’s Brief on 

Appeal from the Director’s Determination, filed concurrently with this petition in the abovecaptioned docket.

GOOD CAUSE EXISTS TO CONSIDER NEW EVIDENCE

The Director’s Determination issued in this matter on December 4, 2015, held that the 

City remains obligated until August 27, 2023, by the grant assurances associated with its 1994 

Airport Improvement Program grant for Santa Monica Airport (SMO). The Director largely 

based his holding on a finding that the City’s 2003 grant amendment was “akin to a new grant” 

because in 2003, City “understood the requirements of the statutorily required grant assurances” 

including that the City “knew or should have known that acceptance of these new funds would 

restart the date of that [sic] these assurances would apply.” [Director’s Determination at 17-18].

With this finding, the Director’s Determination advanced a novel theory – that a grant 

amendment can be “akin to a new grant” – and made factual findings regarding 

contemporaneous intent not based on evidence offered in this proceeding. In the interest of due 

process and development of a full and fair administrative record, the City should now be able to 

submit supplemental evidence in the form of a sworn declaration as to what a City official

actually understood in reviewing and executing the 2003 grant amendment. 

Accordingly, the City now offers a verified declaration, totaling 4 pages, by a former City 

official who was personally involved in the decision to seek and accept additional grant funds: 

Susan McCarthy, who was the City Manager in 2003 and responsible for all matters pertaining to 

SMO including signing the 2003 grant amendment at issue. The declaration is attached here as 
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Exhibit A. Ms. McCarthy explains in the declaration her understanding that the 2003 grant 

amendment did not extend the expiration date of the 1994 grant assurances, and provides

detailed context for that understanding. This direct evidence is important to discerning the City’s 

understanding of grant agreements at issue, and its intent in executing the 2003 amendment.

The City prepared and intended to submit a second declaration by Jeff Mathieu, who was 

the Airport Director in 2003 and was also personally involved in the decision to seek and accept 

additional grant funds. Due to an ongoing severe weather emergency and power outage in Big 

Bear Lake, California, where Mr. Mathieu serves as City Manager, he has been unable to verify 

his declaration by the time of filing of this petition. The City respectfully requests leave to 

supplement this petition during the week of January 11, 2016, when Mr. Mathieu has signed his

declaration. 

Therefore, good cause exists for the Associate Administrator to allow this new evidence, 

in accordance with the FAA’s policy at 14 C.F.R. § 16.33(f) allowing for such supplementation 

of the administrative record.

THE NEW EVIDENCE WAS NOT AT ISSUE PRIOR TO THE 

DATE ON WHICH THE EVIDENTIARY RECORD CLOSED

The Director’s Determination is rooted in a finding on the City’s contemporaneous 

understanding, but the Complaint did not allege that City officials involved in the decision to 

seek and accept additional grant funds in 2003 had any specific knowledge of implications on the 

expiration date of grant assurances. Nor did subsequent pleadings by the parties to the Part 16 

proceeding address the City’s actual contemporaneous understanding in 2003. The City’s instant 

appeal, after the evidentiary record in this matter has closed, represents the first opportunity the 
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City has to refute the Director’s misstatement that the City “knew or should have known” that 

accepting new funds would restart the date of its grant assurances.1

Because the City is acting in good faith in bringing limited, new evidence to the attention 

of the Associate Administrator on appeal, it is appropriate pursuant to the goals of 14 C.F.R. 

§ 16.33(f)(3) for the Associate Administrator to allow admission of this evidence into the agency 

record. 

CONCLUSION

For the foregoing reasons, the City respectfully request that the Associate Administrator 

admit into the evidentiary record the declaration from Susan McCarthy, attached hereto and 

included in the City’s Brief on Appeal From the Director’s Determination, as well as the 

forthcoming declaration from Jeff Mathieu, and fully consider the facts and arguments therein.

Dated: January 8, 2016 Respectfully submitted,

 1 On December 23, 2015, the City also filed a request for a hearing to address factual and legal 

issues raised by the Director’s Determination pursuant to 14 C.F.R. § 16.31, 16.109(a), (b), and 

16.201(a). The FAA has not yet acted on that request.
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MARSHA JONES MOUTRIE

JOSEPH LAWRENCE

LANCE S. GAMS

IVAN CAMPBELL

SANTA MONICA CITY ATTORNEY’S 

OFFICE

1685 Main Street, Room 310

Santa Monica, CA 90401

Telephone: (310) 458-8336

ZANE O. GRESHAM

MORRISON & FOERSTER LLP

425 Market Street

San Francisco, CA 94105

Telephone: (415) 268-7000

/s/ G. Brian Busey

G. BRIAN BUSEY

PAUL VARNADO*

JAMES SIGEL*

MORRISON & FOERSTER LLP

2000 Pennsylvania Avenue, NW

Washington, DC 20006

Telephone: (202) 887-1500

* Application to the District of Columbia Bar 

pending. Practice supervised by principals of 

firm admitted to District of Columbia Bar.

Counsel for Respondent City of Santa Monica
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CERTIFICATE OF SERVICE

I, G. Brian Busey, counsel for the City of Santa Monica, herby certify that pursuant to 14 

C.F.R. § 16.33 I have this day served the foregoing Petition of Respondent City of Santa Monica 

to Supplement the Record on Appeal Pursuant to 14 C.F.R. § 16.33(f) on the following persons 

by first class mail, postage prepaid:

Richard K. Simon, Esq.

1700 Decker School Lane

Malibu, CA 90265

rsimon3@verizon.net

Office of the Chief Counsel

Attention: FAA Part 16 Docket Clerk

AGC-600

Federal Aviation Administration

800 Independence Avenue SW

Washington, DC 20591

9-AWA-AGC-Part-l6@faa.gov

Byron K. Huffman, Acting Director

Office of Airport Compliance and Management Analysis

Federal Aviation Administration

800 Independence Avenue SW

Washington, DC 20591

Dated: January 8, 2016 /s/ G. Brian Busey
C:\Users\SMO5\Desktop\ATTACHMENT A.docx 01/8/2016 01:18 PM

EXHIBIT A