FAA Docket No. 16

- 14

- 04

UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION ASSOCIATE ADMINSTRATOR FOR AIRPORTS

N ATIONAL B USINESS A IRCRAFT A SSOCIATION , K RUEGER A VIATION , I NC ., H ARRISON F ORD , J USTICE

A VIATION , K IM D AVIDSON A VIATION , I NC ., A ERO F ILM , Y OURI B UJKO , J AMES R OSS , P ARAMOUNT C ITRUS LLC, AND A IRCRAFT O WNERS AND P ILOTS A SSOCIATION , Complainants
,
v. C ITY OF S ANTA M ONICA , Respondent.

Appeal from the Director’s Determination Issued by Director Byron K. Huffman, Dated December 4, 2015

PETITION OF RESPONDE NT CITY OF SANTA MON ICA TO SUPPLEMENT THE RE CORD ON APPEAL PURSUANT TO 14 C.F.R. § 16.33( f)

M ARSHA J ONES M OUTRIE J OSEPH L AWRENCE L ANCE S. G AMS I VAN C AMPBELL S ANTA M ONICA C ITY A TTORNEY ’ S O FFICE 1685 Main Street, Room 310 Santa Monica, CA 90401 Telephone: (310) 458

- 8336 G. B RIAN B USEY P AUL V ARNADO * J AMES S IGEL * M ORRISON & F OERSTER LLP 2000 Pennsylvania Avenue, NW Washington, DC 20006 Telephone: (202) 887

- 1500

Z ANE O. G RESHAM M ORRISON & F OERSTER LLP 425 Market Street San Francisco, CA 94105 Telephone: (415) 268

- 7000

Counsel for Respondent City of Santa Monica2 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 ev idence presented in the City’s Brief on
Appeal from the Director’s Determination
, filed concurrently with this petition in the above

captioned docket.

GOOD CAUSE EXISTS TO CONSIDER NEW EVIDENCE

The Director’s Determination issued in this matter on December 4, 2015, h eld 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

base d his holding on a finding that the City’s 20 03 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 th at [sic] these assurances would apply.” [Director’s Determination at 17

- 1 8 ]

. 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 a mendment.
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 res ponsible for all matters pertaining to
SMO including signing the 2003 grant amendment at issue. The declaration is attached here as3 Exhibit A. Ms. McCarthy explain s in the declaration her understanding that the 2003 grant
amendment did not extend the exp iration date of the 1994 grant assurances, and provide s
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 serv es 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.

Th erefore, 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 T HE DATE ON WHICH THE EVIDENTIARY RECORD CLOSED

The Director’s Determination is rooted in a finding on the City’s contemporaneous
understanding , but the Complain t did not allege that City officials involved in the decision to
seek and accept additional gra nt 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 inst ant
appeal , after the evidentiary record in this matter has closed, represents the first opportunity the4 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 a ssurances. 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 ad mission 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.5 M ARSHA J ONES M OUTRIE J OSE PH L AWRENCE L ANCE S. G AMS I VAN C AMPBELL S ANTA M ONICA C ITY A TTORNEY ’ S O FFICE 1685 Main Street, Room 310 Santa Monica, CA 90401 Telephone: (310) 458

- 8336

Z ANE O. G RESHAM M ORRISON & F OERSTER LLP 425 Market Street San Francisco, CA 94105 Telephone: (415) 268

- 7000 /s/ G. Brian Busey G. B RIAN B USEY P AUL V ARNADO * J AMES S IGEL * M ORRISON & F OERSTER 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 Monica6 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 P etition of Respondent C ity of Santa Monica
to Supplement the Record on Appeal Pursuant to 14 C.F.R. § 16.33(f) o n 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: Januar y 8, 2016 /s/ G. Brian BuseyC: \ Users \ SMO5 \ Desktop \ ATTACHMENT A.docx 01/8/2016 01:18 PM 

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