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. 

Complainant, 

v. 

CITY OF BEND, OREGON 

Respondent. 

Docket No. 16-14-12 

MOTION OF THE CITY OF BEND, OREGON 

FOR LEAVE TO FILE REBUTTAL AND REBUTTAL TO COMPLAINANTS' 

OPPOSITION TO MOTION FOR EXTENSION OF TIME 

Pursuant to 14 C.P.R. § 16.19, Respondent, the City of Bend, Oregon ("City"), hereby 

requests leave to file a rebuttal to Complainants' newly-found opposition to the City's 

Unopposed Motion for Extension of Time. 

1. On December 30, 2014, the City filed an Unopposed Motion for Extension of 

Time in which to file a response to the complaint, seeking a 24-day extension until Friday, 

February 6, 2015. The City's motion was styled unopposed because, before filing it, the City had 

sought and obtained "the concurrence of the opposing party," as required by 14 C.P.R. § 

16.19(e). See Unopposed Motion for Extension ofTime ~ 2; Opposition to Motion~ 2. 

2. On the same date, Complainants filed in opposition to the City's motion, reneging 

on the prior consent, "except that the Complainants would agree to provide the Respondent until 
January 21, 2015," Opposition to Motion~ 1, which would. amount to an 8-day extension. 1 

Complainants argue that since "the parties have scheduled a deposition of the Respondent at the 

end of January in a civil lawsuit where there are common issues ... [,]it is imperative that 

Complainants review Respondent's response to the Complaint before the deposition since 

defenses raised by the Respondent are critical to this examination of the facts and issues involved 

in the civil suit." Id. 

3. As a threshold matter, although there have been discussions about them, no 

depositions have been scheduled as yet. But even if they had, the status of the state lawsuit 

should have no bearing on the course or timing of this investigatory proceeding. Asmus v. Haw. 

Dep't ofTransp. Airports Div., Docket No. 16-05-11, Director's Determination at 9 (April 12, 

2006) ("[i]n addressing allegations of noncompliance, the Director considers only those under 

FAA jurisdiction ... , not whether ... the Complainant ha[ s] a case in state court"); Platinum 

Aviation v. Bloomington-Normal Airport Auth., Docket No. 16-06-09, Director's Determination 

at 18 (June 4, 2007) ("the Part 16 process is not a venue for alternatively arguing on-going legal 

actions ... "). The focus here is whether the City is in compliance with relevant Federal 

obligations. Complainants should not be allowed to use this investigatory proceeding as leverage 

for discovery in a related civil lawsuit against the airport sponsor. 

4. Complainants had plenty oftime to prepare a formal complaint after the informal 

Part 13 determination was issued by the Northwest Mountain Region on July 8, 2014,2 yet they 

waited five months to file it. Complainants now argue that the City "has had a copy of the 

1 As noted in the City's Unopposed Motion for Extension of Time, the current due date for a response is January 13, 

2015. 

2 The Regional Compliance Program Manager for the Northwest Mountain Region "determined that the City is not 

currently in violation of its grant assurances." Letter from Joelle Briggs to Gary Judd dated July 8, 2014. 

2 
Complaint since on or before December 5, 2014 and will have sufficient time to prepare an 

Answer and/or Motion to Dismiss," Opposition to Motion~ 3. This argument is unavailing. 

First, the complaint is dated December 5, so it is disingenuous to suggest that the City had it 

before then. In fact, the complaint was not received by the City until the following week. 

Second, and for a number of reasons/ until it received the Notice of Docketing on December 29, 

2014, the City had no idea whether or when FAA would docket the case and saw no reason to 

spend valuable scarce resources to gear-up for responding to it until hearing from FAA. Finally, 

if the City's response to the Part 16 complaint were so essential to the ongoing parallel state 

lawsuit, as Complainants argue, Complainants could and should have filed it much sooner as part 

of their litigation strategy. Complainants' purported prejudice is of their own making. 

5. FAA has not been adverse to granting similar extensions of time in the interest of 

justice, even over the objections of the opposing party. See, e.g., Pacific Coast Flyers, Inc. v. 

County ofSan Diego, FAA Docket 16-04-08 (granting a 30-day extension oftime to file 

answer); Ingram v. Brd. Of Port Commissioners and Port of Oakland, FAA Docket 16-03-12 

(granting a 14-day extension oftime to file rebuttal); Leonard v. Chesapeake Airport Authority, 

FAA Docket 16-01-06 (granting a 60-day extension of time to file an administrative appeal). A 

24-day extension oftime to file an answer and/or dispositive motions is neither unprecedented 

nor excessive. 

CONCLUSION 

For the foregoing reasons, the City hereby respectfully requests that FAA overrule 

Complainants' objections and grant the City's request for a 24-day extension oftime so that its 

3 For example, the complaint copies served on the City did not include a certificate of service as required by § 16.15, 

so the City did not know whether, when, or how it had been submitted to FAA. 

3 
answer, or in the alternative its motion to dismiss and/or for summary judgment, will be due on 

or before Friday, February 6, 2015. Granting such request is necessary and appropriate "for a 

fair and complete consideration of matters before the agency." § 16.11(a). 

December 31, 2014 

Respectfully submitted, 

)ELo~eL Pablo 0. Niiesch 

Spiegel & McDiarmid LLP 

1875 Eye St., N.W. 

Suite 700 

Washington, DC 20006 

Email: pablo.nuesch@spiegelmcd.com 

Phone: 202-879-4000 

Fax: 202-393-2866 

Counsel for the City of Bend, Oregon 

4 
Certificate of Service 

I hereby certify that in accordance with 14 CFR §§ 16.15 and 16.13(h), I have today, the 

31st day of December, 2014, caused a true copy of the foregoing Motion for Leave to File 

Rebuttal and Rebuttal to Complainants' untitled opposition to the City's Motion for Extension of 

Time, to be served electronically on the following: 

Leonard D. Kirsch, Esq. 

McBreen & Kopko 

500 North Broadway 

Jericho, NY 11753 

lkirsch@mklawnyc.com 

Martin E. Hansen, Esq. 

Francis, Hansen & Martin LLP 

1148 NW Hill St. 

Bend, OR 97701 

meh@francishansen.com 

Attorneys for Complainants 

Pablo 0. Nliesch