BEFORE THEUNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION

THE FLIGHT SHOP, INC. d/b/a PROFESSIONAL AIRand AERO FACILITIES, LLC. Complainant,
v. CITY OF BEND, OREGON Respondent. DocketNo. 16-14-12

MOTION OF THE CITY OF BEND, OREGON FORLEAVE 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 Motionfor Extension ofTime. 1. On December 30, 2014, the City filed an Unopposed Motion for Extension of Time in whichto 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 ofthe opposing party," as required by 14 C.P.R. § 16.19(e). 

### See Unopposed Motionfor Extension ofTime

**~** 2; Opposition to

**Motion~** 2. 2. Onthe same date, Complainants filed in opposition to the City's motion, reneging
onthe prior consent, "exceptthatthe Complainants would agree to provide the Respondent untilJanuary 21, 2015," Opposition to

**Motion~** 1, which would.amountto an 8-day extension. 1 Complainants argue that since "the parties have scheduled a deposition ofthe Respondent atthe end ofJanuary in a civil lawsuitwhere there are common issues
... [,]it is imperative that Complainants review Respondent's response to the Complaintbefore the deposition since defenses raised bythe Respondent are critical to this examination ofthe facts and issues involved in the civil suit." 

### Id. 3. As a threshold matter, althoughthere have been discussions aboutthem, no depositions have been scheduled as yet. Buteven ifthey had, the status ofthe state lawsuit should have no bearing onthe course or timing ofthis investigatory proceeding. 

### Asmus v. 

### Haw. Dep't ofTransp. AirportsDiv., DocketNo. 16-05-11, Director's Determination at 9 (April 12, 2006) ("[i]n addressing allegations ofnoncompliance, the Director considers only those under FAAjurisdiction
..., not whether
... the Complainantha[s] a case in state court"); 

### Platinum Aviation v. 

### Bloomington-NormalAirportAuth., DocketNo. 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 notbe allowedto use this investigatory proceeding as leverage for discovery in a related civil lawsuit against the airport sponsor. 4. Complainants had plenty oftimeto prepare a formal complaint after the informal Part 13 determination was issued bythe Northwest Mountain Region onJuly 8, 2014,2 yet they waited five months to file it. Complainants now argue thatthe City "has had a copy ofthe

1As noted in the City's Unopposed Motion for Extension ofTime, 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 ofits 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 sufficienttime to prepare an Answer and/or Motionto Dismiss," Oppositionto

**Motion~** 

### 3. This argument is unavailing. First, the complaint is dated December 5, so it is disingenuous to suggest thatthe City had it before then. In fact, the complaint was notreceived by the City until the following week. Second, and for a number ofreasons/ until itreceived the Notice ofDocketing on December 29, 2014, the City had no ideawhether 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, ifthe 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 oftheir litigation strategy. Complainants' purported prejudice is oftheir ownmaking. 5. FAAhas not been adverse to granting similar extensions oftime in the interest of justice, even overthe objections ofthe opposing party. See, e.g., Pacific CoastFlyers, Inc. v. County ofSanDiego, FAA Docket 16-04-08 (granting a 30-day extension oftimeto file answer); Ingram v. Brd. Of Port Commissioners andPort of Oakland, FAA Docket 16-03-12 (granting a 14-day extension oftimeto file rebuttal); Leonardv. ChesapeakeAirportAuthority, FAA Docket 16-01-06 (granting a 60-day extension oftime to file an administrative appeal). A 24-day extension oftimeto 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 grantthe 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 ofservice as required by § 16.15, so the City did not know whether, when, orhow it had been submitted to FAA. 3answer, or in the alternative its motion to dismiss and/or for summaryjudgment, will be due on
orbefore Friday, February 6, 2015. Granting suchrequest is necessary and appropriate "for a fair and complete consideration ofmatters 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 ofBend, Oregon

4Certificate ofService

I hereby certify that in accordance with 14 CFR §§ 16.15 and 16.13(h), I have today, the 31st day ofDecember, 2014, caused a true copy ofthe foregoing Motion for Leave to File Rebuttal and Rebuttal to Complainants' untitled oppositionto the City's Motion for Extension of Time, to be served electronically onthe 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