UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

J&B ENTERPRISES, INC. d/b/a. RHYTHM 

SHINE, 

Complainant, 

V. 

pE^fc u ^ E I 

PART 16 DOCKETS 

FAA Docket No. 16-08-07 

METROPOLITAN NASHVILLE AIRPORT 

AUTHORITY, 

Respondent. CD 

•'C D 

RESPONDENT METROPOLITAN NASHVILLE AIRPORT AUTHORITY'S MOTION 

TO SUPPLEMENT THE RECORD ON APPEAL ^ p 

XT - ^ 

1. Pursuant to 14 C.F.R. § 16.19(a), Respondent Metropolitan Nashville Airport Authority 

(MNAA) respectfully requests that the Administrative Record in this matter be supplemented 

with the attached document, titled "Affidavit in Support of Respondent Metropolitan Nashville 

Airport Authority's Reply to Appeal" and its four accompanying exhibits. 

2. The affidavit, from the Manager of Properties at MNAA, describes events which 

transpired, by and large, after the Director issued his Determination. To the extent that the 

affidavit also describes events that occurred before the Determination was issued, the earlier 

events are needed to provide background information for the subsequent events, and are 

specifically acknowledged by the Director in the Determination. 
3. In his Determination, issued May 5, 2009, the Director noted that MNAA had issued a 

Request for Proposals (RFP) for a new shoe shine concession at the Airport, and also noted that 

J&B's owners attended the pre-bid proposal meeting held by Respondent. Director's 

Determination (DD) at 32. On May 7, 2009, Respondent's Manager of Properties, Rebecca 

Ramsey, discussed with James Druett, one of the Complainants in this matter, why J&B had not 

submitted a bid on that RFP. Subsequently, MNAA issued a second RFP for a new shoe shine 

concession, which was virtually identical to the first. J&B did not bid on the second RFP either. 

4. The Affidavit, submitted by Ms. Ramsey, describes MNAA's contacts with J&B 

regarding the RFPs, the bids received in response to the RFPs, and the proposal submitted that 

will be recommended by MNAA's staff to its Board of Commissioners for approval. The 

exhibits to the affidavit contain: (a) MNAA's second RFP for the shoe shine concession; (b) 

excerpts from the Concession Agreement that was attached to the RFP; (c) the Executive 

Summary from the proposal received from S.I.B., Inc. d.b.a. Goodfellows Shoeshine, selected by 

MNAA staff for recommendation to the Authority's Board of Commissioners; and (d) the 

ACDBE certifications attached to the Goodfellows proposal. 

5. Generally, in an administrative appeal, "new evidence need not be admitted unless the 

evidence was not available and could not have been discovered or presented at the prior 

proceeding." Boston Air Charter v. Norwood Airport Commission, FAA Docket No. 16-07-03 at 

*20 (2008 WL 4185034), Final Decision and Order, filed August 14, 2008 (cifing Charles H. 

Koch, Jr., Administrative Law and Practice, Vol. 1, § 6.76 (1997)). If the party proffering new 

evidence makes a showing that the evidence was not available or could not have been discovered 

before the Director's Determination was issued, however, it may be considered on appeal. 

Roadhouse Aviations, LLC v. City of Tulsa, FAA Docket No. 16-05-08 at *11 (2007 WL 
1966160), Final Decision and Order filed June 26, 2007; see also Wilson Air Center, LLC v. 

Memphis and Shelby County Airport Authority, FAA Docket No. 16-99-10 at *9, n. 4 (2001 WL 

1085348), Final Agency Decision and Order filed August 30, 2001 (refusing to admit new 

affidavit submitted with Appeal because party submitting it did not allege that it was not 

available and could not have been presented before the Director's Determination was issued). 

6. Here, the affidavit, describing events that took place after the Director's DeterminaUon, 

contains evidence that was not available earlier because it had not yet occurred. Thus, the 

general prohibition on admitting new evidence does not apply. 

7. In addition, this evidence is necessary for MNAA to respond to a new issue raised for the 

first time on appeal by Complainant. J&B alleged for the first in its Appeal that MNAA's 

decision to re-bid the shoe shine contract was a retaliatory act against J&B. In response, MNAA 

seeks to present evidence regarding its Request for Proposals for the shoe shine concession, 

J&B's response to the RFP, and the proposal submitted by the bidder tentatively selected to 

receive the concession. 

8. MNAA has made a motion for the FAA to strike the new issue on appeal, but until that 

motion is ruled upon, MNAA is entitled to submit evidence necessary to answer the new 

allegations raised in the Appeal, particularly where that evidence was not available before the 

Director's Determination. 

9. For above reasons, therefore, MNAA respectfully requests that the affidavit and 

accompanying exhibits be accepted and added to the Record. 
Respectfully submitted this ^1T _ day of September, 2009 

^ 

Robert Watson 

Metropolitan Nashville Airport Authority 

One Terminal Drive, Suite 501 

Nashville, TN 37214 

Telephone: (615) 275-1637 

Facsimile: (615)275-4302 

Arthur P. Berg 

KAPLAN KIRSCH & ROCKWELL LLP 

641 Lexington Ave. Suite 1409 

New York, NY 10022 

Telephone: (212) 328-9515 

Facsimile: (646)514-5440 

Thomas Devine 

KAPLAN KIRSCH & ROCKWELL LLP 

1001 Connecticut Ave NW, Suite 800 

Washington, DC 20036 

Telephone: (202) 955-5600X568 

Facsimile: (202) 955-5616 

Lisa Reynolds 

KAPLAN KIRSCH & ROCKWELL LLP 

1675 Broadway, Suite 2300 

Denver, CO 80202 

Telephone: (303) 825-7000 

Facsimile: (303) 825-7005 
CERTIFICATE OF SERVICE 

I hereby certify that I have this day served the foregoing Motion To Supplement 

The Record On Appeal and accompanying Affidavit In Support Of Respondent 

Metropolitan Nashville Airport Authority's Reply To Appeal, along with four 

exhibits to the Affidavit, on the following persons at the following addresses by overnight 

Federal Express: 

FAA Office of the Chief Counsel 

Part 16 Airport Proceedings Docket, AGC-610 Room 925 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Original and 3 copies VIA Federal Express No. 7969 1227 9643 

Thomas J. Henderson 

Henderson Law Firm, PLLC 

Suite 350 

1425 K Street, NW 

Washington, DC 20005 

One Copy VIA Federal Express No. 7978 9986 6325 

Dated this 2nd day of September, 2009: 

Lisa A. Reynolds 

Counsel for Respondent MNAA