rs 

UNITED STATES DEPARTMENT OF TRANSPORTI 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

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

RHYTHM SHINE, 

Complainant, 

V FAA Docket No. 16-08-07 

METROPOLITAN NASHVILLE 

AIRPORT AUTHORITY, 

Respondent. 

RESPONDENT METROPOLITAN NASHVILLE AIRPORT AUTHORITY'S 

ANSWER IN OPPOSITION TO COMPLAINANT'S MOTION FOR EXTENSION 

OF TIME TO FILE APPEAL 

The motion by Complainant J&B Enterprises Inc. for an extension of time to file its 

appeal should be denied for a multitude of reasons: 

1. Complainant provides absolutely no explanation for its decision to wait until 

shortly before its appeal was due to retain counsel, despite the fact that the May 5, 

2009 Director's Determination explicitly put Complainant on notice that it must 

appeal within thirty days. Director's Determination, Docket No. 16-08-07, May 

5, 2009 ("Director's Determination") at 33. 

2. Complainant has a history of filing untimely mofions. On December 11, 2009, 

more than 30 days after a Reply was due. Counsel for Complainant filed a request 

for an extension of time to file a Reply. In denying the request, the FAA noted, 

among other things, that "Complainant's counsel failed to provide an explanation 

for the lengthy delay in filing the request for an extension of time." FAA Order, 

Docket No. 16-08-07 dated 1/8/09 ("FAA Order, 1/8/09"), pp. 1-2. 

3. The claim that Complainant has been unrepresented since "relatively early in the 

proceedings" is demonstrably false. J&B Enterprises Inc.'s Motion for Extension 

of Time ("J&B Motion"), 1| 5. On December 11, 2008, more than four months 

after the proceeding was commenced and more than a month after Respondent 

had submitted its answering papers. Complainant's original counsel filed a motion 

for an extension of time to file a Reply. Moreover, in its December 11, 2008 

submission, counsel for Complainant stated that "the Complainant has retained 

counsel to replace [him]." FAA Order, 1/8/09, p. 1. 

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4. The claim that new counsel does not have the benefit of the work product of prior 

counsel is demonstrably false. J&B Motion, ^ 5. Pursuant to § 16.23 (b). 

Complainant must submit its entire case with its complaint, which is in the 

possession of new counsel. 

5. The claim that there has not been a "fair and complete hearing" is demonstrably 

false. J&B Motion, ^^ 3, 6. Complainant's Motion for Extension of Time 

suggests that the FAA has not yet properly heard both sides of the story - that 

only the Authority, and not Complainant, has had the opportunity to present its 

position to the FAA "with the assistance of counsel." J&B Motion, Tj 6. 

However, the suggestion that Complainant has not yet presented its position "with 

the assistance of counsel" is belied by the Complaint in this matter. J&B 

Enterprises was represented by counsel when it filed its Complaint, a pleading 

which was required to "present all relevant facts and arguments necessary" to its 

case. § 16.29. Giving the Complainant another bite at the apple this late in the 

process is not required in order to allow "both parties to present their positions 

with the assistance of counsel" or to achieve a "fair and complete hearing." J&B 

Motion, TI 6. This "justification" for an extension of time should be rejected. 

6. Complainant's failure to Reply to the Authority's Answer at the appropriate time 

does not entitle it to restart the proceedings at that stage now, as Complainant's 

Counsel apparently intends. As noted above, under § 16.23(b) Complainant was 

required to submit its entire case with its Complaint. Also pursuant to § 16.23(g), 

Respondent was required to submit its entire defense with its Answer. Under § 

16.23(e), a Reply is optional, and "[i]n rendering its decision, the FAA may rely 

entirely on the complaint and the responsive pleadings." § 16.29(b)(1); FAA 

Order, 1/8/09, p. 2. The investigation here has been completed, a Director's 

Determination has been issued, and the proceeding cannot be retried on appeal. 

At this point, under the Part 16 rules, the Complainant may only raise issues with 

respect to the Director's Determination issued on May 5, 2009. § 16.33(b). It 

would be improper for the agency to allow Complainant to file now, in essence, a 

Reply to the Authority's Answer. Thus, this "justification" for Complainant's 

motion for extension of time should be rejected. 

7. Complainant attempts to bolster its so-called "justification" for an extension of 

time by asserting that there are important national policy implications involved in 

this Proceeding. J&B Motion, T| 9. First, FAA's role in this Part 16 Proceeding is 

to determine whether the Authority is in compliance with its federal statutory and 

grant obligations. Director's Determination at 17. This is tacitly acknowledged 

in Complainant's recitation of the issues allegedly "of substantial importance to 

the FAA ACDBE Program," to wit, "whether the Respondent complied with the 

ACDBE contract goal.. .whether Respondent's concession policies had an 

unlawful disparate impact on the basis of race .. . whether Respondent's 

concession policies discriminated on the basis of race . . .; and whether 

Respondent's actions were contrary to the administrative, general or compliance 
f% 

requirements" of applicable regulations and grant assurances. J&B Motion, ^ 9. 

Second, as Complainant elsewhere acknowledges, the Director's Determination 

involves "the application of a sophisticated set of regulations and assurances, and 

the underlying legal standards, to an extensive set of facts." J&B Motion, ^ 6, 

emphasis added. The law in this area is well established. What is involved here is 

the application of well established law to the very specific factual circumstances 

surrounding this matter at Nashville International Airport. The only parties at 

interest are J&B and the Authority, as evidenced by the fact that the Part 16 rules 

do not provide for participation by any other parties at this stage of a Part 16 

Proceeding. Thus, contrary to Complainant's claim this case does not have 

important national policy implications. Thus, this "justification" for 

Complainant's motion for extension of time should be rejected. 

8. Contrary to Complainant's assertion. Respondent will be prejudiced by an 

extension of time because the existence of this proceeding is a cloud both over the 

airport's ACDBE program and its efforts to contract for a shoe shine 

concessionaire. Complainant claims that there is no prejudice since the deadline 

for responses to the shoe shine concession RFP is not until July 16, 2009. 

However, even if Complainant submitted its appeal prior to July 16, 2009, 

Respondent's answering papers and a decision by the FAA would be submitted 

substantially after July 16, 2009. 

9. The July 16, 2009 deadline RFP is the second RFP for shoe shine services issued 

by Respondent since the termination of Complainant's contract. The first RFP 

received insufficient responses, including no response by Complainant. 

10. Complainant asserts that "neither of the reasons offered by counsel [in a telephone 

conversation in which Complainant's counsel sought consent to its motion] 

represent cognizable 'prejudice' that would result fi-om granting this extension." 

J&B Motion, Tf 12. The Authority's counsel was under no obligation to provide 

the Authority's legal basis for opposing a motion that had not yet been filed. 

Indeed, it is the proponent of a motion who bears the burden of justifying the 

motion; Complainant has provided no valid justification for its motion here, as 

this Answer in Opposition by the Authority points out. 

11. Complainant's citation of Platinum Aviation and Platinum Jet Center BMI v. 

Bloomington-Normal Airport Authority, Docket No. 16-06-09, July 2, 2007 Order 

for Extension of Time, is unavailing. First, here, unlike in Platinum Aviation, 

there has been no claim, much less any demonstration, of "counsel's prior 

commitments" that would preclude a timely appeal. Second, Complainant has 

provided no explanation as to why it did not seek, upon Complainant's receipt of 

the Director's Determination, copies of the additional exhibits to the Director's 

Determination, which it now claims it must examine. 
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12. Finally, granting an extension of time to appeal this proceeding will unnecessarily 

waste the time and resources of both the FAA and Respondent. As noted by the 

Director in his comprehensive Determination: "Respondent made extraordinary 

efforts to resolve the disputes between the Complainant and Hudson, and to 

otherwise accommodate the Complainant's concerns" and the ACDBE program 

"does not give the Complainant a perpetual right to operate the shoeshine 

concession without competing for such a right. Director's Determination at 31-32. 

Respectfiilly submitted this 8th day of June, 2009: 

Robert Watson 

Metropolitan Nashville Airport Authority 

One Terminal Drive, Suite 501 

Nashville, TN 37214 

Telephone: (615) 275-1637 

Facsimile: (615)275-4302 

tnur 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) 955-5600 

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 

Counsel for Respondent Metropolitan Nashville Airport Authority 
CERTIFICATE OF SERVICE 

I hereby certify that I have this day served a true copy of the foregoing RESPONDENT 

METROPOLITAN NASHVILLE AIRPORT AUTHORITY'S ANSWER IN 

OPPOSITION TO COMPLAINANT'S MOTION FOR EXTENSION OF TIME 

TO FILE APPEAL on the following parties at the following addresses by overnight 

mail this 8th day of June, 2009: 

Office of the Chief Counsel (original and three copies) 

ATTN: FAA Part 16 Airport Proceedings Docket, AGC - 610 

Room 925 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Federal Express No. 7976 6039 3580 

Elizabeth Newman 

Federal Aviation Administration 

Room 923-M 

800 Independence Avenue, SW 

Washington, DC 20591 

Federal Express No. 7976 6040 8223 

Thomas J. Henderson 

Henderson Law Firm, PLLC 

Suite 350 

1425 K Street, NW 

Washington DC 20005 

Federal Express No. 7966 7306 1477 

Dana Loose 

for 

Metropolitan Nashville Airport Authority