UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

WILLIAM ALFRED HICKS, JR. 

a!k/a BILLY HICKS 

Complainant, 

vs. 

CITY OF MOUNT AIRY, NORTH 

CAROLINA; and the COUNTY OF SURRY, 

NORTH CAROLINA; through the MOUNT 

AIRY/SURRY COUNTY AIRPORT 

AUTHORITY 

Respondent. 

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FAADocketNo.l6-15-07 

REBUTTAL TO COMPLAINANT'S 

REPLY TO ANSWER TO 

COMPLAINT 

~ECEIVED 

Nov 04 2o15 

Submitted By: ~'AR; 16 DOCKEr,e. 

Howard C. Jones II, Attorney At Law "' 

105 West Fourth Street, Suite 400-E 

Winston-Salem, NC 27101 

Phone: 336 750-0860; Cell: 336-816-1716 

Fax: (336) 727-1085 

Email: howardcjonesii@gmail.com 

Attorney for Mount Airy/Surry County Airport Authority 

The Mount Airy/Surry County Airport Authority ("the Authority") hereby files 

the following rebuttal to the reply filed by complainant. Respondent notes that the 

sponsors, the County of Surry and the City of Mount Airy, have previously filed notices 

adopting the pleadings "filed and to be filed" by the Authority. 

PART 16 PROCEDURAL HISTORY 

On May 4 2015 (and after losing in state court), complainant commenced this Part 

16 proceeding by filing a forty-nine-page complaint seeking to re-litigate his claim for 

renewal of a hangar lease. In an attempt to buttress this claim, the Part 16 complaint 
asserted a lengthy list of alleged grant assurance violations, which spanned over a dozen 

years and concerned persons who are not a party to this Part 16 proceeding. The 

complaint attached voluminous but dated and irrelevant newspaper articles, printouts 

from the Internet and other unauthenticated docmnents. 

On May 26 2015, this tribunal served a Notice of Docketing on the parties. On 

June 6 2015, respondents filed a motion for an extension of time. On June 16 2015, this 

tribunal entered an order extending the time for respondents to file an answer or 

appropriate motion until August 3 2015. On July 31 2015, respondents filed a motion to 

dismiss or in alternative, motion for sununary judgment. In support of these motions, 

respondents filed six affidavits and a composite exhibit of the lengthy litigation history of 

this matter in state and federal court. 

Each of respondents' affidavits were made on the basis of the affiant's personal 

knowledge. Each of respondents' affidavits detailed the basis of this knowledge and 

authenticated the exhibits which were attached thereto. None of respondents' affidavits 

contained speculation or conjecture, nor did they contain statements based upon 

information and belief. 

On August 16 2015, complainant filed a response to the motions along with an 

affidavit executed by complainant. As discussed below, complainant's affidavit contains 

numerous assertions based upon information and belief and is rife with complainant's 

unsupported speculations and conclusions. 

On August 24 2015, respondents filed a motion to strike that portion of 

complainant's response which asserted that respondents violated the inapplicable design 

standards which complainant filed as an exhibit. Respondents' motion to strike was 

2 
based on (1) the fact that this assertion was not alleged in the complaint and complainant 

had not filed a motion for leave to amend the complaint; and (2) in any event, 

complainant filed and argued the wrong design standards. On September 8 2015, 

complainant filed a response which conceded that complainant filed the wrong design 

standards. However, complainant did not seek leave to amend the complaint. 

On October 3 2015, respondents filed their answer to the complaint. In addition 

to specifically addressing each of the factual allegations in complaint, respondents' 

answer incorporated the previously filed six affidavits; the exhibits attached thereto; the 

composite litigation history exhibit; and respondents' memorandum. 

On October 19 2015, complainant filed a reply to the answer. The reply did not 

attach any further affidavits or exhibits. Instead, complainant's reply incorporated 

complainant's previously filed response and affidavit. 

Complainant's reply also failed to address most of the affirmative defenses raised 

in the answer. Although complainant's reply briefly discussed lack of standing, lack of 

jurisdiction and failure to engage in settlement attempts, the reply did not address the 

other nine affirmative defenses raised in respondents' answer. 

ARGUMENT 

This rebuttal has three parts. Part I explains that complainant's reply is based on a 

fundamental misunderstanding of the burden of proof in a Part 16 proceeding. Part II 

explains that the only affidavit complainant has filed is defective and does not constitute 

admissible evidence. Part III discusses complainant's failure to carry his burden of proof 

and complainant's attempts to move the goal posts and raise new allegations to avoid his 

evidentiary shortfall. 

3 
I. COMPLAINANT'S REPLY IS BASED ON A MISUNDERSTANDING OF 

THE BURDEN OF PROOF IN A PART 16 PROCEEDING. 

Complainant's reply to respondents' answer asserts that respondents have failed 

to meet their burden of proof by not filing additional evidence to support their denials of 

the complaint. (Complainant's Response to Answer, p. 10-11). This argument overlooks 

the fact that respondents have already filed six affidavits and numerous authenticated 

exhibits disproving the allegations of the complaint. More importantly, as this tribunal 

has previously explained, this argument indicates a fundamental misunderstanding of the 

Part 16 process. 

Throughout the administrative record, Complainants argue that 

Respondent's failure to refute Complainants' claims with evidentiary 

support is proof of the allegation. This is not correct. The burden of proof 

lies with the Complainants. 

M. Daniel Carey & Cliff Davenport, Complainants, 16-06-06, 2007 WL 430630, at *45, 

Director's Determination, (Jan. 19, 2007). 

Indeed, section 16.23(k)(l) specifically addresses the burden of proof in a Part 16 

proceeding: 

The burden of proof is on the complainant to show noncompliance with an 

Act or any regulation, order, agreement or document of conveyance issued 

under the authority of an Act. 

14 C.F.R. § 16.23(k)(l). Thus, it is complainant's burden to prove non-compliance with 

grant assurances. It is not respondent's burden to prove a negative - that respondents 

have not-not-complied. As discussed below, complainant has failed to carry his 

evidentiary burden and the complaint should be dismissed. 

4 
II. COMPLAINANT'S AFFIDAVIT IS FATALLY DEFECTIVE AND DOES 

NOT CONSTITUTE ADMISSIBLE EVIDENCE. 

Complainant has only submitted one affidavit in these proceedings - his own. On 

many of the matters it discusses, complainant's affidavit is not made upon his personal 

knowledge. Nor does it detail specific facts, which support his claims. Instead, 

complainant's affidavit is based on unsupported assertions that complainant has been 

"informed" and "believes" something to be the case. See Hicks Affidavit, paragraphs 11, 

16, 17, 22, 24, 34. 

If this were not bad enough, many portions of complainant's affidavit do not even 

explain what he is talking about. Instead, complainant's affidavit baldly asserts that he 

believes that, in some as yet unidentified way, respondents have done something wrong. 

For example, in paragraph 3 3 of his affidavit complainant sates, "I am informed and 

believe that there are still problems remaining about the acquisition of property." 

The obvious response to this assertion is "What problems?" The obvious flaw in 

this tactic is that vague and unsubstantiated assertions are conjecture, not evidence. And 

the obvious problem with trial by disparagement is that this is not a Star Chamber; this is 

an administrative proceeding being conducted by the FAA. 

This tribunal has previously held that a complainant's assertions based on 

information and belief are not a substitute for evidence. 

The Complainants' allegation that the City has not implemented the 

recommendations of the Panel Report are based upon the Complainants' 

""information and beliefs." The Director's review of the record shows that 

the Complainants provided very little evidence to substantiate this 

allegation. 

In order for the Director to find a sponsor in violation of its Federal 

obligations under a Part 16 proceeding, not only must the Complainant 

5 
include sufficient factual evidence to support its allegations, but also 

establish by a preponderance of substantial and credible evidence that the 

sponsor has violated its Federal obligations. The Director finds that the 

evidence submitted to the record by the Complainants in support of this 

allegation is insufficient to meet this criterion. 

Kenneth D. Paskar & Friends of Laguardia Airport Inc., Complainants, 16-11-04, 2012 

WL 11789183, at *51, Director's Determination (Sept. 27, 2012) (citing BMI Salvage 

Corporation & Blueside Services, Inc. v. Miami-Dade County, Florida, FAA Docket No. 

16- 05-16, (July 25, 2006) (Director's Determination). BMI v. FAA, No. 07-12058 (ll'h 

Cir, Apr. 8, 2008), reversed and remanded with instructions on other grounds). 

Similarly, federal courts have long and uniformly held that affidavits based upon 

information and belief are not admissible evidence. See Automatic Radio Mfg. Co. v. 

Hazeltine Research, 339 U.S. 827, 831, 70 S. Ct. 894, 896, 94 L. Ed. 1312 (1950) 

overruled on other grounds, Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 

L.Ed.2d 610 (1969); Pittman v. Tucker, 213 F. App'x 867, 870 (11th Cir. 2007); lOB 

Wright, Miller & Kane, Federal Practice & Procedure § 2738 (2009). These authorities 

also mandate that affidavits detail the affiant's first hand knowledge of specific facts that 

support his or her claim. 

Here, the affidavit of complainant is based in large measure on his purported 

"information and belief." Here, complainant's affidavit also fails to detail the facts of 

which he has personal knowledge and which would support the allegations of his 

complaint. Accordingly, complainant's affidavit is not admissible evidence and cannot 

be used to carry complainant's evidentiary burden to demonstrate non-compliance. 

6 
III. COMPLAINANT HAS FAILED TO MEET HIS BURDEN OF PROOF. 

It is complainant's burden to "establish by a preponderance of substantial and 

credible evidence that the sponsor has violated its Federal obligations." Paskar, supra. 

Moreover, "Complainants will not be deemed to meet this burden simply because they 

have submitted volumes of pages in exhibits if they have failed to explain how the 

individual exhibits support specific allegations." Jetaway Aviation, Inc., Complainant, 

16-08-01, Director's Determination, 2009 WL 2136622, at *46 (July 2, 2009). 

As discussed above, the only affidavit which respondent has filed is his own, 

which is based on his beliefs and speculation. Complainant has also filed reams of paper. 

From inaccurate (and outdated) small town newspapers articles to incomplete (and out of 

date) Face book pages to unidentified and irrelevant photographs, and from a misleadingly 

incomplete audit report to inapplicable runaway specifications. Most of these documents 

do not pass muster as admissible evidence. None of these documents demonstrate noncompliance with grant assurances. 

In contrast, respondents have submitted six affidavits, each of which is limited to 

matters within the affiant's personal knowledge, sets forth detailed facts to demonstrate 

the basis of this knowledge and sets forth the specific facts which support respondents' 

position. Further, each of the exhibits respondent has submitted are identified under oath 

and each of the exhibits support respondents' denials of complainant's allegations. 

Simply put, complainant has not meet his burden of proof and he has not 

complied with the Rules of Practice for Federally-Assisted Airport Enforcement 

Proceedings. 

7 
With regard to the motivation behind the Part 16 complaint - the 

termination of complainant's lease. The complaint in this matter revolves around 

complainant's unsubstantiated conspiracy theory that the Authority refused to extend 

complainants' lease in order to retaliate against complainant. Respondents have 

submitted Mr. Springthorpe's sworn testimony that: (I) the Authority did not renew 

complainant's lease because, and only because, complainant damaged the aircraft of 

several tenants and in so doing violated the fire code and the lease; and (2) no other 

tenant has ever engaged in this misconduct to the damage of other tenants' property. 

Complainant has submitted no competent evidence to contradict this. 

complainant rests his case on his belief that he was retaliated against. 

Instead 

As discussed inore fully in respondents' memorandum in support of their motions 

to dismiss and for summary judgment, in order to establish a claim for economic 

discrimination under Grant Assurance 22, "the Complainant must explain how another 

similarly-situated tenant violated the Rules and Regulations and was sanctioned less 

severely or not all." Aero Ways, Inc., Complainant, 16-09-12,2010 WL 3826304, at *18-

19 (Aug. 30, 2010). 

Complainant has not come forward with any evidence that he was treated 

differently than a similarly situated tenant. Instead, complainant's affidavit rests on his 

assertion that someone told someone else that a Mr. Gammons painted an aircraft. The 

problem for claimant is that his affidavit does not state that Mr. Gammons was a tenant 

(and he was not) nor does it state that Mr. Gammons damaged another tenant's aircraft 

(and he did not). 

8 
Complainant has not introduced evidence he was treated differently than another 

similarly situated tenant- because there are no other similarly situated tenants- no other 

tenant has violated the rights of his fellow tenants by damaging their aircraft. 

With regard to the other allegations in the Part 16 complaint. Complainant 

has not submitted any competent evidence that respondents are currently in violation of 

grant assurances. Although not their burden, respondents have filed six affidavits with 

authenticated exhibits demonstrating that respondents are not in violation of grant 

assurances. Instead of addressing the evidence that contradicts complainant's allegations, 

complainant has repeatedly tried to inject new allegations without seeking leave to 

amend. In other words, complainant has tried to "move the goal posts." See Ideal 

Instruments, Inc. v. Rivard Instruments, Inc., 243 F.R.D. 322, 346 (N.D. Iowa 2007) 

(holding that moving the goal posts gave rise to an inference of intent to delay and 

complicate the proceedings and imposing sanctions under Rule 11 of the Federal Rules of 

Civil Procedure ).1 

Complainant has used this practice throughout these proceedings to try and 

obfuscate the issues and breathe new life into claims which respondents' evidence has 

disproven. Two of the more glaring examples are complainant's evolving assertions 

regarding the audit and property acquisition claims. 

Moving the goal posts regarding the audit. The Part 16 complaint originally 

asserted that no audit was performed. (Part 16 Compl., p. 6). Respondents filed 

1 "Courts have used several sports metaphors to capture this unfortunate phenomenon: 

moving the target, moving the goal posts, hiding the ball, raising the bar, etc." 

Holmstrom v. Metro. Life Ins. Co., 615 F.3d 758,776 (7th Cir. 2010). 

9 
uncontroverted evidence that an audit was in fact performed and that complainant had 

misleadingly omitted a full and complete copy of the report from his filing. (See 

affidavits of Springthorpe and Zamora). Respondents also filed uncontroverted evidence 

that the Authority undertook detailed efforts to correct the issues identified in the audit. 

I d. 

In responding to this evidence, complainant failed to address the fact that the 

allegations of the complaint are false; complainant also failed to explain why he filed a 

materially redacted copy of the CPA's report. (Complainant's Response to Answer, p. 

8). Instead, complainant has attempted to move the goal posts for this claim and now 

asserts that the audit should have been for a longer period. (Complainant's Response to 

Motion, p. 6; complainant's Response to Answer, p. 8)). This new assertion is not in the 

complaint and has nothing to do with the original claim that an audit was not performed. 

Nor does it support a claim for violation of grant assurances. 

Moving the goal posts regarding property acquisition for the expansion 

project. The complaint originally alleged that respondents violated grant assurances by 

failing to acquire six specific properties which complainant contended were necessary to 

relocate the Holly Springs Road for the airport expansion project. (Part 16 Complaints, 

p. 14). Respondents filed affidavits and exhibits demonstrating that these allegations 

were false. {Affidavit of Jonathan E. Semones, Certified Tax Mapper and Affidavit of 

Jeff Kirby, Engineer). 

Complainant completely failed to address this evidence. Let alone explain why 

complainant made these false allegations in the complaint. Instead, complainant has 

attempted to move the goal posts for this claim and now asserts that the plans respondent 

10 
filed (previously approved by the FAA) do not comply with design specifications. 

However, neither design specifications, nor Grant Assurance 34 (which governs 

compliance with design specifications) are even mentioned in the complaint. This newly 

erected goal post is not even on the playing field. 

These are but two examples. A full comparison of the Part 16 complaint filed in 

this matter and the evidence submitted by the parties demonstrates that on each of the 

complainant's claims, the complainant has either failed to carry his burden of proof or 

tried to change the allegations of his complaint, or both. Neither of these shortcomings 

complies with the Rules of Practice for Federally-Assisted Airport Enforcement 

Proceedings, nor does this facile approach to litigation carry complainant's burden to 

"establish by a preponderance of substantial and credible evidence" that respondents are 

currently in violation of grant assurances. Paskar, supra. 

Conclusion 

Complainant has failed to carry his burden of proof. Accordingly, respondents 

respectfully request that this tribunal dismiss the complaint with prejudice and for such 

other and further relief, as this tribunal deems appropriate. 

71) 

Respectfully submitted, this the~ day ofNovember 2015. 

on 

E rth Street, Suite 400-E 

-Salem, NC 2710106 

Telephone: (336) 750-0860 

Fax: (336) 727-1085 

Email: howardcjonesii@gmail.com 

Attorney for Mount Airy /Surry County Airport Authority 

11 
CERTIFICATE OF SERVICE 

I, Howard C. Jones II, certify that on November 2 2015 I filed and served this 

Rebuttal by placing the original thereof and three copies to the FAA, in prepaid first class 

or express envelopes or boxes in the custody of the United States Mail and by delivering 

a copy to counsel of record addressed as follows: 

Mailed To: 

FAA Part 16 Docket Clerk 

AGC-600 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, DC 20591 

Mailed To: 

Randolph M. James 

Attorney for Plaintiffs 

Randolph M. James, P.C. 

P.O. Box 20069 

Winston-Salem, NC 27120 

Attorney For Complainant 

Mailed To: 

Edwin M. Woltz 

119 Rawley A venue 

Mount Airy, NC 27030 

Attorney for the County of Surry, North Carolina 

Mailed To: 

Hugh B. Campbell, III 

235 E. Independence Blvd. 

PO Box 1846 

Mount Airy, North Carolina 27030 

Attorney for the City of Mount Airy, North Carolina 

12 
FAA Part 16 Docket Clerk 

AGC-600 

Federal Aviation Administration 

800 Independence A venue SW 

Washington, DC 20591 

November 3 2015 

HOWARD C. JONES II 

ATTOHNEY AT LAW 

howardcjoncs@a1 tgloba]. ne1 

105 WEST FOl3HTH STL\EET SUITE ~00 E 

WINSTON-SALEM. NC 27101 

TELEPIIONE: '3:16.750.0860 

FAX: :336.727. 1 085 

RECEIVED 

NOV o 4 2015 

PART 16 DOCKETS 

Re: William Alfred Hicks, Jr. A/K/A Billy !-licks V. City Of Mount Airy, North 

Carolina; And The County Of Surry, North Carolina; Through The Mount Airy/Surry 

County Airport Authority; FAA Docket No. 16-15-07 

Dear FAA Part 16 Docket Clerk: 

Enclosed please find an original and three copies (one of which has not been 

stapled) of respondent Mount Airy/Surry County Airport's Rebu!lal to Reply to Answer 

to Complaint. 

Also enclosed is copy of the 11rst page of the motion. Please mark this as filed 

and return it in the self addrcssccl and stamped envelope. 

Thank for your consideration ol"this matter 

Sincerel.v. · ,/ 

,'/ 

/" // ·'---~~~-

/ •' 

::fov/i(r.d C. Jones II 

cc: counsel of record