UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERALAVIATION ADMINISTRATION WASHINGTON, DC WILLIAMALFRED HICKS, JR. a!k/aBILLY HICKS Complainant,

vs. CITY OFMOUNTAIRY, NORTH CAROLINA; and the COUNTY OF SURRY, NORTH CAROLINA; throughthe MOUNT AIRY/SURRY COUNTY AIRPORT AUTHORITYRespondent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) FAADocketNo.l6-15-07

REBUTTAL TO COMPLAINANT'S REPLY TO ANSWER TO COMPLAINT



# ~ECEIVED Nov 042o15 SubmittedBy:



## ~'AR; 16DOCKEr,e. Howard C. JonesII,AttorneyAtLaw "' 105WestFourth Street, Suite400-E Winston-Salem,NC 27101 Phone: 336 750-0860; Cell: 336-816-1716 Fax: (336) 727-1085 Email: howardcjonesii@gmail.com AttorneyforMountAiry/Surry CountyAirportAuthority
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 ofSurry and the City ofMount Airy, have previously filed notices adoptingthepleadings "filedandto be filed" by theAuthority. PART 16 PROCEDURALHISTORY OnMay4 2015 (and afterlosing 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 complaintasserted a lengthy list ofalleged 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 fromthe Internet and otherunauthenticateddocmnents. On May 26 2015, this tribunal served a Notice ofDocketing on the parties. On June 6 2015, respondents filed a motion for an extension oftime. 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 ofthese motions, respondents filed six affidavits and acomposite exhibit ofthe lengthy litigationhistory of this matterin state and federal court. Each ofrespondents' affidavits were made on the basis ofthe affiant's personal knowledge. Each ofrespondents' affidavits detailed the basis of this knowledge and authenticated the exhibits which were attached thereto. None ofrespondents' affidavits contained speculation or conjecture, nor did they contain statements based upon information andbelief. On August 16 2015, complainant filed a response to the motions along with an affidavit executedby 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

2based on (1) the fact thatthis 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, complainantdidnot seekleave to amendthe 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 litigationhistory exhibit; andrespondents' 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'spreviously filed response and affidavit. Complainant'sreply also failed to address most ofthe 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 othernine affirmative defenses raised in respondents' answer. ARGUMENT This rebuttalhasthreeparts. PartI explains thatcomplainant'sreply is based on a fundamental misunderstanding ofthe burden ofproofin 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'sfailure to carry his burden ofproof and complainant's attempts to move the goal posts and raise new allegations to avoid his evidentiary shortfall.

3I. COMPLAINANT'S REPLY IS BASED ON A MISUNDERSTANDING OF THE BURDEN OF PROOFINA PART 16 PROCEEDING. Complainant's reply to respondents' answer asserts that respondents have failed to meet their burden ofproofby not filing additional evidence to support their denials of the complaint. (Complainant'sResponse to Answer, p. 10-11). This argument overlooks the fact that respondents have already filed six affidavits and numerous authenticated exhibits disproving the allegations ofthe complaint. More importantly, as this tribunal has previously explained, this argument indicates a fundamental misunderstanding ofthe Part 16 process. Throughout the administrative record, Complainants argue that Respondent's failure to refute Complainants' claims with evidentiary support is proofofthe allegation. This is not correct. The burden ofproof lies withthe Complainants. M.Daniel Carey & CliffDavenport,Complainants, 16-06-06,2007 WL430630, at *45, Director'sDetermination,(Jan. 19,2007). Indeed, section 16.23(k)(l) specifically addresses the burden ofproofin a Part 16 proceeding: Theburden ofproofis on the complainantto show noncompliance with an Actor any regulation, order, agreement ordocument ofconveyanceissued underthe authority ofan 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 complaintshould be dismissed.

4II. COMPLAINANT'S AFFIDAVIT IS FATALLY DEFECTIVE AND DOES NOT CONSTITUTEADMISSIBLEEVIDENCE. Complainanthas only submitted one affidavitintheseproceedings

- his own. On many ofthe 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" somethingto be the case. See Hicks Affidavit, paragraphs 11, 16, 17, 22, 24, 34. Ifthis were notbadenough, manyportions ofcomplainant'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 ofhis affidavit complainant sates, "I am informed and believe thatthere are stillproblemsremaining aboutthe acquisition ofproperty." The obvious response to this assertion is "Whatproblems?" 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 thatthis is not a Star Chamber; this is
an administrativeproceedingbeing conductedby theFAA. This tribunal has previously held that a complainant's assertions based on informationandbeliefare 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 ofthe 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
5include 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 insufficientto 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 ofspecific facts that supporthis orher 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'sevidentiary burden to demonstrate non-compliance.

6III. COMPLAINANTHAS FAILED TOMEET 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 WL2136622,at *46 (July2,2009).
As discussed above, the only affidavit which respondent has filed is his own, which is based onhis beliefs and speculation. Complainanthas also filed reams ofpaper. Frominaccurate (and outdated) small town newspapers articles to incomplete (and out of date) Facebookpages to unidentified andirrelevantphotographs, and from amisleadingly incomplete audit report to inapplicable runaway specifications. Most ofthese documents do not pass muster as admissible evidence. None ofthese documents demonstrate noncompliance withgrantassurances. In contrast, respondents have submitted six affidavits, each ofwhich is limited to matters within the affiant's personal knowledge, sets forth detailed facts to demonstrate the basis ofthis knowledge and sets forth the specific facts which support respondents' position. Further, each ofthe exhibits respondenthas 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.

7With 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. complainantrests his case onhis beliefthathewas retaliated against. Instead

As discussed inore fully in respondents' memorandum in support oftheir 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, 16-09-12,2010WL 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).

8Complainant 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 ofhis fellow tenants by damagingtheir 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 ofaddressingthe evidence thatcontradicts 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 ofthe 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 regardingthe 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).

9uncontroverted 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. Id. In responding to this evidence, complainant failed to address the fact that the allegations ofthe 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 supporta claimfor violation ofgrant 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 JeffKirby, 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 thatthe plans respondent

10filed (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 inthe complaint. This newly erected goal postis noteven on the playingfield. These are but two examples. A full comparison ofthe Part 16 complaintfiled 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 ofhis complaint, or both. Neither ofthese 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 ofsubstantial and credible evidence" that respondents are currentlyin violation ofgrant assurances. Paskar, supra. Conclusion Complainant has failed to carry his burden ofproof. Accordingly, respondents respectfully request that this tribunal dismiss the complaint with prejudice and for such other and furtherrelief, as thistribunal deems appropriate.
71) Respectfully submitted,this



### the~ day ofNovember2015.

on E rth Street, Suite 400-E -Salem,NC 2710106 Telephone: (336) 750-0860 Fax: (336) 727-1085 Email: howardcjonesii@gmail.com Attorney forMount Airy/Surry County AirportAuthority

11CERTIFICATE OF SERVICE
I, Howard C. Jones II, certify that on November

# 2 2015 I filed and servedthis Rebuttal byplacing the original thereofand three copies to the FAA, inprepaidfirst class or express envelopes orboxes inthe custody ofthe United States Mail and by delivering a copyto counsel ofrecordaddressed as follows: MailedTo: FAAPart 16 Docket Clerk AGC-600 Federal AviationAdministration 800 Independence Avenue SW Washington, DC 20591 MailedTo: Randolph M. James Attorney for Plaintiffs RandolphM. James, P.C. P.O. Box20069 Winston-Salem,NC 27120 Attorney ForComplainant MailedTo: EdwinM. Woltz 119 RawleyAvenue MountAiry, NC 27030 Attorney forthe County ofSurry,North Carolina Mailed To: HughB. Campbell, III 235 E. IndependenceBlvd. PO Box 1846 MountAiry, North Carolina27030 Attorney for the City ofMountAiry, NorthCarolina

12FAA Part 16 Docket Clerk AGC-600 Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 November 3 2015 

## HOWARD C. JONES II ATTOHNEY AT LAW howardcjoncs@a1tgloba].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 42015 PART16DOCKETS

Re: William Alfred Hicks,Jr. A/K/A Billy !-licks V. City OfMountAiry, North Carolina; And The County OfSurry, North Carolina; Through The Mount Airy/Surry County Airport Authority; FAA DocketNo. 16-15-07 Dear FAA Part 16 Docket Clerk: Enclosed please 

### find an original and three copies (one

### ofwhich has not been stapled) ofrespondent Mount Airy/Surry County Airport'sRebu!lal to Replyto Answer to Complaint. Also enclosed is copy ofthe 11rstpage ofthe motion. Please mark this as filed and return it in the selfaddrcssccl and stamped envelope. 

### Thank for your consideration ol"this matter
Sincerel.v. · ,/ ,'/ /" //**·'---~~~-** / •' ::fov/i(r.d C. Jones II cc: counsel ofrecord