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UNITED STATES DEPARTMENT OF TRANS F 

FEDERAL AVIATION ADMINISTRAITIOW 

WASHINGTON, DC 

C E 1 W 

DEC 2 4 2009 

TATIQN 

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AIRPORT/ENVlBflflMENTAL 

LAW, AGC-600 

RDM, LLC, 

Complainant, 

V. 

TED STEVENS ANCHORAGE 

INTERNATIONAL AIRPORT, 

Respondent. 

_X3 —I 

Docket No. 16-09-14 --. 

c 5 

SUPPLEMENTAL CERTIFICATION AND MEMORANDUM 

IN SUPPORT OF 

MOTION TO ACCEPT LATE-FILED ANSWER 

This Supplemental Certification and Memorandum updates information 

not available at the time of submission of the Certification in Support of Motion to 

Accept Late-Filed Answer in the above matter, as well as to note the applicability of 

FAA precedent supporting acceptance of the late-filed answer. 

CERTIFICATION 

1, As stated in the Certification in Support of Motion to Accept LateFiled Answer and supporting certification, the undersigned counsel delivered the 

Answer and supporting materials, both for filing and for service, to the United States 

Post Office in Anchorage, Alaska, on December 8, 2009. That delivery, however, was 

just before midnight, as is reflected on the United States Postal Service (USPS) Express 

Mail tracking print-out ("Acceptance, December 08, 2009, 11:59 pm") for the first of 

two boxes to the FAA. See attached Exhibit "A." By the time I had filled-out the 

Supplemental Certification and Memorandum 

in Support of Motion to Accept Late-Filed Answer 

RDM, LLCv.ANC 

Page 1 of 5 

Docket No. 16-09-14 
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• 

second Express Mail slip, the second FAA box was logged accepted by the USPS 

"December 09, 2009, 12:01 am" See attached Exhibit "B." 1 am not sure whether the 

package for service on Complainant was processed before or after the second FAA 

package, but it may have reflected December 9, 2009 postmark. 

2. Although 49 CFR § 16.13 (b) states that documents shall be 

deemed filed on the mailing date shown in the certificate of service, counsel believes it 

proper to present the foregoing facts to clarify the Certificafion of Counsel and the 

various Certificates of Service. 

3. By signature below, counsel certifies the above to be true and 

correct to qualify the statement in the Motion to Accept Late-Filed Answer that the 

Answer was "filed one day late," to cure any error in my previously-filed Certification 

of Counsel, and to cure any error in my previously-filed Certificates of Service as to the 

Answer, Motion to Accept Late-Filed Answer, Certification of Counsel in Support of 

Motion to Accept Late-Filed Answer, (proposed) Order Accepting Late-Filed Answer, 

Motion to Dismiss, Memorandum in Support of Motion to Dismiss, and (proposed) 

Order of Dismissal with Prejudice. 

Certification: 

iz «-^) 

FAA PRECEDENT 

3. FAA precedent shows that unless a complainant establishes that it 

has been prejudiced by the late filing, it is appropriate for the FAA to accept an answer: 

Supplemental Certification and Memorandum 

in Support of Motion to Accept Late-Filed Answer 

RDM, LLC V. ANC 

Page 2 of 5 

Docket No. 16-09-14 
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. . . Mr. Turner filed an Objection to Respondent's Answer to 

Motion. Mr. Turner argues that the Respondent's answer to the 

motion was filed after the ten day period in violation of 14 CFR Part 

16.17(c), which generally requires that answers to motions must be 

filed within ten days after the motion has been served on the party. 

Although the answer to the motion was filed after the ten days, the 

late document did not, in any manner, prejudice Mr. Turner's case. 

Mr. Turner has never demonstrated how he was prejudiced or 

harmed by the late filing (about eight days) of the Respondent's 

Motion. 

[T]he FAA has not been made aware of any harm that would have 

occurred in this process as a result of some documents being filed 

late.... 

Mr. Turner's appeal does not provide any basis for reversing the 

Director's Determinafion.... 

Turner v. City o/Kokomo, FAA Docket No. 16-98-16 at 10 (July 27, 1999) (Final 

Decision and Order). 

4. Although Turner involved an answer to a motion rather than to a 

complaint, the requirement that an objecting party show prejudice should apply with at 

least equal force to Respondent's barely late answer to the complaint in this case. Part 

16 Rules of Practice do not include a provision for default, or for a complainant's 

allegations to be deemed admitted, absent timely answer. Unless the FAA grants 

Respondent's Motion to Dismiss, the nature and scope of Complainant's allegations in 

this case would preclude an initial determination based on those allegations alone, in 

any event. Were Respondent's Answer to be rejected as untimely, then the FAA would 

need to advance to investigation under 49 CFR § 16.29, and would need to gather from 

Supplemental Certification and Memorandum 

in Support of Motion to Accept Late-Filed Answer 

RDM, LLC V. ANC 

Page 3 of 5 

Docket No. 16-09-14 
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Respondent essentially the same responses to the allegations of the Complaint to 

determine whether the airport is in compliance. Acceptance of Respondent's Answer, 

therefore, expedites rather than delays this proceeding. 

5. Complainant RDM, LLC, is an investor in another limited liability 

company that formerly held lease from Respondent to development facilities for rental 

at the airport. RDM complains about the terms of that lease signed in 2005, 

Respondent's enforcement of the terms of that lease, and cancellation of that lease in 

February, 2009. Inasmuch as the limited liability company in which RDM invested 

never developed the leased property or engaged in any airport services, and RDM 

alleges wrongs in the relatively recent past rather than ongoing or ancient wrongs, there 

appears to be no issue of any immediacy whereby RDM is prejudiced by Respondent's 

Answer having been filed one or two days late. 

DATED this 11th day of December, 2009 at Anchorage, Alaska. 

DANIEL S. SULLIVAN 

ATTORNEY GENERAL 

By: 

Johrf L. Steiner 

Swiior Assistant Attorney General 

ABA No. 8711108 

Supplemental Certification and Memorandum 

in Support of Motion to Accept Late-Filed Answer 

RDM. LLC V. ANC 

Page 4 of 5 

Docket No. 16-09-14 
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• 

Certificate Of Service 

I hereby certify that on December 11, 2009,1 have this day served the foregoing 

SUPPLEMENTAL CERTIFICATION AND MEMORANDUM IN SUPPORT OF 

MOTION TO ACCEPT LATE-FILED ANSWER on the following persons at the 

following addresses: 

Federal Aviation Administration 

Office of the Chief Counsel 

Attn.: FAA Part 16 Airport Proceedings Docket, AGC-610 

Room 925 

800 Independence Ave., S.W. 

Washington, D.C. 20591 

Shaun Debenham 

Managing Members of RDM, LLC 

2960 C Street, Suite 202 

Anchorage, AK 99503 

via: 

n hand delivery 

n faxed 

H mailed 

'^fi^^ . xy>(^^ 

John LySteiner 

Senicff Assistant Attorney General 

Attorney General's Office 

Attorneys for Ted Stevens Anchorage International Airport 

Supplemental Certification and Memorandum 

in Support of Motion to Accept Late-Filed Answer 

RDM, LLC V. ANC 

Page 5 of 5 

Docket No. 16-09-14 
USPS - Track & Confirm Page 1 of 1 

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Label/Receipt Number: EG14 7437 689U S 

Class; Express Mail® 

Status; Delivered 

Your item was delivered at 11:30 AM on December 11, 2009 in ' 

WASHINGTON, DC 20591 to FAA 20591 R9 . The item was signed for by «., 

C WASHINGTON. 

Detailed Results; 

> Delivered, December 11, 2009,11:30 am, WASHINGTON, DC 20591 

• Arrival at Post Office, December 11, 2009, 5:54 am, WASHINGTON, DC 20022 

• Processed through Sort Facility, December 10, 2009,10:29 pm, DULLES, VA 20101 

• Processed through Sort Facility, December 09, 2009,12:20 am, ANCHORAGE, AK 99530 

• Acceptance, December 08, 2009,11:59 pm, ANCHORAGE, AK 99519 

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Label/Receipt Number; EG14 7437 675U S 

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Your item was delivered at 11 ;30 AM on December 11, 2009 in I 

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Detailed Results; 

• Delivered, December 11,2009,11:30 am, WASHINGTON, DC 20591 

• Arrival at Post Office, December 11,2009, 5:54 am, WASHINGTON, DC 20022 

• Processed through Sort Facility, December 10, 2009,10:29 pm, DULLES, VA 20101 

• Processed through Sort Facility, December 09, 2009,12:20 am, ANCHORAGE, AK 99530 

• Acceptance, December 09, 2009,12:01 am, ANCHORAGE, AK 99519 

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