By Paul Gable
A federal magistrate judge has ordered discovery to go forward in a lawsuit brought by Aaron Holly against Horry County, Horry County Department of Airports (HCDA), the Federal Aviation Administration (FAA) and Robinson Aviation, the operator of the control tower at Grand Strand Airport.
Holly claims conspiracy among the defendants to deprive him of his Constitutional rights with respect to 14th Amendment protections and for interference with his business, Skydive Myrtle Beach (SDMB), and contractual ties between SDMB and HCDA in order to illegally shutdown SDMB.
A short historical perspective on the relationship between Horry County Department of Airports and Skydive Myrtle Beach follows:
Skydive Myrtle Beach is a tandem skydiving business owned and operated by armed services veterans.
It began operating its business in Horry County in 2012 after signing an eight year lease with Ramp 66, the county’s general aviation operator of Grand Strand Airport at that time.
After Horry County government bought out Ramp 66 in 2013, it appears that concentrated efforts were made by HCDA to close down the operations of Skydive Myrtle Beach.
Tandem skydiving is a recognized and approved use of publicly supported airport facilities by the Federal Aviation Administration.
It is illegal for an airport that accepts publicly funded grants to discriminate against one type of approved aviation activity, say helicopter operations, over another – tandem skydiving.
The only excuse allowed by the FAA for shutting down approved aviation operations is that those operations contribute to an unsafe environment at the airport.
Unsafe operations was the route taken by Horry County and its Department of Airports to justify shutting down Skydive Myrtle Beach on October 2015.
In early 2014, shortly after Skydive Myrtle Beach reported to the FAA of discriminatory actions against it by the Horry County Department of Airports, the HCDA began circulating stories about alleged safety violations committed by Skydive Myrtle Beach while it was operating out of Grand Strand Airport.
In October 2015, Horry County government ultimately evicted Skydive Myrtle Beach from Grand Strand Airport using a 73 page FAA Director’s Determination as justification. Much of the Director’s Determination report was based on 112 safety violations allegedly committed by SDMB.
On at least three occasions since the Director’s Determination was published, the FAA has admitted in email correspondence regarding Freedom of Information Act requests that it has no documentation with respect to investigations, fines or other information on the alleged 112 violations.
Likewise, Horry County Attorney Arrigo Carotti wrote in an email response to FOIA requests seeking information on the 112 alleged violations that, “These records are provided in an abundance of caution, in that each may or may not demonstrate violation by Skydive Myrtle Beach of Horry County Department of Airports Minimum Standards, as that assessment has not been undertaken.”
The FAA has no record of investigation regarding the 112 alleged safety violations by SDMB and Horry County admits it never investigated any of the alleged violations.
Skydive Myrtle Beach was never provided documentation by Horry County of any of the 112 alleged incidents.
The question must be asked – how did the FAA generate a 73 page report based on the alleged 112 violations when it can’t find documentation on those alleged violations?
Now a federal judge has ordered discovery in the Holly case and the first request will be for documentation used to determine 112 safety violations were committed by SDMB.
How can the FAA and Horry County Department of Airports produce what they have already admitted they don’t have? They can’t and therein lies the rub neither of those two agencies can overcome.
According to FAA regulations, a safety violation occurring at an airport must be documented by a Mandatory Occurrence Report (MOR) of the safety violation, results of the ensuing investigation and fines levied. All of this information must be entered into the FAA Comprehensive Data and Electronic Reporting (CEDAR) system.
According to several sources who have checked the CEDAR system, no information exists within the system about the 112 alleged safety violations by SDMB.
If there is no official documentation proving the 112 safety violations, the FAA Director’s Determination and Horry County’s excuse for shutting down SDMB falls apart.
What justification was there for forcing a veteran owned business to shut down its operations at Grand Strand Airport?
The answer appears to be SDMB was shut down because Horry County officials wanted that result and the FAA found a way to help.
An example of how convoluted things can become when an individual or business attempts to sue a government entity for illicit acts follows below.
SDMB appealed the Director’s Determination to the U.S. Fourth Circuit Court of Appeals, a case that remains ongoing at this time.
As part of that appeal brief, SDMB charged the FAA and HCDA of engaging in ex parte exchanges regarding the alleged safety violations.
An ex parte communication occurs when a party to a case, or someone involved with a party, talks or writes to or otherwise communicates directly with the judge (in this case the FAA) about the issues in the case without the other parties’ knowledge. Ex parte communications are generally not allowed in judicial proceedings.
David Bannard, a partner of the Foley and Lardner LLP law firm, represented HCDP in the Skydive Myrtle Beach v. Horry County Department of Airports initial complaint to the FAA regarding discrimination by HCDP against SDMB.
Jeffrey Blease, Jaclyn Piltch and David Ralston, Jr., all of Foley and Lardner LLP, filed a brief on behalf of respondent HCDA with the Fourth Circuit Court of Appeals in the SDMB appeal of the Director’s Determination in that venue.
The attorneys of Foley and Lardner LLP state in that respondent’s brief to the Fourth Circuit Court of Appeals, “…SDMB purports to seek to review of the same issues set forth in its appeal of the Director’s Determination: (1) the FAA’s actions in allegedly receiving ex parte evidence from HCDA and refusing SDMB’s FOIA requests for documents relating to skydiving at CRE (Grand Strand Airport), and (2) the FAA’s reliance on allegedly ex parte facts and evidence in rendering its Director’s Determination.” (Pgs. 10 and 11 of the respondent HCDA brief)
Later, the brief states, “… there was no ex parte communication. SDMB’s allegation of ex parte communication between HCDA and the FAA stems from a misreading of Part 16, and is incorrect.” (Pg. 12 of the respondent HCDA brief)
The above quoted respondent HCDA brief was submitted to the Fourth Circuit Court of Appeals on September 11, 2017.
Nearly one year prior, Bannard, the original Foley and Lardner LLP attorney representing HCDA, gave a presentation to an Airports Council International North America Legal Committee Workshop at Dallas Fort Worth International Airport on September 17, 2016.
According to the agenda for that meeting, Bannard is listed as the first speaker on litigation updates: “Skydive Myrtle Beach v. Horry County Department of Airports FAA Final Agency Decision Upholding airport action, and implications for other cases of FAA’s use of ex parte materials (Dave Bannard, Partner, Foley & Lardner).”
If I have this correctly, in October 2015, the FAA issued a Director’s Determination, based partly on alleged safety violations by SDMB and resting on alleged ex parte communications between HCDA and the FAA. In October 2016, Bannard discusses the “FAA’s use of ex parte materials” in that case. In September 2017, other attorneys from Foley and Lardner LLP tell the Fourth Circuit Court of Appeals, there were no ex parte communications between HCDA and the FAA.
How can Bannard give a presentation to a legal workshop on the “implications for other cases of the FAA’s use of ex parte materials” in the FAA Director’s Determination on Skydive Myrtle Beach v. Horry County Department of Airports while other attorneys in his firm deny any ex parte communications took place?
I am not an attorney, but there appears to be a huge contradiction between information in the Bannard presentation, on the one hand, and the HCDA brief on the other, both of which were presented by Foley and Lardner LLP attorneys.
How can Bannard give a presentation on implications of actions that, according to his law firm, never happened?
This is exactly how it goes when individuals or businesses file legal actions against government agencies. The government uses your tax dollars to hire large, expensive law firms to fight against you, using any means to win including ignoring the law if necessary.