FAA's Motion in Love Field Lawsuit

Case 3:15-cv-02069-K Document 165 Filed 09/14/15
Page 1 of 3 PageID 4693
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
)
)
)
Plaintiff,
)
)
v.
)
)
DELTA AIR LINES, INC., et al.,
)
)
Defendants. )
)
No. 3:15-cv-02069-K
CITY OF DALLAS,
MOTION OF DEFENDANTS
U.S. DEPARTMENT OF
TRANSPORTATION AND
FEDERAL AVIATION
ADMINISTRATION
TO DISMISS OR TRANSFER,
AND FOR A STAY
Defendants U.S. Department of Transportation (DOT) and Federal Aviation

Administration (FAA) hereby move for an order: (1) dismissing all claims asserted against them
in this action pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction or, in the
alternative, transferring all such claims pursuant to 28 U.S.C. 1631 to the U.S. Court of
Appeals for the District of Columbia Circuit; (2) staying all further proceedings in this matter
pending the completion of an administrative proceeding pending before the FAA; and (3)
granting such other and further relief as the Court shall deem just and proper. The grounds for
this motion are set forth in the memorandum submitted herewith.
Respectfully Submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
JOHN R. PARKER
Acting United States Attorney
JUDRY L. SUBAR
Assistant Branch Director
/s/ Susan K. Ullman
SUSAN K. ULLMAN, DC Bar 426874
DAVID M. GLASS, DC Bar 544549
Senior Trial Counsel
U.S. Department of Justice,
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W., Room 7146
Washington, D.C. 20530-0001
Tel: (202) 616-0680/Fax: (202) 616-8470
Email: susan.ullman@usdoj.gov
Dated: September 14, 2015
Attorneys for Defendants U.S. Department of

Transportation and Federal Aviation Administration
CERTIFICATE OF CONFERENCE
I hereby certify that I sent an email on August 15, 2015, to the following counsel for the
following parties in which I advised them of the proposed motion of DOT and FAA to dismiss
or, in the alternative, to transfer and asked them whether they would oppose that motion: Peter B.
Haskel (City of Dallas), William B. Dawson (Delta Air Lines), Kent D. Krabill (Southwest
Airlines), Barry C. Barnett (Virgin America, Inc.), Michael V. Powell (American Airlines), J.
Eric Gambrell (United Airlines), and John Robert Robertson (Seaport Airlines). I further certify
that I received an email from Mr. Haskel on August 15, 2015, in which he stated that he would
oppose that motion but have not received any response from anyone else as of the date of the
filing of the motion.
s/ David M. Glass
CERTIFICATE OF SERVICE
I hereby certify that on September 14, 2015, I served the within motion, memorandum in
support of the motion, appendix to the motion, and proposed order on all counsel of record by
filing them with the Court by means of its ECF system.
s/ Susan K. Ullman
Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

DALLAS DIVISION
)
CITY OF DALLAS,
)
)
Plaintiff,
)
)
v.
)
)
)
)
Defendants. )
)
No. 3:15-cv-02069-K
MEMORANDUM IN SUPPORT OF
THE MOTION OF DEFENDANTS
U.S. DEPARTMENT OF
TRANSPORTATION AND
FEDERAL AVIATION
ADMINISTRATION
AND FOR A STAY
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .................................................................................................... 1
THE STATUTORY AND REGULATORY SCHEME..3
STATEMENT OF FACTS ............................................................................................................. 5
A.
Love Field, the Wright Amendment, and the Reform Act ............................................. 5
B.
Deltas Request for Accommodation .............................................................................. 6
C.
DOTs Guidance Letters ................................................................................................. 7
D.
The Dispute Leads to Three Judicial Proceedings .......................................................... 9
E.
The Ongoing FAA Administrative Proceeding ............................................................ 10
ARGUMENT ................................................................................................................................ 11
I.
THE CITYS CLAIMS AGAINST DOT SHOULD BE DISMISSED

FOR LACK OF JURISDICTION. .................................................................................... 12
II.
EVEN IF THE DOT LETTERS WERE FINAL AGENCY ACTIONS,

ONLY THE COURT OF APPEALS WOULD HAVE JURISDICTION,
AND THE CLAIMS AGAINST DOT WOULD BE SUBJECT TO
DISMISSAL OR TRANSFER TO THE D.C. CIRCUIT. ................................................ 18
III.
THE COURT SHOULD DEFER MAKING ANY RULINGS

ON THE CLAIMS AMONG THE NON-FEDERAL PARTIES. .................................... 20
A.
The Court Should Not Make any Rulings as to the Scope of the
Citys Federal Legal Obligations..20
B.
The Court Should Stay All Further Proceedings......22
CONCLUSION.........24
TABLE OF AUTHORITIES
Cases
Aetna Life Ins. Co. v. Haworth,
300 U.S. 227.....17
Agri-Trans Corp. v. Gladders Barge Line, Inc.,
721 F.2d 1005 (5th Cir. 1983).......11
Alabama-Coushatta Tribe v. United States,
757 F.3d 484 (5th Cir. 2014).12
Am. Airlines v. DOT,
202 F.3d 788 (5th Cir. 2000) ...................................................................................................... 5
Am. Airlines, Inc. v. Herman,
176 F.3d 283 (5th Cir. 1999) .................................................................................................... 12
Am. Paper Inst., Inc. v. U.S. EPA,
882 F.2d 287 (7th Cir. 1989) .............................................................................................. 14, 15
Basye v. Wells Fargo Bank,
No. 3-12-CV-4098-K, 2013 WL 2110043 (N.D.Tex. May 16, 2013)...................................... 17
Belle Co. v. U.S. Army Corps of Eng'rs,
761 F.3d 383 (5th Cir. 2014) ........................................................................................ 12, 14, 15
Bennett v. Spear,
520 U.S. 154 (1997) ............................................................................................................ 12, 16
Center for Auto Safety v. National Highway Traffic Safety Admin.,
452 F.3d 798 (D.C. Cir. 2006) .................................................................................................. 15
Earnest v. Lowentritt,
690 F.2d 1198 (5th Cir. 1982).. 17
Holistic Candlers & Consumers Ass'n v. FDA,
664 F.3d 940 (D.C. Cir. 2012) .................................................................................................. 13
In re Compl. of RLB Contracting, Inc.,
773 F.3d 596 (5th Cir. 2014).10
Jobs, Training & Servs., Inc. v. E. Tex. Council of Gov'ts,
50 F.3d 1318 (5th Cir. 1995) .................................................................................................... 13
Jones v. United States,
625 F.3d 827 (5th Cir. 2010) .................................................................................................... 18
Kansas v. United States,
16 F.3d 436 (D.C. Cir. 1994) ...................................................................................................... 5
Landis v. N. Am. Co.,
299 U.S. 248, 254 (1936)...22
Ligon v. LaHood,
614 F.3d 150 (5th Cir. 2010) .................................................................................................... 18
ii
Lujan v. Natl Wildlife Fedn,

497 U.S. 871 (1990)...12
Mediterranean Enters., Inc. v. Ssangyong Corp.,
708 F.2d 1458 (9th Cir. 1983) .................................................................................................. 22
Natl Fedn of Blind v. DOT,
78 F. Supp. 3d 407 (D.D.C. 2015).20
Nat'l Pork Producers Council v. U.S. EPA,
635 F.3d 738 (5th Cir. 2011) .................................................................................................... 14
Okpalobi v. Foster,
244 F.3d 405(5th Cir. 2001)..17
Qureshi v. Holder,
663 F.3d 778 (5th Cir. 2011) .............................................................................................. 12, 16
Reiter v. Cooper,
507 U.S. 258 (1993)...21
Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Comm'n,
324 F.3d 726 (D.C. Cir. 2003) .................................................................................................. 14
Ricci v. Chicago Mercantile Exchange,
409 U.S. 289 (1973) .................................................................................................................. 22
Rochester Tel. Corp. v. United States,
307 U.S. 125 (1939) .................................................................................................................. 14
Shanbaum v. United States,
32 F.3d 180 (5th Cir. 1994) ...................................................................................................... 12
Southland Mower Co. v. U.S. Consumer Prod. Safety Commn,
600 F.2d 12 (5th Cir. 1979)..............................................19
Southwest Airlines v. DOT,
No. 15-1036 (D.C. Cir., filed Feb. 13, 2015) (Southwest I)..9, 10
Southwest Airlines v. DOT,
No. 15-1276 (D.C. Cir., filed Aug. 13, 2015) (Southwest II)10
United States v. Cumberland Farms of Conn., Inc.,
826 F.2d 1151 (1st Cir. 1987)....21
United States v. W. Pac. R.R.,
352 U.S. 59 (1956).....20
Veldhoen v. U.S. Coast Guard,
35 F.3d 222 (5th Cir. 1994) ...................................................................................................... 13
Statutes
5 U.S.C. 701-706 ..................................................................................................................... 10
5 U.S.C. 702 ............................................................................................................................... 12
5 U.S.C. 704 ............................................................................................................................... 12
28 U.S.C. 1631 ........................................................................................................................... 19
iii
28 U.S.C. 2112(a)...19
28 U.S.C. 2201 ........................................................................................................................... 16
42 U.S.C. 1983........17
42 U.S.C. 1985(3)...17
49 U.S.C. 40103(e) .................................................................................................................... 18
49 U.S.C. 40101-4650 .18
49 U.S.C. 40101-47534 ........................................................................................................... 18
49 U.S.C. 40117......4, 5, 13
49 U.S.C. 46110 ................................................................................................... 9, 11, 12, 18, 20
49 U.S.C. 47107 ..................................................................................................................... 3, 18
49 U.S.C. 47111 ..................................................................................................................... 4, 12
49 U.S.C. 47106 ........................................................................................................................... 4
49 U.S.C. 47122 ........................................................................................................................... 4
49 U.S.C. 47106 ..................................................................................................................... 5, 18
60 Stat. 170......3
94 Stat. 35........5
96 Stat. 671......3
120 Stat. 2011..5, 6
Rules
Fed. R. Civ. P. 12(b)(1)........................................................................................................... 11, 19
Regulations
14 C.F.R. 16.1 .............................................................................................................................. 4
14 C.F.R. 16.23 ............................................................................................................................ 4
14 C.F.R. 16.31...4, 13
14 C.F.R. 16.33.. ....4, 13
14 C.F.R. 16.101 .................................................................................................................... 4, 13
14 C.F.R. 16.103.....4, 13
14 C.F.R. 16.105.....4, 13
14 C.F.R. 16.109.....4
14 C.F.R. 16.201.4, 13
14 C.F.R. 16.202, ...4, 13
14 C.F.R. 16.241.4, 13
14 C.F.R. 16.247 .......................................................................................................................... 4
49 C.F.R. 1.83.1
iv
Defendants United States Department of Transportation (DOT) and Federal Aviation

Administration (FAA) 1 respectfully submit this memorandum of law in support of their motion
to dismiss (or alternatively transfer) the claims asserted against them, and to stay the remaining
portions of this action pending an ongoing administrative proceeding.
PRELIMINARY STATEMENT
The principal parties to this action Southwest Airlines, Delta Air Lines, and the City of
Dallas insist that the Court must immediately address the complex web of factual and legal
issues they have presented. That is simply not the case. The central issues are the subject of an
ongoing administrative proceeding before the expert federal agency, and will be resolved in an
orderly and comprehensive manner in that proceeding. The Citys claims against DOT
asserted before the administrative proceeding was even commenced, let alone resolved are
premature at best, are brought in the wrong court, and are therefore subject to dismissal. And the
Court should defer ruling on the claims among the non-federal parties to allow the administrative
process to play out.
This case centers on the question of whether Delta can continue to operate five daily
round-trip flights at Dallas Love Field Airport after the expiration of its current license to do so.
Delta claims that the City (the airports owner) is obligated by its lease agreements and federal
law to ensure Deltas continued ability to operate the flights. Southwest which leases or
subleases 18 of the airports 20 gates contends that the City is under no such obligation, and
that the City would be in violation of its lease if it forced Southwest to accommodate Delta. In
the face of these conflicting positions, the City has not made a decision for over a year on Deltas
The FAA is an operating administration within DOT, and has been delegated many of the DOT
responsibilities discussed herein. See 49 U.S.C. 106; 49 C.F.R. 1.83(a)(1), (9). For
simplicity, this memorandum uses DOT to refer to the entire department, including the FAA.
1
request for access (even though it has the ability to do so), and has now brought this action
asking the Court to issue an advisory opinion telling it what to do. Southwest and Delta have
brought counterclaims against the City and crossclaims against one another, and Delta has
brought crossclaims against United Airlines.
The Court, however, need not step into the fray. As an initial matter, the Court lacks
subject matter jurisdiction over the Citys claims against DOT, which challenge two nonbinding
guidance letters sent by DOTs General Counsel. Those letters are not subject to judicial review
because they are not final agency actions: the letters merely reported DOTs views on some (but
not all) of the relevant legal issues, did not mandate that the City reach a particular decision with
respect to Deltas request for access, and did not resolve several key questions. Even if the
letters were final agency actions, they could only be challenged in a court of appeals pursuant to
an express statutory directive. (Indeed, Southwest has already sought review of the letters in the
D.C. Circuit.) The Citys claims against DOT should therefore be dismissed, or, in the
alternative, transferred to the proper court.
The Court, moreover, should defer any rulings on the claims between and among the nonfederal parties. The FAA has initiated an administrative proceeding to determine whether the
City has violated its federal obligations by failing to grant or otherwise act on Deltas requests.
In that proceeding, the FAA will make determinations as to many of the key issues in this case,
including the scope of the Citys obligations, the extent to which those obligations are or are not
affected by the Wright Amendment Reform Act or the Citys leases, and the application of those
obligations to the particular factual context of Deltas requests. The FAAs expert resolution of
these issues may moot this litigation altogether, and will, at the very least, be helpful to the
Court. Thus, pursuant to the primary jurisdiction doctrine or the Courts inherent authority to
control its docket, the Court should stay all further proceedings pending the completion of the
FAA proceeding and any judicial review of what will be the FAAs final decision. In the
interim, the FAA would have the ability to preserve the status quo.
Accordingly, DOT respectfully requests that the Court issue an order: (1) dismissing the
claims against DOT (or, alternatively, transferring those claims to the D.C. Circuit); and
(2) staying all further proceedings in light of the FAAs ongoing administrative proceeding. 2
THE STATUTORY AND REGULATORY SCHEME
Congress has long authorized the allocation of federal funds for the improvement of the
nations airports. See, e.g., Federal Airport Act, Pub. L. No. 79-377, 60 Stat. 170 (1946); Airport
and Airway Improvement Act of 1982, Pub. L. No. 97-248, Title V, 96 Stat. 671. Because these
funding programs are intended to promote the public interest, Congress has sought to ensure that
airports receiving federal money are open and accessible to the public, and do not favor one
airline over another. Two of these measures are particularly relevant to this case.
First, an airport cannot receive a federal Airport Improvement Program (AIP) grant
unless it makes a number of written assurances to DOT. 49 U.S.C. 47107(a). Included
among those are assurances that the airport will be available for public use on reasonable
conditions and without unjust discrimination, id. 47107(a)(1), and that the airport will not
give an aeronautical services provider an exclusive right to use the airport, id. 47107(a)(4).
Such assurances are included in a standard list appended to every AIP grant agreement. 3 DOT
Based upon a preliminary review of the motion Plaintiff filed on September 11, 2015, for leave
to file a supplemental complaint and the attached proposed first supplemental complaint (ECF
Nos. 150 and 150-1), it appears that the pendency of that motion (the merits of which are due to
be addressed by September 17, 2015) would not affect this Motion to Dismiss or Transfer.
3
See Airport Improvement Program Assurances for Airport Sponsors, Assurances 22 and 23,
http://www.faa.gov/airports/aip/grant_assurances/media/airport-sponsor-assurances-aip.pdf.
3
has long interpreted these assurances and other legal obligations to require that a federallyfunded airport accommodate reasonable requests for access by air carriers wishing to use the
airport. See, e.g., Airport Business Practices and Their Impact on Airline Competition, at p. x
(DOT Oct. 1999), http://ntl.bts.gov/lib/17000/17100/17129/PB2000108301.pdf.
If an airport accepts an AIP grant, but then fails to comply with one of the grant
assurances, the FAA may conduct an administrative proceeding against the airport. See 49
U.S.C. 47106, 47111, 47122; 14 C.F.R. 16.1(a)(5). Such proceedings commence either
when a third party files an administrative complaint against the airport, see 14 C.F.R. 16.23(a),
or when the FAA issues a notice of investigation, see id. 16.101, 16.103. Ultimately, if the
parties do not resolve the issue informally, the agency conducts an adjudication before an FAA
official and/or a Hearing Officer. Id. 16.31, 16.105, 16.201, 16.202. Parties may then appeal
to the Associate Administrator for Airports, who issues a final decision. Id. 16.33(b), 16.241.
The final decision may (among other things) order a noncompliant airport to cease and desist
from violations, or order the airport to take corrective action (which can itself be followed by the
agency revoking existing grants, and preventing the airport from obtaining any new grants, if the
airport fails to take corrective action). Id. 16.109(a), (c), (d). Final orders in these
administrative enforcement proceedings are subject to judicial review in the courts of appeals.
See 49 U.S.C. 46110(a), 47106(d), 47111(d); 14 C.F.R. 16.247. 4
Second, Congress sought to improve competitive access through what is known as the
Competition Plan statute. By law, DOT can authorize an airport to finance certain airport-related
projects by imposing a small passenger facility charge on each paying air passenger that
boards a flight at the airport. Id. 40117(b). Certain high-traffic airports (including Love Field)
4
In addition to its administrative authority, DOT may seek judicial enforcement of the grant
assurances in federal district court. See 49 U.S.C. 47111(f).
4
cannot impose such fees or receive AIP grants unless they first send DOT a written competition
plan, id. 40117(k), 47106(f), which includes information on the availability of airport gates
and related facilities, . . . gate-use requirements, [and] gate-assignment policy, among other
things. Id. 47106(f)(2). DOT must review submitted plans to ensure they meet the statutory
requirements, and also must review [the plans] implementation from time-to-time to ensure
that each covered airport successfully implements its plan. Id. 40117(k)(2).
STATEMENT OF FACTS
A.
Love Field, the Wright Amendment, and the Reform Act
Love Field is located less than five miles from downtown Dallas, making it more
convenient to Dallass central business district than Dallas-Ft. Worth International Airport
(DFW), which is 17 miles from downtown. Kansas v. United States, 16 F.3d 436, 438 (D.C. Cir.
1994). Love Field has a unique history, highlighted by the passage in 1979 of a statutory
provision known as the Wright Amendment, which sought to protect the economic viability of
the newly-constructed DFW by generally banning commercial airlines from offering service
(including connecting service) from Love Field to destinations outside Texas and its border
states. International Air Transportation Competition Act of 1979, Pub. L. No. 96-192, 29, 94
Stat. 35, 48. The Wright Amendment was the subject of much litigation. See, e.g., Kansas,
supra (rejecting constitutional challenges to Wright Amendment); Am. Airlines v. DOT, 202 F.3d
788 (5th Cir. 2000) (rejecting challenge to interpretation of certain Wright Amendment issues).
In 2006, the cities of Dallas and Fort Worth, the DFW Airport Board, Southwest (the
dominant carrier at Love Field), and American Airlines (the dominant carrier at DFW)
committed in a Five Party Agreement to seek a congressional repeal of the Wright Amendment
under specified terms. The end result was the Wright Amendment Reform Act of 2006
(WARA), Pub. L. No. 109-352, 120 Stat. 2011. As relevant here, WARA immediately allowed
carriers to offer connecting service from any location through the existing Love Field service
area, and it further allowed unrestricted nonstop domestic service starting October 13, 2014. Id.
2-3. That expansion, however, was tempered by the fact that WARA restricted Love Field to
a maximum of 20 gates. Id. 5(a).
WARA provides that if a new entrant wants to serve Love Field, the City is to honor the
scarce resource provision of the existing Love Field leases. Id. The leases, in turn, provide that
an airline leasing gates agrees to accommodate a new entrant airline at those gates at such
times that will not unduly interfere with [the airlines] operating schedule. See, e.g., ECF No.
24 at 174. If the leasing airline refuses to do so, the City will force an accommodation (subject
to the requesting airline paying reasonable fees and charges as defined by the contract), except
that [i]n case of a conflict between schedules of [the leasing airline] and the [r]equesting
[a]irline, the [leasing airline] shall have priority in use of its gates. Id. at 174-75.
Section 5(e)(1)(E) of WARA states that its terms shall not be construed to limit DOTs
authority to enforce requirements of law and grant assurances . . . that impose obligations on
Love Field to make its facilities available on a reasonable and nondiscriminatory basis to air
carriers. But that provision cannot be construed to require the City to modify or eliminate
preferential gate leases with air carriers in order to allocate gate capacity to new entrants . . .
unless such modification . . . is implemented on a nationwide basis. WARA 5(e)(2)(B)(ii).
B.
Deltas Request for Accommodation
The City has entered into preferential use leases with Southwest for 16 of the airports
20 gates, and with American Airlines and United Airlines for two gates each. ECF No. 1 2,
41-43. Beginning in 2009, Delta subleased a portion of Americans gates, and as of mid-2014
was operating five daily roundtrip flights using those gates. Id. 54; ECF No. 23 at 1.
American, however, agreed to divest those gates to Virgin America as part of the settlement of
an antitrust challenge to Americans merger with U.S. Airways brought by the United States, and
notified Delta that its sublease would expire in October 2014. ECF No. 1 49, 50, 54.
Delta then asked the City to accommodate its five daily flights, arguing that such
accommodation was required under the gate-sharing provision of the Citys leases, the Citys
AIP grant assurances, and the competition plan that the City had filed with DOT. See id. 5556. In the face of opposition from Southwest and other carriers, the City initially rejected Deltas
request. Id. 56. The City, however, eventually relented, and indicated that it would decide
Deltas request in accordance with a model it was developing. Id. 59. In the meantime,
Delta entered into last-minute, short-term agreements with Southwest and United that allowed it
to maintain its five daily flights through January 6, 2015, and then additional agreements with
United allowing it to continue that service through July 6, 2015. Id. 58. After this action was
commenced, Southwest and Delta entered into a further agreement preserving Deltas access
through September 30, 2015. ECF No. 88, Ex. 3.
In January 2015, the City consented to an agreement between United and Southwest,
pursuant to which United would cease service at Love Field and sublease its two gates to
Southwest. ECF No. 1 43. Although Deltas accommodation request was outstanding, the
City did not attempt to use the gates United was abandoning to accommodate Deltas flights.
C.
DOTs Guidance Letters
Faced with conflicting legal arguments, the City turned to DOT for guidance. See id.
60. In response, DOTs General Counsel sent the City a letter on December 17, 2014 (the
First DOT Letter). ECF No. 1, Ex. 1. That letter referenced the airport grant assurances, as
well as the scarce resources provision of the lease, and explained that in connection with DOTs
responsibility to ensure the successful implementation of competition plans under 49 U.S.C.
[40117](k), 5 DOT was providing guidance to the City. Id. at 1.
That guidance stated that DOT expect[ed] that when the City received an
accommodation request, the City would accommodate the requesting carrier to the extent
possible given the current gate usage, without impacting current or already-announced, for-sale
services by existing carriers. Id. at 2. DOT also stated that it was the agencys position that
in order for the accommodation to be meaningful, an accommodated carrier was entitled to
maintain an ongoing similar pattern of service as long as it operated the accommodated flights.
Id. DOTs letter did not threaten any consequences against the City if it took a different legal
view. Nor did the letter urge the City to grant Deltas request. Indeed, the letter did not even
weigh in on some of the outstanding factual disputes among the carriers, such as how to
determine each gates maximum capacity.
Consistent with the fact that the First DOT Letter did not require the City to take any
specific action, the City did not act to resolve Deltas accommodation request after receiving the
letter. Instead, as the City alleges in this action, it sought clarification and guidance from DOT
. . . and in particular asked that DOTs views on gate accommodation be in the format of a
mandate and not mere guidance. ECF No. 1 76.
By letter dated June 15, 2015 (the Second DOT Letter), DOTs General Counsel
replied to the Citys clarification request. ECF No. 1, Ex. 2. DOT stated that it viewed its earlier
positions as necessary for the City to comply with the grant assurances, id. at 1, and it traced
its views to its interpretation of grant assurances (and related statutory provisions) requiring that
5
The letter mentions the Competition Plan statute but cites 49 U.S.C. 47107(k) instead of 49
U.S.C. 40117(k). This is a typographical error.
8
the airport be available on reasonable conditions and without unjust discrimination, and
barring exclusive right[s] at the airport, id. at 2. DOT also explained that the City had
acknowledged these obligations in its most recent competition plan. Id.
The Second DOT Letter also provided additional explanation of the agencys views.
With regard to determining gate utilization, DOT stated that it did not believe that it would be
consistent with the grant assurances or with the Citys competition plan if the City accounted
for expanded, unscheduled service that had not yet been offered for sale to the public; looking
to unscheduled operations would make a gate utilization analysis too complicated, and would
also permit an incumbent carrier to block a competitors accommodation request by asserting
after the fact that it intended to use seemingly available space. Id. at 2-3. With regard to the
length of accommodation, DOT clarified that the City had flexibility to shift the burden of
accommodation among different incumbents over time. Id. at 3. Moreover, the agency
explained that an accommodation need not last in perpetuity; the accommodation could end, for
example, in various circumstances where new space became available. Id.
As with the First DOT Letter, the agencys second letter did not direct the City to
accommodate Delta, much less how to accommodate Delta. And while the new letter noted that
DOT reserv[ed] the right to pursue appropriate action if it were to determine that the grant
assurances had been violated, it stressed that [a]t this time, we have made no determination as to
whether such a violation has occurred. Id. at 3.
D.
The Dispute Leads to Three Judicial Proceedings
The dispute over Deltas access to Love Field has led to three judicial proceedings.
Southwest has petitioned for review of each of the DOT Letters, pursuant to 49 U.S.C.
46110(a), in the U.S. Court of Appeals for the District of Columbia Circuit. See Southwest
Airlines v. DOT, No. 15-1036 (D.C. Cir., filed Feb. 13, 2015) (Southwest I) ECF No. 134-2 at
6-7 (challenging First DOT Letter); Southwest Airlines v. DOT, No. 15-1276 (D.C. Cir., filed
Aug. 13, 2015) (Southwest II) ECF No. 134-3 at 110-12 (challenging Second DOT Letter).
DOT has asked the D.C. Circuit to dismiss the petition in Southwest I on the grounds that the
First DOT Letter was not a final agency action, and plans to do the same with respect to the
Second DOT Letter in Southwest II.
On June 17, 2015, the City commenced this action against DOT and six air carriers that
serve, have served, or have expressed an interest in serving, Love Field. The City seeks relief in
the form of a judgment declaring that the DOT Letters violate the Administrative Procedure Act
(APA), 5 U.S.C. 701-706, and WARA. ECF No. 1 106-12. The City also seeks
declaratory relief in the form of instructions about how to respond to Deltas accommodation
requests. See generally id. Southwest, Delta, and the City have all sought preliminary injunctive
relief, see ECF No. 10, 20, 22; the Court has scheduled a hearing for September 28-29, 2015,
ECF No. 68.
E.
The Ongoing FAA Administrative Proceeding
Faced with the Citys continued refusal to make any decision on Deltas accommodation
request, DOT commenced administrative proceedings against the City by filing a Notice of
Investigation (Notice) on August 7, 2015. See Notice of Investigation, ECF No. 134-1 at 2-12,
134-2 at 1-2. 6 The Notice indicated that DOT had decided to investigate whether the Citys
actions (or inaction) were in compliance with various grant assurances. Id. at 134-1 at 12, 134-2
at 1. The Notice invited a response from the City, and indicated the possibility of adjudicative
proceedings if the matter could not be resolved informally. Id. at 134-2 at 1-2. In recognition of
6
On issues involving jurisdiction, the district court may consider evidence outside the
pleadings. In re Compl. of RLB Contracting, Inc., 773 F.3d 596, 601 (5th Cir. 2014).
10
the fact that DOTs letters had not expressly addressed potential arguments concerning the effect
of WARA, the Notice assured the City that it will be afforded a full opportunity to raise
arguments in this proceeding on [that] or any other relevant topic. Id. at 134-2 at 1.
Importantly, the Notice mentioned the two DOT letters but did not in any way suggest that the
letters were binding of their own accord. Indeed, the Notice even expressly observed that DOT
had only offered guidance that was not intended to constitute a definitive resolution of the
dispute between Delta and the City. Id. at 134-1 at 11-12 & n.12. The FAA granted the City an
extension until November 2, 2015 of its time to respond to the Notice. ECF No. 134-2 at 4-5.
ARGUMENT
The Court lacks subject matter jurisdiction over the Citys claims against DOT, which
challenge DOTs two nonbinding guidance letters, for two reasons. First, the DOT Letters are
not final agency actions, and therefore are not reviewable under the Administrative Procedure
Act (APA) in any court. Second, even if the letters were final agency actions, they could only
be challenged in a Court of Appeals pursuant to the express terms of 49 U.S.C. 46110. The
Citys claims against DOT should therefore be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) or
transferred to the D.C. Circuit. 7 And in light of the pending FAA administrative proceeding, the
Court should defer ruling on the claims between and among the non-federal parties.
To the extent the City seeks declaratory relief against DOT unrelated to the letters, its claims
can only be understood as seeking to preempt future enforcement action that DOT may or may
not take, based on legal and factual determinations that DOT has not yet made. Any such claims
would not be ripe. See Agri-Trans Corp. v. Gladders Barge Line, Inc., 721 F.2d 1005, 1011 (5th
Cir. 1983) (A declaratory judgment action should not be used to circumvent the usual
progression of administrative determination and judicial review.).
11
I.
THE CITYS CLAIMS AGAINST DOT SHOULD BE DISMISSED

FOR LACK OF JURISDICTION.
The United States may not be sued except to the extent it has consented to such by
statute. Belle Co. v. U.S. Army Corps of Engrs, 761 F.3d 383, 387 (5th Cir. 2014) (quoting
Shanbaum v. United States, 32 F.3d 180, 182 (5th Cir. 1994)). The APA provides such a
waiver for claims seeking relief other than money damages, but only when a litigant seeks
judicial review of final agency action for which there is no other adequate remedy in court.
Id. at 387-88 (quoting 5 U.S.C. 702, 704). If there is no final agency action, a court lacks
subject matter jurisdiction. Id. at 388; accord Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir.
2011); Am. Airlines, Inc. v. Herman, 176 F.3d 283, 287 (5th Cir. 1999). 8
As a general matter, two conditions must be satisfied for agency action to be final.
Belle, 761 F.3d at 388 (quoting Bennett v. Spear, 520 U.S. 154, 177 (1997)). First, the action
must mark the consummation of the agencys decision making process it must not be of a
merely tentative or interlocutory nature. Id. (quoting Bennett, 520 U.S. at 177-78). And
second, the action must be one by which rights or obligations have been determined, or from
which legal consequences will flow. Id. (quoting Bennett, 520 U.S. at 178). The DOT Letters
do not meet either of these conditions, and therefore are not final agency actions.
First, the DOT Letters do not mark the consummation of the agencys decisionmaking
process. To enforce the federal grant assurances at issue here, DOT may either (1) file a
No requirement of finality applies when judicial review is sought pursuant to a statutory or

non-statutory cause of action that arises completely apart from the general provisions of the
APA. Alabama-Coushatta Tribe v. United States, 757 F.3d 484, 489 (5th Cir. 2014). That type
of judicial review is not sought here. When, as here, review is sought not pursuant to specific
authorization in the substantive statute, but only under the general review provisions of the APA,
the agency action in question must be final agency action. Id. (quoting Lujan v. Natl Wildlife
Fedn, 497 U.S. 871, 882 (1990)). Title 49 U.S.C. 46110(a), the proper statute for seeking
review of an FAA order based on AIP grants, also has a finality requirement.
12
judicial action under 49 U.S.C. 47111(f), or (2) conduct an administrative adjudication

following the issuance of either a formal complaint or Notice of Investigation, see 14 C.F.R.
16.23(a), 16.101, 16.103, 16.105, with the opportunity to appeal to a hearing officer and/or
the Associate Administrator for Airports. See id. 16.31, 16.33(b), 16.201, 16.202, 16.241.
And while it is less well-established how DOT would proceed if it wished to ensure that each
covered airport successfully implements its competition plan, 49 U.S.C. 40117(k)(2), at a
minimum that provision could not be enforced unless DOT either threatened, or actually
attempted to impose, some sort of sanction for noncompliance.
At the time the challenged letters were issued, however, the agency had taken none of the
actions mentioned above. Indeed, the Second DOT Letter emphasized that DOT had made no
determination as to whether a violation of the grant assurances had occurred. ECF No. 1, Ex. 2
at 3. Even now, the agency has only taken the preliminary step of issuing a Notice of
Investigation, which merely states a potential interest in enforcing the grant assurances (and a
related statutory prohibition on granting exclusive rights at an airport). 9 As a result, the
agencys decisionmaking process has not yet been completed, and the challenged letter is
nonfinal. Accord Holistic Candlers & Consumers Assn v. FDA, 664 F.3d 940, 944 (D.C. Cir.
2012) (agency warning letters plainly [did] not mark the consummation of the agencys
decisionmaking when there was a possibility, but no guarantee, of future enforcement action).
The interlocutory nature of DOTs decisionmaking is underscored by the numerous
issues on which the agency has yet to offer its views. The DOT letters were intended as an
[A]n agencys initiation of an investigation does not constitute final agency action. Jobs,
Training & Servs., Inc. v. E. Tex. Council of Govts, 50 F.3d 1318, 1324 (5th Cir. 1995) (quoting
Veldhoen v. U.S. Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994)). No claim can therefore be
made that the FAA has cured the lack of subject matter jurisdiction that exists in this action by
commencing its investigation.
13
explanation of the agencys understanding of the grant assurances, and of some (but not all)
related materials. Thus, the letters do not (for example) directly address whether WARA
overrides any duties imposed by the grant assurances and Competition Plan statute a view that
the City endorses in its complaint. See ECF No. 1 110-11. The Notice makes clear that DOT
is open to considering that argument (and others). ECF No. 134-1 at 2-12, 134-2 at 1-2. And
DOT has not yet settled several important factual disputes. Subjecting DOTs guidance to
review now will thus prematurely cut off the agencys processes, and lead to precisely the types
of problems the finality doctrine is designed to avoid. See Reliable Automatic Sprinkler Co. v.
Consumer Prod. Safety Commn, 324 F.3d 726, 732 (D.C. Cir. 2003) (explaining that courts
have a powerful interest in postponing judicial review to avoid improper intrusion into
ongoing agency processes, and to avoid squander[ing] judicial resources since the challenging
party may ultimately be satisfied by the agencys final decision).
Second, the DOT Letters are not final agency actions because they do not determine
rights or have legal consequences. Agency action that [has] the effect of forbidding or
compelling conduct on the part of the person seeking to review it, but only if some further action
is taken by the [agency], is not final agency action. Belle, 761 F.3d at 390 (quoting Rochester
Tel. Corp. v. United States, 307 U.S. 125, 129 (1939)). To the contrary, such action is nonfinal
and nonreviewable because it does not of itself adversely affect [the] complainant but only
affects his rights adversely on the contingency of future administrative action. Id. (quoting
Rochester Tel., 307 U.S. at 130). Thus, an agency does not take a final action by issuing a
policy statement in which it sets forth its views on what is permissible because telegraphing
your punches is not the same as delivering them. Natl Pork Producers Council v. U.S. EPA,
635 F.3d 738, 756 (5th Cir. 2011) (quoting Am. Paper Inst., Inc. v. U.S. EPA, 882 F.2d 287, 289
14
(7th Cir. 1989)). Nor does an agency take final action by issuing an interpretative ruling,
construing regulations. Id. An agency does not take final action if it neither imposes no
penalties on a party nor obliges the party to do or refrain from doing anything. Belle, 761
F.3d at 391, 392.
In this case, the DOT Letters do not impose[] [any] penalties on the City or oblige [it]
to do or refrain from doing anything. To the contrary, the DOT Letters do nothing more than
advise the City of DOTs view that the positions outlined in [the First DOT Letter] are
standards that are necessary for the City to comply with the grant assurances between DOT and
the City and that DOT reserves the right to pursue appropriate action if it were to determine
that there has been a violation of the grant assurances. ECF No. 1, Ex. 2 at 2, 4. The case law
is clear that agency action is unreviewable and nonfinal where an agency merely expresses its
view of what the law requires of a party, even if that view is adverse to the party. Center for
Auto Safety v. National Highway Traffic Safety Admin., 452 F.3d 798, 808 (D.C. Cir. 2006)
(internal quotation marks omitted). Furthermore, when the agency issued its Notice of
Investigation, it did not indicate that it would be investigating violations of either letter; instead,
the agency is investigating whether the City has complied with the various grant assurances (as
well as a separate statutory prohibition on giving exclusive access at an airport). ECF No. 134-1
at 2-12, ECF 134-2 at 1-2. The letters emphasize that DOT has made no determination as to
whether a violation has occurred, id. at 5, and are nonfinal and nonreviewable because they
[do] not of [themselves] adversely affect [the City] but only affect[] [its] rights adversely on
the contingency of future administrative action. Belle, 761 F.3d at 390 (quoting Rochester
Tel., 307 U.S. at 130).
15
Indeed, the City, Southwest, and Delta all acknowledge that the letters do not determine
rights or obligations or serve as anything from which legal consequences will flow. The City in
its complaint states that the DOT Letters merely set forth DOTs views on the Citys
obligations, that neither DOT nor FAA has required or directed that the City take action to
interfere with Southwests, Americans, Uniteds, or their sublessees preferential gate use
rights, and that DOT has refrained from making an overt threat that failure to accommodate
Delta or failure to comply with the terms of the First DOT Letter necessarily will be a violation
of the Citys Grant Assurances or Competition Plan. ECF No. 1 83, 98. Southwest
recognizes that [t]he DOT Letters do not require the City to accommodate Delta, and that the
DOT Letters . . . leave the decision of whether to accommodate Delta within the hands of the
City. ECF No. 62 at 16. And Delta has filed an intervenor brief in the D.C. Circuit conceding
that the First DOT Letter is not a final agency action, and arguing that the administrative
proceeding confirms that DOTs decisionmaking process is still ongoing and that the agency has
not yet imposed any legally binding obligation on either the City or Southwest. App. 12.
Because the DOT Letters do not determine rights or obligations or serve as anything from
which legal consequences will flow, no basis exists for holding the letters to constitute final
agency action. See Belle, 761 F.3d at 388 (quoting Bennett, 520 U.S. at 178). This Court thus
lacks subject matter jurisdiction over any claim concerning the letters, see id.; Qureshi, 663 F.3d
at 781; Am. Airlines, 176 F.3d at 287, and therefore lacks subject matter jurisdiction over any
claim against DOT or FAA asserted in this action.
Furthermore, Plaintiffs claims II through V, which purport to seek declaratory relief,
could only be actionable if the APA claim could survive. Because the APA claim must be
dismissed, the claims for declaratory relief must be as well.
16
The Declaratory Judgment Act, 28 U.S.C. 2201, is entitled Creation of remedy and
provides in relevant part:
(a) In a case of actual controversy within its jurisdiction . . . any court of the
United States, upon the filing of an appropriate pleading, may declare the rights
and other legal relations of any interested party seeking such declaration, whether
or not further relief is or could be sought.
As this Court has explained:
The Declaratory Judgment Act is a procedural device that creates no substantive
rights, and requires the existence of a justiciable controversy. Aetna Life Ins. Co.
v. Haworth, 300 U.S. 227, 23941, 57 S.Ct. 461, 81 L.Ed. 617 (1937). While
enlarging the range of remedies available in federal court, the Declaratory
Judgment Act does not extend federal courts' jurisdiction. Collin County, Tex. v.
Homeowners Assn for Values Essential to Neighborhoods, (HAVEN), 915 F.2d
167, 17071 (5th Cir. 1990).
Basye v. Wells Fargo Bank, No. 3-12-CV-4098-K, 2013 WL 2110043 at *4 (N.D.Tex. May 16,
2013). The Declaratory Judgment Act does not provide a basis for Claims II through V in this
case; it merely provides an additional remedy in cases where jurisdiction is otherwise
established. See, e.g., Earnest v. Lowentritt, 690 F.2d 1198, 1203 (5th Cir. 1982), Okpalobi v.
Foster, 244 F.3d 405, 423 n.31 (5th Cir. 2001). Because this Court lacks jurisdiction over the
subject matter of Plaintiffs first claim, Plaintiff has no underlying claim to which [it] can
tether [its] claim under the Declaratory Judgment Act. Basye, 2013 WL 2110043 at *4; see also
Earnest, 690 F.2d at 1203 (Because federal jurisdiction is lacking under both 42 U.S.C. 1983
and 42 U.S.C. 1985(3) . . . . the request for declaratory relief is tied to no other cause of action
within the jurisdiction of the federal court and must be dismissed.).
Accordingly, any claims asserted against DOT and FAA in this action should be
dismissed.
17
II.
EVEN IF THE DOT LETTERS WERE FINAL AGENCY ACTIONS,

ONLY THE COURT OF APPEALS WOULD HAVE JURISDICTION,
AND THE CLAIMS AGAINST DOT WOULD BE SUBJECT TO
DISMISSAL OR TRANSFER TO THE D.C. CIRCUIT.
Even if the DOT Letters were final agency actions, this Court would lack jurisdiction
because the letters could only be challenged in a court of appeals. Pursuant to statute:
[A] person disclosing a substantial interest in an order issued by the
Secretary of Transportation . . . in whole or in part under this part [49
U.S.C. 40101-46507], [or] part B [49 U.S.C. 47101-47534] . . . may
apply for review of the order by filing a petition for review in the United
States Court of Appeals for the District of Columbia Circuit or in the court
of appeals of the United States for the circuit in which the person resides
or has its principal place of business.
49 U.S.C. 46110(a). The Fifth Circuit has held that the courts of appeals have exclusive
jurisdiction over challenges to such orders. Jones v. United States, 625 F.3d 827, 829 (5th Cir.
2010); see also Ligon v. LaHood, 614 F.3d 150, 154 (5th Cir. 2010) (noting in challenge to FAA
order that [s]pecific grants of jurisdiction to the courts of appeals override general grants of
jurisdiction to the district courts.). And the term order has been given an expansive
construction, to include any final agency action. See id. at 154. Thus, if DOT takes final
agency action pursuant to Parts A or B or Subtitle VII of Title 49 (49 U.S.C. 40101-47534),
only the courts of appeals have jurisdiction to review such an action.
Here, there is no question that the DOT Letters if they were final agency actions
would fall within section 46110(a). The letters provide guidance with respect to several different
provisions falling within Parts A and B: the grant assurances required by 49 U.S.C. 47107, the
statutory competition plan requirements of 49 U.S.C. 40117(k) and 47106(f), and the
exclusive use prohibition of 49 U.S.C. 40103(e). The Citys contention that DOT has in fact
acted pursuant to WARA rather than Title 49, ECF No. 1 12, is simply incorrect. Whether or
not WARA imposes limits on DOTs ability to exercise its preexisting authority at Love Field,
18
the statute does not independently authorize DOT to take any action, such that a DOT order
could be said to have been issued under WARA. And Southwest, for its part, has challenged
the DOT Letters in the D.C. Circuit, and has expressly disagreed with the Citys argument. See
App. 60 (Southwest argues that the courts of appeals have jurisdiction under section 46110 as
long as DOT maintains that its Letter was issued under parts A or B of Title 49).
Accordingly, even if the DOT Letters constituted final agency action, they would be
reviewable exclusively in the courts of appeals, and the claims against DOT would still be
subject to dismissal pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction.
In the alternative, 28 U.S.C. 1631 provides that when an action is filed in a court
without jurisdiction, the court shall, if it is in the interest of justice, transfer such action . . . to
any other such court in which the action or appeal could have been brought at the time it was
filed or noticed. See also Henderson v. United States, 517 U.S. 654, 667 (1996) (noting that
section 1631 authoriz[es] transfer, inter alia, when review of agency action is sought in the
wrong federal court). If the Court determines that transfer is appropriate here, the appropriate
destination would be the D.C. Circuit, where Southwest has already challenged both DOT
Letters. In cases where petitions to review an administrative order are filed in multiple courts of
appeals, 28 U.S.C. 2112(a) provides, with certain exceptions not relevant here, that the first
filed petition controls where the record should be filed. Petitions filed later in other circuits
should be transferred to the court where the record has been filed. Southland Mower Co. v. U.S.
Consumer Prod. Safety Commn, 600 F.2d 12, 13-14 (5th Cir. 1979). Here, the certified index to
the administrative record in Southwests challenge to the First DOT Letter was filed in the D.C.
Circuit on April 6, 2015, ECF No. 134-3 at 83-94, and the certified index in Southwests
challenge to the Second DOT Letter is due to be filed on October 1. Thus, if the Court
19
determines that transfer of the claims against DOT (instead of dismissal) is appropriate, those
claims should be transferred to the D.C. Circuit. 10
III.
THE COURT SHOULD DEFER MAKING ANY RULINGS

ON THE CLAIMS AMONG THE NON-FEDERAL PARTIES.
The dismissal or transfer of the claims against DOT will leave the Court with the Citys
claims for declaratory relief against six different airlines, and the array of counterclaims and
crossclaims asserted by Southwest and Delta. All of these claims revolve around the central
question being considered in the pending FAA administrative proceeding: whether the Citys
grant assurances and related federal obligations require it to accommodate Delta. The FAA will
decide that question through its normal process, and its final decision will be subject to judicial
review based upon a full administrative record. The result of the process may moot or otherwise
determine the outcome of this proceeding, and will, at the very least, substantially narrow the
issues presented to this Court. Accordingly, the Court should either under the primary
jurisdiction doctrine or its inherent authority to control its own docket stay all further
proceedings.
A.
The Court Should Not Make any Rulings as to

the Scope of the Citys Federal Legal Obligations.
The doctrine of primary jurisdiction is concerned with promoting proper relationships

between the courts and administrative agencies charged with particular regulatory duties.
United States v. W. Pac. R.R., 352 U.S. 59, 63 (1956). The doctrine applies where a court has
jurisdiction over a claim, but enforcement of the claim requires the resolution of issues which,
10
The Citys challenge to the First DOT letter raises a timeliness issue, since it was not filed
within 60 days of the letters issuance as required by 49 U.S.C. 46110(a). That timeliness issue
may not affect transfer of that part of the case. See Natl Fedn of Blind v. DOT, 78 F. Supp. 3d
407, 415 (D.D.C. 2015) (transferring claim against DOT to the D.C. Circuit, and explaining that
a similar timeliness question was better suited for the D.C. Circuit to answer itself).
20
under a regulatory scheme, have been placed within the special competence of an administrative
body. Id. at 64. In such cases, the judicial process is suspended pending referral of such issues
to the administrative body for its views. Id. In cases where the doctrine applies, the court has
discretion either to retain jurisdiction or, if the parties would not be unfairly disadvantaged, to
dismiss the case without prejudice. Reiter v. Cooper, 507 U.S. 258, 268-69 (1993).
Here, the question being considered by the FAA whether federal law requires the City
to accommodate Delta is at the heart of many of the claims before this Court. See, e.g., ECF
No. 84 at 77 (Southwest request for declaration that federal law does not require the City to
accommodate Delta); ECF No. 66 75-77 (Delta counterclaim alleging that the City breached
its lease by violating grant assurances). The statutory scheme envisions that these questions will
be decided through the FAAs enforcement activities (and judicial review thereof), rather than
through litigation between non-federal parties; indeed, the FAA has already commenced a
proceeding. Accordingly, the Court should avoid issuing any rulings as to the scope of the Citys
obligations under the grant assurances or other federal law. See, e.g., United States v.
Cumberland Farms of Conn., Inc., 826 F.2d 1151, 1163 (1st Cir. 1987) ([T]he doctrine of
primary jurisdiction helps to define the relationship between courts and administrative agencies
by recognizing that if an agency adjudicatory proceeding is ongoing, courts will usually not
interfere until the administrative process is complete. By suspending the judicial process,
appropriate issues can be referred to the agency for its special expertise, and courts will not
prematurely interfere with the administrative process.).
21
B.
The Court Should Stay All Further Proceedings.
It is possible that the Court could grant at least preliminary relief without making rulings
on the federal law issues being investigated by the FAA. But even to the extent the primary
jurisdiction doctrine does not apply, the Court should stay any further proceedings.
It is well-established that the power to stay proceedings is incidental to the power
inherent in every court to control the disposition of the causes on its docket with economy of
time and effort for itself, for counsel, and for litigants. Landis v. N. Am. Co., 299 U.S. 248, 254
(1936). In particular, a trial court may:
find it is efficient for its own docket and the fairest course for the parties
to enter a stay of an action before it, pending resolution of independent
proceedings which bear upon the case. This rule applies whether the
separate proceedings are judicial, administrative, or arbitral in character,
and does not require that the issues in such proceedings are necessarily
controlling of the action before the court.
Mediterranean Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983) (emphasis
added); see also Ricci v. Chicago Mercantile Exchange, 409 U.S. 289 (1973) (affirming stay of
private antitrust proceeding pending administrative proceeding).
Here, a stay in favor of the FAAs administrative proceeding is appropriate because the
result of that proceeding will likely either dispose of this action or narrow it significantly. See
Ricci, 409 U.S. at 305-06 (holding that stay was appropriate when administrative proceeding,
and subsequent judicial review, would either moot a defense or make it easier for the court to
determine that defenses applicability). If, for example, the FAA concludes that federal law
obligates the City to accommodate Delta (and that conclusion survives any judicial challenge),
this dispute will likely be over. If, on the other hand, the FAA concludes that federal law does
not require accommodation, this Court will likely have to decide at most whether the Citys
leases themselves give Delta an enforceable right to accommodation. If the Court were to issue a
22
ruling now based on an ancillary issue, that ruling could be upended by an eventual FAA
decision, potentially leading to substantial business disruptions for the parties. 11 Accordingly,
the Court should stay all further proceedings pending the result of the FAA proceeding.
11
For example, Southwest argues that regardless of whether the grant assurances require the City
to mandate an accommodation of Delta, Delta has no right to remain at Love Field when the City
has not issued such a mandate. See, e.g., ECF No. 71 at 3. If the Court agreed and enjoined
Deltas presence at Love Field on that basis, but the FAA later determined that the grant
assurances required accommodation, it would be necessary to find a way to accommodate Delta
at that point in time.
23
CONCLUSION
For the foregoing reasons, DOT respectfully requests that the Court issue an order:
(1) dismissing all claims asserted against DOT and the FAA, or, in the alternative, transferring
all such claims to the U.S. Court of Appeals for the District of Columbia Circuit; (2) staying all
further proceedings in this matter pending completion of the pending FAA proceeding (and any
subsequent judicial review thereof); and (3) granting such other and further relief as the Court
shall deem just and proper.
September 14, 2015
Respectfully Submitted,
Of Counsel:
KATHRYN B. THOMSON
General Counsel
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
JOHN R. PARKER
Acting United States Attorney
JUDRY L. SUBAR
Assistant Branch Director
PAUL M. GEIER
Assistant General Counsel for Litigation
PETER J. PLOCKI
Deputy Assistant General Counsel for
Litigation
s/ Susan K. Ullman
SUSAN K. ULLMAN, DC Bar 426874
DAVID M. GLASS, DC Bar 544549
Senior Trial Counsel
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W., Room 7146
Washington, D.C. 20530-0001
Tel: (202) 616-0680/Fax: (202) 616-8470
Email: susan.ullman@usdoj.gov
CHARLES E. ENLOE
Trial Attorney
U.S. Department of Transportation
Attorneys for Defendants

U.S. Department of Transportation and
Federal Aviation Administration
24

DALLAS DIVISION
)
CITY OF DALLAS,
)
)
)
Plaintiff,
)
)
v.
)
)
)
)
Defendants. )
)
Document
No. 3:15-cv-02069-K
APPENDIX TO MOTION OF
DEFENDANTS
U.S. DEPARTMENT OF
TRANSPORTATION AND
FEDERAL AVIATION
ADMINISTRATION
AND FOR A STAY
Page
Brief for Intervenor-Respondent Delta Airlines, Inc.,

Southwest Airlines v. DOT, et al., No. 15-1036 (D.C. Cir. Sept. 8, 2015)1-41
Opening Brief of Petitioner,
Southwest Airlines v. DOT, et al., No. 15-1036 (D.C. Cir. June 22, 2015)...42-121
Case 3:15-cv-02069-K Document 165-2 Filed 09/14/15 Page 2 of 122 PageID 4726
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 1 of 41
No. 15-1036
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
________________
SOUTHWEST AIRLINES CO.,
Petitioner,
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION,
Respondent.
DELTA AIR LINES, INC.,
Intervenor for Respondent.
________________
PAGE-PROOF BRIEF FOR
INTERVENOR-RESPONDENT DELTA AIR LINES, INC.
________________
KENNETH P. QUINN
JENNIFER TROCK
PILLSBURY WINTHROP
SHAW PITTMAN
1200 Seventeenth Street, NW
Washington, DC 20036
202-663-8898
PAUL D. CLEMENT
Counsel of Record
JEFFREY M. HARRIS
EDMUND G. LACOUR JR.
BANCROFT PLLC
500 New Jersey Avenue, NW
Seventh Floor
202-234-0090
pclement@bancroftpllc.com
Counsel for Intervenor-Respondent

September 8, 2015
DOT & FAA Motion to Dismiss App. 1
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 2 of 41
CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1(a), Delta Air Lines, Inc.
certifies that it does not have a parent corporation and that no publicly held
corporation owns more than ten percent of its stock.
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 3 of 41
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A.
Parties and Amici.
All parties, intervenors, and amici appearing in this Court are listed in the
Brief for Respondent.
B.
Ruling Under Review.
Petitioner seeks review of a letter the Department of Transportation (DOT)

General Counsel sent to the City of Dallas on December 17, 2014. No official
citation exists for the letter, but it is reproduced in the appendix at JA__-__.
C.
Related Cases.
This case has not previously been before this Court or any other court. There
are three related proceedings currently pending:
1.
On August 13, 2015, Southwest Airlines filed a petition for review in
this Court seeking review of a related letter issued by the DOT General Counsel on
June 15, 2015. The June 15th letter addresses very similar issues to the letter being
challenged in this case. That petition has been docketed as Southwest Airlines Co.
v. United States Department of Transportation, No. 15-1276 (D.C. Cir.).
2.
There is a related case pending in the U.S. District Court for the
Northern District of Texas that involves the same DOT letter that is the subject of
this petition. See City of Dallas v. Delta Air Lines, Inc., No. 15-cv-2069 (N.D. Tex.
filed June 17, 2015). In that case, the City of Dallas has sued DOT, the Federal
Aviation Administration (FAA), Southwest Airlines, and Delta Air Lines, seeking
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 4 of 41
a judicial resolution of the ongoing dispute over access to Love Field. Among other
relief, the City argues that the December 17th DOT letter should be set aside because
it was issued in violation of the Administrative Procedure Act and Wright
Amendment Reform Act of 2006. Southwest has also filed cross-claims in the
district court in which it argues that the policy set forth in the DOT letter unlawfully
deprive[s] Southwest of its preferential gate rights at Love Field and violates the
Wright Amendment Reform Act. Those are the same arguments that Southwest
advances here.
3.
On August 7, 2015, the FAA filed a Notice of Investigation pursuant to
14 C.F.R. Part 16 against the City of Dallas to investigate whether the City violated
its obligations under federal law by failing to grant or otherwise act on the request
of Delta Air Lines, Inc. for accommodation at [Dallas Love Field]. Notice of
Investigation, In the Matter of Compliance with Federal Obligations by the City of
Dallas, Texas, FAA Docket No. 16-15-10 (Aug. 7, 2015). In that proceeding, the
City will be afforded a full opportunity to raise arguments on any [] relevant
topic including the guidance provided by the DOT letters of December 2014 and
June 2015. Id. at 12. The December 2014 DOT letter is the challenged agency
action in this case.
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 5 of 41
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT .......................................................... i
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES............... ii
A.
Parties and Amici .................................................................................. ii
B.
Ruling Under Review ........................................................................... ii
C.
Related Cases ....................................................................................... ii
TABLE OF AUTHORITIES .................................................................................... vi

GLOSSARY OF ABBREVIATIONS ...................................................................... ix
INTRODUCTION AND SUMMARY OF ARGUMENT ........................................ 1
STATEMENT OF THE CASE.................................................................................. 3
A.
The Citys Federal Grant Assurances ................................................... 3
B.
Love Field, DFW, and the Wright Amendment ................................... 4
C.
The Five Party Agreement and Wright Amendment Reform

Act ........................................................................................................ 5
D.
Love Field Gate Lease Agreements ..................................................... 8
E.
The City and Southwest Refuse To Accommodate Delta on

Reasonable Terms ............................................................................... 10
1.
The Citys empty promises of accommodation ....................... 10
2.
DOTs December 17, 2014 Letter............................................ 13
3.
DOTs June 15, 2015 Letter ..................................................... 15
F.
The City Files Suit in the Northern District of Texas ........................ 16
G.
DOTs Formal Investigation into the Citys Compliance with

its Grant Assurances and Federal Obligations ................................... 17
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 6 of 41
ARGUMENT .......................................................................................................... 18
I.
Southwests Petition For Review Should Be Dismissed In Light Of

DOTs Initiation Of A Formal Investigation Into The Citys
Compliance With Its Obligations Under Federal Law ................................. 18
II.
Southwests Substantive Challenges To DOTs Letter Fail On The

Merits ............................................................................................................ 23
A.
DOTs Guidance in the December 17th Letter Is Grounded in

Clear Statutory Authority ................................................................... 24
B.
WARA Requires, Rather Than Precludes, Accommodation

for Delta at Love Field ....................................................................... 26
CONCLUSION ....................................................................................................... 29
CERTIFICATE OF COMPLIANCE
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 7 of 41
TABLE OF AUTHORITIES*
Cases
Am. Petroleum Inst. v. EPA,
216 F.3d 50 (D.C. Cir. 2000) ..............................................................................21
Am. Portland Cement Alliance v. EPA,
101 F.3d 772 (D.C. Cir. 1996) ............................................................................21
Bennett v. Spear,
520 U.S. 154 (1997) ............................................................................................18
City & Cnty. of San Francisco v. FAA,
942 F.2d 1391 (9th Cir. 1991) .............................................................................26
Florida Pub. Telecomms. Ass'n v. FCC,
54 F.3d 857 (D.C. Cir. 1995) ..............................................................................28
FTC v. Standard Oil Co.,
449 U.S. 232 (1980) ............................................................................................23
Indep. Equip. Dealers Assn v. EPA,
372 F.3d 420 (D.C. Cir. 2004) ............................................................................21
Love Terminal Partners v. United States,
97 Fed. Cl. 355 (2011) ......................................................................................4, 5
*Natl Min. Assn v. McCarthy,
758 F.3d 243 (D.C. Cir. 2014) ..................................................................... 20, 22
Penobscot Air Serv. v. FAA,
164 F.3d 713 (1st Cir. 1999) ...............................................................................26
Queens Concerned Neighbors v. FAA,
229 F.3d 387 (2d Cir. 2000) ................................................................................25
*Reliable Automatic Sprinkler Co. v. CPSC,
324 F.3d 726 (D.C. Cir. 2003) ..................................................................... 20, 23
Authorities on which this brief chiefly relies are marked with an asterisk.
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 8 of 41
Sosa v. Alvarez-Machain,
542 U.S. 692 (2004) ............................................................................................28
Vill. of Bensenville v. FAA,
457 F.3d 52 (D.C. Cir. 2006) ..............................................................................21
Whitman v. Am. Trucking Assn,
531 U.S. 457 (2001) ............................................................................................20
Statutes
49 U.S.C. 40103 .......................................................................................................4
49 U.S.C. 40113 .......................................................................................................4
49 U.S.C. 40117 ........................................................................................ 24, 25, 26
49 U.S.C. 46110 .....................................................................................................23
49 U.S.C. 47107 .................................................................................... 4, 14, 25, 24
49 U.S.C. 47111 .......................................................................................................4
Pub. L. 97-248, 96 Stat. 324 (1982)...........................................................................4
*Wright Amendment Reform Act,
Pub. L. No. 109-352, 120 Stat. 2011 (October 13, 2006).............. 7, 8, 26, 27, 28
Regulations
14 C.F.R. 16.109 ......................................................................................................4
14 C.F.R. 16.207 ................................................................................................... 22
14 C.F.R. 16.31 ........................................................................................................4
Other Authorities
Complaint, City of Dallas v. Delta Air Lines, Inc., et. al,
No. 15-cv-2069 (N.D. Tex. filed June 17, 2015) ................................................16
FAA Grant Assurance 22.a .........................................................................................4
FAA Grant Assurance 23............................................................................................4
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 9 of 41
H.R. Rep. No. 109-600 (2006) ...................................................................................5

*Notice of Investigation, In the Matter of Compliance with Federal
Obligations by the City of Dallas, Texas,
FAA Docket No. 16-15-10 (Aug. 7, 2015) .................................. 3, 17, 18, 21, 22
Southwests Am. Combined Resp. to Deltas Mot. For TRO,
City of Dallas v. Delta Air Lines, Inc., No. 3:15-cv-2069-K
(N.D. Tex.), Doc. No. 86 (filed Aug. 11, 2015) ................................................. 21
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 10 of 41
GLOSSARY OF ABBREVIATIONS
Abbreviation
Definition
City
City of Dallas
DFW
Dallas/Fort Worth International Airport
DOT
FAA
Federal Aviation Administration
WARA
Wright Amendment Reform Act of 2006, Pub. L.

109-352, 120 Stat. 2011 (October 13, 2006)
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 11 of 41
INTRODUCTION AND SUMMARY OF ARGUMENT

Since 2009, Delta Air Lines has been operating at Dallas Love Field. It
currently operates five flights per day to its Atlanta hub, which offers passengers
connecting flights to hundreds of destinations beyond. But for Southwest Airlines,
which has a virtual monopoly over Love Field, that is five flights too many.
Southwest controls 18 of the airports 20 gates, operates up to 180 flights per day,
and carries nearly all of the airports passenger traffic.
Despite (or perhaps because of) its virtual-monopoly, Southwest is currently
engaged in a multi-front campaign to drive Delta out of Love Field and thereby
eliminate the last vestige of meaningful competition at the airport. That maneuver,
however, violates both federal law and the lease agreements that govern gate access
at Love Field. In exchange for tens of millions of dollars of federal funding, the City
of Dallaswhich owns Love Fieldhas undertaken statutory obligations and
agreed to grant conditions that require the City to make the airport available for
public use on reasonable terms and without unjust discrimination. The Love Field
gate lease agreements (to which Southwest is a signatory) also expressly incorporate
those federal grant assurances and make clear that new entrants such as Delta are
entitled to accommodation on reasonable terms.
In the December 17, 2014 letter that Southwest challenges here, the General
Counsel of the Department of Transportation provided important guidance to the
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 12 of 41
City underscoring its federal-law obligation to accommodate new entrants. The

letter reminds the City that accommodation must be based on current gate usage at
the time of the request so that an incumbent carrier cannot block new entry merely
by ramping up its own schedule after a new entrant attempts to gain access to the
airport. Similarly, the letter notes that once an entrant has been accommodated, it
may continue to operate a similar pattern of service indefinitely and may not be
pushed out by incumbent carriers at a later date. And the letter reaffirms that
accommodation must be offered at reasonable rates so that new entrants are not
forced to pay exorbitant fees to incumbent carriers in order to gain access to a
federally funded airport.
Read in isolation, the December 17th letter could be construed as providing a
directive to the City about its obligations under federal law.
Subsequent
developments, however, have made clear beyond cavil that the December 17th letter
was not the agencys last word. Since Southwest filed its petition for review of that
letter, DOT has not only sent the City a follow-up letter, but has more recently
opened a formal investigation into whether the City has violated its grant assurances
by failing to accommodate Delta at Love Field. The Notice of Investigation in that
administrative proceeding confirms that DOTs decisionmaking process is still
ongoing and that the agency has not yet imposed any legally binding obligation on
either the City or Southwest. Indeed, DOT has affirmatively invited comments about
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 13 of 41
its conclusions in the letter, noting that [t]he City will be afforded a full opportunity
to raise arguments in this proceeding on any [] relevant topic including the
guidance provided by the DOT letters of December 2014 and June 2015. Notice of
Investigation, In the Matter of Compliance with Federal Obligations by the City of
Dallas, Texas, FAA Docket No. 16-15-10 (Aug. 7, 2015) (Notice of Investigation)
(emphasis added).
Delta thus agrees with DOT that judicial review of the December 17th letter
would be premature. DOTs formal investigation into whether the City has complied
with its grant assurances will allow the expert agency that oversees the federal
regulatory scheme to comprehensively address all relevant legal and factual issues
arising out of the dispute over access to Love Field. At the end of that process, the
losing party can seek judicial review of DOTs action in this Court based on a fully
developed administrative record.
In the meantime, this Court should dismiss
Southwests petition for review and allow the administrative process to run its
course.
STATEMENT OF THE CASE
A.
The Citys Federal Grant Assurances
The federal government provides significant financial assistance to public-use

airports through the Airport Improvement Program. In exchange for those federal
funds, airport sponsors like the City of Dallas must agree to comply with statutory
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 14 of 41
obligations and related grant assurances while operating their airports. The grant
assurances are designed to serve the purposes of fostering competition, preventing
unfair methods of competition in air transportation, maintaining essential air
transportation, and preventing unjust and discriminatory practices. Pub. L. 97-248,
96 Stat. 324 (1982). DOT, through the FAA, has authority to ensure that sponsors
comply with their grant assurances and other federal obligations. See 49 U.S.C.
40113, 47107(g). If DOT finds that an airport sponsor has violated one of its
federal grant assurances, it can withhold federal funds from that airport. See 49
U.S.C. 47111(d); 14 C.F.R. 16.31, 16.109.
This case implicates two federal grant assurances that require the City to:
(1) make Love Field available as an airport for public use on reasonable terms and
without unjust discrimination, FAA Grant Assurance 22.a (implementing 49 U.S.C.
47107(a)(1)); and (2) ensure that the City does not directly or indirectly grant any
carrier an exclusive right to use Love Field, see Grant Assurance 23 (implementing
49 U.S.C. 40103(e) and 47107(a)(4)). Taken together, these grant assurances and
federal statutes require the City to accommodate new entrants to Love Field on
reasonable terms and conditions.
B.
Love Field, DFW, and the Wright Amendment
Love Field became the municipal airport for Dallas in the late 1920s. See Love
Terminal Partners v. United States, 97 Fed. Cl. 355, 362 (2011). In 1968, the cities
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 15 of 41
of Dallas and Fort Worth agreed to build Dallas/Fort Worth International Airport
(DFW), which would be located halfway between the two cities.
Before
construction began, all of the airlines that were then serving Dallas and Fort Worth
agreed to transfer their operations to DFW. Id. In 1971, Southwest began operating
at Love Field, initially providing service only within Texas. Id. When DFW opened
in 1973, Southwest remained at Love Field, while the other airlines moved to DFW
as they had agreed. See H.R. Rep. No. 109-600, pt. 1, at 2 (2006).
In 1978, Congress deregulated the airline industry, and Southwest began
planning to offer flights from Love Field to points outside of Texas. Id. Many public
officials in Texas worried that increased competition from Love Field would
endanger DFWs financial viability. Thus, in 1979, Congress enacted the Wright
Amendment, which provided that carriers operating medium and large aircraft could
only serve cities in Texas and its four surrounding states (Arkansas, New Mexico,
Louisiana, and Oklahoma) from Love Field. See Love Terminal Partners, 97 Fed.
Cl. at 363. Later amendments to the Wright Amendment added Alabama, Kansas,
Mississippi, and Missouri to the Love Field service area.
C.
The Five Party Agreement and Wright Amendment Reform Act
1.
In response to calls for liberalization or elimination of flight restrictions
at Love Field, the Cities of Dallas and Fort Worth, the DFW International Airport
Board, American Airlines, and Southwest entered into an agreement (the Five Party
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 16 of 41
Agreement) on July 11, 2006, to govern future operations and development at Love
Field. JA_-_(Five_Party_Agreement).
Among other goals, the Five Party Agreement sought the enactment of
legislation that would amend, and eventually repeal, the Wright Amendments
limitations on Love Field operations. JA_(Id._Art.1_1). The agreement required
the City of Dallas to reduce gate capacity at Love Field from 32 to 20 gates, and to
grant preferential use of 16 gates to Southwest, 2 gates to American, and 2 gates to
ExpressJet Airlines, Inc.
JA_(Id._Art.I_3.b).1
The agreement also imposed
penalties on Southwest if it were to acquire a gate at DFW; similar penalties applied

to American if it were to acquire a new gate at Love Field. JA_(Id._Art.I_10-11).
Consistent with the Citys federal obligations as a recipient of federal airport
grants, the Five Party Agreement also includes a forced accommodation provision
to ensure that new entrants would be able to access Love Field. The Agreement
provides that [t]o the extent a new entrant carrier seeks to enter Love Field, the City
of Dallas will seek voluntary accommodation from its existing carriers to
accommodate the new entrant service. JA_(Id._Art.I_3.b.). But if existing
carriers are not able or are not willing to accommodate the new entrant service, then
ExpressJets gates were later acquired by United Airlines.
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 17 of 41
the City of Dallas agrees to require the sharing of preferential lease gates, pursuant
to Dallas existing lease arrangements. Id.
2.
In 2006, Congress enacted the Wright Amendment Reform Act
(WARA), Pub. L. No. 109-352, 120 Stat. 2011, which codified several of the key
provisions of the Five Party Agreement. WARA provided that the limitations on
flights to and from Love Field would end on October 13, 2014, and permanently
capped the number of Love Field gates at 20. The statute also expressly required the
City to accommodate new entrant air carriers by honor[ing] the scarce resource
provision of the existing Love Field leases. WARA 5(a).
WARA also reaffirmed DOTs authority to require fair treatment of new
entrants at Love Field, providing that:
Nothing in this Act shall be construed to limit the authority of the
Federal Aviation Administration or any other Federal agency to enforce
requirements of law and grant assurances that impose obligations on
Love Field to make its facilities available on a reasonable and
nondiscriminatory basis to air carriers seeking to use such facilities, or
to withhold grants or deny applications to applicants violating such
obligations with respect to Love Field.
Id. 5(e)(1)(E). The Act further states that this provision shall not be construed to
require the City to modify or eliminate preferential gate leases in order to
allocate gate capacity to new entrants or to create common use gates, unless such
modification or elimination is implemented on a nationwide basis.
Id.
5(e)(2)(B)(ii). The statute thus draws a clear line between accommodation of a
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 18 of 41
new entrant by existing leaseholderswhich is required by section 5(a) of

WARAand modification or elimination of a preferential gate lease, which is
limited in certain respects by section 5(e)(2)(B)(ii).
D.
Love Field Gate Lease Agreements
Consistent with the Citys obligations under federal law, the gate lease
agreements for carriers operating at Love Field also contain scarce resource
provisions designed to ensure that new entrants will have access to Love Field on
reasonable terms. Those lease agreements set forth a multi-step accommodation
process in which a signatory airline either agrees to accommodate or is forced to
accommodate a new entrant that seeks access to gate space.
If a new entrant carrier seeks to begin service at Love Field, the City will first
seek
voluntary
accommodation
from
the
incumbent
airlines.
JA_(Lease_Agreement_4.06.D.4). If the incumbents are not able or are not

willing to accommodate the new entrant service, then the City agrees to require the
sharing of Airlines Preferential Use Space and Gates.
JA_(Id.).
Once
accommodation has been forced, the incumbent may assess reasonable fees and
charges under an appropriate contract for services rendered to, or subleased facilities
shared with the new entrant; any such fees must be based on the incumbent airlines
costs plus a reasonable fee for administration. JA_(Id._4.06.F.4.c). The incumbent
airline thus retains its rights in the underlying lease, but the airport has effectively
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 19 of 41
forced it to enter a sublease with the new entrant.
Thus, under a forced
accommodation, even though the signatory airline cannot operate flights from its
gate at certain times, it continues to derive revenue from the lease that it would not
have received if the gate were entirely reassigned to another airline or designated for
common use.
In contrast, modification of gate lease agreements is governed by a separate
Competitive Access provision that allows for more drastic measures if the federal
government threatens to withhold airport funding. JA_(Id._14.02). Under that
provision, if the federal government threatens to withhold federal assistance, or
other sanctions, as a result of such review, City and Airline agree to modify this
Agreement accordingly to reflect any necessary change as a result of such action.
JA_(Id.) (emphasis added). Thus, while accommodation merely requires a signatory
airline to accept a sublease, modification can take away the signatorys underlying
right to the lease altogether.
Finally, the Love Field gate lease agreement also confirms that any rights the
City grants to an airline must be consistent with (and subordinate to) the Citys
obligations under federal law. See JA_, _, _, _(id._14.09,_14.16,_14.19,_14.34).
The accommodation and modification provisions of the leases are thus agreed-upon
tools that the City can use to ensure that it remains in full compliance with its grant
assurances and all other federal law obligations.
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 20 of 41
E.
The City and Southwest Refuse To Accommodate Delta on

Reasonable Terms
In light of the Citys federal statutory and grant assurance obligations, the
plain text of WARA, and the scarce resource provisions of the gate lease agreements,
it should have been crystal clear to Southwest and the City that Delta was entitled to
accommodation on reasonable terms for its limited schedule of flights at Love Field.
But aggressive moves by Southwest, aided by curious decisions and foot-dragging
by the City, now threaten to force Delta out of Love Field and reinforce Southwests
near-monopoly at the airport.
1.
The Citys empty promises of accommodation
In 2009, Delta began operating at Love Field by subleasing a gate from

American Airlines. Initially, that service was provided to Deltas Memphis hub, and
later was increased to the five daily flights Delta now offers to Atlanta. This service
has brought much-needed competition to Love Field, and currently allows Dallas
passengers convenient access to hundreds of destinations around the world through
Deltas Atlanta hub. But in mid-2014, American informed Delta that it would
terminate the sublease effective October 12, 2014.2
The Department of Justice required American to divest its gates at Love Field
as a condition of approving Americans merger with US Airways. American
ultimately transferred those gates to Virgin America.
2
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 21 of 41
Following the procedures set forth in the Love Field gate lease agreements,
Delta immediately began seeking accommodation from the City and the incumbent
airlines. JA_-_(Sept._18_2014_Shannon_Letter). The City assured Delta that it
would be accommodated and notified signatory airlines that the City would force
accommodation if no airline voluntarily accommodated Delta within 30 days.
JA_(Id.). But when these 30 days passed, the City did nothing. Instead, on
September 29th, the City reversed course, informing Delta for the first time that it
would not be accommodated. JA_-_ (Sept._29_2014_Duebner_Letter). The City
based its decision in part on Southwests proposed plan to acquire even more Love
Field gate space from United. JA_(Id.). Because of the Citys inaction, Delta was
forced to sign a short-term sublease with Southwest on unfavorable terms that
allowed it to continue operating only through January 6, 2015.
After Delta again explained why it was entitled to accommodation under both
federal law and the lease agreements, see JA_(Oct._2_Quinn_Letter), the City
announced that it intended to develop a formal accommodation policy to address
Deltas pending request, see JA_-_(Nov._10_2014_Memo._from_City). The City
announced its policy less than two weeks later, on December 1, 2014. Under that
policy, the City would begin its accommodation analysis by determining a
Snapshot Date that will start the time period for assessing reasonable
accommodation.
JA_(Love_Field_Accom._Criteria_1).
The Snapshot Date
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 22 of 41
[o]rdinarily will be the date on which the City received the formal request for
accommodation. JA_(Id.). Once a Snapshot Date was selected, the City would
consider the other carriers schedules and gate utilization efficiency to determine
which carrier would be required to accommodate the new entrant. JA_(Id.).
The City selected November 5, 2014, as the Snapshot Date for Deltas
accommodation request. Based on Southwests announced schedule as of that date,
there is no question that Delta could have been accommodated on Southwests gates.
During the six-month window between November 5, 2014 and April 4, 2015,
Southwest was operating no more than 153 flights per day out of sixteen gates at
Love Field. JA_(Resp._from_Southwest_to_City_9). Given that each gate at Love
Field can accommodate at least ten flights per day, Southwest could have easily
accommodated Deltas five daily flights on one of its sixteen leased gates without
any disruption to or interference with its operations.
On December 1, 2014, the City again announced that Delta would be
accommodated at Love Field. JA_-_(Dec._1_2014_Letter_from_City). The City
instructed each of the three incumbent carriers to consider whether it can
accommodate Deltas request. JA_(Id._2) (emphasis added). The City stated that
[o]n December 31, 2014, if we have not received notification that Delta has been
voluntarily accommodated, the City will make a mandatory accommodation as
provided in the Use and Lease Agreement. JA_(Id.) (emphasis added).
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 23 of 41
2.
DOTs December 17, 2014 Letter
Despite the Citys repeated promises that it would comply with its federal
obligations and accommodate Delta, in December 2014, the City sought additional
direction from DOT regarding those obligations. On December 17, 2014, DOTs
General Counsel reiterated DOTs longstanding position on accommodation and
provided the City with guidance regarding its obligations under the relevant federal
statutes and grant assurances. JA_(First_DOT_Letter_2). DOT informed the City
that if Delta could not arrange voluntary accommodation with an incumbent airline,
DOT expect[ed] that the City will accommodate the requesting carrier to the
extent possible given the current gate usage, without impacting current or alreadyannounced, for-sale services by the signatory carriers. JA_(Id.).
DOT emphasized that the determination of whether accommodation is
possible given the current gate usage should be made based on the available space
on the snapshot date of the original accommodation request. JA_(Id.). Thus, if an
incumbent carrier announces plans for a future increase in service after receiving a
request for accommodation, the City should not consider those planned future
service increases when determining whether accommodation is possible. A flight
may be considered as part of the accommodation analysis only if it was either
current[ly] operated or part of the signatory carriers already-announced, for-sale
services as of the date of the accommodation request. JA_(Id.).
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 24 of 41
DOT also noted that, for accommodation to meaningfully advance the

purposes of Title 49 and the grant assurances, an airport should not allow an
accommodated airline to be pushed out by incumbent carriers at a later date.
JA_(Id.). Thus, accommodated carriers should be allowed to continue operating
their flights so long as they maintain a similar pattern of service. JA_(Id.).
Finally, DOT stated that 49 U.S.C. 47107(a)(1), which provides that Love
Field must be made available for public use on reasonable conditions and without
unjust discrimination, requires the City to ensure that the accommodation is at
reasonable rates. JA_(Id._3). DOT informed the City that rates would generally
be considered reasonable as long as they were limited to the signatory carriers
direct leasing costs for the pro-rata share of subleased facilities, plus a reasonable
allowance for administration that may not exceed 25%. JA_(Id.).
In response to DOTs December 17th letter, the City did essentially nothing.
Despite its promise to make a mandatory accommodation on December 31st
unless it received a notice of voluntary accommodation, that day came and went
without either a voluntary accommodation or a forced accommodation. Shortly
thereafter, Delta was forced to enter into yet another short-term sublease agreement
(this time with United) that allowed it to continue operating through July 6, 2015.
Remarkably, even as the City was ignoring Deltas repeated requests for
accommodation, it was simultaneously helping Southwest move closer to total
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 25 of 41
control of Love Field. In mid-2014, Southwest reached an agreement to sublease

Uniteds two gates through 2028, which would give Southwest control over 18 of
the 20 gates at Love Field. JA_(United-Southwest_Sublease_2). The sublease,
however,
could
not
take
JA_(Lease_Agreement_13.01).
effect
without
the
Citys
consent.
Even though Southwests flights already
accounted for more than 96% of all passenger enplanements at Love Field,
JA_(Dec._11_2014_Letter_from_K._Quinn), and even though Deltas request for
accommodation remained in limbo, the City approved Southwests sublease of
Uniteds gates on January 28, 2015. JA_-_(Consent to Sublease).
Meanwhile, Delta continued to press the City to honor its repeated promises
for accommodation. And, even though DOTs December 17, 2014 letter had failed
to prompt the City to action, on February 13, 2015, Southwest petitioned this Court
for review of that letter on the theory that it constituted final agency action.
3.
DOTs June 15, 2015 Letter
Throughout the spring of 2015, the City continued to delay any action on
Deltas request by insisting that it needed still more guidance from DOT before it
could decide how to proceed. On June 15, 2015, DOT responded to the Citys
request by sending another letter. JA_-_(Second_DOT_Letter). Though DOT stated
that its first letter provided sufficient guidance to permit the City to assess and make
a determination regarding Deltas requests, DOT reiterated its position regarding
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 26 of 41
the length of accommodations.
JA_(Id.).
DOT offered the common-sense
observation that accommodation would be economically meaningless if a signatory

airline could block a requesting carrier from accessing Love Field by announcing
future plans to expand service [] after an accommodation request is made.
JA_(Id._3).
DOT concluded its letter with a reminder that it is the Citys
responsibility to decide how to act on Deltas request in the first instance.

JA_(Id._4).
F.
The City Files Suit in the Northern District of Texas
Rather than heeding DOTs advice and finally making a decision on Deltas
year-old request for accommodation, the City filed a remarkable lawsuit against
DOT, FAA, Delta, Southwest, Virgin, American, United, and Seaport Airlines in
federal district court in Dallas. See Complaint, City of Dallas v. Delta Air Lines,
Inc., et. al, No. 15-2069 (N.D. Tex. filed June 17, 2015). Even though the City was
the owner and operator of the airport and was clearly responsible for making
accommodation decisions in the first instance, the City threw up its hands, claimed
that it was facing conflicting demands, and filed what effectively amounts to an
interpleader concerning its responsibility over Love Field by asking the district
court to declare the rights and legal obligations of all parties to the dispute. Just
two days later, Southwest filed a 57-page answer with multiple cross-claims against
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 27 of 41
Delta and a fully briefed motion for a temporary restraining order seeking to evict
Delta from Love Field.
After Delta filed its own motion for a temporary restraining order asking the
court to enjoin Southwest from interfering with Deltas flight schedule, Southwest
agreed to allow Delta to continue operating at Love Field until September 30th.
Though Southwest had previously suggested that it would be impossible for it to
expand to 180 flights per day unless Delta ceased its five flights, see Southwest
Br. 35 (180 flights is full utilization under any possible scenario), Southwest is
now operating 180 flights per day alongside Deltas five flights, thereby confirming
that there is room at Love Field to accommodate Delta.
The Citys suit remains pending in the Northern District of Texas, and is
currently proceeding towards a preliminary injunction hearing and ultimately
judgment on the Citys complaint and Deltas and Southwests cross-claims and
counter-claims.
G.
DOTs Formal Investigation into the Citys Compliance with its

Grant Assurances and Federal Obligations
On August 7, 2015, DOT commenced a formal administrative action against

the City. In that proceeding, DOT will investigate whether the Citys prolonged
failure to grant Delta an accommodation at Love Field violated the Citys obligations
under federal law to refrain from unjust discrimination and ensure that no airline was
given an exclusive right to operate at the airport. See Notice of Investigation at 12.
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 28 of 41
That proceeding will comprehensively address all of the relevant legal and factual
issues arising out of Deltas request for accommodation. DOT also stated that its
previous letters were only guidance to the City, and that the City will be afforded
a full opportunity to challenge DOTs conclusions in those letters. Finally, DOT
strongly recommend[ed] that the City ensure the maintenance of the status quo at
[Love Field] until this matter can be resolved, but noted that, if necessary, DOT
would consider issuing an interim order to require the City to maintain access to
[Love Field] for Delta. Id.
ARGUMENT
I.
Southwests Petition For Review Should Be Dismissed In Light Of DOTs

Initiation Of A Formal Investigation Into The Citys Compliance With Its
Obligations Under Federal Law.
A.
To establish that a challenged agency action is final, the petitioner
must show that the action mark[s] the consummation of the agencys
decisionmaking processit must not be of a merely tentative or interlocutory
nature, and that the action is one by which rights or obligations have been
determined, or from which legal consequences will flow. Bennett v. Spear, 520
U.S. 154, 177-78 (1997).
If DOTs December 17th letter stood alone, there would be plausible
arguments that it constitutes final agency action. The letter was issued in response
to a specific request from the City about its obligations under federal law. And,
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 29 of 41
although DOT did not weigh in on the specific dispute between Delta and Southwest,
it did discuss the general principles of law that it believed would govern this dispute.
For example, DOT noted that accommodation requests should be evaluated based
on gate capacity at the time of the request, and that a new entrant should be able to
maintain its accommodation as long as it continues to operate its existing schedule
of flights. JA_(DOT_Letter_2). And DOT emphasized that airport operators have
an obligation to ensure that accommodation is provided at reasonable rates.
JA_(Id._3).
Although DOT acknowledged that the City has discretion in applying those
principles to the ongoing controversy at Love Field, see JA_(id.), it did not suggest
in the letter that the legal conclusions set forth therein were tentative or preliminary.
Indeed, in the wake of that letter, Delta argued that the City should consider itself
bound by DOTs statements in the letter, and the City represented that it would treat
DOTs guidance as binding (although the City subsequently reneged on that
promise). See, e.g., JA__(Feb_23_Quinn_Letter) (Delta requesting accommodation
[c]onsistent with the standards reflected in [DOTs] December 17, 2014 letter);
JA_(City_Consent_To_Sublease) (City stating that it is treating the 2014 Letter as
promulgating final and binding directives).
B.
Although it is debatable whether DOTs December 17th letter would
constitute final agency action if it stood alone, it does not. Subsequent developments
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 30 of 41
have made clear beyond doubt that the December letter was not DOTs last word
and does not constitute final agency action. See, e.g., Whitman v. Am. Trucking
Assn, 531 U.S. 457, 477-79 (2001) (examining subsequent agency actions to
determine whether EPAs interim implementation policy was final agency action);
Natl Min. Assn v. McCarthy, 758 F.3d 243, 253 (D.C. Cir. 2014) (court look[s] to
post-guidance events to determine whether the agency has applied the guidance as
if it were binding on regulated parties).
Here, not only did DOT send a follow-up letter in June, but its recent decision
to open a formal investigation into whether the City has violated its grant assurances
or other federal-law obligations makes clear that neither letter constitutes reviewable
final agency action. DOTs comprehensive administrative proceeding will address
the legal issues raised in its December 17th letter as well as the inherently factual
question of whether the City actually violated its grant assurances or other federal
law obligations by refusing to accommodate Delta on reasonable terms.
Southwest will thus incur no concrete harm or consequences as a result of the
December 17th letter unless and until the principles set forth in that letter are actually
applied to the City in the pending administrative proceeding and used to compel a
forced accommodation. At the moment, [n]o legal consequences flow from the
December 17th letter because there has been no order compelling [Southwest or the
City] to do anything. Reliable Automatic Sprinkler Co. v. CPSC, 324 F.3d 726, 732
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 31 of 41
(D.C. Cir. 2003); see also Vill. of Bensenville v. FAA, 457 F.3d 52, 69 (D.C. Cir.
2006) (agency action non-final because it does not itself adversely affect [the
petitioners] but only affects [their] rights adversely on the contingency of future
administrative action); Indep. Equip. Dealers Assn v. EPA, 372 F.3d 420, 427 (D.C.
Cir. 2004) (Roberts, J.) (no final agency action where challenged letter was purely
informational in nature and imposed no obligations and denied no relief).3
Moreover, DOT has now made clear that the December 17th letter was not
intended as the last word on the subject of the Citys accommodation obligations.
Am. Portland Cement Alliance v. EPA, 101 F.3d 772, 777 (D.C. Cir. 1996). In its
Notice of Investigation initiating the administrative proceeding, DOT explicitly
stated that [b]ecause the letter only offered guidance, it was not intended to
constitute a definitive resolution of the dispute between Delta and the City. Notice
of Investigation at 10 n.12; see Am. Petroleum Inst. v. EPA, 216 F.3d 50, 68 (D.C.
Cir. 2000) (In determining whether an agency has taken final action, one factor to
consider is the agencys own characterization of its action.).
Indeed, Southwest itself argued in the Northern District of Texas case that
that there must be a full administrative procedure to determine whether Delta has a
right to be accommodated prior to forcing a signatory airline to accommodate
Delta, and that such a full procedure has not yet occurred. Southwests Am.
Combined Resp. to Deltas Mot. For TRO at 5-6, City of Dallas v. Delta Air Lines,
Inc., No. 15-cv-2069 (N.D. Tex.), Doc. No. 86 (filed Aug. 11, 2015).
3
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 32 of 41
Indeed, if the City, Southwest, or any other party disagrees with the
conclusions set forth in the letter, DOT affirmatively invited those parties to raise
any such issues in the administrative proceeding.4 The Notice makes clear that [t]he
City will be afforded a full opportunity to raise arguments in this proceeding on
any [] relevant topic including the guidance provided by the DOT letters of
December 2014 and June 2015. Id. at 12 (emphasis added). And another issue that
DOT will consider in the administrative proceeding is whether accommodation of
Delta would be unlawful in light of WARA, id., which is the exact issue that
Southwest seeks to raise here.
In light of these statements in the Notice of
Investigation, there is no question that the December 17th letter is not DOTs final
word on either the dispute at Love Field or the reasonable accommodation
obligation more generally. See Natl Min. Assn, 758 F.3d at 253 (dismissing
challenge to agency guidance where post-guidance events d[id] not suggest that the
agency applied the Final Guidance as if it were binding on regulated parties).
Finally, deferring judicial review until the completion of the administrative
proceeding before DOT would not affect this Courts ultimate authority to address
The City is currently the only party to the administrative proceeding, but
Southwest and other interested parties may seek intervention once the matter has
been set for hearing. See 14 C.F.R. 16.207. And, in all events, Southwest has no
greater relationship to the December 17, 2014 letter to the City than it does to the
administrative proceeding.
4
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 33 of 41
the legal issues raised by Southwest. DOTs investigation will conclude with a final,
appealable order that fully addresses the relevant issues and is subject to review in
this Court under 49 U.S.C. 46110.
* * *
In sum, the legal effect of DOTs December 17th letter may have been subject
to reasonable debate when the letter was first issued, but DOTs subsequent actions
make crystal clear that the views set forth in the letter are not the agencys final word
on the subject. It thus makes no sense for a court to intervene now because both
Southwest and the City still enjoy[] an opportunity to convince the agency to
change its mind. Reliable Automatic Sprinkler, 324 F.3d at 732-33. Review by this
Court at this early stagebefore DOT has fully appl[ied] its expertise to the
dispute in questionthreatens to lead[] to piecemeal review which at the least is
inefficient and upon completion of the agency process might prove to have been
unnecessary. FTC v. Standard Oil Co., 449 U.S. 232, 242 (1980). The petition for
review should accordingly be dismissed.
II.
Southwests Substantive Challenges To DOTs Letter Fail On The Merits.

In light of its argument that the December 17th letter is not final agency action,
DOT does not respond to Southwests arguments that the guidance set forth in the
letter exceeds DOTs statutory authority and is contrary to WARA. See Southwest
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 34 of 41
Br. 46-55.
In the interests of completeness, Delta briefly explains here why
Southwests substantive challenges to the letter are wholly without merit.

A.
DOTs Guidance in the December 17th Letter Is Grounded in Clear

Statutory Authority.
Southwest asserts that DOT had no statutory support for its statements in the
December 17th letter that: (1) a request for accommodation should be evaluated
based on airport capacity on the date the requesting party first seeks accommodation;
and (2) the accommodated carrier should be able to continue its pattern of service as
long as it maintains its existing flight schedule, without being subject to eviction
whenever the incumbent carrier decides to expand its flight schedule. See Southwest
Br. 46-48. That argument is based on a selective quotation of DOTs letter and
simply disregards the key statutory text.
According to Southwest, DOT cited only 49 U.S.C. 40117(k) when
discussing the Citys obligations under federal law.5 Because that subsection does
not require a forced accommodation that overrides the leasehold rights of a
signatory airline, Southwest asserts that DOT cannot identify any statutory
provision that gives the agency the authority for its positions. Southwest Br. 48.
But that argument is flatly refuted by the first page of the letter, which states that
While the DOT Letter cited 49 U.S.C. 47107(k), all parties recognize that
this was a typographical error, and that the letter meant to reference instead section
40117(k). See Southwest Br. 47; DOT Br. 10 n.6.
5
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 35 of 41
DOT is interpreting not only subsection 40117(k), but also the Citys grant
assurances and legal obligations under Federal law to reasonably accommodate
all air carriers seeking to provide service at the airport. JA_(DOT_Letter_1).
Those federal law obligations include requirements to make the airport
available for public use on reasonable conditions and without unjust
discrimination, 49 U.S.C. 47107(a)(1), and to ensure that no carrier is given an
exclusive right to use the airport, id. 47107(a)(4). Based on this broad statutory
text, DOT was well within the scope of its discretion to conclude that the specific
policies mentioned in its December 17th letter were needed to ensure reasonable
access to new entrants. If an accommodation request were not evaluated based on
airport capacity on the date of the request, then an incumbent carrier could
effectively veto any new entry by expanding its flight schedule whenever a new
carrier sought access to the airport (as Southwest is attempting to do here). Similarly,
it was hardly unreasonable for DOT to conclude that an accommodated carrier
should be able to continue its existing flight schedule without being subject to
eviction merely because an incumbent carrier chose to expand its service.
DOTs interpretation of reasonable accommodation under the governing
statutes was eminently reasonable in its own right and is entitled to deference. See
Queens Concerned Neighbors v. FAA, 229 F.3d 387, 394 (2d Cir. 2000) (FAAs
interpretation of statutory requirements entitled to Chevron deference); Penobscot
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 36 of 41
Air Serv. v. FAA, 164 F.3d 713, 725 n.12 (1st Cir. 1999) (FAAs interpretation of what
constituted grant of exclusive right was entitled to Chevron deference); City & Cnty.
of San Francisco v. FAA, 942 F.2d 1391, 1396 (9th Cir. 1991) (The FAAs
interpretation of what constitutes unjust discrimination within the meaning of [the
AAIA] will be upheld unless it is unreasonable.).
In all events, Southwests argument that section 40117(k) is insufficient to
support DOTs letter fails on its own terms, as subsection 40117(k)(2) expressly
provides that DOT shall review an airports competition plan to ensure that it meets
the requirements of this section, and shall review its implementation from time-totime to ensure that each covered airport successfully implements its plan. The
Citys updated competition plan reaffirms the Citys commitment to
accommodating new entrants and explains that [i]n the future, the City intends to
accommodate requests for access by applying the gate sharing provisions contained
in the current leaseprovisions which have been incorporated in Section 4.06F of
the new Restated Lease. JA_(June_3_2009_Weber_Letter). It was plainly within
DOTs power to interpret the circumstances under which the competition plan
requires that accommodation to take place.
B.
WARA Requires, Rather Than Precludes, Accommodation for

Delta at Love Field.
To protect competition at Love Field, WARA expressly requires the City to

accommodate new entrant air carriers by honor[ing] the scarce resource provision
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 37 of 41
of the existing Love Field leases. WARA 5(a) (emphasis added). The scarce
resource provision is found in Section 4.06 of the Citys gate lease agreement, which
provides that if incumbent airlines are not able or are not willing to accommodate
the new entrant service, then the City agrees to require the sharing of Airlines
Preferential Use Space and Gates. JA_(Lease_Agreement_4.06.D.4). Once the
City has selected an incumbent airline for forced accommodation, that airline will
accommodate the Requesting Airline, subject to limited conditions. JA_(Id._F.4).
Despite this seemingly clear language preserving the Citys accommodation
obligation, Southwest asserts that section 5(e)(2)(B)(ii) of WARA limits DOTs
authority to require the City to comply with its federal obligations. See Southwest
Br. 49-50. That section states that the provision of WARA preserving DOTs
authority to promote competition shall not be construed to require the city of Dallas
to modify or eliminate existing leases in order to allocate gate capacity to new
entrants or to create common use gates, unless such modification or elimination is
implemented on a nationwide basis. WARA 5(e)(2)(B)(ii) (emphasis added).
From this, Southwest concludes that DOTs view of accommodation conflicts with
WARA because DOT has not implemented a policy of modifying or eliminating
air carrier preferential lease rights on a nationwide basis. Southwest Br. 50.
Southwests position is based on an improper conflation of accommodation
and modification. In fact, both WARA and the Lease Agreement make clear that
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 38 of 41
these are two separate processes, invoked by different means, with different
consequences. Through accommodation, a signatory airline either agrees or is
forced to sublease gate space to a new entrant. While under the accommodation the
signatory airline cannot operate flights from its gate at certain times, but it retains its
underlying right in the lease and continues to derive revenue from the lease that it
would not have received if the gate were assigned to a new airline or designated for
common use. See JA_(Lease_Agreement_4.06.F.4.c). Modification, in contrast,
is a more drastic measure allowed under the Lease Agreement only if the federal
government threatens to withhold airport funding. JA_(Id._14.02). Unlike an
accommodation, a modification can remove an airlines underlying right to its lease.
Thus, by using the terms modification or elimination in section
5(e)(2)(B)(ii) of WARAinstead of accommodation, which section 5(a)
expressly requiresCongress made clear that this limitation would have no effect
whatsoever on the Citys accommodation obligation and DOTs authority to enforce
that obligation. See Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004) (when
the legislature uses certain language in one part of the statute and different language
in another, the court assumes different meanings were intended); Florida Pub.
Telecomms. Ass'n v. FCC, 54 F.3d 857, 860 (D.C. Cir. 1995) (following the usual
canon that when Congress uses different language in different sections of a statute,
it does so intentionally). DOTs December 17th letter cannot run afoul of section
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 39 of 41
5(e)(2)(B)(ii) because it simply does not address a modification or elimination

of rights under the lease.
CONCLUSION
In light of the pending administrative proceeding before DOT, Southwests
petition for review is premature and should be dismissed. Alternatively, the petition
should be denied on the merits.
Respectfully submitted,
s/Paul D. Clement
PAUL D. CLEMENT
Counsel of Record
KENNETH P. QUINN
JEFFREY M. HARRIS
JENNIFER TROCK
EDMUND G. LACOUR JR.
PILLSBURY WINTHROP SHAW BANCROFT PLLC
PITTMAN
500 New Jersey Avenue, NW
1200 Seventeenth Street, NW
Seventh Floor
202-663-8898
202-234-0090
pclement@bancroftpllc.com
Counsel for Intervenor
September 8, 2015
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 40 of 41
I hereby certify that:
1. This brief complies with the type-volume limitation of Circuit Rule
32(e)(2)(B) because it contains 6,610 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This Brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Word 2013 in 14point font.
Dated: September 8, 2015
s/Paul D. Clement
Paul D. Clement
USCA Case #15-1036
Document #1571941
Filed: 09/08/2015
Page 41 of 41
I hereby certify that on September 8, 2015, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the District of
Columbia Circuit by using the CM/ECF system. I certify that all participants in this
case are registered CM/ECF users and that service will be accomplished by the
CM/ECF system.
s/Paul D. Clement
Paul D. Clement
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 1 of 80
ORAL ARGUMENT NOT YET SCHEDULED
No. 15-1036
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
SOUTHWEST AIRLINES CO.,
Petitioner,
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION,
Respondent.
OPENING BRIEF OF PETITIONER
M. Roy Goldberg (D.C. Bar No. 416953)

Steptoe & Johnson LLP
1330 Connecticut Ave., N.W.
(202) 429-3000 (phone)
(202) 429-3902 (fax)
rgoldberg@steptoe.com
Robert W. Kneisley (D.C. Bar No. 366959)
Southwest Airlines Co.
Associate General Counsel
919 18th St., N.W.
Suite 600
(202) 263-6284 (phone)
(202) 263-6291 (fax)
bob.kneisley@wnco.com
Dated: June 22, 2015
Attorneys for Petitioner Southwest Airlines

Co.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 2 of 80
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1(a) and 26.1 of the
Circuit Rules of the United States Court of Appeals for the District of Columbia
Circuit, petitioner Southwest Airlines Co. (Southwest) hereby discloses the
following: Southwest is a publicly-traded commercial airline operator, and certifies
that it has no parent company, and that no publicly held corporation owns 10% or
more of its stock.
PETITIONERS CERTIFICATE AS TO
PARTIES, RULINGS AND RELATED CASES
Pursuant to Circuit Rule 28(a)(1), petitioner Southwest Airlines Co.
(Southwest) submits this Certificate as to Parties, Rulings and Related Cases.
A.
Parties.
The following is a list of all parties in this case:

1.
Petitioner is Southwest Airlines Co.
2.
Respondent is the United States Department of Transportation
3.
Intervenor is Delta Air Lines, Inc.
(DOT).
B.
Ruling Under Review.
The Petition for Review challenges the final order of the DOT in the form of
a letter dated December 17, 2014 from Kathryn B. Thomson, Esq., DOT General
-i-
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 3 of 80
Counsel, to Warren M.S. Ernst, Esq., City Attorney for the City of Dallas, Texas
(City), relating to the request of Delta for long-term accommodation of its five
daily departures at Dallas Love Field Airport (Love Field) (the DOT Letter).1
The DOT Letter stated the DOTs final and binding position that, [w]ith respect
to the length of the accommodation of an air carrier requesting airport space from
a signatory carrier at Love Field, the accommodated carrier is entitled to an
ongoing similar pattern of service as long as the carrier continues to operate the
accommodated flights.2
The DOT Letter further stated that the accommodated carrier should not be
pushed out by incumbent carriers at a later date, and that it is the Citys
responsibility to continue the accommodation and ensure that space is available so
that the requesting carrier is able to maintain its pattern of service on an ongoing
basis, based on the available space on the snapshot date of the original
accommodation request, even after the expiration or termination of any agreement
between the accommodated carrier and signatory carriers.3
The DOT Letter creates harm to Southwest that is both clear and imminent.
Because Southwest leases 90% of the departure gates at Love Field, a decision by
1
Letter from Kathryn B. Thomson, Esq., DOT General Counsel (December 17,
2014), Rec. 87, JA __-__.
2
Id. at 2, JA__.
Id.
-iiDOT & FAA Motion to Dismiss App. 44
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 4 of 80
the City forcing an accommodation of Delta (or any other non-tenant airline) at the
airport will almost certainly be imposed on Southwest. Further, under the terms of
the DOT Letter, a forced accommodation on Southwests leased space would not
be temporary, as is customary in the industry, but permanent. This would not only
violate Southwests Lease rights by preventing it from fully utilizing its leased gate
space, but would also eradicate the long-established DOT and FAA practice of
recognizing preferential lease rights at airports and allowing signatory tenant
airlines to expand upon and fully utilize their leased space.
C.
Related Cases.
This case has not previously been before this Court. On June 17, 2015, the
City of Dallas filed a complaint in the United States District Court for the Northern
District of Texas, Dallas Division, seeking declaratory judgment pursuant to 28
U.S.C. 2201 against Delta, Southwest, Virgin America, Inc., United Airlines,
Inc., Seaport Airlines, Inc., DOT and FAA relating in part to the DOT Letter. City
of Dallas v. Delta Air Lines, Inc., et al., Case No. 3:15-cv-02069-K. The City
contends, inter alia, that by directing the City to accommodate Delta on an
indefinite and ongoing basis, DOT has violated WARA [the Wright Amendment
Reform Act of 2006, Pub. L. 109-352, 120 Stat. 2011 (October 13, 2006)] by
effectively forcing the City to abrogate preferential gate leases protected by the
-iiiDOT & FAA Motion to Dismiss App. 45
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 5 of 80
Five Party Agreement4, and that the DOT Letter is therefore unlawful, arbitrary
and capricious, and in violation of WARA and the [Administrative Procedure Act],
and the Court should issue judgment so declaring.5 At this time, to the knowledge
of undersigned counsel there are no other related cases within the meaning of
Circuit Rule 28(a)(1)(C).
Contract Among the City of Dallas, the City of Fort Worth, Southwest Airlines
Co., American Airlines, Inc. and DFW International Airport Board Incorporating
the Substance of the Terms of the June 15, 22006 Joint Statement Between the
Parties to Resolve the Wright Amendment Issues (July 11, 2006), Rec. 15, JA
__-__.
5
Complaint 110. The Complaint raises additional arguments against the DOT
Letter and other conduct by DOT relating to airline accommodation at Love Field.
-ivDOT & FAA Motion to Dismiss App. 46
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 6 of 80
TABLE OF CONTENTS
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT ............................................. i
PETITIONERS CERTIFICATE AS TO PARTIES, RULINGS AND RELATED
CASES ............................................................................................................. i
A.
Parties. ................................................................................................... i
B.
Ruling Under Review. ........................................................................... i
C.
Related Cases. ..................................................................................... iii
TABLE OF AUTHORITIES .................................................................................. vii

GLOSSARY............................................................................................................ xii
STATEMENT OF JURISDICTION..........................................................................1
STATEMENT OF ISSUES .......................................................................................5
STATEMENT REGARDING ADDENDUM ...........................................................6
STATEMENT OF THE CASE ..................................................................................6
SUMMARY OF ARGUMENT ...............................................................................29
STANDING OF SOUTHWEST AIRLINES ..........................................................33
A.
Southwest has Constitutional Standing to Challenge the DOT Letter.

.............................................................................................................33
B.
Southwest Has Prudential Standing to Challenge the DOT Letter. ....38
ARGUMENT ...........................................................................................................41
I.
THE DOT LETTER CONSTITUTES A LEGISLATIVE RULE FOR

WHICH PRIOR NOTICE AND THE OPPORTUNITY FOR COMMENT
WERE REQUIRED. ......................................................................................41
II.
THE LETTER EXCEEDS THE DOTS STATUTORY AUTHORITY AND

VIOLATES THE WRIGHT AMENDMENT REFORM ACT. ...................46
A.
Neither the Competition Plan Statute Nor Any Other Statute

Authorizes DOT to Mandate that an Airport Treat Forced
Accommodation as Permanent as Long as the Pattern of Service
Continues. ............................................................................................46
B.
The DOT Letter Violates the Wright Amendment Reform Act. ........48
-vDOT & FAA Motion to Dismiss App. 47
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 7 of 80
III.
THE DOT LETTER IS ARBITRARY AND CAPRICIOUS BECAUSE IT

IS NOT THE PRODUCT OF REASONED DECISION-MAKING AND
IGNORES UNDISPUTED EVIDENCE THAT PERMANENT FORCED
ACCOMMODATION AT LOVE FIELD IS UNLAWFUL, HARMFUL
AND UNNECESSARY. ...............................................................................54
A.
The DOT Letter is Not the Product of Reasoned Decision-Making. .............54

B.
The DOT Letter Fails to Consider Undisputed Evidence that Forcing

Southwest to Accommodate Delta On a Permanent Basis Is Unlawful,
Harmful and Unnecessary. ..................................................................56
1.
The DOT Letter Fails to Acknowledge the Evidence that

Requiring Southwest to Accommodate Delta on a Permanent
Basis is Contrary to Both the Lease and DOTs Prior Guidance.
...................................................................................................56
2.
The DOT Letter Ignores the Severe Harm Southwest Would

Suffer if It is Required to Accommodate Another Airline at
Love Field on a Permanent Basis..............................................59
3.
DOT Failed to Consider the Undisputed Evidence that Forced

Accommodation at Love Field is Unnecessary to Accomplish
Any Legitimate Objective Given that Love Field is Part of the
Larger Dallas Market that Includes DFW Airport. ...................61
CONCLUSION ........................................................................................................63
-viDOT & FAA Motion to Dismiss App. 48
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 8 of 80
TABLE OF AUTHORITIES6
Page(s)
CASES
Alaska Profl Hunters Assn, Inc., v. FAA,
177 F.3d 1030 (1999).......................................................................................... 45
Am. Airlines, Inc. v. DOT,
202 F.3d 788 (5th Cir. 2000) ................................................................................ 8
Am. Library Assn v. FCC,
406 F.3d 689 (D.C. Cir. 2005) ............................................................................ 48
*Assn of Flight Attendants-CWA, AFL-CIO v. Huerta,
785 F.3d 710, No. 13-1316, 2015 WL 2145776 (May 8, 2015) ..................43, 44
Atl. City Elec. Co. v. FERC,
295 F.3d 1 (D.C. Cir. 2002) ................................................................................ 47
Barnhart v. Walton,
535 U.S. 212 (2002) ............................................................................................ 53
Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204 (1988) ............................................................................................ 47
Butte Cnty., Cal. v. Hogen,
613 F.3d 190 (D.C Cir. 2010) ............................................................................. 56
Califano v. Sanders,
430 U.S. 99 (1977) .............................................................................................. 40
Chevron USA, Inc. v. Natural Resources Defense Council Inc.,
467 U.S. 837 (1984) ................................................................................51, 52, 53
Christensen v. Harris Cnty.,
529 U.S. 576 (2000) ......................................................................................51, 53
Chrysler Corp. v. Brown,
441 U.S. 281 (1979) ............................................................................................ 42
6
Authorities upon which we chiefly rely are marked with asterisks.

-vii-
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 9 of 80
Citizens to Pres. Overton Parke v. Volpe,

401 U.S. 402 (1971) ............................................................................................ 40
City of Dallas v. Delta Air Lines, Inc., et al.,
Case No. 3:15-cv-02069-K ................................................................................. 37
City of Dallas v. Sw. Airlines Co.,
371 F. Supp. 1015 (N.D. Tex. 1973), affd 494 F.2d 773 (5th Cir. 1974) ........... 7
*City of Dania Beach. v. FAA,
485 F.3d 1181 (D.C. Cir. 2007) ..............................................................1, 2, 4, 38
Conference Group, LLC v. FCC,
720 F.3d 957 (D.C. Cir. 2013) ............................................................................ 33
Continental Air Lines, Inc. v. DOT,
843 F.2d 1444 (D.C. Cir. 1988) ............................................................................ 9
CSI Aviation Servs., Inc. v. DOT,
637 F.3d 408 (D.C. Cir. 2011) .............................................................................. 2
Fox v. Clinton,
684 F.3d 67 (D.C. Cir. 2012) .............................................................................. 40
Good Samaritan Hosp. v. Shalala,
508 U.S. 402 (1993) ............................................................................................ 52
INS v. Cardoza-Fonseca,
480 U.S. 421 (1987) ............................................................................................ 51
Intl Bd. of Teamsters v. TSA,
429 F.3d 1130 (D.C. Cir. 2005) .......................................................................... 39
Love Terminal Partners v. United States,
97 Fed. Cl. 355 (2011) ..................................................................................6, 7, 9
*Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ................................................................................33, 34, 38
Mendoza v. Perez,
754 F.3d 1002 (D.C. Cir. 2014) .................................................................... 42, 43
-viiiDOT & FAA Motion to Dismiss App. 50
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 10 of 80
Michigan v. EPA,
268 F.3d 1075 (D.C. Cir. 2001) .......................................................................... 47
Motor Vehicle Mfrs. Assn v. St. Farm Mut. Auto Ins. Co.,
463 U.S. 29 (1983) ........................................................................................41, 56
*Natl Mining Assn v. McCarthy,
758 F.3d 243 (D.C. Cir. 2014) ................................................................42, 43, 44
NRDC v. EPA,
643 F.3d 311 (D.C. Cir. 2011) ........................................................................4, 45
Paralyzed Veterans of Am. v. D.C. Arena, L.P.,
117 F.3d 579 (1997)............................................................................................ 44
Pauley v. Bethenergy Mines, LLC,
501 U.S. 680 (1991) ............................................................................................ 51
*Perez v. Mortg. Bankers Assn,
__ U.S. __, 135 S. Ct. 1199 (2015)...................................................41, 42, 44, 45
*Safe Extensions, Inc. v. FAA,
509 F.3d 593 (D.C. Cir. 2007) ..........................................................1, 2, 4, 38, 39
*SecurityPoint Holdings, Inc. v. TSA,
769 F.3d 1184 (D.C. Cir. 2014) ............................................................2, 4, 54, 56
Shalala v. Guernsey Meml Hosp.,
514 U.S. 87 (1995) .............................................................................................. 42
Sherley v. Sebelius,
610 F.3d 69 (D.C. Cir. 2010) .............................................................................. 38
Skidmore v. Swift & Co.,
323 U.S. 134 (1944) ............................................................................................ 53
St Johns United Church of Christ v. FAA,
520 F.3d 460 (D.C. Cir. 2008) ............................................................................ 33
Sw. Airlines Co. v. Tex. Intl Airlines, Inc.,
396 F. Supp. 678 (N.D. Tex. 1975), affd, 546 F.2d 84 (5th Cir. 1977) .............. 8
-ixDOT & FAA Motion to Dismiss App. 51
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 11 of 80
Syncor Intl Corp. v. Shalala,

127 F.3d 90 (D.C. Cir. 1997) .............................................................................. 45
Tourus Record, Inc. v. DEA,
259 F.3d 731 (D.C. Cir. 2001) ................................................................56, 58, 62
Tripoli Rocketry Assn v. BATF,
437 F.3d 75 (D.C. Cir. 2007) .............................................................................. 40
United States v. Mead Corp.,
533 U.S. 218 (2001) ............................................................................................ 53
Village of Barrington v. Surface Transp. Bd.,
636 F.3d 650 (D.C. Cir. 2011) ............................................................................ 52
*W. Deptford Energy, LLC v. FERC,
766 F.3d 10 (D.C. Cir. 2014) .............................................................................. 52
STATUTES
5 U.S.C. 551(6) ....................................................................................................... 1
5 U.S.C. 553 .......................................................................................................... 41
5 U.S.C. 553(b) .....................................................................................5, 29, 31, 41
5 U.S.C. 553(b)(A)................................................................................................ 42
5 U.S.C. 706(2)(A)..........................................................................................40, 54
5 U.S.C. 706(2)(C) ....................................................................................40, 46, 54
49 U.S.C. 40117(k) .......................................................................18, 27, 47, 48, 54
49 U.S.C. 41713 .................................................................................................... 17
49 U.S.C. 46110 ........................................................................................1, 2, 4, 39
49 U.S.C. 46110(a) ...........................................................................................1, 39
49 U.S.C. 47107(a) .............................................................................14, 15, 16, 17
49 U.S.C. 47107(k) ...............................................................................4, 26, 27, 47
-xDOT & FAA Motion to Dismiss App. 52
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 12 of 80
Pub. L. 106-181, 114 Stat. 61 (April 2000) ............................................................. 17

Pub. L. No. 96-192, 29, 94 Stat. 35, 48-49 (1980) ................................................. 9
Wright Amendment Reform Act of 2006, Pub. L. 109-352, 120 Stat. 2011
(October 13, 2006) (WARA) ...................................................................passim
WARA 5(a) .....................................................................................................11, 48
WARA 5(e) .....................................................................................................32, 48
WARA 5(e)(2)(B)(ii) ..........................................................................12, 13, 49, 50
ARTICLES
Time for Congress to Spread Love in the Air: Why the Wright Amendment
was Wrong Before, and why it Deserves Repeal Today, 70 J. Air L. &
Com. 353, 357 (Spring 2005) ............................................................................... 9
-xiDOT & FAA Motion to Dismiss App. 53
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 13 of 80
GLOSSARY
TERM
DEFINITION
Airport Guide
Airport Business Practices and their Impact on Airline

Competition, FAA/OST Task Force Study (October
1999) (Airport Guide), Rec. 2, JA __-__.
Accommodation
The process whereby a signatory airline is required by

an airport operator to provide a portion of its leased gate
space which is not then being used to a non-tenant
airline.
AIR-21
The Wendell H. Ford Aviation Investment and Reform

Act for the 21st Century.7
City
The City of Dallas, Texas, which owns and operates

Love Field.
Competition plans
Plans developed by airport operators and approved by

FAA pursuant to the Competition Plan statute, 49
U.S.C. 40117(k)
Competition Plan statute 49 U.S.C. 40117(k) (part of Air-21), Addendum, AD007 AD-019.
DAL
Dallas Love Field Airport
DFW Airport
Dallas-Fort Worth International Airport
DOT
DOT Letter
Letter from DOT General Counsel Kathryn B. Thomson

to Warren M.S. Ernst, City Attorney for City of Dallas
(December 17, 2014), Rec. 87, JA __-__.
FAA
U.S. Federal Aviation Administration
Pub. L. 106-181, 114 Stat. 61 (April 2000).

-xiiDOT & FAA Motion to Dismiss App. 54
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 14 of 80
Five-Party Agreement
Contract Among the City of Dallas, the City of Fort

Worth, Southwest Airlines Co., American Airlines, Inc.
and DFW International Airport Board Incorporating the
Substance of the Terms of the June 15, 22006 Joint
Statement Between the Parties to Resolve the Wright
Amendment Issues (July 11, 2006), Rec. 15, JA __-__.
Grant assurances
Obligations relating to the operation of the airport

entered into by airport owners or sponsors in return for
receiving federal airport development funds. FAA Order
5100.38D (Sept. 30, 2014), Rec. 44, 2-5, JA __; see
also FAA Airport Compliance Manual, Rec. 20, at 41, JA __. A copy of the grant assurances is set forth in
Rec. 36, JA __-__.
Love Field Lease
Amended and Restated Lease of Terminal Building

Premises (Airport Use and Lease Agreement) by and
between City of Dallas and Southwest Airlines Co. for
the lease of facilities at Dallas Love Field, effective
October 1, 2008 (February 9, 2009), Rec. 17, JA __-__.
Love Field
Dallas Love Field Airport (also known as DAL).
PFC
Passenger facility charge a fee that airports impose on

passengers using the airport.
Non-tenant airline
An airline that has not entered into a lease with an

airport operator for use of gate space or other airport
facilities.
Preferential lease
A lease for use of airport gate space or other facilities

whereby the signatory airline has priority to use such
space over non-signatory airlines, including non-tenant
airlines requesting accommodation.
Signatory airline
An airline that has entered into a lease with an airport

operator for use of gate space or other airport facilities.
(Also referred to as a tenant airline.)
-xiiiDOT & FAA Motion to Dismiss App. 55
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 15 of 80
WARA
The Wright Amendment Reform Act of 2006, Pub. L.

109-352, 120 Stat. 2011 (October 13, 2006).
Wright Amendment
Pub. L. No. 96-192, 29, 94 Stat. 35, 48-49 (1980).
-xivDOT & FAA Motion to Dismiss App. 56
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 16 of 80
STATEMENT OF JURISDICTION
Pursuant to 49 U.S.C. 46110(a), a person disclosing a substantial interest
in an order issued by the Secretary of Transportation . . . in whole or in part under
this part [A], [or] part B . . . may apply for review of the order by filing a petition
for review in the United States Court of Appeals for the District of Columbia
Circuit within 60 days of the order.8 On December 17, 2014, the Department of
Transportation (DOT) issued a letter (the DOT Letter), which constitutes a
final order.9
Petitioner Southwest Airlines Co. (Southwest) timely filed a
Petition for Review of that order 58 days later, on February 13, 2015.
The Administrative Procedure Act (APA) provides that an order is the
whole or a part of a final disposition . . . of an agency in a matter other than rule
making.10 To be deemed final and thus reviewable as an order under 49 U.S.C.
46110, an agency disposition must mark the consummation of the agencys
decisionmaking process, and it must determine rights or obligations or give rise
to legal consequences. Safe Extensions, Inc. v. FAA, 509 F.3d 593, 598 (D.C. Cir.
2007) (quoting City of Dania Beach. v. FAA, 485 F.3d 1181, 1187 (D.C. Cir.
Addendum, AD-022.
Rec. 87, JA __-__.
10
5 U.S.C. 551(6), Addendum, AD-002.

-1-
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 17 of 80
2007)); see also SecurityPoint Holdings, Inc. v. TSA, 769 F.3d 1184, 1187 (D.C.
Cir. 2014).
In addition, the term order in [section 46110] should be read
expansively. Safe Extensions, supra, at 598 (quoting City of Dania Beach, 485
F.3d at 1187)). [A]n agency may not avoid judicial review merely by choosing
the form of a letter for its decision. CSI Aviation Servs., Inc. v. DOT, 637 F.3d
408, 412 (D.C. Cir. 2011).
The DOT Letter is a final order. The City of Dallas (City) requested
direction from DOT with respect to a request from Delta Air Lines, Inc. (Delta)
for a long-term accommodation on gate space at Dallas Love Field Airport
(Love Field). In response, DOTs Letter stated that any forced accommodation
of Delta must be, in effect, permanent. DOT stated:
11
1.
[O]nce accommodated, the accommodated carrier is entitled to an

ongoing similar pattern of service as long as the carrier continues to
operate the accommodated flights;
2.
[T]he accommodated carrier should not be pushed out by incumbent

carriers at a later date; and
3.
It is the Citys responsibility to continue the accommodation and

ensure that space is available so that the requesting carrier is able to
maintain its pattern of service on an ongoing basis, based on the
available space on the snapshot date of the original accommodation
request, even after the expiration or termination of any agreement
between the accommodated carrier and signatory carriers.11
Rec. 87, at 2, JA __.

-2DOT & FAA Motion to Dismiss App. 58
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 18 of 80
The Letter unmistakably marked the consummation of DOTs decision-making

process with regard to duration of a forced accommodation at Love Field.
Given that Southwest leases 18 of the 20 gates at Love Field, it may be
presumed that a forced accommodation of Delta would be imposed on Southwest.
However, as of August 9, 2015, Southwest will be operating an expanded schedule
of flights that fully occupy all of its 18 gates, as it lawfully may do under its Love
Field Lease.12
A forced accommodation of Delta will therefore require Southwest to forego
operating the same number of its own flights that are to be operated by Delta on
Southwests space. This is especially harmful to Southwest because it cannot
operate at any other airport in the Dallas area, including the main airport serving
Dallas-Fort Worth, the Dallas-Fort Worth International Airport (DFW Airport),
for reasons set forth below. As a result of the DOT Letter, if the City orders
Southwest to accommodate Delta flights at Love Field, the City will require that
the forced accommodation remain in place for as long as Delta continues to operate
the accommodated flights. The DOT Letter will deprive Southwest, which leases
less than 10% of the 185 airport gates serving the Dallas-Fort Worth metropolitan
area, of its contracted-for right to fully utilize its leased gates at Love Field.
12
Amended and Restated Lease of Terminal Building Premises effective October

1, 2008, Rec. 17, JA __-__.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 19 of 80
The City has publicly stated that it considers the DOT Letter to contain
final and binding directives which the City will follow until DOT or a court has
altered DOT guidance in the DOT Letter. See Standing of Southwest Airlines,
infra. The DOT Letter gives rise to serious legal consequences namely, the
abrogation of Southwests leasehold rights to expand upon and fully utilize its
leased airport space. See SecurityPoint Holdings, supra, 769 F.3d at 1187 (TSA
Chief Counsels letter was a final order because it affected petitioners ability to
contract with airports); Safe Extensions, supra, 509 F.3d at 598 (FAA advisory
circular was a final order because it barred petitioner from selling . . . products to
airports); Dania Beach, supra, 485 F.3d at 1187-88 (FAA letter was a final order
because it authorizes the use of . . . secondary runways to alleviate traffic
congestion); NRDC v. EPA, 643 F.3d 311, 320 (D.C. Cir. 2011) (because the
Guidance is final, and because the issue raised by [petitioner] is purely legal, the
question before [the Court] is fit for judicial review).13
13
In its Complaint filed on June 17, 2015 in the City of Dallas Litigation, the City
argues that section 46110 does not apply to the DOT Letter because DOT acted
pursuant to WARA and not pursuant to the parts of title 49 set out in 49 U.S.C.
46110. Complaint 12. Southwest agrees that the DOT Letter violates WARA.
However, the DOT Letter does refer to part B of Title 49 (49 U.S.C. 47107(k))
and for the reasons set forth herein, Southwest maintains that DOT actually
intended to cite to part A of Title 49 (49 U.S.C. 40117(k)). Jurisdiction exists in
this Court as long as DOT maintains that its Letter was issued under parts A or B
of Title 49.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 20 of 80
STATEMENT OF ISSUES
1.
Whether the DOT Letters unprecedented and disruptive requirement
that a forced accommodation of a non-tenant airline must be based on a backwardlooking snapshot date, and remain in place as long as the carrier continues to
operate the accommodated flights with no consideration for the preferential
lease rights of the signatory tenant airline is a legislative rule, for which prior
notice and an opportunity to comment were required under the Administrative
Procedure Act, 5 U.S.C. 553(b), but which DOT failed to provide.
2.
Whether the DOT Letter (a) exceeds DOTs statutory authority
because no federal law authorizes DOT to require an airport operator to ignore the
preferential lease rights of a signatory airline by treating a forced accommodation
as permanent; and (b) violates the Wright Amendment Reform Act (WARA)
because it nullifies such preferential lease rights.
3.
Whether the DOT Letter is arbitrary and capricious because it is not
the product of reasoned decision-making, ignores undisputed evidence that

permanent forced accommodation would repudiate the preferential lease rights of
Love Field airlines in spite of prior DOT guidance, disregards the harm to
Southwest Airlines which will ensue, and is unnecessary to ensure competition in
the greater Dallas area air services market.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 21 of 80
STATEMENT REGARDING ADDENDUM

Pursuant to Circuit Rule 28(a)(5), an Addendum containing pertinent statutes
and regulations is submitted herewith in a separately bound volume. Citations
herein are marked AD. Also included in the Addendum is the Declaration of
Bob Montgomery (Montgomery Decl.), and referenced exhibits, in support of
Southwests standing to challenge the DOT Letter.
STATEMENT OF THE CASE
History of Southwest and Love Field Airport
Love Field is one of two primary commercial passenger airports that serve
the Dallas-Fort Worth metropolitan area, the other (and much larger) being DFW
Airport. In 1927, the City acquired Love Field as its municipal airport.14 In the
1960s, Dallas and Fort Worth agreed to construct DFW Airport, to be located
halfway between the two cities. In 1970, the eight carriers serving the greater
Dallas market promised to transfer their operations to DFW Airport.15
In the 40 years following the decision to build DFW Airport, the story of
Love Field and DFW has been marked by extensive legislation, litigation,
administrative proceedings, and, ultimately, compromise. During this time,
Southwest has provided consumers in the Dallas-Fort Worth area with hundreds of
14
Love Terminal Partners v. United States, 97 Fed. Cl. 355, 362 (2011).
15
Id.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 22 of 80
millions, if not billons, of dollars in savings from low-fare air services to and from
Love Field. Through Southwests successful efforts to keep Love Field open, and
thereby provide competition in air fares with the airlines operating at nearby DFW,
Southwest has consistently protected the interests of Dallas-Fort Worth area
consumers for low-cost travel options.
Southwest Airlines started its operations at Love Field in 1971, as a small
intra-Texas commuter airline.16 Unlike the other airlines at Love Field, Southwest
was not required to and did not agree to transfer its operations to DFW Airport.17
Southwests effort to utilize Love Field as its base of operations spawned years of
litigation in which the cities of Dallas and Fort Worth argued that Southwests
presence at Love Field would financially threaten the viability of DFW Airport.18
One year before DFW Airport opened, Dallas, Fort Worth and the DallasFort Worth Regional Airport Board sued Southwest seeking a court order barring it
from Love Field. In 1973, a federal district court ruled that Dallas and Fort Worth
could not lawfully exclude Southwest from Love Field so long as Love Field
remains open as an airport.19
16
Rec. 3, at 2, JA __.
17
Id.; see also Love Terminal Partners, supra, at 362.
18
Id. at 362-63.
19
City of Dallas v. Sw. Airlines Co., 371 F. Supp. 1015, 1035 (N.D. Tex. 1973),
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 23 of 80
Unfortunately, the governmental efforts to bar Southwest from Love Field,

supported by Southwests airline competitors, continued. In 1975, the City of
Dallas imposed a criminal fine for operating at Love Field. Southwest sued and
successfully enjoined the City from enforcing the ordinance, which flew squarely
in the face of the Northern Districts prior order.20 In affirming, the Fifth Circuit
stated:
This is the eighth time in three years that a federal court has refused to
support the eviction of Southwest Airlines from Love Field. Precisely
worded holdings and deference to state authorities by the federal
judiciary have only generated more suits, appeals, and petitions for
rehearing. Once again, we repeat, Southwest . . . has a federally
declared right to the continued use of and access to Love Field, so
long as Love Field remains open.21
The Wright Amendment and Its Repeal

Southwests efforts to operate at Love Field continued to face yet more
challenges. In 1978, Congress enacted the Airline Deregulation Act, aimed at
removing government control and fostering competition in the airline industry.
This change in the law enabled Southwest to start flying between Love Field and
affd 494 F.2d 773 (5th Cir. 1974); see also Am. Airlines, Inc. v. DOT, 202 F.3d
788, 793 (5th Cir. 2000).
Id. (citing Sw. Airlines Co. v. Tex. Intl Airlines, Inc., 396 F. Supp. 678, 680 (N.D.
Tex. 1975), affd, 546 F.2d 84 (5th Cir. 1977)).
20
21
546 F.2d at 102-03.

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 24 of 80
New Orleans.22 In response to the increasing competition from Southwest, Texas

Congressman and then Majority Leader Jim Wright of Fort Worth quietly attached
the amendment named after him to the end of the International Air Transportation
Competition Act of 1979.23
Under the Wright Amendment, Southwests nonstop flights to and from
Love Field were limited to a five state service area (later expanded to nine states).24
As a result, Southwests service was artificially suppressed far below the capacity
of its leased gates at Love Field. As this Court stated in 1988: In the bowels of
that internationally oriented measure is a provision of a distinctly parochial,
domestic nature, designed to except Love Field from the liberalized entry
provisions of the Airline Deregulation Act to ensure the viability of new
Dallas/Ft. Worth Regional Airport. 25
22
See Time for Congress to Spread Love in the Air: Why the Wright Amendment
was Wrong Before, and why it Deserves Repeal Today, 70 J. Air L. & Com. 353,
357 (Spring 2005).
23
Id. at 357.
24
Pub. L. No. 96-192, 29, 94 Stat. 35, 48-49 (1980); Love Terminal Partners, at
364.
25
Continental Air Lines, Inc. v. DOT, 843 F.2d 1444, 1446 (D.C. Cir. 1988)
(citation and internal quotation marks omitted); see also Love Terminal Partners,
at 364.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 25 of 80
By the mid-2000s, it had become apparent that the Wright Amendment

originally enacted in 1979 for the purpose of protecting a once-fledgling DFW
Airport, was an outdated, anti-competitive relic that unnaturally restricted
commercial air flights at Love Field. The restrictions of the Wright Amendment
severely inhibited Southwests true growth potential, especially in the Dallas
market, and Southwest fought vigorously for its repeal.
In 2006, Southwest reached agreement with the Cities of Dallas and Fort
Worth, DFW Airport, and American Airlines, to seek federal legislation to repeal
the Wright Amendment, and thereby enable Southwest to maximize its utilization
of Love Field. On July 11, 2006, the parties executed a Five-Party Agreement to
provide for repeal of the Wright Amendment eight years from the enactment of
[the] legislation.26
To reach the compromise embodied in the Five-Party Agreement, the parties
agreed to reduce the number of gates at Love Field from 32 to 20 and preclude
later expansion of the airport.27 The Five-Party Agreement states that, Southwest
shall have the preferential use of 16 gates under its existing lease to be used for
passenger operations, with two gates allocated to American Airlines and the
remaining two to be used by ExpressJet Airlines, Inc., a predecessor to United
26
Rec. 15, Art. I, 1, JA __-__.
27
Id. 3, JA __.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 26 of 80
Airlines (United).28
However, there was no requirement that Southwest be
limited to 16 gates.
For all practical purposes, Section 10 of the Five-Party Agreement restricts
Southwests service in the Dallas-Fort Worth market to Love Field. If Southwest
were to lease gates at DFW Airport, Section 10 requires that Southwest relinquish
an equivalent number of gates at Love Field.29 This restriction is imposed uniquely
on Southwest. All other airlines wishing to serve Dallas-Fort Worth are free to use
DFW Airport, where gates are readily available, without penalty.
Certain terms of the Five-Party Agreement were codified as the Wright
Amendment Reform Act of 2006, Pub. L. 109-352, 120 Stat. 2011 (October 13,
2006) (WARA), reflecting Congress acceptance of the Five-Party Agreement.
WARA makes clear that the City shall honor the scarce resource provision of the
existing Love Field leases.30 WARA further provides:
Notwithstanding any other provision of law, the Secretary of
Transportation and the Administrator of the Federal Aviation
Administration may not make findings or determinations, issue orders
or rules, withhold airport improvement grants or approvals thereof,
deny passenger facility applications, or take any other actions, either
28
Id. 3(b), JA __.
29
Id. 10, JA __.
30
WARA 5(a), AD-047.

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 27 of 80
self-initiated or on behalf of third parties . . . that are inconsistent with

the [Five-Party Agreement] . . . .31
Furthermore, although section 5(e)(1)(E) of WARA states that WARA does not
limit the authority of the Federal Aviation Administration [FAA] or any other
Federal agency to enforce requirements of law and grant assurances, the statute
also provides that this paragraph shall not be construed to require the city of
Dallas, Texas . . . to modify or eliminate preferential gate leases with air carriers in
order to allocate gate capacity to new entrants or to create common use gates,
unless such modification or elimination is implemented on a nationwide basis.32
In other words, WARA makes clear that federal law and the grant assurances
regarding the Citys operation at Love Field do not require the City to modify
existing carriers leases in order to accommodate a requesting airline.
The Love Field Lease
On February 13, 2009, the City and Southwest entered into a 20-year lease
for Southwests use of gates at Love Field (Lease).33 Pursuant to the Lease,
Southwest is granted the preferential use of its assigned Gate(s).34 Section 4.06
of the Lease states that Southwest, as the Signatory Airline, may be required in
31
WARA 5(d)(1)(A), AD-048.
32
WARA 5(e)(2)(B)(ii) (emphasis added), AD-050.
33
Love Field Lease, Rec. 17, JA __-__.
34
Id. 4.06.C, JA __.

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 28 of 80
certain special circumstances to accommodate a non-tenant airline seeking gate

space at Love Field but only if Southwest is not using the space:
At those times that [the Signatory] Airline has no scheduled use for
one or more of its assigned Gate(s), Airline will allow other scheduled
or nonscheduled airlines authorized by City to use Airport facilities to
use such Gate(s), as circumstances and the public interest may require,
for loading and unloading any, but in no event shall said use by others
take precedence of Airlines scheduled use.35
And, section 4.06.F of the Lease makes clear that such accommodation can only
occur at such times that will not unduly interfere with [Southwests] operating
schedule . . . .36 If a conflict existence between schedules of the Signatory
Airline and the Requesting Airline, the Signatory Airline will have priority in use
of its personnel and its Leased Premises. 37
Thus, under Lease sections 4.06.C and 4.06.F, Southwest has a completely
unrestricted right to fully utilize its leased gates, and any forced accommodation of
a non-tenant airline at Love Field must comply with the following conditions:
1.
The signatory airline must have no scheduled use for

the gate space;
2.
The signatory
precedence;
airlines
scheduled
use
shall
take
35
Id. (emphasis added).
36
Section 4.06.F, JA __ (emphasis added).
37
Id. 4.06.F.4.a (emphasis added).

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 29 of 80
3.
The accommodation must not unduly interfere with the

signatory airlines operating schedule; and
4.
In case of a conflict in schedules, the signatory airline will

have priority in use of its personnel and its Leased Premises.
Lease sections 4.06.C and F, JA __-__.

Both the Five-Party Agreement and WARA require the City to manage
requests for accommodation in accordance with the Citys Love Field leases.38
Federal Airport Grant Assurances
The background for including the accommodation provisions in the Lease
rests with a specific federal policy imposing certain conditions on financial grants
to airports operating in interstate commerce. Under this policy, [w]hen airport
owners or sponsors, planning agencies, or other organizations accept [Airport
Improvement Act] funds, they must agree to certain obligations, called grant
assurances.39 The grant assurances require the recipients to maintain and operate
their facilities safely and efficiently and in accordance with specified conditions . .
. .40 Grant assurance 22(a) states:
38
Rec. 15, Art. I, 3(b), JA __-__; Addendum, 5(a), AD-047.
39
FAA Order 5100.38D (Sept. 30, 2014), Rec. 44, 2-5, JA __; see also FAA
Airport Compliance Manual, Rec. 20, at 4-1, JA __; Rec. 36, JA __-__; 49 U.S.C.
47107(a), AD-024-AD-027.
40
Id.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 30 of 80
[The airport operator] will make the airport available as an airport for
public use on reasonable terms and without unjust discrimination to
all types, kinds and classes of aeronautical activities, including
commercial aeronautical activities offering services to the public at
the airport.41
Grant assurance 23 provides that the airport operator will permit no exclusive
right for use of the airport by any person providing, or intending to provide,
aeronautical services to the public.42
The grant assurances . . . require the airport operator to accommodate
reasonable requests for access by a new entrant carrier or by an incumbent carrier
that wants to expand its operations; but they do not require a signatory airline to
cancel flights or forfeit use of its airport facilities . . . .43 In other words, the grant
assurances are only statements of general principles. They do not guarantee that a
non-tenant airline will be accommodated at all, much less indefinitely. And, they
in no way prohibit a lease-holding airline from expanding upon, and fully utilizing,
its own leased space for its own operations.
41
Rec. 36, at 11, JA __.
42
Id. at 12, JA __.
43
FAA/DOT Airport Guide (October 1999), Rec. 2, at x, JA __ (emphasis added);

infra.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 31 of 80
The FAA/DOT Airport Business Practices Guide

In 1999, FAA and DOT issued the Airport Business Practices and their
Impact on Airline Competition (Airport Guide) in part with the purpose of
clarifying and explaining application of the grant assurances.44
Among other
things, the Airport Guide explained that accommodated airlines do not have
priority over the lease rights of signatory airlines.
Airport operators . . . may not . . . claim lack of gate availability when, in

fact, gates are not fully used.45
While some arrangement for accommodation of new entrants must be

made, an air carrier tenant is not required to cancel flights or to forfeit use
of its airport facilities.46
The reasonable access provision of the economic nondiscrimination

assurance requires an airport to make reasonable efforts to accommodate
new entrants by providing the necessary facilities or the opportunity for the
new entrant to obtain those facilities. This can be accomplished by having
common-use gates available on a per-turn or other basis, sharing
preferential-use gates at underused times, or arranging for use of exclusiveuse gates at unused periods. An airport operator is not required to divest a
tenant carrier of facilities in use; however, the airport operator can work
with the carrier to ensure more effective utilization of scarce facilities to
better accommodate requesting airlines.47
44
Rec. 2, JA __-__.
45
Id. at vi, JA __.
46
Id. at 13, JA __ (emphasis added).
47

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 32 of 80
The Airport Guide thus reflects FAA/DOT policy and practice that an air
carrier tenant is not required to cancel flights or to forfeit use of its airport
facilities in order to accommodate another airline.48 It also makes clear that an
airport operator shall not be required to divest a tenant carrier of facilities in
use.49
Significantly, the Airport Guide specifically addresses competition in air
transportation markets; and not within a single airport:
Actions that thwart an air carriers access or operations also can be
contrary to the pro-competitive implications inconsistent with the antidiscrimination assurance, and undermine the goals of the Airline
Deregulation Act [49 U.S.C. 41713, Addendum, at AD-020 AD021] to foster competition and encourage new entry into air
transportation markets.50
The Competition Plan Statute
In 2000 Congress passed the Wendell H. Ford Aviation Investment and
Reform Act for the 21st Century (AIR-21).51 Among other things, this statute
requires large and medium hub airports with a minimum threshold airline
concentration to submit a competition plan for FAA approval (codified at 49
48
Id. at 13, JA __.
49
Id. at 15, JA __.
50
Id. at 14, JA (emphasis added).
51
Pub. L. 106-181, 114 Stat. 61 (April 2000), AD-044 - AD-045; see also Rec. 3,
at 1, JA __.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 33 of 80
U.S.C. 40117(k) (the Competition Plan Statute). The Competition Plan Statute
provides:
(1)
Beginning in fiscal year 2001, no eligible agency may impose

a passenger facility charge under this section with respect to a
covered airport (as such term is defined in section 47106(f))
unless the agency has submitted to the Secretary a written
competition plan in accordance with such section. . . .
(2)
The Secretary shall review any plan submitted under

paragraph (1) to ensure that it meets the requirements of this
section, and shall review its implementation from time-to-time
to ensure that each covered airport successfully implements its
plan.
49 U.S.C. 40117(k)(1)-(2), Addendum, AD-017. Nothing in the Competition

Plan Statute addresses, directly or indirectly, the forced accommodation of nontenant airlines at an airport, and the statute contains nothing that authorizes a
forced accommodation on the terms specified in the DOT Letter.
Love Field Competition Plans
Pursuant to the Competition Plan statute, the City submitted competition
plans to FAA for Love Field in 2001, 2003 and 2009.52 In 2002, FAA notified the
City that its initial Love Field Competition plan satisfied the requirements of the
Competition Plan statute.53 FAA stated that it acknowledge[d] that the City
understands its legal obligations to provide reasonable air carrier access at Love
52
Rec. 7, JA __-__; Rec. 9, JA __-__; and Rec. 19, JA __-__.
53
Letter from C. Lang to K. Gwynn (Feb. 12, 2002), Rec. 8, at 1, JA __.

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 34 of 80
Field and is prepared to arrange for use of long-term exclusive-use gates at unused
periods by a requesting carrier.54
In June 2009, the City provided FAA with an updated Love Field
competition plan.55 Appendix 1 to the document stated verbatim the
Accommodation Provisions in section 4.06 of the Love Field Lease.56 FAA
approved the language of the 2009 Love Field competition plan in October 2009.57
Love Field and DFW Airport
The Dallas/Fort Worth metropolitan area is a single aviation market that is
served by two airports, Love Field and DFW Airport, which compete for the same
passengers.58 The two airports are only about 16 miles (approximately 20 minutes)
apart, and 95% of the population of the Dallas Metroplex is within 60 minutes of
both airports.59
54
55
Letter from D. Weber to B. DeLeon (June 3, 2009), Rec. 19, JA __-__.
56
JA __-__.
57
Letter from B. DeLeon to D. Weber (Oct. 15, 2009), Rec. 21, JA __-__.
58
Response of Southwest Airlines Co. (Nov. 17, 2014), Rec. 56, at 8, and at Charts
A-F, JA __, __-__.
59
Id. In fact, FAA recently announced that it considers both Love Field and DFW
Airport to be part of a single North Texas Metroplex for air traffic management
purposes. See FAA NextGen Works for Airports) (available on www.FAA.gov)
(cited in Rec. 81, at 6 n. 7, JA __).
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 35 of 80
In addition to Southwests 16 preferential use gates under the Love Field

Lease, Southwest has subleased two additional gates from United, for a total of 18
of the 20 Love Field gates.60 Since United already serves the Dallas area from
DFW Airport, it did not need to use Love Field to compete in Dallas and agreed to
sublease its gates to Southwest for many millions of dollars.
As the above sublease transaction illustrates, Love Field gates are extremely
valuable to Southwest, especially given the restrictions of the Five-Party
Agreement against Southwest operating at DFW Airport. Although Southwest
leases the great majority of gates at Love Field, it has only a small share of airport
gates in the overall Dallas-Fort Worth market. DFW Airport has 165 gates, and
Love Field has 20; thus the total number of airport gates in the Dallas-Fort Worth
market is 185. Southwests 18 gates at Love Field account for less than 10% of
that number.61 For all carriers other than Southwest, DFW Airport has ample and
immediately available gate space to accommodate both new airlines and expansion
by existing airlines.62
60
See Rec. 41, JA __-__. Uniteds lease with the City (executed by Uniteds
predecessor-in-interest, Continental Airlines) is similar to Southwests Love Field
Lease. See Rec. 26, JA __-__.
61
Rec. 81, Chart G, JA __.
62
Id. at 9, JA _.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 36 of 80
Deltas Request for Long-Term Accommodation at Love Field

As a result of its merger with US Airways, American Airlines was required
by the U.S. Justice Department to divest its two leased gates at Love Field to
Virgin America Airlines (Virgin) effective October 13, 2014. Delta had been
operating flights at Love Field under a temporary use agreement from American.
In September 2014 American notified Delta that Deltas agreement for Love Field
gate and ticket counter space would terminate October 12, 2014.63
Delta
responded by requesting that the City provide direction as to where Delta will be
accommodated.64
Following Deltas request, Southwest and the other Love Field carriers
voluntarily worked with Delta, and Southwest agreed to allow Delta to temporarily
use a Southwest gate that it was not fully using at the time to enable Delta to
operate five daily flights between Love Field and Atlanta. Southwests voluntary
accommodation was consistent with industry practice, whereby a signatory airline
will permit a non-tenant carrier to temporarily utilize leased space that the
signatory is not then fully using. This temporary arrangement remained in effect
until the agreed-upon termination date of January 6, 2015. Subsequently, United
63
Letter from Holden Shannon, Delta to Mark Duebner (Sept. 18, 2014), Rec. 42,
at 1, JA __.
64
Id.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 37 of 80
agreed to voluntarily accommodate Delta until July 6, 2015, and Southwest is

honoring that commitment as sub-lessee of Uniteds gates.65
Southwest Demonstrates that Forced Accommodation
at Love Field Cannot Be Permanent
Even while Delta was being voluntarily accommodated at Love Field by
Southwest, Delta continued to demand future accommodation on a long-term
basis, meaning, essentially, permanently.66 Pursuant to its rights under its Lease
and consistent with long-standing practice at airports throughout the country,
Southwest repeatedly and consistently objected to any forced accommodation
being more than a temporary arrangement and provided that space remained
available.
Indeed, on October 24, 2014, Southwest emailed DOTs General Counsel,
informing her that it could not accommodate Deltas request on a long-term basis
because Southwest will be adding flights at [Love Field] post-January 6, to an
average utilization of 9.6 flights per gate per day, which would not provide unused
capacity for accommodation even with the two United gates that [Southwest was]
65
However, Southwest will be fully utilizing the sub-leased United gates as of

August 9, 2015 and has notified Delta that it will not be able to extend the
voluntary arrangement beyond that date. See Standing of Southwest, infra.
66
See Letter from K. Quinn to W. Ernst (Dec. 6, 2014), Rec. 80, at 1-2, JA __-__.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 38 of 80
proposing to sublease.67 The email further explained that [t]he only way
[Southwest] could accommodate Delta under those circumstances would be to
voluntarily forego operating some of [Southwests] own flights on [its] own gates
something the Grant Assurances plainly do not require, and which would impose
an enormous financial penalty on Southwest.68
Several days later, on October 29, 2014, Southwest met with DOT and FAA
officials to explain further why Deltas request for permanent accommodation
should not supported by DOT or FAA. Then, in November and the first half of
December 2014, Southwest sent several letters to the City, copying DOT on all of
them, making clear Southwests position that any forced accommodation of Delta
could not be permanent or otherwise interfere with Southwests lease rights.
For example, in a letter dated November 17, 2014 on which DOT was
copied,69 Southwest made it clear that: Signatory Airlines existing operations on
their preferential-use gates have priority over any operations of accommodated
carriers, and Signatory Airlines also are permitted to expand their operations
without interference by accommodated carriers.70 Southwest further stated:
67
Email from B. Kneisley to K. Thomson, Rec. 52, at 1, JA __.
68
Id.
69
Rec. 55 and 56, JA __-__.
70
Rec. 56, at 2, JA __.

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 39 of 80
The federal Grant Assurances reinforce the principle that scarce

resource provisions [in a lease] may give new entrants access only to
airport facilities that are unused or under-used. The reasonable
access provision of the economic nondiscrimination assurance
requires an airport to make reasonable efforts to accommodate new
entrants by providing the necessary facilities or the opportunity for the
new entrant to obtain those facilities. This can be accomplished by . .
. sharing preferential-use gates at underused times, or arranging for
use of exclusive-use gates at unused periods.71
Southwest also stated that in evaluating a request for accommodation at
Love Field, it is also relevant whether the requesting carrier has access to the
Dallas-Ft. Worth market via DFW.72 Southwest explained:
This is important because, as shown earlier, the purpose of federal
policy on [scarce] resource accommodation is to enable the requesting
carrier to compete in the market in question. With respect to Love
Field, the relevant market is the Dallas-Ft. Worth region, which is
served by two airports that both compete for the same passengers. . . .
Today, all airlines (with the exception of Southwest . . .) that wish to
serve the Dallas-Ft. Worth region may do so via DFW Airport, and
ample unused capacity is available at that airport to accommodate new
and expanding airlines. This necessarily means that, if a requesting
carrier cannot be accommodated at Love Field because no unused or
under-used facilities are available, that carrier will not be precluded
from competing in the Dallas-Ft. Worth market.73
Southwest further stated that, in evaluating requests for accommodation at Love
Field, it is essential to understand that Love Field is not a market unto itself, but
71
Id. at 3, JA __ (quoting Airport Guide, at 15) (emphasis in original).
72
Id. at 5, JA __.
73
Id.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 40 of 80
rather is one of two airports the other being DFW Airport that both serve the
Dallas-Ft. Worth air travel market. Putting it another way, the Dallas Metroplex is
a single aviation market that is served by two airports that compete for the same
passengers.74 Southwest also attached a set of charts prepared by the CampbellHill Aviation Group that demonstrated the unified nature of the Dallas air services
market.75
On December 8, 2014, Southwest made a submission to the City, on which
DOT was copied, which stated clearly why Delta has no right to a long term
accommodation. Southwest emphasized that Delta has zero right under law or
policy to a long term accommodation or, for that matter, any accommodation
that is not secondary to the scheduling needs of the Signatory Airline that is
providing space to Delta.76 Southwest also stated:
74
Id. at 8, JA __.
75
Id. at 8-9, JA __-__, and Charts A-F thereto, JA __-__. On December 1, 2014,
Southwest sent Delta a letter, on which DOT was copied, which stated it is
Southwests intent to fully utilize all its gates at Dallas Love Field for its own
operations. Letter from B. Montgomery to H. Shannon (Dec. 1, 2014), Rec. 70, at
1, JA __.
76
Response of Southwest to City (Dec. 8, 2014), Rec. 81, at 2-3, JA __-__

(emphasis added).
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 41 of 80
Pursuant to the Love Field Lease, Signatory Airlines indisputably

have the right to expand service on their preferentially-leased gates at
any time, and any accommodated carriers must give way to allow that
expansion, subject to the Signatory Airline providing reasonable
notice to any accommodated airlines.77
See also Letter from Southwest dated December 15, 2014, Rec. 86, at 2, JA __.
(There is nothing in federal law, or the Citys Love Field Lease, that entitles a
non-Signatory Airline to a long-term accommodation (which in Deltas view
apparently means in perpetuity)); id. ([T]he accommodation of a requesting
airline is necessarily a temporary arrangement that is subject to periodic reexamination to ensure that the accommodated carrier continues not to interfere
with the Signatory Airlines changing schedule needs).
The DOT Letter
In connection with Deltas request for accommodation at Love Field, the
City sought input from DOT regarding the Citys obligations under federal law and
the grant assurances. DOT responded with the DOT Letter on December 17,
2014. In the DOT Letter, DOT indicated that it was providing guidance with
regard to the Citys obligations under the Competition Plan statute (49 U.S.C.
47107(k)) [sic] and to ensure the successful implementation of competition plans
77

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 42 of 80
under 49 U.S.C. 47107(k) [sic].78 The statute cited in the Letter, 49 U.S.C.
Section 47107(k) states, in relevant part:
(2) Revenue diversion. Policies and procedures to be established
pursuant to paragraph (1) of this subsection shall prohibit, at a
minimum, the diversion of airport revenues . . . .79
This statute relates to the federal prohibition against diversion of airport revenue,
which is irrelevant here. Presumably, the General Counsel intended to refer to 49
U.S.C. 40117(k), relating to Competition plans.
The DOT Letter instructed the City that any forced accommodation of Delta
must, in effect, be permanent:
With respect to the length of the accommodation, for the
accommodation to be meaningful at DAL, it is our position that, once
accommodated, the accommodated carrier is entitled to an ongoing
similar pattern of service as long as the carrier continues to operate
the accommodated flights. Importantly, the accommodated carrier
should not be pushed out by incumbent carriers at a later date.80
The DOT Letter insisted that it was the Citys responsibility to ensure that space
is available so that the requesting carrier is able to maintain its pattern of service
on an ongoing basis, based on the available space on the snapshot date of the
original accommodation request, even after the expiration or termination of any
78
Rec. 87, at 1, JA __.
79
Addendum, at AD-036.
80
Letter, at 2, JA __ (emphasis added).

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 43 of 80
agreement between the accommodated carrier and signatory carriers.81

DOT did not offer any statutory basis or other legal authority for the
unprecedented determination that any forced accommodation at Love Field must
be permanent or based on a backward-looking snapshot date that precludes the
signatory airline from expanding its own service after that date. DOTs lack of
legal basis for its determination was unsurprising given that the determination
contravenes federal law and longstanding DOT and FAA policies. DOT also did
not cite any precedent for its newly-stated position on forced accommodation, nor
did it reference a single airport that has mandated an accommodation of a nontenant carrier consistent with the directives in the DOT Letter.
DOT did not even acknowledge, much less attempt to refute, the
submissions from Southwest to the City, on which DOT was copied, which made it
clear that a permanent forced accommodation would violate Southwests
preferential leasehold rights at Love Field.
DOT also ignored Southwests
arguments Love Field is part of a larger greater Dallas-Fort Worth air services
market, which includes DFW Airport, and that Southwest is the only airline whose
service to Dallas is restricted to Love Field.
Moreover, DOT did not establish any public process for considering the
important issue of whether a forced accommodation should be of indefinite
81

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 44 of 80
duration, premised on a backward-looking snapshot date, and without

consideration of the lease rights of the signatory airline that is required to
accommodate the non-tenant carrier. DOT did not invite comments from parties
involved in the Love Field dispute, other airports or airlines that might be affected,
or any interested persons for that matter. Further, the DOT Letter makes no
mention of the fact that its pronouncements regarding forced accommodation were
unprecedented and contrary to decades of industry practice.
SUMMARY OF ARGUMENT
First, the DOT Letter is a legislative rule, for which prior notice and an
opportunity to comment were required under the Administrative Procedure Act, 5
U.S.C. 553(b), but which DOT failed to provide. Without any legal authority
and breaking with historical precedent, the new policy established by the DOT
Letter fundamentally alters the legal relationship between the airport and its
signatory airlines by, in effect, abrogating those airlines lease rights. Specifically,
the DOTs new policy requires permanent forced accommodation based on a
backward-looking snapshot date, for as long as the carrier continues to operate
the accommodated flights, and without regard to the preferential lease rights of
the accommodating signatory airline to use its own leased space for its own
operations.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 45 of 80
There is no question that the DOT Letter creates new legal rights and
obligations: (a) it creates new rights for non-tenant airlines to be forcibly
accommodated at Love Field on a permanent basis; (b) it imposes new obligations
on the City to treat a forced accommodation as permanent and to manage the
airport accordingly; and (c) it imposes a new obligation on the accommodating
tenant airline to allow the non-tenant carrier to operate on its leased space
indefinitely, and thus to forego the ability to expand its own operations on that
space.
Prior to the DOT Letter, it was never the policy of DOT or FAA, or the
practice of U.S. airports, to mandate accommodation of a non-tenant airline on a
signatory airlines leased space as long as the non-tenants pattern of service
continues, or to predicate an accommodation on a snapshot date that precludes
the signatory airline from expanding its own service after that date. DOT chose to
develop and issue its new mandatory rule without prior notice and the opportunity
for comment to airlines at Love Field and indeed throughout the United States
that will be impacted by the new DOT rule that abrogates airline lease rights.
Second, the DOT Letter exceeds DOTs statutory authority because no
federal statute authorizes the DOT to require an airport operator to treat a forced
accommodation as in effect permanent, or to base it on a backward-looking
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 46 of 80
snapshot date that ignores the right of the signatory airline to expand service on
its leased space going forward.
Not only does the DOT Letter lack any identifiable legal authority, it also
specifically violates federal law. As discussed above, the Wright Amendment
Reform Act requires the City to honor the scarce resource provision of the
existing Love Field leases and manage Love Field in accordance with the airlines
contractual rights and obligations. Despite this language, the DOT Letter requires
permanent forced accommodation at Love Field contrary to Lease provisions
such as Lease section 4.06.C, which limits accommodation of non-tenant airlines
to those times that the Signatory Airline has no scheduled use for one or more of
its assigned Gate(s).82 The Letter also violates the Lease provision that in no
event shall said use by others take precedence over the Signatory Airlines
scheduled use.83 The DOTs position on forced accommodation also contravenes
Lease language that incumbent airlines will accommodate a requesting airline only
at such times that will not unduly interfere with [the incumbent airlines]
operating schedule.84
82
Rec. 17, JA __.
83
Id.
84
Id. 4.06.F.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 47 of 80
In addition, the DOT Letter violates WARA 5(e) because it abrogates

preferential lease rights at Love Field without first lawfully adopting a policy of
modifying or eliminating such lease rights on a nationwide basis, which 5(e)
requires. Moreover, if the DOT were to pursue such a fundamental policy change
on a nationwide basis, prior notice and an opportunity for public comment in
accordance with the APA obviously would be required yet none was provided.
Third, the DOT Letter is arbitrary and capricious because it is not the
product of reasoned decision-making, and fails to acknowledge the preferential
lease rights of signatory airlines at Love Field as well as DOTs prior guidance
protecting preferential lease rights.
It also ignores undisputed evidence that
permanent forced accommodation would (a) be extremely harmful to Southwest

because it can only serve the Dallas market via Love Field, and (b) is completely
unnecessary given that all other airlines, including Delta, can fully serve the
Dallas-Fort Worth market via the unconstrained DFW Airport.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 48 of 80
STANDING OF SOUTHWEST AIRLINES

Southwest possesses both Article III and prudential standing to challenge the
DOT Letter.
A.
Southwest has Constitutional Standing to Challenge

the DOT Letter.
The requirement for constitutional standing under Article III contains three
elements: First, the plaintiff must have suffered an injury in fact an invasion of
a legally protected interest which is (a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992) (citations and internal quotation marks omitted); see also
Conference Group, LLC v. FCC, 720 F.3d 957, 962 (D.C. Cir. 2013). An alleged
injury is sufficiently imminent to confer standing if there is a substantial
probability that the challenged action will harm the petitioners concrete and
particularized interests. St. Johns United Church of Christ v. FAA, 520 F.3d 460,
462 (D.C. Cir. 2008).
Second, there must be a causal connection between the injury and the
conduct complained of the injury has to be fairly traceable to the challenged
action of the defendant, and not the result of the independent action of some third
party not before the court. Lujan, at 560 (citation and internal quotation marks
and punctuation omitted).
Third, it must be likely, as opposed to merely
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 49 of 80
speculative, that the injury will be redressed by a favorable decision. Lujan, at

560-61 (citation and internal quotation marks omitted).
When the asserted injury arises from the governments allegedly unlawful
regulation (or lack of regulation) of someone else . . . causation and redressability
ordinarily hinge on the response of the regulated (or regulable) third party to the
government action or inaction and perhaps on the response of others as well.
Lujan, supra, at 562 (emphasis in original).
All three elements for Article III standing are present here.
1.
The injury to Southwest from the DOT Letter is concrete and
particularized, and actual or imminent, not conjectural or hypothetical. As the

primary tenant at Love Field with preferential lease rights at 18 of the 20 passenger
gates at Love Field, Southwest faces significant and imminent harm to its concrete
and particularized leasehold interests if the DOT Letter is not vacated by this
Court.85 Because of the DOT Letter, a decision by the City requiring Southwest to
accommodate Delta would not be of a temporary duration, such that Southwest
could still expand upon and fully utilize its leased gate space at Love Field.
Rather, an accommodation order by the City consistent with the DOT Letter would
require Southwest to relinquish leased gate space to Delta on an indefinite basis, as
85
Declaration of Bob Montgomery (Montgomery Decl.) 4, Addendum, AD052 AD-053.

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 50 of 80
long as Deltas pattern of service continues.
This would violate Southwests
lease rights as well as long-established DOT/FAA practice (recognized in their

Airport Guide) that acknowledges the validity and applicability of preferential
lease rights and allows signatory airlines to expand on and fully utilize their leased
airport space.86
Because of section 10 of the Five-Party Agreement, Southwest does not
have an opportunity to expand air service in the Dallas area other than at Love
Field.87 This necessarily means that a requirement that Southwest accommodate
Delta or another non-tenant airline at Love Field will preclude Southwest from
operating its own flights on space it must make available to the accommodated
airline. Southwest has informed Delta and the City that as of August 9, 2015,
Southwest will operate 180 peak-day flights to 50 nonstop destinations on its 18
Love Field gates, resulting in an average of 10 flights-per-gate per day - which is
full utilization under any possible scenario or gate availability analysis.88 DOTs
directive regarding the duration of a forced accommodation will likely interfere
86
Id. 5, AD-053.
87
Id. 13, AD-056 AD-057; Rec. 15, 10, JA __.
88
Id. 14, AD-057-AD-058.

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 51 of 80
with Southwests utilization of its leased gate space on an indefinite basis.89

Additionally, the DOT Letter has already inflicted procedural harm on Southwest
because DOT issued its directives without prior notice and an opportunity for
public comment.
2.
The injury to Southwest from the DOT Letter is clear because the City
has stated repeatedly that it considers the directives in the DOT Letter that the
City require a forced accommodation at Love Field to be, in effect, permanent, and
based on a backward-looking snapshot date to be final and binding on the
City. The Citys Consent to the gate sublease between Southwest and United
states that:
The City is treating the [DOT] Letter as promulgating final and
binding directives to foreclose any allegation that the City is in
violation of its federal grant assurances and to avoid the risk of losing
federal grants or passenger facility charges.90
See also Proposed Dallas Love Field Accommodation Principles (April 16,
2015) (adopting DOT Letter directive almost verbatim);91 id. (until the U.S.
89
Any forced accommodation on or after August 9, 2015 would prevent Southwest

from being able to fully use its leased space, causing many millions of dollars in
damages and an incalculable loss of goodwill among previously booked
passengers. Id.
90
Consent to Sublease ( 6), executed by City, Southwest, and United on January

28, 2015 (emphasis added), Exhibit 1 to Montgomery Decl., Addendum, AD-064.
91
Exhibit 2 to Montgomery Decl., Addendum, AD-076.

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 52 of 80
Department of Transportation (DOT) or a court has altered DOT guidance in this

regard, the City will not change this approach to accommodation duration).92
Moreover, since the DOT Letter was issued, Delta has requested
accommodation of eight additional Love Field flights (for a total of 13), and
American Airlines has requested accommodation for four flights at Love Field.93
If forced accommodation is ordered under the terms of the DOTs Letter,
Southwest will lose nearly full use of two Love Field gates, equivalent to the loss
of tens of millions of dollars of investment in the airport.94
Although Southwest supports the positions taken by the City in City of
Dallas v. Delta Air Lines, Inc., et al., Case No. 3:15-cv-02069-K, the case was just
filed (on June 17, 2015) and the timing and outcome of that litigation is
uncertain.95 In addition, the City has expressly stated that until DOT or a court has
altered DOT guidance in the DOT Letter, the City will not change [the]
approach to accommodation duration set forth in the DOT Letter.96 Accordingly,
even with the filing of the new case, the DOT Letter subjects Southwest to
92
Id.
93
Montgomery Decl. 15-16, Addendum, AD-058 AD-059.
94
Montgomery Decl. 16, AD-058 AD-059.
95
Id. 20, AD-060 AD-061.
96
Exhibit 2 to Montgomery Decl, AD-077.

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 53 of 80
significant and imminent harm resulting from having to forcibly accommodate

Delta as long as it maintains its current pattern of service and based on a
backward-looking snapshot date.
3.
The injury to Southwest by the DOT Letter would be redressed by a
favorable decision from this Court. If the DOT Letter is vacated, the harm to
Southwest presented by the December 17 Letter would be removed because the
City would no longer be confronted with the directive in the DOT Letter to treat a
forced accommodation on Southwests leased space as permanent,97 See City of
Dania Beach v. FAA, supra, 485 F.3d at 1185; Sherley v. Sebelius, 610 F.3d 69, 74
(D.C. Cir. 2010).
The fact that the DOT Letter is addressed to the City rather than Southwest
does not negate Southwests standing. Because of the DOT Letter, the City may
soon be required to make choices relating to the forced accommodation of nontenant airline(s) at Love Field that will injure Southwest and that the granting of
Southwests petition would redress such injury. See Lujan, supra, 504 U.S. at 562.
B.
Southwest Has Prudential Standing to Challenge the DOT Letter.
To establish prudential standing, a partys grievance must arguably fall

within the zone of interests protected or regulated by the statutory provision . . .
invoked in the suit.
Safe Extensions, Inc. v. FAA, supra, 509 F.3d at 600
97
Id. 18, AD-059.

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 54 of 80
(citations and internal quotation marks omitted). The basic question is: who may
and who may not invoke the power of the courts to enforce the terms of a statute.
Id. (citation and internal quotation marks omitted). In this case, Congress has
already answered this question in section 46110(a) by specifying that the party
disclose a substantial interest in the order being challenged. Id.; see also Intl
Bd. of Teamsters v. TSA, 429 F.3d 1130, 1134 n. 3 (D.C. Cir. 2005) (equating
prudential standing under section 46110 with a partys substantial interest in the
order). To have prudential standing, a party must show only that its interest is
arguably one regulated or protected by the statutory provision at issue. Safe
Extensions, supra, at 600.
Southwest clearly has a substantial interest in the DOT Letter: if left in place
the Letter will likely result in a permanent, forced accommodation of Delta or
another non-tenant airline at Love Field on Southwests leased premises. By
effectively confiscating a portion of Southwests leased space in this manner, the
DOT Letter will thwart the purpose of the Wright Amendment Reform Act to
enable Southwest to fully utilize its Love Field gates.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 55 of 80
STANDARD OF REVIEW
An agency determination must be set aside if it is in excess of statutory
jurisdiction, authority, or limitations, or short of statutory right.98 In addition, an
agency decision must be set aside if it is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.99 The courts inquiry into
the facts is to be searching and careful, reflecting a thorough, probing, in-depth
review.100
The Court may not simply accept whatever conclusion an agency proffers
merely because the conclusion reflects the agencys judgment.101 In order to
survive judicial review . . . an agency action must be supported by reasoned
decisionmaking.102 Not only must an agencys decreed result be within the scope
of its lawful authority, but the process by which it reaches that result must be
logical and rational.103
98
5 U.S.C. 706(2)(C), Addendum, AD-006.
99
5 U.S.C. 706(2)(A), Addendum, AD-006.
100
Citizens to Pres. Overton Parke v. Volpe, 401 U.S. 402, 415-16 (1971),
abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977).
101
Fox v. Clinton, 684 F.3d 67, 75 (D.C. Cir. 2012) (citations and internal quotation
marks omitted).
102
Id.
103
Id. (citing Tripoli Rocketry Assn v. BATF, 437 F.3d 75, 77 (D.C. Cir. 2007)).
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 56 of 80
A decision is arbitrary and must be set aside if the agency has entirely
failed to consider an important aspect of the problem, [or] offered an explanation
for its decision that runs counter to the evidence before the agency.104
ARGUMENT
I.
THE DOT LETTER CONSTITUTES A LEGISLATIVE RULE FOR

WHICH PRIOR NOTICE AND THE OPPORTUNITY FOR
COMMENT WERE REQUIRED.
The DOT Letter constitutes a legislative rule, for which prior notice and
comment were required under 5 U.S.C. 553 (Addendum, AD-004 AD-005)

because it imposes new and unprecedented legal obligations on the City and Love
Field signatory airlines to ensure that any forced accommodation is essentially
permanent and based on a fixed, backward-looking snapshot date, contrary to
the leasehold rights of the affected signatory airline.
Section 4 of the APA, 5 U.S.C. 553, prescribes a three-step procedure for
so-called notice-and-comment rulemaking. Perez v. Mortg. Bankers Assn, __
U.S. __, 135 S. Ct. 1199, 1203 (2015). First, the agency must issue a [g]eneral
notice of proposed rulemaking, ordinarily by publication in the Federal Register.
553(b). Second, if notice [is] required, the agency must give interested
persons an opportunity to participate in the rule making through submission of
104
Motor Vehicle Mfrs. Assn v. St. Farm Mut. Auto Ins. Co., 463 U.S. 29, 43
(1983).
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 57 of 80
written data, views, or arguments. 553(c). An agency must consider and

respond to significant comments received during the period for public comment.
Perez, at 1203. Third, when the agency promulgates the final rule, it must include
in the rules text a concise general statement of [its] basis and purpose. 553(c).
Rules issued through the notice-and-comment process are often referred to as
legislative rules because they have the force and effect of law. Perez, at 1203
(citing Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979)).
Section 4(b)(A) of the APA provides that, unless another statute states
otherwise, the notice-and-comment requirement does not apply to interpretive
rules, general statements of policy, or rules of agency organization, procedure, or
practice. 5 U.S.C. 553(b)(A). See Natl Mining Assn v. McCarthy, 758 F.3d
243, 251 (D.C. Cir. 2014) ([l]egislative rules generally require notice and
comment, but interpretive rules and general statements of policy do not);
Mendoza v. Perez, 754 F.3d 1002, 1020 (D.C. Cir. 2014).
The DOT Letter is not an interpretive rule. [T]he critical feature of
interpretive rules is that they are issued by an agency to advise the public of the
agencys construction of the statutes and rules which it administers. Perez, 135
S.Ct. at 1204 (citing Shalala v. Guernsey Meml Hosp., 514 U.S. 87, 99 (1995)).
The DOT Letter does not purport to construe any language in a statute or
rule administered by DOT. Rather, it issues new, binding directives on the City
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 58 of 80
and the Love Field signatory airlines: any forced accommodation at Love Field
must not only be predicated on a backward-looking snapshot date that ignores the
signatory airlines future expansion plans, but also must continue indefinitely, as
long as the accommodate airline continues its pattern of service.
The most important factor in differentiating between binding and
nonbinding actions is the actual legal effect (or lack thereof) of the agency action
in question. Assn of Flight Attendants-CWA, AFL-CIO v. Huerta, 785 F.3d 710,
717, No. 13-1316, 2015 WL 2145776, *5 (May 8, 2015) (citing Natl Mining,
supra, 758 F.3d at 252). Agency action that creates new rights or imposes new
obligations on regulated parties or narrowly limits administrative discretion
constitutes a new legislative rule. Id. A legislative rule . . . effects a substantive
change of existing law or policy. Mendoza, supra, 754 F.3d at 1021 (citation and
internal quotation marks omitted).105
The DOT Letter constitutes a legislative rule because it contains
unprecedented, binding directives to the City that any forced airline
accommodation must persist as long as the carrier continues to operate the
accommodated flights, and that it is the airport operators responsibility to
continue the accommodation and ensure that space is available so that the
105
See also Mendoza, at 1022 (Where Congress has specifically declined to create
a standard, the Department cannot claim its implementing rule is an interpretation
of the statute) (citation and internal quotations omitted).
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 59 of 80
requesting carrier is able to maintain its pattern of service on an ongoing basis,

based on the available space on the snapshot date of the original accommodation
request.106
The DOT Letter is also fundamentally contrary to prior DOT/FAA policy
and practice. In the Airport Guide, the agencies expressly recognized that the grant
assurances do not require an airport operator to demand that a signatory airline
cancel flights or forfeit use of its airport facilities.107 Yet the DOT Letter directs
the City to ensure that a forced accommodation persists even if it requires the
signatory airline to cancel flights or forfeit its leased gate space.
The language employed by the agency may play an important role in this
analysis: a document that reads like an edict is likely to be binding, while one
riddled with caveats is not. Assn of Flight Attendants at 717*5; Natl Mining,
758 F.3d at 252-53. Here, the language used by DOT could hardly be clearer: if
the City forces a signatory airline such as Southwest to accommodate a non-tenant
airline (such as Delta), the accommodation must in effect be permanent.108
106
Rec. 87, at 2, JA __.
107
See Rec. 2, at x, JA __.
108
The Supreme Courts recent decision in Perez, supra, 135 S. Ct. 1199, is
inapplicable here. The Court in Perez held that the APAs requirement for priornotice-and-comment does not apply where the agency issues a new interpretation
of a regulation that deviates significantly from the agencys previous
determination, abrogating Paralyzed Veterans of America v. D.C. Arena, L.P., 117
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 60 of 80
Statements such as the accommodated carrier is entitled to an ongoing similar

pattern of service, and the accommodated carrier should not be pushed out by
incumbent carriers leave no room for doubt that DOT has rendered its edict. See
Syncor Intl Corp. v. Shalala, 127 F.3d 90, 94-95 (D.C. Cir. 1997) (legislative rule
where FDA stated it has concluded that radiopharmaceuticals should be regulated
under the drug provisions of the Federal Food, Drug, and Cosmetic Act) (courts
emphasis); NRDC v. EPA, supra, 643 F.3d at 321 (agency action that binds EPA
regional directors cannot . . . be considered a mere statement of policy).
In addition, the City has pronounced that it considers the statements in the
DOT Letter to constitute final and binding directives.
See Standing of
Southwest, supra. The Citys position is not surprising given the enormous
power that DOT wields over airport operators because of the federal grant process.
The City understandably does not want to jeopardize the hundreds of millions of
dollars in federal funding from DOT based on a finding (even an erroneous one)
that it has violated its federal grant assurances.
DOT had reason to know that its directives in the DOT Letter would have
serious consequences for both the City and affected signatory airlines (primarily
Southwest), and that the new precedent set by the Letter could affect airline-airport
F.3d 579 (1997); and Alaska Professional Hunters Association, Inc., v. FAA, 177
F.3d 1030 (1999). See Perez, at 1207-10. However, the DOT Letter did not
provide a new interpretation of a DOT regulation, much less one that deviates from
a prior determination.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 61 of 80
relationships in general. DOT easily could have invited public comments in light
of the significant, controversial, and unprecedented nature of its actions, but
declined to do so.
In sum, because the DOT Letter effects a substantive change of existing
law and policy, which the City is treating as final and binding on all affected
parties, issuance of the Letter without prior notice and an opportunity for public
comment violates the APA.
II.
THE LETTER EXCEEDS THE DOTS STATUTORY AUTHORITY

AND VIOLATES THE WRIGHT AMENDMENT REFORM ACT.
The DOT Letter should be vacated under 5 U.S.C. 706(2)(C) because it is
excess of DOTs statutory authority and violates the Wright Amendment Reform
Act (WARA).
A.
Neither the Competition Plan Statute Nor Any Other Statute

Authorizes DOT to Mandate that an Airport Treat Forced
Accommodation as Permanent as Long as the Pattern of
Service Continues.
In determining that a forced airline accommodation ordered by the City at

Love Field must be, in effect, permanent (for the duration of the non-tenants
pattern of service), as well as predicated in a fixed, backward-looking snapshot
date of airport schedules, DOT cited to no statutory or other legal authority for its
position, and there is none.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 62 of 80
It is axiomatic that an administrative agencys power to promulgate

legislative regulations is limited to the authority delegated by Congress. Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988); see also Atl. City Elec. Co. v.
FERC, 295 F.3d 1, 8 (D.C. Cir. 2002) (In the absence of statutory authorization
for its act, an agencys action is plainly contrary to law and cannot stand) (internal
citation and quotations omitted). To determine whether the agencys action is
contrary to law, [the Court looks] first to determine whether Congress has
delegated to the agency the legal authority to take the action that is under dispute.
Michigan v. EPA, 268 F.3d 1075, 1081 (D.C. Cir. 2001); see also id. at 1082
(Agency authority may not be lightly presumed).
The DOT Letter twice cites to 49 U.S.C. 47107(k).109 This must be an
error. Section 47107(k) relates to the federal prohibition against diversion of
airport revenue, which is irrelevant here.
Assuming DOT intended to cite instead to the Competition Plan statute at 49
U.S.C. 40117(k), this does not change the outcome here. Section 40117(k) does
not authorize DOT to mandate that an airport operator treat a forced
accommodation as permanent, or to require the use of a backward-looking
snapshot date.
The statute requires submission and approval of a competition
plan for certain airports, including Love Field. 49 U.S.C. 40117(k)(1)-(2),
109
Rec. 87, at 1, JA __.

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 63 of 80
Addendum, AD-017. Section 40117(k) states that no eligible agency may impose
a passenger facility charge under this section with respect to a covered airport . . .
unless the agency has submitted to the Secretary a written competition plan . . . .
There is nothing in section 40117(k) which requires a forced accommodation
much less a permanent one that overrides the leasehold rights of a signatory
airline.
DOT can point to no other statutory provision that gives the agency the
authority to mandate that forced accommodation of an airline be permanent, or be
predicated on fixed snapshot dates that ignore the rights of lease-holders to expand
service on their own gates over time. The general authority of DOT to regulate
airports is insufficient to support the DOT determination that forced
accommodation must continue indefinitely. See Am. Library Assn v. FCC, 406
F.3d 689, 708 (D.C. Cir. 2005) (categorically rejecting the FCCs argument that
it possesses plenary authority to act within a given area simply because Congress
has endowed it with some authority to act in that area) (emphasis in original).
B.
The DOT Letter Violates the Wright Amendment Reform Act.
The DOT Letter violates WARA sections 5(a) and 5(e).
Section 5(a)
requires that the City honor the scarce resource provision of the existing Love
Field leases. Requiring a forced accommodation to be permanent, regardless of
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 64 of 80
Southwests utilization of its leased gate space, is contrary to the scarce

resources/accommodation language in section 4.06 of the Lease.
As discussed above, pursuant to section 4.06, (1) for a forced
accommodation to take place, the signatory airline must have no scheduled use
for the gate space in question; (2) the signatory airlines scheduled use shall
take precedence; (3) the accommodation must not unduly interfere with the
signatory airlines operating schedule; and (4) in case of a conflict in schedules, the
signatory airline will have priority in use of its personnel and its Leased
Premises.110
Reliance on a backward-looking snapshot date for the imposition of a
forced (and permanent) airline accommodation violates Southwests Lease rights
(and therefore WARA) to fully utilize its leased space, including the right to
expand operations on its own leased space after the snapshot date. To comply with
the Lease a forced accommodation necessarily must be secondary to the rights of
the signatory airline to expand service as its schedule needs dictate.
The DOT Letter also violates WARA 5(e)(2)(B)(ii). Section 5(e)(1)(E)
states that WARA does not limit the authority of the FAA or any other Federal
agency to enforce requirements of law and grant assurances . . . that impose
obligations on Love Field to make its facilities available on a reasonable and
110
Lease, Rec. 17, 4.06.C and 4.06.F, JA __-__.

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 65 of 80
nondiscriminatory basis to air carriers seeking to use such facilities, or to withhold

grants or deny applications to applicants violating such obligations with respect to
Love Field.
Significantly, however, Section 5(e)(2)(B)(ii) states that the
foregoing language:
shall not be construed to require the city of Dallas . . . to modify or
eliminate preferential gate leases with air carriers in order to allocate
gate capacity to new entrants or to create common use gates, unless
such modification or elimination is implemented on a nationwide
basis.
AD-049 AD-050 (emphasis added). Accordingly, an accommodation order may
not interfere with preferential gate lease rights unless such modification or
elimination is implemented on a nationwide basis.
Neither FAA nor DOT has adopted and implemented a policy of modifying
or eliminating air carrier preferential lease rights on a nationwide basis. To the
extent that DOT were to take the position that the DOT Letter adopted such a
policy on a nationwide basis, such an argument would ignore the fact that the
DOT Letter (a) contains no such language; (b) the Letter states specifically that it
is being provided in light of the unique circumstances at DAL [Love Field]; and
(c) DOT issued the Letter without following the prior notice-and-comment
requirements of the APA which obviously would be required to effect such a
profound and nationwide change in the law.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 66 of 80
If DOT or Delta were to argue that the DOT Letter is entitled to deference
under Chevron USA, Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837
(1984), this argument should be rejected. Chevron is inapplicable because DOT
did not identify any allegedly ambiguous statutory language. See Christensen v.
Harris Cnty., 529 U.S. 576, 586-87 (2000) (In Chevron, we held that a court must
give effect to an agencys regulation containing a reasonable interpretation of an
ambiguous statute).
Also, to the extent DOT were to contend that the Letter is not a legislative
rule but rather is an interpretation in an opinion letter, for which notice and
comment were not required (a position Southwest rejects), this too would be fatal
to any argument that Chevron deference applies. See Christensen, supra, at 587
(Interpretations such as those in opinion letters like interpretations contained in
policy statements, agency manuals, and enforcement guidelines, all of which lack
the force of law do not warrant Chevron-style deference).
Furthermore, the case for judicial deference is less compelling with respect
to agency positions that are inconsistent with previously held views.
Pauley v.
Bethenergy Mines, LLC, 501 U.S. 680, 698 (1991); see also INS v. CardozaFonseca, 480 U.S. 421, 446 n. 30 (1987) (An agency interpretation of a relevant
provision which conflicts with the agencys earlier interpretation is entitled to
considerably less deference than a consistently held agency view) (citations
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 67 of 80
omitted); Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993) (the
consistency of an agencys position is a factor in assessing the weight that position
is due).
Here, the position in the DOT Letter that forced accommodation should be,
in effect, permanent, and predicated on a backward-looking snapshot date, is
entirely inconsistent with DOTs own Airport Guide and FAAs approval of the
2009 Competition Plan for Love Field, both of which recognize the rights of a
lease-holding airline to expand service upon and fully utilize its leased gates. It
is textbook administrative law that an agency must provide a reasoned explanation
for departing from precedent or treating similar situations differently.
W.
Deptford Energy, LLC v. FERC, 766 F.3d 10, 20 (D.C. Cir. 2014) (citation and
internal quotation marks and punctuation omitted). However, the DOT Letter fails
to provide a reasoned explanation for requiring a forced accommodation to trump
the rights of signatory airlines to fully utilize their leased space. The DOT Letter is
not justified either as consistent with precedent or as a considered departure
therefrom. Id.; see also Village of Barrington v. Surface Transp. Bd., 636 F.3d
650, 660 (D.C. Cir. 2011) (under Chevron step two, the court will defer to the
agencys permissible interpretation, but only if the agency has offered a reasoned
explanation for why it chose that interpretation; if an agency fails or refuses to
deploy its expertise to produce a reasoned decision . . . it deserves no deference).
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 68 of 80
In addition, no deference to the DOT Letter is warranted under Skidmore v.

Swift & Co., 323 U.S. 134, 140 (1944). Under Skidmore, the weight accorded to
an administrative judgment in a particular case will depend upon the thoroughness
evident in its consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors which give it power to
persuade . . . . Id.; see also United States v. Mead Corp., 533 U.S. 218, 228
(2001); Christensen, supra, at 587 (interpretations contained in formats such as
opinion letters are entitled to respect under our decision in Skidmore . . . but only
to the extent that those interpretations have the power to persuade); See also
Barnhart v. Walton, 535 U.S. 212, 222 (2002) (the interstitial nature of the legal
question, the related expertise of the Agency, the importance of the question to
administration of the statute, the complexity of that administration, and the careful
consideration the Agency has given the question over a long period of time all
indicate that Chevron provides the appropriate legal lens through which to view the
legality of the Agency interpretation here at issue.).
Accordingly, no validity should be given to the DOT Letter because of its
lack of any reasoned, much less sound, decision-making, as well as the Letters
unexplained inconsistency with prior precedent and DOT practice, including the
Airport Guide.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 69 of 80
Because the DOT Letter is unauthorized by 49 U.S.C. 40117(k) or any

other statutory provision, and violates WARA, it should be vacated under 5 U.S.C.
706(2)(C).
III.
THE DOT LETTER IS ARBITRARY AND CAPRICIOUS BECAUSE

IT IS NOT THE PRODUCT OF REASONED DECISION-MAKING
AND IGNORES UNDISPUTED EVIDENCE THAT PERMANENT
FORCED ACCOMMODATION AT LOVE FIELD IS UNLAWFUL,
HARMFUL AND UNNECESSARY.
The DOT Letter should be vacated under 5 U.S.C. 706(2)(A) as arbitrary
and capricious because it is not the product of reasoned decision-making; it

contravenes a long history of industry practice without any explanation; and it fails
to consider undisputed evidence before DOT that forcing Southwest to
accommodate Delta at Love Field on a permanent basis is unlawful, extremely
harmful to Southwest, and completely unnecessary to achieve any legally valid
objective.
A.
The DOT Letter is Not the Product of Reasoned DecisionMaking.
The agencys statement in support of an order must be one of reasoning; it

may not be just a conclusion; it must articulate a satisfactory explanation for its
action.
SecurityPoint, supra, 769 F.3d at 1187-88 (citations and internal
quotation marks and punctuation omitted); id. at 1188 (Because [TSAs] letter
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 70 of 80
fails to provide any basis upon which we could conclude that it was the product of
reasoned decisionmaking)(internal citation omitted).
In violation of this requirement, the DOT Letter fails to offer any reason for
requiring that a forced accommodation be permanent or predicated on a backwardlooking snapshot date. Significantly, the DOT Letter cites neither legal authority
nor historical precedent for its position on permanent forced accommodations.
Inexplicably, the Letter does not acknowledge the existence of longstanding
contrary DOT guidance for airports, as well as decades of industry practice. Nor
does it attempt to justify the imposition of the newly-announced obligations on
Love Field and its signatory airlines in light of pre-existing airline lease rights.
The DOT Letter also does not identify any basis in law for using a
snapshot of previously-published schedules at Love Field that would allow nontenant airlines to block signatory airlines from publishing new flights after that
date. The Letter makes no attempt to explain how the use of such a date is
consistent with Southwests rights under its Lease to expand service upon and fully
utilize its leased gates over time, including after the snapshot date.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 71 of 80
B.
The DOT Letter Fails to Consider Undisputed Evidence that

Forcing Southwest to Accommodate Delta On a Permanent Basis
Is Unlawful, Harmful and Unnecessary.
An agencys action is arbitrary and capricious if it has entirely failed to

consider an important aspect of the problem it faces. SecurityPoint Holdings,
supra, 769 F.3d at 1187 (citing Motor Vehicle Mfrs. Assn, supra, 463 U.S. at 43
(1983)), and at 1189 (Because TSA failed to consider an important aspect of the
problem' before it, its decision must be set aside as arbitrary and capricious); see
also Butte Cnty., Cal. v. Hogen, 613 F.3d 190, 194 (D.C Cir. 2010) (an agencys
refusal to consider evidence bearing on the issue before it constitutes arbitrary
agency action within the meaning of 706); Tourus Record, Inc. v. DEA, 259
F.3d 731, 737 (D.C. Cir. 2001).
1.
The DOT Letter Fails to Acknowledge the Evidence that

Requiring Southwest to Accommodate Delta on a
Permanent Basis is Contrary to Both the Lease and DOTs
Prior Guidance.
There is no indication whatsoever that DOT considered the language in

section 4.06.C and 4.06.F of the Love Field Lease regarding forced
accommodations which fully supports the right of a signatory airline to expand
upon and fully utilize its own leased gate space. Specifically, DOT does not
address the fact that the Lease provides that (1) for a forced accommodation, the
signatory airline must have no scheduled use for the gate space; (2) the signatory
airlines scheduled use shall take precedence over the accommodated airline;
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 72 of 80
(3) the accommodation must not unduly interfere with the signatory airlines
operating schedule; and (4) in case of a conflict in schedules, the signatory airline
will have priority in use of its personnel and its Leased Premises.111
There is also zero evidence that DOT considered the implications at Love
Field, or any other airport, that would arise from fundamentally altering the legal
relationship between the airport and its lease-holding airlines as the DOT Letter
directed.
For example, DOT nowhere acknowledges the fact that, if airport
operators such as the City are required to treat forced accommodation as

permanent, the resulting accommodation decisions will interfere with airline
property rights and reasonable expectations at Love Field, and potentially, at other
gate-constrained airports across the country. When an airline signs a lease for
airport space, it must have a reasonable expectation that it will be able to fully use
its leased space whether for its current operations or for the addition of new flights
over time in the ordinary course of business. The position taken in the DOT Letter
destroys these expectations, devaluing supposedly preferential lease rights and
lowering lease revenue for airport operators in the process.
The DOT Letter also ignores DOTs own long-standing guidance to airports,
as reflected in its Airport Guide.112 Although the DOT Letter states that the
111
Lease, Rec. 17, 4.06.C and 4.06.F, JA __-__.
112
Rec. 2, JA __-__.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 73 of 80
Airport Guide may be helpful to the City in responding to Deltas

accommodation request (Letter, at 2), the Letter inexplicably ignores the fact that
the Guide contradicts the positions taken in the DOT Letter. The Airport Guide
recognizes that the grant assurances do not abrogate lease rights:
[F]ederal grant assurances . . . require the airport operator to
accommodate reasonable requests for access by a new entrant carrier
or by an incumbent carrier that wants to expand operations. While an
air carrier is not required to cancel flights or forfeit use of airport
facilities, an airport operator may not deny access to its facilities
based solely on existing lease arrangements.113
In other words, the existence of a lease is not in and of itself sufficient to refuse a
request for accommodation. For example, it has long been industry practice that a
non-tenant carrier can be accommodated temporarily on leased space that is not
being used by the signatory airline a practice that both United and Southwest
followed in temporarily accommodating Delta at Love Field.
However, a
signatory airline cannot be required to cancel flights or forfeit use of airport

facilities to accommodate a non-tenant airline. And, the signatory airline must be
free to expand operations on its leased space over time. See, e.g., Lease 4.06.C
and 4.06.F, JA __-__; Airport Guide, Rec. 2, at 13, 15, JA __, __.
113
Rec. 2, at x, JA __ (emphasis added); see also id. at 13, 15, JA __, __.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 74 of 80
There is nothing in the grant assurances that authorizes a forced

accommodation in perpetuity, overriding the signatory airlines future plans to
expand operations on its own leased space, yet that is what the DOT Letter directs
the City of Dallas to do. And in giving that direction, the DOT Letter simply
ignores the Lease language, guidance in its own Airport Guide, and decades of
historical practice that is contrary to the agencys new pronouncements.
The DOT Letter also says nothing about the 2009 Competition Plan for Love
Field, which FAA approved.
The 2009 Plan incorporated by reference the
accommodation provisions in section 4.06 of the Lease, which recognize that the
signatory airline is allowed to fully utilize its leased gate space without
interference by an accommodated airline.114 Clearly, it is improper for FAA to
approve a competition plan with such provisions, only to have DOT subsequently
ignore them.
2.
The DOT Letter Ignores the Severe Harm Southwest

Would Suffer if It is Required to Accommodate Another
Airline at Love Field on a Permanent Basis.
The DOT Letter is also arbitrary and capricious because it fails to provide
any indication that DOT considered the fact that, as a practical matter the Five-
114
Rec. 19, JA ___-___; Rec. 22, JA __-__.

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 75 of 80
Party Agreement prevents Southwest from expanding its service in the Dallas area
other than by adding flights at Love Field.
As discussed above, all airlines other than Southwest may provide air
service to the Dallas-Fort Worth market without access to Love Field. All such
airlines can access that market fully from DFW Airport, which is not gateconstrained and has ample room for growth. Southwest alone is subject to a
unique restriction that effectively limits its service in the Dallas metropolitan area
to Love Field.115 This necessarily means that forcibly accommodating any flights
of other airlines on Southwests Love Field gates will necessarily reduce the
number of flights that Southwest can offer to the public, which will not only
seriously injure Southwest but also harm consumers by denying them the benefits
of Southwests competition, airfare savings, and travel options in the Dallas
market.
An order requiring forced accommodation by Southwest of Delta (or any
other airline) under the terms of the DOT Letter would lead to an unfair and
improper result: Southwest would be permanently barred from continuing to
expand its service to the Dallas market as long as the accommodated airline
115
Five-Party Agreement, Rec. 15, 10, JA __; and previous discussion of 10,
supra.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 76 of 80
continued its pattern of service on Southwests gates. The DOT Letter ignores
entirely this obvious consequence of its own directive.
3.
DOT Failed to Consider the Undisputed Evidence that

Forced Accommodation at Love Field is Unnecessary to
Accomplish Any Legitimate Objective Given that Love
Field is Part of the Larger Dallas Market that Includes
DFW Airport.
An additional reason demonstrating that the DOT Letter is arbitrary and

capricious is DOTs failure to consider the undisputed evidence that forced
accommodation of a non-tenant airline at Love Field of any duration but
particularly on a permanent basis is entirely unnecessary to ensure that all
airlines can fully compete in the Dallas area air services market.
Southwest
extensively addressed the issue of the appropriate competitive market for the
consideration of accommodation requests in its November 17, 2014 Response to
City of Dallas Request for Input on Dallas Love Field Accommodation Policy,116
and its December 8, 2014 Response to City of Dallas December 1, 2014 Notice
Regarding Dallas Love Field Accommodation Issues.117
The DOT General
Counsel was copied on this submission. Yet the agency did not mention, much
less attempt to rebut, any of this evidence in the DOT Letter.
116
Rec. 56, at 7-9, JA __-__, and Exhibits A through F, Rec. __, JA __-__.
117
Rec. 81, at 5-6, JA __-__.

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 77 of 80
DOT also ignored the fact that, as stated above, when the City in 2009
sought FAA permission to use passenger facility charge (PFC) revenues on Love
Field projects, the City recognized that the competitive effects of decisions
affecting Love Field impact the entire region.118 The City pointed to all of the
passengers in the Dallas-Fort Worth region" that have already benefitted from the
competitive choice between Love Field and DFW Airport.119
DOTs own Airport Guide reinforces this concept, by focusing on the impact
of airport decisions on competition in air transportation markets rather than
within a single airport that is only a smaller part of a broader competitive market.
See Guide, Rec. 2, at 14, JA __ (the goals of the Airline Deregulation Act are
to foster competition and encourage new entry into air transportation markets)
(emphasis added). The Airport Guide states that the essential facilities doctrine
of Section 2 of the Sherman Act could be applied to compel dominant airlines to
surrender control of airport gates.120 However, Love Field cannot qualify as an
essential facility at least not for airlines other than Southwest, all of which
have full access to the Dallas-Fort Worth market by using the unconstrained gates
at DFW Airport.
118
Rec. 22, at B-81 to B-84, JA __-__.
119
Id. at B-83-84, JA __-__.
120
Rec. 2, at 27, JA __.

USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 78 of 80
CONCLUSION
For the reasons set forth above, Southwest Airlines requests that the Court
grant the Petition for Review and vacate the final order of DOT set forth in the
DOT Letter.
/s/ M. Roy Goldberg

(202) 429-3000 (phone)
(202) 429-3902 (fax)
/s/ Robert W. Kneisley
919 18th St., N.W.
Suite 600
(202) 263-6284 (phone)
(202) 263-6291 (fax)
Co.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 79 of 80
Pursuant to Rule 32(a)(7)(C), Fed. R. App. P., Southwest Airlines certifies
that, based on the word count of the word-processing system used to prepare the
brief, the number of words in the brief is 13,823.
/s/ M. Roy Goldberg

(202) 429-3000 (phone)
(202) 429-3902 (fax)
/s/ Robert W. Kneisley
919 18th St., N.W.
Suite 600
(202) 263-6284 (phone)
(202) 263-6291 (fax)
Co.
USCA Case #15-1036
Document #1559003
Filed: 06/22/2015
Page 80 of 80
I hereby certify that on this 22nd day of June, 2015, I caused a copy of the
foregoing Opening Brief of Petitioner Southwest Airlines Co. to be served
electronically through the Court's CM/ECF system on all registered counsel.
/s/ Roy Goldberg

Roy Goldberg
Dated:
June 22, 2015

DALLAS DIVISION
)
CITY OF DALLAS,
)
)
Plaintiff,
)
)
v.
)
)
)
)
Defendants. )
)
No. 3:15-cv-02069-K
[PROPOSED] ORDER
Upon the motion of defendants U.S. Department of Transportation (DOT) and Federal
Aviation Administration (FAA) to dismiss or transfer, and for a stay, the materials submitted in
support of that motion and in opposition thereto, and good cause having been shown, it is hereby
ordered as follows:
1. The motion of DOT and FAA is granted.
2. All claims asserted against DOT and FAA in this action are dismissed for lack of
subject matter jurisdiction.
3. All further proceedings in this matter are stayed pending the FAAs issuance of a final
decision in In the Matter of Compliance With Federal Obligations by the City of Dallas, Texas,
FAA Docket No. 16-15-10, and any judicial review thereof (including appeals), or further order
of this Court.
4. On December 14, 2015 and every 90 days thereafter, DOT shall submit a status report
to the Court concerning the status of the above-referenced administrative proceeding.
Dated:
UNITED STATES DISTRICT JUDGE

FAA&#39;s Motion in Love Field Lawsuit

Uploaded by

Document Information

Copyright

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

FAA&#39;s Motion in Love Field Lawsuit

Uploaded by

Copyright:

Case 3:15-cv-02069-K Document 165 Filed 09/14/15

Page 1 of 3 PageID 4693

UNITED STATES DISTRICT COURT

Defendants U.S. Department of Transportation (DOT) and Federal Aviation

Case 3:15-cv-02069-K Document 165 Filed 09/14/15

Page 2 of 3 PageID 4694

Dated: September 14, 2015

Attorneys for Defendants U.S. Department of

Case 3:15-cv-02069-K Document 165 Filed 09/14/15

Page 3 of 3 PageID 4695

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 1 of 29 PageID 4696

UNITED STATES DISTRICT COURT

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 2 of 29 PageID 4697

Deltas Request for Accommodation .............................................................................. 6

DOTs Guidance Letters ................................................................................................. 7

The Dispute Leads to Three Judicial Proceedings .......................................................... 9

The Ongoing FAA Administrative Proceeding ............................................................ 10

THE CITYS CLAIMS AGAINST DOT SHOULD BE DISMISSED

EVEN IF THE DOT LETTERS WERE FINAL AGENCY ACTIONS,

THE COURT SHOULD DEFER MAKING ANY RULINGS

The Court Should Stay All Further Proceedings......22

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 3 of 29 PageID 4698

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 4 of 29 PageID 4699

Lujan v. Natl Wildlife Fedn,

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 5 of 29 PageID 4700

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 6 of 29 PageID 4701

Defendants United States Department of Transportation (DOT) and Federal Aviation

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 7 of 29 PageID 4702

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 8 of 29 PageID 4703

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 9 of 29 PageID 4704

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 10 of 29 PageID 4705

Love Field, the Wright Amendment, and the Reform Act

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 11 of 29 PageID 4706

Deltas Request for Accommodation

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 12 of 29 PageID 4707

DOTs Guidance Letters

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 13 of 29 PageID 4708

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 14 of 29 PageID 4709

The Dispute Leads to Three Judicial Proceedings

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 15 of 29 PageID 4710

The Ongoing FAA Administrative Proceeding

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 16 of 29 PageID 4711

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 17 of 29 PageID 4712

THE CITYS CLAIMS AGAINST DOT SHOULD BE DISMISSED

No requirement of finality applies when judicial review is sought pursuant to a statutory or

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 18 of 29 PageID 4713

judicial action under 49 U.S.C. 47111(f), or (2) conduct an administrative adjudication

Case 3:15-cv-02069-K Document 165-1 Filed 09/14/15

Page 19 of 29 PageID 4714

FAA's Motion in Love Field Lawsuit

FAA's Motion in Love Field Lawsuit