Dallas, Delta and Southwest Respond To Feds' Motion To Dismiss

Case 3:15-cv-02069-K Document 186 Filed 09/21/15
Page 1 of 29 PageID 4986
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CITY OF DALLAS,
Plaintiff,
v.
DELTA AIR LINES, INC., et al.,
Defendants.
Civil Action No. 3:15-cv-02069-K
CITY OF DALLAS RESPONSE TO UNITED STATES DEPARTMENT OF

TRANSPORTATIONS AND FEDERAL AVIATION ADMINSTRATIONS MOTION
TO DISMISS OR TRANSFER AND FOR A STAY
WARREN M.S. ERNST
Dallas City Attorney
Charles Estee
Senior Assistant City Attorney
State Bar of Texas No. 06673600
charles.estee@dallascityhall.com
Peter B. Haskel
Executive Assistant city Attorney
Peter.haskel@dallascityhall.com
City Attorneys Office
7BN Dallas City Hall
1500 Marilla Street
Dallas, Texas 75201
Telephone 214/670-3519
Telecopier 214/670-0622
Attorneys for Plaintiff City of Dallas
TABLE OF CONTENTS
Introduction ............................................................................................................................. 1
I.
Background .......................................................................................................................... 3
II.
A.
The Federal Agencies Usual Authority........................................................................... 3
B.
The Wright Amendment Reform Act of 2006 (WARA). ............................................. 4
C.
The Five-Party Agreement ............................................................................................... 5
D.
The Preferential Leases .................................................................................................... 5
E.
The Combined Effect of WARA, the Five-Party Agreement, and the Leases................. 7
F.
The DOT Letters .............................................................................................................. 9
III.
Sovereign Immunity Was Waived ..................................................................................... 12
A.
Waiver Under the Administrative Procedure Act .......................................................... 12
B.
Sovereign immunity was waived for nonstatutory review. ........................................ 13
C.
Sovereign immunity was waived for statutory review. .................................................. 17
D.
The Court has jurisdiction because DOT has acted outside of its statutory authority and
jurisdiction. ............................................................................................................................... 20
E.
The remaining claims are viable. ................................................................................... 21
V.
DOTs MOTION TO TRANSFER SHOULD BE DENIED ............................................ 21
VII.
THE FEDERAL AGENCIES MOTION TO STAY SHOULD BE DENIED ................. 23
CONCLUSION AND PRAYER .................................................................................................. 24

CERTIFICATE OF SERVICE ..................................................................................................... 25
TABLE OF AUTHORITIES
Cases
Abbott Laboratories v. Gardner,
387 U.S. 136 (1967) ............................................................................................................ 17, 19
AlabamaCoushatta Tribe of Tex.
v. United States, 757 F.3d 484
(5th Cir. 2014)................................................................................................................. 2, 13, 15
AlabamaCoushatta Tribe of Tex.,757 F.3d ................................................................................. 13
Am. Land Title Assn v.
Clarke, 743 F. Supp. 491
(W.D. Tex. 1989) ...................................................................................................................... 14
Bennett v. Spear,
520 U.S. 154 (1997) .................................................................................................................. 17
Boarhead Corp. v. Erickson,
923 F.2d 1011, n.11
(3rd Cir. 1991) ......................................................................................................................... 14
Central Hudson Gas & Elec. Corp. v.
U.S. EPA, 587 F.2d 549 (2d Cir.1978) ..................................................................................... 21
Church of Scientology of Ca.
v. Linberg, 529 F. Supp. 945
(C.D. Ca. 1981) ......................................................................................................................... 15
CibaGeigy Corp. v. EPA,
801 F.2d 430 (D.C. Cir. 1986) .................................................................................................. 19
City of Los Angeles v. FAA,
239 F.3d 1033 (9th Cir. 2001) .................................................................................................. 16
CocaCola Co. v. Federal Trade
Comm., 475 F.2d 299
(5th Cir.1973),
cert. denied 414 U.S. 877 (1973) .............................................................................................. 21
Comm. to Stop Airport Expansion v.
FAA, 320 F.3d 285
(2nd. Cir. 2003) ......................................................................................................................... 15
DunnMcCampbell Royalty
Interest, Inc. v. Nat'l Park Serv.,
112 F.3d 1283 (5th Cir. 1997) .................................................................................................. 17
Federal Trade Comm'n v.
Standard Oil Co. of Cal.,
449 U.S. 232, n. 7 (1980)
(quoting S.Rep. No. 752, 79th Cong.,
2d Sess. 255 (1946)) ................................................................................................................. 14
Inclusive Communities Project, Inc. v.
U.S. Dept of Treas., No. 3:14-CV-3013-D, 2015
WL 4629635 (N.D. Tex. Aug. 4, 2015) .................................................................................... 13
ii
Jaffee v. U.S., 592 F.2d

712 (3d Cir.), cert. denied,
441 U.S. 961 (1979) .................................................................................................................. 15
Khodara Environmental, Inc.
v. Burch, 245 F. Supp. 2d
(W.D. Pa. 2002) ........................................................................................................................ 15
Leedom v. Kyne, 358 U.S. 184 (1958) .......................................................................................... 21
Love Terminal Partners v.
United States, 97 Fed. Cl. 355 (2011) ......................................................................... 7, 8, 16, 24
Love Terminal Partners, L.P. v.
City of Dallas, Tex., 527 F.Supp.2d 538,
(N.D. Tex. 2007) (Fitzwater, J)............................................................................................. 7, 16
Michigan v. U.S. Army Corps of Engrs.,
667 F.3d 765 (7th Cir. 2011) .................................................................................................... 15
Sheehan v. Army &
Air Force Exch. Serv., 619 F.2d 1132,
(5th Cir.1980), revd on other grounds,
456 U.S. 728 (1982) ............................................................................................................ 13, 15
Statutes
28 U.S.C. 1331 ........................................................................................................................... 12
28 U.S.C. 1361 ............................................................................................................................. 2
28 U.S.C. 1651 ....................................................................................................................... 3, 20
49 U.S.C. 40113 ........................................................................................................................... 3
49 U.S.C. 40117 ........................................................................................................................... 3
49 U.S.C. 46101 ........................................................................................................................... 3
49 U.S.C. 46106 ........................................................................................................................... 3
49 U.S.C. 46107 ........................................................................................................................... 3
49 U.S.C. 47106 ........................................................................................................................... 3
49 U.S.C. 47107 ........................................................................................................................... 3
49 U.S.C. 47122 ........................................................................................................................... 3
5 U.S.C. 702 ............................................................................................................... 2, 12, 13, 16
The Wright Amendment Reform Act of 2006,
Pub. L. 109-352, 120 Stat. 2011 (2006) ............................................................................. Passim
Wendell H. Ford Aviation Investment
and Reform Act for the 21st
Century, 49 U.S.C. 42121 ...................................................................................................... 15
Rules and Regulations
14 C.F.R. 16.109 .................................................................................................................... 4, 18
14 C.F.R. Part 16.11.................................................................................................................. 4, 15
14 C.F.R. Parts 13, 16 ..................................................................................................................... 3
iii

DALLAS DIVISION
CITY OF DALLAS,
Plaintiff,
v.
DELTA AIR LINES, INC., et al.,
Defendants.
CITY OF DALLAS RESPONSE TO UNITED STATES DEPARTMENT OF

TRANSPORTATIONS AND FEDERAL AVIATION ADMINSTRATIONS MOTION
TO DISMISS OR TRANSFER AND FOR A STAY
TO THE HONORABLE JUDGE OF SAID COURT:
The City of Dallas (the City) submits its response to the motion by U.S. Department of
Transportation (DOT) and Federal Aviation Administration (FAA) (together, the Federal
Agencies) to dismiss or transfer and for a stay (ECF No. 165) and states the following:
I. Introduction
Congress has stripped the Federal Agencies of the title 49 enforcement jurisdiction on
which they base their motions. None of the precedent on which movants rely is applicable to the
situation here, where the Federal Agencies act in direct violation of congressional limits on their
powers. The Federal Agencies were joined to this action because they issued letters in violation
of the prohibitions on their powers as stated in the Wright Amendment Reform Act of 2006
(WARA).1
The principal dispute in this action involves whether Southwest Airlines Co.
(Southwest), or some other signatory airline, must accommodate Delta Air Lines, Inc.s
(Delta) flights at Love Field. Much of the need for judicial intervention came from two letters
Pub. L. 109-352, 120 Stat. 2011 (2006).
CITY OF DALLAS RESPONSE TO DOTS MOTION TO DISMISS OR

TRANSFER AND FOR A STAY
Page 1
written by DOTs general counsel (the Letters). The Letters had legal consequences and
mandated that either the City deny signatory airlines of their preferential lease rights or risk
losing its aviation grants. WARA forbids the federal agencies to use title 49 enforcement to alter
preferential gate rights at Love Field except on a nationwide basis. Because the Letters directed
the City to take action that adversely affected it, the City joined the Federal Agencies to this
action. Only after the City filed this lawsuit and highlighted the Letters failure to consider
WARA, did the Federal Agencies claim the Letters were merely guidance and acknowledge that
WARA was not considered. The Federal Agencies other response was to issue a notice of
investigation.
As evidenced by the Notice of Investigation, the Federal Agencies are still
threatening to enforce the unlawful policies set out in the Letters while trying to prevent this
Court from exercising its jurisdiction. When the City filed this lawsuit, there was no
investigation, but the Federal Agencies now urge it as a basis for their jurisdictional motion to
dismiss.
The Federal Agencies argue that their sovereign immunity has not been waived because
there has been no final agency action.
Alternatively, they argue that this case should be
transferred to the D.C. Circuit and also seek a stay. Once again, they ignore WARA and do not
discuss its express limitations on the Federal Agencies authority at Love Field. They also
ignore that 5 U.S.C. 702 of the Administrative Procedure Act (APA) waives sovereign
immunity for nonstatutory review for which there is no finality requirement.
Alabama
Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 488 (5th Cir. 2014). The Citys
complaint alleged a waiver of sovereign immunity based on WARA regardless of the finality of
the DOT Letters. Moreover, sovereign immunity is waived to prevent federal agencies and
officials from acting outside their authority. See e.g. 28 U.S.C. 1361. WARA stripped the
Page 2
Federal Agencies of their usual authority as it relates to Love Field and the Federal Agencies
actions in issuing the Letters and now starting a retaliatory investigation were outside of both
agencies authority and jurisdiction. Their motion and all of their requested relief should be
denied. Finally, the motions ignore this Courts power to protect its own jurisdiction in this ongoing case from inappropriate interference. 28 U.S.C. 1651(a).
II.
Background
A. The Federal Agencies Usual Authority

DOT is the parent agency of FAA and FAA administers the DOT and FAA grants at
Love Field (See ECF 165-1 at 6, n. 1). Federal law imposes a complex set of obligations on
airport proprietors that accept federal airport improvement grants. These obligations, known as
grant assurances, are statutorily mandated contractual commitments between the airport
proprietor and the FAA that the airport proprietor must execute each time it receives a federal
grant. 49 U.S.C. 47107. Also for certain airports, including Love Field, the airport proprietor
is required to submit a competition plan for review. 49 U.S.C. 47106(f), 40117(k)
Generally, the FAA has the authority to enforce grant assurances and related obligations.
See 49 U.S.C. 47122; 14 C.F.R. Parts 13, 16. In most instances, the FAA has plenary authority
to take appropriate action to carry out its enforcement obligations. 49 U.S.C. 40113. That
authority includes the ability to conduct investigations, to compel compliance with federal
aviation statutes, 49 U.S.C. 46101(a)(4), and to bring a civil action to enforce applicable
statutes or regulations under the FAAs purview. 49 U.S.C. 46106, 46107, 47122.
The FAAs Part 16 regulations set forth the agencys procedures for investigation and
resolution of potential violations of the grant assurances and other airport obligations under Part
A of Subtitle VII of Title 49 of the U.S. Code, entitled Aviation Programs. 14 C.F.R. Part
Page 3
16.11. Those regulations provide authority for orders terminating an airport sponsors eligibility
for future federal grants, for issuance of cease and desist orders, and for other compliance
orders. 14 C.F.R. 16.109. It is under these FAA powers that DOT issued its Letters and the
FAA issued its Notice of Investigation.
B. The Wright Amendment Reform Act of 2006 (WARA).
WARA expressly limits the Federal Agencies general enforcement and compliance
authority at Love Field. Congress has denied them any authority over the specific preferential
gate rights and gate accommodation issues in this litigation. WARA deprives both DOT and the
FAA of authority to direct the City to take the action as outlined in the DOT Letters (except on a
nationwide basis) and deprives the FAA of the authority to make determinations, findings or
impose sanctions that are the subject of the noticed FAA investigation.
WARA states, To accommodate new entrant air carriers, the city of Dallas shall honor
the scarce resource provision of the existing Love Field leases. (ECF No. 21 at 15; WARA
5(a)) However, WARA 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 charge applications, or take any other actions, either selfinitiated or on behalf of third parties (A) that are inconsistent with [the Five-Party
Agreement] unless actions by the parties to the contract are not reasonably necessary to
implement such contract; or (B) that challenge the legality of any provision of such
contract.
(ECF No. 21 at 15; WARA 5(d)(1))(emphasis added). WARA adds that:
Nothing in this Act shall be construed
(A) to limit the obligations of the parties under the programs of the Department of
Transportation and the Federal Aviation Administration relating to aviation
safety, labor, environmental, national historic preservation, civil rights, small
business concerns (including disadvantaged business enterprise), veterans
preference, disability access, and revenue diversion;
Page 4
***
(E) to limit the authority of the Federal Aviation Administration or any other
Federal agency to enforce requirements of law and grant assurances (including
subsections (a)(1), (a)(4), and (s) of section 47107 of title 49, United States Code)
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.
(ECF 21 at 16; WARA 5(e)(1)(A), (E)). WARA emphasizes that FAAs grant of authority as
stated above shall not 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 or to create common use
gates, unless such modification or elimination is implemented on a nationwide basis. (ECF 21
at 16; WARA 5(e)(2)(B)(ii) (emphasis added)). WARA also provides that any actions taken
by the parties to [the Five-Party Agreement] that are reasonably necessary to implement its
provisions, shall be deemed to comply in all respects with the parties obligations under title 49,
United States Code. (ECF No. 21 at 15-16; WARA, 5(d)(2) (emphasis added)).
C. The Five-Party Agreement
The Five-Party Agreement provides that if a new entrant seeks access to Love Field the
City will seek voluntary accommodation but if the signatory airlines are unable or unwilling, the
City will require the sharing of preferential lease gates, pursuant to Dallas existing lease
agreements. (ECF No. 21 at 31 [ 3(b)]).
D. The Preferential Leases
The City has leases with Southwest, American, and United. The leases are virtually
identical. Section 4.06(C) states an airline has preferential use of its leased gates and:
At those times that 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

Page 5
require, for loading and unloading only, but in no event shall said use by others take
precedence over Airline's scheduled use.
(ECF No. 24 at 173). Section 4.06(F) states, in part, that the parties agree that the Love Field
facilities:
may become a scarce resource if a new entrant airline (Requesting Airline) requests to
provide service at the Airport. In such circumstances, Airline agrees to accommodate
such Requesting Airline at its Leased Premises at such times that will not unduly interfere
with its operating schedule and upon such reasonable terms as may be agreed upon
between Airline and the Requesting Airlines, taking into consideration all the
circumstances of such an accommodation agreement.
(ECF No. 24 at 174). The provision continues by creating a procedure for handling requests
whereby the requesting airline first seeks a voluntary agreement and after it has exhausted all
reasonable efforts to secure accommodations, the City will select a signatory airline to
accommodate the requesting airline. (ECF No. 24 at 174-175). Any accommodation is subject
to the condition that: In case of a conflict 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. (ECF No. 24 at 175).
In Section 14.02 of the lease, the parties acknowledged that certain portions of the lease
were subject to review by DOT or FAA concerning possible effects on airline competition and
access at the Airport and if as result of the review the federal government threatened to
withhold federal assistance, the City and the signatory airline would modify the lease to reflect
any necessary change as a result of such action. (ECF No. 24 at 211). Section 14.09 added that
the lease was subject to Airport Improvement Program Grant Agreements and, to the extent
relevant, were considered part of the lease, but only to the extent, that the provisions of any such
agreements are required generally by the United States at other civil airports receiving federal
funds. (ECF No. 24 at 217) (emphasis added).
Page 6
E. The Combined Effect of WARA, the Five-Party Agreement, and the Leases
WARA incorporates the terms of the Five-Party Agreement into federal law. Love
Terminal Partners, L.P. v. City of Dallas, Tex., 527 F.Supp.2d 538, 558-59 (N.D. Tex. 2007)
(Fitzwater, J). WARA limits the Federal Agencies powers under title 49 to the extent that the
exercise of those powers would be inconsistent with WARA or the Five-Party Agreement. This
Court noted that the language in 5(d)(1) of WARA was a directive to the Federal Aviation
Administrator not to frustrate performance of the [Five-Party Agreement]. Id. at 559.
This
Court continued that WARA refers without qualification to Dallas' obligation to act in
accordance with contractual rights and obligations existing as of the effective date of this Act
for certificated air carriers providing scheduled passenger service at Love Field on July 11,
2006. The contractual rights and obligations that existed as of the effective date of the
Reform Act are those included in the Contract. Id.
In Love Terminal Partners v. United States, 97 Fed. Cl. 355, 406 (2011), the Court of
Federal Claims held that Congress by incorporating [the Five-party Agreement] into WARA,
rendered the obligations set forth in the [Five-Party Agreement] matters of federal law; and
Congress reinforced its intention to incorporate the [Five-Party Agreement] into federal law by
ensuring that DOT and FAA policymaking does not affect any of the provisions contained
therein. Id. at 415. The court held that Congress simultaneously defined and limited the ability
of DOT and the FAA to regulate those matters encompassed in the [Five-Party Agreement] and
the DOT and the FAA are statutorily obligated to neither act in a manner that is inconsistent
with [the Five-Party Agreement] nor challenge the legality of [the Five-Party Agreement]. Id. at
415. The court added that WARA requires that Dallas manage Love Field in accordance with
the contractual rights and obligations existing for certified air carriers providing scheduled
Page 7
passenger service at Love Field on July 11, 2006. Id. at 411. Also see Id. at 416. The court
stated that WARAs provision mandate that Dallas abide by the terms in its leases with
American and Southwest that pertain to the sharing of preferential lease gates. Id. at 410.
Finally, the court held WARA explicitly authorizes Dallas to implement those portions of [the
Five-Party Agreement] that relate to preferential gate leases with American, Southwest, and
ExpressJet by ensuring that neither the FAA nor any other federal agency can interfere with
those contractual agreements. Id. at 410. Thus, federal law requires that the City address
accommodation requests subject to the signatory airlines rights as stated in the leases. WARA
statutorily directs the City to act in accordance with the rights and obligations of the signatory
airlines in the leases, and DOT and FAA lack authority to direct the City to act contrary to those
rights and obligations.
WARA, through its adoption of the Five-Party Agreement and the leases, was the
imperfect solution to resolve the conflicts between Love Field and DFW Airport and the major
airlines serving each. It was also an effort to address the concerns of the residents living near
Love Field by restricting the number of gates and hours of operation. WARA represented a
compromise in the truest sense of the word.
Southwest and American Airlines, Inc.
(American) gave up gates and Southwest effectively limited itself to Love Field. DFW and the
airlines operating there were allowed to operate another eight years without full competition
from Love Field. The signatory airlines agreed to continued restrictions at Love Field for the
eight years but part of the consideration was the right to operate as provided in the terms of the
leases both before and after the Wright Amendment restrictions expired.
In passing WARA, Congress recognized that competition between airlines located at
DFW Airport and Love Field was ultimately in the best interest of the flying public and agreed to
Page 8
the release of the Wright Amendment restrictions. Through WARA, Congress also recognized
that the usual standards for grant assurances, exclusive use, and competition plans imposed by
title 49 for other airports could not apply if the compromise was to succeed, particularly given
the unique limitations on the number of gates at Love Field. As part of the compromise by all
parties, Congress purposefully denied DOT and the FAA their usual enforcement powers.
Congress did not want any federal agency to muck up the compromise as reflected in WARA.
F. The DOT Letters
On December 17, 2014, DOTs General Counsel sent the Citys City Attorney the first
DOT letter (First Letter). (ECF No. 1 at 48-50).
It started by saying it was summarizing
DOTs prior telephone communications with the City regarding Deltas accommodation request
and an overall City access policy. (Id. at 48).
The First Letter stated DOT appreciated the
Citys understanding of its legal obligations under the competition plan and the grant assurances
as it related to accommodation requests and was pleased that the City was formalizing the
accommodation process. (Id.). The letter acknowledged that the City was seeking DOTs views
regarding competition plan requirements for addressing accommodations requests at Love Field
and the letter continued that the provided guidance was in light of the unique and constrained
circumstances at Love Field. (Id.). The letter stated that DOTs competition plan policy requires
airport proprietors to assist carriers seeking accommodation and if a voluntary agreement is not
reached, the City will accommodate the request to the extent possible based on the current or
already-announced, for sale services by the signatory airlines. (Id. at 49). The letter continued
that it was DOTs position that once an airline had been accommodated, it was entitled to
maintain an ongoing similar pattern of service even after the expiration of any agreement
between the accommodated and accommodating airlines.
(Id.).
The letter added that the

Page 9
accommodated airline should not be pushed out by the accommodating airline at a later date and
it was the Citys responsibility to continue the accommodation and ensure space is available
and allow the pattern of service to continue based on the available space on the snapshot date of
the original accommodation request. (Id.). The First Letter also stated that the accommodating
airline was limited to recovering only its pro-rata share of the subleased facilities plus a
reasonable allowance for administration that could not exceed 25%. (Id. at 50). The letter only
mentions WARA and the Five-Party Agreement once and only in the context that they
constrained operations at Love Field. (Id. at 48-49).
After receipt of the First DOT Letter, the City sought clarification from DOT including
clarification in light of the WARA provisions. Six months later on June 15, 2015, DOT sent a
second letter (Second Letter). (ECF No. 1 at 52-55).
The Second Letter acknowledged that the Citys request was in the context of Deltas
request for accommodation. (Id. at 52). It repeated that pursuant to the grant assurance and
competition plan statutes, the City had a legal obligation to reasonably accommodate airlines
seeking to provide service at Love Field. (Id.) It continued by stating that the First Letter
provided guidance to the City in assessing accommodation request from a new entrant such as
Delta or other carrier seeking expansion and determining the length of such anticipated
accommodation at Love Field. (Id.).
In response to the question whether the First Letter set
standards necessary for the City to comply with grant assurance, DOT stated the answer to that
question is yes. (Id.). It added, there is no doubt that these grant assurances govern the Citys
actions with respect to Deltas requests for accommodation. (Id. at 53). Again relying upon the
grant assurance statute and the competition plan statute as the basis for its conclusions, DOT
reiterated that the City is required to accommodate a requesting carrier unless Love Fields
Page 10
facilities are fully utilized at the time of the request, or the Signatory Airlines at the time of the
request are selling tickets for future flights fully-utilizing the facilities. (Id.).
It stated that a
signatory airlines planned future operations should not be considered unless the carrier was
selling tickets for the future flights and consideration of such plans would be inconsistent with
grant assurances and other authorities. (Id. at 53-53). It repeated that an accommodated carrier
must be allowed to continue a similar pattern of service. (Id. at 54). The letter concluded by
stating that the decision on Deltas request was the Citys responsibility but the City must make
this decision made in compliance with the grant assurances and [the Citys] other legal
obligations.
(Id. at 55).
The Letter contained no reference to WARA.
Neither letter
acknowledged the very unusual and unique nature of changes at Love Field because of the lifting
of the Wright Amendment restrictions.
After receipt of the Letters, the City advised DOT that the City understood that for the
City to be in compliance with title 49, it was required to accept the directions contained in the
Letters. (City Appx at 1-2, 5). The Federal Agencies never advised the City that the directions
in the Letter were not requirements necessary for compliance.
In filing this action, the City alleged that the Letters are contrary to WARA, the FiveParty Agreement, and the leases in at least five significant ways. First, the Federal Agencies
were directing the City to modify the terms of its leases without doing so on national basis.
Second, the Letters altered the meaning of term of new entrant to include any airline currently
operating at the airport and cover situations when currently operating airlines seeks to expand.
Third, the Letters directed the City to force a mandatory accommodation based on existing gate
usage based on a snapshot date and without any regard to the signatory airlines future plans.
Fourth, the Letters ordered that once a requesting airline was accommodated, the airline was
Page 11
entitled to a permanent accommodation and could operate the same pattern of service forever.
Finally, the Federal Agencies were acting beyond its jurisdiction and authority because
Congress, through WARA, had removed it. The City joined the Federal Agencies because they
had exceeded their authority and jurisdiction.
III.
Sovereign Immunity Was Waived
A. Waiver Under the Administrative Procedure Act

The Federal Agencies do not dispute that the Court has general subject matter jurisdiction
and do not dispute that even without their presence, the Court has jurisdiction. At a minimum,
there is federal question jurisdiction based upon WARA. 28 U.S.C. 1331. The Federal
Agencies contention is limited to arguing that the Court lacks jurisdiction over the Federal
Agencies because there has been no waiver of their sovereign immunity. (ECF No. 165-1 at 1722). Sovereign immunity has been waived.
The APA provides for waivers of the United States sovereign immunity for certain suits.
First, 5 U.S.C. 702 states:
A person suffering legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial
review thereof.
Second, it states:
An action in a court of the United States seeking relief other than money damages and
stating a claim that an agency or an officer or employee thereof acted or failed to act in an
official capacity or under color of legal authority shall not be dismissed nor relief therein
be denied on the ground that it is against the United States or that the United States is an
indispensable party.
5 U.S.C. 702. Section 702 waives immunity for two types of claims. The first waiver is for
claims under the general provisions of the APA and the second is for claims pursuant to a
statutory or non-statutory cause of action that arises completely apart from the general provisions
Page 12
of the APA. AlabamaCoushatta Tribe of Tex.,757 F.3d at 488; Inclusive Communities Project,
Inc. v. U.S. Dept of Treas., No. 3:14-CV-3013-D, 2015 WL 4629635, *3-4 (N.D. Tex. Aug. 4,
2015). The latter type waives sovereign immunity in equitable actions brought under 1331
seeking nonstatutory review of agency action. Sheehan v. Army & Air Force Exch. Serv., 619
F.2d 1132, 1139 (5th Cir.1980), revd on other grounds, 456 U.S. 728 (1982). For the first type
of waiver there must be final agency action, but for the second type of waiver there only needs
to be agency action as set forth by 5 U.S.C. 551(13). AlabamaCoushatta Tribe of Tex.,757
F.3d at 489. Finality is not required. Id. The Federal Agencies motion ignores nonstatutory
review and is wrong about statutory review.
B. Sovereign immunity was waived for nonstatutory review.
The Federal Agencies entire argument concerns whether there has been the first type of
waiver, a claim under the general provisions of the APA. (ECF No.165-1 at 11-17). In a
footnote, the Federal Agencies make the conclusory claim that judicial review is not sought
under the second type of waiver. (ECF No. 165-1 at 17, n. 8). However, elsewhere they admit
that the City sought declaratory relief that the DOT Letters violated the APA and WARA. (Id. at
15). The Citys complaint urged that even if the Letters and other actions did not constitute a
final agency action, they still violated WARA. (ECF No. 1 at 8, 9-10, 40 [ 13, 15, 112]). In
Claim I of its complaint, the City specifically referenced 5 U.S.C. 702, argued that the APA
confers a right of review, and that the Court should grant relief regardless of whether the action
was a final agency action because the Federal Agencies actions violated WARA. (Id. at 39-41
[ 107-112]). The City alleged a waiver of sovereign immunity outside the general provisions
of the APA and sought nonstatutory review of the Federal Agencies actions.

Page 13
The City does not seek money damages from the Federal Agencies, but only seeks
declaratory and injunctive relief. The first requirement for a waiver exists.
The Federal Agencies do not challenge that the DOT Letters constituted agency action
under 5 U.S.C. 551(13). Agency action is defined as the whole or part of an agency rule,
order, license, sanction, relief, or the equivalent or denial thereof, or failure to act. Id. The term
agency action is to be interpreted expansively, as it brings together previously defined terms
to assure the complete coverage of every form of agency power, proceeding, action or inaction.
Federal Trade Comm'n v. Standard Oil Co. of Cal., 449 U.S. 232, 238, n. 7 (1980) (quoting
S.Rep. No. 752, 79th Cong., 2d Sess. 255 (1946)). The APA defines a rule as an agency
statement of general or particular applicability and future effect designed to implement, interpret,
or prescribe law or policy or describing the organization, procedure, or practice requirements of
an agency and includes [various substantive agency functions] or practices bearing on any of the
foregoing. 5 U.S.C. 551(4). An order is the whole or a part of a final disposition ... of an
agency in a matter other than rule making.... 5 U.S.C. 551(6). Issuing a complaint is agency
action because it is a part of a final disposition. Id. Issuing interpretative letters is agency
action. Am. Land Title Assn v. Clarke, 743 F. Supp. 491, 49495 (W.D. Tex. 1989). DOTs
actions are agency actions under 5 U.S.C. 551(13). The second requirement for a waiver
exists. As noted, the Federal Authorities only complain that the actions were not final.
As for the final requirement, the City seeks relief that arises apart and outside of the
general provisions of the APA. The nonstatutory review is for those situations where a
partys suit is not brought under a statute that explicitly provides for review of agency action.
Boarhead Corp. v. Erickson, 923 F.2d 1011, 1017, n.11 (3rd Cir. 1991). In Jaffee v. U.S., 592

Page 14
F.2d 712 (3d Cir.), cert. denied, 441 U.S. 961 (1979), cited approvingly in AlabamaCoushatta
Tribe of Tex., the Jaffee court stated:
These suits are called nonstatutory because they are not brought under the statutes that
specially provide for review of agency action. See H.R. Rep. No.94-1656, 94th Cong., 2d
Sess. 5, Reprinted in (1976) U.S. Code Cong. & Admin. News, pp. 6121, 6125. In these
instances, judicial review is available, if at all, through actions involving matters which
arise under the Constitution, Laws, or treaties of the United States as provided in
section 1331(a) of title 28.
Id. at 718-19. See also Sheehan, 619 F.2d at 1139; Church of Scientology of Ca. v. Linberg, 529
F. Supp. 945, 968 (C.D. Ca. 1981); Michigan v. U.S. Army Corps of Engrs., 667 F.3d 765, 77475 (7th Cir. 2011). In Khodara Environmental, Inc. v. Burch, 245 F. Supp. 2d 695 (W.D. Pa.
2002), the plaintiff sought equitable relief against the FAA and others because of actions taken
pursuant Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C.
42121 (AIR21) regarding a landfill. AIR-21 is the same statute that requires certain
airports to submit competition plans. The court concluded that sovereign immunity was waived
and the procedural mandates of APA were inapplicable. Id. at 711-12.
The City brought this action because the Federal Agencies actions violate WARA.
WARA does not provide a vehicle for judicial review. WARA is not part of title 49 and is not
part of or within the administrative authority of the FAA under its governing regulations. See 14
C.F.R. 16.11. In passing DOT argues that the proper statute for seeking reviews is 49 U.S.C.
46110 (a). (ECF No. 165-1 at 17, n. 8). The plain language of section 46110(a) makes it
inapplicable to federal agency actions not carried out under the designated parts in title 49. See
Comm. to Stop Airport Expansion v. FAA, 320 F.3d 285, 288 (2nd. Cir. 2003) (finding a lack of
jurisdiction under earlier version of Section 46110 because the plain language this part
authorized judicial review of only those actions carried out under Part A, not Part B); see also

Page 15
City of Los Angeles v. FAA, 239 F.3d 1033, 1035 (9th Cir. 2001) (same). WARA does not
appear in title 49 of the U.S. Code and is not subject to section 46110(a).
Moreover, having the Federal Agencies review their own violation of congressional
mandates would defeat the purpose of WARA. Congress express intent was to prevent the
Federal Agencies from mak[ing] findings or determinations, issu[ing] orders or rules, or
tak[ing] any other actions inconsistent with or that challenge the legality of the Five-Party
Agreement. (ECF No. 21 at 15; WARA 5(d)(1)). The Federal Agencies do not dispute that the
directives in the Letters were determinations inconsistent with the Five Party Agreement.
In its motion to dismiss, the Federal Agencies do not reference the two published
opinions that specifically address WARA and the limitations imposed on the Federal Agencies.
(ECF No. 165-1). This Court and the Court of Federal Claims concluded that WARA was a
directive to the Federal Aviation Administrator not to frustrate performance of the [Five-Party
Agreement] and ensur[ed] that DOT and FAA policymaking does not affect any of the [the
Five Party Agreement] and limited the ability of DOT and the FAA to regulate those matters
encompassed in the [Five-Party Agreement] and
the DOT and the FAA are statutorily
obligated to neither act in a manner that is inconsistent with [the Five-Party Agreement] nor
challenge the legality of [the Five-Party Agreement] and ensur[ed] that neither the FAA nor
any other federal agency can interfere with [the Five-Party Agreement and the preferential gate
leases]. Love Terminal Partners, L.P., 527 F.Supp.2d at 559; Love Terminal Partners, 97 Fed.
Cl. at 410, 415.
Sovereign immunity has been waived pursuant to 5 U.S.C. 702s waiver for
nonstatutory review and a final agency action was not needed to confer jurisdiction.

Page 16
C. Sovereign immunity was waived for statutory review.

Sovereign immunity has also been waived under the other type of waiver found in 5
U.S.C. 702 because there has been a final agency action. The Federal Agencies argument
focuses on the alleged lack of finality as to a claimed City violation. (ECF No. 165-1 at 18-21).
But that is not the agency action at issue in the Citys original complaint. Rather, the agency
action is the rules and directives contained in the Letters and those rules and directives were
final, as evidenced by the way the FAA frames the issues in its Notice of Investigation.
Any review of the finality of agency action is evaluated pragmatically and with
flexibility. Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 150 (1967). Generally, two
conditions must be satisfied for agency action to be final. First, the action must mark the
consummation of the agency's decision making processit must not be of a merely tentative
or interlocutory nature and, second, the action must be one by which rights or obligations have
been determined, or from which legal consequences will flow. Bennett v. Spear, 520 U.S.
154, 177 (1997).
Generally, four factors are used to determine if an agency action is final: (1) whether the
challenged action was a definitive statement of the agency's position, (2) whether the action has
the status of law with penalties for noncompliance, (3) whether the impact on the plaintiff was
direct and immediate, and (4) whether the agency expected immediate compliance. Dunn
McCampbell Royalty Interest, Inc. v. Nat'l Park Serv., 112 F.3d 1283, 1288 (5th Cir. 1997)
(citing Abbott Lab., 387 U.S. at 149-53).
Other considerations include whether these
regulations purport to give an authoritative interpretation of a statutory provision that has a direct
effect on the day-to-day business; and whether the rule put the regulated party in a dilemma
that it was the very purpose of the Declaratory Judgment Act to ameliorate because the
Page 17
regulated party must either comply with very costly changes or risk prosecution.
Abbott
Laboratories, 387 U.S. at 1152.

Applying the factors to the Letters, the Letters constituted a definitive statement of the
Federal Agencies position. The Letters were not written by some subordinate but instead
written by DOTs general counsel.
Other than the DOTs Secretary, no other persons
statements could carry more weight as to the position of the agency. The Letters were written
specifically and definitively about Love Field and directed the City how it had to act to remain in
compliance with title 49. This was no general pronouncement of policy. Rather, it stated a very
narrow and focused set of rules that the City was being directed to follow. The new set of rules
had the status of law with penalties for noncompliance. The Notice of Investigation confirms the
Federal Agencies views that the Letters constituted the applicable law.
Indeed the notice highlights the hypocritical nature of the Federal Agencies arguments.
In the notice, it invites the City to resolve informally the matters addressed in the notice. (ECF
No. 150-1 at 33). But that has been tried many times with Federal Agencies involvement and
without success. And while claiming no final agency action, the notice states the FAA strongly
recommends accommodating Delta pending the FAAs investigation. (Id. at 23). The or else
is not even silent the threat to grants is overt. Without this Courts intervention, the City is
placed in the dilemma of compliance that would force the claimed deprivation of property rights
of signatory airlines and trigger litigation or face sanctions from the Federal Agencies.
The Letters themselves reflect the Federal Agencies message to the City that the
expressed positions were now the law. DOT unequivocally stated that compliance with the
positions in the Letters was necessary for compliance with title 49. (ECF No 1 at 52.) A failure
to comply with title 49 could result in a funding loss or forced refunds. 14 C.F.R. 16.109.
Page 18
The impact on the City was direct and immediate. The City could have accepted the
positions expressed in the Letters, acted accordingly, and immediately been sued by one or more
of the signatory airlines. DOT does not dispute the immediacy of the adverse consequences to
the City if it complied with its Letters. Nor do the Federal Agencies claim they would have
rushed to the Citys aid to defend the dictates in the Letter. Likewise, if the City declined to
follow the positions in making an accommodation, it would be subject to sanctions and
immediate litigation, either in a civil or administrative action, by the non-accommodated airline.
DOT does not dispute the immediacy of the adverse consequences to the City if it declined to
comply with Letters. Instead, it argues that the City could always assert the impact of WARA in
defense of the administrative proceeding that it initiated. (ECF No. 165-1 at 19) (DOT is open
to considering that argument.). The Supreme Court has rejected agency attempts to avoid
judicial review when announced rules have immediate and adverse impact.
In Abbott
Laboratories, the Court held:

To require them to challenge these regulations only as a defense to an action
brought by the Government might harm them severely and unnecessarily. Where
the legal issue presented is fit for judicial resolution, and where a regulation
requires an immediate and significant change in the plaintiffs' conduct of their
affairs with serious penalties attached to noncompliance, access to the courts
under the Administrative Procedure Act and the Declaratory Judgment Act must
be permitted, absent a statutory bar or some other unusual circumstances .
Id., 387 U.S. at 153). See also CibaGeigy Corp. v. EPA, 801 F.2d 430, 436 (D.C. Cir. 1986)
(Once the agency publicly articulates an unequivocal position ... and expects regulated entities
to alter their primary conduct to conform to that position, the agency has voluntarily relinquished
the benefit of postponed judicial review).
As to the final factor, the Federal Agencies expected immediate compliance. The Letters
were issued in relation with and directed to Deltas accommodation request. (ECF No. 1 at 48,
Page 19
52). At the time each letter was written, the temporary gate use accommodation agreements
were nearing their respective end dates. (See ECF No. 1 at 23 [ 58, 60, 76]). The Letters
urged the City to act in a reasonable and timely manner. (ECF No. 1 at 55). Now, part of
FAAs investigation is whether the Citys failure to act on the request violated title 49, even
though Delta continues to operate at Love Field without interruption and the City sought judicial
resolution. (ECF No. 150-1 at 32). In their motion, the Federal Agencies argue that the FAA
instituted its administrative proceedings against the City because it was faced with the Citys
continued refusal to make any decision on Deltas accommodation request. (ECF No. 165-1 at
15). Thus they have confirmed: (1) that the agencies expected immediate compliance; (2) that
the City was subject to direct and immediate impact if it followed the new rules, refused to
follow the new rules, or did neither and sought judicial review; and (3) the FAA is prepared to
sanction the City for seeking judicial review of facially-invalid directives while being threatened
with suit by its tenant airline if it obeys them. The Notice defies this Courts jurisdiction,
because it ignores that the Citys purported refusal occurred only in the course of seeking
declarative and injunctive relief here.2
Applying the factors to determining finality, the Letters were in fact the consummation of
the agencys decision making process. Likewise, the Letters did determine rights and had legal
consequences. Sovereign immunity was waived.
D. The Court has jurisdiction because DOT has acted outside of its statutory authority
and jurisdiction.
Even if the DOT Letters and the Federal Agencies other actions did not constitute a final
agency action, the Court still has jurisdiction because each agency has exercised authority
Indeed, the FAA threatens to punish the City for seeking the Courts help a situation that begs for invocation of
the Courts all writs powers, 28 U.S.C. 1651(a), in addition to other grounds for jurisdiction.

Page 20
outside the jurisdiction of the agency or otherwise acted in a manner that is clearly at odds with
the specific language of a statute. Leedom v. Kyne, 358 U.S. 184, 189 (1958); CocaCola Co. v.
Federal Trade Comm., 475 F.2d 299, 303 (5th Cir.1973), cert. denied 414 U.S. 877 (1973);
Central Hudson Gas & Elec. Corp. v. U.S. EPA, 587 F.2d 549, 555 (2d Cir. 1978). In Kyne, the
National Labor Relations Board acted in defiance of an express statutory prohibition. Since this
was an attempted exercise of power that had been specifically withheld, it was properly
enjoined by the district court. Kyne, 358 U.S. at 189. This Court cannot lightly infer that
Congress does not intend judicial protection of rights it confers against agency action taken in
excess of delegated powers. Id. at 190.
DOT and the FAA each have attempted to exercise authority that Congress specifically
and expressly withheld through WARA. Again, the only courts that have interpreted WARA
have concluded that the Congressional intent was to limit the Federal Agencies authority and
jurisdiction at Love Field. The Court has the jurisdiction to confer judicial protection against
agency action taken in excess of delegated powers.
E. The remaining claims are viable.
DOT argues that the other claims in the Citys complaint, Claims II IV, must be
dismissed because there is no jurisdiction for Claim I. As discussed above the Court has
jurisdiction over DOT and the FAA as to Claim I and the Court has jurisdiction as to Counts IIIV with or without the Federal Agencies.
V.
DOTs MOTION TO TRANSFER SHOULD BE DENIED
As alternative relief and relying on 49 U.S.C. 46110(a), the Federal Agencies ask the
Court to transfer this case to the D.C. Circuit. (ECF No. 165-1 at 23-25). They argue that 49
U.S.C. 46110(a) grants court of appeals exclusive jurisdiction over a Federal Agencies order
Page 21
issued under portions of title 49 and that whatever the Letters are, they were issued under title
49. (ECF No. 165-1 at 23-24). But that is precisely the point. WARA is not found in title 49.
The grant of jurisdiction provided in section 46110(a) does not include WARA. To the contrary,
Congress intentionally removed these issues from the Federal Agencies reach. Through its
Letters and now the Notice of Investigation, DOT and the FAA have attempted to exercise
authority and jurisdiction that Congress expressly denied them.
The Federal Agencies argue for a backdoor evasion of the statutory bar by claiming they
are acting through other powers by providing guidance as to grant assurances, exclusive use, and
competition plan requirements which are part of title 49 and therefore subject to section
46110(a). (ECF No. 165-1 at 23). Again they ignore WARA, which provides that any actions
taken by the parties to [the Five-Party Agreement] that are reasonably necessary to implement its
provisions, shall be deemed to comply in all respects with the parties obligations under title 49;
that the Federal Agencies may not make findings or determinations, issue orders or rules .. or
take any other actions that are inconsistent with the Five-Party Agreement; and that they do not
have the authority to require the City 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. (ECF No. 21 at 15-16;
WARA, 5(d)(1),(2); 5(e)(2)(B)(ii)).
Congress mandated that the City was deemed in
compliance with title 49 and the Federal Agencies had no authority to issue the DOT Letters or
to review of the Citys actions by following the usual procedures. WARA makes the usual
procedures inapplicable to Love Field. This Court, not the Federal Agencies, has the authority to
construe the Five Party Agreement, the airport leases, and WARA, just as did the Court of
Federal Claims and this Court in earlier litigation.
Page 22
The Federal Agencies misunderstand the Citys contention and allegation regarding
WARA by asserting that the City contends that the Federal Agencies acted pursuant to WARA.
As to Love Field, it is WARA that limits and defines the Federal Agencies authority. The
Federal Agencies have acted in defiance and disregard of WARA, not pursuant to WARA.
Moreover, the D.C. Circuit APA appeal will not resolve the underlying issues in this
case.
If the Federal Agencies prevail there, the court of appeals will simply dismiss.
If
Southwest prevails, not all of the conflicting claims and issues will be resolved and a court will
again be asked to construe the Love Field gate leases, the Five Party Agreement, and WARA.
This Court is the only forum that can grant complete and timely relief that will not
subject parties to conflicting obligations. Thus, for prudential reasons the Court should not
transfer. The Federal Agencies admit it seeks dismissal in the Court of Appeals because the
Letters were not final and not meant to be binding. The Federal Agencies are seeking to have a
live justiciable case that needs resolution transferred to a venue where they will try to have the
case and issues dismissed and left unresolved.
VII.
THE FEDERAL AGENCIES MOTION TO STAY SHOULD BE DENIED
The Federal Agencies argue that because they have launched their after-the-fact
investigation as to whether the City violated title 49 by in part filing this action, the Court should
defer and stay further proceedings so that the Federal Agencies can decide the issues through
their normal processes. The Federal Agencies insist that this Court should defer to them. This
represents the latest attempt by DOT and the FAA to usurp the Courts jurisdiction and evade the
constrictions placed on them by WARA.
The Federal Agencies argue the heart of the claims before the Court, whether federal law
requires accommodation of Delta, is the question being considered by the Federal Agencies.
Page 23
(ECF 165-1 at 26). The Federal Agencies contend that under the doctrine of primary jurisdiction
the Court should suspend or dismiss the pending matter because under the statutory regulatory
scheme, any enforcement will require resolution of issues which have been placed in the special
competence of the Federal Agencies. (Id. at 25-26). Again the Federal Agencies ignore
WARA. The statutory scheme, WARA, expressly removed enforcement from DOT and FAA
and ensur[ed] that neither the FAA nor any other federal agency can interfere with [the FiveParty Agreement and the preferential gate leases]. Love Terminal Partners, 97 Fed. Cl. at, 415.
Moreover, the Federal Agencies have no special competence, knowledge, or expertise as to
WARA.
The Federal Agencies next argue that the Court may find it more efficient and fairer to
issue a stay in favor the FAA proceeding. (ECF No. 165-1 at 27). The most efficient and fairest
decision is to find the Federal Agencies sovereign immunity was waived, find their actions are
subject to judicial review, stay the FAAs Notice of Investigation, and conduct one proceeding
with all parties and all issues joined. The decision by this Court will moot any possible issue
raised by the Notice of Investigation. Any outcome in a FAA proceeding will take years to
finalize and would leave unresolved the competing claims of the airlines at Love Field.
CONCLUSION AND PRAYER
WARA dispenses with all of the Federal Agencies arguments. Congress expressed its
intent that the Federal Agencies make no determinations, perform no investigation, and issue no
rules or orders contrary to the Five-Party Agreement. The Federal Agencies cannot backdoor
that prohibition by issuing orders, rules, and conducting investigations and then claim such
actions are subject to review according to FAAs usual procedures. The City requests that the

Page 24
Court deny in whole or alternatively in part the Federal Agencies motion to dismiss or transfer
and for stay. The City further moves for such further relief to the City as the Court finds just.
Respectfully submitted,
OFFICE OF THE CITY ATTORNEY
CITY OF DALLAS, TEXAS
WARREN M.S. ERNST
CITY ATTORNEY
By
s/ Peter B. Haskel
CHARLES ESTEE
PETER B. HASKEL
Executive Assistant City Attorney
peter.haskel@dallascityhall.com
7BN Dallas City Hall
1500 Marilla Street
Dallas, Texas 75201
Telephone 214/670-3519
Telecopier 214/670-0622
ATTORNEYS FOR PLAINTIFF,
CITY OF DALLAS
CERTIFICATE OF SERVICE
I hereby certify that on September 21, 2015, I electronically filed the foregoing document
with the Clerk of Court for the United States District Court for the Northern District of Texas
using the electronic case filing system of the Court. Service on all attorneys of record who are
Filing Users will be automatically accomplished through Notice of Electronic Filing.
s/ Peter B. Haskel

Page 25
Case 3:15-cv-02069-K Document 186-1 Filed 09/21/15

DALLAS DIVISION
CITY OF DALLAS,
Plaintiff,
v.
DELTA AIR LINES, INC., SOUTHWEST
AIRLINES CO., VIRGIN AMERICA
INC., AMERICAN AIRLINES,
INC., UNITED AIRLINES, INC., SEAPORT
AIRLINES, INC., UNITED STATES
DEPARTMENT OF TRANSPORTATION,
AND THE FEDERAL
AVIATION ADMINISTRATION,
Defendants.
Civil Action No. 3: 15-CV-02069-K
APPENDIX TO CITY OF DALLAS' RESPONSE TO UNITED STATES DEPARTMENT

OF TRANSPORTATION'S AND FEDERAL AVIATION ADMINISTRATION'S
MOTION TO DISMISS OR TRANSFER AND FOR A STAY
WARREN M.S. ERNST

Dallas City Attorney
CHARLES ESTEE
Assistant City Attorney
Texas Bar No. 17827020
PETER B. HASKEL
peter.haskel @dallascityhall.com
City Attorney's Office
1500 Marilla Street, Room 7B North
Dallas, Texas 75201
Telephone:
214-670-3519
Telecopier:
214-670-0622
Attorneys for Defendant City of Dallas
Appendix to City of Dallas' Response to DOT's Motion to Dismiss
City ofDallas v. Delta Air Lines, Inc., et aI., Civil Action No. 3: 15-CV-02069-K
Page 1
OFFICE OF THE CITY ATTORNEY
CITY OF DALLAS, TEXAS
By:
s/ Peter B. Haskel
CHARLES ESTEE
Assistant City Attorney
PETER B. HASKEL
7 BN Dallas City Hall
1500 Marilla Street
Dallas, Texas 75201
Telephone - 214/670-3519
Telecopier - 214/670-0622

City ofDallas v. Delta Air Lines, Inc., et aI., Civil Action No. 3: 15-CV-02069-K
Page 2
I certify that on September 21, 2015,1 electronically filed the foregoing document with
the clerk of court for the United States District court for the Northern District of Texas using the
electronic case filing system of the court. The electronic case filing system sent a "Notice of
Electronic Filing" to all counsel of record who have consented in writing to accept this Notice as
service of this document by electronic means.
sf Charles Estee
CHARLES ESTEE

City of Dallas v. Delta Air Lines, Inc., et at., Civil Action No. 3: 15-CV-02069-K
Page 3
TABLE OF CONTENTS
Tabs
Tab 1, City Email to DOT and others dated Feb. 26, 2015
Page
Tab 2, City Email to DOT dated Jan. 28,2015
.4
Tab 3, Authenticating Affidavit.
12

City ofDallas v. Delta Air Lines, Inc., et at., Civil Action No.3: l5-CV-02069-K
Page 4
TAB!
From: Haskel, Peter [mailto:peter.haskel@dallascityhall.com]
Sent: Thursday, February 26,20154:44 PM

To: Thomson, Kathryn (OST); Baraban, Cindy (OST); Homan, Todd (OST); Irvine, Peter (OST); Mitchell,
Jacqulyn (OST); Moss, Jonathan (OST); 'frank.sanmartin@faa.gov'; Fuller, Daphne <FAA>
Cc: Bill Stallings (william.stallings@usdoj.gov); Ernst, Warren; Estee, Charles; Sims, Robert; Duebner,
Mark; Peter Kirsch [*Delta] (pkirsch@kaplankirsch.com); Haskel, Peter
Subject: Love Field: City of Dallas positions & open questions on gate accommodation issues
Hello All,
I'm sure you are aware of the recent communications that the City has received from Delta
Airlines respecting two accommodation requests for gates and related facilities at Dallas Love
Field. As the City proceeds to address the matters that the correspondence raises, we wanted to
share with DOT and FAA the City's positions and questions on still-unresolved related issues,
and to request further DOT guidance:
The City assumes that absent an injunction or other court order, DOT is not suspending,
modifying, or retracting the guidance contained in Katheryn Thomson's letter dated
December 17, 2014, to Warren Ernst (the "DOT Letter"), unless and until DOT otherwise
informs the City in writing (which can include email), and the City will act accordingly.
The City concludes that each item of guidance contained in the DOT Letter was asserted
because DOT and FAA believes that each item asserted standards that are necessary for
the City to comply with the grant assurance agreements between DOT and the City, and
the City will act accordingly (subject of course to any valid court order or decision) unless (and
to the extent) that DOT or the FAA advises the City in writing that this was not a reason for one
or more such items.
The City proposes to use the following definitions if it mandates gate accommodation at Love
Field except to the extent that DOT or FAA mandates alternative formulations as necessary to
enforce grant assurance agreements:
Pattern ofservice. Over time, changes can occur in the pattern of service of a flight.
Those changes might be scheduled times of arrival or departure, changes in origin of
arriving flight or destination of departing flight, change in aircraft type (e.g., from a
narrowbody to a regional jet), change in days of week operated, and other factors. The
City of Dallas proposes to use three criteria in determining that a pattern of service has
changed. The City will find a changed pattern of service: (1) if the scheduled arrival time
or the scheduled departure time at a gate do not remain as stated in the accommodation
request; (2) if the origin airport of the arriving flight or the destination airport of the
departing flight changes; or (3) if the carrier changes (no sublease or assignment of gate
use to preserve accommodated status).
Accommodated. The City believes that the term "accommodated" means only that (1) a
carrier authorized by properly executed property management agreements uses gates and
related facilities of a leaseholder. However, it has been suggested that it may also include
(2) the fact of operating flights with a consistent pattern of service on another carrier's
CITY APPX 1
leasehold gates regardless of the legal or contractual basis upon which such flights have
been operating. The City believes that only the first, narrower, meaning is correct and
will use that unless DOT or FAA mandates the broader definition (or yet another
definition) on the grounds that the different definition is necessary to enforce grant
assurance agreements.
The City would appreciate learning of DOT's position on Kenneth Quinn statement on page 11
of his February 23, 2015, letter to Warren Ernst (copies noted to Kathryn Thomson and Todd
Homan at DOT) that "Southwest also ignores DOT's willingness to relax hard stand
requirements for DAL, allowing DAL carriers to further compress the minimum separation times
between flights to a level less than 30 minutes." Kindly advise if you wish to receive another
copy of that letter.
I'm informed by William Stallings, chief of the DO] Anti-Trust Division's Transportation,
Energy, and Agriculture Section, that DO] and DOT have been in direct communication on
DO]s view as to the protected status of Virgin America's gates at Love Field. It is our
understanding that this protection from mandatory gate accommodation is a reasonable period,
which DO] under the circumstances presented believes to be one year from when Virgin
American started flying from Love Field. We believe that this start date was October 14,
2014. Kindly tell the City in email or other writing if DOT or FAA has a different
understanding. As you see, I've copied Mr. Stallings on this message.
There are three matters that Peter Kirsch and I raised when we last met with DOT and FAA staff
on February 10, 2015, and that staff said you would discuss internally and respond to our
questions. We would appreciate that follow-up:
1. How to handle seasonal flight scheduling in the context of scheduling snapshot and lookahead dates for accommodation requests;
2. The permissible duration of look-ahead dates; and
3. The interplay between the DOT letter and the provisions of 5(e) of the Wright
Amendment Reform Act of 2006 - particularly subsection 5(e), which reads in pertinent
part:
(e) Limitation on Statutory Construction(1) IN GENERAL- Nothing in this Act shall be construed-
***
(E) to limit the authority of the Federal Aviation Administration or any other Federal
agency to enforce requirements of law and grant assurances (including subsections (a)(l),
(a)(4), and (s) of section 47107 of title 49, United States Code) 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.
CITY APPX 2
(2) FACILITIES- Paragraph (1)(E)-(A) shall only apply with respect to facilities that remain at Love Field after the city of
Dallas has reduced the number of gates at Love Field as required by subsection (a); and
(i) to construct additional gates beyond the 20 gates referred to in subsection (a); or
(highlighting added).
Finally, if there is a DO] attorney assigned to the Southwest Airlines litigation through whom
you would prefer we communicate on these issues, or whom you wish us to include on our
communications, please just identify them and provide telephone, e-mail and traditional mail
addresses for the DO] lawyer.
Of course, we're always happy to meet with you and other staff in person or over the phone is
you wish to discuss any of these issues (or other issues) further.
Best regards,
Pete Haskel
Dallas Exec. Ass't City Att'y
214-670-3038 Voice Direct
214-670-0622 FAX
CONFIDENTIALITY NOTICE: This communication is intended only for the use of the
individual or entity to which it is addressed and may contain information that is privileged,
confidential, and exempt from disclosure under applicable law. If you are not the intended
recipient of this information, you are notified that any use, dissemination, distribution, or
copying of the communication is strictly prohibited, and requested to reply hereto or notify
sender by other immediate means of the misdelivery.
CITY APPX3
TAB 2

From:
Date:
To:
Cc:
Bee:
Subject:
Attachments:
Haskel,
Peter<peter.haskel@da/lascityha/I.eom>
Wed Jan 28201516:22:44 CST
Cindy Baraban <cindy.baraban@dot.gov>
<cindy.baraban@doLgov>
Ernst, Warren
<warren.ernst@dallascityha/I.com>; Estee, Charles
<charles.estee@dallascityhall.com>; Sims, Robert
<robert.sims@dallascityhall.com>; Haskel, Peter
<peter.haske/@dallascityhall.com>; Peter Kirsch
</o=kkrlou=first administrative
groupfcn=recipients/cn=pkirsch>; Duebner, Mark
<mark.duebner@dallascityhall.com>
Blank
DAL" Executed consent to United-Southwest Sublease at Dallas Love Field
Pages 1-7 Consent less Exh A from 00586296.pdf
Hi Cindy, In case you're curious, here is the final version of the consent on which you commented a
week or so ago.
Regards,
Pete Haskel
Dallas Exec. Ass't City AU'y
214-670-3038 Voice Direct
214-670-0622 FAX
CONFIDENTIALITY NOTICE: This communication is intended only for the use of the individual or entity
to which it is addressed and may contain information that is privileged, confidential, and exempt from
disclosure under applicable law. If you are not the intended recipient of this information, you are notified
that any use, dissemination, distribution, or copying of the communication is strictly prohibited, and
requested to reply hereto or notify sender by other immediate means of the misdelivery.
CITY APPX4
CONSENT TO SUBLEASE
The City of Dallas, a Texas home-rule municipal corporation ("City"), hereby consents to
the Agreement of Sublease, attached hereto as Exhibit A (the "Sublease"), by and between
United Airlines, Inc., a Delaware corporation (fonnerly known as Continental Airlines, Inc.)
("Sublessor") and Southwest Airlines Co., a Texas corporation ("Sublessee"), (together, the
"Sublease Parties") concerning that certain Amended and Restated Lease of Tenninal Building
Premises (Airport Use and Lease Agreement), effective October 1, 2008, by and between the
City, as lessor, and Sublessor, as lessee, for the use of Love Field Airport ("Lease").
The City's consent to the Sublease is granted in consideration of the agreement of the
Sublease Parties to, and conditioned upon compliance with, each of the following tenns and
conditions:
1. The City's consent to the Sublease is not consent to any future sublease or assignment of all
or portions of premises under the Lease.
2. The City's consent to the Sublease does not release Sublessor or any other person or entity
from any of the obligations derived from the Lease.
3. The City's consent to the Sublease does not waive any of the City's other rights and
privileges pursuant to the Lease.
4. The Sublease is subordinated and subject to a certain "Gate Use License Agreement - Dallas
Love Field Airport (DAL)" between Sublessor and Delta Airlines, Inc., a Delaware
corporation ("Delta") dated as of January 6, 2015, concerning Love Field Airport, and a
certain First Amendment to Facilities Use License Agreement between United and Delta
entered into as of January 6,2015, concerning Love Field Airport (the two said instruments,
collectively the "Temporary Agreements"), but this Consent does not prevent the tennination
or consensual amendment or extension of any Temporary Agreement in accordance with the
tenns of such Temporary Agreement.
5. The Sublease Parties shall comply with the tenns of each Temporary Agreement to the extent
that such Sublease Party is bound by any Temporary Agreement, but this Consent does not
prevent the tennination or consensual amendment or extension of any Temporary Agreement
in accordance with the tenns of such Temporary Agreement.
6. a) The Sublease Parties and the City acknowledge that the provisions of the Lease are
subject to applicable federal law, regulations and federal grant agreements. The City
expressly reserves all its rights under the Lease and applicable law to issue decisions,
directives, or rules regarding the utilization and potential accommodation of other airlines on
the subleased gates. The Sublease Parties agree to comply with any decisions, directives, or
rules regarding the utilization and potential accommodation of other airlines on the subleased
gates issued by the City, but expressly reserve all their rights under the Lease and applicable
law to challenge the legality of any such decisions, directives, or rules issued by the City,
CONSENT TO SUBLEASE
Page 1
CITY APPX5
including seeking or obtaining any injunction or other order barring or limiting enforcement
during the pendency of any proceeding.
b) The Sublease Patiies acknowledge that the General Counsel of the U.S. Department of
Transportation ("DOT"), has sent a letter to the Dallas City Attorney dated December 17,
2014 (the "2014 Letter"), regarding a request for accommodation at Love Field by Delta.
The City is treating the 2014 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. The Sublease Parties strongly disagree
that the DOT has the authority to impose the terms of accommodation stated in the 2014
Letter. If the DOT or any other federal agency issues a final order subject to judicial review
consistent with the 2014 Letter, the Sublease Parties retain the right to challenge some or all
of those terms in a court or administrative proceeding, including seeking or obtaining any
injunction or other order barring or limiting enforcement during the pendency of any
proceeding. No such challenge shall constitute a failure of any condition or breach of any
tenn of this Consent.
c) If the City determines that it is required under federal law, regulations, federal grant
agreements or directives, including the interpretations thereof in the 2014 Letter
(collectively, the "Federal Directives") or the Lease, to mandate accommodation, or any
terms of accommodation, for the use of gates or ancillary facilities by another carrier, the
terms of any City-imposed gate accommodation shall comply with the Federal Directives and
the Lease. However, to the extent not inconsistent with any Federal Directive, the Lease or
any such judicial or administrative determination, order, or judgment, the City retains the
right to mandate or revise (including retroactively) the tenns of accommodation (including
but not limited to, requiring the accommodated carrier to pay market rates and adjusting the
period(s) of accommodation).
7. No Sublease Party may assign this Consent or any rights under this Consent, in whole or in
part, except with the prior written consent of the City and the other Sublease Party, and any
such attempted unauthorized assignment will be void and unenforceable. This Consent may
be amended, renewed, extended, or otherwise modified in written form only and must be
signed by both Sublease Parties and the City. This Consent will be governed by and
construed in accordance with the laws of the State of Texas without regard to choice of laws
principles. This Consent, together with its exhibit, constitutes the entire Consent with respect
to the subject matter hereof and supersedes any agreements or understandings, whether oral
or written, among the Sublease Parties or the City. All notices hereunder shall be in writing
and served personally by courier or overnight express delivery service with confirmed
receipt, in each case addressed to the Sublease Parties and the City at the addresses set forth
on the signature page to this Consent. This Consent may be executed in any number of
counterparts and by electronic signature of the Sublease Parties and the City, such execution
to be construed as an original for all purposes, and all of which together shall constitute one
and the same instrument, notwithstanding that one or more of the Sublease Parties or the City
may not be signatories to the original or the same counterpart.
CONSENT TO SUBLEASE
Page 2
CITY APPX6
8. The City and each of the Sublease Parties each hereby represent that the individual executing
this Consent on behalf of each such party has the legal authority to do so on its behalf and
each signatory represents that he or she has the authority to execute this Consent on behalf of
the party, except the Dallas City Attorney has authority only to approve this Consent as to
fonn.
[SIGNATURE PAGE FOLLOWS]
CONSENT TO SUBLEASE
Page 3
CITY APPX 7
This Consent is executed by the undersigned duly appointed representatives and effective as of
January~ 2015.
CITY OF DALLAS:
APPROVED AS TO FORM:
A.C. GONZALEZ
WARREN M.S. ERNST

CITY ATTORNEY
Mark Duebner
City of Dallas Director of Aviation
Dallas Love Field
8008 Cedar Springs Road, LB 16
Dallas, TX 75235-2852
Telephone: (214) 670-6080
Fax: (214) 670-6051
UNITED AIRLINES, INC.
By:
Kate Gebo, Vice President Corporate Real Estate

233 South Wacker Dr., HDQOU
Chicago, IL 60606
Telephone: (872) 825-8603
Fax: (872) 825-0300
SOUTHWEST AIRLINES CO.

By:
Bob Montgomery, Vice President Airport Affairs

2702 Love Field Dr.
HDQ-4PF
Dallas, TX 75235
Telephone: (214) 792-4365
Fax: (214) 792-4224
CONSENT TO SUBLEASE
Page 4
CITY APPX8
January _ _, 2015.
CITY OF DALLAS:
A.c. GONZALEZ
WARREN M.S. ERNST

CITY ATTORNEY

By:

Chicago, IL 60606
Telephone: (872) 825-8603
Fax: (872) 825-0300

By:
Bob Montgmnery, Vi e . esi

2702 Love Field Dr.
HDQ-4PF
Dallas, TX 75235
nt Airport Affairs
Telephone: (214) 792-4365

Fax: (214) 792-4224
CONSENT TO SUBLEASE
Page 4
CITY APPX 9
January _ _, 2015.
CITY OF DALLAS:
A.C. GONZALEZ
WARREN M.S. ERNST

CITY ATTORNEY

By:
~~

Chicago, IL 60606
Telephone: (872) 825-8603

Fax: (872) 825-0300

By:
Bob Montgomery, Vice President Airport Affairs

2702 Love Field Dr.
HDQ-4PF
Dallas, TX 75235
Telephone: (214) 792-4365
Fax: (214) 792-4224
CONSENT TO SUBLEASE
Page 4
CITY APPXI0
Exhibit A
DAL Sublease
CITY APPXll
TAB 3
AFFIDAVIT
THE STATE OF TEXAS

COUNTY OF DALLAS
BEFORE ME, the undersigned authority, a notary public in and for the State of Texas, on
this day appeared Charles Estee who is personally known to me, and who, after being duly sworn
according to law, upon oath deposed and said:
"My name is Charles Estee. I am an attorney licensed to practice law in the State
of Texas and before this COUlt. I am competent to testify, I have personal
knowledge of the matters stated herein, and they are true and correct. I have been
employed by the City of Dallas since 2000.
I am one of the attorneys representing the City of Dallas ("City") in the action
styled and numbered City of Dallas v. Delta Air Lines, Inc., et al., Civil Action
No. 3:15-CV-02069-K (N. D. Tex.). I have also been involved as one of the
attorneys representing the City of Dallas since the fall of 2014 relating the
accommodation issues at Love Field that lead up to the filing of action listed
above.
Attached hereto are true and correct copies of the following documents:
1. Email dated February 26, 2015 to Kathryn B. Thomson of the United States
Department of Transportation, General Counsel, and others by Peter B.

Haskel, the Executive Assistant Dallas City Attorney;
2. Email dated January 28, 2015 to Cindy Baraban of the United States
Department of Transportation, General Counsel Office, from Peter B. Haskel,
the Executive Assistant Dallas City Attorney.
I am one of the custodians of records for the Dallas City Attorney's Office and I
am familiar with the manner with which its records are created and maintained. It
was the regular course of business for the City's Attorney's Office for an
employee with knowledge of the act, event, or condition to make a record or to
transmit information thereof to be included in such record, and that such records
be made at or near the time, or reasonably soon thereafter. Attached as Tab 1 is a
true and correct copies of the City's records and the above referenced items.
AFFIDAVIT
Page 1 of2
CITY APPX12
Further, Affiant sayeth not."
CHARLES ESTEE
/) yr
SUBSCRIBED AND SWORN TO BEFORE ME, on this the 0<. J
day of September
2015.
<.
NOTARY PUBLIC IN AND FOR THE STATE
AFFIDAVIT
Page 2 of2
CITY APPX 13

DALLAS DIVISION
CITY OF DALLAS,
Plaintiff,
v.
AIRLINES CO., VIRGIN AMERICA INC.,
AMERICAN AIRLINES, INC., UNITED
AIRLINES, INC., SEAPORT AIRLINES,
INC., UNITED STATES DEPARTMENT
OF TRANSPORTATION, AND THE
FEDERAL AVIATION
ADMINISTRATION
CIVIL ACTION NO. 3:15-CV-02069-K
Defendants.
DELTA AIR LINES, INC.S RESPONSE TO DEFENDANTS U.S. DEPARTMENT OF
TRANSPORTATION AND FEDERAL AVIATION ADMINISTRATIONS
MOTION TO DISMISS OR TRANSFER AND FOR A STAY
This Court has the unique ability to stop irreparable harm to Love Field users and to
Delta Air Lines, Inc. (Delta) resulting from Southwest Airlines (Southwest) breach of
contract and tortious conduct because, without an order of this Court, Delta will be forced out of
and prohibited from competing at Love Field. Southwest will be left in a 90% monopoly
position at Love Field, a position obtained improperly. Therefore, while Delta does not object to
dismissal of the DOT and FAA as parties from the case, Delta does object to any dismissal or
stay of the proceedings before this Court in the absence of an order maintaining the status quo in
the interim.
Delta has a right to be accommodated at Love Field by the terms of the Love Field lease
agreements.
In addition to the terms themselves requiring accommodation, these lease
agreements incorporate by reference various provisions of federal law that give Delta the right to
long-term accommodation at Love Field. Among those are the AIP (Airport Improvement
Program) grant assurances and the PFC (Passenger Facility Charge) program assurances. Like
the other provisions of the lease agreements, these federal enactments require long-term
accommodation on terms that are both commercially reasonable and operationally feasible.
DOT and FAA correctly point out that the FAA is the federal agency charged with
determining whether the City of Dallas has violated its federal airport grant assurances by
allowing Southwest to monopolize Love Field. They also correctly note that the FAA has not
yet made any final determination as to whether this has occurred, and that when it does, the only
proper appeal from that determination will be to the U.S. Court of Appeals pursuant to 49 U.S.C.
46110. DOT the FAA are the federal agencies charged with administering these aviation laws
and regulations, and their interpretations of those laws and regulations are entitled to significant
deference.
However, DOT and FAA readily acknowledge that they have no authority to adjudicate
Deltas state-law claims. Only this Court can fashion a remedy for the breach of 4.06 of the
Love Field lease agreement by Southwest, United Airlines, and the City. Only this Court can act
to remedy Southwest and Uniteds tortious interference with Deltas right to accommodation
through a collusive and anti-competitive transaction designed to block Deltas access to the
airport, a transaction that benefitted each of Southwest and United hugely and improperly.
The federal issues and state issues are certainly related. A ruling from this Court that
Delta has a right to accommodation under the lease agreements would likely obviate the need for
the FAAs Part 16 proceeding. Similarly, a final determination by the FAA that the City has
violated its airport grant assurances by granting Southwest a monopoly at Love Field, once
affirmed on appeal, would certainly be relevant to the Courts ultimate determination of Delta's
state-law claims. However, if this matter is stayed without an order preserving the status quo,
competition will be irretrievably lost at Love Field and Delta will suffer irreparable harm when it
is forced out of the airport. The result will be an autopsy, when what is needed is a cure.
Accordingly, this Court should not stay these proceedings without first entering a
preliminary injunction preserving the status quo by allowing Delta to continue operating its
current schedule at Love Field until the FAAs Part 16 investigation (and any subsequent appeal)
has concluded. In any case, Deltas tort and contract claims should ultimately be decided by this
Article III Court.
DATED: September 20, 2015
/s/ Bill Dawson_____

William B. Dawson
SBN 05606300
Karl G. Nelson
SBN 14900425
Ashley E. Johnson
SBN 24067689
Russell H. Falconer
SBN 24069695
GIBSON, DUNN & CRUTCHER LLP
2100 McKinney Avenue, Suite 1100
Dallas, Texas 75201-6911
Telephone: (214) 698-3100
Facsimile: (214) 698-3400
wdawson@gibsondunn.com
knelson@gibsondunn.com
ajohnson@gibsondunn.com
rfalconer@gibsondunn.com
Kenneth P. Quinn
DC Bar No. 495423
Jennifer E. Trock
DC Bar No. 486098
PILLSBURY WINTHROP SHAW PITTMAN
1200 Seventeenth Street NW
Washington, DC 20036
3
(202) 663-8898
kenneth.quinn@pillsburylaw.com
ATTORNEYS FOR DELTA AIR LINES, INC.
I hereby certify that on the 20ths day of September, 2015, a true and correct copy of the
foregoing Response was served via the Courts CM/ECF System upon all counsel of record.
/s/ Russ Falconer
Russell H. Falconer

NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CITY OF DALLAS,
Plaintiff,
v.
AIRLINES CO., VIRGIN AMERICA INC.,
AMERICAN AIRLINES, INC., UNITED
AIRLINES, INC., SEAPORT AIRLINES,
INC., UNITED STATES DEPARTMENT OF

TRANSPORTATION, and THE FEDERAL
AVIATION ADMINISTRATION,
Defendants.
______________________________________________________________________________
SOUTHWEST AIRLINES CO.S RESPONSE IN OPPOSITION TO DEFENDANTS U.S.
DEPARTMENT OF TRANSPORTATION AND FEDERAL AVIATION
ADMINISTRATIONS MOTION TO DISMISS OR TRANSFER, AND FOR A STAY
______________________________________________________________________________
John T. Cox, III (tcox@lynnllp.com)
Kent D. Krabill (kkrabill@lynnllp.com)
Britta Erin Stanton (bstanton@lynnllp.com)
Stephen M. Cole (scole@lynnllp.com)
Christopher Patton (cpatton@lynnllp.com)
LYNN TILLOTSON PINKER & COX, LLP
2100 Ross Avenue, Suite 2700
Dallas, TX 75201
Telephone: 214.981.3830
Facsimile: 214.981.3839
ATTORNEYS FOR DEFENDANT
September 21, 2015
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
I.
INTRODUCTION .............................................................................................................. 1
II.
RELEVANT BACKGROUND .......................................................................................... 3
III.
IV.
A.
The Legal Framework ............................................................................................. 3
B.
The DOT Letters and the FAA Investigation ......................................................... 4
ARGUMENT ...................................................................................................................... 6
A.
Legal Standard ........................................................................................................ 6
B.
The Requested Stay Is Unnecessary To Promote Regulatory Uniformity

Because the DOT Has Already Made Its Positions Clear in the
DOT Letters ............................................................................................................ 7
C.
The Requested Stay is Unnecessary To Obtain The DOTs Expertise

Because the Central Issues Here Require Primarily Statutory and
Contractual Construction, Which This Court Is Fully Equipped To Do ................ 8
D.
The Pendency of the FAA Investigation Does Not Justify a Stay .......................... 9
E.
The Requested Stay Would Result in Continued Irreparable Harm to

Southwest and Unnecessary Delay ....................................................................... 10
CONCLUSION ................................................................................................................. 11
CERTIFICATE OF SERVICE ..................................................................................................... 12
TABLE OF AUTHORITIES
Cases
AT&T Commcns of Sw., Inc. v. City of Dallas,
8 F. Supp. 2d 582 (N.D. Tex. 1998) ........................................................................... 1, 7, 9
Baykeeper v. NL Indus., Inc.,
660 F.3d 686 (3d Cir. 2011)................................................................................................ 6
Brown v. MCI WorldCom Network Services, Inc.,
277 F.3d 1166 (9th Cir. 2002) ............................................................................................ 6
Colorado River Water Conservation Dist. v. U. S.,
424 U.S. 800 (1976) ............................................................................................................ 6
Columbia Gas Transmission Corp. v. Allied Chem. Corp.,
652 F.2d 503 (5th Cir. 1981) ........................................................................................ 2, 10
Elam v. Kansas City S. Ry. Co.,
635 F.3d 796, 811 (5th Cir. 2011) .................................................................................. 7, 8
Gulf States Util. Co. v. Ala. Power Co.,
824 F.2d 1465 (5th Cir. 1987) ............................................................................................ 9
Miss. Power & Light Co. v. United Gas Pipe Line,
532 F.2d 412 (5th Cir. 1976) ......................................................................................... 7, 10
Morsey v. Chevron USA, Inc.,
779 F. Supp. 150 (D. Kan. 1991) ...................................................................................... 10
Nader v. Allegheny Airlines, Inc.,
426 U.S. 290 (1976) ............................................................................................................ 8
Natl Commcns Assn, Inc. v. Am. Tel. & Tel. Co.,
46 F.3d 220 (2d Cir. 1995).................................................................................................. 7
New York State Thruway Auth. v. Level 3 Commcns, LLC,
734 F. Supp. 2d 257 (N.D.N.Y. 2010) ............................................................................ 1, 9
Sw. Bell Tel. Co. v. Fitch,
643 F. Supp. 2d 902 (S.D. Tex. 2009) ................................................................................ 9
United States v. Western Pac. R.R. Co.,
352 U.S. 59 (1956) .............................................................................................................. 6
ii
#4812-1809-3096
Wagner & Brown v. ANR Pipeline Co.,

837 F.2d 199, 201 (5th Cir. 1988) ............................................................................ 6, 7, 10
Wilson v. Valley Elec. Membership Corp.,
8 F.3d 311 (5th Cir. 1993) .................................................................................................. 6
Other Authorities
14 C.F.R. 16.207 ....................................................................................................................... 2, 11
Wright Amendment Reform Act of 2006 ................................................................................... 3, 8
iii
#4812-1809-3096
Defendant Southwest Airlines Co. (Southwest) hereby files this Opposition to

Defendants U.S. Department of Transportation (DOT) and Federal Aviation Administrations
(FAA) Motion to Dismiss or Transfer, and For a Stay (Docket No. 165) (the Motion). 1
I.
INTRODUCTION
The Court should exercise its discretion under the primary jurisdiction doctrine and deny
the DOTs request to stay this case in favor of the DOTs own administrative proceedings for the
following reasons. First, the DOT has already established its views on the issues in this lawsuit
through two pre-suit opinion letters on the specific topic of Deltas requested accommodation at
Love Field. Thus, because the [DOT] has already issued opinions which set out its position on
some of the issues raised in this case . . . it is not necessary to refer this case to the [DOT] to
obtain its views. AT&T Commcns of Sw., Inc. v. City of Dallas, 8 F. Supp. 2d 582, 590 (N.D.
Tex. 1998).
Second, a stay or transfer is not proper because the core questions in this case do not
require an agencys technical or scientific expertise to resolve, but instead primarily involve
statutory interpretation and contractual construction, which this Court is fully equipped to
handle.
Third, courts routinely refuse to defer adjudication under the primary jurisdiction doctrine
despite the pendency of related administrative proceedings, but especially where, as here, an
administrative proceeding is initiated in response to threatened or actual litigation. See New
York State Thruway Auth. v. Level 3 Commcns, LLC, 734 F. Supp. 2d 257, 269-70 (N.D.N.Y.
2010). The timing of the DOTs request that the Court stay this case is both suspect and
prejudicial. The FAAs Notice of Investigation was issued not only almost two months after this
1
Because, as the DOT explained in its Motion, the FAA is an operating administration within the DOT, for
simplicitys sake this memorandum will use DOT to refer to the entire department, including the FAA, unless
otherwise specifically noted.
1
#4812-1809-3096
lawsuit was filed, but after both the Court and the parties had already agreed on an expedited
discovery schedule in advance of the preliminary injunction hearing set for September 28 and 29,
2015. Even worse, the DOT proceeded to wait another month after issuing the Notice of
Investigation (and just two weeks before the preliminary injunction hearing) before even
requesting that this Court stay the proceedings under the primary jurisdiction doctrine. In the
meantime, all the parties (including the DOT) engaged in a flood of time-consuming and
expensive deposition and document discovery in preparation for the preliminary injunction
hearing. Thus, there is simply no justification for DOT to have waited until the eve of the
hearing before filing its motion.
Fourth, a primary jurisdiction referral and related stay of these judicial proceedings could
produce years of further delay and expense in what is already a lengthy, drawn-out process.
Columbia Gas Transmission Corp. v. Allied Chem. Corp., 652 F.2d 503, 520 (5th Cir. 1981).
Such a delay is particularly harmful here where, as discussed in Southwests briefing in support
of its request for a preliminary injunction, any delay in resolving this issue will continue to cause
Southwest irreparable harm and preclude Southwests full use of the two gates it rightfully
subleased from United.
Fifth, the DOTs threatened investigation would not provide Southwest with a suitable
forum in which to challenge the DOT positions which are contrary to Southwests Lease rights
and federal law. In an FAA Part 16 proceeding, only the airport operator/sponsor is a
respondent. Although an airline such as Southwest may be granted leave to intervene, this is
discretionary with FAA and can only occur if and when a hearing is scheduled. See 14 C.F.R.
16.207.
In addition, Part 16 proceedings can last years, and Southwest should not suffer
2
#4812-1809-3096
violation of its Lease rights and federal rights during the long pendency of such a proceeding in
which it has such a limited role.
For these reasons, and for the reasons discussed below, this Court should deny the DOTs
Motion.
II.
A.
RELEVANT BACKGROUND
The Legal Framework

The Court is no doubt familiar with the general history of Deltas request for
accommodation at Love Field as well as the statutory and contractual landscape governing this
dispute. (See generally Southwests Third Am. Crossclaim, Dkt No. 160.) For purposes of this
response, it will suffice to highlight several general points. First, separate and apart from the
federal grant assuranceswhich, as discussed below, form the sole basis of the FAA
Investigationthe lease between the City of Dallas (the City) and Southwest (the Lease)
unambiguously grants Southwest preferential use of the Love Field gates. This preferential
use right allows Southwest to fully utilize its leased gate space and gives Southwests flight
schedule priority over any use by any other carrier. Second, both the Five Party Agreement and
the Wright Amendment Reform Act of 2006 (WARA) prohibit the DOT from compelling the
City to force Southwest to accommodate Delta. Indeed, WARA contains a facial prohibition on
any action by the DOT that interferes with Southwests preferential use lease rights at Love Field
unless such modification or elimination is implemented on a nationwide basis. (WARA
5(e)(2)(B)(ii).) And, as discussed in Southwests previous briefs on this topic, compelling an
accommodation when Southwest is fully utilizing its gates modifies Southwests preferential
lease rights. Third, the vast majority of the claims at issue in this lawsuit consist of standard
state law claims that are far outside the bounds of the FAA administrative proceeding. For
3
#4812-1809-3096
example, Southwest has brought cross-claims against Delta for trespass and Delta has asserted
claims for tortious interference and breach of contract.
B.
The DOT Letters and the FAA Investigation

In connection with Deltas initial demand for accommodation at Love Field, the City
sought input from the DOT regarding the Citys obligations under federal law and the grant
assurances. On December 17, 2014, the DOT sent a letter to the City (the First DOT Letter)
advising the City as to its accommodation responsibilities. (See Dkt. No. 1, Ex. 1.) Remarkably,
and in contravention of longstanding DOT and FAA policies and Southwests Lease rights, as
well as decades of industry practice, the DOT noted that any mandatory accommodation made
by the City for a requesting carrier must be made on a permanent basis, so long as the
accommodated carrier continues its requested service. (See id.) Furthermore, the First DOT
Letter approved the use of a novel snapshot date to determine availability for accommodation.
(Id.) Despite the objectionable and unsupported statements in the First DOT Letter, the DOT
correctly reaffirmed that any accommodation decision was, first and foremost, within the Citys
discretion. (See id.) On June 15, 2015, the DOT sent the City a second letter (the Second DOT
Letter) (collectively, the DOT Letters), largely reiterating the positions the DOT took in the
First DOT Letter. (See Dkt. No. 1, Ex. 1.) The Second DOT Letter, however, once again made
clear that it is the Citys responsibility to decide how to act on Deltas requests and that
[u]ltimately . . . it is the City that must make a decision. (See id.) The DOT recently admitted
in a filing with this Court that those letters are nothing more than nonbinding agency guidance.
(Dkt. No. 134, at 2.)
The City filed its Complaint in this matter on June 17, 2015. (See Dkt No. 1.) Both
Delta and Southwest filed Counterclaims against the City, and Crossclaims against each other.
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(See, Dkt. Nos. 84, 133, 144, 160.) All three parties have moved for a preliminary injunction
relating to Deltas right to continue at Love Field following the expiration of its temporary
license, and the Court has set a hearing for those motions on September 28-29, 2015. (Dkt.
No. 68.) On August 6, 2015, this Court entered a scheduling order setting forth a schedule of
expedited discovery in advance of the September hearing. (Dkt. No. 77.) At no point did the
DOT object to the Courts setting of the preliminary injunction hearing or the expedited
discovery schedule.
On August 7, 2015, the DOT (through the FAA) issued a Notice of Investigation (the
FAA Notice) to the City of Dallas, initiating the FAAs investigation into the Citys failure to
accommodate Delta (the FAA Investigation).
(See Dkt. No. 134-1.)
The FAA Notice
specifically referred to the above-captioned litigation, but did not indicate or suggest that it
sought to stay the pending lawsuit. (See Dkt. No. 134-1, at 1.) In fact, at this Courts request,
the FAA specifically extended the deadline for the City to respond to the FAA Notice until
November 2, 2015well after the preliminary injunction hearing was set to occur. The FAA
Notice identified the topics of investigation narrowly, as relating solely to the federal grant
assurances. (Id. at 11-12.)
Over a month later (and just two weeks prior to the preliminary injunction hearing), on
September 14, 2015 the DOT filed its Motion suggesting, for the very first time, that the Court
should employ the primary jurisdiction doctrine to stay this litigation based on the existence of
the FAA Investigation. (See Dkt No. 165.) In the meantime, pursuant to the Courts expedited
discovery order, the parties have engaged in a flood of document and deposition discovery. Not
only that, but the DOT appeared at these depositions and filed motions related to the ongoing
expedited discovery.
Never once did the DOT suggest, prior to September 14, that the
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preliminary injunction hearing or this litigation should be stayed as a result of the FAA
Investigation.
III.
A.
ARGUMENT
Legal Standard
Primary jurisdiction is a form of abstention. See Baykeeper v. NL Indus., Inc., 660 F.3d
686, 691 (3d Cir. 2011) (discussing primary jurisdiction as a form of abstention). And like other
forms of abstention a stay under the primary jurisdiction doctrine is the exception, not the rule.
Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 313 (5th Cir. 1993) (citing Colorado River
Water Conservation Dist. v. U. S., 424 U.S. 800, 813 (1976)). This is so because primary
jurisdiction is at odds with the virtually unflagging obligation of the federal courts to exercise
the jurisdiction given them. Colorado River, 424 U.S. at 817.
The Supreme Court has made clear that [n]o fixed formula exists for applying the
doctrine of primary jurisdiction, and [i]n every case the question is whether the reasons for the
existence of the doctrine are present and whether the purposes it serves will be aided by its
application in the particular litigation. United States v. Western Pac. R.R. Co., 352 U.S. 59, 64
(1956). Indeed, the primary jurisdiction doctrine is a flexible doctrine to be applied at the
discretion of the district court. Wagner & Brown v. ANR Pipeline Co., 837 F.2d 199, 201 (5th
Cir. 1988). The doctrine does not require that all claims within an agencys purview be decided
by the agency. . . [n]or is it intended to secure expert advice for the courts from regulatory
agencies every time a court is presented with an issue conceivably within the agencys ambit.
Brown v. MCI WorldCom Network Services, Inc., 277 F.3d 1166, 1172 (9th Cir. 2002).
The Fifth Circuit has identified two factors to consider in determining whether a trial
court should exercise its discretion to stay a case pending a related administrative proceeding:
6
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when (a) it will promote even-handed treatment and uniformity in a highly regulated area, or
when sporadic action by federal courts would disrupt an agencys delicate regulatory scheme; or
(b) the agency possesses expertise in a specialized area with which the courts are relatively
unfamiliar. Elam v. Kansas City S. Ry. Co., 635 F.3d 796, 811 (5th Cir. 2011). In the context
of these two factors, however, the Fifth Circuit has admonished that application of the doctrine is
only warranted if the benefits of obtaining the agencys aid [outweigh] the need to resolve the
litigation expeditiously. Wagner, 837 F.2d at 201. This is because [a]gency decision-making
often takes a long time and imposes enormous costs on individuals, society, and the legal
system. Natl Commcns Assn, Inc. v. Am. Tel. & Tel. Co., 46 F.3d 220, 222-23 (2d Cir. 1995).
B.
The Requested Stay Is Unnecessary To Promote Regulatory Uniformity Because the

DOT Has Already Made Its Positions Clear in the DOT Letters
This Court should not stay this case or defer to the FAA Investigation because such a
deferral is unnecessary to promote even-handed treatment and uniformity in a highly regulated

area and because action by this court would certainly not disrupt an agencys delicate
regulatory scheme. Elam, 635 F.3d at 811. According to the Fifth Circuit, when the agencys
position is sufficiently clear . . . courts should be very reluctant to refer cases to the agency
under the primary jurisdiction doctrine. Miss. Power & Light Co. v. United Gas Pipe Line, 532
F.2d 412, 419 (5th Cir. 1976). Here, the DOT has already offered its (incorrect and now
admittedly non-binding) position on the accommodation issue in the DOT Letters. The DOTs
position is clear on the issue of Deltas request for accommodation at Love Field. Thus, because
the [DOT] has already issued opinions which set out its position on some of the issues raised in
this case . . . it is not necessary to refer this case to the [DOT] to obtain its views. AT&T
Commcns of Sw., Inc. v. City of Dallas, 8 F. Supp. 2d 582, 590 (N.D. Tex. 1998).
7
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Further, DOT wrongly insists that all claims in this lawsuit revolve around the question at
issue in the FAA Investigation, which is whether the Citys grant assurances and related federal
obligations require it to accommodate Delta. To the contrary, the issues in this case extend well
beyond a narrow construction of the grant assurances and, at their core, require the Court to
address questions of statutory construction and contractual interpretation, including the
application of WARA and the Five Party Agreement to the terms of the Lease. (See, e.g.,
Southwests Second Am. Ans. and Counterclaim, Dkt No. 84, 103-115.) Moreover, given the
fact that the parties have already accommodated Delta voluntarily to date, the central questions
in the lawsuit are simply the permanency of Deltas accommodation and whether there is now a
legal right to justify Deltas five (or thirteen) flights. Thus, deferral to the DOT is unnecessary
and will not aid in the promotion of regulatory uniformity.
C.
The Requested Stay is Unnecessary To Obtain The DOTs Expertise Because the
Central Issues Here Require Primarily Statutory and Contractual Construction,
Which This Court Is Fully Equipped To Do
A stay or transfer is unnecessary to obtain the DOTs specialized expertise as to the
central issues in this lawsuit. Elam, 635 F.3d at 811. This is not a case involving a highly
technical factual analysis addressing esoteric scientific matters in which referral to an agencys
expertise is helpful. Rather, the central issues in this lawsuit require primarily statutory and
contractual construction, which this Court is fully equipped to do. See, e.g., Nader v. Allegheny
Airlines, Inc., 426 U.S. 290, 305-06 (1976) (refusing to apply the primary jurisdiction doctrine
because the issue did not involve technical questions of fact uniquely within the expertise and
experience of an agency). Where, as here, the issues before a court can be resolved by using
the plain language of the [applicable law] and the ordinary rules of construction, the court should
adjudicate the case without referral to the agency. Sw. Bell Tel. Co. v. Fitch, 643 F. Supp. 2d
8
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902, 912-13 (S.D. Tex. 2009). As a result, this Court is as well equipped as the Agency to
conduct this statutory [and contractual] analysis required in this case. AT&T Commcns, 8 F.
Supp. 2d at 590.
D.
The Pendency of the FAA Investigation Does Not Justify a Stay

The FAA Investigation does not warrant a primary jurisdiction deferral or stay. Courts
routinely refuse to defer adjudication under the primary jurisdiction doctrine despite the
pendency of related administrative proceedings. See, e.g., Gulf States Util. Co. v. Ala. Power
Co., 824 F.2d 1465, 1473 (5th Cir. 1987) (affirming denial of primary jurisdiction motion despite
issuance of initial decision by agencys Administrative Law Judge on related issues). Moreover,
a pending petition for declaratory judgment is a suspect basis for referral when, like here, the
agency proceeding was initiated in response to the litigation. See New York State Thruway Auth.
v. Level 3 Commcns, LLC, 734 F. Supp. 2d 257, 269-70 (N.D.N.Y. 2010) (declining to grant
referral to the FCC where the defendant, in response to anticipated litigation, had filed a petition
for a declaratory judgment with the FCC in an effort to gain some conceived tactical
advantage).
Beyond this, the timing of the DOTs request that this Court stay this case is both suspect
and prejudicial. Even though the DOT has been aware of the accommodation issue since
October 2014 (if not earlier) when the DOT General Counsel convened a conference call among
affected parties and announced the agencys interest in the accommodation dispute, the DOT
nevertheless chose to wait until August 2015almost two months after this lawsuit had been
filedto assert its desire to investigate Deltas accommodation request at Love Field. And the
FAAs August 7 Notice of Investigation came after the Court and the parties had already agreed
on an expedited discovery schedule in advance of the preliminary injunction hearing set for
9
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September 28 and 29, 2015. In response to this Courts request, the DOT then agreed to delay
the Citys response to the Notice of Investigation until November 2, 2015i.e., after the
preliminary injunction hearing. The DOT then proceeded to wait yet another month, until
September 14during which time the parties engaged in significant expedited discovery to
prepare for the preliminary injunction hearingbefore requesting that this Court stay or transfer
the proceedings under the primary jurisdiction doctrine. The DOTs delay in asserting this
defense suggests that it is nothing more than litigation gamesmanship, which this Court should
not permit. See, e.g., Morsey v. Chevron USA, Inc., 779 F. Supp. 150, 153 (D. Kan. 1991)
(stating that [c]ourts may weigh the timeliness of the assertion of the defense in making their
discretionary decision to invoke the primary jurisdiction doctrine).
E.
The Requested Stay Would Result in Continued Irreparable Harm to Southwest

and Unnecessary Delay
A primary jurisdiction referral and related stay of these judicial proceedings is highly
likely to produce years of further delay and expense in what is already a lengthy, drawn-out
process. See Columbia Gas Transmission Corp. v. Allied Chem. Corp., 652 F.2d 503, 520 (5th
Cir. 1981). Such a delay is particularly harmful here where, as discussed in Southwests briefing
in support of its request for a preliminary injunction, delay in resolving this issue will cause
Southwest irreparable harm. (See generally Dkt No. 11.) The added expense and delay that
would result if Southwest were forced to wait until the FAA Investigation is resolved (including
all associated appeals) prior to continuing with this lawsuit weighs heavily against invocation of
the primary jurisdiction doctrine, especially when compared with the lack of benefit, discussed
above, that the DOTs expertise would provide on the subject. See Miss. Power & Light Co.,
532 F.2d at 419. Accordingly, in this case, the benefits of obtaining the agencys aid do not
outweigh the need to resolve the litigation expeditiously. Wagner & Brown, 837 F.2d at 201.
10
#4812-1809-3096
In addition, as noted above, Southwest cannot be a respondent in an FAA Part 16

proceeding arising out of the Notice. Rather, its ability to participate would be limited to
intervenor status, and then only at the FAAs discretion, and not unless and until FAA holds a
hearing in the Part 16 case. See 14 C.F.R. 16.207. Such a hearing, if it occurs at all, may not be
for several months or even years to come, and Southwest would be irreparably injured if it were
required to accommodate Deltas flights in violation of Southwests Lease rights and federal
protections during that lengthy process.
IV.
CONCLUSION
For the foregoing reasons, Southwest respectfully requests that the Court deny
Defendants U.S. Department of Transportation and Federal Aviation Administrations Motion to
Transfer and For a Stay.
DATED: September 21, 2015
Respectfully submitted
/s/ Christopher Patton

John T. Cox, III (tcox@lynnllp.com)
Kent D. Krabill (kkrabill@lynnllp.com)
Britta Erin Stanton (bstanton@lynnllp.com)
Stephen M. Cole (scole@lynnllp.com)
Christopher Patton (cpatton@lynnllp.com)
LYNN TILLOTSON PINKER & COX, LLP
2100 Ross Avenue, Suite 2700
Dallas, TX 75201
Telephone: 214.981.3830
Facsimile: 214.981.3839
ATTORNEYS FOR DEFENDANT
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#4812-1809-3096
The undersigned hereby certifies that on September 21, 2015, the foregoing document
was served on all counsel of record through the Courts ECF system.
/s/ Christopher Patton

Christopher Patton
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#4812-1809-3096

Dallas, Delta and Southwest Respond To Feds' Motion To Dismiss

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Dallas, Delta and Southwest Respond To Feds' Motion To Dismiss

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Case 3:15-cv-02069-K Document 186 Filed 09/21/15

Page 1 of 29 PageID 4986

IN THE UNITED STATES DISTRICT COURT

Civil Action No. 3:15-cv-02069-K

CITY OF DALLAS RESPONSE TO UNITED STATES DEPARTMENT OF

Case 3:15-cv-02069-K Document 186 Filed 09/21/15

Page 2 of 29 PageID 4987

The Federal Agencies Usual Authority........................................................................... 3

The Wright Amendment Reform Act of 2006 (WARA). ............................................. 4

The Five-Party Agreement ............................................................................................... 5

The Preferential Leases .................................................................................................... 5

The DOT Letters .............................................................................................................. 9

Sovereign Immunity Was Waived ..................................................................................... 12

Waiver Under the Administrative Procedure Act .......................................................... 12

Sovereign immunity was waived for nonstatutory review. ........................................ 13

Sovereign immunity was waived for statutory review. .................................................. 17

The remaining claims are viable. ................................................................................... 21

DOTs MOTION TO TRANSFER SHOULD BE DENIED ............................................ 21

THE FEDERAL AGENCIES MOTION TO STAY SHOULD BE DENIED ................. 23

CONCLUSION AND PRAYER .................................................................................................. 24

Case 3:15-cv-02069-K Document 186 Filed 09/21/15

Page 3 of 29 PageID 4988

Case 3:15-cv-02069-K Document 186 Filed 09/21/15

Page 4 of 29 PageID 4989

Jaffee v. U.S., 592 F.2d

Case 3:15-cv-02069-K Document 186 Filed 09/21/15

Page 5 of 29 PageID 4990

IN THE UNITED STATES DISTRICT COURT

Civil Action No. 3:15-cv-02069-K

CITY OF DALLAS RESPONSE TO UNITED STATES DEPARTMENT OF

Pub. L. 109-352, 120 Stat. 2011 (2006).

CITY OF DALLAS RESPONSE TO DOTS MOTION TO DISMISS OR

Case 3:15-cv-02069-K Document 186 Filed 09/21/15

Page 6 of 29 PageID 4991

As evidenced by the Notice of Investigation, the Federal Agencies are still

Alternatively, they argue that this case should be

Case 3:15-cv-02069-K Document 186 Filed 09/21/15

Page 7 of 29 PageID 4992

A. The Federal Agencies Usual Authority

Case 3:15-cv-02069-K Document 186 Filed 09/21/15

Page 8 of 29 PageID 4993

Case 3:15-cv-02069-K Document 186 Filed 09/21/15

Page 9 of 29 PageID 4994

CITY OF DALLAS RESPONSE TO DOTS MOTION TO DISMISS OR

Case 3:15-cv-02069-K Document 186 Filed 09/21/15

Page 10 of 29 PageID 4995

Case 3:15-cv-02069-K Document 186 Filed 09/21/15

Page 11 of 29 PageID 4996

Case 3:15-cv-02069-K Document 186 Filed 09/21/15

Page 12 of 29 PageID 4997

Southwest and American Airlines, Inc.

Case 3:15-cv-02069-K Document 186 Filed 09/21/15

Page 13 of 29 PageID 4998

It started by saying it was summarizing

The First Letter stated DOT appreciated the

The letter added that the

CITY OF DALLAS RESPONSE TO DOTS MOTION TO DISMISS OR

Case 3:15-cv-02069-K Document 186 Filed 09/21/15

Page 14 of 29 PageID 4999

In response to the question whether the First Letter set

Case 3:15-cv-02069-K Document 186 Filed 09/21/15

Page 15 of 29 PageID 5000

The Letter contained no reference to WARA.

Case 3:15-cv-02069-K Document 186 Filed 09/21/15

Page 16 of 29 PageID 5001

Sovereign Immunity Was Waived