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Southwest Airlines Co. v. United States Department of Transportation

United States Court of Appeals, District of Columbia Circuit

August 9, 2016

Southwest Airlines Co., Petitioner
v.
United States Department of Transportation, Respondent Delta Air Lines, Inc., Intervenor

          Argued February 12, 2016

         On Petition for Review of an Order of the United States Department of Transportation

          M. Roy Goldberg argued the cause for petitioner. With him on the briefs was Robert W. Kneisley.

          Benjamin M. Shultz, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Michael S. Raab, Attorney, Paul M. Geier, Assistant General Counsel for Litigation, U.S. Department of Transportation, Peter J. Plocki, Deputy Assistant General Counsel for Litigation, and Charles E. Enloe, Trial Attorney.

          Jeffrey M. Harris argued the cause for intervenor. With him on the brief were Paul D. Clement, Edmund G. LaCour, Jr., Kenneth P. Quinn, and Jennifer Trock.

          Before: Srinivasan and Wilkins, Circuit Judges, and Ginsburg, Senior Circuit Judge.

          OPINION

          Srinivasan Circuit Judge.

         Southwest Airlines seeks our review of a letter from the Department of Transportation (DOT) to the City of Dallas addressing competition policies for airlines operating at Love Field airport. According to Southwest, the views expressed by DOT in the letter are substantively incorrect and procedurally improper. We dismiss Southwest's petition for review because we find DOT's letter does not constitute a final agency action, a prerequisite to our review. In particular, the letter does not reflect the consummation of DOT's decisionmaking on the issues it discusses. DOT in fact has instituted an administrative proceeding (which remains ongoing) that will address and resolve, among other things, the precise issues and policies broached in the letter. Because we conclude that the challenged letter is not a final agency action, we dismiss Southwest's challenge.

         I.

         A.

         Southwest Airlines, Love Field, and the City of Dallas have a long and somewhat complicated history. Love Field served as Dallas's municipal airport starting in the 1920s. The City of Fort Worth (located about thirty miles away) operated its own municipal airports.

         In 1964, federal regulators required the two cities to designate a single airport to service the Dallas-Fort Worth metropolitan area, leading to the construction of the Dallas/Fort Worth International Airport (DFW). In order to ensure that all commercial air traffic would be routed through DFW instead of the municipal airports, all interstate commercial carriers agreed to transfer their service to DFW. Southwest refused to move. In 1973, a federal court ruled that Southwest must be allowed to operate from Love Field as an intrastate commuter airline. City of Dallas v. Southwest Airlines Co., 371 F.Supp. 1015 (N.D. Tex. 1973), aff'd, 494 F.2d 773 (5th Cir. 1974).

         A few years later, federal regulators allowed Southwest to begin interstate service to New Orleans from Love Field. Some Members of Congress raised concerns "that if Southwest were to operate on an unrestricted basis from Love Field (closer to Dallas than DFW) many travelers to and from Dallas would choose that option rather than using DFW, thus undermining the economic viability of DFW." Kansas v. United States, 16 F.3d 436, 438 (D.C. Cir. 1994). Congress responded by enacting the Wright Amendment, named for then-Texas Representative and Speaker of the House Jim Wright. The Wright Amendment confined interstate commercial air traffic from Love Field to Texas's four border states: Louisiana, Arkansas, Oklahoma, and New Mexico. Pub. L. No. 96-192 § 29, 94 Stat. 35, 48-49 (1980). (Congress later added Kansas, Alabama, and Mississippi to that list. Pub. L. No. 105-66 § 337(b), 111 Stat. 1425, 1447 (1997).)

         In July 2006, the Cities of Dallas and Fort Worth, the DFW Airport Board, American Airlines, and Southwest agreed to seek the repeal of the Wright Amendment in order to allow interstate service from Love Field to the rest of the country. The contract embodying their agreement became known as the "Five-Party Agreement." Later that year, Congress enacted the Wright Amendment Reform Act of 2006 (WARA), codifying many provisions of the Five-Party Agreement. Pub. L. No. 109-352, 120 Stat. 2011 (2006). The WARA ended all geographic limitations on flights from Love Field as of October 13, 2014, and limited the number ...


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