United States Court of Appeals, District of Columbia Circuit
February 12, 2016
Petition for Review of an Order of the United States
Department of Transportation
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.
Srinivasan Circuit Judge.
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.
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.
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).
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
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 ...