2 

Reform Act of 2006, Pub. L. 109-352, 120 Stat. 2011 (2006) (“WARA”) mandates that 

accommodation be governed exclusively by the Five Party Agreement and the Airport Use and 

Lease Agreements (the “Lease”) between the City of Dallas (the “City”) and the signatory 

airlines. The specific provisions of WARA displace the provisions of the Sponsor Assurances 

which would otherwise apply to accommodation and which would otherwise confer jurisdiction 

for this proceeding. 

Judge Kinkeade’s decision underscores that the arguments raised by Delta in its Invited 

Brief of Delta Air Lines, Inc. (filed Dec. 23, 2015) lack merit. To assure that the FAA has a 

complete record before it, the City submits this Reply to explain the effect of Judge Kinkeade’s 

ruling and to respond to Delta’s brief.1

The City fully understands that Judge Kinkeade’s order is only preliminary and that 

Southwest or other parties may contest the substance of the ruling. The City further recognizes 

that the Court has not yet addressed several key contract issues, such as whether any 

accommodation is permanent or subject to termination; how to determine the appropriate 

“snapshot date” (or other approach for when to assess capacity for accommodation); and how to 

define “unduly interferes.” Until those and other outstanding issues are resolved, the legal 

uncertainty that drove the City to seek declaratory relief continues to prevent the City from 

adopting a final accommodation policy. 

 

1

 By Order dated November 10, 2015, the FAA allowed the six air carriers operating, or 

recently operating, at Love Field to file briefs in response to the City of Dallas’s Response to the 

Notice of Investigation. On November 13, 2015, the City filed a Motion to File a Reply to the 

Non-Parties’ Briefs requesting leave to file a reply to any briefs that were filed by the air carriers. 

The FAA has not ruled on that motion. On December 23, 2015, Delta and Southwest filed briefs 

in response to the “Response of the City of Dallas to the Notice of Investigation and Motion to 

Dismiss the Notice of Investigation” (filed Nov. 23, 2015). No other entities filed briefs. 

Pursuant to its November 13, 2015 Motion, the City respectfully submits this Reply. This Reply 

focuses on the arguments made by Delta since the Southwest arguments do not raise any issues 

to which the City believes a response is needed. 
3 

ARGUMENT 

I. THIS DISPUTE IS NOT RIPE FOR FAA ADJUDICATION 

Judge Kinkeade’s decision demonstrates that the accommodation controversy is not ripe 

for FAA review. Delta has been continuously accommodated at Love Field since 2009 and 

continues be accommodated at its historic level of five daily flights. Delta will continue to be 

accommodated for at least the duration of the litigation and Judge Kinkeade will ultimately 

decide the details of the City’s accommodation obligations. If Delta ultimately prevails in the 

case, Delta will continue to be accommodated. Delta has not been denied accommodation and 

has a judicially enforceable right to continue operations at Love Field at least until resolution of 

the litigation unless Judge Kinkeade directs otherwise. The City is fully bound by Judge 

Kinkeade’s decision, as are all other parties to the litigation. Accordingly, any question that the 

City has improperly failed to accommodate Delta is premature until or unless Delta is no longer 

accommodated.2

 By issuing a preliminary injunction, the Court concluded that that scenario is 

unlikely. Even if Southwest ultimately prevails, or Delta loses its accommodation, that result 

will be pursuant to a federal court judgment from which Delta, the FAA, or any aggrieved party 

could appeal. There is no warrant for pursuing this issue in a Part 16 investigation when a 

federal court is addressing that precise issue in a case involving the same parties. 

 

2

 Delta attempts to articulate a theory of ripeness based on the notion that Delta has not 

been accommodated at all because Delta has not been permanently accommodated. Delta Br. at 

3-7 & 24-25. Although Delta accuses the City of playing a word game, it is Delta that is playing 

the games. Delta’s argument rests on its interpretation of the word “accommodation” to really 

mean “permanent accommodation pursuant to a decision by the City.” Semantics aside, it is 

obvious that Delta is being accommodated because it is currently operating at Love Field at the 

same level it has always operated. Moreover, Delta’s future accommodation will be determined 

by the Court and Delta’s proffered interpretation of “accommodation” in the District Court and is 

beyond the FAA’s jurisdiction to resolve in a Part 16 proceeding. 
4 

II. THE FAA LACKS JURISDICTION OVER THE CONTRACT ISSUES THAT 

CONTROL THE ACCOMMODATION DECISION 

In the Opinion, Judge Kinkeade ordered Southwest to continue to accommodate Delta’s 

five daily flights at Love Field pending final resolution of the litigation. The key to the Court’s 

decision was the finding that Delta had demonstrated a likelihood of success on the merits of its 

interpretation of Section 4.06(F) of the Lease that Southwest could accommodate Delta’s five 

daily flights without “unduly interfere[ing] with” Southwest’s schedule. Opinion at 24-30. 

Accordingly, Delta will remain accommodated at Love Field, at least until Judge Kinkeade 

issues a final decision in the case, just as it has been since 2009. 

The Court’s decision underscores that the fundamental issues in the controversy are 

controlled by the terms of the Lease and makes clear that the Gate Accommodation Clause 

defines the accommodation duties at Love Field and is sufficient to resolve the current 

accommodation controversy. 

That result is precisely what Congress contemplated when it enacted WARA, which 

incorporated the Gate Accommodation Clause into federal law. WARA defines the 

accommodation obligation by explicit reference to the Lease: “To accommodate new entrant air 

carriers, the city of Dallas shall honor the scarce resource provision of the existing Love Field 

leases.” WARA § 5(a). Congress explicitly prohibited the FAA from taking enforcement action 

that is inconsistent with the Five Party Agreement or that challenges the legality of any provision 

of that Agreement. WARA § 5(d)(1)(A). Congress directed that actions taken by the City to 

reasonably comply with the terms of the Gate Accommodation Clause (which is incorporated 

into the Five Party Agreement as well), be deemed to comply with all requirements of Title 49, 

which includes the Sponsor Assurances. WARA § 5(d)(2). Even though Section 5(e)(1)(E) of 

WARA preserves limited FAA enforcement authority regarding grant assurances, Section 
5 

5(e)(2)(B)(ii) expressly prohibits the FAA from enforcing grant assurances by requiring the City 

“to modify or eliminate preferential gate leases with air carriers in order to allocate gate capacity 

to new entrants . . . . .” except in limited circumstances not present here. 

The effect of those provisions is three-fold and demonstrates that Congress explicitly 

deprived the FAA of jurisdiction by making accommodation an issue of contract compliance, not 

grant compliance. First, the City’s accommodation obligations are limited to those set forth in 

the Gate Accommodation Clause. Second, Congress determined that the City’s implementation 

of the Lease complies with the Sponsor Assurances as a matter of law. Third, even if the Lease 

could in some manner be interpreted to be inconsistent with grant obligations, Congress removed 

the FAA’s authority to modify the Lease. 

By barring the FAA from changing the Lease, Congress reversed the ordinary rule in 

which a lease is subordinate to the Sponsor Assurances and made clear that compliance with the 

Lease is all that is necessary to address accommodation. There is no need for the FAA to review 

the Lease for compliance, as Delta argues (Delta Br. 20-21), because the Lease itself contains the 

City’s accommodation obligations. Nor does the FAA have the power under Compliance 

Handbook ¶ 9.8(a) to order accommodation regardless of the terms of the Lease, as Delta argues 

(Delta Br. at 13) because WARA expressly forecloses that approach. The only issue in any 

accommodation controversy is whether the parties to the Lease have complied with their 

contractual obligations; there are no additional sponsor obligations that apply. That is exactly 

how Judge Kinkeade analyzed the issue in finding that Delta should be accommodated for the 

duration of the litigation. Opinion at 20-30. 

To find that the FAA has jurisdiction here, as Delta argues, would not only run contrary 

to the plain terms of WARA, but would violate the basic rule of statutory construction that a 
6 

specific statute controls over a general statute. Fourco Glass Co. v. Transmirra Products Corp., 

353 U.S. 222, 228-29 (1957) (“Specific terms prevail over the general in the same or another 

statute which otherwise might be controlling.”). The Supreme Court has since reaffirmed the use 

of this canon describing it as “a warning against applying a general provision when doing so 

would undermine limitations created by a more specific provision.” Varity Corp. v. Howe, 516 

U.S. 489, 511 (1996). “That is particularly true where . . . ‘Congress has enacted a 

comprehensive scheme and has deliberately targeted specific problems with specific solutions.’” 

RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S.Ct. 2065, 2071 (2012) (quoting 

Varity Corp., 516 U.S. at 519 (Thomas, J., dissenting)). 

Here, WARA provides specific law with respect to how to apply the Sponsor Assurances 

obligations in light of the specific solution Congress enacted to address access and capacity 

issues at Love Field. WARA § 5. The specific provisions of WARA control over the general 

provisions of Section 47107 as a matter of law.3

 

III. THE CITY’S CONSENT TO SOUTHWEST’S SUBLEASE OF THE UNITED 

GATES DID NOT VIOLATE ASSURANCE 23 

Delta argues that the City’s consent to the Sublease of United Airlines, Inc.’s (“United”) 

two gates to Southwest created an exclusive right by effectively excluding Delta from using 

those gates. Delta Br. at 29. That argument is incorrect because the Sublease is fully subject to 

the Gate Accommodation Clause, and entering into the Sublease did not change the City’s ability 

to accommodate Delta or any other requesting carrier. City Response at 93-98. The City’s 

consent to the Sublease was explicitly subject to conditions to allow the City to enforce the Gate 

Accommodation Clause if so required by federal law. Id. at 41-42 & Ex. 9. 

 

3

 Delta’s argument that the Sponsor Assurances continue to apply because Lease § 14.09 

incorporates the Sponsor Assurances is entirely circular. Delta Br. at 22-23. The Lease cannot 

apply law that Congress declared not to apply and Delta cannot invoke the Lease to moot the 

Gate Accommodation Clause that Congress made enforceable as a matter of federal law. 
7 

Judge Kinkeade’s decision proves the point. Although the Court acknowledged 

Southwest’s Sublease of United’s two gates, Judge Kinkeade applied the Gate Accommodation 

Clause and found, at least preliminarily, that Southwest must accommodate Delta. Opinion at 

27-28. Clearly, the Sublease did not bar accommodation. That should be the end of the issue. 

IV. ISSUES RELATING TO THE COMPETITION PLAN ARE BEYOND THE 

FAA’S PART 16 JURISDICTION 

One issue on the merits raised in Delta’s Brief requires a separate response. Delta argues 

that Sponsor Assurance 1 allows the FAA to consider whether the City violated its Competition 

Plan obligations under 49 U.S.C. § 40117(k). Delta Br. at 7-10 & 27-28. Delta appears to 

recognize that 49 U.S.C. § 40117 is not one of the laws over which the FAA has jurisdiction 

under 14 C.F.R. § 16.1(a). Delta attempts to surmount that obstacle by arguing that Sponsor 

Assurance 1, which requires airport sponsors to comply with certain federal laws, creates the 

jurisdictional hook for the FAA to consider issues under 49 U.S.C. § 40117(k) in a Part 16 

proceeding. Id. Delta is wrong. 

First, Assurance 1 incorporates only other federal laws that “relate to the application, 

acceptance and use of federal funds for this project.” Section 40117(k) is not such a law, since it 

applies to the PFC program which does not involve the acceptance or use of federal funds. 

Accordingly, Assurance 1 does not incorporate Section 40117(k). See Boca Airport, Inc. v. Boca 

Raton Airport Authority, FAA Docket No. 16-04-02, Final Decision and Order at 11-12 (Nov. 

29, 2004) (noting limited scope of Assurance 1 and finding no jurisdiction over certain criminal 

statutes not listed in Section 16.1(a)). 

Second, 14 C.F.R. § 16.1(b) makes clear that Assurance 1 does not give the FAA 

jurisdiction over alleged violations of laws not cited in 14 C.F.R. § 16.1(a) when those laws have 

a separate enforcement process by requiring complainants to follow those separate procedures. 
8 

49 U.S.C. § 40117(1)(k) is part of the PFC program which has a separate enforcement procedure. 

49 U.S.C. § 40117(1)(h) and 14 C.F.R. §§ 158.81-.85. Delta’s concerns about compliance with 

the City’s Competition Plan are beyond the FAA’s jurisdiction in this proceeding. 

Finally, Delta does not raise an issue that merits investigation. Delta’s theory rests on the 

notion that Southwest’s Asset Transfer Agreement with United regarding compensation for the 

Sublease violates the Competition Plan because the Competition Plan notes that the City’s policy 

is to limit payments under a sublease.4

 Delta Br. at 7-9. But, as Delta admits, the Asset Transfer 

Agreement is separate from the Sublease and the City did not approve, or even know about, the 

Asset Transfer Agreement. Delta Br. at 28; City Response at 96. The City could not have 

violated the Competition Plan because it did nothing improper. In any event, neither the 

Sublease, nor the fact that Southwest paid for it, has in fact impaired Delta’s ability to secure 

accommodation now or in the future. Competition has not been impaired and Delta has simply 

failed to articulate a viable issue under the Competition Plan. 

CONCLUSION 

For the foregoing reasons, and for the reasons set forth in the Response of the City of 

Dallas to the Notice of Investigation and Motion to Dismiss the Notice of Investigation, the City 

respectfully requests that the FAA dismiss the Notice of Investigation or, in the alternative, 

declare that the City is in full compliance with its obligations under Sponsor Assurances 22, 23, 

39, and 49 U.S.C. § 40103(e). 

 

4

 Delta’s argument smacks of sour grapes. It competed with Southwest for the sublease 

of United’s gates and was outbid. City Response at 90. Delta did not think that paying for the 

Sublease was impermissible when it tried to pay for the gates and now wants the FAA to give it 

the spoils of a competitive process that it lost. 


EXHIBIT 1
1 

IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

CITY OF DALLAS, § 

 § 

 Plaintiff, § 

 § 

v. § Civil Action No. 3:15-CV-2069-K 

 § 

DELTA AIRLINES, 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. § 

MEMORANDUM OPINION AND ORDER

The Court is asked by Plaintiff City of Dallas, Defendant Southwest Airlines 

Co., and Defendant Delta Air Lines, Inc. to grant a preliminary injunction, each party 

requesting different relief. The following motions are before the Court: (1) 

Defendant Southwest Airlines Co.’s Verified Application for Temporary Restraining 

Order, Preliminary Injunction, and Permanent Injunction Against Delta Air Lines, 

Inc. (Doc. 10); (2) Plaintiff City of Dallas’ Verified Cross-Motion for [Temporary 

Restraining Order] (Doc. No. 20); and (3) Defendant Delta Air Lines, Inc.’s 

Emergency Motion for a Temporary Restraining Order and a Preliminary Injunction 

Case 3:15-cv-02069-K Document 257 Filed 01/08/16 Page 1 of 42 PageID 7536
2 

Against Southwest Airlines Co. (Doc. No. 22). The Court held an evidentiary 

hearing (“injunction hearing”) on these pending motions for injunctive relief on 

September 28-30, 2015. The Court has carefully considered the motions, the 

responses, the replies, supporting appendices, pleadings, applicable law, and evidence 

offered at the injunction hearing. Because the equitable factors related to injunctive 

relief weigh heavily in favor of Delta and not Southwest, the Court hereby GRANTS

Delta’s motion for preliminary injunction and DENIES the motion for injunctive 

relief filed by Southwest. The City requests any one of several alternative forms of 

injunctive relief including the relief requested by Delta. Because the equitable factors 

also weigh in favor of the City, the Court GRANTS the City’s motion. 

I. Factual and Procedural Background 

History of Love Field and The Wright Amendment 

Love Field Airport (“Love Field”) was originally constructed as a United States 

Army airbase during World War I. Plaintiff City of Dallas (“City”) has owned and 

operated Love Field since 1928. In the 1960s, the federal government ordered the 

cities of Dallas and Ft. Worth to designate one airport from which federally regulated 

air carriers could serve both cities. The cities were unable to agree on the designation 

of either Love Field or the airport in Ft. Worth as the airport to serve both cities. But 

the cities did agree to construct a new airport, Dallas-Ft. Worth International Airport 

(“DFW Airport”), which ultimately opened in 1974. Every federally certified airline 

then operating at Love Field and the Ft. Worth airport agreed to relocate their 

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3 

operations to DFW Airport. At that time, Defendant Southwest Airlines Company 

(“Southwest”) flew only within the State of Texas, so it was not a federally certified 

air carrier. Although the other airlines left Love Field, Southwest continued its Texasonly flight operations from Love Field. 

With the enactment of the Airline Deregulation Act of 1978, Southwest 

announced plans to expand its Love Field flight operations to airports outside of 

Texas. In response to that announcement and in an effort to protect the 

development of DFW Airport, Congress passed the Wright Amendment in 1979; 

named for Jim Wright, a congressman from Ft. Worth who was later Speaker of the 

House. The Wright Amendment restricted interstate flights from Love Field to 

Louisiana, Arkansas, Oklahoma and New Mexico, the four states surrounding Texas. 

In several later amendments to the Wright Amendment, direct service from Love 

Field to Alabama, Kansas, Mississippi and Missouri was allowed. During this time of 

restricted flight operations, other air carriers moved in and out of Love Field, but 

Southwest remained. 

Reforming and Repealing the Wright Amendment 

At the suggestion of Congress in 2006, Dallas and Ft. Worth began working on a 

recommendation for a long-term solution to the Wright Amendment’s flight 

restrictions at Love Field. The result was an agreement entered into between the City 

of Dallas, the City of Ft. Worth, DFW Airport Board, Southwest, and Defendant 

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4 

American Airlines (“American”) on July 11, 2006 (“Five Party Agreement”). 

Important terms of the Five Party Agreement include the following: 

1. A reduction in the total number of gates at Love Field from 32 to 20. 

2. A prohibition of the subdivision of a gate in any form, including the use of 

hardstands which permit an airline to “ground load/unload” their 

passengers. 

3. The allocation of 16 “preferential use” gates to Southwest, two “preferential 

use” gates to American, and two “preferential use” gates to ExpressJet 

Airlines, Inc.. 

4. A limitation on flight operations to the hours of 6:00 a.m. to 11:00 p.m. 

5. A prohibition of international flights originating from Love Field. 

In addition to these terms, the Five Party Agreement refers to the possibility of a 

new entrant airline seeking space to operate at Love Field under the new gate 

limitations: 

To the extent a new entrant carrier seeks to enter Love Field, 

the City of Dallas will seek voluntary accommodation from its 

existing carriers to accommodate the new entrant service. If the 

existing carriers are not able or are not willing to accommodate the 

new entrant service, then the City of Dallas agrees to require the 

sharing of preferential lease gates, pursuant to Dallas’ existing lease 

agreements. 

The Five Party Agreement does not define the term “preferential use” even though it 

is used in that agreement. At the time of the Five Party Agreement, three airlines had 

Lease Agreements with the City to use Love Field gates and space. (These airlines 

with Lease Agreements are referred to herein as “Signatory Airlines”.) Unlike the 

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5 

Five Party Agreement, the Lease Agreement does define the term “preferential use” as 

meaning the Signatory Airline has primary, but not sole, use of the leased space. 

After the Five Party Agreement was formalized, the parties presented their 

agreement to Congress as the collaborative local effort for reforming and/or repealing 

the Wright Amendment. Several, though not all, provisions of the Five Party 

Agreement were ultimately incorporated into the Wright Amendment Reform Act 

(“WARA”), which officially repealed the Wright Amendment when it was adopted on 

October 13, 2006; but maintained the long-distance flight restrictions from Love 

Field for eight more years until October 2014. Just as in the Five Party Agreement, 

WARA addressed new entrant airlines needing space to operate at the now gate 

restricted Love Field, specifically providing that, “[t]o accommodate new entrant air 

carriers, the city of Dallas shall honor the scarce resource provision of the existing Love 

Field leases.” (Emphasis added.) The substantive provisions regulating flights in and 

out of Love Field were incorporated into WARA. The provisions of the Five Party 

Agreement which were not incorporated into and adopted by WARA are simply 

contractual obligations between the five parties that are independent of WARA, and 

do not include Delta. 

Post-WARA Changes 

Certain changes to the original preferential gate assignments have occurred since 

the Five Party Agreement was entered into and WARA was enacted. There were 

three airlines which entered into Lease Agreements with the City for “preferential 

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6 

use” of the 20 gates at Love Field—ExpressJet Airlines, Inc. (“ExpressJet”), American, 

and Southwest. In 2008, the ExpressJet gates were acquired by Continental Airlines, 

and then by Defendant United Airlines, Inc. (“United”) as part of its merger with 

Continental. With the merger, United became obligated as a successor to a Signatory 

Airline regarding all obligations under the Lease Agreement for those two gates. 

American is still a Signatory Airline, but in May 2014, Defendant Virgin America, 

Inc. (“Virgin”) subleased American’s two gates pursuant to a federal divestiture order 

related to the American and U.S. Airways merger which began in 2013 and was 

approved in 2014. This action effectively removed American Airlines from flying out 

of Love Field. (Southwest and Delta both sought those two American gates during 

the divestiture proceedings and both were rejected by the Department of Justice and 

the federal court.) Virgin then entered into a gate usage agreement with Defendant 

Seaport Airlines allowing it to operate two flights daily from Virgin’s two gates. 

Southwest continues to have a Lease Agreement with the City for preferential use of 

16 gates. 

Terms and Provisions of the Lease Agreement 

The terms of each Lease Agreement for gates between the City and the respective 

Signatory Airline are essentially identical, according to the City. The Signatory 

Airline has either exclusive use or preferential use of its leased space at Love Field, as 

described in the Lease Agreements. “Exclusive use” pertains to that leased space that 

the Signatory Airline has the sole right to use. “Preferential use”, on the other hand, 

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7 

applies to those leased spaces where the Signatory Airline is considered the primary, 

but not sole, user. Under each Lease Agreement, no Signatory Airline has exclusive 

use of any gate, only preferential use. There is exclusive use leased space at Love 

Field; but, there are no exclusive use gates at Love Field. 

Just as both the Five Party Agreement and WARA recognized the limitations 

created by the gate restrictions, each Lease Agreement addresses the possibility of 

Love Field facilities becoming a “scarce resource”. The Lease Agreement anticipates a 

new entrant air carrier (“Requesting Airline”) may seek to provide service at Love 

Field with the new gate restrictions. Recognizing the need for “open access and 

uniform treatment”, the Lease Agreement goes further and provides a procedure in 

Section 4.06F when accommodation is sought by a Requesting Airline. This 

procedure requires the Requesting Airline first exhaust all reasonable efforts to secure 

a voluntary arrangement for accommodations from each Signatory Airline. If the 

Requesting Airline’s attempt for voluntary accommodation fails, then the City’s 

Director of Aviation (“Director”) will notify each Signatory Airline that if a voluntary 

accommodation is not made within the 30-day time frame under each Lease 

Agreement, the Director will select one of the Signatory Airlines to fulfill the 

accommodation request. Notice will then be sent to the selected Signatory Airline 

which will have 10 days to comment on or dispute the Director’s choice. The 

Signatory Airline must accommodate the Requesting Airline unless the Director 

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8 

rescinds his selection. The accommodation procedure does not specify options or 

remedies the Requesting Airline might have if the Director rescinds his selection. 

Delta’s First Accommodation Request 

Beginning July 2009, Delta entered into a month-to-month sublease with 

American for partial use of its two gates, which allowed Delta to begin service from 

Love Field. Delta enjoyed uninterrupted service from Love Field under this monthto-month arrangement. But Delta’s service was placed in jeopardy when its monthto-month sublease with American was set to end on October 12, 2014, the effective 

date of American’s divesting sublease with Virgin for those two gates. Delta began 

contacting the Signatory Airlines, as well as Virgin, on June 13, 2014, to request 

voluntary accommodation for its five daily flights, but that effort was unsuccessful. 

In a letter dated July 16, 2014, Delta requested the City initiate the mandatory or 

forced accommodation procedure set forth in each Lease Agreement with the 

Signatory Airlines. Following Section 4.06F, Mr. Mark Duebner (“Mr. Duebner”), 

Director of the City’s Department of Aviation, notified the Signatory Airlines that 

unless Delta was accommodated within 30 days, Mr. Duebner would select one 

Signatory Airline to comply with the accommodation order. On September 18, 

2014, Delta informed Mr. Duebner in a letter that no accommodation had been 

made even though the 30-day deadline had passed. Delta emphasized the urgency of 

the situation with American terminating its agreement with Delta effective October 

12, 2014. Delta also reminded Mr. Duebner that “the Department of Aviation has 

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9 

previously assured us that we would be accommodated, and we are relying on that 

commitment.” With no sublease or voluntary or forced accommodation in place, 

Delta entered into temporary gate usage agreements with different air carriers at Love 

Field at various points in time to ensure continued service, all while reasserting its 

accommodation request to the City. 

During this time, United was operating only seven daily flights out of its two 

leased gates. On September 19, 2014, Mr. Duebner notified United in a letter that 

the City selected United to accommodate Delta on one of its gates. Mr. Duebner 

stated that the City’s decision was based on United’s actual gate usage at that time 

and he told United that the accommodation must be made within 30 days. The day 

before that notification, on September 18, 2014, United entered into a gate usage 

agreement with Southwest for its use of United’s two gates only for overflow purposes 

or irregular operations; United continued to operate its flights from both gates. 

On September 23, 2014, Mr. Bob Montgomery (“Mr. Montgomery”), Vice 

President of Airport Affairs for Southwest, sent a letter to Mr. Duebner disputing and 

disagreeing with the City’s decision to force United to accommodate Delta on these 

two gates Southwest had contracted to use for overflow or irregular operations. To 

bolster Southwest’s argument, Mr. Montgomery pointed to Southwest’s recent gate 

usage agreement with United, Southwest’s own desire and intent to “ramp up” its 

flight operations, and his interpretation of the Lease Agreement language providing 

only an accommodation process for requests, but not an actual requirement of the 

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10 

Signatory Airline to accommodate. The next day, September 24, 2015, Southwest 

CEO Mr. Gary Kelly emailed Mr. AC Gonzalez, City Manager, that Southwest was 

not happy with the City’s decision: 

It has come to my attention that once again, as recently as this 

week, [the City] has taken steps to frustrate and impede Southwest 

Airlines’ growth and success. Further, the [C]ity has acted in a 

manner that again puts us in adverse positions legally. 

The 43-year history of Southwest Airlines has been a constant 

struggle to overcome [sic] with the City of Dallas. 

If anyone from the City Manager’s Office or the Aviation Dept. 

had attended the program we hosted for Dallas leaders two weeks 

ago at our $100 million+ new training and operations center, they 

would have learned that Southwest, based on 2013 accumulated 

data: 

--generated over $4 billion in local economic activity 

--contributed $2 billion to the Dallas area GDP 

--aided in the creation of over 22,000 jobs 

--paid $1 billion in salaries, wages, and benefits to 8,000 Dallas 

area Employees 

--paid $42 million in taxes in the Dallas area 

--supported 428 local civic and charitable organizations with 

cash and/or free travel 

All of the above has been accomplished without financial 

incentives or tax abatements asked for or offered. In return, Dallas 

has, by choice—not necessity, elected to reward competitors that 

have contributed nothing to Dallas while denying Southwest the 

opportunity to grow from Dallas Love Field, the airport 

[Southwest] first saved from elimination by the [C]ity and then 

[Southwest] rebuilt at no cost to the city. 

We thought that after working so hard to resolve the historic 

dispute between Dallas and Ft. Worth over our airports and then 

investing so massively to reinvent Love Field that we were finally 

past these acrimonious hardships with our hometown. After 43 

years of this, we have ‘Dallas fatigue.’ We are moving on to focus 

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11 

our corporate investments in those markets that place a value on 

them and their corporate residents. 

On September 26, 2014, United sent a letter to the City objecting to the City’s 

requirement that United accommodate Delta. United stated both of the gates would 

be fully utilized as of October 13, 2014, pointing to United’s flight operations and 

the recent gate usage agreement with Southwest for overflow or irregular operations 

on those gates. United said that Delta could not be accommodated and asked the 

City to rescind its directive. On September 27, 2014, Southwest offered $120 

million cash consideration for the preferential use of both United gates at Love Field, 

which was accepted by United on September 29, 2014. The City acquiesced to 

Southwest’s demands on September 29, 2015, and decided to rescind the September 

19 accommodation order to be implemented by United. In a letter dated September 

29, 2014, the City notified Delta that it could no longer be accommodated on 

United’s gates because of United’s recently provided flight schedules which included 

the new gate usage agreement between Southwest and United. 

Delta’s Second Accommodation Request 

Section 4.06F provides no options or alternatives for a Requesting Airline in the 

case of the Director rescinding his selection. After the City rescinded its original 

September 19 accommodation directive to United, Delta made a second request for 

forced accommodation with the City. Delta sent Mr. Duebner a letter dated October 

2, 2015, asserting that the City had “obligations under Section 4.06 of the [Lease 

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12 

Agreement], the Five Party Agreement, the City’s recent promise to accommodate 

Delta, its commitment in its Airline Competition Plan filed with the [FAA]. . ., its 

Airport Improvement Program grant assurances, and Federal law” to act on Delta’s 

accommodation request and designate a Signatory Airline to share its gate space with 

Delta on a more permanent basis. The City began another accommodation process 

on December 1, 2014, and sent a letter to Virgin, United and Southwest stating that 

Delta’s accommodation request had triggered the formal accommodation process set 

out in Section 4.06F. The City stated that if none of the Signatory Airlines would 

voluntarily accommodate Delta, the City would choose one to accommodate Delta. 

None of the Signatory Airlines offered to voluntarily accommodate Delta in response 

to that letter. 

The City Asks DOT for Guidance on Accommodation Request 

On December 8 and 11, 2014, the City contacted Defendant Department of 

Transportation (“DOT”) by phone for help and guidance on how to handle air carrier 

access at Love Field, specifically as it related to Delta’s accommodation request. The 

DOT responded with a letter dated December 17, 2014, outlining what the DOT 

understood the City’s obligations to be regarding competition at Love Field. 

Specifically, the DOT stated that the City had legal obligations to accommodate 

Delta, which included the City’s obligations under the federal Competition Plan 

statute and also the grant assurances the City made in relation to grants under the 

Airport Improvement Program. The DOT emphasized the importance of 

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accommodating a requesting airline and ensuring competition at this “constrained” 

airport. As for the length of any accommodation, the DOT’s position was that an 

accommodated airline “is entitled to an ongoing similar pattern of service as long as 

the carrier continues to operate the accommodated flights.” 

Southwest’s Sublease of United’s Two Gates Takes Effect 

Although none of the Signatory Airlines agreed to voluntary accommodate Delta 

after Mr. Duebner’s December 1 letter, the City chose not to select any of the airlines 

to comply with the accommodation request, even though that accommodation is 

required under Section 4.06F2: “[T]he Director will notify all Signatory Airlines in 

writing that if Requesting Airline is not accommodated within thirty (30) days from 

the receipt of the notice, the Director will select one of the Signatory Airlines to comply 

with the request for accommodation in a non-discriminatory manner.” (Emphasis added.) 

Then on January 28, 2015, Southwest entered into a Sublease Agreement with 

United for Southwest’s preferential use of United’s two gates, which formalized the 

$120,000,000 deal agreed to on September 29. The United Lease Agreement with 

the City required the City to approve any sublease before that sublease could take 

effect. On January 28, the City consented to that Sublease Agreement between 

United and Southwest. 

The City Seeks DOT Guidance a Second Time 

Although the City refused to select a Signatory Airline to accommodate Delta, Mr. 

Peter Haskell, the Assistant City Attorney, emailed the DOT on February 26, 2015, 

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asking for further guidance on the City’s federal and legal obligations and also the 

proper duration for Delta’s requested accommodation. The DOT sent another letter 

to the City on June 15, 2015, again explaining the DOT’s interpretation of the City’s 

obligations. The DOT reiterated that the grant assurances and the Competition Plan 

statute both require the City to accommodate a requesting airline if a voluntary 

accommodation cannot be arranged. The DOT also stated that “the City is required 

to accommodate a requesting carrier unless Love Field’s facilities are fully-utilized at 

the time of the request, or the signatory carriers at the time of the request are selling 

tickets for future flights fully-utilizing the facilities.” The DOT specifically noted 

that the City should not consider a Signatory Airline’s unscheduled future expansion 

plans because it “may give a signatory carrier the ability to block a competitor’s 

accommodation request by deciding or asserting, after a request is made, that it will 

expand service.” Finally, the DOT restated its position on the length of 

accommodation, which is that “once accommodated at Love Field, ‘the 

accommodated carrier is entitled to an ongoing similar pattern of service as long as 

the carrier continues to operate the accommodated flights’ and that ‘the 

accommodated carrier should not be pushed out by incumbent carriers at a later 

date.’” The DOT concluded its response with a reminder that it is the City’s 

responsibility to decide how to act on Delta’s request. 

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City of Dallas Files This Lawsuit—“Tell Us What to Do!” 

Ultimately, none of the Signatory Airlines (meaning an airline having a Lease 

Agreement with the City for use of Love Field space and gates) or Virgin (having a 

Sublease Agreement with American) offered to voluntarily accommodate Delta and 

the City refused to force an accommodation choosing not to follow the guidance the 

City solicited from the DOT. Delta continued to operate flights from Love Field 

under a temporary gate usage agreement with United to use one of its preferential use 

gates for 180 days to operate Delta’s five daily flights; Southwest offered to honor the 

temporary 180 day gate usage agreement after the effective date of the Sublease 

Agreement. This temporary gate usage agreement was set to expire on July 6, 2015. 

As the expiration date loomed closer, Southwest rejected Delta’s requests to extend it. 

Continuing to press the accommodation request with the City, Delta told the City it 

would refuse to cease operations at Love Field on July 7, 2015, because it had a right 

to accommodation. In an attempt to avoid what it says would be potential chaos at 

Love Field beginning July 7, 2015, the City filed this lawsuit on June 17, 2015, 

seeking declaratory relief related to, among other things, its legal obligations and 

rights with respect to the Five Party Agreement, WARA, the Lease Agreements and 

federal regulations and laws affecting Love Field; essentially the City is asking this 

Court to “Please tell us what to do.” On June 19, 2015, Southwest filed the pending 

Verified Application for Temporary Restraining Order, Preliminary Injunction, and 

Permanent Injunction Against Delta. The City filed the pending Cross-Motion for 

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TRO [sic] on June 23, 2015. On the same date, Delta filed the pending Emergency 

Motion for a Temporary Restraining Order and a Preliminary Injunction Against 

Southwest. 

Taking into account the complexity of this case and the importance of this matter 

to the citizens of Dallas and the Metroplex, the Court urged the parties to come to a 

temporary agreement related to Delta’s gate usage at Love Field in order to allow the 

parties adequate time to brief the injunctive relief requests and responses, as well as 

allow the Court time to conduct a hearing. Southwest and Delta reached a 

temporary gate usage agreement whereby Southwest would permit Delta to continue 

operating its five flights daily until the Court rules on the pending motions for 

injunctive relief. The Court conducted a three-day hearing on the motions on 

September 28-30, 2015. 

II. Legal Standard 

 “’The purpose of a preliminary injunction is to preserve the status quo and thus 

prevent irreparable harm until the respective rights of the parties can be ascertained 

during a trial on the merits.’” Serna v. Tex. Dept. of State Health Services, Vital Statistics 

Unit, No. 1-15-CV-446-RP, 2015 WL 6118623, at 13 (W.D. Tex. Oct. 16, 2015) 

(quoting Exhibitors Poster Exch., Inc. v. Nat’l Screen Serv. Corp., 441 F.2d 560, 560 (5th 

Cir. 1971)). To be entitled to a preliminary injunction, the movant must satisfy each 

of the following equitable factors: (1) a substantial likelihood of success on the 

merits; (2) a substantial threat of irreparable injury; (3) the threatened injury to the 

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movant outweighs the threatened harm to the party sought to be enjoined; and (4) 

granting the injunctive relief will not disserve the public interest. Canal Auth. of State 

of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974); see also Tex. Med. Providers 

Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir. 2012) (quoting 

Bluefield Water Ass’n, Inc. v. City of Starkville, Miss., 577 F.3d 250, 252-53 (5th Cir. 

2009)). Because a preliminary injunction is an extraordinary remedy, it should not 

be granted unless the movant has “’clearly carried the burden of persuasion’ on all 

four requirements.” Bluefield Water, 577 F.3d at 253 (quoting Lake Charles Diesel, Inc. 

v. Gen. Motors Corp., 328 F.3d 192, 195-96 (5th Cir. 2003)). Failure to sufficiently 

establish any one of the four factors requires this Court to deny the movant’s request 

for a preliminary injunction. See Enter. Int’l, Inc. v. Corporacion Estatal Petrolera 

Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1985). Any factual findings and/or 

conclusions of law the Court makes herein are not binding at a trial on the merits. 

Jonibach Mgmt. Trust v. Wartburg Enterprises, Inc., 750 F.3d 486, 491 (5th Cir. 2014). 

III. Analysis 

At this juncture, the Court is only concerned with the need for immediate relief 

pending a trial on the merits. 

The City’s Request 

The City moves for injunctive relief in the form of the Court granting either the 

relief requested by Southwest, or alternatively, the relief requested by Delta, or 

further in the alternative, the Court limiting both Southwest’s and Delta’s flight 

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operations in order to prevent double-booking and limit interference with gate rights. 

The City takes no position on precisely what the injunctive relief should be. The 

City simply moves for some sort of injunctive relief, whatever the Court determines 

that to be, while the legal issues are decided. 

Delta’s Request 

Delta seeks injunctive relief against Southwest to “freez[e] the status quo . . . 

allowing Delta to continue operating its limited schedule of five daily flights . . . 

pending final resolution of this proceeding.” Delta specifically asks the Court to issue 

a preliminary injunction prohibiting Southwest from (1) evicting Delta from its 

gate(s) at Love Field, (2) expanding its flight operations at Love Field, or (3) any 

other action inconsistent with Delta’s right to long term accommodation. 

Southwest’s Request 

Southwest seeks injunctive relief against Delta to protect “Southwest’s property 

rights and to protect the rights of the flying public.” Specifically, Southwest seeks a 

preliminary injunction prohibiting Delta from trespassing on Southwest’s gates at 

Love Field after the expiration of the temporary gate usage agreement. 

A. Delta’s Motion for Preliminary Injunction 

1. Likelihood of Success on the Merits 

In establishing a “substantial likelihood of success”, the movant “is not 

required to prove [his] entitlement to summary judgment” for purposes of 

preliminary injunction. Byrum v. Landreth, 566 F.3d 442, 446 (5th Cir. 2009); see also 

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Janvey v. Alguire, 647 F.3d 585, 595-96 (5th Cir. 2011). The district court “look[s] to 

‘standards provided by the substantive law’” to determine likelihood of success on the 

merits. Janvey, 647 F.3d at 596 (quoting Roho, Inc. v. Marquis, 902 F.2d 356, 358 

(5th Cir. 1990)). 

 At the time Delta filed its motion, it had not yet filed an answer or any 

counter- and/or crossclaims. At the time of the injunction hearing, Delta had filed its 

amended cross-claims against Southwest seeking or asserting: (1) a declaratory 

judgment that the Sublease Agreement between United and Southwest violated the 

Lease Agreements; (2) a declaratory judgment that Delta is entitled to be 

accommodated; (3) a claim for breach of the Southwest Lease Agreement; and (4) a 

claim for tortious interference with the United Lease Agreement. The Court need 

only consider whether Delta has a likelihood of success on the merits of one of its 

claims. See Ramada Franchise Sys., Inc. v. Jacobcart, Inc., Civ. No. 3:01-CV-306-D, 

2001 WL 540213, at *1 (N.D. Tex. May 17, 2001)(Fitzwater, J.). 

 To establish a breach of contract claim under Texas law, the party must prove: 

(1) the existence of a valid contract; (2) that the [party] performed or tendered 

performance; (3) that the other party breached the contract; and (4) that the party 

was damaged as a result of the breach. Cordero v. Avon Products., Inc., No. 15-40563, 

2015 WL 6530721, at *2 (5th Cir. Oct. 29, 2015). A party must establish its privity 

to the contract or its status as a third-party beneficiary in order to sue for breach of 

contract. Maddox v. Vantage Energy, LLC, 361 S.W.3d 752, 756-57 (Tex.App.—Ft. 

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Worth 2012). Delta’s breach of contract claim is based on the Lease Agreement 

entered into by the City and Southwest. Because Delta is not a signatory to the 

Lease Agreement, the Court must determine as a threshold matter that Delta has 

standing as a third-party beneficiary to enforce the Lease Agreement. 

a. Is Delta a Third-Party Beneficiary? 

 Texas courts have traditionally “presumed that a party contracts only for its 

own benefit and have therefore maintained a presumption against third-party 

beneficiary agreements.” Id. at 757. Unless there is clear and unequivocal 

representation that the contracting parties intended to directly benefit a third-party, 

courts will not infer such intent in order to confer third-party beneficiary status. 

Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011). The contract does not need to 

specifically name the third-party, but it must adequately describe or designate the 

third-party. Maddox, 361 S.W.3d at 757. A third-party beneficiary is either a donee 

beneficiary or creditor beneficiary. Id. When the completed contracted performance 

comes to the party as a pure donation, that party is a donee beneficiary. Id. (citing 

MCI Telecomms. Corp. v. Tex. Util. Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999)). 

When the contracted performance satisfies a duty or legally enforceable commitment 

owed to the party by the promisee, the party is considered a creditor beneficiary. Id. 

A party is not a third-party beneficiary if it simply benefits incidentally from the 

contract. Maddox, 361 S.W.3d at 757. 

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Delta contends that a “new entrant airline” is an intended, contemplated, 

and/or third-party beneficiary of the Lease Agreement between the Signatory Airline 

and the City. Delta contends that its request for voluntary accommodation from 

Southwest, beginning in June 2014, satisfied Delta’s obligations as a “new entrant 

airline” or “Requesting Airline” under Section 4.06F. Delta, the City and Southwest 

disagree as to the exact definition of “new entrant airline”. The Five Party 

Agreement, WARA, and the Lease Agreement do not define “new entrant airline”. 

The Court must first define “new entrant airline” before it can address the third-party 

beneficiary analysis. 

i. “New Entrant Airline” Defined 

Delta defines “new entrant airline” as any airline that is not a Signatory Airline 

in a Lease Agreement with the City. Southwest defines “new entrant airline” as an 

airline that does not currently operate at Love Field. The City does not offer a 

definition, but instead asks the Court to define it. The Lease Agreement uses the 

term “new entrant airline” in Section 4.06F interchangeably with “Requesting 

Airline”, but the Lease Agreement does not define “new entrant airline”. The Lease 

Agreement does define “Requesting Airline” in Section 1.50, but the definition is 

limited, stating only that the term has the meaning given to it in Section 4.06F. The 

Lease Agreement provides in Section 4.06F: 

Airline and City agree that although most of the airline areas 

in the Terminal Building [at Love Field] are or will be leased to 

Signatory Airlines for their exclusive or preferential use, and 

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Terminal Building facilities [which includes gates] at the Airport 

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 as 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 

Airline[], taking into consideration all the circumstances of such an 

accommodation agreement. . . . To insure compliance with this 

obligation and to provide open access and uniform treatment for 

all airline tenants, the following [accommodation] procedure is 

established. . . . 

By signing the Lease Agreement which contains this language, all parties 

acknowledge the potential scarce resources at Love Field. The language is clear that 

the purpose of the accommodation procedure is to insure there would be open access 

for an airline requesting accommodation for gate space at Love Field in light of the 

gate limitations and overall constraints which the parties all recognized. The 

language discusses the potential scarcity of Love Field facilities because most “are or 

will be leased to Signatory Airline for their exclusive or preferential use”. Because of 

this, the Signatory Airline agrees to provide space to a new entrant airline seeking to 

provide service at Love Field. There is no language limiting the new entrant airline to 

one not currently operating at Love Field. The Lease Agreement language does not 

limit the parties’ accommodation obligation to an airline not currently operating at 

Love Field. Such a narrow construction of “new entrant airline” is unreasonable and 

too restrictive in light of the language of section 4.06F of the Lease Agreement. The 

Court agrees with Delta’s proposed definition of “new entrant”. Although the Lease 

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Agreement language is not artfully drafted, the Court finds “new entrant airline” to 

mean any airline that is not a Signatory Airline in a Lease Agreement with the City 

and an airline needing space at Love Field to provide service. 

ii. Is Delta Able to Bring Breach of Contract Claim as a “New 

Entrant Airline”? 

Having defined “new entrant airline”, the Court now turns to whether Delta, 

as a “new entrant airline”, can be a third-party beneficiary to the Lease Agreement 

and bring its breach of contract claim. The Court finds Delta is a creditor beneficiary 

because the duty owed to Delta is a contractual obligation or some other legally 

enforceable commitment under the Lease Agreement. See Stine v. Stewart, 80 S.W.3d 

586, 589 (Tex. 2002). Section 4.06F specifically provides that when an 

accommodation request is made, Southwest as the Signatory Airline agrees to 

accommodate the “Requesting Airline”, here Delta, at times that would not unduly 

interfere with Southwest’s schedule. This agreement by Southwest satisfies a duty or 

legally enforceable commitment owed to Delta once Delta made that accommodation 

request in compliance with section 4.06F. The Court finds the Lease Agreement is 

clear and unequivocal that the City and the Signatory Airlines intended to directly 

benefit a “new entrant airline” or “Requesting Airline”, in this case Delta, with this 

accommodation provision. See Tawes, 340 S.W.3d at 425. 

Delta would not simply benefit incidentally from the accommodation 

provision. See Stine, 80 S.W.3d at 589. The parties drafted an accommodation 

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procedure that would be triggered upon a request from a “new entrant airline” and 

this was incorporated into the Lease Agreement. The purpose of that procedure is 

explained in the Lease Agreement as providing a “new entrant airline” access to scarce 

space at Love Field. Obviously, the Lease Agreement does not specifically name 

Delta as a beneficiary, but it does adequately describe or designate Delta by use of 

the term “new entrant airline” or “Requesting Airline”. See Maddox, 361 S.W.3d at 

757. If the City and Southwest as parties to the Lease Agreement did not intend for 

a “new entrant airline” to have the right to enforce this section, there would be no 

other way for the accommodation procedure to work and no remedy for the “new 

entrant airline” should the City and/or Southwest not comply with their agreement. 

There is no reasonable interpretation of this accommodation provision other than 

that the “new entrant airline” is in fact the only intended beneficiary. Otherwise, this 

is superfluous language because no one benefits from this provision. The Court finds 

at this preliminary stage that Delta has standing to bring its breach of contract claim 

against Southwest as a third-party beneficiary. 

b. Did Southwest Breach the Lease Agreement? 

The Court now turns to Southwest’s alleged breach of the agreement. To 

establish a substantial likelihood of success on the merits of its breach of contract 

claim, Delta must to prove: (1) the existence of a valid contract; (2) that Delta 

performed or tendered performance; (3) that Southwest breached the contract; and 

(4) that Delta was damaged as a result of the breach. See Cordero, No. 15-40563, 

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2015 WL 6530721, at *2. There is no dispute that a contract, the Lease Agreement, 

exists and the Court has already determined Delta is a third-party beneficiary, so the 

first factor is established. As for Delta’s performance, the record establishes that 

Delta performed its obligation under the accommodation procedure in section 4.06F 

by contacting all Signatory Airlines and any airline subleasing gate space from a 

Signatory Airline beginning June 13, 2014, to try to secure voluntary 

accommodation. 

Section 4.06F provides that the Signatory Airline “agrees to accommodate such 

Requesting Airline at its Lease Premises at such times that will not unduly interfere 

with its operating schedule.” The Lease Agreement does not define “unduly interfere 

with”. The Court finds it very interesting that former Mayor Laura Miller testified 

about this exact phrase in the Lease Agreement at the Congressional subcommittee 

hearing on reforming the Wright Amendment Act. In response to a subcommittee 

member’s question about the meaning of the undefined and “vague” term “unduly 

interfere with”, Ms. Miller testified: 

Well it was crafted by the Dallas City Attorney’s Office and 

we understand, since it has never been tested, we have never had a 

conflict; that we should, if we are responsible, create a very clear policy 

using this as the template for how we are in real terms going to be executing 

this. This [term] gives us the authority to tell [a Signatory Airline], 

you have to make room. But I think that like other airports like 

you cited that have this issue of capacity, we need to have a very clear 

policy in place so that the tenants have a clear expectation for how its going 

to work when the director say we shall make room for [a Requesting Airline] 

and this is how we are going to do it.

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Ex. 631, p. 0052. As we now know, the City wholly failed to craft any policy, let 

alone a clear one, setting forth how the accommodation procedure and process would 

work in reality. This “vague language about ‘unduly interfere with’” was drafted by 

the City itself and was noted by at least one concerned subcommittee member of 

contributing to “Southwest [being] in the catbird seat”. And worse, then Mayor 

Laura Miller acknowledged the need for the City, “if we are responsible, [to] create a very 

clear policy . . . for how we are in real terms going to be executing this.” Now in this case, the 

Court is asked to follow through with what the City should have done years ago. 

i. “Unduly Interfere With” Defined 

The Court concludes, for purposes of this preliminary injunction, that “unduly 

interfere with” in section 4.06F means the requested flight accommodation can fit 

within the Signatory Airline’s existing published schedule, at the time the 

accommodation request is made, without causing the Signatory Airline’s existing 

schedule to reach maximum usage. The evidence establishes that Southwest 

considers maximum usage or “full utilization” of gates at Love Field to be 10 flights 

daily per gate. The Court finds Delta provided evidence that, at several points in 

time after its initial accommodation request in June 2014, Southwest was able to 

accommodate Delta’s five daily flights on Southwest’s 16 gates without unduly 

interfering with Southwest’s existing operating schedule. 

At the time of the Delta’s original accommodation request in June 2014, 

Southwest was flying approximately seven flights daily out of 16 gates. The evidence 

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shows that as of October 1, 2014, prior to the repeal of the Wright Amendment, 

Southwest operated 118 flights daily out of 16 gates, approximately seven flights 

daily per gate. That flight schedule would certainly have permitted accommodation 

of Delta’s five flights daily without reaching Southwest’s interpretation of “full 

utilization” as 10 flights daily from each gate. The Court recognizes this was before 

the lifting of domestic flight distance restrictions and Southwest planned to increase 

its flight operations. Even if the Court considers Southwest’s post-WARA increased 

flight operations schedule, there was room in Southwest’s schedule to accommodate 

Delta. The evidence shows that Southwest was operating 149 flights daily out of 16 

gates as of November 3, 2014. That is nine flights daily per gate. Once the Sublease 

Agreement between United and Southwest took effect at the end of January 2015, 

Southwest was operating 153 flights daily out of 18 gates or 8.5 flights daily per gate. 

It was not until February 26, 2015, that Southwest announced it was increasing flight 

operations to 180 flights daily out of 18 gates beginning August 9, 2015. 

Southwest’s claim that Delta’s five flights daily unduly interferes with Southwest’s 

operations is simply not supported by the evidence. Up until its announcement on 

February 26, 2015 of increased flight operations, the evidence establishes that 

Southwest was able to accommodate Delta without “unduly interfering with” 

Southwest’s own operations. 

Taking the Court’s definition of “unduly interfere with” into consideration, 

Southwest could have voluntarily accommodated Delta’s five flights without unduly 

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interfering with Southwest’s schedule when the initial request was made in June 

2014. Southwest’s schedule still allowed for accommodation of Delta’s five flights 

without undue interference if the Court were to consider Southwest’s schedules at 

each of the following points in time: June 13, 2014, November 3, 2014, and January 

28, 2015. Southwest did not announce plans to increase its flight operations to 180 

flights daily out of 10 gates until February 26, 2015. It was not until August 2015, 

over one year after Delta’s first voluntary accommodation request in June 2014, that 

Southwest’s increased operating schedule actually reached “full utilization” of 10 

flights daily from each gate. 

Under the Lease Agreement, preferential use of airport facilities means the 

Signatory Airline is the primary, but not sole, user. Exclusive use means the airline 

has the sole right to use the space. There are no exclusive use gates at Love Field. 

Southwest has preferential use of the gates it leases from the City and subleases from 

United. Therefore, Southwest is considered to be the primary, but not sole, user of 

the gates. Southwest does not have an unfettered right to the gates it has leased; and, 

despite Southwest’s argument to the contrary, the preferential use rights are subject 

to the accommodation provision contained in the Lease Agreement, which Southwest 

agreed to and signed. Southwest’s position is that accommodation is not required as 

long as they are using the gates at full utilization of 10 flights daily out of each gate. 

Southwest did not “fully utilize” its gate space until, at the earliest, its announcement 

on February 26, 2015 of increased flight operations, or, at the latest, until August 

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2015 when the actual increase was fully realized. Southwest cannot “ramp up” its 

flight schedule to thwart the pending accommodation request by Delta. 

As testimony from the Congressional subcommittee hearing on reforming the 

Wright Amendment Act revealed, these accommodation procedures were intended to 

help “fit those people in” when a Requesting Airline makes an accommodation 

request. Also during the subcommittee hearing, certain City officials, government 

representatives, and local business leaders stated that competition at Love Field 

would be ensured if the Five Party Agreement was enacted into legislation. Mr. Herb 

Kelleher, then-CEO of Southwest, testified at the hearing. He testified that “[A]ny 

carrier that is desirous now of serving Love Field can easily be accommodated even 

after those [12] gates come down,” limiting Love Field to 20 gates. In response to a 

question involving a very similar scenario as to that which the Court has before it 

today, Mr. Kelleher testified, 

And it is very simple. There is no mystery to the way it operates, 

and that is, I can show you Southwest Airlines schedule, gate schedules, 

we have got hours on our gates where another carrier could operate 

there. . . . And we would simply be told by the City of Dallas, you have 

got these vacant spaces in your gate utilization and by golly you are 

going to put another carrier in there. 

Subcommittee member responded, “They would be able to tell you that?” Mr. 

Kelleher answered, “That is the way it works, oh, yes absolutely.” Ex. 631, p. 0054. 

Apparently at that time, Mr. Kelleher understood Southwest’s obligations, as well as 

the City’s. In spite of that understanding, no accommodation ever happened. 

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Southwest agreed in Section 4.06F that it would accommodate a “new entrant 

airline” when accommodation would not “unduly interfere” with its own operating 

schedule. As the Court has found, Southwest’s schedule would clearly accommodate 

Delta when it made its initial request for voluntary accommodation in accordance 

with Section 4.06F, and for several months after. Delta has established Southwest 

did not comply with its contractual obligation and, therefore, breached Section 

4.06F, the accommodation provision, of the Lease Agreement. 

c. Was Delta Harmed by Southwest’s Breach? 

Delta has shown that it suffered harm, the fourth element of breach of contract, 

because there is no longer available gate space at Love Field able to accommodate its 

current flight operations. Delta has indicated a desire to expand its service at Love 

Field, but as it stands, there is arguably no possibility that Delta will be able to 

expand. Southwest currently leases or subleases 18 gates, and Virgin subleases the 

remaining two gates. The evidence indicates that because Virgin subleased those 

gates under very different circumstances involving a forced divestiture from 

American, and the DOJ specifically rejected Delta (and Southwest) from subleasing 

those gates from American, the only possibility for accommodation of Delta comes 

from Southwest. 

At this point, Delta will be locked out of Love Field. Testimony at the injunction 

hearing established that accommodations are common at other airports, and those 

accommodations can take many forms, such as subdividing a gate, using hardstands 

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31 

to load/unload passengers, or building additional brick-and-mortar gates. None of 

these options are available at Love Field because of the terms of WARA and the Five 

Party Agreement. The Court finds Southwest and the City are playing a game of 

musical chairs with Love Field gate space, and with Virgin’s “chairs” not in play in 

this game, there’s no “chair” for Delta—Southwest occupies all 18 gates and the City 

consents. The Court finds Delta has established it suffered harm from Southwest’s 

failure/refusal to follow its contractual obligation under section 4.06F of the Lease 

Agreement. 

Having established all four factors of a breach of contract claim, the Court 

concludes that Delta has established a substantial likelihood of success on the merits 

of its breach of contract claim against Southwest. 

Even if Delta did not make a sufficient showing on its breach of contract claim, 

the Court finds Delta has established a substantial likelihood of success on the merits 

of its declaratory judgment claim that it is entitled to be accommodated by 

Southwest. The Declaratory Judgment Act provides: “In a case of actual controversy 

within its jurisdiction, . . . any court in the United States, upon the filing of an 

appropriate pleading, may declare the rights and other legal relations of any 

interested party seeking such declaration, whether or not further relief is or could be 

sought.” 28 U.S.C. § 2201(a). The party seeking the declaratory judgment “must 

have suffered ‘an invasion of a legally protected interest,’ which is ‘traditionally 

thought to be capable of resolution through the judicial process,’ and is currently fit 

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for judicial review.” Crane v. Napolitano, 3:12-CV-2347-O, 2013 WL 1744422, at 

*13 (N.D. Tex. Apr. 23, 2013)(O’Connor, J.) (quoting Nat’l Rifle Ass’n of America v. 

Magaw, 132 F.3d 272, 280 (6th Cir. 1997)). As previously set out, the Court’s 

discussion of “new entrant airline”, “unduly interfere with”, and Southwest’s 

obligation under Section 4.06F of the Lease Agreement regarding accommodation 

hold true to Delta’s claim for declaratory judgment. As it pertains to injunctive relief, 

Delta has shown that, as a new entrant or “Requesting Airline”, Southwest had an 

obligation under the Lease Agreement to accommodate Delta at the time of its 

request because such accommodation would not “unduly interfere with” Southwest’s 

existing flight schedule. Delta has shown a substantial likelihood of success on the 

merits of its (1) breach of contract claim against Southwest and (2) declaratory 

judgment claim that it is entitled to be accommodated by Southwest. 

2. Substantial Threat of Irreparable Harm 

The second factor in the preliminary injunction analysis is a threat of 

irreparable harm. To establish this factor, Delta must show “a significant threat of 

injury from the impending action, that the injury is imminent, and that money 

damages would not fully repair the harm.” Humana, Inc. v. Jacobson, 804 F.2d 1390, 

1394 (5th Cir. 1986). Irreparable injury may be established where damages cannot 

be easily calculated. Miller Paper Co. v. Roberts Paper Co., 901 S.W.2d 593, 602 (Tex. 

App.—Amarillo 1995, no writ). Where the potential damage to a party’s business 

cannot be easily calculated, such as loss of good will, a legal remedy is 

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inadequate. T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18, 24 

(Tex. App.—Houston [1st Dist.] 1998, pet. denied). 

Delta has established that immediate and irreparable harm may result if it is 

prohibited from operating its current schedule of five flights and is forced out of Love 

Field during the pendency of this case. Thousands of passengers, both traveling to 

and from Love Field, would have to be refunded or rebooked if Delta is forced to 

discontinue its service at Love Field. Loss of business and goodwill are immeasurable 

through money damages. Simmons v. Quixtar, Inc., No. 4:07CV389, 2007 WL 

3256244, at *5 (E.D. Tex. 2007). If Delta is forced to discontinue service 

immediately from Love Field, the extent of lost business Delta would suffer plus the 

extent of loss of goodwill cannot be known. See Henson Patriot Ltd. Co. LLC v. Medina, 

Civ. Action No. SA-14-CV-534-XR, 2014 WL 4546973, at *5 (W.D. Tex. Sept. 11, 

2014). Without an injunction, Delta would have no adequate remedy at law because 

it will most certainly suffer a loss of business and goodwill. 

Despite Southwest’s argument to the contrary, the Court does not find Delta’s 

harm minimized or eliminated simply because it has or can secure gate space at DFW 

Airport. The Court need not address Southwest’s “one marketplace” argument at this 

juncture. The Court is addressing the requested injunctive relief based on 

accommodation at Love Field as required under the Lease Agreement. The Lease 

Agreement does not contemplate accommodation at DFW Airport; not one word is 

said that the accommodation procedure includes consideration of DFW Airport, 

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whether a party has access to gate space at DFW Airport, and DFW Airport is not a 

party to these Lease Agreements in this case. 

To deny Delta’s injunctive relief would remove Delta from Love Field and, 

were the Court or a jury to ultimately determine Delta has a right to accommodation, 

Delta would have lost business and endured negative impact to its name and brand 

during that period. The Court also agrees with Delta that it would “have to fight an 

uphill battle” to make the public aware of its presence once again at Love Field. All 

of this would undoubtedly cause Delta to suffer great injury in such a way that is 

immeasurable and could be irreparable. Therefore, the Court finds that the risk of 

substantial threat of irreparable harm weighs heavily in favor of Delta. 

3. Balance of Harms and the Public Interest 

The Court now turns to the balance of harms, considering whether the 

threatened injury to Delta outweighs the threatened harm to Southwest. As 

previously discussed, the Court found the potential harm Delta would likely suffer 

upon being removed from Love Field is great—damage to reputation, name, brand 

and overall goodwill in addition to monetary harm. Southwest argues it will suffer 

harm in the form of cancelled flights or untold delays or inability to fully utilize its 

gate if it is forced to continue allowing Delta to fly its five flights daily. First, 

Southwest has suffered no harm as it relates to an inability to fully utilize its gates. 

Not only has Southwest been able to “fully utilize” its 18 gates with its own schedule 

of 180 flights daily, Delta has operated its five flights daily, for a total of 185 flights 

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daily out of 18 gates. Furthermore, the evidence before the Court does not establish 

Southwest has suffered any harm or the threat of harm in the form of cancelled 

flights because of Delta’s use of the gates. At the injunction hearing, Southwest 

offered testimony that it has experienced some flight delays as well as two instances 

of equipment damage due to Delta’s presence at the gates. Assuming without 

deciding these flights delays and equipment damage have harmed or threaten to harm 

Southwest, this in no way outweighs the threatened harm to Delta if it is forced to 

leave Love Field while these legal issues are resolved. Although Southwest may not 

be able to run its flights and operations as efficiently as it would like because of 

Delta’s presence, that factor simply does not outweigh the potential harm to Delta 

from removing it from Love Field altogether. 

In considering the public interest, the Court finds the chaos and inconvenience 

of disrupted service by removing Delta from Love Field before the legal issues are 

decided would be a great disservice to the public. Forcing Delta to cease flight 

operations at Love Field would necessarily require its passengers to be rebooked on a 

Delta flight from another airport or to have their ticket purchase refunded, requiring 

them to find alternate travel arrangements, possibly at greater expense if on shortnotice. Also, Love Field is owned by the City which obviously vests its citizens with 

an interest in the airport and issues surrounding it. 

The Court finds the balance of harms and the public interest both weigh 

heavily in favor of Delta. 

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In conclusion, the Court finds Delta has established all four equitable factors 

entitling it to injunctive relief. Therefore, the Court grants Delta’s motion for 

injunctive relief and the requested relief that Southwest be enjoined from evicting or 

otherwise removing Delta from Southwest’s gate(s) at Love Field, or otherwise 

interfering with or preventing Delta’s continued use of Southwest’s gate(s) to operate 

Delta’s five daily flights. 

B. Southwest’s Motion for Preliminary Injunction 

Also pending before the Court is Southwest’s competing motion for preliminary 

injunction, which was filed first before either the City’s motion or Delta’s motion. 

To establish entitlement to a preliminary injunction, Southwest must satisfy all four 

equitable factors to obtain a preliminary injunction. See TGI Friday’s Inc. v. Great 

Northwest Restaurants, Inc., 652 F.Supp.2d 763, 767 (N.D. Tex. 2009)(Fitzwater, 

C.J.). 

Southwest cannot establish a likelihood of success on the merits of its trespass 

claim against Delta because Delta is not trespassing at this point. The gates are not 

exclusive use, but rather preferential use; there can be no trespass on preferential use 

gates. Southwest’s payment of $120,000,000 to sublease United’s two gates does not 

convert those gates from preferential use to exclusive use. Though expensive, trespass 

would not lie for a preferential use gate which is subject to accommodation. 

Southwest’s other argument that Delta is a “trespasser” because it is “invading the 

possession of [Southwest’s] property,” and that requires no additional showing of 

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irreparable injury, also fails. Southwest must show “a significant threat of injury from 

the impending action, that the injury is imminent, and that money damages would 

not fully repair the harm.” Humana, 804 F.2d at 1394. Southwest fails to make this 

showing. The Court does not find that Southwest has established a substantial 

likelihood of success on the merits of its trespass claim against Delta. The Court has 

also previously determined that the balance of harms and public interest weight 

heavily in favor of Delta; therefore, Southwest would be unable to satisfy all four 

equitable factors. 

The Court finds that Southwest has not proven all the equitable factors to 

establish entitlement to a preliminary injunction. See TGI Friday’s, 652 F.Supp.2d at 

767. Accordingly, the Court denies Southwest’s motion for preliminary injunction. 

C. City’s Motion for Preliminary Injunction 

In its motion, the City’s requested injunctive relief includes an injunction 

“allowing Delta to continue using Southwest’s Love Field gates temporarily and 

barring all others from interfering in that temporary use.” Because the City has 

refused to take action on Delta’s accommodation request, the Court is forced to 

impose some sort of injunctive relief to maintain order at Love Field. 

The Court has already determined that Delta’s motion for injunctive relief should 

be granted. However, even if the Court could not grant Delta’s motion, the Court 

grants the City’s motion, finding that the City has satisfied each of the equitable 

factors to establish entitlement to injunctive relief. In its Original Complaint, the 

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City seeks declaratory judgment relief from this Court. Specifically, the City requests 

the Court declare the City’s rights and responsibilities under the Five Party 

Agreement, WARA, the DOT letters, the Lease Agreements, the Sublease Agreement, 

the grant assurances and other obligations to the DOT and FAA, and any other 

applicable federal law as related to accommodation requests, the Signatory Airlines’ 

preferential use rights and the City’s consent to the Sublease Agreement. It is well 

established there is a dispute between Delta and Southwest. Essentially, the City 

asks the Court to declare what the City is required to do. Ultimately, the Court will 

make such declarations giving the clarification and certainty being sought. Therefore, 

the Court finds that the City will prevail on its declaratory judgment claims once the 

Court determines and declares the City’s rights and responsibilities pertaining to 

accommodation requests made by Delta as well as any future requests. The first 

equitable factor has been established. 

To establish irreparable harm, the City must show “a significant threat of injury 

from the impending action, that the injury is imminent, and that money damages 

would not fully repair the harm.” Humana, 804 F.2d at 1394. Irreparable injury may 

be established where damages cannot be easily calculated. Miller Paper, 901 S.W.2d 

at 602. Removing Delta from Love Field will negatively impact the flying public who 

have paid tickets flying into/out of Love Field. In turn, this likely would negatively 

impact the reputation of Love Field and the City, which owns Love Field. The Court 

finds the City faces the threat of irreparable harm if Delta is removed from Love Field 

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while the legal issues are determined. Finally, the balance of harms and the public 

interest weigh in favor of granting injunctive relief. The harm or threat of harm to 

Southwest is minimal in comparison to potential chaos if injunctive relief were not 

granted and Delta was removed. Furthermore, some amount of certainty among the 

flying public as to the gate situation and generally flight operations at Love Field is in 

the public interest. 

The Court finds all four equitable factors were established entitling the City to 

injunctive relief. The Court finds that a preliminary injunction order enjoining 

Southwest from evicting or otherwise removing Delta from Southwest’s gate(s) at 

Love Field, or otherwise interfering with or preventing Delta’s continued use of 

Southwest’s gate(s) to operate Delta’s five daily flights is the proper injunctive relief 

in this case. This is the same injunctive relief requested by Delta which the Court 

granted on Delta’s motion. So, even if the Court did not to grant Delta’s motion, the 

Court grants the City’s motion for injunctive relief. 

As previously stated, none of these factual findings and/or conclusions of law are 

binding at a trial on the merits. 

IV. Conclusion 

Love Field is unique in that it is the only airport in the United States that is 

controlled by a federal statute and is gate-constrained, thereby freezing growth. Love 

Field is in that respect the most unique airport in the world; no other airport has to 

deal with the Congressionally mandated no-growth and limited hourly flight 

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restrictions. Assuming WARA is constitutional since no one is attacking the statute 

at this point, the constraints imposed on this airport by WARA are constraining to 

the point of being out of date. These are political constraints, not constraints 

resulting from business related development. Love Field does not have the expansion 

options available to other airports which allow future growth. 

As Delta so succinctly stated, “At most airports, accommodation is not the 

equivalent of access.” Love Field is the exception to this rule. Unless circumstances 

change, accommodation is the only means by which Delta can have long-term access 

with any certainty at Love Field. These airlines understandably fight tooth-and-nail 

for virtually non-existent expansion of gate space. The City clearly does not want to 

force accommodation on any airline, particularly one that has paid $100s of millions 

in improvements to Love Field and controls 90% of the airport’s flights. Southwest is 

a model for running an airline. Understandably it is aggressively trying to gain 100% 

of the gates at Love Field. Mr. Montgomery of Southwest testified that Southwest 

would buy the last two gates at Love Field and control all 20 if it could. Southwest is 

contractually and legislatively bound to not expand to DFW Airport without 

relinquishing preferential use of its gates at Love Field. As Southwest has said, there 

may be a time when no future accommodations can be made at Love Field. Today is 

not that time. With the evidence before the Court, the Court finds Southwest must 

accommodate Delta under the Lease Agreement it signed because an accommodation 

would not have “unduly interfered with” Southwest’s operations schedule at the time, 

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nor Southwest may not add flights after the accommodation request is made to 

thwart the accommodation. The Court also finds Delta’s five flights currently do not 

unduly interfere with Southwest’s schedule. 

Love Field will continue to face these challenges being so severely gate 

constrained. To change this no-growth situation at Love Field, Congress will need to 

act. The political powers-that-be can address and correct these issues that face Love 

Field and new entrant airlines through repealing legislation unique to this airport. 

Without this change, new entrant airlines, the City, Signatory Airlines, and the 

citizens of Dallas will continue to face dilemmas like this one. The flying public 

deserves more courage from its elected officials about travel to and from Love Field. 

The time for these elected officials to consider an end to all constraints on Love Field 

is now. 

The Court DENIES Southwest’s motion for preliminary injunction. The Clerk 

of the Court is hereby directed to terminate the City’s motion for preliminary 

injunction as moot. The Court GRANTS Delta’s motion for preliminary injunction. 

Southwest is hereby enjoined from evicting or otherwise removing Delta from 

Southwest’s gate(s) at Love Field, or otherwise interfering with or preventing Delta’s 

continued use of Southwest’s gate(s) to operate Delta’s five daily flights. Southwest 

is also enjoined from adding additional flights on any Southwest gate(s) Delta uses 

to operate its five daily flights. Furthermore, Southwest must inform the Court in 

writing within five (5) days of any reduction and/or change in Southwest’s flights 

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operations at Love Field so that the Court can evaluate what the Court considers to 

be full utilization of the gates and other leased space at Love Field. Reduction and/or 

change in flight operations includes, but is not exclusive of, destinations, hours of 

flights, and number of flights each day. Furthermore, pursuant to Rule 65(c) of the 

Federal Rules of Civil Procedure, Delta must post a bond in the amount of one 

hundred thousand dollars ($100,000) on or before January 15, 2016, at 4:00 P.M., 

to secure payment of any damages sustained if Southwest is found to have been 

wrongfully enjoined. Also pursuant to Rule 65(c) of the Federal Rules of Civil 

Procedure, the City must post a bond in the amount of one hundred dollars ($100) 

on or before January 15, 2016, at 4:00 P.M., to secure payment of any damages 

sustained if Southwest is found to have been wrongfully enjoined. 

SO ORDERED. 

 Signed January 8th, 2016. 

 ______________________________________ 

 ED KINKEADE 

 UNITED STATES DISTRICT JUDGE 

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