BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Motions and Application of 

AMERICAN AIRLINES, INC.

HAWAIIAN AIRLINES, INC. 

In the matter of 2010 U.S.-Haneda Combination 

Services Allocation Proceeding

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Docket DOT-OST-2010-0018 

OBJECTIONS OF DELTA AIR LINES, INC.

TO ORDER 2015-3-17

Communications with respect to this document should be addressed to:

Glen Hauenstein

Executive Vice President 

 & Chief Revenue Officer

Robert J. Cortelyou

Senior Vice President – Network Planning

DELTA AIR LINES, INC.

1030 Delta Boulevard

Atlanta, Georgia 30320

Seth P. Waxman

Kelly P. Dunbar

WILMER CUTLER PICKERING

 HALE AND DOOR LLP

1875 Pennsylvania Avenue, N.W.

Washington D.C. 20006

(202) 663-6000

seth.waxman@wilmerhale.com

Alexander Van der Bellen

Managing Director and Associate General 

Counsel – Regulatory and International Affairs 

DELTA AIR LINES, INC. 

1212 New York Avenue, N.W. 

Washington, D.C. 20005

(202) 842-4184

sascha.vanderbellen@delta.com

April 6, 2015
BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Motion and Application of 

AMERICAN AIRLINES, INC.

HAWAIIAN AIRLINES, INC. 

In the matter of 2010 U.S.-Haneda Combination 

Services Allocation Proceeding

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Docket DOT-OST-2010-0018 

OBJECTIONS OF DELTA AIR LINES, INC.

TO ORDER 2015-3-17

Delta Air Lines Inc. (“Delta”) strongly agrees with the Department’s decision in Order 

2015-3-17 that Delta “should retain the U.S.-Haneda slot pair currently allocated to it for daily 

scheduled combination services.” Order 2015-3-17 at 1 (“Order”). That result is compelled by 

law and manifestly serves the public interest, for reasons Delta has previously explained.

Delta emphatically objects, however, to the Department’s tentative decision to impose 

draconian “protective measures” on Delta’s slot authority—namely, an unprecedented 

requirement that Delta provide a daily Haneda-Seattle flight “on each and every day of the week 

(7 days a week, 365 days a year),” on pain of slot forfeiture. Order at 8. That extreme condition 

is unsupported by the record; it finds no support whatsoever in Department precedent; it 

conflicts with the longstanding "security of route" principle by placing Delta's slot authority in 

perpetual jeopardy; and it would impose serious burdens on Delta and the public interest with 

no countervailing justification. For those reasons and others, the 365-day-a-year service 

mandate is an impermissible, arbitrary and capricious condition on the use of Haneda slot 

authority.

Fortunately, the proposed condition is unnecessary to serve the Department’s 

objectives. The Order correctly acknowledges that the Department has a “justifiable basis to 

believe that Delta [can] be relied upon” to provide year-round service based on Delta’s 
Delta Objections to Order 2015-3-17

Page 2

statements and the concrete steps Delta has taken to grow its Seattle hub. Order at 7-8. To 

the extent any further assurance is necessary, Delta respectfully submits that the Department is 

limited to imposing targeted conditions that actually address the concern that prompted 

reexamination of Delta’s slot authority—namely, Delta’s cutback in service during the past 

winter season. For example, as explained further below, conditioning Delta’s slot authority on 

15 days of nonuse (a significant restriction above and beyond the standard 90-day dormancy 

condition) would advance the Department’s public-interest aims by protecting against any 

meaningful seasonal service cutback, while at the same time avoiding the deleterious 

consequences flowing from an inflexible 365-day-a-year service mandate. The Department’s 

failure to adopt such a sensible alternative to the proposed condition—which is patently 

overbroad and which risks inflicting serious commercial and operational costs on Delta—will 

invite appellate vacatur of the proposed condition.

Delta makes the following specific objections to the condition:

1. The 365-Day-A-Year Service Mandate Is Substantially Overbroad And Not 

Rationally Related To Any Public-Interest Objective

Perhaps the most basic problem with the 365-day-a-year service mandate is that it is 

seriously disproportional to the purported problem that the Department seeks to remedy. It is 

axiomatic that the Administrative Procedure Act’s demand of reasoned decisionmaking requires

an agency confronted with a problem to “articulate a satisfactory explanation for its action 

including a rational connection between the facts found and the choice made.” Motor Vehicle 

Mfrs. Ass’n of the U.S. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983) (internal 

quotation marks omitted). The Order fails to meet that standard. There is simply no “rational 

connection” between the identified problem (a single-season cutback that was nonetheless well 

within the standard dormancy conditions of Delta’s authority) and the “choice made” (imposing 

an absolute 365-day-a-year service mandate).
Delta Objections to Order 2015-3-17

Page 3

The Department’s initial decision that it was in the public interest to grant Delta SeattleHaneda slot authority in no way depended on Delta providing service 7 days a week, 365 days 

a year. See Order 2013-2-4 (Feb. 5, 2013) (“Seattle Order”). In fact, slot authority for “daily 

service” for any international route has never been understood to be tantamount to a 365-day-ayear service expectation, much less a requirement. And for good reason: there are countless 

safety, operational, and commercial reasons that require that airlines have flexibility to deviate 

from a strict 365-day-a-year service expectation, as discussed further below.

Instead, in granting Delta Haneda slot authority, the Department focused on the 

compelling public-interest benefits of “providing the first nonstop Haneda service on a significant 

mainland U.S.-Tokyo route that currently lacks any such service”; of offering “a number of 

western cities with first one-stop connecting opportunity to Haneda”; and of “promoting the 

geographic diversity of the U.S.-Haneda gateways.” Seattle Order at 4. Making crystal clear 

that the Department’s public-interest analysis did not depend on Delta providing 365-day-a-year 

service without exception, the Department imposed the standard dormancy condition, under 

which loss of the slot could result only from 90 days of nonuse. See id. at 5 (“if the slot pair is 

not utilized for a period of 90 days ..., it will be deemed dormant and revert to the Department”). 

The Department’s Order requiring 365-day-a-year service conflicts with its decision in prior 

orders in this proceeding and other slot authority decisions that a 90-day dormancy condition 

sufficiently advances the public interest. No other Haneda slot recipient has been subject to 

such conditions – including American, which liberally used this flexibility in connection with its 

now-abandoned JFK-Haneda service. It would be arbitrary and capricious to subject SeattleHaneda service to forfeiture conditions never imposed on any other international route. 

What is more, in deciding to reexamine Delta’s Haneda slot authority, the Department’s 

stated concern was never the absence of service 365 days a year. Instead, the Order here

pointed to “Delta’s virtual abandonment of the route” for a “traffic season” as the basis for 

reexamination and the new condition. Order at 7. Likewise, the Order instituting the 
Delta Objections to Order 2015-3-17

Page 4

reexamination focused only on “Delta’s extensive winter-season ... service cutbacks.” Order 

2014-12-9 at 5. There is a wide gulf between “virtual abandonment of [a] route” for several 

months of the year and 365-day-a-year mandated service without exception, and the 

Department does not explain how the former “problem” justifies the latter “solution.” Indeed, the 

Department cannot seriously contend that 363 – or 343 or 323 – days of Seattle-Haneda service

would vitiate the public interest benefits the route so clearly provides. And in allowing American 

the standard 90-day dormancy period should it take over the route authority, the Order assumes 

without logic, explanation or empirical support that 275 days or less of American’s Los AngelesHaneda service is preferable to 363 days of Delta’s Seattle-Haneda service (See pp. 6-7 

below).

Given the Department’s past public-interest analysis—which has in no way depended on 

an inflexible 365-day-a-year-service expectation—the Department’s choice of remedy is not 

remotely tailored to address the stated harm or to advance the public interest. 

2. The Department Has Unreasonably Ignored Alternatives To A 365-Day-AYear Service Mandate

As explained above, the logical solution to a concern with seasonal cutbacks is not to 

require service 365 days a year without exception. In fact, there are myriad alternatives short of 

such an extraordinary requirement that would fully advance the Department’s interests. For 

example, conditioning Delta’s slot authority on 15 consecutive days of nonuse (a significant 

restriction above and beyond the standard 90-day dormancy condition) would advance the 

Department’s public-interest objectives by guarding against any meaningful seasonal service 

cutbacks, while avoiding the deleterious consequences flowing from an inflexible 365-day-ayear service mandate. The Department’s failure to identify, consider, or explain why those 

alternatives are insufficient renders the condition arbitrary and capricious. See American Gas 

Ass’n v. FERC, 593 F.3d 14, 19 (D.C. Cir. 2010) (“[R]easoned decisionmaking requires” 

agencies to consider “reasonable alternatives” raised by the parties.”); Chamber of Commerce 
Delta Objections to Order 2015-3-17

Page 5

of U.S. v. SEC, 412 F.3d 133, 145 (D.C. Cir. 2005) (SEC violated the APA in failing to consider 

an alternative that was “neither frivolous nor out of bounds”); Laclede Gas Co. v. FERC, 873 

F.2d 1494, 1498 (D.C. Cir. 1989) (“where a party raises facially reasonable alternatives ... the 

agency must either consider those alternatives or give some reason ... for declining to do so”).

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3. The 365-Day-A-Year Service Mandate Unreasonably Departs From 

Department Practice And Precedent

The Department’s imposition of an unyielding 365-day-a-year mandate is also arbitrary 

and capricious because it finds no support in, departs from, and conflicts with past Department 

practice and precedent. Indeed, the Order does not acknowledge, much less provide, a 

reasoned explanation for this sharp break from practice and precedent. It is axiomatic that an 

agency’s failure to account for and to explain a departure from practice and precedent violates 

crucial tenants of reasoned decisionmaking. See Republic Airline Inc. v. U.S. Dept. of Transp., 

669 F.3d 296, 300-02 (D.C. Cir. 2012) (vacating DOT slot exemption order for failure to account 

for relevant Department precedent). The Order violates those principles here.

At the most basic level, the proposed condition deviates from past practice because, as 

far as Delta is aware, the Department has never previously imposed such a strict 365-day-a 

year service requirement And that is despite the Department facing cutbacks in international 

service by other airlines far more substantial than Delta’s single-season winter cutback. As 

Delta has now explained several times, starting in at least 2002, American allowed its limited 

entry Brazil frequencies to go unused for months at a time, frequently for periods of 90 days or 

more, with no action by the Department to reexamine those frequencies, much less to impose 

365-day-a-year service requirements on the airline. See, e.g., Delta Answer at 7-8. In addition, 

in the Brazil route proceeding, the Department took no action for more than three and a half 

1 In asking the Department to adopt a more targeted dormancy condition, Delta expressly 

reserves all of its legal arguments for why the Department may not unilaterally rewrite the 

express terms and conditions on which the Department previously granted Delta Haneda slot 

authority given that Delta violated no express term or condition of those prior orders. See 

Petition of Delta Air Lines, Inc. for Reconsideration of Order 2014-12-9 (Dec. 22, 2014).

 
Delta Objections to Order 2015-3-17

Page 6

years to revoke and reallocate United’s unused Brazil frequencies that were dormant and where 

United had no stated plans to use them. See Order 2008-10-20.

Without acknowledging that historical record, the Department subjects Delta’s Haneda 

slot authority to an entirely novel service condition on the basis of a single season of cutbacks. 

Because the Department has offered no plausible reason—and none is apparent—for treating 

Delta differently (and substantially so) from other airlines or from departing from its own practice 

and precedent in proposing a new draconian service mandate, the proposed condition is 

unlawful. See Republic Airline, 669 F.3d at 300-302 (vacating agency action for failure to 

account for precedent); see also Green Country Mobilephone, Inc. v. FCC, 765 F.2d 235, 237

(D.C. Cir. 1985) (vacating agency action that did “not treat[] similar cases similarly”).

4. The Order Irrationally Treats Delta And American Airlines Differently

The Order is also legally infirm because it imposes substantially differential burdens on 

Delta, as the primary slot authority holder, as opposed to American Airlines, as the backup slot 

authority holder. Such unwarranted disparate treatment violates principles of reasoned 

decisionmaking. Under the Administrative Procedure Act, “[a] long line of precedent has 

established that an agency action is arbitrary when the agency offer[s] insufficient reasons for

treating similar situations differently.” County of Los Angeles v. Shalala, 192 F.3d 1005, 1022 

(D.C. Cir. 1999). The proposed condition on its face defies that principle. 

Under the order, “should the backup award be activated, the Department proposes that 

the allocation of the slot pair to American would remain in effect indefinitely, subject to the 

Department’s standard 90-day dormancy condition.” Order 2015-3-17. In other words, under 

the proposed condition, American is subject to a standard dormancy condition in the event it is 

awarded the very same Haneda slot authority that would remain with Delta subject to an 

inflexible 365-day-a-year service mandate. Remarkably, the Department proposes that 

disparate treatment despite American’s undisputed history of engaging in far more substantial

seasonal cutbacks with respect to other international slot authority. See p. 5-6, above. The 
Delta Objections to Order 2015-3-17

Page 7

Department’s differential treatment of Delta and American—as well as its failure to explain that 

treatment—renders the condition unlawful. Even assuming the Department has “broad ... 

discretion” to impose conditions on slot authority, that is no “license to ... treat like cases 

differently.” Airmark Corp. v. FAA, 758 F.2d 685, 692 (D.C. Cir. 1985). Principles of 

“[e]lementary even-handedness require[]” that each slot holder—whether primary or backup—

be subject to the same conditions, particularly in light of America’s past usage patterns with 

respect to other international slot authority. Id. at 692-695 (vacating FAA slot exemption 

decision where the “FAA ... offered no coherent explanation for ... disparate treatment” of 

applicants). Whatever condition is imposed in the final order accordingly should be applied 

even-handedly to Delta and American alike.

5. The 365-Day-A-Year Service Mandate Unreasonably Fails To Account For 

Operational And Commercial Realities

In addition to the legal defects in the proposed condition discussed above, the 365-daya-year service mandate is arbitrary and capricious and contrary to the public interest because it 

fails entirely to account for operational, safety and commercial realities. There are countless 

reasons that an airline might need to cancel a flight. For example, even for Delta which 

maintains the industry’s leading non-cancellation rate, inclement weather or airplane 

maintenance occasionally require cancellation or rescheduling on short notice. Sometimes 

such cancellations can affect more than one day of service in any 7-day period. Presumably 

that is part of the reason why the Department has never before understood “daily service” to 

mean an unyielding 365-day-a-year service requirement. The Order does not address these 

serious concerns at all and thus fails to account for “important aspect[s] of the problem” before 

it, rendering the proposed condition arbitrary and capricious. Motor Vehicles Mfrs. Ass’n, 463 

U.S. at 43; see SecurityPoint Holdings, Inc. v. Transp. Security Admin., 769 F.3d 1184, 1187 

(D.C. Cir. 2014) (“An agency’s action is arbitrary and capricious if it has entirely failed to 

consider an important aspect of the problem it faces.”) (internal quotation marks omitted).
Delta Objections to Order 2015-3-17

Page 8

Even worse, the proposed condition creates perverse incentives that run directly 

contrary to the public interest. Were the condition adopted, Delta’s failure to provide service on 

any single day would violate the condition, and any two days of non-service in a seven-day 

period would summarily strip Delta of slot authority (unless Delta is able to obtain a waiver well 

in advance through a cumbersome and unrealistic process that requires that other parties have 

the opportunity to comment). For example, it would never be possible for Delta to obtain a 

waiver for a mechanical issue under the Order’s unreasonable procedural requirements, and 

thus any one mechanical cancellation would put Delta in default. Faced with that exacting 

threat, the condition would create improper incentives to maintain scheduled service at all costs, 

when flights might otherwise be canceled, delayed, or rescheduled out of safety or other 

operational concerns. Delta’s commitment to safety is paramount, and as such Delta faces the 

likelihood of losing this authority under the terms of the proposed Order for acting properly to 

protect its customers. But the public interest is decidedly disserved by a mandate that runs 

directly counter to safety incentives. Delta will always make flight decisions based on the safety 

of crew and passengers, but the possibility that a decision to cancel or reschedule a flight might 

cost Delta its slot authority should never even be a factor. The Department should not adopt 

mandates that risk distorting proper safety incentives.2

2 The “emergency circumstances outside of Delta’s control” exception to the advanced 

waiver requirement does not resolve this concern. Order at 9. The Department does not 

purport to define what counts as an “emergency situation.” Nor does it explain what is meant by

“outside of Delta’s control.” Faced with such vague standards, any real-time decision whether 

inclement weather or aircraft reliability concerns require cancelling a flight might have to 

consider the possibility that, with the benefit of hindsight, the Department might later decide 

there was no bona fide emergency that justified the flight cancellation or that the emergency 

was not outside of Delta’s control. The waiver exception thus would provide no assurance that 

a good-faith decision to cancel a flight would not later become a basis for stripping Delta of its 

Haneda slot authority.

 
Delta Objections to Order 2015-3-17

Page 9

6. The 365-Day-A-Year Service Mandate Is Fundamentally Inconsistent With 

The “Security Of Route” Principle

Finally, Delta objects to the 365-day-a-year condition because renders illusory the 

foundational principle that certificated carriers should enjoy “security of route.” CAB v. Delta Air 

Lines, 367 U.S. 316, 324 (1961). This principle “provide[s] assurance to the carrier that its 

investment in operations [will] be protected insofar as reasonably possible.” Id. Given the 

myriad factors that might require Delta to cancel a daily flight, the cumbersome waiver process, 

and the fact that Delta would have no assurance that the Department would deem its failure to 

obtain a waiver justified, the proposed mandate would vitiate any reasonable reliance Delta 

could place on the security of its Seattle-Haneda route. That outcome also disserves the public 

interest: by placing Delta’s slot authority in perpetual jeopardy, the condition would undermine

Delta’s willingness to invest in the route and thus threaten the public-interest benefits that the 

Department has repeatedly found would flow from a viable Haneda-Seattle route.

* * *
Delta Objections to Order 2015-3-17

Page 10

The Department made the correct legal decision and an eminently sound policy 

judgment in permitting Delta to retain its Haneda-Seattle slot authority. The unprecedented 

365-day-a-year-service mandate, however, stands in stark contrast: that proposed condition is

plainly unlawful and it reflects an ill-advised policy judgment, inviting almost certain appellate 

vacatur. Delta respectfully requests that the Department abandon the condition and consider a 

narrowly targeted dormancy condition to the extent the Department has any remaining concerns 

about Delta’s commitment to the Haneda-Seattle route. Delta stands ready to work with the 

Department to craft an appropriate condition.

Respectfully submitted,

_____________________________

Alexander Van der Bellen

Managing Director, Regulatory and International 

Affairs & Associate General Counsel

DELTA AIR LINES, INC.
CERTIFICATE OF SERVICE

A copy of the foregoing document has been served this 6th day of April, 2015, upon the 

following persons via email:

howard.kass@aa.com

abigail.donovan@aa.com

robert.wirick@aa.com

charles.hunnicut@thompsonhine.com

patricia.snyder@thomsponhine.com

jhill@cooley.com

perkmann@cooley.com

bberlin@cooley.com

dan.weiss@united.com

thomas.bolling@united.com

steve.morrissey@united.com

lhalloway@crowell.com

gmurphy@crowell.com

Mike.Donatelli@alpa.org

dino.atsalis@alpa.org

Doug.Ralph@alpa.org

Ishiwata.K@portseattle.org

Safora.I@portseattle.org

sascha.vanderbellen@delta.com

chris.walker@delta.com

paul.gretch@dot.gov

brian.hedberg@dot.gov

brett.kruger@dot.gov

todd.homan@dot.gov

peter.irvine@dot.gov

englets@state.gov

cristinasa@state.gov

eugene_alford@ita.doc.gov

info@airlineinfo.com