# Ill KAPLAN KIRSCH ROCKWELL

November 12, 2015


### VIA OVERNIGHTDELIVERY SharonLong Office ofthe ChiefCounsel Attn: FAA Part 16 Airport Proceedings Docket, AGC-610 Federal Aviation Administration 800 Independence Avenue, SW Washington, D.C. 20591 Re: In Re Matter ofCompliance with Federal Obligations by the City of Dallas, Texas, FAADocketNo.l6-15-10 DearMs. Long: Enclosed please find for filing in the above-referenced docket one original andthree copies ofthe City ofDallas' Motionto File a Reply to theNon-Parties' Briefs. Also enclosed is an extra copy ofthe Motion to be file-stamped and returned inthe enclosed self-addressed stamped envelope. Please feel free to contact me at (202) 955-5600 if you have any questions or require additional information. Sincerely,

W. Eric Pilsk

Enclosures

Attorneys at La\v Kaplan IGrsch & Rockwell LLP tel: 202.955.5600 Denver " Washington, DC 1001 Connecticut Ave., N.W., Suite 800 Washington, DC 20036 fax: 202.955.5616 \V'iV'Y..r.kaplankirsch.comUNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. 

## RECEIVED NOV 1 3

### 2015 PART 16 DOCKETS IN RE MATTER OF COMPLIANCE WITH FEDERAL OBLIGATIONS BY THE CITY OFDALLAS, TEXAS FAA Docket No. 16-15-10

CITY OF DALLAS' MOTION TO FILE A REPLY TO THE NON-PARTIES' BRIEFS 

### On November 10, 2015, the Federal Aviation Administration ("FAA") notified six airlines that it will provide each with an opportunity to submit a briefin response to the City of Dallas' (the "City") answer to the FAA's Notice ofInvestigation ("NOI"). The City's response to the NOI must be submitted on November 23, 2015, and the airlines may submit briefs by December 23, 2015. The City respectfully requests an opportunity to reply to the airlines' briefs. 1

1 

### By this request, the City does not waive its right to argue that this proceeding should be dismissed, as it will argue in its answer, upon grounds including, without limitation, that the Wright Amendment Reform Act of2006, Pub. L. 

### 109-352, 120 Stat. 2011 (2006), deprives the FAA ofpower to investigate, make findings, or take any other action onthe matters stated in the NOI, and that this investigation improperly interferes with the jurisdiction ofthe court in the Northern District of Texas presiding over a civil action to which the FAA is a party and involving the same material issues. See City of Dallas v. Delta AirLines, Inc., et a!., 

### Case No. 3:15 cv-02069-K (N.D. Tex.). 14 C.F.R. § 

### 16.26. Should the FAA not dismiss this proceeding, the City believes that the Court's ruling in the federal district court litigation likely will be dispositive ofthe issues in this case and binding on the FAA, and, in any event, will provide guidance and clarity for all parties, including the FAA. Ifthe Court issues a decision subsequent to the City's submission ofits answer to the NOI (and prior to FAA action on the motion to dismiss), the City intends to supplement its answer by submitting a briefto the FAA explaining the effect ofthe decision onthe issues inthis proceeding. 1Under Part 16, third parties are typically not allowed formal participation in an FAAinitiated investigation at the initial investigation stage; participation is only in a hearing under Subpart F and if the hearing officer allows for intervention or participation. See 14 C.F.R. § 16.207. At that point, the respondent is afforded a meaningful opportunityto address the thirdparty's arguments atthe hearing and maybe grantedpermissionto file areplyto the third-party's post-hearing brief. See id. § 16.235. Similarly, where a complaint has been initiated under Subpart C, a respondent is afforded an opportunity file arebuttal to the complainant's brief. See 14 C.F.R. § 16.23(f). Consistent with those rules, the FAA should afford the City an opportunity to address the airlines' arguments in areplybrief. Although it is unclear to the City what purpose would be served by inviting the participation ofthe airlines given the extensive briefing and discoveryDOThas alreadyreceived in connection with the cases pending in the U.S. Court ofAppeals for the District ofColumbia and inthe U.S. District Court for the Northern District ofTexas, ifthe FAAhas decided to invite further briefing it should do so in a manner the insures the fairness ofthe proceeding. The issue in this proceeding is whether the City is in compliance with its federal obligations. Ifthe Cityis found to be in non-compliance, it may lose federal grant and PFC eligibility and mayberequired to take corrective action that may impose further expense on the City. The FAAhas authorized the involvement ofsix airlines with competing interests

- several ofwhom have taken positions adverse to the City and adverse to each other on the issues under investigation

- without limitations on the legal and factual matters theymaybriefand while effectively allowingthem to have the last word in this proceeding. The City should be afforded every opportunity to defend itself, including responding to arguments and issues raised bythose airlines. See ClevelandEd. 

### ofEduc. v. Loudermill, 470 U.S. 532, 546 (U.S. 1985) (The "essential requirements of due

2process, and all that respondents seek or the Court of Appeals required, are notice and an opportunity to respond."); see also 

### J. Andrew Lange, Inc. v. FAA, 208 F.3d 389, 392 (2d Cir. 2000) ("Under the due process clause, the FAA cannot deprive a party of constitutionally protectedpropertywithout appropriateprocedural safeguards.") FAA procedures provide for a right ofrebuttal in Subpart C and F proceedings, and it should do so here as well. Accordingly, the FAA should grant the City's request and provide it with an opportunity to replyto the arguments raised bythe airlines in their response briefs. Because six airlines may submit response briefs ofpotentially significant lengths and will each raise different factual and legal issues, the City requests sixty (60) days to reply in a single briefto each ofthe airlines' responsebriefs. Respectfully submitted this 12th dayofNovember2015.

CHARLES ESTEE Assistant CityAttorney PETERB. HASKEL Executive Assistant CityAttorney 7BNDallas CityHall 1500 Marilla Street Dallas, Texas 75201 charles.estee@dallascityhall.com peter.haskel@dallascityhall.com Telephone: (214) 670-3519 Facsimile: (214) 670-0622 

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3PeterJ. Kirsch

W. Eric Pilsk Kaplan Kirsch & Rockwell LLP 1001 Connecticut Avenue, NW Suite 800 Washington, DC 20036 pkirsch@kaplankirsch.com epilsk@kaplankirsch.com Telephone: (202) 955-5600 Facsimile: (202) 955-5616CERTIFICATE OF SERVICE I hereby certifythat I have this 12thday ofNovember 2015, served the foregoing City of Dallas' Motion To File A Reply To The Non-Parties' Briefs on the following parties as indicatedbelow: BY OVERNIGHT DELIVERY: Office ofthe ChiefCounsel Attn: Sharon Long FAAPart 16 AirportProceedings Docket, AGC-610 Federal AviationAdministration 800 Independence Avenue, SW Washington, D.C. 20591
BYE-MAIL: Susan Ullman Susan.Ullman@usdoj.gov Randall Fiertz Randall.Fiertz@faa.gov ByronHuffinan Byron.Huffinan@faa.gov ScottMitchell Scott.E.Mitchell@faa.gov KevinWillis kevin.willis@faa.gov Daplme Fuller daplme.fuller@faa.gov Jessie DiGregory Jessie.DiGregory@faa.gov Charles Enloe charles.enloe@dot.gov Dated this 12th dayofNovember2015.

4 W. Eric Pilsk