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BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

WASHINGTON, DC 

Applications of 

REPUBLIC AIRLINE INC. 

AIRTRAN AIRWAYS, INC. 

SOUTHWEST AIRLINES CO. 

SUN COUNTRY AIRLINES 

US AIRWAYS, INC. 

for two “within-perimeter” slot exemptions at 

Ronald Reagan Washington National Airport 

Docket DOT-OST-2000-7182 

MOTION OF REPUBLIC AIRLINE INC. 

TO STRIKE UNAUTHORIZED REPLY OF SOUTHWEST AIRLINES CO. 

Communications with respect to this document should be addressed to: 

Scott L. Durgin 

Vice President, Administration 

REPUBLIC AIRWAYS HOLDINGS, INC. 

8909 Purdue Road 

Indianapolis, Indiana 46268 

Daniel Shurz 

Vice President, Planning and Strategy 

REPUBLIC AIRWAYS HOLDINGS, INC. 

Frontier Center One 

7001 Tower Road 

Denver, CO 80249 

October 27, 2010 

Robert E. Cohn 

Patrick R. Rizzi 

HOGAN LOVELLS US LLP 

Columbia Square 

555 Thirteenth Street, NW 

Washington, DC 20004 

+1 202 637 4999/5659 

robert.cohn@hoganlovells.com 

patrick.rizzi@hoganlovells.com 

Counsel for 

REPUBLIC AIRLINE INC. 
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BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

WASHINGTON, DC 

Applications of 

REPUBLIC AIRLINE INC. 

AIRTRAN AIRWAYS, INC. 

SOUTHWEST AIRLINES CO. 

SUN COUNTRY AIRLINES 

US AIRWAYS, INC. 

for two “within-perimeter” slot exemptions at 

Ronald Reagan Washington National Airport 

Docket DOT-OST-2000-7182 

October 27, 2010 

MOTION OF REPUBLIC AIRLINE INC. 

TO STRIKE UNAUTHORIZED REPLY OF SOUTHWEST AIRLINES CO. 

Republic Airline Inc. (“Republic”) hereby moves to strike the improper and 

unauthorized “Reply” of Southwest Airlines, which was served on Republic at 11:40 

p.m. on October 26, eleven days after the record in the proceeding closed. The 

Department did not provide for replies in the Notice establishing this slot exemption 

allocation proceeding, and Southwest has utterly failed to show good cause why it 

should be granted such relief. Accordingly, the Department should strike Southwest’s 

unauthorized reply. 

I. Southwest Should Not Be Permitted To Make Its Own Rules. 

 Although Southwest could perhaps be forgiven for not knowing the ground rules 

for this proceeding given the fact that it has never before participated in a DCA slot 

exemption allocation proceeding, the Department should reject Southwest’s effort to 

play by its own, self-serving rules. The Department’s regulations provide: “Except as 

otherwise provided, a reply to an answer, reply to a reply, or any further responsive 
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document is not authorized.” 14 C.F.R. 302.6(b). And, in this case, although 

Southwest’s latest submission is styled a “reply” (not a motion for leave to file, as the 

rules require), the Department’s Notice clearly did not provide for replies. 

 “Completed applications must be filed in Docket DOT-OST-2000-7182 by 

September 30, 2010, and comments with respect to any timely filed 

request for slot exemptions must be filed by October 15, 2010.” 

 

 (Notice: Establishment of Slot Exemption Proceeding, dated Aug. 30, 

2010.) 

The permitted briefing for this proceeding was crystal clear: an Application and an 

Answer. Southwest and the other applicant-carriers, including Republic, have made 

those submissions, the record is closed, and it is now for the Department to evaluate 

them and render its decision. If Southwest desired the opportunity for a reply, it should 

have petitioned the Department to provide for replies when the Notice was served in 

early September, before the proceeding began, but it did not do so. It is not for 

Southwest now – after the briefing is complete and the record closed– to modify the 

Assistant Secretary’s August 30th Notice to serve its own interests. 

 Beyond the fact that the Department’s Notice and its own regulations do not 

provide for any “replies,” Southwest’s latest submission also fails to demonstrate any 

“good cause” to justify its unauthorized reply. Southwest claims that its unauthorized 

reply is “narrowly tailored to factual inaccuracies and improper statements raised in 

other parties’ answers.” (Southwest Unauthorized Reply, at 1.) Although this language 

is sometimes successfully parroted by carriers in other proceedings, when the 

Department peels back the layers of Southwest’s rhetoric, it is clear that Southwest’s 

unauthorized submission is not narrowly tailored to correct factual inaccuracies or 

improper statements, but rather it is an improper and unfair attempt to get the last word 
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and shore up its inferior service proposal in light of the substantive comments properly 

made in answers by the other applicant-carriers. 1

 In sum, the purported basis for 

accepting this unauthorized reply is simply unfounded and without merit. 

 For example, Southwest takes issue with Republic’s claim that the Republic fare 

data reported by Southwest was tainted by US Airways’ higher fares in the DCA – MCI 

market. (Southwest Unauthorized Reply, at 3-4.) However, in the same paragraph, 

Southwest concedes that Republic’s fares were lower than the average in the market 

because of US Airways’ higher fares. No factual inaccuracy there. 

 Southwest also argues that Republic/Frontier’s fares for government travelers 

under the City-Pair Program are “irrelevant.” (Southwest Unauthorized Reply, at 4-5.) 

Republic, of course, disagrees with Southwest’s position on the relevancy of these fare 

data, but, for present purposes, that is beside the point: Southwest does not and 

cannot claim that Republic/Frontier is not the selected carrier for FY 2011 for DCA – 

MCI under the GSA City-Pair program or that the fares reflected in Exhibit 1 to 

Republic’s Application are inaccurate. No factual inaccuracy there. 

 Southwest also takes issue with Republic’s reference to the Department’s own 

Airline Consumer Air Fares Report showing a $161 average fare for Southwest between 

BWI and MCI. (Southwest Unauthorized Reply, at 5.) Southwest does not say that the 

reference or the reported fare was inaccurate, rather it takes issue with how it is 

compared to other fares. There is simply no assertion of factual inaccuracy there either, 

and it is the same with the rest of Southwest’s unauthorized submission and its 

consultant’s unauthorized report. 

 

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 The notion that it is narrowly tailored is undercut by the fact that Southwest took nearly two 

weeks to make this submission and even added an unauthorized report from its hired consultant to 

its unauthorized reply. 
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 In sum, there are no factual inaccuracies being corrected by Southwest in its 

latest filing. That is an excuse in a veiled effort to justify an otherwise unauthorized 

submission aimed at further arguing the merits of its own application. 

 Accepting Southwest’s unauthorized “reply” would give Southwest an unfair 

advantage and be highly prejudicial to the other applicants who have followed the 

Department’s procedural ground rules. Southwest – like the other applicant-carriers – 

should play by the rules. Allowing Southwest’s unauthorized filing would open the door 

to an endless series of rebuttal submissions. 

II. Conclusion. 

 For the reasons set forth above, the Department should strike Southwest’s 

unauthorized reply from this proceeding. If the Department nonetheless decides to 

consider that pleading, it should issue a notice inviting the other carrier-applicants (but 

not Southwest who has already filed) to file replies within two weeks from the date of 

such notice. 

Respectfully submitted: 

_____________________ 

Robert E. Cohn 

Patrick R. Rizzi 

Hogan Lovells US LLP