Case 5:24-cv-01085-XR Document 1 Filed 09/26/24 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

SOUTHWEST AIRLINES CO., )

)
Plaintiff, )
)
v. ) Civil Action No. 5:24-cv-1085
)
THE CITY OF SAN ANTONIO, TEXAS and )
JESUS SAENZ, in his official capacity as )
Director of Airports for the City of San )
Antonio, Texas )
)
Defendants. )
__________________________________________)

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiff Southwest Airlines Co. (“Plaintiff” or “Southwest”) states as follows for its

Complaint for Declaratory and Injunctive Relief against the City of San Antonio, Texas (“City”),

and Jesus Saenz, in his official capacity as the Director of Airports for the City of San Antonio,

Texas (“Director Saenz”) (collectively, “Defendants”).

INTRODUCTION

1. Southwest brings this action pursuant to the Supremacy Clause, U.S. Const. art.

VI, cl. 2, and the Airline Deregulation Act of 1978, 49 U.S.C. § 41713(b) (“Airline Deregulation

Act”) to obtain declaratory and injunctive relief with regard to the City’s unlawful use of subjective

evaluation criteria, as owner and operator of the San Antonio International Airport (“SAT” or

“Airport”), resulting in the exclusion of Southwest, which is the largest air carrier at SAT by

passenger volume, from the new passenger terminal gates being constructed at SAT – which is

referred to as “Terminal C.” See Proposed Terminal Map, at Exhibit 1 hereto. As set forth

below, Defendants’ allocation of terminal space was fundamentally flawed, and made based on an
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array of factors which the City was not lawfully permitted to consider, including, without

limitation, the nature of the “services” and air carrier “routes” offered by Southwest, and the City’s

subjective perception that Southwest’s “fit” with San Antonio made it less eligible than other

airlines for accommodation at the new Terminal C. Federally-funded airports such as SAT cannot

use subjective preferences to favor one airline over another in the assignment of terminal gates.

2. Municipal governments that own and operate airports cannot apply subjective,

discretionary factors to pick “winners and losers” among the airlines competing for space at the

airport. Defendants may not refuse to permit Southwest to move to the new Terminal C merely

because Defendants prefer airlines that have more or different international routes and provide

premium service and airline lounges. There are no “first-class and second-class citizens” when it

comes to airlines serving the Airport.

3. Defendants must be required to evaluate any airline’s request for space within the

airport based on criteria that are agnostic to the nature of the service offered or the routes served

and must thus withdraw their current prohibition against Southwest moving to the new Terminal

C in favor of a neutral, non-subjective set of standards and criteria that does not penalize Southwest

for its predominantly domestic service and lack of premium seating or an airline lounge.

4. Time is of the essence for the relief sought by Southwest because although Terminal

C is not yet constructed and available for air service, the City is planning to enter into a new airline

use and lease agreement (“AULA” or “Lease") with seven airlines serving SAT effective October

1, 2024, which will create vested legal rights that may significantly complicate the ability of

Southwest to move its operations to the new Terminal C. In addition, the City’s publicly-stated

intention to exclude Southwest from Terminal C based on its impermissible, subjective assessment

that Southwest’s services and/or routes are not as good of a “fit” with San Antonio as other airlines

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is actively harming Southwest’s brand reputation and goodwill within the community.

5. It is therefore imperative that the Defendants be ordered to maintain the status quo

by holding over the current leases and refraining from entering into new Leases with airlines for

Terminal C and the other Terminals until after the Court has declared the rights of the parties as

requested herein.

JURISDICTION AND VENUE

6. Jurisdiction in this Court exists under 28 U.S.C. §§1331 and 2201 because

Southwest seeks declaratory and injunctive relief under the Supremacy Clause of the U.S.

Constitution, art. VI, cl. 2, and under federal law with regard to the Defendants’ improper refusal

to allow Southwest to move to the new Terminal C based on factors that are prohibited by the

Airline Deregulation Act, 49 U.S.C. § 41713(b).

7. Southwest is entitled to pursue this action for declaratory and injunctive relief

regardless of whether there exists a private right of action under the Airline Deregulation Act

because it “is entitled to pursue its preemption challenge through its Supremacy Clause claim.”

Air Transport Ass’n of America, Inc. v. Cuomo, 520 F.3d 218, 221 (2d Cir. 2008). “‘A claim under

the Supremacy Clause that a federal law preempts a state regulation is distinct from a claim for

enforcement of that federal law.’” Id. (citing Western Air Lines, Inc. v. Port Auth. of N.Y. & N.J.,

817 F.2d 222, 225-26 (2d Cir. 1987)).

8. “A claim under the Supremacy Clause simply asserts that a federal statute has taken

away local authority to regulate a certain activity. In contrast, an implied private right of action is

a means of enforcing the substantive provisions of a federal law. It provides remedies, frequently

including damages, for violations of federal law by a government entity or by a private party. The

mere coincidence that the federal law in question in this case contains its own preemption language

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does not affect this distinction.” Cuomo, at 221 (citing Western Air, at 225-226). See Cuomo, at

221 (“Air Transport’s complaint asserts a claim under the Supremacy Clause and a claim that the

[challenged state law] violates § 41713(b)”).

9. Venue in this Court exists under 28 U.S.C. § 1391(b)(1) and (2) because all

Defendants reside in this District, and a substantial part of the events or omissions giving rise to

the claim occurred in this District, and all of the property that is the subject of this action is situated

in this District.

PARTIES

10. Plaintiff Southwest Airlines Co. is a major airline in the United States that operates

on a low-cost carrier model. It has scheduled service to approximately 117 destinations in the

United States and in ten other countries. It carries more domestic passengers than any other airline

in the United States. It is currently the third largest airline in the world based on passengers flown.

11. Southwest was established in 1967 by Herb Kelleher and Rollin King in San

Antonio as Air Southwest Co. and adopted its current name in 1971, when it began operating as

an intrastate airline wholly within the State of Texas, first flying between Dallas, Houston and San

Antonio. It began regional interstate service in 1979, expanding nationwide in the following

decades. Southwest currently serves airports in 42 states and multiple near international

destinations.

12. Since Southwest commenced passenger service in 1971, it has valued its

relationship with the City of San Antonio and SAT. It is deeply proud of the fact that Southwest

is the largest air carrier at SAT, with a 38% share of passengers in 2023.

13. Defendant City of San Antonio is the owner and operator of SAT. It is in the

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process of developing a new Terminal C at the Airport. See Proposed Terminal Map at Exhibit 1

hereto.

14. Defendant Saenz, who is sued in his official capacity, is the Director of Airports

for the City of San Antonio, and has taken a lead role in developing and implementing the City’s

legally flawed evaluation criteria that ultimately resulted in the exclusion of Southwest from the

new Terminal C or equally comparable facilities, while simultaneously entering into new Leases

with other airlines which are being permitted to move to Terminal C.

STATEMENT OF FACTS

San Antonio International Airport and its Two Existing Terminals A and B

15. San Antonio International Airport is located on property within the City of San

Antonio that the City acquired in 1941. In 1944, the airfield was officially named as the San

Antonio International Airport and regular flights began. Several renovations and upgrades were

carried out during the early 1950s, including a new terminal in 1953 (which became the terminal

that ultimately was replaced by what is now Terminal B). A large expansion project took place

during the latter part of the 1960s, when gates were added in a “banjo” design, to accommodate

the high passenger numbers expected at the Airport for the forthcoming World’s Fair, which

occurred in 1968.

16. The existing Terminal A (sometimes referred to as “Terminal 1” or “Concourse A”)

at SAT was commissioned in 1984 and has 16 gates. Its total area is 397,634 square feet. It is in

severe need of reconstruction, and even if the City follows through with tentative plans to renovate

Terminal A, it will still be much more narrow and less functional than Terminal C.

17. The existing Terminal B (sometimes referred to as “Terminal 2” or “Concourse B”)

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was constructed in 2010 and has approximately 247,099 square feet of space. It replaced an older

terminal but is not nearly as modern or useful to airlines as the new Terminal C will be.

The City’s Plan to Construct and Operate the New Terminal C

18. The new Terminal C is to be built at an approximate cost of $1.4 billion and will

be situated next to the existing Terminal B on the northwest end of the Airport’s current footprint.

It is slated to feature 17 gates and when it opens in 2028 will have approximately 850,000 square

feet, which is more than 30% larger than the combined existing Terminals A and B. See Exhibit

1 hereto. According to the City, the new Terminal C will have “[l]arger gate hold rooms for

enhanced passenger comfort,” a “Riparian Paseo entry and indoor courtyard to enhance sense of

place and River Walk feel,” a “[n]ew central passenger screening area” to provide an “all-access

pass to retail and concessions,” a “[n]ew, modern Federal Inspection Station for expanded

international air service,” and the City has designated “29,000+ sq. ft. club lounge space.” Source:

https://flysanantonio.com

The Airport’s Lease Negotiations

19. Negotiations for the new Lease began in mid-2022. Over the course of two years,

and on repeated occasions, Airport Director Saenz verbally committed to Southwest that

Southwest would have all or the majority of its 10 gates located in the new Terminal C. Based on

these assurances, prior to the end of May 2024, Southwest rightfully believed it was going to be

able to move its operations to the new Terminal C, and therefore did not focus on what might

happen with Terminal A, or how the City would pay for renovations to that Terminal.

20. Specifically, throughout the negotiations for new Lease space, Southwest took

negotiating positions based on its good faith belief that it would be moving to Terminal C, which

Southwest believed was critical for its future objectives for the SAT market and its passengers.

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Had Southwest been timely informed that Defendants were not actually planning to offer Terminal

C to Southwest, the airline would have adopted a different bargaining position and would not have

assumed that it was not remaining in Terminal A.

21. During a meeting on May 29, 2024 between Southwest’s Airport Affairs and the

City, despite having been repeatedly assured of its position in Terminal C, Southwest was informed

for the first time that the City had decided to instead require Southwest to remain in Terminal A.

The tactic was an unfair “bait and switch” that precluded Southwest from pursuing various

opportunities in the Lease negotiations, including material terms related to the capital improvement

plan that are prejudicial to Southwest should Southwest remain in Terminal A, and that Southwest

had no prior reason to negotiate based on assurances Southwest would be located in Terminal C.

In the same meeting, and in two follow-up emails, Southwest requested that the City provide the

underlying methodology it used to arrive at a gate allocation plan that resulted in the exclusion of

Southwest from Terminal C. Although the City verbally committed to disclosing its methodology,

it did not in fact do so.

22. Instead, at a meeting on June 7, 2024, held at Southwest’s request, the City provided

general information as to how Southwest would be accommodated in Terminal A, but largely

ignored the operational concerns raised by Southwest that would result from its placement in

Terminal A, including that Terminal A’s facilities were not sufficient to support Southwest’s

passenger volume or operational needs. This includes deficiencies with respect to the security

checkpoint (“SSCP”), baggage screening, Ticket Lobby, Curb Front, Holdroom Configuration,

Concourse Circulation Constraints, Restrooms, Technology, and finish upgrades. There also are

deficiencies in mechanical, electrical, and plumbing items that were identified in a previous City-

commissioned facility study.

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The Terminal Gate Assignment Methodology

23. Approximately two weeks after the June 7 meeting, on June 20, 2024, the City

finally provided Southwest and other airlines at SAT - for the first time - a document titled

“Summary of Decision-Making Process for Post-DBO Gate and Club Locations” (hereafter the

“SAT Gate Assignment Criteria”), Exhibit 2 hereto. This document sets forth the criteria applied

by the City in deciding where to locate airlines at SAT. The City’s SAT Gate Assignment Criteria

was never shared with Southwest before its release on June 20, 2024, and specifies:

“Factors [For Gate Assignment] Considered Included:

 Number of preferential gates requested by airline

 Whether an airline club was requested
 Whether airline operates or commits to operating international routes
 Whether airline has relevant code share arrangement(s)
 Current level of enplaned passengers @ SAT
 The airline’s “fit” into San Antonio
 The airline’s service, growth, and experience
 The existence of a written commitment by airline to city pairs, specific
flights, or minimum levels of enplaned passengers
 Potential need by airline for appurtenant City Gates (for expansion)
 Terminal load-balancing considerations”

(Emphasis added)

24. According to the City, the Airport decided that Southwest was not entitled to move

to the new Terminal C, whereas other competing airlines were invited to do so, based on the above-

listed factors. Remarkably, the City expressly acknowledges that in deciding which airlines to

allow to move to the new Terminal C, the City has weighed and first “considered certain non-

quantifiable considerations” such as (1) “Whether an airline club was requested,” (2) the

geographic nature of the routes served by the air carrier, (3) “the carriers’ ‘fit’ into San Antonio

(relating to desirability of passenger profile (business, leisure, mix, etc.) and airline brand position

(network, ULCC, established, start-up, etc.),” and (4) “the airlines ‘service, growth and

experience’ (which included an analysis of the airline’s overall reasonable growth potential and

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commitment to SAT, aspirations for international flights, and any differentiation of product or

technology used that would enhance customer experience).” (Emphasis added).

25. Even more remarkably, the City eliminated Southwest as a potential occupant of

Terminal C by concluding that “[N]otably that airline (WN) does not have an airline club as part

of its offerings.” “SAT Gate Assignment Criteria,” Ex. 2, at p. 1.

26. The City was well aware that requiring Southwest to remain in Terminal A would

present significant obstacles to Southwest but brushed aside these concerns, stating that the

“airport could partner with [Southwest] to ‘make the most’ out of the airlines’ substantial and

focused use of Terminal A.” Exhibit 2, at p. 2. This was further evidence that the City recognized

that it was treating Southwest as a second-class citizen at SAT.

27. Despite repeated requests by Southwest, the City has refused to provide Southwest

with the modeling reflecting the City’s application of the above-factors that led to Southwest’s

exclusion from Terminal C.

28. In a letter dated June 20, 2024, Denise McElroy, Sr. Manager – Airport Affairs at

Southwest, told Defendant Saenz that Southwest was “extremely concerned with [his] decision,

which [Director Saenz] just shared a few weeks [before], to keep Southwest Airlines in Concourse

A.” Southwest explained that the decision “will preclude [Southwest] from being able to operate

[its] long-term commercial plan for San Antonio (SAT). Southwest further stated:

“Our original plan, shared with you two years ago, was to lease up to 10 gates.
However, we currently do not have confidence that Concourse A can meet those
needs. This is a huge 11th hour change, and we must immediately validate whether
modifications can be made to meet all the elements of our operation. I recognize
your desire to complete negotiations quickly. We shared your goal and, until earlier
this month, we believed we were getting very close to a business deal based on our
understanding that Southwest would relocate from Concourse A and a pre-
approved [Capital Improvement Plan (CIP)] would incorporate a $200M
placeholder for Concourse A infrastructure and finish improvements.”

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29. In a letter to Defendant Saenz dated August 12, 2024, Southwest’s McElroy stated

that “Southwest continues to fervently maintain its desire to be located in the new terminal and

remains extremely disappointed at the City’s decision to keep Southwest and what will likely be

nearly 50% of the passengers flying through San Antonio International Airport (SAT) in Terminal

A.” The letter added:

“We met with Corgan [an architectural and design firm] and your staff three times
to evaluate Terminal A’s deficiencies with respect to the security checkpoint
(SSCP), baggage screening, Ticket Lobby, Curb Front, Holdroom Configuration,
Restrooms, Technology, and finish upgrades. We also understand there are
deficiencies in mechanical, electrical, and plumbing items that were identified in a
previous City-commissioned facility study. The Corgan analysis provided thus far
does not consider the full utilization of 10 gates as we requested because it restricts
peak demand. As a result, we remain extremely concerned that arriving passengers
will continue to overwhelm the curb front, ticket lobby and SSCP.

Also, the issue remains open as to what it will cost to modify Terminal A as will be
required to accommodate our 10-gate commercial plan. Regardless of the potential
investment to improve Terminal A, there are significant customer experience items
that cannot be mitigated. Terminal A concourse is too narrow and doesn’t meet
today’s design criteria. Increasing the hold rooms sizes as you propose will not
alleviate overcrowding in the concourse circulation area. Southwest’s international
operations will also be negatively impacted due to the relocation of the Federal
Inspection Station (FIS) facility from Terminal A to Terminal C. Splitting our
operation between two terminals will introduce operational complexity and
significantly increase passenger connection times. The customer experience for our
Customers will also suffer due to the potential relocation of the rideshare and taxi
area from its current location to a new Transportation Center which will
dramatically increase walk times for what will be over 50% of the total passengers
using SAT. The allocation of space types (valet, disabled) in the existing garages
when the new garage opens, e.g., if valet service is relocated to new garage, the
number of disabled spots is adjusted. Furthermore, access to the USO for those
Terminal A customers with military affiliations will be impacted with the relocation
of the existing USO to the new Terminal C. The cumulative effect of these items
certainly points to a degraded customer experience for Terminal A passengers
flying on the City’s largest air carrier. Southwest simply will not accept the
diminished experience for our Customers and Employees and the risk of facility
constraints to our future commercial plan by remaining in the airport’s oldest
facility. We look forward to further engagement with respect the aforementioned
issues.

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30. On August 26, 2024, Southwest Executives Jason Van Eaton, Sherri Hull and Steve

Sisneros met with City officials to reiterate Southwest’s concern that the City had not presented a

viable solution for Terminal A. Follow up emails further emphasized that Southwest could not

sign a new Lease until it received that critical information regarding how necessary capital

expenditures for Terminal A were to be funded, which the City has still not provided.

31. The City has stated its plan to enter into new Leases with those air carriers at SAT

that the City has approved to move to the new Terminal C and the other Terminals, and is planning

to execute those new Leases effective October 1, 2024. The new Leases contain a capital

improvement funding plan that is both underfunded and places Southwest at the mercy of its

competitors’ agreement to expend funds to improve Terminal A.

32. The City refuses to allow Southwest to enter into a new Lease for Terminal C.

According to the City, if Southwest wants to remain a “signatory airline” at SAT, it must agree to

remain at Terminal A, despite its inferior condition compared to Terminal C and despite the City’s

unlawful allocation methodology which prefers one airline over another based on “non-

quantifiable considerations” related to routes and services.

33. Southwest had no realistic option but to decline to sign a new Lease at SAT because

of its strong objection to the City’s unfair treatment of Southwest. Southwest could not agree to

conditions that would harm its ability to compete on an even playing field against other airlines.

34. In addition, if the City executes Leases with the other airlines at SAT it will be

nearly impossible for Southwest to be able to obtain the necessary renovations at Terminal A to

be able to operate its airline as planned, and to compete effectively against other airlines at SAT.

This is because the Leases contain a Majority-in-Interest (“MII”) clause that allows the signatory

airlines to block new capital expenditures that benefit their competitor(s).

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35. Despite the unlawfulness of how the City selected airlines to move to Terminal C,

the San Antonio City Council approved the new Lease terms on September 12, 2024 over

Southwest’s repeated and strenuous objections. This new, decade-long Lease is set to commence

on October 1, 2024, and seven airlines are already prepared to sign the Lease, without participation

by Southwest.

36. Requiring Southwest to remain in the old Terminal A will result in a diminished

experience for Southwest’s customers, will place Southwest on unequal footing with competing

airlines, and will preclude Southwest from being able to operate its long-term commercial plan for

SAT. Moreover, the selection process undertaken by the City for allocating gate space at the new

Terminal C is grounded in a publicly-disseminated gate assignment policy that is highly unlawful

on its face.

37. As the owner and operator of SAT, the City is not free to use subjective criteria to

choose one airline over another based on the preferences of the municipal government decision

makers. Airports are not legally entitled to pick “winners and losers” among the airlines that

choose to serve the airport. Yet that is precisely what the City has done in this case.

38. As set forth below, Defendants are violating the Airline Deregulation Act, by using

their airline selection criteria to improperly involve themselves with air carrier “services” and

“routes.”

39. Because Southwest is not able to sign the new Lease without acquiescing to the

City’s wrongful allocation process, the City intends to treat Southwest as a “non-signatory airline,”

which enables the City to charge Southwest more than the rents to be paid by the favored airlines

that are being allowed to execute new Leases for Terminal C. It also precludes Southwest from

being able to benefit from the revenue-sharing provisions in the Lease, or to have a voice in

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amounts spent by the City on capital improvements (including whether and how to make

improvements in Southwest’s assigned Terminal A), despite the fact that Southwest will be forced

to pay rates and charges to fund those projects.

40. On September 20, 2024, Southwest sent Defendants a letter which set forth the

basis for its claim that the Defendants are violating the Supremacy Clause and the Airline

Deregulation Act, and requested that Defendants “immediately rescind [the] unlawful SAT Gate

Assignment Policy and either move [Southwest] to Terminal C or establish a viable plan for

Terminal A that resolves the issues [that Southwest has] raised and puts [Southwest] on equal

ground with the rest of the carriers at SAT.” Copy attached as Exhibit 3 hereto, at p. 5.

41. The letter added that “[b]ecause the new lease is set to take effect on October 1,

2024, time is very much of the essence,” and Southwest requested that Defendants “take corrective

action no later than Wednesday, September 25, 2024.” Id.

42. Although Defendants did respond to Plaintiff’s letter, they did not grant Plaintiff’s

request and reiterated the City’s intention to enter into a new Lease with seven airlines on October

1, and to simultaneously force Southwest to accept inferior facilities as a result of the City’s flawed

Gate Assignment Criteria.

CLAIM FOR RELIEF

43. Plaintiff restates and incorporates herein the allegations set forth above.

44. Defendants’ use of the Gate Assignment Criteria to deny Southwest the ability to

execute a Lease for gate space at Terminal C violates the Supremacy Clause, U.S. Const. art. VI,

cl. 2, and the Airline Deregulation Act, 49 U.S.C. § 41713(b), because it bases the allocation of

terminal gate space on subjective preferences and criteria that are prohibited by the Act.

45. Congress enacted the Airline Deregulation Act in 1978, loosening economic

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regulation of the airline industry after determining that “maximum reliance on competitive market

forces” would best “further efficiency, innovation, and lower prices.” Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 384-87 (1992). Congress’ “overarching goal” with regard to the

Airline Deregulation Act was to help assure that transportation prices, routes and services reflected

“maximum reliance on competitive market forces,” thereby stimulating not only efficiency,

innovation and low prices, but also variety and quality in transportation services. Morales, at 378.

46. Under the Airline Deregulation Act, a local government that operates an airport

may not apply a provision which relates to an air carrier “route” or “service.” The statute provides:

“Except as provided in this subsection, a State, political subdivision of a State,

or political authority of at least 2 States may not enact or enforce a law,
regulation, or other provision having the force and effect of law related to
a price, route, or service of an air carrier that may provide air transportation
under this subpart.” 49 U.S.C. § 41713(b)(1) (emphasis added)
47. “A majority of the circuits to have construed ‘service’ have held that the term refers

to the provision or anticipated provision of labor from the airline to its passengers and encompasses

matters such as boarding procedures, baggage handling, and food and drink – matters incidental

to and distinct from the actual transportation of passengers.” Cuomo, at 223. See Hodges v. Delta

Air Lines, Inc., 44 F.3d 334, 336-38 (5th Cir. 1995) (en banc). The term “services” “extend[s]

beyond prices, schedules, origins and destinations.” Id.

48. The SAT Gate Assignment Criteria document clearly relates to airline “services.”

The Policy expressly states that one of the relevant factors is airline “service”: “The airline’s

service, growth, and experience.” Exhibit 2 hereto. This is on its face a violation of the Airline

Deregulation Act, which does not allow the Airport to consider the nature of the “service” in

deciding how to accommodate the airline at the Airport.

49. In addition, giving priority or a better terminal space to an airline because it offers

First Class or airport lounges - or is deemed to be a superior “fit” with the locality - is a local

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provision that relates to air carrier “service.” The SAT Gate Assignment Policy states that a key

factor in gate allocation is: “The airline’s ‘fit’ into San Antonio.”

50. This “fit” factor is an especially blatant violation of the Airline Deregulation Act.

Airports may not give better terminal space because of a subjective belief that the favored carrier

is a better “fit” with the community.

51. Nor may an airport afford priority or a better terminal space to an airline because

they offer more international flights, or to further away international destinations, as that is a local

provision that relates to air carrier “routes.”

52. At its core, the manner in which an airline is accommodated at a federally-funded

airport cannot be predicated on the airport operator’s subjective perception as to the carrier’s “fit”

into San Antonio, the nature of the passenger population (“business, leisure, mix, etc.”), or the

“airline brand position.”

53. As the owner and operator of SAT, the City is not free to use subjective criteria to

choose one airline over another based on the desire of the municipal government decision makers.

Airports are not legally entitled to pick “winners and losers” among the airlines that serve to choose

the Airport. See New York Airlines, Inc. v. Dukes County, 623 F. Supp. 1435 (D. Mass. 1985)

(allowing claims to proceed against airport for refusing to permit air carrier to provide service that

other airlines were able to provide). Yet that is exactly what Defendants have done here. See

Southwest Airlines’ future at San Antonio International up in the air, www.kens5.com (“‘We want

to create an environment where everyone is competitive and we understand that not everyone can

win every time,’ said Jesus Saenz, director of SAT”) (emphasis added); Page 2 of Ex. 2 (describing

how all other carriers’ requests and needs were accommodated but telling Southwest to “make the

most” of what it was given).

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54. Finally, the City cannot avail itself of the narrow “proprietary powers” exception

to the Airline Deregulation Act’s prohibition, in 49 U.S.C. § 41713(b)(3). “Courts have . . .

recognized that local proprietors play an extremely limited role in the regulation of aviation.”

Arapahoe County Public Airport Authority v. FAA, 242 F.3d 1213, 1222 (10th Cir. 2001). See

also Am. Airlines, Inc. v. DOT, 202 F.3d 788, 806 (5th Cir. 2000) (“courts have recognized that

local proprietors play an ‘extremely limited’ role in the regulation of aviation”).

55. The City’s application of subjective criteria to deny Southwest access to Terminal

C is not the sort of “regulatory conduct related to safety and civil aviation needs [that] may fall

under the ‘proprietary powers’ umbrella . . . .” Id. at 1214 (airport authority “failed to demonstrate

that [its] ban” on passenger service was “necessary for the safe operation of the airport” or was

“necessary to satisfy the public’s civil aviation needs”). Under no circumstances can the limited

“proprietary powers exception” be construed to authorize the City to make gate assignment

decisions based on its subjective perception of the nature of the “service” offered by an airline or

the “fit” between the airline and the City of San Antonio, or similar considerations. See Legend

Airlines, Inc. v. City of Ft. Worth, 23 S.W.3d 83, 94-95 (Tex. App. 2000) (city’s enforcement of

regional airport bond ordinance restricting routes and services at Dallas Love Field to protect

Dallas-Fort Worth Airport’s competitive position was not a valid exercise of the city’s “proprietary

powers” and therefore was preempted by the Airline Deregulation Act).

56. It is imperative that the Court issue a preliminary injunction preventing the

Defendants from entering into leases with other air carriers for space in Terminal C and the other

Terminals so as to preserve the status quo while the Court considers Southwest’s request for a

judgment declaring that the Gate Assignment Criteria used by Defendants’ to bar Southwest from

Terminal C violates the Supremacy Clause and the Airline Deregulation Act. At this time, no

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 Case 5:24-cv-01085-XR Document 1 Filed 09/26/24 Page 17 of 18

Leases are yet operative for Terminal C or the other Terminals but that is poised to change as soon

as October 1, 2024.

PRAYER FOR RELIEF

For the reasons set forth above, Plaintiff Southwest Airlines Co. respectfully requests that

the Court:

1. Pursuant to 28 U.S.C. § 2201, issue a judgment declaring that the Defendants’ use

of their Gate Assignment Criteria (Ex. 2) to deny Southwest the ability to execute a Lease for gate

space at Terminal C violates the Supremacy Clause, U.S. Const. art. VI, cl. 2, and the Airline

Deregulation Act, 49 U.S.C. § 41713(b), because it bases the allocation of terminal gate space on

subjective preferences and criteria that are prohibited by the Act;

2. Pursuant to Rule 65, Fed. R. Civ. P., issue a temporary restraining order and

preliminary injunction, and ultimately issue a permanent injunction against Defendants, enjoining

them from continuing to violate the Supremacy Clause, U.S. Const. art. VI, cl. 2, and the Airline

Deregulation Act, 49 U.S.C. § 41713(b), entering into, recognizing as effective or otherwise acting

in furtherance of new Leases with airlines that are based on Defendants’ unlawful gate allocation

policy at SAT; and

3. Award Plaintiff all other relief to which it is entitled under the law.

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 Case 5:24-cv-01085-XR Document 1 Filed 09/26/24 Page 18 of 18

Dated: September 26, 2024 Respectfully submitted:

THE MORALES FIRM, P.C. CLARK HILL PLC

/s/ Lawrence Morales II /s/ Mark G. Sessions

Lawrence Morales II Mark G. Sessions
State Bar No. 24051077 State Bar No. 18039500
6243 West Interstate 10 Forest M. “Teo” Seger III
Suite 132 State Bar No. 24070587
San Antonio, Texas 78201 Charlie Hayes
Tel. (210) 225-0811 State Bar No. 24116496
Email: [email protected] 2301 Broadway Street
San Antonio, TX 78215
Tel. (210) 250-6162
Email: [email protected]
[email protected]
[email protected]

M. Roy Goldberg
1001 Pennsylvania Avenue, N.W.
Suite 1300 South
Washington, D.C. 20004
Tel. (202) 552-2388
Email: [email protected]
(Application to be Admitted Pro Hac Vice
Forthcoming)

COUNSEL FOR PLAINTIFF SOUTHWEST AIRLINES CO.

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