FAA DEFENDS GROUNDING OF ABANDONED NEWARK FLIGHT SLOTS
June 3, 2020
On May 15, 2020, the FAA filed its first brief in a case initiated by Spirit Airlines in the U.S. Court of Appeals for the D.C. Circuit in December 2019 in an attempt to force the FAA to grant Spirit grandfathered Newark Airport slots that Southwest Airlines relinquished in 2019. Once Southwest decided to relinquish its grandfathered slots at the Newark, the FAA announced it would not recommend new flights in those Southwest slots at this time. Through this lawsuit, Spirit is attempting to force the FAA to grant those slots previously held by Southwest to Spirit.
At Newark, the FAA reviews airline flight proposals for a six-month period, then provide slot recommendations based on those airline proposals in an effort to reduce congestion. However, the FAA does not technically “approve” the airline proposals, airlines are not required to follow the FAA’s recommendations, and airlines are legally free to operate unapproved flights. In defense against the lawsuit, the FAA argues that there is not a true controversy to support the lawsuit as Spirit can operate flights that replace Southwest’s grandfathered operations even without the FAA’s approval or granting of Southwest’s slots to Spirit.
Furthermore, the FAA argues that Spirit’s lawsuit should not have been filed yet because the FAA’s refusal to recommend another airline taking over Southwest’s slots was not a final agency action. The FAA contends that Spirit is required to await the results of FAA’s Summer 2020 recommendation process, which has not yet been completed, and then seek review of that FAA decision.
This litigation is still ongoing, and we will provide updates as they become available.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com or 202-659-6622); Drew Derco (dderco@eckertseamans.com or 202-659-6665), or Andy Orr (aorr@eckertsemans.com or 202-659-6625).
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