Board of County Commissioners v. DOT

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 12, 2020 Decided April 7, 2020

No. 19-1210

BOARD OF COUNTY COMMISSIONERS OF WASHINGTON

COUNTY, MARYLAND AND HAGERSTOWN REGIONAL AIRPORT,

PETITIONERS

v.

UNITED STATES DEPARTMENT OF TRANSPORTATION AND

ELAINE L. CHAO, IN HER OFFICIAL CAPACITY AS SECRETARY OF

TRANSPORTATION,

RESPONDENTS

On Petition for Review of Orders of the

United States Department of Transportation

M. Roy Goldberg argued the cause for petitioners. With

him on the briefs was M. Denyse Zosa.

Charles E. Enloe, Trial Attorney, U.S. Department of

Transportation, argued the cause for respondents. With him

on the brief were Michael F. Murray, Deputy Assistant

Attorney General, U.S. Department of Justice, Robert B.

Nicholson and Bryan J. Leitch, Attorneys, Paul M. Geier,

Assistant General Counsel, U.S. Department of

Transportation, and Peter J. Plocki, Deputy Assistant General

Counsel.

2

Before: ROGERS and WILKINS, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

SILBERMAN, Senior Circuit Judge: Petitioners

Hagerstown Regional Airport and the Board of County

Commissioners of Washington County, Maryland seek review

of the Department of Transportation’s determination that

Hagerstown Airport was not eligible for federally subsidized

air service because it did not meet the statutory

“enplanement” requirement (the number of passengers

boarding at the location). This, in effect, means that Southern

Airways (apparently a major carrier at Hagerstown) will not

receive subsidies for its service there.1 We defer to the

Department’s decision not to waive the airport’s failure to

meet the enplanement requirement, and we therefore reject

the petition.

I.

Congress established the essential air service program to

subsidize air carriers serving smaller communities that would

otherwise lack such service because of insufficient demand.

See Mesa Air Grp., Inc. v. Dep’t of Transp., 87 F.3d 498, 500

(D.C. Cir. 1996). To qualify as an “eligible place” for the

program, a community must meet a number of requirements.

49 U.S.C. § 41731(a). As relevant here, communities within

175 driving miles of a large or medium hub airport must

demonstrate they “had an average of 10 enplanements per

service day or more, as determined by the Secretary, during

1

The airport and its Washington County owners have Article

III standing because if Southern Airways loses its subsidies, the

airport will suffer significant economic loss.

3

the most recent fiscal year beginning after September 30,

2012.” Id. § 41731(a)(1)(B). As noted, enplanements are the

number of passengers in the community in question that board

flights operated by carriers that are eligible to receive the

program subsidies. Id. § 41731(f). Even where a community

does not meet the enplanement standard, the Secretary “may

waive” the requirement on an annual basis if the community

“demonstrates to the Secretary’s satisfaction” that the reason

the location averages under 10 enplanements per day is due to

a “temporary decline.” Id. § 41731(e).

Hagerstown Regional Airport is located in Washington

County, Maryland and is within 80 miles of three large hub

airports: Washington Dulles International Airport,

Baltimore/Washington International Thurgood Marshall

Airport, and Ronald Reagan Washington National Airport.

Since the enplanement requirement went into effect,

Hagerstown fell well below the 10-enplanement standard in

four out of the five years leading up to fiscal year 2018.

However, the Department granted the airport a waiver of the

requirement each year it fell short. Unfortunately, for fiscal

year 2018, Hagerstown again failed to meet the requirement,

with a daily average of 7.9 enplanements. This time, on

August 23, 2019, however, the Department declined to grant

the airport a waiver. The Department concluded that

Hagerstown had failed to demonstrate to the Department’s

satisfaction that its shortfall was due to a temporary decline in

enplanements, in light of Hagerstown’s history of

noncompliance as well as its proximity to three major hub

airports. The order denying waivers terminated Hagerstown’s

eligibility for the subsidy program.

The petitioners sought reconsideration, relying on a

purported increase in enplanement numbers during fiscal year

2019, and contending that Hagerstown’s situation was

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virtually identical to that of Victoria, Texas—a community

for which the Department did grant a waiver. The

Department affirmed its prior decision; it reiterated its earlier

reasoning for withholding a waiver from Hagerstown and

distinguished the circumstances of Victoria, Texas.

Hagerstown and the Board of Washington County

Commissioners now seek review.

II.

It is undisputed that Hagerstown Airport did not meet the

statutory enplanement requirement for fiscal year 2018, or in

four out of the previous five years. The petitioners argue that

it was arbitrary and capricious for the Department to refuse to

grant the airport a waiver as it had done four times previously,

in part because the decision was inconsistent with those prior

waivers, and in part because the Department did not consider

all of the evidence the petitioners offered to demonstrate that

the decline in enplanements at the airport was temporary.

Moreover, as they contended when seeking rehearing, the

petitioners claim that the Department’s grant of a waiver to

Victoria, Texas demonstrated that its decision regarding

Hagerstown was unreasonable.

The Department responds initially that its decision is not

subject to judicial review because, in its view, § 41731(e)

grants the Secretary complete discretion as to whether to

waive the enplanement requirement. Therefore, the

Department contends, there is effectively no law for us to

apply. See Drake v. FAA, 291 F.3d 59, 70 (D.C. Cir. 2002); 5

U.S.C. § 701(a)(2).

To be sure, the statutory language, which speaks in terms

of “the Secretary’s satisfaction,” clearly limits the scope of

our review. 49 U.S.C. § 41731(e). But the Department goes

too far to say that there is no law for us to apply, because

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there is an objective standard governing the Secretary’s

waiver decision: whether the location’s failure to meet the

enplanement requirement is due to a temporary decline in

enplanements. Id.; cf. Dickson v. Sec’y of Def., 68 F.3d 1396,

1401–04 (D.C. Cir. 1995). The “statutory reference point” in

this case is thus more than merely “the [Secretary’s] own

beliefs.” Drake, 291 F.3d at 72. The inquiry does involve, as

we discuss below, predictive judgments, but whether a record

supports the conclusion that a decline in enplanements is

“temporary” is susceptible to judicial review. For instance, if

the Secretary were to refuse a waiver simply because she

disfavored the section of the country in which an airport was

situated, or if she treated identical airports differently, we

have little doubt that we would reject her decision. Cf. Conn.

Dep’t of Children & Youth Servs. v. Dep’t of Health &

Human Servs., 9 F.3d 981, 985–86 (D.C. Cir. 1993).2

Our scope of review would nevertheless be limited even

if the statute did not refer to “the Secretary’s satisfaction,”

since the Department’s decision deals with an agency’s

authority to waive a statutory requirement. An agency’s

decision whether to grant a waiver excusing a violation of a

standard, like a decision to choose a particular remedy for a

violation of a statute or a rule, is one that carries policy

implications, and therefore should be given considerable

deference. See City of Angels Broad., Inc. v. FCC, 745 F.2d

656, 663 (D.C. Cir. 1984); see also Butz v. Glover Livestock

Comm’n Co., 411 U.S. 182, 185 (1973).

Turning to the specific arguments the petitioners raise,

we are unconvinced by the contention that the Department

2

The government’s reliance on Lincoln v. Vigil, 508 U.S. 182

(1993), accordingly is misplaced. Lincoln involved a lump-sum

appropriation without standards governing how the funds in

question were to be allocated. Id. at 192–94.

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acted arbitrarily because it had been so forgiving in the past.

Apparently “no good deed goes unpunished.” Under the

petitioners’ theory, it seems the Department would be obliged

to grant Hagerstown a waiver of the enplanement requirement

perpetually. But the Department was entitled to credit

Hagerstown’s explanations and predictions less after another

year of noncompliance.

The petitioners did present evidence to the Department

that they claim showed that Hagerstown Airport would meet

the enplanement standard after fiscal year 2018. They pointed

to purported enplanement numbers from fiscal year 2019,

updated in their petition for reconsideration. They claimed

that a relatively new interline agreement between Southern

Airways and American Airlines would attract more

passengers. And they stated that Southern Airways had

become more reliable by recruiting and maintaining a stable

supply of pilots. The Department acknowledged these

contentions, but it relied on the airport’s unsatisfactory past

record and the unfortunate fact that the airport is so close to

three major hubs. The Department evidently concluded that

Hagerstown’s history and location outweighed all of the other

points the petitioners had raised.3

Essentially, the task facing the Department was to make a

prediction about future facts. That brings to the fore another

ground for deference—as if another one was needed. Both

the Supreme Court and our court have recognized that

agencies should be given a wide berth when making

predictive judgments. See Motor Vehicle Mfrs. Ass’n of U.S.,

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52, 53

(1983); U.S. Telecom Ass’n v. FCC, 825 F.3d 674, 707 (D.C.

3

The petitioners also stated that local advertising had

increased the number of enplanements at Hagerstown and that more

advertising was in the works, but that is hardly persuasive evidence.

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Cir. 2016). Again, that is so because such predictions are

policy-laden, and courts are not well equipped to second-

guess agency estimates, especially where those estimates fall

within the field of an agency’s expertise. The Department’s

view that Hagerstown’s history of noncompliance and its

location are superior predictors of future enplanement

numbers is reasonable and therefore is entitled to deference.

Finally, there is the petitioners’ contention that the

Department’s treatment of Hagerstown is inconsistent with its

decision to grant a waiver to the community of Victoria,

Texas. The agency’s short and completely adequate answer

was that (1) Victoria has a new air service carrier “with

increased frequency and service to a new hub,” and (2)

Victoria is 119 miles away from the nearest medium or large

hub, whereas Hagerstown is within 80 miles of three large

hub airports, which does not bode well for its future traffic.

App. at 200. It was reasonable for the Department to rely on

these factors in distinguishing Victoria from Hagerstown.4

***

For the foregoing reasons, we deny the petition for

review.

So ordered.

4

The petitioners also claim that Hagerstown Airport’s fiscal

year 2019 enplanements satisfied the enplanement requirement,

rendering the airport eligible for the essential air service program

even without a waiver. But the Department properly evaluated

Hagerstown’s enplanements concerning fiscal year 2018, as its

order terminating Hagerstown’s eligibility was issued on August

23, 2019, before fiscal year 2019 was complete.