 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
                               4
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
                               5
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.
                                 6
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.
                                 7
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.
