made his or her morning run we will remember have a petition or washington county congress enacted the essential air service program based on its appreciation of the fact that with the deregulation of the airline industry preserve prefer to serve the larger airports with higher passenger traffic which created a serious service problem for the smaller airports like hagerstown and it's a serious blow to a community like hagerstown when the essential  air service funding is cut off so that there's no ability to have that particular service to the community now in this case the decision to terminate yes funding by the department of transportation was arbitrary caprici use of discretion and not supported by substantial evidence because the department denied the petition for a waiver of the tenon plan requirement without addressing the various indicia of evidence that was proffered on april t thousand and nineteen by washington county for why the airport was likely to satisfy the ten and claimant requirement going forward the average fact that you have at least ten passenger a moment because on the global issue it's not relevant because the global issue was the most important issue before your honor's is the statutory reference that said that even if you're not meeting the ten average daily  o choose a remedial step is one in which we would have to give an agency a good deal of discretion well there is some discretion but it's not it's not unlimited your honor and here let me just give a classic a waiver was filed in april of two thousand and nineteen to petition for a waiver said secretary waive the ten employment requirement because we're going to be didn't future and here's why we're going to meet a st of all we're already meeting it now so it's not like we're not meeting it now but we hope to meet in the future so one condition was in this year we're already media in fact in december two thousand a team was our best december in five years so that was one factor the other factor was we've been talking about this in our line agreement with american airlines which is going to make it seem less and people who go into a dot com travelocity expedia and we know we've talked about that before and you've addressed that in prior waiver decisions because what in march of two thousand got a wrong they actually said we're denying your service termit your subsidy because you failed to comply with that the two hundred dollars subsidy cap and then our petition for reconsideration said that's not fair the subsidy cap can apply if we actually had a better year item and they conceded that they did yeah that that's not valid well it's relevant to show that the agency was was disposed to deny the funding here and they found  farm decision gives me i hope this isn't there this is a problem that i have no councils that in response to the government arguing that this is isn't reviewable because there is no standard meaningful standard against which we can judge the agency's decision you say yes it is in the standard of review of who review bill of the use whether the secretary considered all the evidence that we submit that's the way that we're supposed to judge whether there's a meaningful standard in every thing an agency does is review will no matter how the statute is written because the agency's always going to be tasked with considering with every evidence is presented to it by an applicant or anyone else so so if to get review of will the all you have to do is say the agency didn't consider all the evidence before it in and that means that this decision is reviewable then we might as well not have that subsection of seventy one because it is its meanings your honor as an excellent question and it's a matter of degree obviously if the agency had considered various factors here the fifty thousand and the interline agreement the contour agreement and the facts presented whether or not it's review with all well no i think there's two issues in this particular case there's a record that there were were four to five arguments that were not even addressed in the decision so that's different than another situation where you might be a nit picker and say well they generally try to address almost every issue but you know they forgot in their comments or in the federal register to address something in this particular case your visual review obviously congress knows how to say i've had cases before but they say the secretary's decision is not so there's additional review that's the st step part of the statute the nd part is there could be certain very limited discretionary decisions but i think the weyerhaeuser decision the supreme court shines a light on the issue to say how do you have a statute that says agencies can abuse their discretion if then you turn around and say but if it's a discretionary issue it's not set if you will review in this particular case it's a pretty clear there was a fact in termination secretary is the what would what in the statute tells us how the secretary supposed to determine whether he satisfied well i think you know the issue and i believe it was just silverman's case in connecticut i mean the fact that it says the secretary satisfaction in that case it was department of interior i believe does not mean that the secretary gets full discretion i think if it's the interest of justice that would be a good example of where courts have said we don't know what that is or maybe in the webster case where it was national security was an issue if somebody had access to secure information that would be that discretionary kind of issue here we're talking about a factual determination is it likely that the tenon plame and requirement is going to be met in the future and that's the factual determination that agencies made how are we how are we supposed to know when that's you know this isn't like where hauser where there was a description of what the agency was supposed to consider there in making that particular determination there demonstrates to the secretary satisfaction that the reason the location average has fewer than ten in plane is per day is due to a temporary decline in planes which is a factual determination and just look and see if the agency had gone future judgment as to whether the past situation was temporary or not based on the factors that you're that's right so if it requires the secretary to make a factual determination as to what the future facts are and we have cases including the one an agency is charged with making future factual determination we tend to defer those more i think there's deference that certainly are appropriate here but again if the agency had said we're going to look at the beginner line situation how we make impact and improve employment and then based on its discretion decided against it then the deference might be not be able to maintain the ten planned deplaning requirement given the fact that there are three airports with an eighty miles that alone is not entitled to deference because that  much more searching review of a waiver germination and i think we've ever given no your honor i'm just asking for the agency to actually consider the evidence before it i don't know what about this case would say state farm doesn't apply that's what i don't that's  hear why you don't have a waiver provision at all if the agency ignores the petition for a waiver evidence and then makes a decision based on other grounds i mean this is basic they don't even try to look at the evidence before them so whatever standard your honour's want to give or think is appropriate at a minimum the agency has to at least consider the evidence that's presented we would submit it otherwise why even have a waiver provision at all congress clearly wanted the agency to consider the implant levels and to give consideration to the petition we're not asking for some high standard or to substitute this court's judgment for the agency or even saying that one expert is entitle to win over another or th evidence is better than another nothing like that nothing even like a searching standard just the basic state farm issue that says in denying or granting a waiver don't ignore the evidence is before you which is what happened in th the agency did not ignore that evidence in its st decision its final order in aug twenty one thousand and eight and all of that a waiver petition had been submitted it summarized the arguments that hagerstown made in its waiver petition it did not ignore them altogether and then explain the reasoning for why it was rejecting the waiver petition and it agency gave three reasons for that it's denial st hagerstown had been out of compliance for five out of the six fiscal years the ten and claimant requirement had been in eighty miles of three different major airports and the department predicted on the basis of those factors that that hagerstown would not come in to sustain compliance and that the reason for its prior noncompliance was not  playing the so i think if you had a situation where a location was out of compliance for several years in a row eked out compliance in one year and then was out of compliance for several more years in a row i think the agency could reasonably conclude then that you know isolated compliance doesn't show that the reason for their noncompliance is a temporary decline in implants because that noncompliance it's long lasting and is not limited t actually wrote this country i think it's not your honor that's a connecticut case i think that there's two there's two factors that render this decision not reviewable one is that this the question of the agency had to itself but in combination for instance if the agency had said in denying the waiver is we tend to prefer texas for political reasons over maryland will be any question that but i think that's a tough question i think you make a much better argument to suggest that there is limited review  projections in the future on the part of an agency plus there's limited review of a waiver determination just like there is of a remedial germany yes you only make that argument too and i would note that if the court agrees with us on the merits and the court doesn't even need to reach the review ability argument which is not jurisdictional and i think that's absolutely right i think that the agency made a prediction about future events and examined the entire record of in the past non compliance and that made you see the term nation is subject to a great deal of deference if it's makes two separate him and so one is they argue that when the department was deciding whether the fiscal year eighteen compliance was temporary the department should have looked at the fiscal year in one thousand data the nd argument is that no because  argument about failure to consider that day that they raised that point reconsideration and the agency said two things agency said st of all congress has charged us with looking at the prior year which at that point was fiscal year eighteen and and that's what we did people have a chance to come in they have a chance to come in dispute the data and explain why things are going to turn around and so we don't need to look at partial your data that applicants walked into reconsideration or otherwise agency also said that even if the data were accurate and extended to the full year a single year of compliance wouldn't change its conclusion that the reason for the prior noncompliance was was not a temporary decline in planes and that's consistent with the history here where there was one out there instance where hagerstown did come into compliance and they dropped immediately back down the next year  so i mean the other thing i think the agency's decision was especially reasonable because of the better kinds of things that hagerstown was raising and this waiver requests were very similar to the things that they raised another year so for example in fiscal year seventeen the prior when they when they asked for a waiver hagerstown said southern airlines has had any liability problems there is a pilot shortage due to two thousand and thirteen at a rule we you know they turn that around they don't have full supply of pilots and our completion rate is that ninety nine percent fiscal year eighteen still not into compliance and they said ok we've had reliability problems and both now have a four to five pilots in our completion rate is that ninety nine percent or close to one hundred percent i think was reasonable for the agents agency to say look you made these predictions in the past circumstances on the ground have changed that hasn't turned around and we think that that shows that the proximity to three airports is going to make it very hard for you to recover and placements on going forward basis but i would know that there are in the program there there are out of the about forty airports that are locations that are subject to the tandem payment requirement very being over the  to think one crucial point on this airline agreement and there's some back and forth here the d o t decision does not address the implementation of the american airlines airline agreement and it was a game change and the point is is that they were told to do it he was told in april two thousand and nineteen that this agreement was fully implemented a month before march two thousand and nineteen so yes if the agency had come back and said well we don't really think that that's going to matter then that would be a different issue but they ignored it counsel said that it was addressed in the order i know the judges will go back and see it's not there they make other they talk about how far the airport is from other airports puts a lot of congressional stock in as to whether there is such an interim one agreement in place so when the airport went to the d o t and said we want a waiver we think we're entitled to it is airline agreement it wasn't just taking some you know arbitrary issue it was one of the core things that is part of this essential air service it's the difference maker as to why an airport like this can continue with essential air service and it was whatever standard could apply whatever difference we would submit your honor in this particular case i believe there was an issue as to whether or not we had a waiver for two thousand and seventeen and in that particular case certainly the issue of the fact that the law changed in two thousand and thirteen and pilots needed a lot more rest in training so there was a pilot shortage that was certainly raised as an issue there i can't remember whether or not be at that point were same or working one hundred in one room and i can tell you that for five years before there was no similar in a line agreement but i will say that and this is maybe some of the thing to be clear so in one year they county goes the agency says we're getting in their line agreement with american in place then the evidence in the record also shows that took a while longer than everybody wanted and it didn't get implemented immediately in fact it didn't get implemented fully until march of two thousand and nineteen so all this is in the record and i think it was arbitrary for the d o t just to say well you made the argument before and so we're not going to consider it now was actually is more than they did they didn't consider it that's the basic issue here your honor is that there's a way the agency i imagine could have reached the decision they did had they actually paid attention to what was submitted but for whatever reason in the st instance it was a relative or shows the agency actually made  conclusion of law and then on their nd issue which brings us here today primarily the issue of two thousand and eighteen they ignored the evidence so whatever different standard and your honor finally did rogers i knew that we were confusing on this we have a separate issue which we said we would when separately on which is when they got around to doing a final decision they should have looked at f y twenty one thousand dollars but to be clear that is different than the waiver issue the producer today