Southern Airways Express , LLC v. United States Department of Transportation

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2025 Decided November 14, 2025
No. 24-1358
S OUTHERN AIRWAYS EXPRESS , LLC,
P ETITIONER
v.
UNITED S TATES D EPARTMENT OF TRANSPORTATION AND S EAN
P. DUFFY, IN HIS OFFICIAL C APACITY AS S ECRETARY OF
TRANSPORTATION ,
R ESPONDENTS
On Petition for Review of an Order
of the U.S. Department of Transportation
Kenneth S. Nankin argued the cause and filed the briefs for
petitioner.
Erin D. Hendrixson, Senior Trial Attorney, U.S.
Department of Transportation, argued the cause for
respondents. With her on the briefs were Robert B. Nicholson
and Steven J. Mintz, Attorneys, U.S. Department of Justice,
Gregory D. Cote, Acting General Counsel, U.S. Department of
Transportation, Charles E. Enloe, Assistant General Counsel,
U.S. Department of Transportation, and Peter J. Plocki,
Deputy Assistant General Counsel, U.S. Department of
Transportation.

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Before: H ENDERSON and R AO , Circuit Judges, and
EDWARDS , Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS .
EDWARDS , Senior Circuit Judge: In 1978, Congress passed
the Airline Deregulation Act, Pub. L. No. 95-504, amending
the Federal Aviation Act of 1958, Pub. L. No. 85-726, to
significantly limit federal regulation of airline prices, routes,
and services. However, this deregulatory legislation raised
concerns that “communities with relatively low passenger
levels would lose service as carriers shifted their operations to
serve larger and often more profitable markets.” R ACHEL Y.
TANG, C ONG. R SCH. S ERV., R44176, ESSENTIAL AIR S ERVICE
(2018). To address this issue, Congress enacted the Essential
Air Service (“EAS”) program, 49 U.S.C. §§ 41731-46, “to
ensure that small communities that were served by certificated
air carriers before deregulation would continue to receive
scheduled passenger service, with subsidies if necessary.” Id.
This case concerns a challenge to an action taken by the
U.S. Department of Transportation (the “Department” or
“DOT”) to implement the terms of the EAS program. In 2024,
DOT selected SkyWest Airlines, Inc. (“SkyWest”), from
among several applicants, to receive a federal subsidy to
provide EAS for Morgantown, West Virginia. Order Selecting
Air Carrier (“Final Order”), DOT Order 2024-9-18 (Sep. 20,
2024), reprinted in Joint Appendix (“J.A.”) 106-15. Southern
Airways Express, LLC (“Southern”) now petitions for review
of DOT’s Final Order selecting SkyWest. Southern is a
commuter airline that served as the EAS carrier for
Morgantown from November 2016 until the commencement of
SkyWest’s term in December 2024.

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In considering the applications from carriers seeking to
serve as the Morgantown EAS provider, the Department
weighed five statutory factors: (1) the reliability of the
applicant; (2) the types of agreements “the applicant has made
with a larger air carrier serving the hub airport”; (3) the
community’s preferences; (4) whether the carrier has a
marketing proposal; and (5) “the total compensation proposed
by the air carrier.” 49 U.S.C. § 41733(c)(1)(A)-(D), (F). On
September 20, 2024, after reviewing the competing
applications, the Department selected SkyWest as the EAS
carrier for Morgantown for a three-year term from November
1, 2024 through October 31, 2027. In support of its decision,
DOT explained that “SkyWest’s proposal aligns well with the
air carrier selection criteria required for evaluation,” finding
that “SkyWest has a proven record of providing reliable EAS
in markets around the country” and that its “codeshare
agreement with United Airlines will give passengers broad
access to the national air transportation system via United’s
extensive domestic and international network.” Final Order at
4, J.A. 109.
Following the issuance of DOT’s Final Order, Southern
filed this action, pursuant to 49 U.S.C. § 46110, against the
Department and the Secretary of Transportation to challenge
DOT’s decision in favor of SkyWest. Southern has asserted a
cause of action under the Administrative Procedure Act
(“APA”), 5 U.S.C. § 706(2), claiming variously that the
Department’s Final Order should be set aside because it is
arbitrary and capricious, not supported by substantial evidence,
and in excess of statutory authority. In support of these claims,
Southern has argued that the Department failed to demonstrate
that it had meaningfully analyzed and weighed the applicable
statutory decisional factors.

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As a threshold matter, we agree with the parties that we
have jurisdiction to review Southern’s petition pursuant to the
specific grant of jurisdiction to this court in 49 U.S.C.
§ 46110(a). The statute says, “a person disclosing a substantial
interest in an order issued by the Secretary of Transportation .
. . may apply for review of the order by filing a petition for
review in the United States Court of Appeals for the District of
Columbia Circuit . . . not later than 60 days after the order is
issued.” Southern’s request for review of DOT’s contested
Final Order in favor of SkyWest, filed on November 15, 2024,
was clearly a timely petition for review with respect to a matter
covered by the explicit terms of § 46110(a).
On the merits, we are unpersuaded by Southern’s
arguments. The record in this case confirms that DOT made
findings of fact with respect to the applicable statutory factors
governing the EAS carrier selection process. Those findings
are supported by substantial evidence in the administrative
record. It is also clear that DOT reasonably weighed the
evidence before reaching a judgment in favor of SkyWest to
serve as the EAS carrier for Morgantown. In sum, DOT’s
findings and analysis in the Final Order are sufficient for this
court to discern its reasoning and comprehend the permissible
bases for its selection of SkyWest. We thus have no grounds
upon which to overturn DOT’s action.
Accordingly, for the reasons explained below, we deny
Southern’s petition for review.

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I. B ACKGROUND
A. Essential Air Service Program
As explained above, the EAS program ensures that eligible
communities continue to receive a minimum level of scheduled
air service even if they do not generate sufficient demand for
carriers to cover the cost of servicing these communities. See
Mesa Air Grp. v. DOT, 87 F.3d 498, 500 (D.C. Cir. 1996). The
EAS program thus authorizes the Department to award federal
subsidies to air carriers that are selected to provide essential air
service to eligible communities. 49 U.S.C. § 41733(c).
EAS subsidies are awarded through a competitive bidding
process, which allows the Department to keep subsidy costs in
check and to switch carriers, when appropriate. Essential Air
Service, U.S. DEP ’ T OF TRANSP . (Nov. 4, 2024),
https://www.transportation.gov/policy/aviation-policy/small-
community-rural-air-service/essential-air-service. When
selecting among air carriers that are competing for an EAS
subsidy, the Department must weigh, “among other factors,”
five statutory factors, as follows:
First, “the demonstrated reliability of the applicant in
providing scheduled air service.” 49 U.S.C. § 41733(c)(1)(A).
Second, “the contractual, marketing, code-share, or
interline arrangements the applicant has made with a larger air
carrier serving the hub airport.” Id. § 41733(c)(1)(B). Interline
agreements allow passengers to transfer flights across airlines
without needing to recheck bags or re-check-in with the second
carrier. Codeshare agreements offer passengers the same
benefits as interline agreements. In addition, because they
allow an airline to sell tickets under its code for flights operated
by a second airline, codeshare agreements also offer passengers

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a single point of contact to resolve service issues, and they
allow customers to receive frequent-flier benefits from the
second airline.
Third, “the preferences of the actual and potential users of
air transportation at the eligible place, including the views of
the elected officials representing the users.” Id.
§ 41733(c)(1)(C). The Department formally solicits the views
of the community as part of the air carrier selection process.
Fourth, “whether the air carrier has included a plan in its
proposal to market its services to the community.” Id.
§ 41733(c)(1)(D).
And fifth, “the total compensation proposed by the air
carrier for providing scheduled air service under this section.”
Id. § 41733(c)(1)(F). Congress recently added the fifth “total
compensation” factor as part of the FAA Reauthorization Act
of 2024. Pub. L. No. 118-63, § 561(d), 138 Stat. 1025, 1215
(codified at 49 U.S.C. § 41733(c)(1)(F)).
There is a sixth statutory factor that is not applicable here
because it only pertains to eligible places in Alaska. 49 U.S.C.
§ 41733(c)(1)(E).
B. The Morgantown EAS
The facts in this case are largely undisputed. We will recite
them as they are presented in the administrative record. See
Camp v. Pitts, 411 U.S. 138, 142 (1973) (“[T]he focal point for
judicial review should be the administrative record already in
existence, not some new record made initially in the reviewing
court.”).

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The Morgantown Municipal Airport is located
approximately three miles northeast of Morgantown, West
Virginia, and it serves north central West Virginia and the
surrounding areas. Southern was scheduled to provide essential
air services at Morgantown between November 2016 and
October 31, 2024.
In May 2024, DOT solicited proposals for an air carrier to
provide EAS for Morgantown, with or without a subsidy, for a
new term beginning on November 1, 2024. In response, the
Department received four potentially viable proposals from
Southern, SkyWest, Boutique Air, Inc., and Hyannis Air
Service, Inc. d/b/a Cape Air. A fifth proposal was submitted by
Corporate Flight Management Inc., d/b/a Contour Airlines, but
this application was dropped because it failed to meet certain
requirements that are not at issue in the present action.
Southern’s application proposed two options, both for
service to Dulles International Airport and Pittsburgh
International Airport on nine-seat aircrafts. The first option
proposed nineteen weekly round-trip flights to Dulles and
Pittsburgh and requested approximately $4.4 to $4.8 million in
annual subsidies. The second option proposed twenty-six
weekly round-trip flights to Dulles and twelve to Pittsburgh;
this option requested approximately $4.6 to $5.0 million in
annual subsidies. Southern’s proposal also reflected the
reliability of its service, its interline agreements with American
Airlines, Alaska Airlines, United Airlines, and Hawaiian
Airlines, and its marketing budget and plans.
Boutique Air and Cape Air each proposed service packages
that were similar to the proposal offered by Southern, but they
requested higher subsidies. Their proposals offered service to
Dulles and Pittsburgh on eight- or nine-seat aircrafts as well as
interline arrangements with major airlines, including American

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and United. They each attested to their reliability and detailed
marketing plans for the community.
SkyWest’s proposal, in turn, was significantly different. It
offered service to Dulles and Chicago O’Hare International
Airport on 50-seat aircrafts, with a total of 12 round-trip flights
per week. SkyWest also touted a codeshare agreement with
United Airlines that would allow it to “operate United Express
service to the Morgantown community.” SkyWest Airlines’
Essential Air Service Proposal for Morgantown, W.V. (July 5,
2024) (“SkyWest Proposal”), J.A. 96. It attested to the
reliability of its service and articulated a marketing strategy in
partnership with the community. SkyWest’s requested subsidy,
at approximately $6.0 to $6.9 million per year, was neither the
highest nor the lowest among the applicants.
After receiving the proposals from interested carriers, the
Department solicited comments from the Morgantown
community. Morgantown assembled a committee that
reviewed the proposals and recommended selecting SkyWest
because the proposed service to Chicago and Dulles would
provide the community with greater access to the national
transportation system.
On September 10, 2024, Southern submitted comments
concerning the Department’s upcoming selection of an EAS
carrier for Morgantown. Southern emphasized that it had
proposed the least expensive service option and that the FAA
Reauthorization Act of 2024 required the Department to
consider the “total compensation proposed” by each carrier.
See 49 U.S.C. § 41733(c)(1)(F). Southern also emphasized the
reliability of its service at Morgantown, its four interline
agreements, the fact that the Morgantown community did not
reject Southern, and the fact that its plan included an itemized
marketing budget. It did not call into question the reliability of

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the other carriers or the strength of their proposals, other than
the higher cost of their requested subsidies and the lack of detail
in their marketing plans.
Ten days later, the Department issued its Final Order
selecting SkyWest to serve as the next EAS carrier for
Morgantown for a three-year term beginning on November 1,
2024. The Department addressed the five relevant statutory
factors in turn, explaining that: (1) “SkyWest has a proven
record of providing reliable EAS in markets around the
country”; (2) its “codeshare agreement with United Airlines
will give passengers broad access to the national air
transportation system via United’s extensive domestic and
international network”; (3) the Morgantown community
“expressed a preference for SkyWest’s proposal”; (4)
“SkyWest included a plan to market its services within the
community”; and (5) “SkyWest’s subsidy request falls within
the competitive range of options,” with two airlines proposing
less expensive options and a third proposing a more expensive
option. Final Order at 4, J.A. 109. “Considering the
circumstances as a whole,” the Department concluded that
SkyWest was the best option, noting, in particular, SkyWest’s
consistent reliability, its codeshare arrangements, and the fact
that it was the community choice. Id. at 4-5, J.A. 109-10.
On November 15, 2024, Southern petitioned this court for
review, pursuant to 49 U.S.C. § 46110, and requested that the
Final Order be set aside. Three days later, Southern filed an
emergency motion asking this court to stay the Final Order
pending review, to extend Southern’s status as the EAS
provider at Morgantown pending review, and to expedite
briefing and consideration of the case. These motions were
denied on December 12, 2024.

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II. ANALYSIS
A. This Court Has Jurisdiction to Review Southern’s
Petition
Southern’s petition for review invokes this court’s
jurisdiction under 49 U.S.C. § 46110(a). Section 46110
provides:
(a) . . . [A] person disclosing a substantial interest in
an order issued by the Secretary of Transportation . . .
in whole or in part under this part [Part A, 49 U.S.C.
§§ 40101-6507], part B [49 U.S.C. §§ 47101-534], or
subsection (l) or (r) of section 114 [49 U.S.C. § 114]
may apply for review of the order by filing a petition
for review in the United States Court of Appeals for
the District of Columbia Circuit . . .
(c) When the petition is sent to the Secretary, . . . the
court has exclusive jurisdiction to affirm, amend,
modify, or set aside any part of the order and may
order the Secretary[] . . . to conduct further
proceedings.
49 U.S.C. § 46110(a), (c). A provision in the Tucker Act
grants the Court of Federal Claims jurisdiction to hear an
“action by an interested party objecting to . . . the award of
a contract or any alleged violation of statute or regulation
in connection with a procurement or a proposed
procurement.” 28 U.S.C. § 1491(b)(1). Given these
statutory provisions, a question might be asked whether, in
a case of this sort, jurisdiction under 49 U.S.C. § 46110(a)
and 28 U.S.C. § 1491(b)(1) are in conflict. We think not.

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The parties in this case were asked to submit supplemental
briefs addressing whether this case was properly brought
pursuant to 49 U.S.C. § 46110(a) and whether 28 U.S.C.
§ 1491(b)(1) somehow displaces the grant of jurisdiction to this
court in § 46110(a). The parties agreed that § 46110(a) clearly
controls and authorizes this court to exercise jurisdiction over
Southern’s petition for review. Having reviewed the applicable
case law and the parties’ arguments, we agree.
It is telling that the Supreme Court has noted that
jurisdiction under the Tucker Act is “‘exclusive’ only to the
extent that Congress has not granted any other court authority
to hear the claims that may be decided by the Claims Court.”
Bowen v. Massachusetts, 487 U.S. 879, 910 n.48 (1988). On
this view, jurisdiction under the Tucker Act obviously does not
displace this court’s jurisdiction over matters that fall within
the express compass of 49 U.S.C. § 46110(a).
Section 46110(a) clearly applies to this case. It explicitly
grants this court jurisdiction to review the type of order at issue
here. The match between the actions at issue in this case and
the language of § 46110(a) is undeniable. The Final Order was
issued by the Office of the Secretary of Transportation pursuant
to the Secretary’s authorities under 49 U.S.C. §§ 41731-46,
which are in Part A of Subtitle VII of Title 49. And Southern
has “a substantial interest” in the Final Order as a directly
aggrieved bidder. All of the requirements of § 46110(a)
necessary to support jurisdiction in this case have been met.
Furthermore, this court has consistently held that it has
jurisdiction to review cases that fall squarely within the text of
§ 46110(a). See, e.g., Lacson v. Dep’t of Homeland Sec., 726
F.3d 170, 176-77 (D.C. Cir. 2013) (holding that this court has
jurisdiction to review an order where § 46110(a) “specifically
addresse[d] the type of order at issue” in the case); Cmtys.

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Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 683
(D.C. Cir. 2004) (holding that jurisdiction was proper pursuant
to § 46110(a) to review an order concerning the funding of an
airport project that was issued, in relevant part, pursuant to Part
A). We have also assumed jurisdiction under § 46110(a) to
review cases that involve contractual elements. See, e.g.,
Archer W. Contractors, LLC v. DOT, 45 F.4th 1, 2-4 (D.C. Cir.
2022) (assuming jurisdiction under § 46110(a) to review the
Federal Aviation Administration’s resolution of three contract
disputes); City of Santa Monica v. FAA, 631 F.3d 550, 551, 553
(D.C. Cir. 2011) (assuming jurisdiction under § 46110(a) to
review a Federal Aviation Administration order concluding
that the petitioner had violated contractual obligations to the
federal government). Therefore, § 46110(a) provides a clear
basis for this court to exercise jurisdiction over Southern’s
petition for review.
In sum, we agree with the parties that § 46110(a)’s grant of
jurisdiction controls. Southern’s action challenging the
Department’s Final Order is properly before this court.
B. Standard of Review
In reviewing this petition under § 46110, we uphold the
agency’s decision unless it is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law,” 5
U.S.C. § 706(2)(A), “in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right,” id.
§ 706(2)(C), or unsupported by “substantial evidence,” 49
U.S.C. § 46110(c). See Ramsingh v. Transp. Sec. Admin., 40
F.4th 625, 631 (D.C. Cir. 2022). Our review of Southern’s
petition is confined to the administrative record as it existed at
the time the Final Order was issued. Env’t Def. Fund, Inc. v.
Costle, 657 F.2d 275, 284 (D.C. Cir. 1981); Camp, 411 U.S. at
142.

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This court “must exercise [its] independent judgment in
deciding whether an agency has acted within its statutory
authority.” Loper Bright Enters. v. Raimondo, 603 U.S. 369,
412 (2024). “But when an agency exercises discretion granted
by a statute, judicial review is typically conducted under the
Administrative Procedure Act’s deferential arbitrary-and-
capricious standard.” Seven Cnty. Infrastructure Coal. v. Eagle
County, 605 U.S. 168, 179-80 (2025). When applying the
APA’s deferential standard, the scope of review is “narrow.”
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983). “[A] court asks not whether it agrees
with the agency decision, but rather only whether the agency
action was reasonable and reasonably explained.” Seven Cnty.,
605 U.S. at 180 (citations omitted).
C. Southern’s Substantial Evidence and Arbitrary or
Capricious Claims Fail
Southern’s central contention is that the Final Order is
arbitrary and capricious under the APA and not supported by
substantial evidence under 49 U.S.C. § 46110(c). In particular,
Southern claims that the Department mechanically recited the
five factors in 49 U.S.C. § 41733(c)(1), but failed to
demonstrate that it actually analyzed the factors or made
appropriate findings in support of its claims. Because the
“arbitrary and capricious” and “substantial evidence” standards
involve overlapping inquiries, Crooks v. Mabus, 845 F.3d 412,
423 (D.C. Cir. 2016), we analyze these claims together.
Section 46110(c) provides that the Department’s findings
of fact are “conclusive” if they are “supported by substantial
evidence.” 49 U.S.C. § 46110(c). “The substantial evidence
standard requires more than a scintilla, but can be satisfied by
something less than a preponderance of the evidence.” Town of
Barnstable v. FAA, 740 F.3d 681, 687 (D.C. Cir. 2014)

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(internal quotation marks and citation omitted). Applying this
test, the Department’s findings of fact are conclusive if they are
supported by “such relevant evidence as a reasonable mind
might accept as adequate to support” the conclusion reached.
Archer W. Contractors, 45 F.4th at 6 (citation omitted).
The Department’s conclusions may still be arbitrary and
capricious under the APA if the agency failed to establish and
articulate “a ‘rational connection between the facts found and
the choice made.’” State Farm, 463 U.S. at 43 (quoting
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156,
168 (1962)). Thus, an agency action “would be arbitrary and
capricious if the agency has relied on factors which Congress
has not intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or
is so implausible that it could not be ascribed to a difference in
view or the product of agency expertise.” Id. Beyond that, the
court’s only role is “to assure that the agency has given
reasoned consideration to all the material facts and issues.”
Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851
(D.C. Cir. 1970) (citations omitted).
As noted above, § 41733(c)(1) requires the Department to
weigh five statutory factors when selecting an air carrier to
provide essential air service for an eligible community. 49
U.S.C. § 41733(c)(1)(A)-(D), (F). We discuss each factor in
turn and find that the Department’s conclusions for each are
supported by substantial evidence and not otherwise arbitrary
or capricious. We then evaluate the Final Order as a whole and
find that the Department’s selection of SkyWest is “reasonable
and reasonably explained” and, thus, survives review under the
APA and 49 U.S.C. § 46110(c). Seven Cnty., 605 U.S. at 180.

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1. The Department’s Findings With Respect to the
Statutory Factors Are Supported by Substantial
Evidence and Not Arbitrary or Capricious
First, the Department found that “SkyWest has a proven
record of providing reliable EAS in markets around the
country.” Final Order at 4, J.A. 109. Our review confirms that
there is nothing in the record to cast doubt on SkyWest’s
reliability. SkyWest attested to the reliability of its service.
SkyWest Proposal at 1, J.A. 96 (explaining that SkyWest’s
aircrafts are “safe and reliable,” that it has “well-timed
schedules,” and that it “will provide passengers with quality air
service”). And, in the Final Order, the Department noted that
SkyWest is subject to the Department’s continuing requirement
that an air carrier be “fit, willing, and able to provide reliable
service,” and “no information ha[d] come to the Department’s
attention” that would call SkyWest’s fitness into question.
Final Order at 6, J.A. 111 (citing 49 U.S.C. §§ 41737(b),
41738). Southern had the opportunity to dispute SkyWest’s
reliability in the comments it submitted to the Department, but
it offered nothing to impugn the reliability of SkyWest’s
service record. These facts constitute substantial evidence in
support of SkyWest’s reliability. Moreover, § 41733(c)(1)(A)
only directs the Department to consider “the demonstrated
reliability of the applicant in providing scheduled air service”
and not, for example, whether the applicant is the most reliable.
49 U.S.C. § 41733(c)(1)(A). Therefore, DOT’s finding in favor
of SkyWest was also rational in light of the evidence discussed
and, thus, not arbitrary or capricious.
Second, the Department found that “SkyWest’s codeshare
agreement with United Airlines will give passengers broad
access to the national air transportation system via United’s
extensive domestic and international network.” Final Order at
4, J.A. 109. The administrative record confirms that SkyWest

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proposed service for the Morgantown community through its
codeshare agreement with United Airlines, SkyWest Proposal
at 1, J.A. 96, and that SkyWest was the only carrier to offer a
codeshare arrangement, Final Order at 3, J.A. 108. Southern
does not contest that these findings are supported by the
administrative record, and it does not doubt that the findings
weigh heavily in favor of the Department’s selection of
SkyWest.
Third, the Department found that the Morgantown
community “expressed a preference for SkyWest’s proposal.”
Id. at 4, J.A. 109. The Morgantown community’s letter of
recommendation unambiguously endorsed SkyWest’s
proposal because it offered connections to “two airline hubs
[that] will provide the community with greater use of the
National Transportation System.” Morgantown Municipal
Airport Letter of Recommendation for EAS (Aug. 5, 2024),
J.A. 98. Southern does not dispute the Morgantown
community’s clear preference for SkyWest, nor does it
challenge the conclusion that this factor strongly weighs in
favor of SkyWest’s proposal.
Fourth, the Department found that “SkyWest included a
plan to market its services within the community.” Final Order
at 4, J.A. 109. SkyWest’s proposal clearly states that it “will
actively partner with the community to market the service with
a variety of promotions including print, digital, radio and
online.” SkyWest Proposal at 1, J.A. 96. Southern nonetheless
contests the sufficiency of the Department’s finding. Southern
argues that the Department “provides no analysis as to
SkyWest’s marketing plan,” including whether it is a “good
plan,” or how it compares to other proposed marketing plans.
Pet’r’s Br. 13. But the statute does not require this. Rather, the
statute only requires that the Department consider “whether the
air carrier has included a plan in its proposal to market its

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services to the community.” 49 U.S.C. § 41733(c)(1)(D).
SkyWest did this. DOT was not required to analyze the
particulars of any carrier’s marketing plan or how it compared
with other proposed marketing plans. This is hardly surprising.
As explained above, the Department formally solicits the views
of the community as part of the air carrier selection process, so
any arguable deficiencies in a carrier’s plan should likely come
to light after a carrier interacts with the community. In any
event, the Department’s finding that SkyWest included a
marketing plan is supported by substantial evidence and not
otherwise arbitrary or capricious.
Fifth, addressing the total compensation factor, the
Department found that “SkyWest’s subsidy request f[ell]
within the competitive range of options” and was “reasonable.”
Final Order at 4, J.A. 109. Southern again contests the
sufficiency of DOT’s analysis, doubting the reasonableness of
the Department’s selection of a “proposal costing almost one-
third more than Southern’s lowest-cost proposal.” Pet’r’s Br.
14. Southern’s challenge is misguided. The statute only
requires that DOT consider “the total compensation proposed
by the air carrier for providing scheduled air service under this
section.” 49 U.S.C. § 41733(c)(1)(F). It does not require the
Department to select the lowest bidder. Because the
Department’s Final Order confirms that it considered each
proposed subsidy, see Final Order at 3, J.A. 108, and
reasonably explained why SkyWest’s proposed subsidy was
acceptable, see id. at 4, J.A. 109, we are assured that the
Department gave the total compensation factor sufficient and
reasonable consideration. See Flyers Rights Educ. Fund, Inc. v.
DOT, 957 F.3d 1359, 1363 (D.C. Cir. 2020) (“[T]he
Department has broad discretion to choose how best to marshal
its limited resources and personnel.” (internal quotation marks
and citation omitted)).

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In sum, the Department’s findings for each § 41733(c)(1)
factor are supported by substantial evidence, rational in light of
the relevant evidence, and reasonably explained.
2. The Department’s Selection of SkyWest Is
Reasonable and Reasonably Explained
Separate from the consideration of the individual statutory
factors, Southern also claims that the Department’s selection of
SkyWest is, on the whole, arbitrary and capricious because the
Department failed to explain how the statutory factors weighed
and balanced in favor of SkyWest. In particular, Southern
alleges that DOT’s reliance on a “vague ‘totality of the
circumstances’” explanation is “legally inadequate” because
all the Department did was “recite[] the factors and then
combine[] them in an unexplained manner to arrive at its
conclusion.” Pet’r’s Br. 16 (citations omitted). We disagree.
Under the deferential arbitrary and capricious standard,
“[w]e will . . . uphold a decision of less than ideal clarity” as
long as “the agency’s path may reasonably be discerned.” State
Farm, 463 U.S. at 43 (internal quotation marks and citation
omitted). In this case, we can easily understand the
Department’s eminently reasonable bases for selecting
SkyWest. The Department stated that it “consider[ed] the
circumstances as a whole,” as it was statutorily required to do,
see 49 U.S.C. § 41733(c)(1), and concluded that “SkyWest’s
proposal aligns best overall with the selection criteria.” Final
Order at 4-5, J.A. 109-10. It then identified the three factors –
reliability, codeshare arrangements, and the community’s
preference – that weighed most heavily in favor of its selection
of SkyWest. Id. at 5, J.A. 110. Although the Department’s
explanation was succinct, its “rationale and its reasonableness
can be perceived readily enough.” Xcel Energy Servs., Inc. v.
FERC, 41 F.4th 548, 557 (D.C. Cir. 2022).

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To the extent that Southern also disputes the substantive
reasonableness of the Department’s selection of SkyWest, its
claims are unfounded. As discussed above, the only role for the
court is to “assure that the agency has given reasoned
consideration to all the material facts and issues.” Greater
Boston Television Corp., 444 F.2d at 851 (citations omitted).
The Department made findings of fact establishing that
SkyWest satisfied each statutory factor and then offered a brief
explanation in support of its selection of SkyWest. That is
sufficient to assure the court that the Department engaged in
the required “reasoned consideration.” Accordingly, we find
that the Final Order is “reasonable and reasonably explained,”
Seven Cnty., 605 U.S. at 180 (citations omitted), and, thus, not
arbitrary or capricious.
D. The Department Did Not Exceed Its Statutory
Authority
Finally, Southern claims that the Department exceeded its
statutory authority by failing to consider the factors enumerated
in the statute. See 49 U.S.C. § 41733(c)(1) (stating that the
Department “shall consider” the decisional factors). This in-
excess-of-statutory-authority claim is plainly meritless. Indeed,
the argument merely repackages some of the other arguments
raised by Southern that we have already rejected in the earlier
sections of this opinion. Therefore, we will not linger long in
our discussion of this issue.
Southern concedes that “when a statute requires agencies
to consider particular factors, it imposes upon agencies duties
that are essentially procedural. The only role for a court is to
[e]nsure that the agency has considered the factor.” Getty v.
Fed. Sav. & Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C. Cir.
1986) (cleaned up). However, Southern urges that “[s]tating
that a factor was considered[] . . . is not a substitute for

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considering it.” Pet’r’s Br. 12 (quoting Getty, 805 F.2d at
1055). This is a hollow claim in light of the record in this case.
As discussed in the preceding sections, the Department
made findings of fact with respect to each statutory factor and
explained why SkyWest prevailed when all of the factors were
weighed. Southern attempts to analogize the Department’s
treatment of the statutory factors here to the impermissibly
cursory treatment the agency gave in Getty. In Getty, the
agency attested to the fact that it had considered a required
statutory factor, but it only offered a “boilerplate recitation” of
the factor itself. 805 F.2d at 1055. In short, there was “no
evidence that [the agency] paid any attention” to the factor. Id.
at 1056. That is not what happened in this case.
In this case, the Department’s analysis is clear, and it
shows that all of the carriers that applied to serve as the EAS
carrier for Morgantown were given full and fair consideration
with respect to the applicable statutory factors and as against
each other. It was not necessary for the Final Order to be
lengthy to convey the Department’s meaning on each point and
to show that the Department’s judgments were supported and
reasonable. See M2Z Networks, Inc. v. FCC, 558 F.3d 554, 560
(D.C. Cir. 2009) (“Though not lengthy, the Commission’s
order in this case was neither a boilerplate recitation of the
required language nor a passing reference without any
reasoning.”). Therefore, we are satisfied that, in selecting
SkyWest, the Department properly fulfilled its statutory
obligation.

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III. CONCLUSION
For the foregoing reasons, we deny Southern’s petition for
review.
So ordered.

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