Petition for Writ of Certiorari — Phil Kerpen, et al., Petitioners v. Metropolitan Washington Airports Authority, et al.

APPENDIX TABLE OF CONTENTS

United States Court of Appeals for the Fourth Circuit

Opinion, Kerpen v. Metro. Washington Airports

Auth., 907 F.3d 152 ............................................ 1a

United States District Court for the Eastern District

of Virginia Memorandum Decision and Order,

May 30, 2017, Kerpen v. Metro. Washington

Airports Auth., 260 F.Supp.3d 567 .................. 22a

Excerpts from the Transfer Act,

49 U.S.C. 49101–49112 .................................... 61a

1a

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

No. 17-1735

PHIL KERPEN, Individually and on Behalf of All

Others Similarly Situated; AUSTIN RUSE,

Individually and on Behalf of All Others Similarly

Situated; CATHY RUSE, Individually and on Behalf

of All Others Similarly Situated; CHARLOTTE

SELLIER, Individually and on Behalf of All Others

Similarly Situated; JOEL SELLIER, Individually

and on Behalf of All Others Similarly Situated;

MICHAEL GINGRAS, Individually and on Behalf of

All Others Similarly Situated,

Plaintiffs – Appellants,

v.

METROPOLITAN

WASHINGTON

AIRPORTS

AUTHORITY; ELAINE L. CHAO, in her official

capacity as Secretary of Transportation; UNITED

STATES DEPARTMENT OF TRANSPORTATION,

Defendants – Appellees,

DISTRICT OF COLUMBIA,

Intervenor – Appellee,

KARL ANTHONY RACINE,

Intervenor/Defendant – Appellee.

Appeal from the United States District Court for the

Eastern District of Virginia, at Alexandria. James C.

Cacheris, Senior District Judge. (1:16-cv-01307-JCCTCB)

Argued: September 27, 2018

Decided: October 22, 2018

2a

Before WILKINSON, DUNCAN, and KEENAN,

Circuit Judges.

Affirmed by published opinion. Judge Wilkinson

wrote the opinion, in which Judge Duncan and

Judge Keenan joined.

ARGUED: Gene C. Schaerr, SCHAERR |

DUNCAN LLP, Washington, D.C., for Appellants.

Stuart Alan Raphael, HUNTON & WILLIAMS LLP,

Washington, D.C., for Appellee Metropolitan

Washington Airports Authority. Lewis Yelin,

UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellees Elaine Chao and

United States Department of Transportation. ON

BRIEF: Robert J. Cynkar, Patrick M. McSweeney,

Christopher

I.

Kachouroff,

MCSWEENEY,

CYNKAR & KACHOUROFF PLLC, Woodbridge,

Virginia; S. Kyle Duncan, Stephen S. Schwartz,

Michael T. Worley, SCHAERR | DUNCAN LLP,

Washington, D.C., for Appellants. Philip G.

Sunderland,

Office

of

General

Counsel,

METROPOLITAN WASHINGTON AIRPORTS

AUTHORITY, Washington, D.C.; Sona Rewari,

HUNTON & WILLIAMS LLP, Washington, D.C.,

for Appellee Washington Metropolitan Airports

Authority. Chad A. Readler, Acting Assistant

Attorney General, Mark B. Stern, Civil Division,

UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C.; Steven G. Bradbury, General

Counsel, Paul M. Geier, Assistant General Counsel

for Litigation and Enforcement, Joy K. Park,

UNITED

STATES

DEPARTMENT

OF

TRANSPORTATION, Washington, D.C.; Tracy

3a

McCormick, Acting United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY,

Alexandria, Virginia, for Federal Appellees. Mark R.

Herring, Attorney General, Stephen A. Cobb,

Deputy Attorney General, Toby J. Heytens, Solicitor

General, Matthew R. McGuire, Deputy Solicitor

General, OFFICE OF THE ATTORNEY GENERAL

OF VIRGINIA, Richmond, Virginia, for Amicus

Curiae.

WILKINSON, Circuit Judge:

Appellants here have raised a variety of

constitutional

and

statutory

challenges

to

Metropolitan Washington Airport Authority’s

(MWAA) ability to use toll revenues to fund projects

enhancing access to Dulles airport. The district court

granted defendants’ motion to dismiss all of these

claims, and we now affirm its judgment.

I.

In 1950, the federal government began to build

Dulles Airport. Recognizing that access to the airport

was as important as the airport itself, the

government also acquired a right of way to begin

building an access road, linking Dulles to two of the

major highways serving the Washington, D.C. region.

In 1962, the airport and the access road were opened

under the management of the Federal Aviation

Administration.

In 1983, the federal government gave Virginia an

easement to build a toll road through the right of way

previously acquired for the access road. The federal

government determined that the new toll road would

help mitigate increasing congestion in the vicinity of

4a

Dulles. The road was opened one year later and was

operated by the Commonwealth of Virginia.

By 1984, the federal government was concerned

that needed capital improvements at Dulles, and its

sister airport National, could not be funded. The

solution, devised by a Commission created at the

behest of the Secretary of Transportation, was to

transfer control of both airports to an authority with

the ability to raise money by selling tax- exempt

bonds. The next year, Virginia and the District of

Columbia passed reciprocal laws to create an

interstate compact for the management of Dulles and

National. Congress had already consented to the

compact in 1959, when it gave advance approval to

interstate compacts for the management of airports.

Act of Aug. 11, 1959, Pub. L. No. 86-154, 73 Stat. 333

(1959). The result of this compact was the

Metropolitan

Washington

Airport

Authority

(MWAA).

MWAA was authorized by its organic state laws

to acquire National and Dulles from the federal

government. Additionally, MWAA was granted

powers to operate, maintain, and improve National

and Dulles airports, including the power to issue

revenue bonds and collect various charges for the use

of the airports. Va. Code § 5.1-156; D.C. Code § 9905(a). MWAA was originally overseen by a Board of

Review consisting of Members of Congress. But after

two successful challenges the Board was dismantled,

leaving the Board of Directors in control. Metro.

Wash. Airports Auth. v. Citizens for the Abatement of

Aircraft Noise, Inc., 501 U.S. 252 (1991); Hechinger v.

Metro. Wash. Airports Auth., 36 F.3d 97, 99, 101 (D.C.

Cir. 1994). The Board of Directors, as currently

constituted, has seven members appointed by the

5a

Governor of Virginia, four appointed by the Mayor of

the District of Columbia, three appointed by the

Governor of Maryland, and three appointed by the

President of the United States. Va. Code § 5.1-155(A);

D.C. Code § 9-904(a)(1).

In 1986, Congress passed the Transfer Act, which

authorized the Secretary of Transportation to lease

Dulles and National to MWAA. Pub. L. No. 99-591,

101 Stat. 3341 (1986), codified as amended at 49

U.S.C. §§ 49101-49112. The Act also authorized the

transfer of the airports’ “access highways and

other related facilities,” 49 U.S.C. § 49102(a),

specifically to include the right of way over which

the access road and toll road were built. 49 U.S.C. §

49103 (4). The Transfer Act also specified the terms

under which the Secretary could lease National and

Dulles to MWAA, requiring that, as a condition of the

transfer, MWAA must only use the property for

“airport purposes.” 49 U.S.C. § 49104(a)(2)(B).

“[A]irport purposes” were in turn defined to include

“activities necessary or appropriate to serve

passengers or cargo in air commerce” and “a business

or activity not inconsistent with the needs of aviation

that has been approved by the Secretary.” 49 U.S.C.

§ 49104(a)(2)(A)(ii), (iv).

The Transfer Act also required MWAA to “assume

responsibility” for the Master Plan developed by the

federal government for National and Dulles. 49

U.S.C. § 49104(a)(6)(A). The Plan was concerned with

the management of the airports, and included

provisions that were designed to ensure that

passengers and cargo had access to them, in spite of

increasing congestion. One of these provisions

contemplated an eventual extension of metro service

from Washington to Dulles.

6a

In 2006, metro service to Dulles was becoming a

reality. The long-planned Silver Line, which would

connect Dulles to Washington, was coming to

fruition. In service of this project, Virginia agreed to

transfer operation of the toll road to MWAA, and

MWAA agreed that it would use revenues from the

road to finance construction of the Silver Line, as well

as other transportation improvements near Dulles.

In 2008, the Secretary of Transportation certified

that this arrangement did not violate the terms of the

Lease.

Virginia’s agreement with MWAA inspired three

legal challenges before this one. First was a state law

challenge that unsuccessfully tried to have a state

court declare MWAA’s collection of tolls violated the

Virginia Constitution. Gray v. Virginia Secretary of

Transportation, 662 S.E.2d 66, 100, 107 (Va. 2008). A

second case advanced substantially the same

argument and was dismissed by this court. Parkridge

6, LLC v. U.S. Dept. of Transp., 420 F. App’x 265, 267

(4th Cir. 2011). The third case, Corr v. Metropolitan

Washington Airports Authority, raised many of the

claims presented here. 800 F. Supp. 2d 743, 751 (E.D.

Va. 2011). The district court rejected each one,

finding that MWAA’s structure did not violate the

non-delegation doctrine, the Appointments Clause, or

the Guarantee Clause. Id. at 756-58. Plaintiffs

appealed to the Federal Circuit, but that court held

that MWAA is not a federal instrumentality and so

jurisdiction was inappropriate. Corr v. Metro. Wash.

Airports Auth., 702 F.3d 1334, 1338 (Fed. Cir. 2012).

Appellants here (and plaintiffs below) bring a

putative class action by users of the toll road and

other airport facilities. Their lawsuit presented a

7a

bouquet of statutory and constitutional claims.

Important for this appeal are the assertions that

MWAA is a federal instrumentality, that MWAA

violated Article I, Article II, and the Guarantee

Clause of the Constitution, that MWAA violated the

Administrative Procedures Act, and that MWAA

violated the terms of the Transfer Act and the Lease

by using toll revenues to build the Silver Line. The

district court dismissed all claims. Kerpen v. Metro.

Wash. Airports Auth., 260 F.Supp.3d 567, 588

(E.D.Va 2017). Applying Lebron v. National Railroad

Passenger Corporation, 513 U.S. 374 (1995), the court

concluded that MWAA was not a federal

instrumentality and it did not exercise federal power.

Kerpen, 260 F.Supp.3d at 580. In the view of the

district court, this was fatal to the non-delegation,

Appointments Clause, and APA claims. Id. at 58384, 586. The court also dismissed the claims based

on the Lease and the Transfer Act, reasoning that

metro from Washington to Dulles was a permissible

airport-related expenditure. Id. at 586. Plaintiffs now

appeal this dismissal.

II.

Appellants claim as a threshold matter that

MWAA is a federal entity. Applying the standard

from Lebron v. National Railroad Passenger

Corporation we conclude that it is not. 513 U.S. 374

(1995)

In Lebron, the Supreme Court explained that

entities that are both created and controlled by the

federal government may be considered federal

entities that are subject to the limitations of the

Constitution. Lebron, 513 U.S. at 397. This first

prong of Lebron is satisfied by an entity that was

8a

“created by a special statute, explicitly for the

furtherance of federal governmental goals.” Id. The

second is satisfied only when an entity’s operations

are “controlled” by federal government appointees.

Id. at 396. Mere influence is not sufficient; to satisfy

this prong the federal government must be the

“policymaker” for the entity, rather than simply an

influential stakeholder. Id. at 398, 399. Temporary

control—as when the federal government steps in as

a conservator—is not sufficient. Id. at 398; Meridian

Investments v. Fed. Home Loan Mortg. Corp., 855

F.3d 573, 579 (4th Cir. 2017). Only those entities that

satisfy both conditions may be considered federal

entities. Lebron, 513 U.S. at 398. See also Meridian

Investments, 855 F.3d at 579. (“Under Lebron, a

private corporation morphs into a federal

instrumentality when it is Government-created and

controlled.”) (citation and internal quotation marks

omitted).

MWAA does not satisfy either prong. In the first

place, MWAA was not created by the federal

government. The federal government never passed a

“special law” to create it. Rather, Virginia and the

District of Columbia, acting on a recommendation

from a commission appointed by the Secretary of

Transportation, created MWAA when they passed

reciprocal laws in 1985. The federal government had

pre-approved the agreement in 1959, when it passed

a law giving advance consent to regional compacts for

the management of airports. The federal Transfer Act

does not satisfy Lebron’s creation prong for the

simple reason that the Act did not create MWAA. It

conferred no powers on MWAA; it simply specified

the minimum powers MWAA must have in order to

lease Dulles and National. 49 U.S.C. § 49106(a)(1)(B).

9a

The text of the Act recognized that these powers

originated with Virginia and the District of

Columbia. 49 U.S.C. § 49106(a)(1)(A). MWAA is,

therefore, a textbook example of an interstate

compact. Its history shows plainly that it is not a

creature of the federal government.

Lebron’s second condition is unsatisfied as well:

MWAA is not controlled by the federal government.

The Board of Review, which provided for on-going

federal control over MWAA, was invalidated in the

early 1990’s. Metro. Wash. Airports Auth. v. Citizens

for the Abatement of Aircraft Noise, Inc., 501 U.S.

252, 276-77 (1991); Hechinger v. Metro. Wash.

Airports Auth., 36 F.3d 97, 105 (D.C. Cir. 1994). The

federal government appoints just three out of

seventeen members of MWAA’s Board of Directors.

Because these appointees are a distinct minority of

the Board, they alone cannot “control” MWAA.

Through

the

process of

deliberation

and

negotiation,

these appointees could influence

MWAA’s operations, but influence is not sufficient.

Federal control is required to meet Lebron’s second

prong, and federal control is not present here. The

Federal Circuit agreed on this point in Corr v. MWAA

when it wrote that, “[t]he fact that a small minority

of the board members are federal appointees is

insufficient to establish MWAA as a federal

instrumentality.” 702 F.3d 1334, 1337 (Fed. Cir.

2012).

None of the facts advanced by appellants are

sufficient to convert MWAA into a federal

instrumentality. An entity that leases property from

the federal government, like MWAA, does not, by

virtue of that lease, become a federal entity. See

10a

Buckstaff Bath House Co. v. McKinley, 308 U.S. 358,

362 (1939). Nor does an ordinary contractor with the

federal government, by virtue of the contract, become

a federal entity. See United States v. New Mexico, 455

U.S. 720, 739-40 (1982). Federal oversight of an

entity, like the Secretary of Transportation’s

oversight of MWAA, does not convert an entity into a

federal one. See Meridian Investments, 855 F.3d at

575, 579 (holding that Freddie Mac is not a federal

entity despite supervision by FHFA). And conditions

attached to federal funds, like the conditions on

MWAA’s federal funding, do not convert the recipient

of those funds into a federal entity. See RendellBaker v. Kohn, 457 U.S. 830, 833, 843 (1982) (holding

that a recipient of federal funds is not bound by the

First Amendment). If we adopted appellants’ view on

any one of these points, it would auger a wholesale

transfer of authority to the federal government from

states and local government. We decline to do so.

Finally, appellants argue that MWAA is a federal

instrumentality because the federal government has

a “strong and continuing interest” in ensuring that

members of Congress and other federal employees

have access to the nation’s capital. Brief for the

Appellants at 26 (citing Metro. Wash. Airports Auth.

v. Citizens for Abatement of Airport Noise, 501 U.S.

252, 266 (1991)). But of course, the federal

government has an “interest” in a great many things.

A federal interest does not convert an entity into a

federal instrumentality. And, at the very least, the

interest here is one that is shared by the residents of

Maryland, the District of Columbia, and Virginia.

Interstate compacts—even those that envision a

cooperative

relationship

with

the

federal

government—are not federal entities. In an

11a

increasingly interconnected world, challenges which

were once thought to be purely local are in fact

regional in character. Single states are often illequipped to meet regional challenges like the

reduction in marine fisheries, see Atlantic States

Marine Fisheries Commission (approved at Act of

May 4, 1942, Pub. L. No. 77-539, 56 Stat. 267 (1942)),

or the draining of the Great Lakes, see The Great

Lakes Compact (approved at Act of Oct. 3, 2008, Pub.

L. No. 110- 342, 122 Stat. 3739 (2008)). These

challenges demand a regional response, and

interstate compacts allow states to act in concert to

supply one. Multi-state endeavors such as MWAA are

a creative means of meeting regional needs. And

though they may entail sharing of responsibilities or

cooperation among governments, they remain wholly

constitutional.

Appellants’ failure to meet the threshold of

establishing MWAA as a federal entity is fatal to

their claims under the Appointments Clause and the

Administrative Procedures Act. Both these

provisions apply to federal entities—“Officers of the

United States,” U.S. Const. Art II. § 2, and

“author[ities] of the Government of the United

States,” 5 U.S.C. § 551(1), respectively. Accordingly,

they have little relevance when, as here, the entity in

question is not a federal one.

III.

Appellants argue that MWAA’s structure violates

the non-delegation principle because it has been

wrongly delegated “legislative power,” “government

power,” or “federal power.” Brief for the Appellants at

13. Because MWAA exercises no power assigned

elsewhere by the Constitution, we conclude that it

12a

does not violate that principle. We shall take up each

of the challenged delegations in turn.

A.

The principle of non-delegation requires that “core

governmental power must be exercised by the

Department on which it is conferred and must not be

delegated to others in a manner that frustrates the

constitutional design.” Pittston v. United States, 368

F.3d 385, 394 (4th Cir. 2004). Legislative power is an

example of such a “core” function that may not be

delegated to another Department. Article I §1 of the

Constitution confers “[a]ll Legislative powers” on

Congress. “This text permits no delegation of those

powers.” Whitman v. Whitman Trucking Assn., 531

U.S. 457, 472 (2001). Of course, Congress does not

impermissibly delegate power every time “it

legislates in broad terms, leaving a certain degree of

discretion to executive or judicial actors.” Touby v.

United States, 500 U.S. 160, 165 (1991). So long as

Congress cabins this discretion with an “intelligible

principle,” no wrongful delegation has taken place.

J.W. Hampton Jr., Co. v. United States, 276 U.S. 394,

409 (1928). In these instances, Congress has not

unlawfully delegated any power; it has simply

assigned a responsibility to another branch, which

may lawfully exercise its inherent discretion to fulfill

the assigned responsibility. Loving v. United States,

517 U.S. 748, 777 (1996) (Scalia, J. concurring in part

and concurring in the judgment).

An “intelligible principle” need not be exactingly

precise to satisfy the requirements of the nondelegation principle. Quite the opposite: a “broad

standard[]” will

sufficiently

cabin

another

Department’s discretion. Mistretta v. United States,

13a

488 U.S. 361, 373 (1989). For example, Congress’

command that regulation serve the “public interest,

convenience, or necessity” has been held to serve as

an intelligible principle, id. (citing Nat’l Broadcasting

Co. v. United States, 319 U.S. 190, 225-26 (1943)), as

has a command to set rates that are “just and

reasonable,” id. at 373-74 (citing Federal Power

Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 600

(1944)).

MWAA has not been delegated “legislative power”

from the federal government. Under the text of

MWAA’s reciprocal organic state laws and the

Transfer Act, MWAA exercises only those powers

conferred on it by its state creators, not the federal

government. Va. Code § 5.1-153 and D.C. Code § 9902 (conferring powers). See also 49 U.S.C.

§ 49106(a)(1)(A) (recognizing those state powers).

And even if some of MWAA’s powers did come from

the federal government, whatever policymaking

discretion the Authority wields would be amply

constrained by Congress’ passage of the Transfer Act.

That Act requires that leased property be used only

for “airport purposes,” defined by Congress to mean

“aviation business or activities,” “activities necessary

or appropriate to serve passengers or cargo in air

commerce,” or “nonprofit, public use facilities that

are not inconsistent with the needs of aviation.” 49

U.S.C. § 49104(a)(2)(A). The strictures of the

Transfer Act are sufficiently detailed as to more than

satisfy the requirement of an “intelligible principle.”

B.

The Constitution also forbids delegation of “core

governmental power” to a private entity. Unlike the

executive and judicial Departments, the Constitution

14a

recognizes no governmental powers vested in private

entities. The Supreme Court of the mid-1930’s found

it “obvious” that the exercise of legislative power by

private entities was “unknown to our law and is

utterly inconsistent with the constitutional

prerogatives and duties of Congress,” A.L.A.

Schechter Poultry Corporation v. United States, 295

U.S. 495, 537 (1935), and that such a transfer of

power was “legislative delegation in its most

obnoxious form.” Carter v. Carter Coal Co., 298 U.S.

238, 311 (1936). In Carter Coal, for example, the

power to regulate the mining industry could not

constitutionally be delegated to private mining

interests because “in the very nature of things, one

person may not be intrusted with the power to

regulate the business of another, and especially of a

competitor.” Id. Such regulation is “necessarily a

government function” that must constitutionally

remain with a public body. Id.

We need not examine the continuing vitality of

these cases because it is clear that certain

governmental powers are not “core” powers and may

lawfully be delegated to private parties. For example,

in Pittston v. United States, we approvingly cited

United States v. Frame, a Third Circuit case that

upheld the exercise of “ministerial” powers by a

private party on behalf of the government. Pittston,

368 F.3d at 394-95 (citing United States v. Frame,

885 F.2d 1119, 1129 (3d Cir. 1989)). We have also

recognized that, subject to certain limitations, the

government may “delegate its authority [to private

entities] to incarcerate, to confine, to discipline, to

feed, and to provide medical and other care to

inmates who are imprisoned by order of the federal

government.” Holly v. Scott, 434 F.3d 287, 297 (4th

15a

Cir. 2006). See also Rosborough v. Management &

Training Corp., 350 F.3d 459, 461 (5th Cir. 2003)

(recognizing prison operation as a “fundamentally

governmental function” which may nevertheless be

“delegated to private entities.”).

There has been no unlawful delegation of

“government power” to a private entity in this case

for the simple reason that MWAA is not a private

entity. It is an interstate compact, constituted by the

states. Unlike the mining interests in Carter Coal,

the Constitution recognizes that the states and their

compacts have a large role to play in our scheme of

federalist governance. See U.S. Const. Art I § 10; Id.

at Amend. X. Appellants try to analogize MWAA to a

private entity on the grounds that it “completely

lack[s] accountability[.]” Brief for the Appellants at

51. But the analogy misses the mark. As a creation of

the states, MWAA is subject to their dictates in a way

that true private entities simply are not. At any time,

the elected leaders of Virginia and Washington may

amend the compact through reciprocal legislation.

Va. Code § 5.1-153; D.C. Code § 9-902. And it is

elected officials who appoint MWAA’s Board of

Directors. Va. Code § 5.1-155(A), (E); D.C. Code § 9904(a), (e). There may be some level of

unaccountability that converts a nominally state

entity into a private one, but MWAA’s structure is

nowhere near it. MWAA is, therefore, a public body

which may lawfully exercise governmental power.

C.

Finally, appellants argue that MWAA violates the

non-delegation principle by exercising “federal

power.” But there is nothing inherently federal about

the operation of commercial airports. In fact, federal

16a

operation of a commercial airport is the exception,

not the rule: National and Dulles are the only major

commercial airports that have been federally

operated. It was recognition of the incongruity of the

federal government operating a commercial airport

that led to the formation of MWAA in the first place.

As the district court explained, “operating

commercial airports like National and Dulles is a

distinctly un-federal activity.” Kerpen, 260 F.Supp.3d

at 581.

D.

Successful non-delegation challenges are rare.

The Supreme Court has “invoked the doctrine of

unconstitutional delegation to invalidate a law only”

a handful of times in its history. Mistretta, 488 U.S.

at 416 (Scalia, J., dissenting). This is because the

limits of delegation “must be fixed according to

common sense and the inherent necessities of the

governmental co-ordination.” J.W. Hampton Jr., Co.

v. United States, 276 U.S. 394, 406 (1928).

Accordingly, “it is small wonder that [courts] have

almost never felt qualified to second-guess Congress

regarding the permissible degree of policy judgment

that can be left to those executing or applying the

law.” Mistretta, 488 U.S. at 416 (Scalia, J.,

dissenting).

We will not “second-guess” MWAA’s structure

because it does not exercise any powers that the

Constitution confers elsewhere. Its framework

comports with “common sense” and reflects “the

inherent necessities of the governmental coordination.” J.W. Hampton Jr., Co., 276 U.S. at 406.

The constitutional design is not frustrated by an

17a

interstate compact’s operation of a commercial

airport, even when the airport is federal property.

IV.

Appellants next claim that MWAA violates the

Guarantee Clause of the U.S. Constitution. Their

claim fails because MWAA does not deny any state a

republican form of government.

The Guarantee Clause of the U.S. Constitution

provides that “[t]he United States shall guarantee to

every State in this Union a Republican Form of

Government.” U.S. Const. Art. IV § 4. This clause is

litigated only “infrequent[ly].” New York v. United

States, 505 U.S. 144, 184 (1992). For the most part,

claims premised on the Guarantee Clause present

nonjusticiable “political questions,” unfit for

resolution within the judicial branch. Id. But “not all”

claims

under

the

Guarantee

Clause

are

nonjusticiable. Id. at 185. The question of whether a

claim is justiciable is a “difficult” one. Id. Where the

merits of the claim itself are easily resolved, the

Supreme Court has bypassed the justiciability

question entirely. Id. We take that path today

because, even assuming appellants’ Guarantee

Clause claim is justiciable, it fails on the merits.

MWAA does not deny the people of Virginia,

Washington, Maryland, or any other state or

subdivision, a republican form of government. “[T]he

distinguishing feature” of a republican form of

government “is the right of the people to choose their

own officers for governmental administration, and

pass their own laws.” Duncan v. McCall, 139 U.S.

449, 461 (1891). The Guarantee Clause is not violated

when “States … retain the ability to set their

legislative agendas” and when “state government

18a

officials remain accountable to the local electorate.”

New York, 505 U.S. at 186.

MWAA does not disturb the republican form of

government of any of its member jurisdictions. In

Virginia,

Maryland,

and

Washington,

the

“distinguishing feature” of republican government

remains. Voters are free to elect their political

leaders and those political leaders are free to set their

legislative agendas. Even on questions of MWAA’s

activities, the elected representatives of the people

have their say. MWAA exercises only those powers

conferred on it by the elected leaders of its member

jurisdictions, 49 U.S.C. § 49106(a)(1)(A); Board

members are appointed by executive officials

accountable to their electorates and serve for a fixed

6-year term, 49 U.S.C. § 49106(c); and MWAA’s

operations are a frequent topic of discussion in the

halls of political power in Virginia, Maryland, and the

District of Columbia, see e.g., “Regional coalition

rallies for $50 million investment in Dulles,”

Washington Business Journal (Feb. 4, 2016); “Heavy

hitters talk MWAA mess,” Politico (Aug. 14, 2012). As

the district court in Corr explained, MWAA “does not

violate Plaintiffs’ right to a republican form of

government because [MWAA’s] authority is

circumscribed by legislation and can be modified or

abolished altogether through the elected legislatures

that created it.” 800 F. Supp. 2d at 757.

V.

Appellants claim that MWAA’s use of toll road

funds to build metro service to Dulles violates the

command that funds only be spent on “capital and

operating costs of the Metropolitan Washington

Airports.” 49 U.S.C. § 49104(a)(3). Because we agree

19a

with the Secretary of Transportation’s interpretation

of the Lease and Transfer Act, we reject this

argument.

MWAA leases Dulles and National from the

federal government under terms specified by the

Transfer Act. The Act and the Lease allow MWAA to

levy certain fees but require that “all revenues

generated by the Metropolitan Washington Airports

shall be expended for the capital and operating costs

of the Metropolitan Washington Airports.” 49 U.S.C.

§ 49104(a)(3). MWAA also has responsibility for the

airports’ Master Plan, which, since MWAA was

created, contemplated the extension of metro service

to Dulles. In 2006, MWAA took over the operation of

the toll road leading to Dulles so that it could use the

revenues from the road to finance construction of a

metro line connecting the airport to Washington,

D.C. The question presented by this suit is whether

the Act and the Lease allow MWAA to spend those

funds for that purpose. We conclude they do.

The expenditures in no way violate the Lease

terms. The Secretary of Transportation determined

as much in 2008 when she certified MWAA’s actions

as compliant with the Lease. Her certification

expressly contemplated improvements both on and

off MWAA’s property and concluded that these

actions “do not conflict with any terms in the lease[.]”

J.A. 416. The Secretary’s approval in this case is

entitled to “great weight.” Consol. Gas Supply Corp.

v. FERC, 745 F.2d 281, 291 (4th Cir. 1984). As the

D.C. Circuit explained, an agency, when

interpreting contracts that it is authorized to

approve or disapprove, is “entitled to just as much

benefit of the doubt in interpreting such an

agreement as it would in interpreting its own orders,

20a

its regulations, or its authorizing statute.” Cajun

Elec. Power Coop. v. FERC, 924 F.2d 1132, 1135 (D.C.

Cir 1991).

It also makes good sense to defer to this

determination because it is clear that Congress

assigned the Secretary of Transportation a critical

role in what, after all, is a transportation matter. The

Transfer Act empowers the Secretary in a number of

ways: she is responsible for entering into the Lease

authorized by the Transfer Act, 49 U.S.C.

§ 49104(a); she has the power to retake possession of

MWAA property that is being improperly used, 49

U.S.C. § 49104(a)(2)(C); and she decides which

“business or activity not inconsistent with the needs

of aviation” may be considered an “airport purpose”

under the terms of the Lease. 49 U.S.C.

§ 49104(a)(2)(A)(iv). It was pursuant to this critical

role that the Secretary of Transportation approved

MWAA’s use of funds to build metro out to Dulles.

The Secretary’s interpretation of the Act and the

Lease is plainly a reasonable one, for two reasons.

First, the Transfer Act and the Lease command

MWAA to “assume responsibility” for the Master

Plan for Dulles and National. The version of the Plan

in effect at the time of the Act’s passage contemplated

the extension of metro service to Dulles. Second, the

Act and the Lease consent to MWAA’s exercise of the

power of eminent domain conferred upon it by

Virginia. 49 U.S.C. § 49106(b)(1)(D). Congress,

therefore, must have imagined that MWAA would

make improvements to land that is not owned or

controlled by the Authority.

The

Secretary’s

determination

conceives

practically of an airport as more than just a terminal

21a

and runways. It also encompasses a broader

infrastructure and critical adjunct improvements

that facilitate access to Dulles. Excessive congestion

can effectively strangle airport operations and

require citizens to spend an ever longer portion of

each day making a flight or returning from one.

Efforts to alleviate congestion and expand access to

facilities in major metropolitan areas often and

understandably meet with challenges from those

whose lives and properties may be affected by any

given project proposal. But some improvements need

to be made lest growth overwhelm the ability of the

metropolis to deal with it.

There is no basis in law for finding that the

dedicated

funding

mechanism

here

was

impermissible. To find otherwise would throw

longstanding airport expansion arrangements into

turmoil. We decline to take that step.

For the foregoing reasons, the judgment of the

district court is

AFFIRMED

22a

The United States District Court for the

Eastern District of Virginia

______________________

Kerpen v. Metro. Washington Airports Auth.

______________________

KERPEN, Plaintiff, v. METROPOLITAN

WASHINGTON AIRPORTS AUTHORITY, et al.,

Defendants.

______________________

Signed: May 30, 2017

Case No. 1:16-cv1307 (JCC/TCB)

______________________

Opinion by: James C. Cacheris

MEMORANDUM OPINION

This matter is before the Court on the Motions for

Partial Summary Judgment [Dkt. 46] and for Leave

to File Supplemental Authority [Dkt. 127] filed by

Plaintiffs Phil Kerpen, Cathy Ruse, Austin Ruse,

Charlotte Sellier, Joel Sellier, and Michael Gingras.

Also before the Court are the Motions to Dismiss filed

by Defendants Metropolitan Washington Airport

Authority (WMAA) [Dkts. 90, 91], the District of

Columbia [Dkt. 94], Secretary of Transportation

Anthony Foxx, and the U.S. Department Of

Transportation [Dkts. 85, 86]. Although not a party,

the Commonwealth of Virginia has filed a Brief

Amicus Curiae in Support of Dismissal [Dkt. 83–1].

Plaintiffs—individuals who “ha[ve] used, and

continue[ ] to use” the facilities at Ronald Reagan

Washington National Airport and Washington Dulles

International Airport, and who pay tolls on the Dulles

toll road, Am. Compl. [Dkt. 37] ¶¶ 17–22—filed this

putative class action on July 5, 2016. The putative

23a

class includes “all persons or entities in the United

States who used the facilities located on or within the

premises” at National and Dulles “leased to MWAA

... and from whom MWAA has exacted a fee, charge,

toll or other similar payment from November 2008 to

present.” Id. ¶ 78.

Plaintiffs challenge MWAA’s authority on a

variety of constitutional and statutory grounds.

Broadly speaking, Plaintiffs contend that (1) MWAA

results from an unlawful interstate compact between

Virginia and the District of Columbia (Counts I—II);

(2) the federal government has improperly delegated

federal power to MWAA (Counts III—V); (3) the tolls

charged by MWAA are illegal exactions (Count VI);

(4) MWAA has contravened the lease, and the related

federal law, under which it maintains properties

owned by the federal government (Counts VII—VIII);

(5) MWAA and the federal government have both

violated the Administrative Procedures Act (APA)

(Counts IX—X); and (6) MWAA has violated 42

U.S.C. § 1983 (Count XI). For the following reasons,

the Court will grant Defendants’ Motions to Dismiss

for Failure to State a Claim, deny Plaintiffs’ Motions

for Partial Summary Judgment and for Leave to File

Supplemental Authority, and dismiss Plaintiffs’

Complaint with prejudice pursuant to Federal Rule

of Civil Procedure 12(b)(6).

I. Background

Facts drawn from the allegations of and exhibits

to Plaintiffs’ Amended Complaint [Dkt. 38] are taken

as true for purposes of Defendants’ Motions, insofar

as those Motions are brought pursuant to Federal

Rule of Civil Procedure 12(b)(6). See E.I. du Pont de

Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435,

24a

440 (4th Cir. 2011). In addition to Plaintiffs’

Amended Complaint, the Court considers matters of

public record subject to judicial notice, see Philips v.

Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.

2009), and cited by Defendants without objection by

Plaintiffs.

A. MWAA’s Origins

Ronald Reagan Washington National Airport and

Washington Dulles International Airport are two of

three major airports serving the Washington, D.C.,

metropolitan area. Am. Compl. [Dkt. 37] ¶ 26. Both

are located in Virginia, id., and are “the only two

major commercial airports owned by the Federal

Government.” Metro. Washington Airports Auth. v.

Citizens for Abatement of Aircraft Noise, Inc., 501

U.S. 252, 256, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991)

(CAAN ).

Originally, both National and Dulles were

managed by the Federal Aviation Administration

(FAA). Am. Compl. [Dkt. 37] ¶ 26. Eventually,

however, “the Secretary of Transportation concluded

that necessary capital improvements could not be

financed for either National or Dulles unless control

of the airports was transferred to a regional authority

with power to raise money by selling tax-exempt

bonds.” CAAN, 501 U.S. at 257, 111 S.Ct. 2298. In

1984, a commission made up primarily of local, state,

and federal representatives from Virginia, Maryland,

and the District of Columbia—deemed “the parties

principally interested in the operation” of the

airports—was tasked with “developing a proposal for

transferring” the airports “from federal ownership to

a state, local or interstate public entity.” 131 Cong.

25a

Rec. S9608, S9609 (Apr. 26, 1986).1 The commission

ultimately determined that “Washington National

and Washington Dulles International Airports

should be transferred by ... Congress to a single,

independent public authority to be created jointly by

the Commonwealth of Virginia and the District of

Columbia[.]” 131 Cong. Rec. S9608.

In accordance with this plan, Virginia and the

District of Columbia enacted reciprocal legislation

creating MWAA in 1985. See D.C. Code §§ 9–901, et

seq.; Va. Code §§ 5.1–152, et seq; see also Am. Compl.

[Dkt. 37] ¶ 28. MWAA was constituted as an

independent public body governed by an 11–member

board, later expanded to 17 members with “seven

appointed by the Governor of the Commonwealth of

Virginia, four appointed by the Mayor of the District

of Columbia, three appointed by the Governor of the

State of Maryland, and three appointed by the

President of the United States.” D.C. Code § 9–904;

Va. Code § 5.1–155. Virginia and the District

individually and jointly conferred “powers and

jurisdiction” upon the MWAA, D.C. Code § 9–902; Va.

The commission included Linwood Holton, Jr., former

Governor of Virginia; Franklin E. White, representing Governor

of Virginia Charles S. Robb; John W. Warner, U.S. Senator from

Virginia; Frank Wolf, U.S. House Representative from Virginia;

Martha V. Pennino of the Fairfax County, Virginia Board of

Supervisors; Pauline A. Schneider, representing District of

Columbia Mayor Marion Barry, Jr., Betty Ann Kane of the

District of Columbia Council; Harry R. Hughes, Governor of

Maryland; Paul S. Sarbanes, U.S. Senator from Maryland;

Steny H. Hoyer, U.S. House Representative from Maryland; and

Scott Fosler, Councilman from Montgomery County, Maryland.

See 131 Cong. Rec. S9609. The commission also included three

representatives from airport-related industries and William J.

Ronan, previous chairman and board member of the Port

Authority of New York and New Jersey.

1

26a

Code § 5.1–153, as were necessary to manage, fund,

and develop National and Dulles. See D.C. Code § 9–

905; Va. Code § 5.1–156.

The following year, Congress passed the

Metropolitan Washington Airports Act of 1986,

codified as 49 U.S.C. §§ 49101, et seq. (Transfer Act).

This gave the agreement between the District of

Columbia and Virginia the status of federal law. See

Tarrant Reg’l Water Dist. v. Herrmann, ––– U.S. –––

–, 133 S.Ct. 2120, 2130 n.8, 186 L.Ed.2d 153 (2013).

The Transfer Act recognized the “continuing but

limited [federal] interest in the operation of” the

airports, as well as the “important and growing” role

the airports played in “the commerce, transportation,

and economic patterns of Virginia, the District of

Columbia, and the surrounding region.” 49 U.S.C.

§ 49101(1), (3). In light of the “perceived limited need

for a Federal role in the management of these

airports and the growing local interest,” the Act

sought to achieve “a transfer of authority from the

Federal to the local/State level that is consistent with

the management of major airports elsewhere in the

United States.” Id. § 49101(7).

Congress found that the federal government’s

interest could be adequately safeguarded “through a

lease mechanism which provides for local control and

operation” of the two airports. Id. § 49101(10).

Accordingly, the Act authorized the Secretary of

Transportation to lease the two airports, “including

access highways and other related facilities,” id.

§ 49102, to MWAA as long as MWAA met certain

criteria. See id. § 49106. The Transfer Act further

prescribed minimum terms to be included in the

lease. See id. § 49104. Among other things, the

Transfer Act provided that MWAA would “assume

27a

responsibility for the [FAA]’s Master Plans for the

Metropolitan

Washington

Airports,”

id.

§ 49104(a)(6)(A), which contemplated an extension of

the existing Washington Metrorail system to Dulles.

See Federal Defs. Exh. 1 [Dkt. 88–1] at 2, 123–24,

131. “On March 2, 1987, the Secretary of

Transportation and MWAA entered into a long-term

lease complying with all of the conditions specified in

the then recently enacted Transfer Act.” CAAN, 501

U.S. at 261, 111 S.Ct. 2298.

The Transfer Act also initially provided for a

Board of Review composed of nine members of

Congress, which was empowered to veto decisions

made by MWAA’s Board of Directors. See CAAN, 501

U.S. at 255, 111 S.Ct. 2298. The Supreme Court held

this to be an unconstitutional encroachment by

Congress on the sphere of the executive. See id. at

277, 111 S.Ct. 2298. Congress attempted to modify

and reconstitute the Board of Review, but this second

attempt was likewise held to be unconstitutional. See

Hechinger v. MWAA, 36 F.3d 97 (D.C. Cir. 1994).

Accordingly, MWAA is now governed solely by its 17–

member Board.

The federal government, however, maintains a

limited degree of control over the airports through

the Secretary of Transportation. The Transfer Act

provides that “[i]f the Secretary decides that any part

of the real property leased to [MWAA] ... is used for

other than airport purposes,” the Secretary “shall (i)

direct that [MWAA] take appropriate measures to

have that part of the property used for airport

purposes; and (ii) retake possession of the property if

[MWAA] fails to have that part of the property be

used for airport purposes within a reasonable period

of time, as the Secretary decides.” 49 U.S.C.

28a

§ 49104(a)(2)(C). “Airport purposes” is defined

broadly, and includes “a business or activity not

inconsistent with the needs of aviation that has been

approved by the Secretary.” Id. § 49104(a)(2)(A)(iv).

B. The Dulles Toll Road and Metrorail

Project

“To facilitate access to what would become

Washington Dulles International Airport ... the

federal government acquired a broad corridor of land

in Virginia, known as the Dulles Airport Access

Highway and Right-of-way[,] ... between the

Interstate 495 Beltway at Falls Church, Virginia and

Dulles Airport.” Corr v. Metro. Washington Airports

Auth., 800 F.Supp.2d 743, 745–46 (E.D. Va. 2011),

aff’d 740 F.3d 295 (4th Cir. 2014). This stretch of land

was used to construct the Dulles Airport Access

Highway—“a 13.65–mile highway” used exclusively

“to provide rapid access to and from the Dulles

Airport.” Id. at 746; See also Am. Compl. [Dkt. 37] ¶

39.

In 1980, Virginia sought and received an

easement over a portion of the federally owned Dulles

corridor to construct a toll road for non-airport traffic.

See Corr v. Metro. Washington Airports Auth., 740

F.3d 295, 297 (4th Cir. 2014) (Corr II ); See also Am.

Compl. [Dkt. 37] ¶ 40. The easement required that

“[t]he roadway ... be constructed ... so as to preserve

the median between the eastbound and westbound

lanes of the Dulles Access Highway for future rail

service to Dulles Airport.” MWAA Mot. Exh. 2 [Dkt.

93–2] ¶ 13. Virginia began operating the tollway in

1984. Am. Compl. [Dkt. 37] ¶ 40.

In the years that followed, “the Virginia General

Assembly repeatedly authorized [the Virginia

29a

Commonwealth Transportation Board] to use toll

revenue to fund mass transit projects within the

Dulles Corridor,” including the extension of the

Washington Metrorail system to Dulles. Corr II, 740

F.3d at 298. As MWAA “shared Virginia’s goal of

extending the Metrorail system to Dulles Airport”

and had assumed the FAA’s master plans, which

contemplated such a project, “MWAA proposed to

take control of the Metrorail expansion project, as

well as the Dulles Toll Road which was providing

much of the revenue for the expansion.” Id. at 298.

Virginia and MWAA entered into a Master Transfer

Agreement in December of 2006. See MWAA Mot.

Exh. 5 [Dkt. 93–5]; MWAA Mot. Ex. 6 [Dkt. 95–1].

The agreement required, among other things, that

MWAA use revenue from the tollway to fund the

Metrorail project. MWAA Mot. Exh. 5 [Dkt. 93–5]

§ 6.01. Tollway revenues are presently projected to

cover roughly half of the project’s cost. Am. Compl.

[Dkt. 37] ¶ 67. In October of 2008, the Secretary of

Transportation certified that this arrangement

between MWAA and Virginia serves a valid “airport

purpose” within the meaning of the Transfer Act. See

Pls. Mot. for Summ. J. Exh. 11 [Dkt. 52–1].

B. Corr v. MWAA

The toll road agreement between MWAA and

Virginia was unsuccessfully challenged in two

previous lawsuits brought by Plaintiffs’ counsel. See

Gray v. Virginia Sec’y of Trans., 276 Va. 93, 662

S.E.2d 66 (2008); Corr II, 740 F.3d 295. The second of

these, Corr, was filed in this Court and raised many

of the same issues presented here. Accordingly, this

Court made a number of rulings bearing upon the

present proceedings. It held, for example, that the

tolls charged by MWAA for use of the tollway are not

30a

illegal exactions or taxes but rather are permissible

“user fee[s].” 800 F.Supp.2d at 755. Similarly, the

Court “reject[ed] Plaintiffs’ contention that” Congress

or the states “impermissibly delegated to an

unelected body, MWAA, the authority to tax them.”

Id. at 756. The Court further concluded that

“MWAA’s independence does not violate Plaintiffs’

right to a republican form of government,” and found

“no merit to Plaintiffs’ claim that MWAA’s

governance structure somehow interferes with the

President’s authority under Article II to ensure that

the laws are faithfully executed or violates the

Appointments Clause.” Id. at 757–58. Each claim

rejected above has some analogue in the present

action.2

After this Court dismissed the Corr plaintiffs’

complaint, they sought review in the Court of Appeals

for the Federal Circuit. That Court held that it did

not have jurisdiction to entertain the appeal, as

MWAA is not a “federal instrumentality” subject to

the Little Tucker Act, 28 U.S.C. § 1346(a)(2). Corr v.

Metro. Washington Airports Auth., 702 F.3d 1334,

1337 (Fed. Cir. 2012) (Corr I ). Having found that

“MWAA possesses few, if any, of the hallmarks of a

federal instrumentality identified” by the Supreme

Court, the Federal Circuit transferred the case to the

Fourth Circuit. Id. at 1337–38.

The Corr plaintiffs fared no better there. The

primary subject of that appeal was whether

Virginia’s General Assembly could legally delegate

taxing power to MWAA. See Corr II, 740 F.3d at 300.

The Court further found that the Corr plaintiffs lacked

prudential standing, see 800 F.Supp.2d at 754, but the Fourth

Circuit ultimately reversed this portion of the Court’s ruling.

2

31a

The Fourth Circuit found that MWAA had levied no

tax, and that the tollway constituted a “fee-forservice” arrangement that did not violate Virginia

law. See id. at 302. Accordingly, the Fourth Circuit

determined that the Corr plaintiffs failed to state a

claim and affirmed this Court’s Order dismissing the

case. See id. at 302. The Supreme Court subsequently

denied certiorari.

D. The Present Proceedings

Plaintiffs originally filed this putative class action

in the U.S. District Court for the District of Columbia

on July 5, 2016. On September 26, 2016, the U.S.

District Court for the District of Columbia

transferred the case to this Court. See Mem. Op. and

Order [Dkt. 26].3

The District of Columbia filed a Notice [Dkt. 44]

on December 15, 2016, informing the Court that it

would intervene pursuant to Federal Rule of Civil

Procedure 5.1(c). Virginia then filed an amicus brief

[Dkt. 83–1] on January 23, 2017, stating that it would

not waive its sovereign immunity with respect to this

suit and would decline to intervene. Accordingly, the

Commonwealth argued that the Court should dismiss

this case pursuant to Federal Rule of Civil Procedure

19 for failure to join Virginia as a necessary and

indispensable party. As the Court finds that the case

should be dismissed for other reasons, the Court

declines to reach this argument.

3 It bears noting that Judge Jackson transferred the case in part

because Plaintiffs’ decision to file suit in the District of

Columbia “appear[ed] to be the result of forum shopping

prompted by plaintiffs’ unsuccessful similar challenges brought

in the Fourth Circuit.” See Mem. Op. and Order [Dkt. 26] at 9

n.1.

32a

On December 19, 2016, Plaintiffs filed a Motion

for Partial Summary Judgment [Dkt. 46], seeking to

resolve issues related to Defendants’ liability.

Defendants each responded with Motions to Dismiss

[Dkts. 85, 86, 90, 91, 94]. After the hearing on this

matter, Plaintiffs filed a Motion for Leave to File

Supplemental Authority [Dkt. 127], further

addressing the absence of Virginia and its import

under Federal Rule of Civil Procedure 19. Having

reviewed the parties’ filings and heard the arguments

of counsel, this matter is now ripe for decision.

II. Legal Standard

In order to survive a motion to dismiss brought

under Federal Rule of Civil Procedure 12(b)(6), a

complaint must set forth “a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

A claim is facially plausible “when the plaintiff pleads

factual content that allows the court to draw the

reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)

(citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

When reviewing a motion brought under Rule

12(b)(6), the Court “must accept as true all of the

factual allegations contained in the complaint,”

drawing “all reasonable inferences” in the plaintiff’s

favor. E.I. du Pont de Nemours & Co., 637 F.3d at 440

(citations omitted). “[T]he court ‘need not accept the

[plaintiff’s] legal conclusions drawn from the facts,’

nor need it ‘accept as true unwarranted inferences,

unreasonable conclusions, or arguments.’ ” Wahi v.

Charleston Area Med. Ctr., Inc., 562 F.3d 599, 616

n.26 (4th Cir. 2009) (quoting Kloth v. Microsoft Corp.,

33a

444 F.3d 312, 319 (4th Cir. 2006)) (alterations in

original).

Generally, courts may not look beyond the four

corners of the complaint in evaluating a Rule 12(b)(6)

motion. See Goldfarb v. Mayor & City Council of

Baltimore, 791 F.3d 500, 508 (4th Cir. 2015). The

Court, however, “may properly take judicial notice of

matters of public record.” Philips v. Pitt Cnty. Mem’l

Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

III. Analysis

A. MWAA does not violate the Compact

Clause.

Count I of Plaintiffs’ Complaint alleges that

MWAA did not result from a valid interstate compact

under the Compact Clause, U.S. Const. art. I, § 10, cl.

3, because the Clause applies only to “states” and the

District of Columbia is not a state. Plaintiffs contend

that “[b]ecause MWAA is not a valid interstate

compact entity and has no authority under the

Compact Clause, MWAA has no legitimate

constitutional existence as a governmental body.”

Am. Compl. [Dkt. 37] ¶ 102.

Article I, section 10, clause 3 of the U.S.

Constitution provides in relevant part that “[n]o

State shall, without the Consent of Congress ... enter

into any Agreement or Compact with another

State[.]” “By vesting in Congress the power to grant

or withhold consent, or to condition consent on the

States’ compliance with specified conditions, the

Framers sought to ensure that Congress would

maintain

ultimate

supervisory

power

over

cooperative state action that might otherwise

interfere with the full and free exercise of federal

authority.” Cuyler v. Adams, 449 U.S. 433, 439–40,

34a

101 S.Ct. 703, 66 L.Ed.2d 641 (1981). Where an

agreement between states would tend to “ ‘increase

[the] political power in the states, which may

encroach upon or interfere with the just supremacy of

the United States,’ ” congressional approval is

required. U.S. Steel Corp. v. Multistate Tax Comm’n,

434 U.S. 452, 468, 98 S.Ct. 799, 54 L.Ed.2d 682 (1978)

(quoting Virginia v. Tennessee, 148 U.S. 503, 518, 13

S.Ct. 728, 37 L.Ed. 537 (1893)).

“Congressional consent,” however, “is not required

for interstate agreements that fall outside the scope

of the Compact Clause.” Cuyler, 449 U.S. at 440, 101

S.Ct. 703. The Clause is “not to be construed to limit

the variety of arrangements which are possible

through the voluntary and cooperative actions of

individual States with a view to increasing harmony

within the federalism created by the Constitution.”

People of State of N.Y. v. O’Neill, 359 U.S. 1, 6, 79

S.Ct. 564, 3 L.Ed.2d 585 (1959).

The Compact Clause serves as a limitation on

state power. If, as Plaintiffs contend, the District is

not a “state” within the meaning of the Compact

Clause, then the Compact Clause limitation does not

apply to the District. That would leave the District

more, not less, free to make agreements with states.

The District would not, as Plaintiffs claim, lack some

positive “authority” to enter into interstate

agreements conferred by the Compact Clause. See

Am. Compl. [Dkt. 37] ¶ 102. The only case Plaintiffs

cite to support their contrary position, Alabama v.

North Carolina, 560 U.S. 330, 352, 130 S.Ct. 2295,

176 L.Ed.2d 1070 (2010), does not so much as suggest

what Plaintiffs claim it holds.

35a

There can be little doubt that Congress delegated

to the District the power to enter into agreements

with states generally. Congress enjoys “plenary”

freedom in the District of Columbia to “exercise all

the police and regulatory powers which a state

legislature or municipal government would have in

legislating for state or local purposes.” Palmore v.

United States, 411 U.S. 389, 397, 93 S.Ct. 1670, 36

L.Ed.2d 342 (1973); See also Atl. Cleaners & Dyers v.

United States, 286 U.S. 427, 435, 52 S.Ct. 607, 76

L.Ed. 1204 (1932) (Congress enjoys “all the powers of

legislation which may be exercised by a state in

dealing with its affairs” in the District). Except as

limited by the Compact Clause, state legislatures are

generally free to undertake “voluntary and

cooperative actions” with other states. O’Neill, 359

U.S. at 6, 79 S.Ct. 564. Congress has delegated its

legislative power under the District Clause, U.S.

Const. art. I, § 8, cl. 17, to the District—including the

ability to “contract and be contracted with,” D.C.

Code § 1–102—and did so “subject to all the

restrictions and limitations imposed upon the states

by the 10th section of the 1st article of the

Constitution of the United States,” D.C. Code § 1–

203.02, including the Compact Clause. 4 The District

may therefore participate in “voluntary and

cooperative” interstate endeavors, O’Neill, 359 U.S.

at 6, 79 S.Ct. 564, in much the same manner as a

state.5

4 Notably, “there is no constitutional barrier to the delegation by

Congress to the District of Columbia of [its] full legislative

power” within the District. D.C. v. John R. Thompson Co., 346

U.S. 100, 109, 73 S.Ct. 1007, 97 L.Ed. 1480 (1953).

The Court notes that the District in fact participates in

numerous interstate agreements, including other federally

5

36a

Plaintiffs’ brief arguments to the contrary in their

Reply are unsupported and unconvincing. First,

Plaintiffs argue that because the Home Rule Act

delegated legislative power with respect to “all

rightful subjects of legislation within the District,”

D.C. Code § 1–203.02 (emphasis added), the District’s

authority does not extend to legislation touching on

matters outside of the District. It is not clear that

home rule would be possible in the District of

Columbia were the Court to accept this strained

reading of the Home Rule Act. See, e.g., D.C. Code

Ann. §§ 7–2331, et seq. (interstate agreement

providing for mutual aid and disaster relief in

emergencies); D.C. Code § 9–1117.01 (interstate

agreement providing for management of bridges into

and out of the District). Moreover, Plaintiffs’

interpretation conflicts with the latter half of the

cited provision, which states that the District’s

legislative power is “subject to all the restrictions and

limitations imposed upon the states by the 10th

section of the 1st article of the Constitution of the

United States.” D.C. Code § 1–203.02. Much of this

part of the Constitution, including the Compact

Clause, governs the activities of a state touching on

matters beyond its own borders. Plaintiffs’ novel

interpretation of the Home Rule Act would render

this statutory provision mere surplusage, in addition

to producing absurd results.

recognized interstate compacts. See Fed. Dfs. Mem. in Supp. of

Mot. to Dismiss [Dkt. 88] at 25 n.12. Plaintiffs assert that other

interstate compacts including the District are valid because

they involve two or more states in addition to the District.

Plaintiffs, however, fail to cite any supporting authority and

make no attempt to explain their position.

37a

Plaintiffs argue further that “Congress cannot

constitutionally delegate to the District the powers of

a state as a member of the Union,” as this “would

violate Art. IV, § 3, which provides the procedures for

admitting new States.” Pls. Rep. [Dkt. 103] at 27.

This is a non sequitur. The question before the Court

is not whether Congress could have delegated all

powers attendant statehood to the District of

Columbia, but whether it has permissibly delegated

the power at issue here—to wit, the power to enter

into agreements with states. As discussed above,

Congress could and did delegate this power to the

District. This ability is not uniquely reserved to

“member[s] of the Union.” Indeed, it is freely

exercised by private and governmental actors of all

stripes. While Plaintiffs argue that agreements

between states are somehow qualitatively different

from other agreements, the case upon which they rely

for that proposition itself states otherwise. See Doe v.

Pennsylvania Bd. of Prob. & Parole, 513 F.3d 95, 105

(3d Cir. 2008) (finding that an interstate compact is a

contract subject to the general principles of contract

law).

In light of the above, the Court finds Plaintiffs’

Compact Clause claim puzzling. Assuming that the

Compact Clause applies to the interstate agreement

creating MWAA, Congress gave its express consent

through the Transfer Act. The Clause’s requirements

are thus satisfied. If, on the other hand, Plaintiffs are

correct and the Compact Clause does not apply, then

Congress’ consent was unnecessary and irrelevant for

purposes of the Compact Clause. See Cuyler, 449 U.S.

at 440, 101 S.Ct. 703. Either way, the Compact

Clause casts no doubt on the legality of MWAA or its

actions.

38a

Plaintiffs respond only that “MWAA purports to

be a compact entity” and so “must stand or fall as

such.” Pls. Rep. [Dkt. 103] at 27. Plaintiffs, however,

again provide no support for this bald assertion, and

the Court fails to see its logic. As discussed above, the

Compact Clause does not confer any positive

authority on entities constituted as interstate

compacts. Nor, for that matter, does it penalize

entities that falsely “purport” to be interstate

compacts.

If Plaintiffs mean to imply that Congress cast

doubt on MWAA’s validity by treating it as an

interstate compact and passing the Transfer Act, this

argument turns the Compact Clause on its head. It

treats the Clause as a limitation on Congress’

power—as backward a reading of that constitutional

provision as can be. See Detroit Int’l Bridge Co. v.

Gov’t of Canada, 192 F.Supp.3d 54, 71 (D.D.C. 2016).

As MWAA aptly points out, the Compact Clause “does

not say, nor has it ever been read to mean, that

Congress may only consent to compacts between

States of the Union.” MWAA Rep. [Dkt. 115] at 8. In

the absence of such a restriction, Congress was

plainly empowered to enact the Transfer Act. See,

e.g., U.S. Const. art. I, § 8, cl. 18.

Were it necessary to reach the question, however,

the Court would find that the District of Columbia is

a “state” within the meaning of the Compact Clause.

“Whether the District of Columbia constitutes a

‘State or Territory’ within the meaning of any

particular statutory or constitutional provision

depends upon the character and aim of the specific

provision involved.” District of Columbia v. Carter,

409 U.S. 418, 420, 93 S.Ct. 602, 34 L.Ed.2d 613

(1973). The object of the Compact Clause is to

39a

safeguard federal supremacy in matters of federal

interest from intrusion by the states. See Cuyler, 449

U.S. at 439–40, 101 S.Ct. 703. The federal

government has delegated legislative autonomy to

the District of Columbia comparable to that of a state.

Subject to certain restrictions, the District may use

that power to do things with which the federal

government disagrees. See, e.g., William Cummings,

Pot Now Legal in D.C. Despite Threats from Congress,

USA

Today

(Feb.

25,

2015),

https://tinyurl.com/ltf96ql. Indeed, the fact that

Congress delegated legislative power to the District

“subject to all the restrictions and limitations

imposed upon the states by the 10th section of the 1st

article of the Constitution of the United States,” D.C.

Code § 1–203.02, demonstrates that Congress

intended to delegate a degree of autonomy to the

District giving rise to Compact Clause concerns.

Construing the Compact Clause to exclude the

District of Columbia would therefore be contrary the

Clause’s purpose. But again, this has little bearing on

MWAA’s legitimacy, as Congress consented to

MWAA’s creation and so satisfied the Compact

Clause’s requirements.6

At the hearing on this matter, Plaintiffs argued without

support that the District of Columbia is merely the federal

government’s agent. Courts, however, have generally reached

the opposite conclusion. See, e.g., Sindram v. United States, 67

Fed.Cl. 788, 794 (2005) (“[A]s a matter of law, the District of

Columbia is not an agent of the United States Government.”);

cf. United States v. Jackson, 163 F.3d 599 (4th Cir. 1998)

(“Courts addressing this issue have consistently held that the

District of Columbia is not a department or agency of the United

States.”).

6

40a

In sum, the Compact Clause does not provide an

avenue for Plaintiffs to attack MWAA’s legitimacy.

Accordingly, Count I of Plaintiffs’ Amended

Complaint fails to state a claim upon which relief

may be granted.

Count II of Plaintiffs’ Amended Complaint also

ostensibly arises under the Compact Clause. The

wide-ranging allegations under that heading invoke

a variety of doctrines having little to do with the

Compact Clause. Ultimately, Plaintiffs posit that

“the federal authority delegated to MWAA is

improper under the Compact Clause,” and MWAA’s

authority “cannot flow from the Compact Clause,

which is MWAA’s only claimed source of power to

exercise that authority.” Am. Compl. [Dkt. 37] ¶ 110.

This, again, misreads the Compact Clause as more

than a limitation on the ability of states to enter into

agreements that might encroach upon federal

interests. See Cuyler, 449 U.S. at 440, 101 S.Ct. 703.

Moreover, as discussed more fully below, MWAA’s

power is not federal in nature. The Court therefore

finds that Count II of Plaintiffs’ Amended Complaint

likewise fails to state a claim.

B. MWAA does not exercise federal power.

Counts III through V of Plaintiffs’ Amended

Complaint allege, in various formulations, that the

federal government has improperly delegated federal

authority to MWAA. As Plaintiffs concede, Counts

III, IV, and V of their Amended Complaint rest on

“the premise that MWAA exercises federal power.”

Pl. Mem. in Supp. of Mot. for Partial Summ. J. [Dkt.

8] at 8. The Court rejects that premise.

41a

Plaintiffs argue first that the Supreme Court held

in CAAN, 501 U.S. 252, 111 S.Ct. 2298, that

“members of MWAA’s Board are federal ‘officers’

exercising federal power.” Pl. Mem. in Supp. of Mot.

for Partial Summ. J. [Dkt. 8] at 9. That is simply

false. CAAN did not concern MWAA’s Board, but

rather its now-defunct Board of Review. The latter

was empowered to overturn the decisions of MWAA’s

Board and was composed of “nine Members of the

Congress, eight of whom serve[d] on committees with

jurisdiction over transportation issues and none of

whom [was] a Member from Maryland, Virginia, or

the District of Columbia[.]”CAAN, 501 U.S. at 259,

111 S.Ct. 2298. Congress insisted on the Board of

Review to alleviate the concern of some members that

“by leasing [National and Dulles] to a local authority,

[Congress] would be losing control over them”

entirely. Id. at 268, 111 S.Ct. 2298 (quoting 132 Cong.

Rec.

32143

(1986)

(statement

of

Rep.

Hammerschmidt)).

The Supreme Court found the Board of Review to

be an agent of Congress that either (1) improperly

exercised federal executive power or (2) failed to

observe the bicameral and presentment procedures

necessary to exercise federal legislative power. See

id. at 274, 111 S.Ct. 2298. The Court did not address

whether MWAA itself exercises federal power. The

Court did, however, strongly suggest the opposite,

concluding that the Board of Review was a

mechanism through which “Congress imposed its will

on the regional authority created by the District of

Columbia and the Commonwealth of Virginia.” Id. at

276, 111 S.Ct. 2298. The characteristic of the Board

of Review the Supreme Court deemed “[m]ost

significant” to its analysis—the limitation of

42a

membership to representatives of Congress—is not

shared by MWAA’s Board. See id. at 266–67, 111

S.Ct. 2298.7

The only Court to have squarely considered

whether MWAA exercises federal power concluded

that it does not. As discussed above, the Federal

Circuit found in Corr I that “MWAA possesses few, if

any, of the hallmarks of a federal instrumentality

identified” by the Supreme Court. 702 F.3d at 1337–

38. That court noted that “though it may partly owe

its existence to an act of Congress, MWAA was in

large part created by, and exercises the authority of,

Virginia and the District of Columbia.” Id. at 1337.

Furthermore, “while MWAA does serve limited

federal interests, it serves regional and state

interests as well.” Id. Finally, the court found that

MWAA is not subject to meaningful federal control.

See id. The court thus concluded that the factors

identified by the Supreme Court in cases like Lebron

v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 397–98,

115 S.Ct. 961, 130 L.Ed.2d 902 (1995), demonstrate

that MWAA is not federal in nature. Corr I, 702 F.3d

at 1338.

Independently applying the Lebron factors, the

Court agrees with the Federal Circuit’s reasoning.

First, MWAA was created by legislation enacted by

In their Reply, Plaintiffs contend that MWAA’s Board

“inherited the Board of Review’s powers.” Pls. Rep. [Dkt. 103] at

4. It is unclear how MWAA’s Board could inherit the power to

veto its own decisions. Regardless, MWAA’s Board certainly did

not inherit the seats in Congress held by members of the Board

of Review. The Court fails to see how the loss of a federal layer

of review over MWAA’s actions somehow transformed “the

regional authority created by the District of Columbia and the

Commonwealth of Virginia” into an agent of Congress like the

Board of Review. CAAN, 501 U.S. at 276, 111 S.Ct. 2298.

7

43a

the District of Columbia and Virginia. See D.C. Code

§§ 9–901, et seq.; Va. Code §§ 5.1–152, et seq.

Throughout their various filings, Plaintiffs

mischaracterize the nature of Congress’ contribution,

contending that the Transfer Act conferred upon

MWAA its various powers. See, e.g., Pls. Rep. [Dkt.

103] at 5. It did not. The Transfer Act instead merely

recognized and consented to the powers conferred

upon MWAA by Virginia and the District of

Columbia. See Corr I, 702 F.3d at 1337 (“The Airports

Act, however, represents Congressional approval of

Virginia’s and the District of Columbia’s compactlegislation authorizing the establishment of MWAA

rather than the creation of the Authority in the first

instance.”); See also Seattle Master Builders Ass’n v.

Pac. Nw. Elec. Power & Conservation Planning

Council, 786 F.2d 1359, 1365 (9th Cir. 1986) (“As with

any compact, congressional consent did not result in

the creation but only authorized the creation of the

compact organization and the appointment of its

officials.”). Indeed, the Transfer Act itself expressly

recognizes that MWAA exercises powers “conferred

upon it jointly by the legislative authority of Virginia

and the District of Columbia,” not federal authority

delegated via the Transfer Act. 49 U.S.C.

§ 49106(a)(1)(A).

Plaintiffs argue that, notwithstanding that fact,

“MWAA’s history tells the story of a body shaped,

authorized and overseen by Congress at every step.”

Pls. Rep. [Dkt. 103] at 6. Plaintiffs essentially argue

that MWAA was foisted upon Virginia and the

District by the federal government. This, however,

elides the legislative history underpinning, and

congressional findings accompanying, the Transfer

Act. For example, MWAA was proposed by a

44a

commission composed primarily of representatives of

Virginia, Maryland, and the District, see 131 Cong.

Rec. S9608, S9609, and enjoyed strong regional

support. See, e.g, Commonwealth of Virginia Amicus

Curiae Brief in Support of Dismissal [Dkt. 83–1] at

1–4. The Transfer Act itself states that the impetus

for MWAA’s creation was the “perceived limited need

for a Federal role in the management of [National

and Dulles] and the growing local interest” in the

same. 49 U.S.C. § 49101(7). While the federal

government played a role in MWAA’s creation, that

role was not so dominant as to somehow render

MWAA a de facto federal entity.

Similarly, Plaintiffs contend that “MWAA was

created to pursue Congress’s policy goals.” Pls. Rep.

[Dkt. 103] at 8. There is some truth to that. The policy

goal in question, however, was that of relinquishing

control of National and Dulles to an entity operating

at the “local/State level.” 49 U.S.C. § 49101(7). As

discussed above, this was a policy goal shared by

Virginia and the District of Columbia. It is difficult to

see how an entity created in the pursuit of this

particular policy would be federal in nature, rather

than a “local/State” creation. Id. “[T]he fact that

federal and state entities act toward a common goal

does not convert the state—or interstate—body into

a federal one.” New York v. Atl. States Marine

Fisheries Comm’n, 609 F.3d 524, 533 (2d Cir. 2010).8

8 Plaintiffs also argue that both the federal government and the

Commonwealth of Virginia have made isolated statements in

other cases indicating that MWAA exercises federal power.

Plaintiffs, however, do not contend that Defendants are

estopped from arguing otherwise, or that the Court is somehow

bound to follow these prior statements. As such, it’s not clear

that the prior statements have any bearing on the present

proceedings.

45a

Plaintiffs argue further that by managing federal

property, MWAA “serves a function expressly

granted to Congress by the Constitution, namely, to

make ‘Rules and Regulations respecting the Territory

or other Property Belonging to the United States[.]’ ”

Pls. Rep. [Dkt. 103] at 7 (quoting U.S. Const. Art. 1,

§ 3, cl. 2). But as Plaintiffs concede, see id. at 8, the

mere fact that MWAA leases federal property does

not transform it into a federal instrumentality. See

Buckstaff Bath House Co. v. McKinley, 308 U.S. 358,

362, 60 S.Ct. 279, 84 L.Ed. 322 (1939); See also

United States v. Muskegon Twp., 355 U.S. 484, 486,

78 S.Ct. 483, 2 L.Ed.2d 436 (1958) (holding that

operation of federally-owned manufacturing plant

did not render a private company a federal

instrumentality).

Plaintiffs press the point nonetheless, contending

that MWAA is not a typical lessee as it was “created

on the Federal Government’s terms to exercise the

federal Congress’s own power over federal

property[.]” Pls. Rep. [Dkt. 103] at 8. As discussed

above, that is not an accurate description of MWAA.

Regardless, Plaintiffs fail to explain how MWAA

exercises power reserved to Congress more than any

other lessee of federal property. There is nothing

inherently “federal” about the operation of National

and Dulles. With the exception of National and

Dulles, the federal government has never owned or

operated major commercial airports. See CAAN, 501

U.S. at 256, 111 S.Ct. 2298. Indeed, it seems that part

of the impetus for MWAA’s creation was a general

sense that the federal government has little business

running a commercial airport. See 131 Cong. Rec.

S9608 (noting that “[b]y 1948, [National] was

identified as inappropriate for operation as a

46a

conventional federal agency,” and “many attempts

were made to reorganize first National, and later

both National and Dulles into a government

corporation” before the United States ultimately

transferred control of the airports to a local

authority). Congress itself recognized in the Transfer

Act that federal control of a major commercial airport

is anomalous, reasoning that transferring control of

National and Dulles to the “local/State level” would

be more “consistent with the management of major

airports elsewhere in the United States.” 49 U.S.C.

§ 49101(7). If anything, operating commercial

airports like National and Dulles is a distinctly unfederal activity.

Proceeding to the next Lebron consideration,

MWAA serves predominantly state and local, rather

than federal, interests. Although the Supreme Court

in CAAN observed that Congress has a “strong and

continuing interest in the efficient operation of”

National and Dulles, 501 U.S. at 266, 111 S.Ct. 2298,

Congress found its own interest to be “limited”

relative to the “important and growing” role the

airports play in “the commerce, transportation, and

economic patterns of Virginia, the District of

Columbia, and the surrounding region.” 49 U.S.C.

§ 49101(1), (3); cf. Corr I, 702 F.3d at 1337 (“[W]hile

MWAA does serve limited federal interests, it serves

regional and state interests as well.”). This

conclusion is, frankly, commonsensical; while

National and Dulles do undoubtedly serve members

of Congress traveling to and from their home

districts, the airports far more frequently serve the

many residents of the Washington, D.C.,

metropolitan area. It was recognized when MWAA

was first proposed that the state and local

47a

governments of the Washington, D.C., metropolitan

area are “the parties principally interested in the

operation” of the airports. 131 Cong. Rec. S9609. As

stated by then-Governor of Virginia Gerald Baliles in

testimony before a congressional subcommittee,

National and Dulles are “critical” to Virginia as

“Virginia’s most heavily-used gateway.” Proposed

Transfer of Metro. Wash. Airports: Hearings Before

the Subcomm. on Aviation of the H. Comm. on Pub.

Works and Transp., 99th Cong. 4, 9–10 (1986). The

same likely can be said of the District. The very

nature of the arrangement struck between the

federal government, Virginia, Maryland, and the

District of Columbia reflects that the balance of

interests tips local, with the federal government’s

“limited” interest safeguarded only “by a lease

mechanism which provides for local control and

operation.” 49 U.S.C. § 49101(3), (10).

As for the final Lebron considerations, 513 U.S. at

397–98, 115 S.Ct. 961, the federal government has

little say in MWAA’s operations.9 MWAA was

deliberately constituted as a local authority that

operates “independent of ... the United States

Government.” 49 U.S.C. § 49106(a)(2). While the

President appoints three members of MWAA’s Board,

that is only a small minority of the Board’s 17

members. See D.C. Code § 9–904; Va. Code § 5.1–155.

This is a mundane feature among interstate

compacts, see, e.g., State ex rel. Dyer v. Sims, 341 U.S.

22, 27–28, 71 S.Ct. 557, 95 L.Ed. 713 (1951), and is

The Court notes that Plaintiffs’ various arguments with

respect to federal control of MWAA are inconsistent with

Plaintiffs’ other claims, which generally bemoan MWAA’s

unaccountability to the federal government. See, e.g., Am.

Compl. [Dkt. 37] ¶¶ 4–5.

9

48a

not sufficient to demonstrate that MWAA is federally

controlled.

The greatest formal authority the United States

retains over MWAA is the power to enforce the terms

of the airport lease. See 49 U.S.C. § 49104(a)(2)(C).

As Plaintiffs concede, however, that is little enough

power, see Am. Compl. [Dkt. 37] ¶ 48, and no more

than any lessor retains over a lessee. As discussed

above, the mere fact that MWAA leases federal

property is not enough to transform it into a federal

instrumentality. See Buckstaff Bath House Co., 308

U.S. at 362, 60 S.Ct. 279.

Plaintiffs argue further that MWAA is a de facto

federal entity because it operates under federal

control in practice. Plaintiffs, however, provide little

evidence of federal control—none of it compelling.

Plaintiffs point out that the District and Virginia

twice amended their laws concerning MWAA in

tandem with Congress. See Pls. Rep. [Dkt. 103] at 5.

Such coordination, however, does not demonstrate

congressional control—particularly as one of the

amendments resulted from court decisions holding

the amended portion to be unconstitutional. See

CAAN, 501 U.S. at 277, 111 S.Ct. 2298; Hechinger, 36

F.3d at 105. Relatedly, the Court notes that Congress

has twice tried, and failed, to “impose[ ] its will on the

regional authority created by the District of

Columbia and the Commonwealth of Virginia”

through a Board of Review. CAAN, 501 U.S. at 276,

111 S.Ct. 2298; See also Hechinger, 36 F.3d 97. Those

efforts make little sense if Congress in fact controls

MWAA in the absence of a Board of Review.

Plaintiffs contend further that the Department of

Transportation has recently subjected MWAA’s

49a

operations to a degree of “general oversight.” See Pls.

Rep. [Dkt. 103] at 5–6. But Department of

Transportation oversight is simply not the same as

meaningful federal control. Indeed, that is, to a

degree, the very premise of Plaintiffs’ lawsuit. Cf. Am.

Compl. [Dkt. 37] ¶ 48 (“Neither the Transfer Act nor

the Airports Lease creates any mechanism or

procedure by which the Secretary is in a position to

effectively supervise MWAA, or otherwise to

practically enforce the Lease terms.”).

This relatively minor federal involvement sets

MWAA well apart from entities that courts have

deemed to be de facto federal instrumentalities.

Plaintiffs, for example, compare MWAA to Amtrak.

See Pls. Rep. [Dkt. 103] at 5. Whereas the vast

majority of MWAA’s Board is appointed by state and

local authorities, see Va. Code § 5.1–155; D.C. Code

§ 9–904, nearly all of Amtrak’s Board is appointed by

the President and confirmed by the Senate. See Dep’t

of Transp. v. Ass’n of Am. Railroads, ––– U.S. ––––,

135 S.Ct. 1225, 1231, 191 L.Ed.2d 153 (2015).

Amtrak’s Board members must additionally meet

qualifications set by federal law, and are paid salaries

subject to limits set by Congress. Id. While MWAA

was constituted by Virginia and the District as a local

governmental body, see Va. Code § 5.1–153; D.C.

Code § 9–902, Amtrak was constituted as a

corporation, with “[t]he Secretary of Transportation

hold[ing] all of Amtrak’s preferred stock and most of

its common stock[.]”Ass’n of Am. Railroads, 135 S.Ct.

at 1231. Congress is largely uninvolved in MWAA’s

day-to-day activities. See, e.g., 49 U.S.C.

§ 49106(a)(2); See also Pls. Mem. in Supp. of Mot. for

Partial Summ. J. [Dkt. 8] at 15–19 (arguing that

MWAA’s discretion is not meaningfully constrained

50a

by federal law). Amtrak, on the other hand, is subject

to far more thorough requirements set by federal law,

ranging from general policies Amtrak must pursue to

specific train routes it must maintain. See Ass’n of

Am. Railroads, 135 S.Ct. at 1232. Finally, unlike

MWAA, which receives federal grants on the same

basis as any other airport authority, Amtrak is

“dependent on federal financial support.” Id. The

contrast is so stark that the Court is surprised

Plaintiffs would invite the comparison.

Finally, Plaintiffs argued at the hearing on this

matter that MWAA wields federal power because its

authority derives in part from the District of

Columbia, and the District’s authority in turn comes

from Congress. The District’s authority, however, is

generally understood to be local, rather than federal,

in nature. See, e.g., LaShawn A. v. Barry, 87 F.3d

1389, 1396 (D.C. Cir. 1996) (noting that D.C. law is

“local” rather than “federal”).

At the very least, the District’s authority is not

“federal” in any sense that would subject MWAA to

Plaintiffs’ separation of powers challenge. Although

Congress delegated legislative power to the District,

Congress possesses a “dual authority over the

District.” Keller v. Potomac Elec. Power Co., 261 U.S.

428, 443, 43 S.Ct. 445, 67 L.Ed. 731 (1923). Where the

District is concerned, Congress may legislate in its

capacity as a national body, or it may legislate using

its unitary, “plenary” authority to “exercise all the

police and regulatory powers which a state

legislature or municipal government would have in

legislating for state or local purposes.” Palmore, 411

U.S. at 397, 93 S.Ct. 1670. It is this latter power that

Congress delegated to the District. This unitary

authority is not subject to the Constitution’s

51a

separation of powers requirements, whether wielded

by Congress, the District, or MWAA. See Techworld

Dev. Corp. v. D.C. Pres. League, 648 F.Supp. 106,

116–17 (D.D.C. 1986), vacated as moot, No. 86-5630,

1987 WL 1367570 (D.C. Cir. June 2, 1987).

In light of the above, the Court finds that MWAA

is not a federal instrumentality exercising federal

power. As Counts III, IV, and V of Plaintiffs’

Amended Complaint rest on “the premise that

MWAA exercises federal power,” Pls. Mem. in Supp.

of Mot. for Partial Summ. J. [Dkt. 8] at 8, those

Counts fail as a matter of law.

C. Tolls charged by MWAA are not illegal

exactions, and Plaintiffs fail to state a

Section 1983 claim.

Count VI of Plaintiffs’ Complaint alleges that tolls

charged by MWAA are illegal exactions that violate

the Due Process Clause of the Fifth Amendment. The

legal basis for this claim is unclear. Indeed, the

parties are unable to agree as to the body of law under

which the claim arises. The Court notes that

Plaintiffs’ counsel brought a similar claim in Corr

that engendered similar confusion. See Corr II, 740

F.3d at 299.

Regardless, as in Corr, the Court need not resolve

the confusion. The Court gleans that—as in Corr—

Plaintiffs’ illegal exaction claim is not freestanding,

but rather is “parasitic on” Plaintiffs’ other claims.

Corr II, 740 F.3d at 300. It posits that MWAA

collected money from Plaintiffs while operating

illegally, and so that collection of money was itself

illegal. Plaintiffs’ illegal exaction claim can therefore

only succeed if the Court rules in Plaintiffs’ favor on

some other count of Plaintiffs’ Amended Complaint.

52a

Plaintiffs conceded as much at oral argument. As the

Court finds that the other counts of Plaintiffs’

Amended Complaint lack merit, Plaintiffs’ illegal

exaction claim also fails.

Similarly, Count XI of Plaintiffs’ Amended

Complaint alleges that MWAA violated 42 U.S.C.

§ 1983 based on the constitutional claims discussed

and rejected above. As Plaintiffs failed to “prove a

violation of the underlying constitutional right,”

Plaintiffs have failed to state a claim under Section

1983. Daniels v. Williams, 474 U.S. 327, 330, 106

S.Ct. 662, 88 L.Ed.2d 662 (1986).

D. MWAA has not violated the Transfer Act

or the airport lease.

Counts VII and VIII of Plaintiffs’ Amended

Complaint allege that MWAA has violated the

Transfer Act and the lease under which it operates

National and Dulles. These claims are effectively

identical, as the Transfer Act dictates the pertinent

terms of the lease. See 49 U.S.C. § 49104(a). 10

Plaintiffs contend that MWAA has contravened

three provisions of the Transfer Act. First, Plaintiffs

argue that MWAA has failed to use the leased

premises “only for airport purposes” as required by 49

U.S.C. § 49104. Second, Plaintiffs claim that MWAA

has failed to abide by 49 U.S.C. § 49104(a)(3), which

The Act provides a private cause of action allowing “an

aggrieved party” to “compel the Airports Authority and its

officers and employees to comply with the terms of the lease.” 49

U.S.C. § 49104(c). Courts have interpreted this provision as

“limit[ing] the remedies available” for violations of the lease and

Transfer Act “to equitable relief necessary to enforce compliance

with the Lease.” LTMC/Dragonfly, Inc. v. Metro. Washington

Airports Auth., 699 F.Supp.2d 281, 295 (D.D.C. 2010).

10

53a

requires that “all revenues generated by the [MWAA]

... be expended for the capital and operating costs of”

National and Dulles. Finally, Plaintiffs claim that

MWAA has violated 49 U.S.C. § 47107(a)(13)(A),

which requires MWAA to set “charges for the use of

facilities ... that will make the airport as selfsustaining as possible.”

At the hearing on this matter, Plaintiffs expressly

abandoned their claim that MWAA’s activities have

not served “airport purposes” within the meaning of

49 U.S.C. § 49104. As such, the Court will dismiss

Plaintiffs’ claims insofar as they rest on that

provision of the Transfer Act.

Plaintiffs’ second argument, that MWAA has

failed to spend “all revenues generated” on “the

capital and operating costs of” National and Dulles,

id. § 49104(a)(3), takes issue with MWAA’s

contributions to the Silver Line Metro project and

funds MWAA has put toward improving roads in and

around the Dulles Corridor. What constitutes a

capital cost is not defined in the airport lease or the

Transfer Act.

Both the lease and Transfer Act, however, require

MWAA to assume responsibility for the FAA’s Master

Plans. See 49 U.S.C. § 49104(a)(6)(A). Those Master

Plans expressly contemplate the extension of rail

service to Dulles. See Federal Defs. Exh. 1 [Dkt. 88–

1] at 2, 123–24, 131. Plaintiffs apparently concede

that MWAA’s contributions to the Silver Line Metro

project are in keeping with the Master Plans, and

that MWAA’s efforts to improve Route 7 and Spring

Hill Road are incidental to the Silver Line project. See

MWAA Exh. 12 [Dkt. 98–3] at ¶ 1.3.3. Plaintiffs’

argument that these are not “capital costs” under the

54a

lease and Transfer Act would therefore have the

Court construe the term so narrowly that it would

exclude this project expressly contemplated by the

lease and Transfer Act. MWAA would effectively be

advised to pursue, while at the same time forbidden

to pursue, these projects. That cannot be a proper

construction of the lease and Transfer Act.

Plaintiffs rejoin only that these improvements

cannot constitute “capital costs” because they will

incidentally benefit a large number of non-airport

users. For example, Plaintiffs claim that only a

relatively small fraction of the people served by the

Silver Line will, on a given day, use the Silver Line to

reach Dulles. See Mem. in Supp. of Mot. for Summ. J.

[Dkt. 47] at 24. As a matter of logic, it is hard to see

why this matters. This incidental benefit to third

parties in no way diminishes the improvement to

Dulles wrought by rail accessibility. It would be

difficult—perhaps impossible—to provide effective

rail service to the airport without conferring such a

benefit on third parties.

Moreover, Plaintiffs cite no authority for the

proposition that a capital expenditure cannot

incidentally benefit third parties. Ordinarily, a

capital expenditure is simply “[a]n outlay of funds to

acquire or improve a fixed asset.” CAPITAL

EXPENDITURE, Black’s Law Dictionary (10th ed.

2014). The fact that the Silver Line will benefit nonairport users does not take it outside this definition.

The Court notes that the federal government—the

lessor itself—has already certified that the Silver

Line project meets the requirements of the lease and

Transfer Act, see Pls. Mot. for Summ. J. Exh. 11 [Dkt.

52–1] at 3, including the requirement that “all

revenues generated by the [MWAA] ... be expended

55a

for the capital and operating costs of” National and

Dulles. See 49 U.S.C. § 49104(a)(3). Plaintiffs provide

no compelling reason to second-guess the lessor’s

construction of its own lease.

Plaintiffs similarly take issue with MWAA’s

improvements to Route 606 in and around the Dulles

Corridor. Route 606 lies partially on land leased to

MWAA, and the improvements to it are intended to

enhance access to both Dulles and the Dulles Toll

Road. See Pls. Exh. 35 [Dkt. 65–1] at 199. At the

hearing on this matter, Plaintiffs’ counsel conceded

that capital expenditures need not pertain to assets

resting entirely on property leased to MWAA. It is

therefore difficult to see why MWAA’s expenditures

on Route 606 would not constitute capital costs under

the airport lease and Transfer Act. The Court

therefore finds that Plaintiffs have failed to

demonstrate that MWAA violated 49 U.S.C.

§ 49104(a)(3) through its various efforts to improve

access to Dulles.

Plaintiffs next argue that MWAA has violated 49

U.S.C. § 47107(a)(13)(A) by failing to “make the

airport as self-sustaining as possible.” Plaintiffs

claim that this is so because “the obvious way to do

that, if there are excess revenues, is to put those

revenues in a trust fund or analogous account so they

can be used to meet future expenses of airport

facilities[.]” Am. Compl. [Dkt. 37] ¶ 174; See also

Mem. in Supp. of Mot. for Partial Summ. J. [Dkt. 47]

at 25.

Simply characterizing a conclusion as “obvious,”

however, does not make it so. Nor, for that matter,

does it suffice to survive a Rule 12(b)(6) motion.

Plaintiffs offer no evidence, analysis, or authority.

56a

Instead, they merely state their conclusion that

MWAA could pursue a broad statutory directive more

effectively and invite Defendants to prove them

wrong. But it falls to Plaintiffs to state a viable claim

for relief. See, e.g., Iqbal, 556 U.S. at 678, 129 S.Ct.

1937. Plaintiffs fail to put forth sufficient factual

matter or analysis to meet that obligation. They

instead merely quibble with MWAA’s business

judgment.

If, as Plaintiffs claim, MWAA could only satisfy its

obligations under 49 U.S.C. § 47107(a)(13)(A) by

putting excess revenue in a trust fund, the lease and

Transfer Act would say so. Instead, the lease and

Transfer Act entrust MWAA with discretion.

Plaintiffs have established they would exercise that

discretion differently. That, however, does not

demonstrate MWAA has violated 49 U.S.C.

§ 47107(a)(13)(A),

notwithstanding

Plaintiffs’

apparent confidence that they know best how to run

Dulles.11

In sum, Plaintiffs have failed to sufficiently allege

any violation of the Transfer Act and airport lease.

The Court will therefore dismiss Counts VII and VIII

of Plaintiffs’ Amended Complaint.

E. Plaintiffs fail to state a claim under the

APA.

Finally, Plaintiffs allege in Counts IX and X of

their Amended Complaint that MWAA, the

Department of Transportation, and the Secretary

11 The Court notes

that it is in fact not “obvious” that using

excess funds to improve public access to Dulles will make the

airport less sustainable than Plaintiffs’ vague “trust fund or

analogous account.”

57a

have all violated the APA. See Mem. in Supp. of Mot.

for Partial Summ. J. [Dkt. 47] at 25. The Court

disagrees.

First, as discussed above, MWAA is not a federal

instrumentality. It is therefore not an “authority of

the Government of the United States,” 5 U.S.C.

§ 551(1), subject to the APA. See also Atl. States

Marine Fisheries Comm’n, 609 F.3d at 532–33

(finding that interstate compacts are generally not

subject to the APA).

Plaintiffs press the point nonetheless, arguing

that the “APA applies to quasi-agencies like

interstate compact entities that are imbued with a

special federal interest[.]” Mem. in Supp. of Mot. for

Partial Summ. J. [Dkt. 47] at 27. The Court concludes

that, for the reasons discussed above, Plaintiffs have

failed to show that MWAA is imbued with any special

federal interest that would justify subjecting MWAA

to the APA.

Regardless, neither this Court nor the Fourth

Circuit has embraced the “quasi-federal agency”

doctrine advanced by Plaintiffs. Indeed, the Fourth

Circuit has implicitly rejected it. See United States v.

Saunders, 828 F.3d 198, 205 (4th Cir. 2016) (citing

with approval the Second Circuit’s rejection of the

“quasi-federal agency” doctrine in New York v.

Atlantic States Marine Fisheries Commission, 609

F.3d 524, 527 (2d Cir. 2010)). In the case Plaintiffs

cite, Seal & Co. v. Washington Metropolitan Area

Transit Authority, 768 F.Supp. 1150, 1154 (E.D. Va.

1991), this Court explained that “the agency

involved—WMATA—is not a federal agency” and so

“is not subject to the APA,” but noted the reasoning

of two other courts finding that “WMATA should be

58a

treated as a federal agency subject to the APA with

respect to standing” in certain circumstances. Id. at

1155. Judge Ellis did not endorse this conclusion, and

the Court finds the limited reasoning of the cases

discussed in Seal & Co. unpersuasive. Having found

that MWAA does not exercise federal power, it would

be inappropriate to subject it to a law intended to

restrain federal power. See Atl. States Marine

Fisheries Comm’n, 609 F.3d at 532–33.

It is unclear whether Plaintiffs still maintain

their APA claim against the federal defendants. As

discussed above, at the hearing on this matter

Plaintiffs abandoned their argument that MWAA’s

activities do not serve valid “airport purposes” within

the meaning of 49 U.S.C. § 49104. Plaintiffs’ APA

claim against the federal defendants rests upon this

argument. Having abandoned the argument without

qualification at the hearing, the Court is inclined to

deem it withdrawn for all purposes.

Regardless, Plaintiffs’ APA claim against the

federal defendants is both time barred and meritless.

First, as the federal defendants note, there is a

significant gulf between the claim contemplated in

Plaintiffs’ Amended Complaint and the claim

advanced in Plaintiffs’ briefs. Plaintiffs’ Amended

Complaint specifically challenges “final agency

action” under 5 U.S.C. § 706(2)—to wit, the

Secretary’s 2008 “certif[ication] that MWAA’s

operation of the Toll Road and its use of toll revenue

to fund construction of the Metrorail Project were

valid ‘airport purposes’ within the meaning of the

MWAA lease.” Am. Compl. [Dkt. 37] ¶¶ 195–98. A

claim based on agency action that occurred in 2008,

however, is now time-barred by the APA’s six-year

statute of limitations. See Jersey Heights

59a

Neighborhood Ass’n v. Glendening, 174 F.3d 180, 186

(4th Cir. 1999).

Perhaps recognizing their error, Plaintiffs’ briefs

reframe their APA claim as challenging agency action

unlawfully withheld under 5 U.S.C. § 706(1). As

reformulated in Plaintiffs’ briefs, the Secretary is

committing an ongoing violation of the APA by

refusing to recognize that MWAA is using airport

property for other than “airport purposes.”

“It is well-established that parties cannot amend

their complaints through briefing or oral advocacy.”

S. Walk at Broadlands Homeowner’s Ass’n, Inc. v.

OpenBand at Broadlands, LLC, 713 F.3d 175, 184

(4th Cir. 2013). Here, Plaintiffs attempt through

briefing to modify their Amended Complaint to allege

the very opposite of what it now says. Plaintiffs’

Amended Complaint clearly alleges that the

Secretary has already taken “final agency action” on

the pertinent issue, Am. Compl. [Dkt. 37] ¶ 196, not

that he has refused to take action on it. This is not,

as Plaintiffs claim, a mere tweak of their legal theory.

Plaintiffs cannot plead one set of facts in their

Amended Complaint and expect the Court to rule on

another.

While the Court might otherwise grant leave to

amend, to do so here would be futile. As discussed

above, “airport purposes” is defined broadly in the

Transfer Act to include any “business or activity not

inconsistent with the needs of aviation[.]” 49 U.S.C.

§ 49104(a)(2)(A)(iv). Plaintiffs make no serious effort

to argue that MWAA’s various projects fall outside

this expansive definition. Instead, Plaintiffs argue

only that the Court should artificially narrow the

definition

of

“airport

purposes”

to

avoid

60a

“constitutional concerns” addressed and rejected

above. See Mem. in Supp. of Mot. for Summ. J. [Dkt.

47] at 27–28. The Court declines to rewrite the

statute in this manner. Accordingly, Plaintiffs’ APA

claim against the federal defendants lacks merit

whatever its formulation.

IV. Conclusion

For the foregoing reasons, the Court finds that

Plaintiffs’ Amended Complaint fails to state a claim

upon which relief may be granted. Accordingly, the

Court will deny Plaintiffs’ Motion for Partial

Summary Judgment [Dkt. 46], grant Defendants’

Motions to Dismiss for Failure to State a Claim [Dkts.

85, 90, 94], deny Defendants’ other Motions [Dkts. 86,

91] as moot, and dismiss Plaintiffs’ Amended

Complaint with prejudice. Because the Court does

not reach the question of whether this matter should

be dismissed pursuant to Federal Rule of Civil

Procedure 19, the Court will deny Plaintiffs’ Motion

for Leave to File Supplemental Authority [Dkt. 127]

as moot.

An appropriate order will issue.

61a

CHAPTER 491—METROPOLITAN

WASHINGTON AIRPORTS

§ 49101. Findings

Congress finds that—

(1) the 2 federally owned airports in the

metropolitan area of the District of Columbia

constitute an important and growing part of the

commerce, transportation, and economic patterns

of Virginia, the District of Columbia, and the

surrounding region;

(2) Baltimore/Washington International Airport,

owned and operated by Maryland, is an air

transportation facility that provides service to the

greater Metropolitan Washington region together

with the 2 federally owned airports, and timely

Federal-aid grants to Baltimore/Washington

International Airport will provide additional

capacity to meet the growing air traffic needs and

to compete with other airports on a fair basis;

(3) the United States Government has a

continuing but limited interest in the operation of

the 2 federally owned airports, which serve the

travel and cargo needs of the entire Metropolitan

Washington region as well as the District of

Columbia as the national seat of government;

(4) operation of the Metropolitan Washington

Airports by an independent local authority will

facilitate timely improvements at both airports to

meet the growing demand of interstate air

transportation occasioned by the Airline

Deregulation Act of 1978 (Public Law 95–504; 92

Stat. 1705);

(5) all other major air carrier airports in the

62a

United States are operated by public entities at

the State, regional, or local level;

(6) any change in status of the 2 airports must

take into account the interest of nearby

communities, the traveling public, air carriers,

general aviation, airport employees, and other

interested groups, as well as the interests of the

United

States

Government

and

State

governments involved;

(7) in recognition of a perceived limited need for a

Federal role in the management of these airports

and the growing local interest, the Secretary of

Transportation has recommended a transfer of

authority from the Federal to the local/State level

that is consistent with the management of major

airports elsewhere in the United States;

(8) an operating authority with representation

from local jurisdictions, similar to authorities at

all major airports in the United States, will

improve communications with local officials and

concerned residents regarding noise at the

Metropolitan Washington Airports;

(9) a commission of congressional, State, and local

officials and aviation representatives has

recommended to the Secretary that transfer of the

federally owned airports be as a unit to an

independent authority to be created by Virginia

and the District of Columbia; and

(10) the Federal interest in these airports can be

provided through a lease mechanism which

provides for local control and operation.

63a

§ 49102. Purpose

(a) General.—The purpose of this chapter is to

authorize the transfer of operating responsibility

under long-term lease of the 2 Metropolitan

Washington Airport properties as a unit, including

access highways and other related facilities, to a

properly constituted independent airport authority

created by Virginia and the District of Columbia, in

order to achieve local control, management,

operation, and development of these important

transportation assets.

(b) Inclusion of Baltimore/Washington International

Airport Not Precluded.—This chapter does not

prohibit the Airports Authority and Maryland from

making

an

agreement

to

make

Baltimore/Washington International Airport part of

a regional airports authority, subject to terms agreed

to by the Airports Authority, the Secretary of

Transportation, Virginia, the District of Columbia,

and Maryland.

§ 49103. Definitions

In this chapter—

(1) "Airports Authority" means the Metropolitan

Washington Airports Authority, a public

authority created by Virginia and the District of

Columbia consistent with the requirements of

section 49106 of this title.

(2) "employee" means any permanent Federal

Aviation Administration personnel employed by

the Metropolitan Washington Airports on June 7,

1987.

(3) "Metropolitan Washington Airports" means

Ronald Reagan Washington National Airport and

64a

Washington Dulles International Airport.

(4) "Washington Dulles International Airport"

means the airport constructed under the Act of

September 7, 1950 (ch. 905, 64 Stat. 770), and

includes the Dulles Airport Access Highway and

Right-of-way, including the extension between

Interstate Routes I–495 and I–66.

(5) "Ronald Reagan Washington National Airport"

means the airport described in the Act of June 29,

1940 (ch. 444, 54 Stat. 686).

§ 49104. Lease of Metropolitan Washington

Airports

(a) General.—The lease between the Secretary of

Transportation and the Metropolitan Washington

Airports Authority under section 6005(a) of the

Metropolitan Washington Airports Act of 1986

(Public Law 99–500; 100 Stat. 1783–375; Public Law

99–591; 100 Stat. 3341–378), for the Metropolitan

Washington Airports must provide during its 50-year

term at least the following:

(1) The Airports Authority shall operate,

maintain, protect, promote, and develop the

Metropolitan Washington Airports as a unit and

as primary airports serving the Metropolitan

Washington area.

(2)(A) In this paragraph, "airport purposes"

means a use of property interests (except a sale)

for—

(i) aviation business or activities;

(ii) activities necessary or appropriate to

serve passengers or cargo in air commerce;

(iii) nonprofit, public use facilities that are

65a

not inconsistent with the needs of aviation;

or

(iv) a business or activity not inconsistent

with the needs of aviation that has been

approved by the Secretary.

(B) During the period of the lease, the real

property constituting the Metropolitan

Washington Airports shall be used only for

airport purposes.

(C) If the Secretary decides that any part of the

real property leased to the Airports Authority

under this chapter is used for other than

airport purposes, the Secretary shall—

(i) direct that the Airports Authority take

appropriate measures to have that part of

the property be used for airport purposes;

and

(ii) retake possession of the property if the

Airports Authority fails to have that part of

the property be used for airport purposes

within a reasonable period of time, as the

Secretary decides.

(3) The Airports Authority is subject to section

47107(a)–(c) and (e) of this title and to the

assurances and conditions required of grant

recipients under the Airport and Airway

Improvement Act of 1982 (Public Law 97–248; 96

Stat. 671) as in effect on June 7, 1987.

Notwithstanding section 47107(b) of this title, all

revenues generated by the Metropolitan

Washington Airports shall be expended for the

capital and operating costs of the Metropolitan

Washington Airports.

66a

(4) In acquiring by contract supplies or services for

an amount estimated to be more than $200,000, or

awarding concession contracts, the Airports

Authority to the maximum extent practicable

shall obtain complete and open competition

through the use of published competitive

procedures. By a vote of 7 members, the Airports

Authority may grant exceptions to the

requirements of this paragraph.

(5)(A) Except as provided in subparagraph (B) of

this paragraph, all regulations of the

Metropolitan Washington Airports (14 CFR part

159) become regulations of the Airports Authority

as of June 7, 1987, and remain in effect until

modified or revoked by the Airports Authority

under procedures of the Airports Authority.

(B) Sections 159.59(a) and 159.191 of title 14,

Code of Federal Regulations, do not become

regulations of the Airports Authority.

(C) The Airports Authority may not increase or

decrease the number of instrument flight rule

takeoffs and landings authorized by the High

Density Rule (14 CFR 93.121 et seq.) at Ronald

Reagan Washington National Airport on

October 18, 1986, and may not impose a

limitation on the number of passengers taking

off or landing at Ronald Reagan Washington

National Airport.

(D) Subparagraph (C) does not apply to any

increase in the number of instrument flight

rule takeoffs and landings necessary to

implement exemptions granted by the

Secretary under section 41718.

67a

(6)(A) Except as specified in subparagraph (B) of

this paragraph, the Airports Authority shall

assume all rights, liabilities, and obligations of

the Metropolitan Washington Airports on June 7,

1987, including leases, permits, licenses,

contracts, agreements, claims, tariffs, accounts

receivable, accounts payable, and litigation

related to those rights and obligations, regardless

whether judgment has been entered, damages

awarded, or appeal taken. The Airports Authority

must cooperate in allowing representatives of the

Attorney General and the Secretary adequate

access to employees and records when needed for

the performance of duties and powers related to

the period before June 7, 1987. The Airports

Authority shall assume responsibility for the

Federal Aviation Administration's Master Plans

for the Metropolitan Washington Airports.

(B) The procedure for disputes resolution

contained in any contract entered into on

behalf of the United States Government before

June 7, 1987, continues to govern the

performance of the contract unless otherwise

agreed to by the parties to the contract. Claims

for monetary damages founded in tort, by or

against the Government as the owner and

operator of the Metropolitan Washington

Airports, arising before June 7, 1987, shall be

adjudicated as if the lease had not been

entered into.

(C) The Administration is responsible for

reimbursing the Employees' Compensation

Fund, as provided in section 8147 of title 5, for

compensation paid or payable after June 7,

1987, in accordance with chapter 81 of title 5

68a

for any injury, disability, or death due to

events arising before June 7, 1987, whether or

not a claim was filed or was final on that date.

(D) The Airports Authority shall continue all

collective bargaining rights enjoyed by

employees of the Metropolitan Washington

Airports before June 7, 1987.

(7) The Comptroller General may conduct periodic

audits of the activities and transactions of the

Airports Authority in accordance with generally

accepted management principles, and under

regulations the Comptroller General may

prescribe. An audit shall be conducted where the

Comptroller General considers it appropriate. All

records and property of the Airports Authority

shall remain in possession and custody of the

Airports Authority.

(8) The Airports Authority shall develop a code of

ethics and financial disclosure to ensure the

integrity of all decisions made by its board of

directors and employees. The code shall include

standards by which members of the board will

decide, for purposes of section 49106(d) of this

title, what constitutes a substantial financial

interest and the circumstances under which an

exception to the conflict of interest prohibition

may be granted.

(9) A landing fee imposed for operating an aircraft

or revenues derived from parking automobiles—

(A) at Washington Dulles International

Airport may not be used for maintenance or

operating expenses (excluding debt service,

depreciation, and amortization) at Ronald

Reagan Washington National Airport; and

69a

(B) at Ronald Reagan Washington National

Airport may not be used for maintenance or

operating expenses (excluding debt service,

depreciation, and amortization) at Washington

Dulles International Airport.

(10) The Airports Authority shall compute the fees

and charges for landing general aviation aircraft

at the Metropolitan Washington Airports on the

same basis as the landing fees for air carrier

aircraft, except that the Airports Authority may

require a minimum landing fee that is not more

than the landing fee for aircraft weighing 12,500

pounds.

(11) The Secretary shall include other terms

applicable to the parties to the lease that are

consistent with, and carry out, this chapter.

(b) Payments.—Under the lease, the Airports

Authority must pay to the general fund of the

Treasury annually an amount, computed using the

GNP Price Deflator, equal to $3,000,000 in 1987

dollars. The Secretary and the Airports Authority

may renegotiate the level of lease payments

attributable to inflation costs every 10 years.

(c) Enforcement of Lease Provisions.—The district

courts of the United States have jurisdiction to

compel the Airports Authority and its officers and

employees to comply with the terms of the lease. The

Attorney General or an aggrieved party may bring an

action on behalf of the Government.

(d) Extension of Lease.—The Secretary and the

Airports Authority may at any time negotiate an

extension of the lease.

70a

§ 49105. Capital improvements, construction,

and rehabilitation

(a) Sense of Congress.—It is the sense of Congress

that the Metropolitan Washington Airports

Authority—

(1) should pursue the improvement, construction,

and rehabilitation of the facilities at Washington

Dulles International Airport and Ronald Reagan

Washington National Airport simultaneously;

and

(2) to the extent practicable, should cause the

improvement, construction, and rehabilitation

proposed by the Secretary of Transportation to be

completed at Washington Dulles International

Airport and Ronald Reagan Washington National

Airport within 5 years after March 30, 1988.

(b) Secretary's Assistance.—The Secretary shall

assist the 3 airports serving the District of Columbia

metropolitan area in planning for operational and

capital improvements at those airports and shall

accelerate consideration of applications for United

States Government financial assistance by whichever

of the 3 airports is most in need of increasing airside

capacity.

71a

§ 49106. Metropolitan Washington Airports

Authority

(a) Status.—The Metropolitan Washington Airports

Authority shall be—

(1) a public body corporate and politic with the

powers and jurisdiction—

(A) conferred upon it jointly by the legislative

authority of Virginia and the District of

Columbia or by either of them and concurred

in by the legislative authority of the other

jurisdiction; and

(B) that at least meet the specifications of this

section and section 49108 of this title;

(2) independent of Virginia and its local

governments, the District of Columbia, and the

United States Government; and

(3) a political subdivision constituted only to

operate

and

improve

the

Metropolitan

Washington Airports as primary airports serving

the Metropolitan Washington area.

(b) General Authority.—(1) The Airports Authority

shall be authorized—

(A) to acquire, maintain, improve, operate,

protect, and promote the Metropolitan

Washington Airports for public purposes;

(B) to issue bonds from time to time in its

discretion for public purposes, including

paying any part of the cost of airport

improvements,

construction,

and

rehabilitation and the acquisition of real and

personal

property, including operating

72a

equipment for the airports;

(C) to acquire real and personal property by

purchase, lease, transfer, or exchange;

(D) to exercise the powers of eminent domain

in Virginia that are conferred on it by Virginia;

(E) to levy fees or other charges; and

(F) to make and maintain agreements with

employee organizations to the extent that the

Federal

Aviation

Administration

was

authorized to do so on October 18, 1986.

(2) Bonds issued under paragraph (1)(B) of this

subsection—

(A) are not a debt of Virginia, the District of

Columbia, or a political subdivision of Virginia

or the District of Columbia; and

(B) may be secured by the Airports Authority's

revenues generally, or exclusively from the

income and revenues of certain designated

projects whether or not any part of the projects

are financed from the proceeds of the bonds.

(c) Board of Directors.—(1) The Airports Authority

shall be governed by a board of directors composed of

the following 17 members:

(A) 7 members appointed by the Governor of

Virginia;

(B) 4 members appointed by the Mayor of the

District of Columbia;

(C) 3 members appointed by the Governor of

Maryland; and

(D) 3 members appointed by the President

with the advice and consent of the Senate.

73a

(2) The chairman of the board shall be appointed

from among the members by majority vote of the

members and shall serve until replaced by

majority vote of the members.

(3) Members of the board shall be appointed to the

board for 6 years, except that of the members first

appointed by the President after October 9, 1996,

one shall be appointed for 4 years. Any member of

the board shall be eligible for reappointment for 1

additional term. A member shall not serve after

the expiration of the member's term(s).

(4) A member of the board—

(A) may not hold elective or appointive political

office;

(B) serves without compensation except for

reasonable expenses incident to board

functions; and

(C) must reside within the Washington

Standard Metropolitan Statistical Area, except

that a member of the board appointed by the

President must be a registered voter of a State

other than Maryland, Virginia, or the District

of Columbia.

(5) A vacancy in the board shall be filled in the

manner in which the original appointment was

made. A member appointed to fill a vacancy

occurring before the expiration of the term for

which the member's predecessor was appointed

shall be appointed only for the remainder of that

term.

(6)(A) Not more than 2 of the members of the

board appointed by the President may be of the

74a

same political party.

(B) In carrying out their duties on the board,

members appointed by the President shall

ensure that adequate consideration is given to

the national interest.

(C) A member appointed by the President may

be removed by the President for cause. A

member appointed by the Mayor of the District

of Columbia, the Governor of Maryland or the

Governor of Virginia may be removed or

suspended from office only for cause and in

accordance with the laws of jurisdiction from

which the member is appointed.

(7) Ten votes are required to approve bond issues

and the annual budget.

…

(e) Certain Actions To Be Taken by Regulation.—An

action of the Airports Authority changing, or having

the effect of changing, the hours of operation of, or the

type of aircraft serving, either of the Metropolitan

Washington Airports may be taken only by regulation

of the Airports Authority.

…

§ 49107. Federal employees at Metropolitan

Washington Airports

(a) Labor Agreements.—(1) The Metropolitan

Washington Airports Authority shall adopt all labor

agreements that were in effect on June 7, 1987.

Unless the parties otherwise agree, the agreements

must be renegotiated before June 7, 1992.

(2) Employee protection arrangements made

under this section shall ensure, during the 50-

75a

year lease term, the continuation of all collective

bargaining rights enjoyed by transferred

employees retained by the Airports Authority.

(b) Civil Service Retirement.—Any Federal employee

who transferred to the Airports Authority and who on

June 6, 1987, was subject to subchapter III of chapter

83 or chapter 84 of title 5, is subject to subchapter III

of chapter 83 or chapter 84 for so long as continually

employed by the Airports Authority without a break

in service. For purposes of subchapter III of chapter

83 and chapter 84, employment by the Airports

Authority without a break in continuity of service is

deemed to be employment by the United States

Government. The Airports Authority is the

employing agency for purposes of subchapter III of

chapter 83 and chapter 84 and shall contribute to the

Civil Service Retirement and Disability Fund

amounts required by subchapter III of chapter 83 and

chapter 84.

(c) Access to Records.—The Airports Authority shall

allow representatives of the Secretary of

Transportation adequate access to employees and

employee records of the Airports Authority when

needed to carry out a duty or power related to the

period before June 7, 1987. The Secretary shall

provide the Airports Authority access to employee

records of transferring employees for appropriate

purposes.

§ 49110. Use of Dulles Airport Access Highway

The Metropolitan Washington Airports Authority

shall continue in effect and enforce section 4.2(1) and

(2) of the Metropolitan Washington Airports

Regulations, as in effect on February 1, 1995. The

district courts of the United States have jurisdiction

76a

to compel the Airports Authority and its officers and

employees to comply with this section. The Attorney

General or an aggrieved party may bring an action on

behalf of the United States Government.

§ 49111. Relationship to and effect of other laws

(a) Same Powers and Restrictions Under Other

Laws.—To ensure that the Metropolitan Washington

Airports Authority has the same proprietary powers

and is subject to the same restrictions under United

States law as any other airport except as otherwise

provided in this chapter, during the period that the

lease authorized by section 6005 of the Metropolitan

Washington Airports Act of 1986 (Public Law 99–500;

100 Stat. 1783–375; Public Law 99–591; 100 Stat.

3341–378) is in effect—

(1) the Metropolitan Washington Airports are

deemed to be public airports for purposes of

chapter 471 of this title; and

(2) the Act of June 29, 1940 (ch. 444, 54 Stat. 686),

the First Supplemental Civil Functions

Appropriations Act, 1941 (ch. 780, 54 Stat. 1030),

and the Act of September 7, 1950 (ch. 905, 64 Stat.

770), do not apply to the operation of the

Metropolitan Washington Airports, and the

Secretary of Transportation is relieved of all

responsibility under those Acts.

(b) Inapplicability

of

Certain

Laws.—The

Metropolitan Washington Airports and the Airports

Authority are not subject to the requirements of any

law solely by reason of the retention by the United

States Government of the fee simple title to those

airports.

77a

(c) Police Power.—Virginia shall have concurrent

police power authority over the Metropolitan

Washington Airports, and the courts of Virginia may

exercise jurisdiction over Ronald Reagan Washington

National Airport.

(d) Planning.—(1) The authority of the National

Capital Planning Commission under section 8722 of

title 40 does not apply to the Airports Authority.

(2) The Airports Authority shall consult with—

(A) the Commission and the Advisory Council

on Historic Preservation before undertaking

any major alterations to the exterior of the

main terminal at Washington Dulles

International Airport; and

(B) the Commission before undertaking

development that would alter the skyline of

Ronald Reagan Washington National Airport

when viewed from the opposing shoreline of

the Potomac River or from the George

Washington Parkway.

§ 49112. Separability and effect of judicial order

(a) Separability.—If any provision of this chapter, or

the application of a provision of this chapter to a

person or circumstance, is held invalid, the

remainder of this chapter and the application of the

provision to other persons or circumstances is not

affected.

(b) Effect of Judicial Order.—(1) If any provision of

the Metropolitan Washington Airports Amendments

Act of 1996 (title IX of Public Law 104–264; 110 Stat.

3274) or the amendments made by the Act, or the

application of that provision to a person,

circumstance, or venue, is held invalid by a judicial

78a

order, the Secretary of Transportation and the

Metropolitan Washington Airports Authority shall be

subject to section 49108 of this title from the day after

the day the order is issued.

(2) Any action of the Airports Authority that was

required to be submitted to the Board of Review

under section 6007(f)(4) of the Metropolitan

Washington Airports Act of 1986 (Public Law 99–

500; 100 Stat. 1783–380; Public Law 99–599; 100

Stat. 3341–383) before October 9, 1996, remains

in effect and may not be set aside only because of

a judicial order invalidating certain functions of

the Board.