Petition for Writ of Certiorari — Metropolitan Wash. Airports Authority v. Noise Abatement Citizens

FIL E BD

90-9 060 vec 0 c O

No. 90. WOSEPH F. SPANION, I

*

IN THE . e

Supreme Court of the United States

OCTOBER TERM, 1990

METROPOLITAN WASHINGTON AIRPORTS AUTHORITY, et al.,

Petitioners,

V.

CITIZENS FOR THE ABATEMENT OF AIRCRAFT

Nolsk, ING., et al.,

Respondents,

UNITED STATES OF AMERICA,

Intervenor.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Of Counsel: WILLIAM T. COLEMAN, JR.

GREGORY WOLFE Counsel of Record

EDWARD S. FAGGEN DONALD T. BLIss

METROPOLITAN WASHINGTON DEBRA A. VALENTINE

AIRPORTS AUTHORITY NANCY E. McFADDEN

44 Canal Center Plaza O’MELVENY & MYERS

Alexandria, VA 22314 555 13th Street, N.W.

(703) 739-8740 Suite 500 West

Washington, D.C. 20004

(202) 383-5325

WILSON - Eres PrintinG Co., Inc. - 789-0096 - WASHINGTON. D.C. 20001

29

EE

QUESTIONS PRESENTED

In 1987, after years of attempts, the federal Executive

and Congress, together with the executives and legisla-

tures of the Commonwealth of Virginia and the District

of Columbia, united in devising and implementing a suc-

cessful solution to a longstanding regional transportation

problem. Washington National and Washington Dulles

International Airports were long owned and controlled

by the federal government. While local residents, airport

users, airlines, and the airports’ owner (the federal gov-

ernment) all recognized the increasing need for a local

voice in the governance of the Washington airports,

agreement on how to accomplish this change could not

be easily or quickly reached.

To overcome this lack of consensus, Secretary of Trans-

portation Elizabeth Dole appointed an advisory commis-

sion chaired by former Virginia Governor Linwood Hol-

ton. This Commission recommended that contro] of the

airports be transferred to a regional airport authority

with a Board of Directors composed of Washington area

residents. Virginia and the District of Columbia each

accepted the Commission’s recommendations and enacted

legislation creating an independent regional authority.

Congress thereafter authorized the transfer of the air-

ports to the nonfederal authority. One condition of the

transfer was that the nonfederal authority establish and

appoint a nine-person review board composed of Members

of Congress to serve in their individual capacities repre-

senting users of the airports. Virginia and the District

of Columbia enacted legislation authorizing the authority

to have a review board and the regional authority adopted

Bylaws providing for the composition, appointment and

powers of such board.

It is this carefully crafted airports governing struc-

ture that the decision below, by a 2 to 1 vote, holds un-

constitutional. Therefore, the questions presented are:

(i)

ii

1. Whether the federal separation of powers doc-

trine prohibits the Board of Directors of an independent,

nonfederal airport authority from voluntarily agreeing

in its lease of federal property, consistent with provisions

in a federal statute, to establish a Board of Review pur-

suant to state law and to appoint thereto from proposed

lists (and retain the power to remove) nine Members of

Congress who will serve solely as representatives of

airport users in their individual, non-congressional ca-

pacities.

2. Whether a constitutional claim is justiciable when

relevant action has not been taken under the challenged

statutory provision and the elimination of that provision

would not redress the respondents’ injury.

iii

PARTIES TO THE PROCEEDINGS

Petitioners are the Metropolitan Washington Airports

Authority and its Board of Review. The Metropolitan

Washington Airports Authority is a nonfederal public

body corporate and politic with no parent company or

subsidiary.

Respondents are Citizens for the Abatement of Air-

craft Noise, Inc., John W. Hechinger, Sr. and Craig H.

Baab.

The United States of America exercised its statutory

right to intervene in the court of appeals pursuant to

28 U.S.C. § 2403(a) (1988) because the constitutionality

of an Act of Congress had been challenged.

TABLE OF CONTENTS

QUESTIONS PRESENTED nn.

PARTIES TO THE PROCEEDINGS Ss

TABLE OF AUTHORITIES 8s

r . lentien

e ˙

CONSTITUTIONAL PROVISIONS, STATUTES, OR-

DINANCES AND REGULATIONS INVOLVED...

(v)

iii

to

10

20

vi

TABLE OF AUTHORITIES

CASES Page

Bowsher v. Synar, 478 U.S. 714 (1986) 16,17

Buckley v. Valeo, 424 U.S. 1 (1976) 8 11,12

Burlington N.R.R. Co. v. Oklahoma Tax Comm'n,

Eg 13

Carlucci v. Doe, 488 U.S. 93 (1988) 18

Citizens for the Abatement of Aircraft Noise, Inc.

v. Metropolitan Washington Airports Author-

ity, No. 89-7182 (D.C. Cir. Oct. 26, 1990) _........ 2

Citizens for the Abatement of Aircraft Noise, Inc.

v. Metropolitan Washington Airports Author-

ity, 718 F. Supp. 974 (D.D.C. 1989) 2,8

Clark v. Valeo, 559 F.2d 642 (D.C. Cir.) (en banc),

aff'd without opinion, 431 U.S. 950 (1977).......... 19

Commodity Futures Trading Comm en v. Schor, 478

FX 5 SS ee 3

Dames & Moore v. Regan, 458 U.S. 654 (1981) 19

Federal Firefighters Association, Local 1 v. United

States, Civil Action No. 88-1022-LFO (D.D.C.

D eR a A 9

Kwai Chiu Yuen v. INS, 406 F.2d 499 (9th Cir.),

cert. denied, 395 U.S. 908 (1969) 3,18

Minnesota v. Clover Leaf Creamery Co., “449 US.

EINE 3

Mistretta v. United States, 488 U.S. 361 (1989) 3, 16,

17, 19

Morrison v. Olson, 487 U.S. 654 (198) 3

Myers v. United States, 272 U.S. 52 (1926) 18

NLRB v. Catholic Bishop, 440 U.S. 490 (1979) 12

Signorelli v. Evans, 637 F.2d 853 (2d Cir. 1980). 15

South Dakota v. Dole, 483 U.S. 203 (1987) 14-16

United States ez rel. Stillwell v. Hughes Helicop-

ters, Inc., 714 F. Supp. 1084 (C.D. Cal. 1989) 19

CONSTITUTION

ES 8 2

U.S. Const. art. I, § 6, el. 222 1 5

US. Const. art. I, § 7, ed. 2 and, 8. 2

U.S. Const. art. II. 81 2

U.S. Const. art. II, § 2, cl. 2 2

rene 2

vii

TABLE OF AUTHORITIES—Continued

STATUTES & REGULATIONS Page

Bylaws of the Metropolitan Washington Airports

Authority, Art. IV (Mar. 4, 1987)7 7

D.C. Law 7-18 (1987) 8 2, 7

e 2, 4

Lease of the Metropolitan Washington Airports

Authority (Mar. 2, 1987) )))) 7

Metropolitan Washington Airports Act of 1986,

Pub. L. No. 99-500, 100 Stat. 1783-373, reenacted

in Pub. L. No. 99-591, 100 Stat. 3341-376 (codi-

fied at 49 U.S.C. §§ 2451-2461 (1988)))) passim

28 U.S.C. § 1254(1) (1986) — U. 2

OR Ey ————————————— 9

98 U.S.C. § 1848 l —————ꝰQ. L 9

28 U.S.C. § 2408 (a) (1986) ———— iii

e 2,7

e 2, 4, 5

Va. Code Ann. 24.1-79.6 (19889) 18

LEGISLATIVE MATERIALS

1 Annals of Cong. 496 (J. Gales ed. 178997 18

132 Cong. Rec. 83294 (daily ed. Mar. 25, 1986) 6

Proposed Transfer of Metropolitan Washington

Airports: Hearings on H.R. 2337, H.R. 5040 and

S. 1017 before the Subcomm. on Aviation of

the House Comm. on Public Works and Trans-

portation, 99th Cong., 2d Sess. (1986) 6

S. Rep. No. 193, 99th Cong., Ist Sess. (1985) 4.5

MISCELLANEOUS

Il Elliott’s Debates, vol. 5 (2d ed. 18369) 15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-

METROPOLITAN WASHINGTON AIRPORTS AUTHORITY, et al.,

Petitioners,

v.

CITIZENS FOR THE ABATEMENT OF AIRCRAFT

Nolsk, INC., et al.,

Respondents,

UNITED STATES OF AMERICA,

Intervenor.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

The Metropolitan Washington Airports Authority in-

cluding its Board of Review hereby petitions for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the District of Columbia Circuit

in this case.

OPINIONS BELOW

The opinion of the court of appeals reversing the dis-

trict court is not yet reported but is reprinted as Ap-

2

pendix (“App.”) A at la.“ The opinion of the district

court is reported at 718 F. Supp. 974 (D.D.C. 1989),

and is reprinted as App. C at 29a.

JURISDICTION

The opinion and judgment of the court of appeals were

entered on October 26, 1990. The judgment was stayed

by order of the court of appeals entered on December 6,

1990. App. B at 28a. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1) (1988).

CONSTITUTIONAL PROVISIONS, STATUTES,

ORDINANCES AND REGULATIONS INVOLVED

United States Constitution, Article I, Sees. 1; 6, cl. 2;

7, el. 2 and 3; Article II, Sees. 1; 2, cl. 2; ana Article

IV, See. 3, el. 2.

The Metropolitan Washington Airports Act of 1986,

49 U.S.C. 88 2451-2461 (1988) .?

1985 Va. Acts ch. 598 and 1987 Va. Acts ch. 665.

D.C. Law 6-67 (1985) and D.C. Law 7-18 (1987).

The constitutional, statutory and other provisions in-

volved are reprinted in App. E at 58a.

STATEMENT

In recent years, this Court has been presented with

an array of unique constitutional questions involving the

federal separation of powers doctrine. Each of these

cases involved a claim that one branch of the federal

government impermissibly interfered with the constitu-

1 Page citations to material printed in the Appendix appear as

44 a ”

2 All references to the Metropolitan Washington Airports Act

of 1986, Pub. L. 99-500, 100 Stat. 1788-878, reenacted in Pub. L. No.

99-591, 100 Stat. 3341-376 (codified at 49 U.S.C. §§ 2451-2461

(1988)) are cited to the relevant statutory section but omit re-

peated references to “49 U.S.C.”.

8

tional powers of another branch of that government. In

refereeing the relationship between coordinate federal

branches, this Court has adopted a “flexible understand-

ing of separation of powers,“ upholding innovative and

workable solutions to the needs of practical government

and approving schemes “that to some degree commingle

the functions of the [b]ranches” so long as no one branch

“undermine(s] the authority and independence of . . . an-

other coordinate branch.” Mistretta v. United States,

488 U.S. 361, 381-82 (1989). For example, in Mistretta

this Court upheld the constitutionality of the United

States Sentencing Commission, an independent body

within the Judicial Branch composed of judges and

others appointed by the President and charged with

promulgating binding sentencing guidelines for federal

offenders. This Court also upheld the Judicial Branch

appointment of an independent counsel to investigate and

prosecute alleged crimes by Executive Branch officials

in Morrison v. Olson, 487 U.S. 654 (1988). In Com-

modity Futures Trading Comm’n v. Schor, 478 U.S. 833

(1986), this Covrt found a law allowing a federal agency

to adjudicate state law counterclaims arising in connec-

tion with administrative proceedings to be constitutional.

This petition addresses yet another challenge on fed-

eral separation of powers grounds to a unique institution

—this time a nonfederal entity created by the Common-

wealth of Virginia and the District of Columbia. This

Court has never held that such doctrine was applicable

as a matter of federal law where (1) one branch of the

federal government purportedly interferes with a branch

of a state government, see Kwai Chiu Yuen v. INS, 406

F.2d 499 (9th Cir.), cert. denied, 395 U.S. 908 (1969),

or for that matter, where (2) one branch of a state

vrovernment interferes with another branch of that gov-

ernment. See Minnesota v. Clover Leaf Creamery Co.,

449 U.S. 456, 461 n.6 (1981). The court below propels

the federal separation of powers doctrire into seas un-

4

charted by this Court and applies such doctrine with a

rigidity that conflicts with prevailing precedent.

A. Nature of the Case

Historically, commercial airports in the United States

were operated by regional, state or local authorities ex-

cept for Washington National Airport (“ National“) and

Washington Dulles International Airport (“Dulles”).

Those two exceptions were owned and operated by the

federal government from the time they were built (in

1941 and 1962, respectively) until June 1987. Over

the years, several attempts to transfer control of the air-

ports to some type of local ownership had failed. Finally,

in 1984 the Secretary of Transportation (“Secretary”)

appointed the broad-based Advisory Commission on the

Reorganization of the Metropolitan Washington Airports

(the “Holton Commission,” named for its chairman, for-

mer Virginia Governor Linwood Holton). A consensus

was reached on how best to balance the national, local,

airport neighbor and user interests in the airports.

See S. Rep. No. 193, 99th Cong., Ist Sess. 2 (1985). The

Holton Commission recommended that the federally-owned

Washington airports be leased as a unit to an independent

regional authority that the Commonwealth of Virginia

and the District of Columbia would establish.

To this end, the Commonwealth of Virginia enacted

a law on April 3, 1985 creating a regional airport au-

thority to acquire both National and Dulles from the

federal government. 1985 Va. Acts ch. 598, App. E

at 87a. The District of Columbia approved a substan-

tially identical law on October 9, 1985. D.C. Law 6-67

(1985), App. E at 119a. The Virginia and D.C. statutes,

consistent with the recommendations of the Holton Com-

mission, established the Metropolitan Washington Air-

ports Authority as a “public body corporate and politic“

“independent” of all state and federal governmental

bodies. E. g., 1985 Va. Acts ch. 598, § 2 (89a). The two

5

jurisdictions empowered the Authority to acquire the air-

ports from the federal government by lease and consented,

subject to gubernatorial and mayoral approval, to lease

conditions set forth by Congress “that are not incon-

sistent with [the state] Act.” Id. §3 (89a).

A year later, Congress essentially ratified the pro-

visions that Virginia and the District of Columbia had

enacted and authorized the transfer of the federal air-

ports to the new regional authority in the Metropolitan

Washington Airports Act of 1986 (“Transfer Act”), App.,

E At 60a; see S. Rep. No. 193, 99th Cong., Ist Sess. 12

(1985). The Transfer Act authorized the Secretary to

negotiate a 50-year lease with the state-created Authority

and directed that certain terms and conditions be incor-

porated in the lease. § 2454(a).

The Transfer Act, as provided in the Virginia and

District statutes, required the lessee Authority to be

independent of the federal, state and local governments.

§ 2456(b). The Authority was to have only those powers

that the legislative authorities of Virginia and the Dis-

trict of Columbia conferred on it. § 2456(a). It was to

be governed by an 1l-member Board of Directors—five

directors appointed by the Governor of Virginia, three by

the Mayor of the District of Columbia, two by the Gov-

ernor of Maryland, and one by the President of the United

States with the advice and consent of the U.S. Senate.

§ 2456(e) (1). In recognition of the regional interests at

stake, the Directors, except for the Presidential appointee,

must reside within the Washington metropolitan area.

§ 2456(e) (2).

To accommodate the interests of nationwide users,“

Congress provided that the nonfederal regional Authority,

8 The Washington airports are, of course, used by citizens who

travel from their home residences throughout the United States to

the nation’s capitol for business or pleasure. Among the more

frequent users of Washington airports are Members of Congress

who rely upon the availability of convenient air services to and

6

to be an eligible lessee, should create under state law a

Board of Review. § 2456(f). The lessee Authority’s Di-

rectors were to appoint the Board of Review from lists of

Members of Congress on specified committees (except for

one at-large member, chosen alternately from the House or

Senate) that the Speaker of the House and President pro

tempore of the Senate provide to the Directors. The

Authority’s Board of Directors has the right to reject any

Member on the list and to request additional names. The

Board of Review members that the Authority selects serve

“in their individual capacities, as representatives of users

of the Metropolitan Washington Airports.” § 2456(f)

(1). No Member of Congress from Virginia, Maryland,

or the District of Columbia may serve on the Board of

Review. Jd. Certain specified actions of the lessee Au-

thority’s Board of Directors are to be submitted to the

Board of Review at least thirty days before they are to

become effective. § 2456 (f) (4) (A).“ An action will take

effect unless the Board of Review disapproves it and

from their home districts. See, e.g., Proposed Transfer of Metro-

politan Washington Airports: Hearings on H.R. 2387, H.R. 5040

and S. 1017 before the Subcomm. on Aviation of the House Comm.

on Public Works and Transportation, 99th Cong., 2d Sess. 110

(1986) (“Members of Congress are heavy users of the air trans-

portation system. Your busy schedules include many trips back to

your districts. You depend on the ability to get to the airport

quickly, to park quickly, to get to the airplane quickly.”) (statement

of Secretary Dole); 132 Cong. Rec. 83294 (daily ed. Mar. 25, 1986)

(“I think any Senator who has gone through National Airport, and

that is all of us in the last week or two, recognizes that something is

seriously wrong with that airport.”) (statement of Sen. Danforth).

4 These actions include the authorization for the issuance of

bonds; the adoption, amendment or repeal of a regulation; the

adoption or revision of a master plan (including land acquisition

proposals); and the appointment of a chief executive officer.

§ 2456(f) (4) (B). In addition, the adoption of an annua! budget is

to be submitted at least sixty days before it is to become effective.

§ 2456 (f) (4) (A).

7

states reasons therefor within the specified time period.

§ 2456(f) (4) (C).

On March 2, 1987, the Secretary and the state-created

Airports Authority completed negotiations and volun-

tarily entered into a lease (effective June 7, 1987) for

the transfer of National and Dulles airports which in-

corporated, inter alia, provisions that are consistent with

the Transfer Act. See Lease of the Metropolitan Wash-

ington Airports Authority, App. E at 163a.

Two days later, the Authority’s Board of Directors

adopted Bylaws pursuant to the Virginia and District

of Columbia statutes. Those Bylaws authorized the Direc-

tors to establish a Board of Review and appoint thereto

“representatives of the users of the Metropolitan Wash-

ington Airports who will serve in their individual capaci-

ties.” Bylaws of the Metropolitan Washington Airports

Authority, Art. IV, §1 (Mar. 4, 1987), App. E at 151a.

The Bylaws also set forth the powers of the Board of

Review. Id. at §§ 4, 5, 6, 7 (153a-154a). Virginie and

the District of Columbia expressly authorized the estab-

lishment of the Board of Review in amendments to the

legislation that they originally passed authorizing the

Airports Authority. These amendments were enacted by

Virginia and the District of Columbia on April 8, 1987

and June 1, 1987, respectively. 1987 Va. Acts ch. 665,

§ 5.A.5 (11la) ; D.C. Law 7-18, § 3(c) (2) (1987) (148a).

By September 2, 1987, the Board of Directors had

completed its review of the lists provided by the Speaker

of the House and the President pro tempore of the Senate

and appointed the nine members of the Board of Review.

In the two resolutions appointing the Board of Review

members, the Board of Directors fixed the terms of each

of the appointments by a drawing, but reserved the right

to remove a member of the Board of Review for cause

prior to the conclusion of his or her term. See Res. No.

87-12 (June 3, 1987) ; Res. No. 87-27 (Sept. 2, 1978).

8

On March 13, 1988, the Authority’s Board of Directors

adopted a Master Plan for Washington National Airport.

At its April 13, 1988 meeting, the Board of Review dis-

cussed the Master Plan and unanimously voted not to

disapprove it.

B. Proceedings Below

In November 1988, respondents brought this action

seeking declaratory and injunctive relief against the Air-

ports Authority and its Board of Review. Respondents

claimed that they are injured by aircraft noise and

safety problems allegedly caused by the implementation

of a Master Plan for National that the Authority adopted

and the Board of Review did not alter or disapprove.

Respondents’ lawsuit, however, is based not on environ-

mental or safety statutes but on a challenge to the con-

stitutionality of the Board of Review on federal separa-

tion of powers grounds. Cross-motions for summary judg-

ment were filed.

On July 20, 1989, the district court (Judge Joyce

Hens Green) rejected respondents’ constitutional elaims.“

Citizens for the Abatement of Aircraft Noise, Inc. v.

Metropolitan Washington Airports Authority, 718 F.

Supp. 974 (D.D.C. 1989), App. C at 29a. The dis-

5In only one instance has the Board of Review disapproved an

action by the Board of Directors. On August 9, 1988, the Board

of Review voted to disapprove a revision of the Authority’s regula-

tions that would permit temporary use of the Dulles Access High-

way by high occupancy vehicles. The Board of Review expressed

concern that “the use of the Access Highway by carpools, unre-

lated to airport use, is inconsistent with the purpose for which it

was built, and is contrary to the interests of the users of the Air-

port.” Res. No. BOR 88-1 (Aug. 9, 1988).

6 The district court held, however, that respondents had standing,

a holding which petitioners continue to challenge. Even if respond-

ents were to prevail on the merits, the actions that respondents

challenge neither caused their alleged injuries nor would the re-

quested relief redress their alleged noise and safety concerns. See

infra pp. 18-19.

trict court ruled that the Board of Review was not a fed-

eral entity, did not exercise federal power, had no members

appointed or subject to removal by Congress and, there-

fore, presented no violation of separation of powers prin-

ciples or of the Appointments, Incompatibility, or Ineli-

gibility Clauses of the Constitution. Jurisdiction in the

district court was based on 28 U.S.C. §§ 1331 and 1343.

In a related case involving the identical constitutional

claim in a different factual setting, the district court

(Judge Louis F. Oberdorfer) also ruled in favor of the

Authority. See Memorandum and Order, Federal Fire-

fighters Association, Local 1 v. United States, Civil Ac-

tion No. 88-1022-LFO (D.D.C. Oct. 11, 1989) (“the is-

sue of constitutionality has been resolved at the dis-

trict court level favorably to [the MWAA] by J udge

Joyce Green’s thorough opinion in Citizens for the Abate-

ment of Aircraft Noise v. MWAA ...”). App. D at 57a.

On appeal, a divided District of Columbia Circuit panel

concurred with the district court’s ruling on standing

but reversed on the merits. The majority (Buckley, J.

and Wald, C.J.) found that the Board of Review is in

effect an agent of Congress and therefore cannot con-

stitutionally exercise executive power. Judge Mikva dis-

sented, stating that he would affirm the district court’s

decision and uphold “a delicately-balanced and innovative

institution of federalism.” (27a).

On December 6, 1990, the court of appeals stayed its

mandate.

10

REASONS FOR GRANTING THE WRIT

The decision below holds unconstitutional key provi-

sions in a federal statute and, in so doing, invalidates

a creative use of this nation’s federalism to resolve suc-

cessfully a long-festering regional transportation prob-

lem. In holding part of the governing structure of a

state-created entity unconstitutional, the court below re-

jected the plain language of the statute and instead

extended the federal separation of powers doctrine to

functions performed by certain Members of Congress

serving on a nonfederal board in their individual capaci-

ties as representatives of airport users. Such an ap-

proach constitutes an unprecedented intrusion of federal

separation of powers doctrine into state activity. It fur-

ther represents a sweeping, rigid and categorical applica-

tion of that doctrine in conflict with the practical, func-

tional analysis espoused by this Court. The decision,

therefore, raises an important issue of first impression

that this Court has not, but should, decide concerning the

applicability of the federal doctrine of separation of pow-

ers to a nonfederal entity.

The decision also conflicts with Property and Spend-

ing Clause, appointment, removal and separation of pow-

ers decisions of this Court and other federal circuits,

including the court of appeals for the Ninth Circuit.

The court below failed to recognize that Congress’ plenary

powers under the Property Clause permit that body, un-

der precedent of this Court, to induce the states indirectly

to do certain things that Congress cannot do directly.

Moreover, by its rigid extension of the federa! separation

of powers doctrine, the court below would prohibit Members

of Congress from exercising executive functions in state-

created agencies even though neither the Constitution nor

this Court’s jurisprudence prevent states from appoint-

ing individual Members to perform such functions. In-

deed, such latitude was expressly contemplated by the

Founding Fathers when they drafted the Incompatibility

11

and Ineligibility Clauses of the Constitution. The de-

cision of the court below also fundamentally conflicts with

the Appointments Clause decisions of this Court and the

other federal circuits in concluding that persons that

the nonfederal Airports Authority appointed to its Board

of Review, which was created by state law, were none-

_ theless agents of Congress. Moreover, in finding that

Congress could remove Review Board members, the court

of appeals overlooked a rule of statutory construction

originating at the founding of this country and adhered

to consistently by this Court that, in the absence of ex-

press statutory language to the contrary, the power to

remove is vested in the appointing authority.

Finally, the court of appeal’s expansive view of stand-

ing erodes the “case or controversy” limitation that the

Constitution places on the jurisdiction of the federal

courts. The court below did not—and could not, given

the record—find that respondents’ alleged injury is fairly

traceable to any challenged conduct of the Board of Re-

view. Nor does the record support the court’s assumption

that a favorable ruling will redress any alleged injury.

If the court of appeals’ holding is allowed to stand,

the federal judiciary will cause serious disruption not

only to the airports serving the nation’s capitol but also

to a unique nonfederal entity that the federal Executive

and Congress, together with the executives and legisla-

tures of Virginia and the District, have all approved and

supported.

1. The court of appeals sought to determine whether

the Board of Review, which the nonfederal Authority es-

tablished and appointed, is a federal or nonfederal entity

by asking whether the Board is “ ‘exercising significant

authority pursuant to the laws of the United States

(10a) (citing Buckley v. Valeo, 424 U.S. 1, 126 (1976) ).

The court below reasoned that the Board of Review “ex-

ercises oversight responsibilities as a consequence of the

[federal] Airports Act” (13a), apparently because the

12

composition and powers of the Board are set forth in that

statute. Consequently, the court concluded that the Board

wielded federal power within the meaning of Buckley

and that federal separation of powers principles should

apply. Id. This conclusion extends Buckley far beyond

its intended reach and flagrantly ignores the plain lan-

guage of the Transfer Act in disregard of this Court’s

mandate that statutes should be reasonably construed so

as to save them from constitutional infirmities. NLRB

v. Catholic Bishop, 440 U.S. 490, 499-501 (1979). More-

over, it disregards the findings of the district court that

the Board of Review derives its existence and powers

from state, not federal, law (specifically, the Authority’s

Bylaws) ; that the Board was established by the nonfed-

eral Authority; and that its members are appointed and

subject to removal by that nonfederal body, not Congress.

(47a).

The Transfer Act provides that it is the “purpose of

the Congress. . . to authorize the transfer of operating

responsibility under long-term lease of the two Metro-

politan Washington Airport properties as a unit..

to a properly constituted independent Airport Authority

created by the Commonwealth of Virginia and the Dis-

trict of Columbia, in order to achieve local control, man-

agement, operation, and development of these important

transportation assets.” § 2452(a). That Act repeats that

“(t]he Airports Authority shall be a public body cor-

porate and politic, having the powers and jurisdiction

as are conferred upon it jointly by the legislative author-

ity of the Commonwealth of Virginia and the District of

Columbia . 82456 (a). The Act further under-

scores that the Airports Authority shall be

(1) independent of the Commonwealth of Virginia

and its local governments, the District of Columbia,

and the Federal Government; and

(2) a political subdivision constituted solely to oper-

ate and improve both Metropolitan Washington Air-

13

ports as primary airports serving the Metropolitan

Washington area.

§ 2456(b). Congress could not have been clearer in its

intent to allow Virginia and the District to create an

independent, nonfederal entity. See Burlington N.R.R.

Co. v. Oklahoma Tax Comm’n, 481 U.S. 454, 461 (1987)

(“‘[w]hen we find the terms of a statute unambiguous,

judicial inquiry is complete.“) (citation omitted).

The court below does not even mention these statutory

provisions. It does acknowledge “that Virginia and the

District of Columbia could have walked away from the

deal offered by Congress.. (11a), but it fails to rec-

ognize the significance of this observation. In conclud-

ing that “once the deal was accepted, it is federal law

that resulted in the establishment of the Board of Re-

view .. .” (12a), the court overlooks the independent

status and actions of Virginia, the District, and the non-

federal Authority. See supra pp. 4-5, 7-8. Contrary to

the court of appeals’ analysis, the Transfer Act did not

create or empower the Board of Review. The Review

Board is a creature of state law and its powers are set

forth in the Authority’s Bylaws, which the Directors

adopted. (153a-154a). The Authority’s obligation to es-

tablish such a Board is at most contractual, reflecting a

condition in the lease negotiated between the Secretary

and the Authority. (175a-176a). Virginia and the Dis-

trict freely and voluntarily entered into the arms-length

agreement with the Secretary. They could have rejected

the offer of a lease (particularly one that requires them

to pay at least $3 million annually in addition to a $23.6

million initial payment to the Civil Service Retirement

and Disability Fund). Their legislative bodies could have

refused to pass legislation authorizing the Board of Re-

view. As Judge Mikva observed in his dissent, “[t]he fact

that the federal Act authorizing the transfer of the air-

ports to the Authority contemplates the Board’s creation

does not alter the Board’s fundamental state parentage.”

(22a).

14

If it were true that the Board of Review wields fed-

eral power because Congress described its composition

and authority, then the Airports Authority’s Board of

Directors, which no one challenges, arguably stands on

no different footing. Indeed, the court of appeals’ ex-

pansive logic would federalize any state-created or non-

federally created entity that was patterned after a sug-

gestion or condition in a federal statute. Such reason-

ing denigrates the role of the states as partners in our

federal system, able to accept or rejeet federal conditions

on the basis of independent political deeisionmaking. It

further could raise wholly unanticipated federal obliga-

tions and liabilities and impede Congress’ ability to en-

courage states to follow a federal model.

2. No party or court has questioned that Virginia

and the District of Columbia could have agreed to create

the Authority and its Board of Review as currently struc-

tured. See, e.g., Brief for Appellants (Dec. 1, 1989)

(“App. Br.”) at 39. Moreover, there is no constitutional

difference between states (or a state and the District)

voluntarily compacting to do something that is constitu-

tional and Congress requesting the states to so act in

order to become eligible for the transfer of federal prop-

erty. Yet the court below strained to create such a con-

stitutional difference and in doing so misinterpreted this

Court’s decision in South Dakota v. Dole, 483 U.S. 203

(1987).

South Dakota establishes that an “independent consti-

tutional bar” on direct congressional action is not “a

prohibition on the indirect achievement of objectives

which Congress is not empowered to achieve directly.”

483 U.S. at 210. Thus, the court of appeals acknowledged

that although the Twenty-first Amendment prohibits Con-

gress from legislating in certain ways with respect to

intoxicating liquors, the states could “help Congress.

achieve objectives beyond its immediate constitutional

reach by agreeing themselves to legislate in areas where

15

they constitutionally can legislate, but Congress cannot.”

(14a). But the court below erroneously concluded that

the logic of South Dakota v. Doie does not apply here

(id.), although the eireumstances are fundamentally the

same.

In the present case, the court assumed that federal sep-

aration of powers principles similarly constrained Con-

gress from doing certain things directly, such as ap-

pointing Members of Congress to a Board of Review.

However, a state-created entity is free to create a Board

composed of Members of Congress because nothing in the

Constitution prohibits states from appointing individuals

who are Members of Congress to positions created by

state law. See Signorelli v. Evans, 637 F.2d 853, 861-62

(2d Cir. 1980); II Elliot’s Debates, vol. 5 at 127, 378,

420-25, 503, 505-06 (2d ed. 1836). In holding that Con-

gress may not use “the same device” that this Court

approved in South Dakota “to circumvent the functional

constraints placed on it by the Constitution,” (14a), the

court arbitrarily elevates certain constitutional constraints

above others, essentially creating a two-tiered Constitu-

tion. Apparently functional separation of powers con-

straints, only implicit in the Constitution, loom larger

than other prohibitions, such as the express terms of the

Grand Jury Clause of the Fifth Amendment or the

Twenty-first Amendment, that the Constitution may place

on Congress’ powers.

This Court should not accept this proposed exception

to the reasoning in South Dakota v. Dole. The issue is

not whether Congress cannot do something because that

power is not found in-——or is prohibited by—one constitu-

tional provision rather than another. The issue is whether

Congress can induce the states to do something voluntarily

that everyone concedes that the states themselves have the

power to do. The constitutional limit recognized in South

Dakota is that Congress may not induce the states to

engage in activities that states could not constitutionally

16

perform (such as to discriminate on the basis of race in

administering the Airports Authority). 483 U.S. at 210.

But such prohibitions are not implicated here. The deci-

sion of the court of appeals places an unwarranted limi-

tation on the South Dakota decision and leaves Congress

guessing as to which constitutional prohibition may be

deemed so important as to invalidate its legitimate efforts

to achieve indirectly objectives that it may not achieve

directly.“

3. The court of appeals' conelusion that the Board of

Review created by the independent Authority is none-

theless a federal legislative agent impermissibly perform-

ing executive functions (18a-19a) rests on a misapplica-

tion of this Court’s appointment and removal cases. The

court below found that Bowsher v. Synar, 478 U.S. 714

(1986) and Mistretta v. United States, 488 U.S. 361

(1989), which clearly govern this case, were “unper-

suasive.” (17a). That court’s reasoning, if left undis-

turbed, will confuse appointment and removal law that

this Court has ciarified and will limit Congress’ legiti-

mate discretion to provide its own views (or authorize

others to provide their views) in the appointment process.

The court below did not find that Congress appointed

anyone. In fact, the Governors of Maryland and Virginia,

the Mayor of the District of Columbia and the President

of the United States appoint the Directors of the Author-

ity. These nonfederal Directors in turn appoint the mem-

bers of the Board of Review from lists of names (which

7 Indeed, although the court below stated that it need not reach

the respondents’ Ineligibility and Incompatibility Clause claims

(19a), the majority’s holding that individual Members of Con-

gress could not perform executive functions in fact added additional

constraints to those Clauses that the Founding Fathers deliberately

avoided placing on our constitutional and federal system. Nothing

in either of those Clauses prohibits an individual Member from

serving in any state-created office (including one in which executive

functions are vested) or as a member of a public corporate body

independent of the federal government. See U.S. Const. art. I, § 6,

el. 2.

. — I ee

17

the Directors are free to reject) that are submitted by

the Speaker of the House and the President pro tempore

of the Senate. In Bowsher, this Court did not condemn

the congressional requirement that the Speaker of the

House and the President pro tempore of the Senate recom-

mend a list of three individuals to the President from

whom he nominates the Comptroller General. 478 U.S.

at 727. Similarly, this Court upheld Congress’ power to

require the President to appoint three judges to the Sen-

tencing Commission from a list of six judges recom-

mended by the Judicial Conference of the United States.

Mistretta, 488 U.S. at 410 n.31. There is no principled

distinction between these situations and the present case.

The court below erred in finding Mistretta inapposite

and erected a constitutional distinction where none exists.

The court of appeals believed that Mistretta offered no

guidance because it involved potential Executive inter-

ference with the Judiciary (or vice versa) rather than

congressional interference with executive powers.

(19a). But there is no basis for analyzing alleged inter-

ference with executive appointment powers differently

depending on whether a proposed list comes from Con-

gress or from the Judiciary. The interference, if any,

that may be inherent in allowing the congressional or ju-

dicial branches to submit lists of nominees to an executive

appointing authority is constitutional so long as the ap-

pointing authority retains ultimate responsibility in the

selection of its appointees.

Further, the court of appeals’ holding, in reliance on

Bowsher, that Congress has the power to remove members

of the Board of Review (18a) is unsupported by either

the facts or the law. Nothing in the Transfer Act author-

izes Congress to interfere with the Authority’s power to

remove its appointed officials. Even appellants concede

that the absence of any congressional removal power

“eliminates one source of unconstitutionality.” See App.

Br. at 35. The law, articulated by Madison, is that “the

18

power of removal result [s] by a natural implication from

the power of appointment.” 1 Annals of Cong. 496 (J.

Gales ed. 1789). The Authority properly recognized that

removal authority is vested in the appointing authority in

the absence of express legislation to the contrary in Res-

olutions Nos. 87-12 and 87-27, which empowered the Board

of Directors to remove members of the Board of Review

for cause. The Board of Directors’ authority to remove

its appointees—the Board of Review—is thus consistent

with a longstanding principle of federal law that this

Court repeatedly has affirmed, see Carlucci v. Doe, 488

U.S. 93, 99 (1988); Myers v. United States, 272 U.S.

52, 119 (1926), and with relevant state law. See, e. g.,

Va. Code Ann. 24.1-79.6. Contrary to the court of ap-

peals’ conclusion (18a-19a), this case is wholly unlike

Bowsher v. Synar, where this Court found Congress’

power to remove an officer charged with execution of the

law unconstitutional.

4. Even if, contrary to the facts, the Board of Review

were an agent of Congress, it would not be interfering

with a coordinate branch of the federal government here.

At most (if it were ever to disapprove an action of the

Authority’s Directors that also caused injury to some

private party, which is not the case here), it would be

trenching on the powers of a nonfederal entity in cir-

cumstances where the relevant state and local govern-

ments had given their consent. To condemn such action

under the rubric of the judicially-developed federal doc-

trine of separation of powers would conflict with Kwai

Chiu Yuen v. INS, 406 F.2d 499 (9th Cir.), cert. denied,

395 U.S. 908 (1969). That case holds that the federal

separation of powers doctrine “has no application in the

area of federal-state relations.” Id. at 501.“

5. No findings supported the district court’s conclu-

sion, adopted by the court below (9a), that ripeness was

* Neither respondents nor the court of appeals cited specific case

law to the contrary to support their view that federal separation of

powers principles apply in this case.

—

19

established here because the case is as ripe as it will

ever be.“ (38a). A case can be almost ripe forever and

never amount to a case or controversy for purposes of

judicial intervention. See Clark v. Valeo, 559 F.2d 642,

649 (D.C. Cir.) (en bane), aff'd without opinion, 431

U.S. 950 (1977). Here, the Board of Review has never

taken any action that affects the claims alleged by re-

spondents. Particularly in a case of first impression

where respondents ask the judiciary to upset on consti-

tutional grounds the delicate balance wrought by both

federal and state legislators and executives, see Dames &

Moore v. Regan, 453 U.S. 654, 668 (1981), a court should

not rest on mere speculation.

Further, the district court, as affirmed by the court of

appeals (9a), found only (without evidentiary hearing

and despite petitioners’ protests) that respondents’ al-

leged injuries are “fairly. traceable” to the Master Plan

(41a). It did not find that those alleged injuries could be

traced to the mere existence of the Board of Review,

which took no action that affected the Master Plan in any

respect. Yet it is only the Board of Review and not the

Master Plan that respondents have challenged.

Nor did the district court or the court of appeals ade-

quately address the essential link between the complained

of injury and the relief requested. Eliminating the

Board of Review (and all the consequences of that ac-

tion) simply would not redress their injuries by reduc-

ing aircraft noise or promoting safety. See, e.g., § 2454

(c)(5)(C); Brief for Defendants (Jan. 30, 1989), Exh. 8.

The unprecedented approach of the court of appeals

would extend separation of powers principles to non-

federal entities in a rigid categorical manner, contrary

to the functional analysis adopted by this Court and in

conflict with well-established appointment and removal

law. See, e.g., Mistretta, 488 U.S. at 380-84, 408-410;

United States ex rel. Stillwell v. Hughes Helicopters,

9

20

Inc., 714 F. Supp. 1084, 1086-87 (C.D. Cal. 1989). Un-

less reversed, the decision will hamper the ability of the

federal government to work with state and local entities

to solve regional problems and will unduly constrain Con-

gress in disposing of federal assets consistent with the

Property Clause.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

Of Counsel: WILLIAM T. COLEMAN, JR.

GREGORY WOLFE Counsel of Record

EDWARD S. FAGGEN DONALD T. BLISS

METROPOLITAN WASHINGTON DEBRA A. VALENTINE

AIRPORTS AUTHORITY NANCY E. MCFADDEN

44 Canal Center Plaza O’MELVENY & MYERS

Alexandria, VA 22314 555 13th Street, N.W.

(703) 739-8740 Suite 500 West

Washington, D.C. 20004

December 10, 1990 (202) 383-5325