Petition for Writ of Certiorari — Local Lodge 2552, International Ass'n of Machinists & Aerospace Workers v. Pusey

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‘ 00 1254FEB 1 2008

No. 00- OFRIQE OF Te

IN THE

Supreme Court of the Anited States

LOCAL LODGE 2552, INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE WORKERS, DISTRICT

LODGE 74, INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AEROSPACE WORKERS, and H & H CONSOLIDATED

INC.,

Petitioners,

Vv.

FREDERICK A. PUSEY,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Virginia

PETITION FOR A WRIT OF CERTIORARI

THOMAS LUCAS JEREMIAH A. COLLINS

McGuIRE, Woops, BATTLE Counsel of Record

& BOOTHE MARGO PAVE

9000 World Trade Center BREDHOFF & KAISER, P.L.L.C.

101 West Main Street 805 15th Street, N.W.

Norfolk, VA 23510 Suite 1000

Washington, D.C. 20005

(202) 842-2600

JAMES J. VERGARA, JR.

VERGARA & ASSOCIATES

100 Main Street Plaza

Hopewell, VA 23860

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

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QUESTION PRESENTED

1. May a court declare a state regulatory statute to be

enforceable on an enclave over which the state has ceded

exclusive jurisdiction to the United States, on the ground that

the cession of jurisdiction was conditioned on the enclave’s

being used for a purpose the court deems to be different from

the use subsequently made of the enclave by the United

States, where both the federal government and the state

agency responsible for enforcement of the regulatory statute

in question maintain that the United States retains exclusive

jurisdiction, and the language conditioning the state’s cession

of jurisdiction is ambiguous?

(i)

TABLE OF CONTENTS

Page

tt |: See i

TABLE OF AUTHORITIES ..0...0.....cccccccccccocesecesecoeoeeee. iv

a AS ee I

SET IET Sac a Le I

CONSTITUTIONAL PROVISION INVOLVED.......... l

STATEMENT OF THE CASE .Q...0.......cccccccccsccsssecseseceses l

REASONS FOR GRANTING THE WRIT................... 8

EE ae eee 18

(ili)

iv

TABLE OF AUTHORITIES

CASES Page

Adams v. United States, 319 U.S. 312 (1943)........ 1]

Arlington Hotel Co. v. Fant, 278 U.S. 439

| _, RREE SRR RENN Se ion i eI RA AEE 11

Collins v. Yosemite Park Co., 304 U.S. 518

SE rea ai chinencasiaistniietaunsinsnjhaseniniehianelonibiaenamumiaiageee amanda 1]

Fort Leavenworth R.R. Co. v. Lowe, 114 U.S.

SN I kc ccieiditeitinitinssteansasibiedabamiapiah asian ceil elites 9,10

Humble Pipe Line Co. v. Waggonner, 375 U.S.

ee iindicivnbsnniiibiaiicsseabiiaetadaces 9, 14, 15, 16, 17, 18

James v. Dravo Contracting Co., 302 U.S. 134

EPUIEPE Bvcsstertictiiinpiadcsiidaiichaehaiiaticiiiadtatthid dub deaelaatinate 9, 10, 11

Kleppe v. New Mexico, 426 U.S. 529 (1976)......... 10

Marquez v. Screen Actors Guild, 525 U.S. 33

SSRI shssisisigatanitceenshiebasatacbai delet dts aerate ea 5

Osburn v. Morrison Knudsen Corp., 962 F.Supp.

Se ets Ss SUPT D vdaeniebitaticsinsitelenhindDinsestiutanisitinsens 17

Palmer v. Barrett, 162 U.S. 399 (1896)................. 10

Paul v. United States, 371 U.S. 245 (1963)......... 9,10, 11

S.R.A., Inc. v. Minnesota, 327 U.S. 558 (1946)..... 10

Silas Mason Co. v. Tax Comm'n, 302 U.S. 186

CIEE Picecencessntancinnnncinasstnniasbneieisieiiades adeas ioe. 9,11

United States v. Johnson, 994 F.2d 980 (2d Cir.

SP UUTIE T sichicicisiibbadetatcktineccoelinnabatiaachiceatindidecsdegiataichtieestl 8,9, 16, 17, 18

Wilson v. Cook, 327 U.S. 474 (1946)........ccccceeeeeeee 11

STATUTES AND CONSTITUTIONAL PROVISIONS

United States Constitution, Art. I, § 8, cl. 17......... 1,9 |

Be See Ee arin sndesnasinseicctilenaedannnalabisbdiaitinnabinis l |

ee ess ee Ci icintntisninctiadcntcetiuintiidasntacannds 5

A a Oe i eiedhicinibatiisteaicipincicatniatsinchatiicintarnansiiiiaiiate 11,12

Sa ee ae ehiieritasecseisctiscih cecipininiisicescabiciaeds wideinieniisaiaie 3

i Ee Py OF cA S antitnittninitiniticsteniedansnaniininiids 4

To ee I, Tr I alli cece tea anaies 5

Chapter 14, Virginia Act of Assembly 1940.......... passim

Vv

TABLE OF AUTHORITIES—Continued

LEGISLATIVE HISTORY Page

Hearings on H.R. 7293 Before the House Comm.

on Buildings and Grounds, 76th Cong., Ist

OE, F CTI cnsersiinenittapaitheneninitinnstiniaauiittessiagals 1]

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The orders of the Supreme Court of Virginia refusing

Petitioners’ petitions for appeal and denying Petitioners’

petition for rehearing are unreported and are reprinted in the

Appendix to this Petition at App. la, 2a and 18a. The opinion

and order of the Circuit Court of Accomack County granting

Respondent’s motion for summary judgment with respect to

the question presented here are unreported and are reprinted

at App. 3a-lla and 12a-13a. The order of the Circuit Court

granting Respondent’s motion for summary judgment as to

liability is unreported and is reprinted at App. 14a-17a. The

order of the Circuit Court entering final judgment on behalf

of Respondent is unreported and is reprinted at App. 19a-23a.

JURISDICTION

The Supreme Court of Virginia refused Petitioners’

petitions for appeal on September 13, 2000, App. la and 2a,

and denied a timely petition for rehearing on November 3,

2000, App. 18a. This Court has jurisdiction pursuant to 28

U.S.C. § 1257.

CONSTITUTIONAL PROVISION INVOLVED

Article I, § 8, cl. 17 of the United States Constitution

provides in pertinent part that “Congress shall have Power .. .

to exercise exclusive Legislation . . . over all Places

purchased by the Consent of the Legislature of the State in

which the Same shall be, for the Erection of Forts,

Magazines, Arsenals, Dock-Yards, and other needful

Buildings.”

STATEMENT OF THE CASE

1. In 1940, the Virginia General Assembly enacted a

Statute providing that, “for the purpose of enabling the United

States of America to further the National Defense at Hampton

2

Roads Naval Operating Base, Norfolk, Virginia, and at or

near the Naval Proving Ground, Dahlgren, Virginia, the

Commonwealth hereby cedes to the United States of America

exclusive jurisdiction” over land near those sites. Chapter 14,

Act of Assembly 1940 (Ex. A)'. The statute further provided

that “the jurisdiction hereby ceded shall continue no longer

than the United States shall own such lands in fee simple and

they shall be used and occupied by the United States for naval

purposes.” /d.

The United States Government thereupon began acquiring

the specified land, which is situated in Accomack County,

Virginia. Title to the first two parcels of land was acquired

by the United States in 1942 (Exs. D2, E2), and title to a third

parcel was acquired in 1944. (Ex. F2). The Secretary of the

Navy accepted exclusive jurisdiction on behalf of the United

States over the first two parcels in 1943 and over the third in

1949, by letters stating that the Navy was accepting

jurisdiction “on behalf of the United States in the manner and

form granted and ceded by an Act of the General Assembly

of the Commonwealth of Virginia, approved February 7,

1940 (Chapter 14, Act of Assembly 1940).” (Exs. D3, E3,

F3). Virginia’s Governor acknowledged the United States’

acceptance of jurisdiction by signature on each of the letters.”

2. Both Virginia and the United States understood that the

“naval purposes” for which the land was to be used were

aviation-related activities. The Virginia statute noted that the

land as to which jurisdiction was being ceded was being

“acquired for use as auxiliary air fields.” Ch. 14, Act of

' We cite to the Joint Stipulated Exhibits filed in the Circuit Court of

Accomack County as “Ex. ‘5

? Title to a fourth parcel adjacent to the first three was acquired by the

United States in 1952. (Ex. G2). The parties have not located any

documents indicating that the United States formally acquired exclusive

jurisdiction over this parcel. The jurisdictional status of the fourth parcel

need not be determined in resolving the question presented in this case.

3

Assembly 1940. (Ex. A). The Navy built runways, aircraft

hangars, an operations tower and other aviation-related

facilities on the property, which the government named the

Wallops Flight Facility (“WFF’”). (Ex. C). The land is not

adjacent to nor does it have access to any deep water;

accordingly, there never was any contemplation that the land

would be used for a naval port.

3. Since the time these lands first were acquired by the

United States, title never has rested in any entity other than

the United States, which continues to own the property in fee

simple. In 1961, custody of the lands passed from one part of

the United States government to another, when the Navy

transferred custody to the National Aeronautics and Space

Administration (“NASA”). (Ex. H3). NASA is an agency of

the federal government, established pursuant to 42 U.S.C.

§ 2451.

When NASA took custody of WFF, the Fifth Naval

District advised NASA by letter that the United States had

exclusive jurisdiction over the three parcels of land. The

letter included a map identifying the date upon which each

parcel at WFF was acquired and the dates upon which

exclusive jurisdiction was obtained. (Ex. C). The map

reflects that the land was being used for aviation-related

purposes at the tinie custody was transferred: it shows an

airfield with multiple runways, fuel storage facilities, hangars,

aircraft parking areas, and an operations tower.

Under NASA’s stewardship, the property continued to be

used by the federal government for aviation activities on

behalf of the Navy and other branches of the armed forces.

NASA administered thousands of rocket and satellite

launches for the United States Navy, Army and Air Force

between 1960 and 1988. Launches for the Navy alone totaled

2,583, while launches conducted for the benefit of the

Army numbered 1,638, and for the Air Force, 574. (NASA

4

Response to FOIA Request # 1)°. While the actual launches

were from a nearby island, not from the mainland sites at

issue here, the facilities where the launches were

administered and controlled were located on the land at issue,

and most of the design and construction work for the launches

occurred on that land.

In 1987, the Navy located the AEGIS Combat System

Center at Wallops Island, expanding further the Navy’s

presence at WFF. (Ex. K).

4. The United States never has acted to relinquish its

exclusive jurisdiction over these lands, although the Virginia

Code sets forth a specific mechanism for doing so. Section

7.1-25.1 of the Virginia Code provides for notification to the

Governor by the United States that the federal government

“desires or is willing to relinquish to the Commonwealth”

jurisdiction over Virginia lands. If such notice is given and

accepted by the Governor, the notice of relinquishment is

filed with the Secretary of the Commonwealth and entered in

the deed book of the city or county in which the lands are

located. The United States has utilized this simple

notification procedure to relinquish exclusive jurisdiction

over other lands in Virginia (Ex. V1), but has not done so

with respect to the land at issue here.

In 1994, NASA notified the Virginia Attorney General that

“NASA has concluded that the Federal Government, as

represented by NASA, has exclusive Federal jurisdiction over

parcels | through 3.” (Ex. U1). The Virginia Department of

Labor and Industry had come to the same conclusion in 1990,

finding that the jurisdictional status of the lands “has not

* The responses Petitioners received to their Freedom of Information

Act (“FOIA”) request concerning this matter were filed with the Circuit

Court for Accomack County and were noted by that court in its second

summary judgment order. App. 15a.

5

changed and that the Federal government retains exclusive

jurisdiction over this land.” (Exs. O, Q)’.

5. Among the federal contractors working at WFF is

Petitioner H&H Consolidated, Inc., whose employees are

represented for collective bargaining purposes by Petitioners

Local Lodge 2552 and District Lodge 74, International

Association of Machinists and Aerospace Workers

(collectively “IAM”). The collective bargaining agreement

(“CBA”) between H&H and IAM includes a provision that

requires employees who do not choose to join IAM to pay an

agency fee to cover the costs of collective bargaining

representation. (Ex. T1).

Enforcement of agency fee agreements is permitted under

federal law, 29 U.S.C. § 158(a)(3), see Marquez v. Screen

Actors Guild, 525 U.S. 33 (1998), but is forbidden by

Virginia’s “right-to-work” law, Va. Code Ann. § 40.1-62.

Petitioners negotiated and enforced the agency fee provision

on the basis of their belief that the H&H worksite is under

exclusive federal jurisdiction and therefore exempt from

Virginia’s “right-to-work” law. That belief was supported by

*A Virginia Deputy Attorney General, on the other hand, concluded in

1994 that the United States had lost exclusive jurisdiction as of 1961,

because “the land ceased to be controlled by the Navy, and the United

States no longer occupies it for naval purposes.” (Ex. U2). See infra

note 8.

It has been the policy of the Virginia state police not to patrol the lands

at WFF. (Ex. N5). Investigation of incidents occurring at WFF is the

responsibility of the WFF security chief, a NASA employee, who

investigates such incidents in conformance with the NASA security

handbook. /d. The Accomack County Sheriff's Department does not

enter WFF to serve process, but rather asks WFF security to bring

individuals to the main gate, where service is effected. Jd. The

Commonwealth Attorney for Accomack County, who has held his

position since 1985, never has prosecuted anyone for crimes occurring on

WFF land, id., but the United States Attorney’s office has successfully

brought charges under federal law for criminal acts on the property. (Exs.

W2, W3).

6

both state and federal administrative decisions. As noted, the

Virginia Department of Labor and Industry, the agency

charged with enforcing the state’s “right-to work” law,

determined in 1990 that the federal government had exclusive

jurisdiction over WFF and that the “right-to-work” law did

not apply there. In an arbitration involving another federal

contractor at WFF whose workers are represented by IAM

under a contract containing an agency fee clause, the

arbitrator similarly concluded that the United States

maintained exclusive jurisdiction over WFF and that the

agency fee clause therefore was binding. (Ex. S). And in this

very matter, the National Labor Relations Board (“NLRB”)

dismissed an unfair labor practice charge brought against

IAM for enforcing the agency fee clause, finding the clause

permissible because WFF is a federal enclave subject to

exclusive federal jurisdiction. (Ex. T6).

6. In 1995, Respondent Frederick Pusey, an H & H

employee who had been discharged for refusing to pay the

required agency fee, sued IAM and H&H in the Circuit Court

of Accomack County, contending that enforcement of the

agency fee clause violated Virginia’s “right-to-work” law.

The action was removed to the United States District Court

for the Eastern District of Virginia, but that court remanded it

back to the state court.

Notwithstanding the determinations by, inter alia, NASA,

the NLRB, and the Virginia Department of Labor and

Industry that the United States holds exclusive jurisdiction

over the lands at issue, the Circuit Court for the County of

Accomack ruled that jurisdiction had returned to Virginia

some forty years ago. App. 10a, 12a-13a. Declaring that

{t]he question [to be decided] is... whether the exclusive

jurisdiction of the United States in the three parcels reverted

to the Commonwealth of Virginia for failure of the Navy to

use and occupy the property for Naval purposes,” App. 7a,

the court held that such “reverter” occurred when the Navy

transferred custody of the facility to NASA in 1961, at which

7

time “a flag belonging to NASA was raised- [and] [aJll Navy

personnel departed,” id. Asserting that “the central factual

issue in this case [is] whether the property ceased to be used

and occupied by the Navy,” App. 10a, the court stated that,

upon the transfer of custody to NASA, “the U.S.

Navy . . . ceased to use and occupy the three parcels for Naval

purposes,” and “[t]herefore, concurrent jurisdiction reverted

to the Commonwealth of Virginia,” id. Although the court

noted that, since 1987, the Navy again has had a continuous

presence at WFF, the court declared that, once the Navy had

transferred use of the property to NASA, “{t]here is no law

that provides that exclusive Federal jurisdiction could spring

up again at the much later time when the Navy again was

permitted by NASA to use some of its property for some

Naval purposes.” /d.

The court deemed it immaterial that the United States had

never surrendered its exclusive jurisdiction and that Virginia

had not formally asserted jurisdiction over the land at issue,

because “[t]he language in the [1940] Virginia Act of the

cession of jurisdiction is similar to language, in real property

law, of the possibility of reverter and not similar to the

language of a right of entry for condition broken.” App. 6a.

Because a common law “possibility of reverter” (unlike a

“right of entry for condition broken’) results in “automatic”

reverter when the specified conditions no longer exist, id., the

court declared that the United States automatically and

permanently lost its exclusive jurisdiction over this land when

the Navy transferred custody to NASA.

After granting partial summary judgment to Respondent

Pusey on February 2, 1998 on the question of state

jurisdiction, App. 12a-13a, the Circuit Court on November

17, 1999, granted him partial summary judgment as to

liability and ordered a trial on damages. App. 14a-17a.

Following trial, the court entered judgment in favor of Pusey

in the amount of $135,000.00 with interest. App. 19a-23a.

a

8

The Supreme Court of Virginia refused Petitioners’ petitions

for appeal on September 13, 2000, App. la and 2a, and that

Court denied Petitioners’ timely petition for rehearing on

November 3, 2000. App. 18a.

REASONS FOR GRANTING THE WRIT

Many federal enclaves are used today in ways that differ

markedly from the particular uses that were anticipated

decades ago when states initially ceded jurisdiction over such

lands to the United States. This case presents an opportunity

for the Court to determine whether, by “a rigid interpretation

of antiquated deeds [or statutes] that failed fully to anticipate

the complex development of [federal government] opera-

tions,” United States v. Johnson, 994 F.2d 980, 986 (2d Cir.

1993), a state court may declare, contrary to the position of

the relevant federal agencies (and here, contrary as well to the

position of the relevant state regulatory agency) that a state

regulatory statute has become enforceable against activities

on a federal enclave merely because, in the state court’s view,

the activities conducted by the United States on the enclave

do not sufficiently match those that were anticipated by the

State statute that set out the basis on which the state was

ceding jurisdiction.

In this case, the state court divested the United States of its

exclusive jurisdiction over the Wallops Flight Facility, and

subjected Petitioners to liability under a state labor law that

NASA, the NLRB and the Virginia Department of Labor and

Industry all consider to be inapplicable at WFF by virtue of

exclusive federal jurisdiction. The state court did so on the

ground that the 1940 Virginia statute ceding jurisdiction over

this land to the United States stated that exclusive federal

jurisdiction would continue only as long as the property was

“used and occupied by the United States for naval

purposes”—a phrase which the court construed as requiring

that the facility be occupied by, and used by (rather than for)

the United States Navy (rather than NASA). The court below

9

reached that result, which in no way is compelled by the

statutory language, by approaching this case as if it involved

a routine state-law dispute as to property rights, rather than a

question of federal regulatory authority over an enclave that

concededly is owned by the United States.

The decision below divesting the United States of its

exclusive jurisdiction on this basis is contrary to the teaching

of this Court’s decision in Humble Pipe Line Co. v.

Waggonner, 376 U.S. 366 (1964), and the decision below

conflicts in principle with the Second Circuit’s decision in

United States v. Johnson, supra. Certiorari should be granted

to correct this ill-considered judicial interference with

exclusive federal jurisdiction at an important federal enclave,

and to provide needed guidance to the lower courts respecting

the analysis to be applied when it is claimed that the federal

government’s changing use of an enclave has triggered a loss

of exclusive federal jurisdiction.

1. It long has been settled that the federal government has

broad power to acquire land for governmental use with or

without the consent of the state in which the property is

situated, but such acquisition does not, without more, oust the

state of jurisdiction to enforce its laws on the acquired

property. See Paul v. United States, 371 U.S. 245, 264

(1963); Silas Mason Co. v. Tax Comm'n, 302 U.S. 186, 197

(1937); James v. Dravo Contracting Co., 302 U.S. 134, 141,

147-149 (1937); Fort Leavenworth R.R. Co. v. Lowe, 114

U.S. 525, 530-531 (1885). The question whether, in addition

to ownership, jurisdiction to establish and enforce the law in

a federal enclave has been transferred from a state to the

federal government is governed by the Enclave Clause of the

Constitution, Art. I, § 8, cl. 17, which grants Congress the

“Power . . . to exercise exclusive Legislation” over all

property acquired “by the Consent of . . . the State in which

the same shall be.” See Paul, 371 U.S. at 264; Silas Mason

Co., 302 U.S. at 197; Dravo Contracting Co., 302 U.S. at

147; Fort Leavenworth R.R. Co., 114 U.S. at 531.

al,

10

The Enclave Clause has been understood to require the

consent of the state, either through a statute of cession or

through some form of agreement, before the United States

may assume legislative jurisdiction over land it has acquired.

Where such consent has been given, state laws cease to

operate in the federal enclave: “the grant of ‘exclusive’

legislative power to Congress over enclaves that meet the

requirements of Art. 1, § 8, cl. 17, by its own weight, bars

state regulation without specific congressional action.” Paul,

371 US. at 263.

The accession of federal legislative authority over property

under the Enclave Clause thus depends on the consent of the

state’; and this Court has held that a state “may qualify

its cession by reservations not inconsistent with the

governmental uses” to which the United States intends to put

the property. Dravo Contracting Co., 302 U.S. at 141, 147;

Paul, 371 U.S. at 264-265. A state thus may include a

“requirement in the act of cession for return of sovereignty to

the State when the ceded territory [i]s no longer used for

federal purposes,” §.R.A., Inc. v. Minnesota, 327 U.S. 558,

563 (1946), or where the property is not used for “the public

purposes for which the property was acquired,” Fort

Leavenworth R.R. Co., 114 U.S. at 542. See Palmer v.

Barrett, 162 U.S. 399 (1896) (jurisdiction over land ceded for

military purposes reverted to the state when the land was

leased by the Navy to Brooklyn to be used as a marketplace).

So much is settled law. And it is settled as well that, even

though the existence and scope of federal jurisdiction over

acquired land depends on the consent of the state as expressed

> Of course, Congress may assert regulatory authority over certain

activities conducted in federal enclaves by virtue of sources of power

other than the Enclave Clause. See, e.g., Kleppe v. New Mexico, 426 U.S.

529, 541-546 (1976) (Property Clause gives Congress authority to

regulate activities on federal land even if the state has not ceded

jurisdiction pursuant to the Enclave Clause).

11

in state laws, “[t]hat question . . ., involving the extent of the

jurisdiction of the United States, is necessarily a federal

question.” Silas Mason Co., 302 U.S. at 197. See also Paul,

371 U.S. at 267; Wilson v. Cook, 327 U.S. 474, 486 (1946).

2. It has proved easier to state those substantive rules than

to formulate principles of construction for determining

whether a particular exercise of jurisdiction over a federal

enclave involves a matter that has been ceded to the federal

government, on the one hand, or reserved by the state, on the

other.

In an earlier period of our history, when many federal

enclaves had only recently been acquired, the question

frequently arose whether, in the first instance, the United

States had assumed, and the affected states had ceded,

exclusive jurisdiction over particular property. This Court

was called upon to resolve many such disputes. See, e.g.,

Silas Mason Co.; Dravo Contracting Co.; Fort Leavenworth

R.R. Co.; Collins v. Yosemite Park Co., 304 U.S. 518 (1938);

Arlington Hotel Co. v. Fant, 278 U.S. 439 (1929).

Such questions rarely have come before the Court in more

recent years, largely because of the enactment in 1940 of a

Statute, codified at 40 U.S.C. 255, which “created a definite

method of acceptance of jurisdiction so that all persons could

know whether the government had obtained ‘no jurisdiction

at all, or partial jurisdiction, or exclusive jurisdiction’.”

Adams v. United States, 319 U.S. 312, 314 (1943) (quoting

Hearings on H.R. 7293 before the House Committee on

Buildings and Grounds, 76th Cong., Ist Sess. 7 (1939))°.

° The statute provides in pertinent part as follows:

Notwithstanding any other provision of law, the obtaining of

exclusive jurisdiction in the United States over lands or interests

therein which have been or shall hereafter be acquired by it shall not

be required, but the head or other authorized officer of any

department or independent establishment or agency of the

Pn ae ee

12

The statute does not, however, speak to the Enclave Clause

problem that is of principal concern in the post-1940 era. In

many instances there have been major changes in the

activities conducted by the federal government on enclaves

acquired decades ago, and therefore courts must struggle with

the question whether the current use of a federal enclave is so

different from the use that was contemplated when the state

initially ceded jurisdiction that the cession no longer should

be considered operative. 40 U.S.C. § 255 does not specify

any standards that should be applied in resolving such a

question.

3. The court below assumed that the matter should be

approached as if it were a routine question of land ownership

governed by state real property law. Thus, the fact that the

United States views its present jurisdiction over WFF as

exclusive,’ and the fact that Virginia never has asserted a

right to reassume jurisdiction,” were accorded no signi-

Government may, in such cases and at such times as he may deem

desirable, accept or secure from the State in which any lands or

interests therein under his immediate jurisdiction, custody, or

control are situated, consent to or cession of such jurisdiction,

exclusive or partial, not theretofore obtained, over any such lands or

interests as he may deem desirable and indicate acceptance of such

jurisdiction on behalf of the United States by filing a notice of such

acceptance with the Governor of such State or in such manner as

may be prescribed by the laws of the State where such lands are

situated. Unless and until the United States has accepted

jurisdiction over lands hereafter to be acquired as aforesaid, it shall

be conclusively presumed that no such jurisdiction has been

accepted.

” See supra at 4, 6.

* The Virginia agency responsible for enforcing the state “right-to-

work” statute on which Respondent Pusey relies has determined that

Virginia cannot enforce that law against contractors working at WFF

because federal jurisdiction is exclusive. Exs. O, Q. On the other hand, a

Virginia Deputy Attorney General has expressed the view that “the United

States no longer enjoys exclusive jurisdiction over that territory.” Ex. U2.

13

ficance, because, “in real property law,” those considerations

would be relevant only in the case of “a right of entry for

condition broken” rather than a “possibility of reverter,” App.

7a, and the court below viewed the terms of the Virginia

cession statute as “similar to” the latter rather than the former,

id.

In construing the “possibility of reverter” contained in the

cession statute—which, as noted, provides that “the

jurisdiction hereby ceded shall continue no longer than the

United States shall own [the] lands in fee simple and they

shall be used and occupied by the United States for naval

purposes,” see supra at 2—the Circuit Court did not pause to

consider why the state and federal governments might have

agreed to that particular provision. Instead, the court

construed the words without any reference to the context in

which they were used, and pronounced that the language

referring to “naval purposes” should be construed as

providing for federal jurisdiction only so long as the property

was “used and occupied by the Navy.” App. 10a. The court

therefore deemed it conclusive that, upon transfer of custody

to NASA, “the U.S. Navy . . . ceased to use and occupy the

three parcels for Naval purposes.” Jd. To the Circuit Court,

this necessarily meant that, as of 1961, “concurrent

jurisdiction reverted to the Commonwealth of Virginia.” /d.

Taking its reading a step further, the court declared that the

transfer of custody from the Navy to NASA in 1961 so

irrevocably terminated Virginia’s cession of jurisdiction that

the United States cannot assert exclusive jurisdiction today,

even though “the Navy again [i]s permitted by NASA to use

some of its property for some Naval purposes.” App. 10a.

However, Virginia has taken no official position on the question, and the

Deputy Attorney General's letter concludes with the recommendation that

the matter “should, if at all possible, be settled with certainty between the

Federa! government and the States” by clarifying the matter through

further statutory language. /d.

14

4. The state court’s decision is unfounded. On its face, the

reference in Virginia’s cession statute to “naval purposes” is

not confined to activities conducted directly by the United

States Navy.” And the statute does not provide that exclusive

federal jurisdiction may be exercised over WFF only as long

as the Navy occupies the property; rather, the statute provides

for exclusive jurisdiction as long as “the United States shail

own such lands in fee simple and they shall be used and

occupied by the United States for naval purposes.” NASA is

as much an agency of the United States as is the Navy; and

even during the period when the Navy did not occupy any of

the land, NASA continued to conduct aerospace activities

relevant to the national defense, including launching more

than 2500 rockets and satellites for the Navy. See supra

at 3-4.

If the Virginia court’s error were confined to a misreading

of the state cession statute, this case might be a candidate

only for summary reversal rather than for full briefing and

argument. But the error of the Virginia court’s analysis runs

deeper.

In Humble Pipe Line Co. v. Waggonner, 375 U.S. 369

(1964), as in this case, the question presented was whether the

United States had lost exclusive jurisdiction because it had

ceased to use certain property for the particular military

purpose—an air base—for which the land had been donated

by the state. The United States (acting through the

Department of the Interior rather than through the Air Force,

see id, at 373 n.4) had leased to a private party the right to

exploit parts of the land for oil and gas and for an oil pipeline.

Louisiana contended “that the Federal Government ha[d]

thereby lost its power to exercise exclusive jurisdiction over

* Although the Circuit Court characterized the Virginia statute as

allowing exclusive federal jurisdiction only for “Naval purposes,” App.

7a, 10a (emphasis added), the statute actually refers to “naval purposes,”

with a lower case “n”.

—

15

those parts of the area.” Jd. at 372. This Court rejected that

contention out of hand. “[RJecogniz[ing] the responsibility of

the Executive Department of the Government to determine

what land it will acquire and hold for military purposes,” id.

at 373, the Court declared that, even though the federal

government was not presently using portions of the land for

military purposes, “[t]here is no evidence here which would

justify a court in deciding that the government does not need

to keep all of this tract intact, ready for use when needed for

the highly important military purposes to which it has been

dedicated,” id.

Humble Pipe Line stands for the proposition that, where the

United States has not purported to relinquish the exclusive

jurisdiction it has been granted over an enclave, courts should

not be quick to conclude that changes in the federal

government’s use of the property are such as to require a

forfeit of exclusive jurisdiction. That proposition is

supported by a least two considerations.

First, there is little to be said for a regime under which

regulatory authority may ebb and flow between the federal

government and a state on the basis of nothing more than a

particular court’s narrow construction of the purposes for

which the state originally ceded jurisdiction. Here Petitioners

were subjected to substantial retroactive liability for

complying with federal agency fee law rather than state law,

even though NASA, the NLRB and the Virginia Department

of Labor and Industry all were of the view (as were the local

law enforcement agencies, see supra note 4) that exclusive

jurisdiction lay with the United States. This liability has been

imposed, to the detriment of NASA’s claim to exclusive

jurisdiction, merely because the Virginia court chose,

according to its own lights, to read the words “naval

purposes” as confined to activities carried out by, rather than

for, the United States Navy.

16

Second, as a general matter, construing a state cession

statute broadly is more likely to give proper effect to the

intent of both the state and federal governments than is a |

crabbed construction such as the court below adopted. Why,

after all, would the Virginia legislature wish—as to land

concededly owned by the United States—to cede exclusive

jurisdiction if WWF is used by the Navy for an airfield, but

not if it is used by NASA to support rocket launches for the

Navy?

State property law concepts, such as the doctrine of

“possibility of reverter” on which the Court below relied, see

supra at 7, 12-13, simply are not designed to address the

question whether regulatory authority over a federal enciave

rests with Congress, the state legislature, or both. As Humble

Pipe Line indicates, a court faced with that question must take

into account the value of allowing the federal government

leeway to alter its use of an enclave without risking a finding

that it has forfeited exclusive jurisdiction merely because a

particular court chooses to give a narrow construction to a

State cession statute.

5. The Second Circuit recognized as much in United States

v. Johnson, 994 F.2d 980 (2d Cir. 1993). There, New York

ceded land to the United States “for use in connection with

the expansion of the Brooklyn Navy Yard,” and the United

States was to have jurisdiction only for so long as the land

was used “for the purposes of the cession.” 994 F.2d at 986.

The government eventually ceased using the property for

“traditional navy yard work” (i.e., shipbuilding), id., and the

contention was advanced that jurisdiction had reverted to the

state as a result.

The Second Circuit rejected that contention, declaring that

“Johnson’s interpretation of the grant of jurisdiction is too

Strict, and does not allow for the evolution of the Navy’s |

needs.” /d. Emphasizing that “[t]he federal government must

be given some leeway in making use of ceded property,” id.,

and citing Waggonner, the court concluded that “jurisdiction

—————

17

ceded to the United States should not revert to the state

merely because the function of ceded property evolves over

time,” id.

The Johnson court acknowledged that “it is conceivable

that some evolution [of the use made of a federal enclave]

might exceed the conditions of a grant of land so severely as

to terminate the cession and cause a reversion of jurisdiction.”

Id. at 986 (emphasis added). By that language, however, the

Second Circuit recognized, as this Court had indicated in

Waggoner, that a court should not read a state cession statute

in a manner that destroys the United States’ exclusive

jurisdiction over a federal enclave unless the federal

government's current use of the enclave is clearly outside the

purposes for which the state ceded jurisdiction. “[A] rigid

interpretation of antiquated deeds [or statutes] that failed fully

to anticipate the complex development of naval operations,”

Johnson, 994 F.2d at 986, is not a proper basis for curtailing

federal jurisdiction over federal property.”

The Virginia court failed to heed these principles when it

pronounced a “reverter” of jurisdiction from the United States

to Virginia. It cannot plausibly be argued that the meaning of

the “naval purposes” proviso in the 1940 Virginia statute is so

clear as to compel the conclusion reached by the court below.

'° Also inconsistent with the decision of the Virginia court is Osburn v.

Morrison Knudsen Corp., 962 F.Supp. 1206 (E.D. Mo. 1997). In Osburn,

Missouri statutes transferred to the United States land “required for

military purposes,” and ceded exclusive jurisdiction so long as “the

United States owns the land and uses the same for th[ose] purposes.” /d.

at 1208. The court held that exclusive jurisdiction was not lost when the

Army ceased using the site altogether and transferred control to the

Department of Energy to be decontaminated, even though there was no

indication as to what use might be made of the site in the future. The

court deemed it sufficient that the contaminated condition of the site was

due to its past military use, and decontamination activities by the

Department of Energy were not “inconsistent with military use.” I/d. at

1208-09 (emphasis added).

18

Rather, that court proceeded as if this were an ordinary

dispute over private property, in which a court might be free

to adopt any reading of the governing documents that is

within the bounds of reasonableness, without regard to any

particular federal interests. Waggoner and Johnson teach that

that is no way to proceed where what is at stake is the

exclusive jurisdiction of the United States over a federal

enclave.

Certiorari should be granted to correct the Virginia court’s

improper encroachment on the exclusive federal jurisdiction

that properly applies in this case, and to provide needed

guidance to the lower courts respecting the analysis to be

followed when it is claimed that the exclusive jurisdiction

exercised by the United States over a federal enclave has been

divested by virtue of the government’s changing use of its

property.

CONCLUSION

For the foregoing reasons, the Petition for Certiorari should

be granted.

Respectfully submitted,

THOMAS LUCAS JEREMIAH A. COLLINS

McGUIRE, Woops, BATTLE Counsel of Record

& BOOTHE MARGO PAVE

9000 World Trade Center BREDHOFF & KAISER, P.L.L.C.

101 West Main Street 805 15th Street, N.W.

Suite 1000

Norfolk, VA 23510 Washington, D.C. 20005

(202) 842-2600

JAMES J. VERGARA, JR.

VERGARA & ASSOCIATES

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