United States District Court, E.D. Virginia, Alexandria Division
PHIL KERPEN, Individually and on behalf of All Others Similarly Situated, et al., Plaintiffs,
METROPOLITAN WASHINGTON AIRPORTS AUTHORITY, et al., Defendants.
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.
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] .
- 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 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.
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).
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, 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
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 (1991) (CAAN).
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. 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. Rec. S9608, S9609
(Apr. 26, 1986). 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.
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. Code § 5.1-153, as
were necessary to manage, fund, and develop National and
Dulles. See D.C. Code § 9-905; Va. Code §
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, 133 S.Ct. 2120, 2130 n.8 (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).
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 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.
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. The Supreme Court held this to be
an unconstitutional encroachment by Congress on the sphere of
the executive. See id. at 277. 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
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. § 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).
The Dulles Toll Road and Metrorail Project
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.
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.
years that followed, “the Virginia General Assembly
repeatedly authorized [the Virginia 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].
Corr v. MWAA
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 (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 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.
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.
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 Fourth Circuit found that
MWAA had levied no tax, and that the tollway constituted a
“fee-for-service” 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.
The Present Proceedings
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.
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.
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
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 (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 (2009) (citing
Twombly, 550 U.S. at 556). 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., 444 F.3d 312, 319 (4th
Cir.2006)) (alterations in original).
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).
MWAA does not violate ...