John Corr v. Metropolitan Washington

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:11-cv-00389-AJT-TRJ. [999280257]. [13-1076]

Appeal: 13-1076

Doc: 80

Filed: 01/21/2014

Pg: 1 of 17

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1076

JOHN B. CORR, on behalf of themselves and all others
similarly situated; JOHN W. GRIGSBY, on behalf of themselves
and all others similarly situated,
Plaintiffs – Appellants,
v.
METROPOLITAN WASHINGTON AIRPORTS AUTHORITY,
Defendant – Appellee.
-----------------------------BOARD OF SUPERVISORS
STATES OF AMERICA,

OF

FAIRFAX

COUNTY,

VIRGINIA;

UNITED

Amici Supporting Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Anthony J. Trenga,
District Judge. (1:11-cv-00389-AJT-TRJ)

Argued:

December 11, 2013

Decided:

January 21, 2014

Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit
Judges.

Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Chief Judge Traxler and Judge Niemeyer joined.

Appeal: 13-1076

Doc: 80

Filed: 01/21/2014

Pg: 2 of 17

ARGUED: Robert John Cynkar, CUNEO, GILBERT & LADUCA, LLP,
Alexandria, Virginia, for Appellants.
Stuart Alan Raphael,
HUNTON & WILLIAMS, LLP, McLean, Virginia, for Appellee. Jeffrey
A. Clair, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Amicus United States of America.
ON BRIEF: Patrick M.
McSweeney,
Powhatan,
Virginia;
Christopher
I.
Kachouroff,
DOMINION LAW GROUP, Woodbridge, Virginia; Richard B. Rosenthal,
LAW OFFICES OF RICHARD B. ROSENTHAL, Miami, Florida, for
Appellants.
Philip G. Sunderland, Office of General Counsel,
METROPOLITAN WASHINGTON AIRPORTS AUTHORITY, Washington, D.C.,
for Appellee.
David P. Bobzien, Gail P. Langham, Ann G.
Killalea, James V. McGettrick, OFFICE OF THE COUNTY ATTORNEY,
Fairfax, Virginia, for Amicus Board of Supervisors of Fairfax
County, Virginia.
Kathryn B. Thomson, Acting General Counsel,
SIDLEY AUSTIN, LLP, Washington, D.C.; Paul M. Geier, Assistant
General Counsel for Litigation, Peter J. Plocki, Deputy
Assistant General Counsel for Litigation, Joy K. Park, Office of
the General Counsel, UNITED STATES DEPARTMENT OF TRANSPORTATION,
Washington, D.C.; Stuart F. Delery, Acting Assistant Attorney
General, Mark B. Stern, Michael E. Robinson, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Neil H.
MacBride, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Amicus United States of
America.

2

Appeal: 13-1076

Doc: 80

Filed: 01/21/2014

Pg: 3 of 17

DUNCAN, Circuit Judge:
Appellants John Corr and John Grigsby brought this putative
class action attacking the legality of the toll charged by the
Metropolitan Washington Airports Authority (“MWAA”) for use of
the

Dulles

Toll

Road.

They

reality, an illegal tax.

contend

that

this

toll

is,

in

The district court dismissed their

complaint on numerous grounds.

For the following reasons, we

affirm.

I.
A.
In

1950,

Congress

authorized

the

construction

of

the

airport now known as Washington Dulles International Airport.
The federal government also acquired a right-of-way running from
Interstate 495, the Capital Beltway, to Dulles Airport, on which
it constructed the Dulles Airport Access Highway.

The access

highway runs the length of the right-of-way, with no exits and
no

tolls,

exclusively

to

service

traffic

to

and

from

the

airport.

The government reserved a strip of land in the median

of

access

the

highway

for

a

possible

future

public

transportation project.
In

1980,

the

Virginia

Department

of

Transportation

requested and received an easement on which to construct a toll
road

within

the

right-of-way

to
3

serve

non-airport

traffic

Appeal: 13-1076

Doc: 80

Filed: 01/21/2014

Pg: 4 of 17

traveling between Washington, D.C. and Fairfax County, Virginia.
That road, known as the Dulles Toll Road--or, officially, as the
Omer L. Hirst-Adelard L. Brault Expressway--opened in 1984 and
connects Interstate 495 with Virginia Route 28.
Also in 1984, the United States Secretary of Transportation
proposed the formation of a regional airport authority which
would take over control of Ronald Reagan Washington and Dulles
International Airports from the United States.

Virginia and the

District of Columbia both adopted legislation to enter into an
interstate compact to form this airport authority. *

Congress

passed legislation approving the compact in 1986 and leased the
two

airports

to

the

newly

formed

MWAA.

See

Metropolitan

Washington Airports Act of 1986 (“Transfer Act”), Pub. L. No.
99-591,

Title.

VI,

amended at 49 U.S.C. §

100

Stat.

3341-376

(1986)

(codified

as

49101 et seq.).

The MWAA was, on one hand, formed as an entity independent
from Virginia, the District of Columbia, and the United States

*

The constitution provides a process by which states may,
with Congress’s consent, enter into agreements to coordinate the
states’ responses to issues of mutual concern, such as the
delineation of state borders, see, e.g., Virginia v. Tennessee,
148 U.S. 503 (1893); management of a shared resource, see, e.g.,
Lake Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440
U.S. 391 (1979); or creation of a common transportation
infrastructure, see, e.g., Hess v. Port Auth. Trans-Hudson
Corp., 513 U.S. 30 (1994). See U.S. Const. art. 1, § 10, cl.
3.

4

Appeal: 13-1076

Doc: 80

government.
the

Filed: 01/21/2014

Pg: 5 of 17

Id. § 49106(a)(2).

powers

delegated

Virginia.

Id.

§

to

it

On the other, it was to possess

by

the

49106(a)(1)(A).

District
Congress

of

Columbia

also

explicitly

granted MWAA the power to “to levy fees or other charges.”
§ 49106(b)(1)(E).

and

Id.

Nonetheless, though the MWAA assumed control

over the two Washington airports, the Dulles Toll Road continued
to be operated not by MWAA but by the Virginia Commonwealth
Transportation Board (“CTB”).
In

the

repeatedly
transit

ensuing

authorized

projects

decades,
CTB

within

to

the

the
use

Virginia
toll

Dulles

General

revenue

Assembly
fund

In

Corridor.

to

mass

1990,

the

Virginia General Assembly authorized CTB to use surplus revenue
from the Dulles Toll Road to fund improvements, including mass
transit projects.

1990 Va. Acts ch. 251 §

13, J.A. 218.

In

1995, the Virginia General Assembly again authorized CTB to use
surplus toll road revenue to fund mass transit improvements and
to raise another $45 million by issuing new bonds.
Acts ch. 560 § §
Assembly

approved

2, 14, J.A. 410-13.
a

CTB

resolution

1995 Va.

In 2002, the General

providing

that

CTB

would

spend 85% of its surplus revenue from the Dulles Toll Road to
fund “mass transportation initiatives in the Dulles Corridor.”
H.J.

Res.

General

200

(Va.

Assembly

2002).

granted

CTB

Finally,

in

open-ended

2004,

the

authority

Virginia
to

issue

revenue bonds to fund, among other things, a mass-transit rail
5

Appeal: 13-1076

Doc: 80

Filed: 01/21/2014

Pg: 6 of 17

project in the Dulles Corridor, to be paid with revenues from
the Dulles Toll Road.
CTB

then

raised

2004 Va. Acts ch. 807 §

the

Dulles

Toll

Road

1, J.A. 224-30.

rates,

earmarking

the

additional money raised for extending the Washington Metrorail
system through the Dulles Corridor.

The Metrorail expansion is

planned to extend through the corridor with stops both before
and after the Dulles Airport.
B.
MWAA, meanwhile, shared Virginia’s goal of extending the
Metrorail

system

to

Dulles

Airport.

Moreover,

under

the

Transfer Act, MWAA was to “assume responsibility for the Federal
Aviation

Administration's

Washington Airports.”

Master

Plans

for

the

49 U.S.C. § 49104(a)(6).

Metropolitan

The FAA master

plans called for an expansion of the Metrorail system to Dulles
Airport.

See FAA Record of Decision, Dulles Corridor Metrorail

Project, 4, J.A. 238.
Therefore, to fulfill this mandate, 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.

Virginia

agreed

and

control

Virginia to MWAA in December of 2006.

transferred

from

The agreement gave MWAA

the power to set tolls on the Dulles Toll Road, but required it
to

use

toll-road

revenues

exclusively

improvements within the Dulles Corridor.
6

for

transportation

Appeal: 13-1076

Doc: 80

Filed: 01/21/2014

Pg: 7 of 17

C.
This arrangement has now been subject to repeated legal
challenges.

Almost

immediately

after

the

agreement

was

executed, two toll-road drivers sued in Virginia state court
seeking a declaration that MWAA’s use of toll-road revenue for
the

Metrorail

project

was

taxation

without

violation of the Virginia Constitution.
§

6.

representation

in

See Va. Const. art. I,

The Virginia court there determined that the tolls were

not taxes.

Gray v. Va. Sec’y of Transp., No. CL-07-203, Am.

Order (Va. Cir. Ct. Oct. 20, 2008), J.A. 258-59.
A second action was brought in 2009, this time in federal
court.
also

Among many other counts, the plaintiffs in that suit

contended

Metrorail

that

project

Constitution.

MWAA’s
was

an

use

of

toll

illegal

revenue

tax

to

under

the

fund

the

Virginia

That case, however, was ultimately dismissed for

lack of standing.

Parkridge 6, LLC v. U.S. Dep't of Transp.,

420 F. App'x 265, 267 (4th Cir. 2011).
D.
In April of 2011, appellants initiated this action seeking
to

enjoin

MWAA

from

using

toll-road

revenue

to

repay

bonds

issued to fund the Metrorail project and seeking refunds of all
excess tolls collected.
was

too

dismissed

generalized
the

to

complaint

Concluding that plaintiffs’ grievance
support
on

standing,

prudential
7

the

district

grounds.

court

Plaintiffs’

Appeal: 13-1076

Doc: 80

recourse,

proper

Filed: 01/21/2014

the

court

Pg: 8 of 17

concluded,

lay

in

the

political

process.
The court also deemed it necessary to reach the merits of
plaintiffs’

complaint

should

a

reviewing

disagree with its standing analysis.
other
§

things,

that

plaintiffs

had

court,

on

appeal,

The court concluded, among
withdrawn

their

42

U.S.C.

1983 claim during oral argument, that the toll charged on the

Dulles Toll Road was not a tax under Virginia law, and that
Congress’s

approval

restrictions

that

of

the

Virginia

interstate
law

might

compact
have

preempted

placed

on

any

MWAA’s

powers.
Appellants initially appealed this decision to the Federal
Circuit on the theory that MWAA is a federal instrumentality and
that the Federal Circuit therefore had jurisdiction under the
Little Tucker Act.

See 28 U.S.C. §§ 1295(a)(2) & 1346(a)(2).

The Federal Circuit concluded, to the contrary, that MWAA is not
a federal instrumentality.

Accordingly, it determined that it

lacked jurisdiction to hear the appeal and transferred the case
to us.

II.
Appellants’ argument proceeds from the premise that, under
the Virginia Constitution, the state legislature is unable to
delegate its taxing authority to an independent body.
8

Under

Appeal: 13-1076

Doc: 80

Filed: 01/21/2014

Article I, §

Pg: 9 of 17

6, of the Virginia Constitution, “taxes must be

imposed only by a majority of the elected representatives of a
legislative

body,

with

the

votes

representatives being duly recorded.”

cast

Virginia

could

not

legally

the

elected

Marshall v. N. Virginia

Transp. Auth., 657 S.E.2d 71, 79 (Va. 2008).
argue,

by

have

Thus, appellants

delegated

its

taxing

power to MWAA when Virginia agreed to the interstate compact.
Appellants argue that the toll paid by users of the Dulles
Toll Road is in fact a tax.

This is so, they contend, because

instead of merely defraying the cost of a driver’s use of the
road, a portion of the toll is used for other purposes, namely
the Metrorail expansion project.

Therefore, the argument goes,

because MWAA lacks the power to tax, the tolls are illegal, and
MWAA’s exaction and retention of those funds is a violation of
due process.
We note at the outset that plaintiffs identify no law that
would create a cause of action for this sort of constitutional
violation.
the

Due

While it is clear that they allege a violation of
Process

Clause

of

the

Fourteenth

Amendment,

their

argument is far less illuminating on the question of what law
authorizes a suit in federal court to redress it.

See Cale v.

City of Covington, 586 F.2d 311, 314 (4th Cir. 1978).
“[appellants’]

due

process

argument

sounds

like

a

Rather,

state

law

claim dressed up in due process clothing. . . . Such suits are
9

Appeal: 13-1076

Doc: 80

Filed: 01/21/2014

Pg: 10 of 17

rarely favored, for the Fourteenth Amendment is not meant to be
‘a font of tort law.’”

Mora v. City Of Gaithersburg, 519 F.3d

216, 231 (4th Cir. 2008) (quoting Cnty. of Sacramento v. Lewis,
523

U.S.

833,

848

(1998)).

We

need

not

grapple

with

this

complicated constitutional issue, however, because we conclude
that appellants’ argument suffers from a more fundamental flaw.
A.
Before reaching the substance of appellants’ argument, we
must also address the question of standing.
held

that

the

plaintiffs

present

a

The district court

“‘generalized

grievance’

shared in substantially equal measure by all or a large class of
citizens” and, accordingly, dismissed the complaint for lack of
standing, as a prudential matter.

See Bishop v. Bartlett, 575

F.3d 419, 423 (4th Cir. 2009) (internal quotations and citations
omitted).

We review this determination de novo.

S. Walk at

Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands,
LLC, 713 F.3d 175, 181 (4th Cir. 2013).

We are compelled to

disagree.
The

Supreme

Court

has

defined

a

generally

available

grievance as one that “claim[s] only harm to [plaintiffs’] and
every

citizen's

interest

in

proper

application

of

the

Constitution and laws, and seeking relief that no more directly
and tangibly benefits him than it does the public at large.”

10

Appeal: 13-1076

Doc: 80

Filed: 01/21/2014

Pg: 11 of 17

Lance v. Coffman, 549 U.S. 437, 439 (2007) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–561 (1992)).
But appellants’ claim here is more concrete.
may

bring

with

them

the

baggage

of

various

While they
policy-based

objections to the Metrorail expansion project, they also bear
the

concrete

harm

inflated tolls.

of

having

their

what

are,

in

their

view,

They seek tangible and particularized relief:

they want their money back.
and

paid

grievance

is

Moreover, they are not so numerous,

not

so

attenuated,

that

their

claim

amounts to a generalized, and impermissible, taxpayers’ claim.
See

Bishop,

appellants’

575

F.3d

claims

at

are

424.

We

barred

therefore

neither

by

conclude
the

that

standing

requirement of Article III of the United States Constitution nor
the

prudential

judicial

restrictions

power.

See

we

Frank

have

recognized

Krasner

on

our

Enterprises,

Ltd.

own
v.

Montgomery Cnty., 401 F.3d 230, 234 (4th Cir. 2005)
B.
We turn, then, to the substance of appellants’ argument.
Though

appellants

present

their

claim

as

arising

under

the

United States Constitution, their theory is parasitic on statelaw arguments.
what

The question before us, ultimately, relates to

fund-raising

delegated

to

the

powers
MWAA

the

under

General

Virginia

Assembly
law.

As

could
the

have

numerous

Virginia cases cited infra demonstrate, Virginia courts look to
11

Appeal: 13-1076

Doc: 80

Filed: 01/21/2014

Pg: 12 of 17

a substantial body of Virginia Constitutional law in answering
such a question.

We will do the same.

Under Virginia law “[a] tax is an enforced contribution
imposed by the government for governmental purposes or public
needs.

It

is

not

founded

upon

contract

or

agreement.”

Westbrook, Inc., v. Town of Falls Church, 39 S.E.2d 277, 280
(Va. 1946).
bona

fide

Virginia courts ask whether a given exaction is “a
fee-for-service

device.”

Eagle

Harbor,

or

an

L.L.C.

invalid

v.

Isle

revenue-generating

of

Wight

Cnty.,

628

S.E.2d 298, 304 (Va. 2006) (internal quotation marks omitted).
“[T]olls are user fees [and not taxes] when they are ‘nothing
more

than

an

facility.’”

authorized

charge

for

the

use

of

a

special

Elizabeth River Crossings OpCo, LLC v. Meeks, 749

S.E.2d 176, 183 (Va. 2013) (quoting Hampton Roads Sanitation
Dist. Comm. v. Smith, 68 S.E.2d 497, 501 (Va. 1952)).
The “fee-for-service” inquiry does not focus narrowly on
whether the fee is calculated to defray just the costs actually
incurred by the user.

Rather, Virginia law requires only that

there be a “reasonable correlation between the benefits of the
service provided and burdens of the fee paid.”

Tidewater Ass'n

of Homebuilders, Inc. v. City of Virginia Beach, 400 S.E.2d 523,
527

(Va.

1991).

The

fee

may

exceed

the

immediate

cost

of

providing the service, and the entity that levies the fee may
maintain a surplus in anticipation of future expenditures--that
12

Appeal: 13-1076

Doc: 80

Filed: 01/21/2014

Pg: 13 of 17

is, a fee may permissibly be used to fund future benefits for
users of the service as a group.

See Mountain View Ltd. P'ship

v. City of Clifton Forge, 504 S.E.2d 371, 375-76 (Va. 1998).
Here, the tolls paid by drivers on the Dulles Toll Road are
not taxes for precisely the reasons articulated by the Virginia
Supreme Court in Elizabeth River Crossings:
(1) the toll road users pay the tolls in exchange for
a particularized benefit not shared by the general
public, (2) drivers are not compelled by government to
pay the tolls or accept the benefits of the Project
facilities, and (3) the tolls are collected solely to
fund the Project, not to raise general revenues.
749 S.E.2d at 183.

We discuss each of these conclusions in

turn.
1.
First, it is clear that “toll road users pay the tolls in
exchange for a particularized benefit not shared by the general
public.”

Id.

Users of the Dulles Toll Road will benefit from

the Metrorail expansion project whether or not they ultimately
choose to ride it.

The record makes clear that the goal of the

project is not just to provide access to the Airport, but to
relieve traffic congestion throughout the corridor, including on
the Dulles Toll Road.
of

the

Virginia

Administration,

This is evident not only in the findings

General

but

also

Assembly
as

a

and

matter

the
of

Federal

common

Transit

sense:

the

planned expansion adds multiple stops both before and after the

13

Appeal: 13-1076

Doc: 80

Filed: 01/21/2014

Pg: 14 of 17

airport, on a route that closely follows the Dulles Toll Road
for the perfectly evident purpose of serving the commuters who
normally travel that route.
Thus, those who pay the toll receive, in exchange, both the
immediate benefit of the use of the road as well as the future
benefit of being able to choose between travelling by Metrorail
or driving on a road with reduced congestion.
guarantee

that

exclusive

beneficiary

require

such

each

a

driver
of

direct

who

those

pays
funds,

the

toll

will

Virginia

correspondence.

“reasonable correlation.”

While there is no

It

the

does

law

be

not

requires

only

a

See Tidewater Ass'n of Homebuilders,

400 S.E.2d. at 527.
2.
Similarly, as in Elizabeth River Crossings, “drivers are
not

compelled

by

government

to

pay

benefits of the Project facilities.”

the

tolls

or

accept

749 S.E.2d at 183.

the

There

are two aspects of this conclusion: the fee is both voluntarily
paid and the resulting benefits are voluntarily received.
the

latter

purpose.
despite

inquiry

is

counterintuitive,

it

serves

a

While
useful

Some exactions, such as a sales tax, remain taxes
being

levied

upon

voluntary

behavior.

Under

the

reasoning of Elizabeth River Crossings, what distinguishes these
taxes from user fees is that the government services purchased

14

Appeal: 13-1076

with

Doc: 80

their

Filed: 01/21/2014

proceeds

benefit

Pg: 15 of 17

every

citizen

whether she has asked for the benefit or not.

in

the

community,

Id. at 185.

Turning to the first inquiry, it is clear that the toll is
voluntarily paid.
Road.

Like

most

Nobody is forced to drive on the Dulles Toll
toll

roads,

the

Dulles

Toll

Road

merely

provides motorists with a faster alternate route to reach their
destinations in exchange for a fee.

A motorist who objects to

the toll may take another route.
The answer to the second question is no less clear.
funds

raised

for

the

benefit only

travelers

community

a

as

Metrorail
who

whole.

use

expansion

the

Receipt

of

Dulles
the

project
Corridor,

benefit

is

The

directly
not

the

therefore

voluntary in that it only accrues to those who have chosen to
travel in the corridor.
Dulles

Toll

Road

While this group is not limited only to

drivers,

this

prong

of

the

Elizabeth

River

Crossings test does not ask whether those who pay the toll are
the only ones who benefit.
benefit is voluntary.

It asks only whether receipt of the

There can be little doubt that use of the

Dulles transit corridor--whether by using the airport, driving
on

the

access

road,

or

driving

on

the

Dulles

Toll

collected

solely

to

Road--is

voluntary.
3.
Finally,
Project.”

“the

tolls

Id. at 183.

are

fund

the

The Metrorail expansion is part of the
15

Appeal: 13-1076

Doc: 80

Filed: 01/21/2014

Pg: 16 of 17

same project as the Dulles Toll Road.

As we have already noted,

the toll road and the Metrorail expansion run through the same
narrow transit corridor, serve many of the same areas, and will
benefit

many

Assembly

of

the

same

explicitly

commuters.

found

as

The

much

Virginia

when

it

General

designated

“transportation improvements in the Dulles Corridor,” including
“the Dulles Toll Road, the Dulles Access Road, . . . [and] mass
transit” as components of a single project for the purpose of
revenue-bond financing.

2004 Va. Acts ch. 807, J.A. 224.

The Virginia Supreme Court in Elizabeth River Crossings was
faced with arguments similar to those before us now: there, as
here,

appellants

characterized
sufficiently
project.

argued

them,

intertwined

the

common
revenue

regardless

various
to

be

of

particular

how

the

arteries

considered

parts

of

state

were
a

not

single

But the Virginia Supreme Court showed no appetite for

such an inquiry.
treat

the

that,

It took for granted the state’s choice to

individual

project.
would

It

flow

tunnels

and

instead

inquired

outside

benefit citizens at large.

of

bridges

the

as

into

project,

components
whether
so

the

of

a

toll

defined,

to

See Elizabeth River Crossings, 749

S.E.2d at 185.
Following

that

approach,

we

accept

Virginia’s

and

the

MWAA’s assessment that the Metrorail expansion and the Dulles
Toll Road are parts of a single interdependent transit project-16

Appeal: 13-1076

though

Doc: 80

we

Filed: 01/21/2014

observe

credulity.

once

more

Pg: 17 of 17

that

this

notion

hardly

strains

Because they are parts of the same project, tolls

charged on the Dulles Toll Road are not transformed into taxes
merely by being used to fund the Metrorail expansion.
The record does not indicate that the surplus tolls are
diverted outside those confines or are treated, in any sense, as
general

revenue.

Indeed,

the

very

basis

for

appellant’s

complaint is that the increased tolls are earmarked specifically
to fund the Metrorail expansion as provided under § 4.01(e) of
the operating agreement between Virginia and MWAA.

Therefore,

we conclude that the tolls collected are used solely to fund the
project.

III.
Under the Elizabeth River Crossings framework, therefore,
the tolls charged for passage on the Dulles Toll Road are user
fees, not taxes, under Virginia law.

Their collection by the

MWAA thus does not run afoul of the Virginia Constitution and,
accordingly,
motorists.

does

not

violate

the

due

process

rights

of

The district court’s order dismissing the complaint

is therefore
AFFIRMED.

17