PARKRIDGE 6, LLC et al v. UNITED STATES DEPARTMENT OF TRANSPORTATION et al

Filing 42

MEMORANDUM OPINION re: 25 MOTION to Dismiss by United States Department of Transportation, Ray LaHood, Peter M. Rogoff, Jeffrey Paniati, Roberto Fonseca-martinez, 27 MOTION to Dismiss by Pierce R. Homer, 29 MOTION to Dismiss by James Bennett. (See Memorandum Opinion For Details). Signed by District Judge Leonie M. Brinkema on 4/6/10. (nhall)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division
PARKRIDGE 6 LLC, et

Plaintiffs,

)

vU.S. DEPARTMENT OF TRANSPORTATION, et aL, Defendants.

)
) ) )

1:O9CV1312(LMB/IDD)

MEMORANDUM

OPINION

Before the Court are motions to dismiss from all defendants in this civil action brought by plaintiffs Parkridge 6 LLC

("Parkridge"),

a Virginia-based LLC which owns property adjoining

the proposed development route of the Dulles Corridor Metrorail

Project
Group"),

("Project"),

and the Dulles Corridor Users Group

("Users

a Virginia-based civic advocacy group established to

monitor the development of the Project.
States Department of Transportation

Defendants are the United
United States

("USDOT"),

Secretary of Transportation Ray LaHood in his official capacity,

Federal Transit Authority Administrator Peter M.

Rogoff in his

official capacity ("FTA"),

Federal Highway Administration Acting
(now replaced by

Deputy Administrator Jeffrey Paniati

Administrator Victor Mendez)

in his official capacity

("FHWA"),

and FHWA Virginia Division Administrator Roberto Fonseca-Martinez

in his official capacity

("FHWA")

(hereinafter "the Federal
Homer

defendants"); Virginia Secretary of Transportation Pierce R.

in his official capacity

("VDOT");

and the Metropolitan Washington

Airports Authority President James Bennett in his official

capacity

("MWAA").

The Project involves the expansion of the

Washington Metropolitan Metrorail system for twenty-three miles in
Northern Virginia to extend Metrorail service to Washington Dulles International Airport
well underway,

("Dulles Airport").

The Project,

which is

is having and will continue to have a major impact
including the area surrounding

on many northern Virginia areas,
Route 2 67,

a Virginia state highway.

In their fifteen-count,

13 0-page complaint,

plaintiffs allege

that the Project violates numerous provisions of federal and

Virginia law,

however,

the length and vagueness of the complaint

make it difficult to discern the bases for many of plaintiffs' claims, and even which defendants are involved. For example,

although the USDOT and Secretary LaHood are named in the caption
as defendants in this action, Counts none of the individual counts the "FAA" lists as a

them as defendants.

Four and Twelve name

defendant although that entity is not included in the caption and

it has neither been served with the complaint nor entered an
appearance. When asked during oral argument about the status of

the FAA,

plaintiffs'

counsel was unable to confirm whether

plaintiffs intended to include the FAA as a defendant in this
action.

If these pleading defects were the only problem the complaint

could be dismissed for failing to comply with Fed.R.Civ.P.

8(a) ,

which requires a "short and plain statement of the claim showing that the pleader is entitled to relief," and the plaintiffs could

be granted leave to file an amended complaint.

However,

as

discussed below,

the dismissal of this complaint must be with

prejudice because the plaintiffs lack standing to raise the
claims. In addition, several claims are barred under established
and several counts fail to Accordingly, the

principles of sovereign immunity,

allege a claim upon which relief can be granted.
defendants'
I.

motions

to dismiss will be granted.
IN THE COMPLAINT

THE ALLEGATIONS

Count One alleges

that

the

FTA violated 49 U.S.C.

§

5309,

which authorizes capital investment grants,
certain types of transit alternatives in its

by failing to include
"alternatives

analysis".

As a remedy,

plaintiffs seek an injunction declaring

that the alternatives analysis was insufficient as a matter of law and requiring the FTA to include
managed lanes and a formal just

"shared guideway congestion
in time ridesharing program," and

barring further expenditures until a full alternative analysis, including various environmental impact analyses are performed.

Complaint at HI 291-94.
Count Two alleges that the MWAA's collection of tolls along

Route 267 violates the Virginia Constitution because such

collection constitutes taxation by unelected officials.
295-319.
appears

Id.

at Ufl

This count does not request any specific remedy,
to be nothing more than a polemic against

and

the project.

Count Three alleges

that

the FTA,

by conditioning its

federal

funding on a contribution from Fairfax County,

has violated

Virginia law that requires legislative ratification of general
obligation bonds. Id. at Uf 320-26. Plaintiffs seek an

injunction to prevent the FTA from distributing any more federal
funds to the Project until Fairfax County has secured approval to
pay its share. Id. at f 327.

Count Four1 alleges that the MWAA has breached its lease
agreement with the FAA because the MWAA has failed to operate the Washington Reagan National and Dulles
"unit,"
328.

International Airports as a
Id. at H

which is an alleged requirement of the lease.

The remedy sought is an injunction against

the WMAA

prohibiting it from spending any money until

it has proposed and

justified a way of operating both airports as a unit.
343.

Id.

at ^f

Count
the

Five alleges a violation of unspecified federal
follow,

law by

FHWA and MWAA for a failure to

or obtain a waiver of,

federal highway safety standards.
plaintiffs

Id.

at ffl 344-47.

As a remedy,

seek an injunction against

further expenditures of
land

federal money for any work within the 4 00 foot strip of

leased from the FAA absent approval of highway improvement plans by the FHWA or a waiver by the FHWA if such waiver is found to be

in the public interest."

Id.

at 1

34 8.

Count Six alleges that the MWAA is acting beyond the scope of
Va. Code § 5.1-156 by expanding construction beyond the

Federal Airport Authority
in the caption of the

1 Counts Four and Twelve are brought in part against the
Complaint.

{"FAA"),

which is not a named defendant

appropriate strip of tolled highway along the Route 267 corridor

and its inner non-tolled lanes.

Id.

at flU 349-3 64.

Plaintiffs

seek a declaratory judgment that would confine the MWAA's

construction activities to
facilities,"
365-66,

"airport property"

or

"airport
id. at HU

and an injunction against further spending,

the result of which would obviously curtail among other

activities,
Corner area.

the construction of metro stations in the Tysons

Count Seven alleges

that the building of a railway exceeds

MWAA's statutory purpose,

id.

at 1M 368-69,

and seeks

"an

injunction against any construction approved or authorized by MWAA . . . outside the 400 foot boundaries of the original FAA lease .Id. at f 370.

for the Dulles Airport Access Highway."
Count Eight alleges that

the VDOT and the MWAA have violated

the Virginia Freedom of

Information Act

("VFOIA"),

Va.

Code

§

2.2-

3700 et seq..2

Id.

at H1 371-74.

Among the remedies sought is a
to the Virginia FOIA and an

declaration that the MWAA is

subject

order requiring that all documents
taxing and construction of Route

and records regarding the
be "provided any person [sic]

267

properly requests the

same."

.Id.

at

1M 375-76.

Count Nine alleges "Virginia Public
source,

that the VDOT is improperly applying the by engineering a sole(the MWAA)

Private Partnership Act"

noncompetitive contract with a private entity

declaration that

2 Count Eight only names the VDOT, but the remedy sought is a
the VFOIA covers both the VDOT and the MWAA.

without requiring the private entity to put up capital or share risks. Id. at fl1 377-78. As a remedy, plaintiffs want the
Id. at % 379.

Project rebid on a competitive basis.

Count Ten alleges that the VDOT violated the Virginia Public-

Private Transportation Act of 1995,
and associated regulations

Va.

Code

§§ 56-556 et seq..

in "hiding the vote and reasons

therefore which justified the sudden burial of an already approved

Bus Rapid Transit project in favor of a speculative rail venture."

Id. at Uf 380-418.

Plaintiffs seek an injunction of the Dulles
to

Rail plan and want the injunction to require the defendants consider specific alternative concepts.
Count Eleven alleges that

Id.

at UK 419-420.
failed to

the MWAA and VDOT have

cease collecting tolls

from Route 267 although the tolls have paid in violation of Va. Code §

for the highway's construction cost,
33.1-287,

which plaintiffs believe requires

cessation of tolls on

projects for which payment has been completed.
Among the remedies plaintiffs refund of seek is

.Id.

at Hfl 421-434.

an order requiring the is needed to to date.

all excessive Route 267

revenue beyond what

pay off its construction,

expansion,

and financing costs

Plaintiffs estimate that surplus to be $400 million.

Plaintiffs Id. at

also want an independent outside auditor to be appointed.

If 435-36.
Count Twelve alleges breach of the lease between the FAA and the MWAA because the MWAA has never completed a "Dulles Master

Plan".

Id.

at Uf 438-441.

Plaintiffs want the MWAA enjoined from

spending funds for the rail project until it is in compliance with
a Master Plan. Id. at H 442.

Count Thirteen alleges

that the MWAA and VDOT violated the

Virginia Constitution in that the debt Fairfax County will incur
by partially funding the Project was not passed by referendum.

Id. at HH 443-457.

Among the remedies sought is a declaratory

judgment that neither "Fairfax County nor MWAA as its de facto
representative and agent" may contract any debt without "a

majority vote of the qualified voters voting" on the debt and

plaintiffs also request an injunction against Fairfax's issuance
of debt without a vote.
Count

Id.

at
that

H1 458-59.
the MWAA3 violated 23 C.F.R. §§

Fourteen alleges

620,

635,

636,

and 710 by failing to complete a market validation

study to determine what private entities could bid to operate

Route 267.

Id.

at Uf 460-64

Plaintiffs seek an injunction

against any change to the toll structure or operation of Route 267

until completion of a proper market validation process that would
set the property price. Id. at K 465.

Count Fifteen,

brought against the MWAA and "the Commonwealth

of Virginia," alleges violation of state statutes concerning
prompt repayment of bonds from surplus revenues. Id. at ^ 466.

Plaintiffs request "immediate repayment of outstanding revenue
bonds prior to any other expenditure of funds along Route 267 or

contains no explanation of the FWHA's relevant activities.

3 Count Fourteen is also brought against the FHWA, but

Tysons Corner." II. STANDING

Id.

at

\

4 67.

The MWAA and the federal defendants have moved to dismiss the complaint on the ground that neither plaintiff has standing to raise the claims alleged. A plaintiff establishes standing by
and actual

demonstrating that it has a concrete, particularized,

or imminent injury in fact that is fairly traceable to a
defendant's conduct and will likely be remedied by a favorable
ruling.
Ir*c. ,

Friends of the Earth.
167, 180-81

Inc. v.

Laidlaw Envt'l Servs..
both

528 U.S.

{2000).

For the reasons below,

plaintiffs lack standing to bring this civil action against the
federal defendants and the MWAA.

Plaintiff Users Group clearly lacks standing to bring this

civil action against either group of defendants because the Users
Group does not identify any particularized injury, mentioning only
a general interest by concerned citizens in the progress of the

Project. dismiss, citizens'

As argued by the various defendants in their motions to the Users Group accordingly lacks standing because concerns are insufficient to establish standing under

both Article III of the United States Constitution and the

prudential prohibition against "generalized grievances," which are
"more appropriately addressed in the representative branches."

Elk Grove Unified Sch. Dist. v. Newdow.
See also Luian v. Defenders of Wildlife.

542 U.S.
504 U.S.

1 at 12
555

(2000).

(1992)

(holding that the prohibition against citizen standing is derived

from Article III); Ex parte Levitt.

302 U.S.

633

(1937)

(a person

cannot gain standing as a citizen claiming a right to have the
government follow the law) .

Parkridge similarly lacks standing to bring this civil

action.

Parkridge claims it is injured by special taxes and by
and the

the tolls collected on Route 2 67 that fund the Project, following consequences of the Project:

increased congestion,

increased air pollution, and unsafe driving conditions.

None of

these injuries are sufficient to establish standing for Parkridge. Parkridge's allegations of increased congestion,
air pollution,

increased

and unsafe driving conditions cannot support because, as the MWAA has argued, an LLC,

standing for Parkridge 6,

does not drive a car or breath the air.

Parkridge has not alleged

third-party standing on behalf of its retail employees or
customers, but even if it had, it would not qualify for third-

party standing for numerous reasons.4

Parkridge's reliance on

relationship between the advocate and the third party such as where the individual seeking standing is part of the third party's constitutionally protected activity, see Pierce v. Society of Sisters, 268 U.S. 510 (1925), or where doctors raise the rights of their patients, see Sincrleton v. Wulff. 428 U.S. 106 (1976). Although in some circumstances, vendors can assert the rights of their customers, see Craig v. Boren. 429 U.S. 190 (1976), this is only permitted when the vendor suffers "direct economic injury." Id. at 194 ("She is obliged either to heed the statutory discrimination, thereby incurring a direct economic injury through license." (internal quotation marks omitted)). Parkridge has alleged only a speculative, nonspecific future injury caused by a possible decrease in customers who choose not to visit Parkridge
the constriction of her buyers' market, or to disobey the statutory command and suffer . . . sanctions and perhaps loss of

party is unlikely to assert his or her own rights, see Eisenstadt v. Baird. 405 U.S. 438, 446 (1972), where there is a close

4 Third-party standing is permitted only where the third

payment of tolls fails to support standing for the same reasons,

and its reliance on payment of special transportation taxes to Fairfax County cannot establish standing because a tax paid to Fairfax County is not traceable to any of the named defendants.
Neither of the plaintiffs have alleged a valid basis for

standing as to any of the federal defendants or the WMAA, therefore the Complaint must be dismissed with prejudice as to
these defendants.
III. SOVEREIGN IMMUNITY OF THE VDOT

Even if the plaintiffs had standing to bring their claims

against the VDOT,

those claims would have to be dismissed under
Plaintiffs allege that the
has failed to

the doctrine of sovereign immunity.5
VDOT,

an agency of the Commonwealth of Virginia,

comply with the Virginia Public Private Partnership Act,

the

Virginia Public Private Transportation Act,
287.

and Va.

Code § 33.1-

Sovereign immunity clearly prevents federal courts from

ordering state officials to conform their conduct to state law.
Pennsurst State School & Hospital v. Halderman. 465 U.S. 89, 106

(1984); Cir.

Bragg v.

West Virginia Coal Ass'n.

248 F.3d 275,

293

(4th

2001)

("[S]overeign immunity also bars a court's grant of any whether retrospective or prospective, based upon a

type of relief,

State official's violation of State law.").

As the VDOT correctly

due to increased tolls. That allegation is nowhere near the "direct economic injury" present in Craig.

plaintiffs'

5 The VDOT did not move to dismiss the complaint based on
lack of standing.
10

argues in its pleadings, the plaintiffs have the burden of showing

that the Commonwealth has waived its sovereign immunity.
United States. 409 F.3d 646, 651 {4th Cir. 2005).

Welch v.

In their opposition to the VDOT's Motion to Dismiss

plaintiffs raise two arguments.

First they rely on one case, Gray
662 S.E.2d 66 (Va. 2008),

v. Virginia Secretary of Transportation.

to argue that because the Virginia Supreme Court found that

sovereign immunity was waived as to claims involving violations of certain self-executing provisions of the Virginia Constitution,
the plaintiffs may sue VDOT in federal court. What the plaintiffs

miss in their reliance on Gray is that the decision is narrowly limited to certain specific constitutional provisions,
deal with the statutes cited by the plaintiffs, and,

does not

most

significantly,

is silent as to waiver of sovereign immunity in a
The VDOT correctly responds that a state's

federal proceeding.

waiver of its sovereign immunity from suit in its own state courts
does not waive its immunity from suit in federal court. in re
7 F.3d

Secretary of Department of Crime Control and Public Safety.

1140,

114 6-47

(4th Cir.

1993).

Because a waiver of sovereign
and there is no indication

immunity must be clear and unambiguous,

in either the Virginia Constitution or any of the Virginia
statutes cited by plaintiffs that the Commonwealth intended to

waive its immunity from suit in federal court on the issues raised

11

by plaintiffs,

their claims against the VDOT will be dismissed.6

Accordingly, all of the plaintiffs' claims against the VDOT will
be dismissed as barred by sovereign immunity.
IV. ADDITIONAL PROBLEMS WITH THE COMPLAINT

Even if plaintiffs had Article III standing,
to Counts Four, Five, Six, Seven,

their claims as
which

Twelve and Fourteen,

allege various violations of the contract between the MWAA and the FAA for the land on which the Project is taking place, violations
of various federal regulations concerning highway safety and market validation studies,
statute,

and violations of the MWAA's enabling

would have to be dismissed as a matter of law for failing

to statute a claim under Fed.R.Civ.P.12(b)(6).

The MWAA correctly

points out that the plaintiffs do not have standing to bring these
claims as there is no private right of action to enforce the
MWAA's contracts or its compliance with the law,
have not identified any such right.

and plaintiffs

Counts Two and Thirteen,

which allege that the MWAA violated

provisions of the Virginia Constitution,

Count Eight,

which

alleges a violation of the VFOIA, that the MWAA violated Va. because each count assumes,

and Count Fifteen, which alleges

Code § 33.1-287, must also be dismissed contrary to federal law, that the MWAA

is required to follow state law or state constitutional
requirements.

Plaintiffs' second argument, that invocation of a federal court's suppliemental jurisdiction under 28 U.S.C. § 1367, trumps sovereign immunity is not supported by any relevant authority.
12

The MWAA is "a political subdivision constituted to operate and improve the Metropolitan Washington Airports serving the
Metropolitan Washington area[,]" which exists "independent of

Virginia and its local governments, the District of Columbia, and
the United States Government[.]" 49 U.S.C. §§ 49106(a)(2) and (3).

It was created under an interstate compact between the

Commonwealth of Virginia and the District of Columbia approved by

the United States Congress pursuant to the Compact Clause of the

United States Constitution.

U.S.

Const, art I,

§ 10.

The MWAA's
See

Compact is therefore considered a "law of the United States."
New Jersey v. New York. 523 U.S. 767, 811 (1988) {Congressional

approval

"transforms an interstate compact within

[the Compact

Clause]

into a law of the United States.").
revise, charge,

MWAA's Compact gives
and collect rates,
Va.

it broad authority to "fix,
fees . . .

and other charges for the use of the airports."
49 U.S.C. § 49106(b)(1)(E)

Code § 5.1-156(A)(8);

(MWAA "shall be

authorized ...

to levy fees or other charges"). . .

The "airports"

are defined to include the "Dulles
the Route 267 toll road was built.

. Right-of-way" on which
§ 49103 (3)-(4); Va.

49 U.S.C.

Code § 5.1-152.

The MWAA is therefore authorized to levy tolls on

the roadway,

and any Virginia law or provision of the Virginia

Constitution that conflicts with that authority is preempted under the Supremacy Clause of the United States Constitution.
Const, art. VI, § 2. See also AES Sparrows Point PNG.

U.S.
LLC v.

Smith,

527 F.3d 120,

125

(4th Cir.

2008)("Under the Supremacy

13

Clause, state law that conflicts with federal law is without

effect." (internal quotations omitted)).
and must be dismissed.

Accordingly, Counts Two,

Eight, Thirteen, and Fifteen are preempted by the MWAA's Compact

Count Eight would have to be dismissed on the additional ground that the VFOIA does not apply to an entity unless it is

specifically included in the VFOIA statute.

The VFOIA applies

only to meetings of "public bodies," and to "public records,"

which are defined as records of a "public body."

A "public body,"

in turn, is defined as any "board, bureau, commission, district or
agency of the Commonwealth or of any political subdivision of the
Commonwealth." Va. Code §§ 2.2-3707(A), 3704(A), and 2701.

Because the MWAA is not a board, bureau, commission, district or
agency of the Commonwealth or of any political subdivision of the Commonwealth, 49 U.S.C.
dismissed.
V. CONCLUSION

§ 49106(a)(2), Count Eight must be

For all of these reasons, the Complaint in its entirety will

be dismissed with prejudice by an appropriate Order to be issued
with this Opinion.

Entered this

V

day of April,

2010.

Alexandria,

Virginia

Leonie M. Brinkema United States District Judge

14