KERPEN et al v. METROPOLITAN WASHINGTON AIRPORTS AUTHORITY et al

Filing 131

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 05/30/2017. (mpha)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

PHIL KERPEN, Individually and
on behalf of All Others
Similarly Situated, et al.,
Plaintiffs,
v.
METROPOLITAN WASHINGTON
AIRPORTS AUTHORITY, et al.,
Defendants.

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M E M O R A N D U M

1:16cv1307 (JCC/TCB)

O P I N I O N

This 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].

Plaintiffs – 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.

Plaintiffs 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’
2

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).
I. Background
Facts 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 Plaintiffs.
A.

MWAA’s Origins

Ronald Reagan Washington National Airport and
Washington Dulles International Airport are two of three major
airports serving the Washington, D.C., metropolitan area.
Compl. [Dkt. 37] ¶ 26.

Am.

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).

3

Originally, both National and Dulles were managed by
the Federal Aviation Administration (FAA).
¶ 26.

Am. Compl. [Dkt. 37]

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.”
257.

CAAN, 501 U.S. at

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).1

The

commission ultimately determined that “Washington National and
Washington Dulles International Airports should be transferred

1

The commission included Linwood Holton, Jr., former
Governor of Virginia; Franklin E. White, representing Governor
of Virginia Charles S. Robb; John W. Warner, U.S. Senator from
Virginia; Frank Wolf, U.S. House Representative from Virginia;
Martha V. Pennino of the Fairfax County, Virginia Board of
Supervisors; Pauline A. Schneider, representing District of
Columbia Mayor Marion Barry, Jr., Betty Ann Kane of the District
of Columbia Council; Harry R. Hughes, Governor of Maryland; Paul
S. Sarbanes, U.S. Senator from Maryland; Steny H. Hoyer, U.S.
House Representative from Maryland; and Scott Fosler, Councilman
from Montgomery County, Maryland. See 131 Cong. Rec. S9609.
The commission also included three representatives from airportrelated industries and William J. Ronan, previous chairman and
board member of the Port Authority of New York and New Jersey.
4

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.

In 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 11member 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.”
5.1-155.

D.C. Code § 9-904; Va. Code §

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 § 5.1-156.
The 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
5

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).

Congress 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.
Defs. Exh. 1 [Dkt. 88-1] at 2, 123–24, 131.
6

See Federal

“On March 2, 1987,

the Secretary of Transportation and MWAA entered into a longterm lease complying with all of the conditions specified in the
then recently enacted Transfer Act.”

CAAN, 501 U.S. at 261.

The 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.
F.3d 97 (D.C. Cir. 1994).

See Hechinger v. MWAA, 36

Accordingly, MWAA is now governed

solely by its 17-member Board.
The 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).
7

“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.”
B.

Id. § 49104(a)(2)(A)(iv).

The Dulles Toll Road and Metrorail Project

“To 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.
In 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

8

Airport.”

MWAA Mot. Exh. 2 [Dkt. 93-2] ¶ 13.

operating the tollway in 1984.

Virginia began

Am. Compl. [Dkt. 37] ¶ 40.

In the 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.
298.

Corr II, 740 F.3d at

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.
93-5] § 6.01.

MWAA Mot. Exh. 5 [Dkt.

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.
Pls. Mot. for Summ. J. Exh. 11 [Dkt. 52-1].

9

See

C.

Corr v. MWAA

The 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.2

2

The Court further found that the Corr plaintiffs
lacked prudential standing, see 800 F. Supp. 2d at 754, but the
Fourth Circuit ultimately reversed this portion of the Court’s
ruling.
10

After 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.
The 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.
II, 740 F.3d at 300.

See Corr

The Fourth Circuit found that MWAA had

levied no tax, and that the tollway constituted a “fee-forservice” arrangement that did not violate Virginia law.
at 302.

See id.

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.
D.

The Present Proceedings

Plaintiffs originally filed this putative class action
in the U.S. District Court for the District of Columbia on July
11

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. 26].3
The 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.
On 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

3

It bears noting that Judge Jackson transferred the
case in part because Plaintiffs’ decision to file suit in the
District of Columbia “appear[ed] to be the result of forum
shopping prompted by plaintiffs’ unsuccessful similar challenges
brought in the Fourth Circuit.” See Mem. Op. and Order [Dkt.
26] at 9 n.1.
12

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 for decision.
II. Legal Standard
In 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.”
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Bell

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).

13

Generally, 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).
III. Analysis
A.

MWAA does not violate the Compact Clause.

Count I of Plaintiffs’ Complaint alleges that MWAA did
not result from a valid interstate compact under the Compact
Clause, U.S. Const. art. I, § 10, cl. 3, because the Clause
applies only to “states” and the District of Columbia is not a
state.

Plaintiffs contend that “[b]ecause MWAA is not a valid

interstate compact entity and has no authority under the Compact
Clause, MWAA has no legitimate constitutional existence as a
governmental body.”

Am. Compl. [Dkt. 37] ¶ 102.

Article I, section 10, clause 3 of the U.S.
Constitution provides in relevant part that “[n]o State shall,
without the Consent of Congress . . . enter into any Agreement
or Compact with another State[.]”

“By vesting in Congress the

power to grant or withhold consent, or to condition consent on
the States’ compliance with specified conditions, the Framers
sought to ensure that Congress would maintain ultimate
supervisory power over cooperative state action that might
14

otherwise interfere with the full and free exercise of federal
authority.”

Cuyler v. Adams, 449 U.S. 433, 439–40 (1981).

Where an agreement between states would tend to “‘increase [the]
political power in the states, which may encroach upon or
interfere with the just supremacy of the United States,’”
congressional approval is required.

U.S. Steel Corp. v.

Multistate Tax Comm’n, 434 U.S. 452, 468 (1978) (quoting
Virginia v. Tennessee, 148 U.S. 503, 518 (1893)).
“Congressional consent,” however, “is not required for
interstate agreements that fall outside the scope of the Compact
Clause.”

Cuyler, 449 U.S. at 440.

The Clause is “not to be

construed to limit the variety of arrangements which are
possible through the voluntary and cooperative actions of
individual States with a view to increasing harmony within the
federalism created by the Constitution.”

People of State of

N.Y. v. O’Neill, 359 U.S. 1, 6 (1959).
The Compact Clause serves as a limitation on state
power.

If, as Plaintiffs contend, the District is not a “state”

within the meaning of the Compact Clause, then the Compact
Clause limitation does not apply to the District.

That would

leave the District more, not less, free to make agreements with
states.

The District would not, as Plaintiffs claim, lack some

positive “authority” to enter into interstate agreements
conferred by the Compact Clause.
15

See Am. Compl. [Dkt. 37]

¶ 102.

The only case Plaintiffs cite to support their contrary

position, Alabama v. North Carolina, 560 U.S. 330, 352 (2010),
does not so much as suggest what Plaintiffs claim it holds.
There can be little doubt that Congress delegated to
the District the power to enter into agreements with states
generally.

Congress enjoys “plenary” freedom in the District of

Columbia to “exercise all the police and regulatory powers which
a state legislature or municipal government would have in
legislating for state or local purposes.”

Palmore v. United

States, 411 U.S. 389, 397 (1973); see also Atl. Cleaners & Dyers
v. United States, 286 U.S. 427, 435 (1932) (Congress enjoys “all
the powers of legislation which may be exercised by a state in
dealing with its affairs” in the District).

Except as limited

by the Compact Clause, state legislatures are generally free to
undertake “voluntary and cooperative actions” with other states.
O’Neill, 359 U.S. at 6.

Congress has delegated its legislative

power under the District Clause, U.S. Const. art. I, § 8, cl.
17, to the District – including the ability to “contract and be
contracted with,” D.C. Code § 1-102 – and did so “subject to all
the restrictions and limitations imposed upon the states by the
10th section of the 1st article of the Constitution of the
United States,” D.C. Code § 1-203.02, including the Compact

16

Clause.4

The District may therefore participate in “voluntary

and cooperative” interstate endeavors, O’Neill, 359 U.S. at 6,
in much the same manner as a state.5
Plaintiffs’ brief arguments to the contrary in their
Reply are unsupported and unconvincing.

First, Plaintiffs argue

that because the Home Rule Act delegated legislative power with
respect to “all rightful subjects of legislation within the
District,” D.C. Code § 1-203.02 (emphasis added), the District’s
authority does not extend to legislation touching on matters
outside of the District.

It is not clear that home rule would

be possible in the District of Columbia were the Court to accept
this strained reading of the Home Rule Act.

See, e.g., D.C.

Code Ann. §§ 7-2331, et seq. (interstate agreement providing for
mutual aid and disaster relief in emergencies); D.C. Code § 91117.01 (interstate agreement providing for management of
bridges into and out of the District).

Moreover, Plaintiffs’

interpretation conflicts with the latter half of the cited
4

Notably, “there is no constitutional barrier to the
delegation by Congress to the District of Columbia of [its] full
legislative power” within the District. D.C. v. John R.
Thompson Co., 346 U.S. 100, 109 (1953).
5

The Court notes that the District in fact participates
in numerous interstate agreements, including other federally
recognized interstate compacts. See Fed. Dfs. Mem. in Supp. of
Mot. to Dismiss [Dkt. 88] at 25 n.12. Plaintiffs assert that
other interstate compacts including the District are valid
because they involve two or more states in addition to the
District. Plaintiffs, however, fail to cite any supporting
authority and make no attempt to explain their position.
17

provision, which states that the District’s legislative power is
“subject to all the restrictions and limitations imposed upon
the states by the 10th section of the 1st article of the
Constitution of the United States.”

D.C. Code § 1-203.02.

Much

of this part of the Constitution, including the Compact Clause,
governs the activities of a state touching on matters beyond its
own borders.

Plaintiffs’ novel interpretation of the Home Rule

Act would render this statutory provision mere surplusage, in
addition to producing absurd results.
Plaintiffs argue further that “Congress cannot
constitutionally delegate to the District the powers of a state
as a member of the Union,” as this “would violate Art. IV, § 3,
which provides the procedures for admitting new States.”
Rep. [Dkt. 103] at 27.

This is a non sequitur.

Pls.

The question

before the Court is not whether Congress could have delegated
all powers attendant statehood to the District of Columbia, but
whether it has permissibly delegated the power at issue here –
to wit, the power to enter into agreements with states.

As

discussed above, Congress could and did delegate this power to
the District.

This ability is not uniquely reserved to

“member[s] of the Union.”

Indeed, it is freely exercised by

private and governmental actors of all stripes.

While

Plaintiffs argue that agreements between states are somehow
qualitatively different from other agreements, the case upon
18

which they rely for that proposition itself states otherwise.
See Doe v. Pennsylvania Bd. of Prob. & Parole, 513 F.3d 95, 105
(3d Cir. 2008) (finding that an interstate compact is a contract
subject to the general principles of contract law).
In light of the above, the Court finds Plaintiffs’
Compact Clause claim puzzling.

Assuming that the Compact Clause

applies to the interstate agreement creating MWAA, Congress gave
its express consent through the Transfer Act.
requirements are thus satisfied.

The Clause’s

If, on the other hand,

Plaintiffs are correct and the Compact Clause does not apply,
then Congress’ consent was unnecessary and irrelevant for
purposes of the Compact Clause.

See Cuyler, 449 U.S. at 440.

Either way, the Compact Clause casts no doubt on the legality of
MWAA or its actions.
Plaintiffs respond only that “MWAA purports to be a
compact entity” and so “must stand or fall as such.”
[Dkt. 103] at 27.

Pls. Rep.

Plaintiffs, however, again provide no support

for this bald assertion, and the Court fails to see its logic.
As discussed above, the Compact Clause does not confer any
positive authority on entities constituted as interstate
compacts.

Nor, for that matter, does it penalize entities that

falsely “purport” to be interstate compacts.
If Plaintiffs mean to imply that Congress cast doubt
on MWAA’s validity by treating it as an interstate compact and
19

passing the Transfer Act, this argument turns the Compact Clause
on its head.

It treats the Clause as a limitation on Congress’

power – as backward a reading of that constitutional provision
as can be.

See Detroit Int’l Bridge Co. v. Gov’t of Canada, 192

F. Supp. 3d 54, 71 (D.D.C. 2016).

As MWAA aptly points out, the

Compact Clause “does not say, nor has it ever been read to mean,
that Congress may only consent to compacts between States of the
Union.”

MWAA Rep. [Dkt. 115] at 8.

In the absence of such a

restriction, Congress was plainly empowered to enact the
Transfer Act.

See, e.g., U.S. Const. art. I, § 8, cl. 18.

Were it necessary to reach the question, however, the
Court would find that the District of Columbia is a “state”
within the meaning of the Compact Clause.

“Whether the District

of Columbia constitutes a ‘State or Territory’ within the
meaning of any particular statutory or constitutional provision
depends upon the character and aim of the specific provision
involved.”
(1973).

District of Columbia v. Carter, 409 U.S. 418, 420

The object of the Compact Clause is to safeguard

federal supremacy in matters of federal interest from intrusion
by the states.

See Cuyler, 449 U.S. at 439–40.

The federal

government has delegated legislative autonomy to the District of
Columbia comparable to that of a state.

Subject to certain

restrictions, the District may use that power to do things with
which the federal government disagrees.
20

See, e.g., William

Cummings, Pot Now Legal in D.C. Despite Threats from Congress,
USA Today (Feb. 25, 2015), https://tinyurl.com/ltf96ql.

Indeed,

the fact that Congress delegated legislative power to the
District “subject to all the restrictions and limitations
imposed upon the states by the 10th section of the 1st article
of the Constitution of the United States,” D.C. Code § 1-203.02,
demonstrates that Congress intended to delegate a degree of
autonomy to the District giving rise to Compact Clause concerns.
Construing the Compact Clause to exclude the District of
Columbia would therefore be contrary the Clause’s purpose.

But

again, this has little bearing on MWAA’s legitimacy, as Congress
consented to MWAA’s creation and so satisfied the Compact
Clause’s requirements.6
In sum, the Compact Clause does not provide an avenue
for Plaintiffs to attack MWAA’s legitimacy.

Accordingly, Count

I of Plaintiffs’ Amended Complaint fails to state a claim upon
which relief may be granted.

6

At the hearing on this matter, Plaintiffs argued
without support that the District of Columbia is merely the
federal government’s agent. Courts, however, have generally
reached the opposite conclusion. See, e.g., Sindram v. United
States, 67 Fed. Cl. 788, 794 (2005) (“[A]s a matter of law, the
District of Columbia is not an agent of the United States
Government.”); cf. United States v. Jackson, 163 F.3d 599 (4th
Cir. 1998) (“Courts addressing this issue have consistently held
that the District of Columbia is not a department or agency of
the United States.”).
21

Count II of Plaintiffs’ Amended Complaint also
ostensibly arises under the Compact Clause.

The wide-ranging

allegations under that heading invoke a variety of doctrines
having little to do with the Compact Clause.

Ultimately,

Plaintiffs posit that “the federal authority delegated to MWAA
is improper under the Compact Clause,” and MWAA’s authority
“cannot flow from the Compact Clause, which is MWAA’s only
claimed source of power to exercise that authority.”
[Dkt. 37] ¶ 110.

Am. Compl.

This, again, misreads the Compact Clause as

more than a limitation on the ability of states to enter into
agreements that might encroach upon federal interests.
Cuyler, 449 U.S. at 440.

See

Moreover, as discussed more fully

below, MWAA’s power is not federal in nature.

The Court

therefore finds that Count II of Plaintiffs’ Amended Complaint
likewise fails to state a claim.
B. MWAA does not exercise federal power.
Counts III through V of Plaintiffs’ Amended Complaint
allege, in various formulations, that the federal government has
improperly delegated federal authority to MWAA.

As Plaintiffs

concede, Counts III, IV, and V of their Amended Complaint rest
on “the premise that MWAA exercises federal power.”
Supp. of Mot. for Partial Summ. J. [Dkt. 8] at 8.
rejects that premise.

22

Pl. Mem. in
The Court

Plaintiffs argue first that the Supreme Court held in
CAAN, 501 U.S. 252, that “members of MWAA’s Board are federal
‘officers’ exercising federal power.”
for Partial Summ. J. [Dkt. 8] at 9.

Pl. Mem. in Supp. of Mot.
That is simply false.

CAAN

did not concern MWAA’s Board, but rather its now-defunct Board
of Review.

The latter was empowered to overturn the decisions

of MWAA’s Board and was composed of “nine Members of the
Congress, eight of whom serve[d] on committees with jurisdiction
over transportation issues and none of whom [was] a Member from
Maryland, Virginia, or the District of Columbia[.]”
U.S. at 259.

CAAN, 501

Congress insisted on the Board of Review to

alleviate the concern of some members that “by leasing [National
and Dulles] to a local authority, [Congress] would be losing
control over them” entirely.

Id. at 268 (quoting 132 Cong. Rec.

32143 (1986) (statement of Rep. Hammerschmidt)).
The Supreme Court found the Board of Review to be an
agent of Congress that either (1) improperly exercised federal
executive power or (2) failed to observe the bicameral and
presentment procedures necessary to exercise federal legislative
power.

See id. at 274.

The Court did not address whether MWAA

itself exercises federal power.

The Court did, however,

strongly suggest the opposite, concluding that the Board of
Review was a mechanism through which “Congress imposed its will
on the regional authority created by the District of Columbia
23

and the Commonwealth of Virginia.”

Id. at 276.

The

characteristic of the Board of Review the Supreme Court deemed
“[m]ost significant” to its analysis – the limitation of
membership to representatives of Congress – is not shared by
MWAA’s Board. See id. at 266-67.7
The only Court to have squarely considered whether
MWAA exercises federal power concluded that it does not.

As

discussed above, the Federal Circuit found in Corr I that “MWAA
possesses few, if any, of the hallmarks of a federal
instrumentality identified” by the Supreme Court.
1337-38.

702 F.3d at

That court noted that “though it may partly owe its

existence to an act of Congress, MWAA was in large part created
by, and exercises the authority of, Virginia and the District of
Columbia.”

Id. at 1337.

Furthermore, “while MWAA does serve

limited federal interests, it serves regional and state
interests as well.”

Id.

Finally, the court found that MWAA is

not subject to meaningful federal control.

See id.

The court

thus concluded that the factors identified by the Supreme Court

7

In their Reply, Plaintiffs contend that MWAA’s Board
“inherited the Board of Review’s powers.” Pls. Rep. [Dkt. 103]
at 4. It is unclear how MWAA’s Board could inherit the power to
veto its own decisions. Regardless, MWAA’s Board certainly did
not inherit the seats in Congress held by members of the Board
of Review. The Court fails to see how the loss of a federal
layer of review over MWAA’s actions somehow transformed “the
regional authority created by the District of Columbia and the
Commonwealth of Virginia” into an agent of Congress like the
Board of Review. CAAN, 501 U.S. at 276.
24

in cases like Lebron v. Nat’l R.R. Passenger Corp., 513 U.S.
374, 397–98 (1995), demonstrate that MWAA is not federal in
nature.

Corr I, 702 F.3d at 1338.
Independently applying the Lebron factors, the Court

agrees with the Federal Circuit’s reasoning.

First, MWAA was

created by legislation enacted by the District of Columbia and
Virginia.
et seq.

See D.C. Code §§ 9-901, et seq.; Va. Code §§ 5.1-152,
Throughout their various filings, Plaintiffs

mischaracterize the nature of Congress’ contribution, contending
that the Transfer Act conferred upon MWAA its various powers.
See, e.g., Pls. Rep. [Dkt. 103] at 5.

It did not.

The Transfer

Act instead merely recognized and consented to the powers
conferred upon MWAA by Virginia and the District of Columbia.
See Corr I, 702 F.3d at 1337 (“The Airports Act, however,
represents Congressional approval of Virginia’s and the District
of Columbia’s compact-legislation authorizing the establishment
of MWAA rather than the creation of the Authority in the first
instance.”); see also Seattle Master Builders Ass’n v. Pac. Nw.
Elec. Power & Conservation Planning Council, 786 F.2d 1359, 1365
(9th Cir. 1986) (“As with any compact, congressional consent did
not result in the creation but only authorized the creation of
the compact organization and the appointment of its
officials.”).

Indeed, the Transfer Act itself expressly

recognizes that MWAA exercises powers “conferred upon it jointly
25

by the legislative authority of Virginia and the District of
Columbia,” not federal authority delegated via the Transfer Act.
49 U.S.C. § 49106(a)(1)(A).
Plaintiffs argue that, notwithstanding that fact,
“MWAA’s history tells the story of a body shaped, authorized and
overseen by Congress at every step.”

Pls. Rep. [Dkt. 103] at 6.

Plaintiffs essentially argue that MWAA was foisted upon Virginia
and the District by the federal government.

This, however,

elides the legislative history underpinning, and congressional
findings accompanying, the Transfer Act.

For example, MWAA was

proposed by a commission composed primarily of representatives
of Virginia, Maryland, and the District, see 131 Cong. Rec.
S9608, S9609, and enjoyed strong regional support. See, e.g,
Commonwealth of Virginia Amicus Curiae Brief in Support of
Dismissal [Dkt. 83-1] at 1-4.

The Transfer Act itself states

that the impetus for MWAA’s creation was the “perceived limited
need for a Federal role in the management of [National and
Dulles] and the growing local interest” in the same.
§ 49101(7).

49 U.S.C.

While the federal government played a role in

MWAA’s creation, that role was not so dominant as to somehow
render MWAA a de facto federal entity.
Similarly, Plaintiffs contend that “MWAA was created
to pursue Congress’s policy goals.”
There is some truth to that.

Pls. Rep. [Dkt. 103] at 8.

The policy goal in question,
26

however, was that of relinquishing control of National and
Dulles to an entity operating at the “local/State level.”
U.S.C. § 49101(7).

49

As discussed above, this was a policy goal

shared by Virginia and the District of Columbia.

It is

difficult to see how an entity created in the pursuit of this
particular policy would be federal in nature, rather than a
“local/State” creation.

Id.

“[T]he fact that federal and state

entities act toward a common goal does not convert the state —
or interstate — body into a federal one.”

New York v. Atl.

States Marine Fisheries Comm’n, 609 F.3d 524, 533 (2d Cir.
2010).8
Plaintiffs argue further that by managing federal
property, MWAA “serves a function expressly granted to Congress
by the Constitution, namely, to make ‘Rules and Regulations
respecting the Territory or other Property Belonging to the
United States[.]’”

Pls. Rep. [Dkt. 103] at 7 (quoting U.S.

Const. Art. 1, § 3, cl. 2).

But as Plaintiffs concede, see id.

at 8, the mere fact that MWAA leases federal property does not
transform it into a federal instrumentality.

See Buckstaff Bath

House Co. v. McKinley, 308 U.S. 358, 362 (1939); see also United
8

Plaintiffs also argue that both the federal government
and the Commonwealth of Virginia have made isolated statements
in other cases indicating that MWAA exercises federal power.
Plaintiffs, however, do not contend that Defendants are estopped
from arguing otherwise, or that the Court is somehow bound to
follow these prior statements. As such, it’s not clear that the
prior statements have any bearing on the present proceedings.
27

States v. Muskegon Twp., 355 U.S. 484, 486 (1958) (holding that
operation of federally-owned manufacturing plant did not render
a private company a federal instrumentality).
Plaintiffs press the point nonetheless, contending
that MWAA is not a typical lessee as it was “created on the
Federal Government’s terms to exercise the federal Congress’s
own power over federal property[.]”

Pls. Rep. [Dkt. 103] at 8.

As discussed above, that is not an accurate description of MWAA.
Regardless, Plaintiffs fail to explain how MWAA exercises power
reserved to Congress more than any other lessee of federal
property.

There is nothing inherently “federal” about the

operation of National and Dulles.

With the exception of

National and Dulles, the federal government has never owned or
operated major commercial airports.

See CAAN, 501 U.S. at 256.

Indeed, it seems that part of the impetus for MWAA’s creation
was a general sense that the federal government has little
business running a commercial airport.

See 131 Cong. Rec. S9608

(noting that “[b]y 1948, [National] was identified as
inappropriate for operation as a conventional federal agency,”
and “many attempts were made to reorganize first National, and
later both National and Dulles into a government corporation”
before the United States ultimately transferred control of the
airports to a local authority).

Congress itself recognized in

the Transfer Act that federal control of a major commercial
28

airport is anomalous, reasoning that transferring control of
National and Dulles to the “local/State level” would be more
“consistent with the management of major airports elsewhere in
the United States.”

49 U.S.C. § 49101(7).

If anything,

operating commercial airports like National and Dulles is a
distinctly un-federal activity.
Proceeding to the next Lebron consideration, MWAA
serves predominantly state and local, rather than federal,
interests.

Although the Supreme Court in CAAN observed that

Congress has a “strong and continuing interest in the efficient
operation of” National and Dulles, 501 U.S. at 266, Congress
found its own interest to be “limited” relative to the
“important and growing” role the airports play in “the commerce,
transportation, and economic patterns of Virginia, the District
of Columbia, and the surrounding region.”

49 U.S.C. § 49101(1),

(3); cf. Corr I, 702 F.3d at 1337 (“[W]hile MWAA does serve
limited federal interests, it serves regional and state
interests as well.”).

This conclusion is, frankly,

commonsensical; while National and Dulles do undoubtedly serve
members of Congress traveling to and from their home districts,
the airports far more frequently serve the many residents of the
Washington, D.C., metropolitan area.

It was recognized when

MWAA was first proposed that the state and local governments of
the Washington, D.C., metropolitan area are “the parties
29

principally interested in the operation” of the airports.
Cong. Rec. S9609.

131

As stated by then-Governor of Virginia Gerald

Baliles in testimony before a congressional subcommittee,
National and Dulles are “critical” to Virginia as “Virginia’s
most heavily-used gateway.”

Proposed Transfer of Metro. Wash.

Airports: Hearings Before the Subcomm. on Aviation of the H.
Comm. on Pub. Works and Transp., 99th Cong. 4, 9-10 (1986).
same likely can be said of the District.

The

The very nature of the

arrangement struck between the federal government, Virginia,
Maryland, and the District of Columbia reflects that the balance
of interests tips local, with the federal government’s “limited”
interest safeguarded only “by a lease mechanism which provides
for local control and operation.”

49 U.S.C. § 49101(3), (10).

As for the final Lebron considerations, 513 U.S. at
397–98, the federal government has little say in MWAA’s
operations.9

MWAA was deliberately constituted as a local

authority that operates “independent of . . . the United States
Government.”

49 U.S.C. § 49106(a)(2).

While the President

appoints three members of MWAA’s Board, that is only a small
minority of the Board’s 17 members.
Code § 5.1-155.

See D.C. Code § 9-904; Va.

This is a mundane feature among interstate

9

The Court notes that Plaintiffs’ various arguments
with respect to federal control of MWAA are inconsistent with
Plaintiffs’ other claims, which generally bemoan MWAA’s
unaccountability to the federal government. See, e.g., Am.
Compl. [Dkt. 37] ¶¶ 4-5.
30

compacts, see, e.g., State ex rel. Dyer v. Sims, 341 U.S. 22,
27–28 (1951), and is not sufficient to demonstrate that MWAA is
federally controlled.
The greatest formal authority the United States
retains over MWAA is the power to enforce the terms of the
airport lease.

See 49 U.S.C. § 49104(a)(2)(C).

As Plaintiffs

concede, however, that is little enough power, see Am. Compl.
[Dkt. 37] ¶ 48, and no more than any lessor retains over a
lessee.

As discussed above, the mere fact that MWAA leases

federal property is not enough to transform it into a federal
instrumentality.

See Buckstaff Bath House Co., 308 U.S. at 362.

Plaintiffs argue further that MWAA is a de facto
federal entity because it operates under federal control in
practice.

Plaintiffs, however, provide little evidence of

federal control – none of it compelling.

Plaintiffs point out

that the District and Virginia twice amended their laws
concerning MWAA in tandem with Congress.
103] at 5.

See Pls. Rep. [Dkt.

Such coordination, however, does not demonstrate

congressional control – particularly as one of the amendments
resulted from court decisions holding the amended portion to be
unconstitutional.
at 105.

See CAAN, 501 U.S. at 277; Hechinger, 36 F.3d

Relatedly, the Court notes that Congress has twice

tried, and failed, to “impose[ ] its will on the regional
authority created by the District of Columbia and the
31

Commonwealth of Virginia” through a Board of Review.
U.S. at 276; see also Hechinger, 36 F.3d 97.

CAAN, 501

Those efforts make

little sense if Congress in fact controls MWAA in the absence of
a Board of Review.
Plaintiffs contend further that the Department of
Transportation has recently subjected MWAA’s operations to a
degree of “general oversight.”

See Pls. Rep. [Dkt. 103] at 5-6.

But Department of Transportation oversight is simply not the
same as meaningful federal control.

Indeed, that is, to a

degree, the very premise of Plaintiffs’ lawsuit.

Cf. Am. Compl.

[Dkt. 37] ¶ 48 (“Neither the Transfer Act nor the Airports Lease
creates any mechanism or procedure by which the Secretary is in
a position to effectively supervise MWAA, or otherwise to
practically enforce the Lease terms.”).
This relatively minor federal involvement sets MWAA
well apart from entities that courts have deemed to be de facto
federal instrumentalities.
MWAA to Amtrak.

Plaintiffs, for example, compare

See Pls. Rep. [Dkt. 103] at 5.

Whereas the

vast majority of MWAA’s Board is appointed by state and local
authorities, see Va. Code § 5.1-155; D.C. Code § 9-904, nearly
all of Amtrak’s Board is appointed by the President and
confirmed by the Senate.

See Dep’t of Transp. v. Ass’n of Am.

Railroads, 135 S. Ct. 1225, 1231 (2015).

Amtrak’s Board members

must additionally meet qualifications set by federal law, and
32

are paid salaries subject to limits set by Congress.

Id.

While

MWAA was constituted by Virginia and the District as a local
governmental body, see Va. Code § 5.1-153; D.C. Code § 9-902,
Amtrak was constituted as a corporation, with “[t]he Secretary
of Transportation hold[ing] all of Amtrak’s preferred stock and
most of its common stock[.]”
at 1231.

Ass’n of Am. Railroads, 135 S. Ct.

Congress is largely uninvolved in MWAA’s day-to-day

activities.

See, e.g., 49 U.S.C. § 49106(a)(2); see also Pls.

Mem. in Supp. of Mot. for Partial Summ. J. [Dkt. 8] at 15-19
(arguing that MWAA’s discretion is not meaningfully constrained
by federal law).

Amtrak, on the other hand, is subject to far

more thorough requirements set by federal law, ranging from
general policies Amtrak must pursue to specific train routes it
must maintain.

See Ass’n of Am. Railroads, 135 S. Ct. at 1232.

Finally, unlike MWAA, which receives federal grants on the same
basis as any other airport authority, Amtrak is “dependent on
federal financial support.”

Id.

The contrast is so stark that

the Court is surprised Plaintiffs would invite the comparison.
Finally, Plaintiffs argued at the hearing on this
matter that MWAA wields federal power because its authority
derives in part from the District of Columbia, and the
District’s authority in turn comes from Congress.

The

District’s authority, however, is generally understood to be
local, rather than federal, in nature.
33

See, e.g., LaShawn A. v.

Barry, 87 F.3d 1389, 1396 (D.C. Cir. 1996) (noting that D.C. law
is “local” rather than “federal”).
At the very least, the District’s authority is not
“federal” in any sense that would subject MWAA to Plaintiffs’
separation of powers challenge.

Although Congress delegated

legislative power to the District, Congress possesses a “dual
authority over the District.”
Co., 261 U.S. 428, 443 (1923).

Keller v. Potomac Elec. Power
Where the District is concerned,

Congress may legislate in its capacity as a national body, or it
may legislate using its unitary, “plenary” authority to
“exercise all the police and regulatory powers which a state
legislature or municipal government would have in legislating
for state or local purposes.”

Palmore, 411 U.S. at 397.

It is

this latter power that Congress delegated to the District.

This

unitary authority is not subject to the Constitution’s
separation of powers requirements, whether wielded by Congress,
the District, or MWAA.

See Techworld Dev. Corp. v. D.C. Pres.

League, 648 F. Supp. 106, 116–17 (D.D.C. 1986), vacated as moot,
No. 86-5630, 1987 WL 1367570 (D.C. Cir. June 2, 1987).
In light of the above, the Court finds that MWAA is
not a federal instrumentality exercising federal power.

As

Counts III, IV, and V of Plaintiffs’ Amended Complaint rest on
“the premise that MWAA exercises federal power,” Pls. Mem. in

34

Supp. of Mot. for Partial Summ. J. [Dkt. 8] at 8, those Counts
fail as a matter of law.
C. Tolls charged by MWAA are not illegal exactions,
and Plaintiffs fail to state a Section 1983 claim.
Count VI of Plaintiffs’ Complaint alleges that tolls
charged by MWAA are illegal exactions that violate the Due
Process Clause of the Fifth Amendment.
claim is unclear.

The legal basis for this

Indeed, the parties are unable to agree as to

the body of law under which the claim arises.

The Court notes

that Plaintiffs’ counsel brought a similar claim in Corr that
engendered similar confusion.

See Corr II, 740 F.3d at 299.

Regardless, as in Corr, the Court need not resolve the
confusion.

The Court gleans that – as in Corr – Plaintiffs’

illegal exaction claim is not freestanding, but rather is
“parasitic on” Plaintiffs’ other claims.
300.

Corr II, 740 F.3d at

It posits that MWAA collected money from Plaintiffs while

operating illegally, and so that collection of money was itself
illegal.

Plaintiffs’ illegal exaction claim can therefore only

succeed if the Court rules in Plaintiffs’ favor on some other
count of Plaintiffs’ Amended Complaint.
much at oral argument.

Plaintiffs conceded as

As the Court finds that the other counts

of Plaintiffs’ Amended Complaint lack merit, Plaintiffs’ illegal
exaction claim also fails.

35

Similarly, Count XI of Plaintiffs’ Amended Complaint
alleges that MWAA violated 42 U.S.C. § 1983 based on the
constitutional claims discussed and rejected above.

As

Plaintiffs failed to “prove a violation of the underlying
constitutional right,” Plaintiffs have failed to state a claim
under Section 1983.

Daniels v. Williams, 474 U.S. 327, 330

(1986).
D. MWAA has not violated the Transfer Act or the
airport lease.
Counts VII and VIII of Plaintiffs’ Amended Complaint
allege that MWAA has violated the Transfer Act and the lease
under which it operates National and Dulles.

These claims are

effectively identical, as the Transfer Act dictates the
pertinent terms of the lease.

See 49 U.S.C. § 49104(a).10

Plaintiffs contend that MWAA has contravened three
provisions of the Transfer Act.

First, Plaintiffs argue that

MWAA has failed to use the leased premises “only for airport
purposes” as required by 49 U.S.C. § 49104.

Second, Plaintiffs

claim that MWAA has failed to abide by 49 U.S.C. § 49104(a)(3),

10

The Act provides a private cause of action allowing
“an aggrieved party” to “compel the Airports Authority and its
officers and employees to comply with the terms of the lease.”
49 U.S.C. § 49104(c). Courts have interpreted this provision as
“limit[ing] the remedies available” for violations of the lease
and Transfer Act “to equitable relief necessary to enforce
compliance with the Lease.” LTMC/Dragonfly, Inc. v. Metro.
Washington Airports Auth., 699 F. Supp. 2d 281, 295 (D.D.C.
2010).
36

which requires that “all revenues generated by the [MWAA] . . .
be expended for the capital and operating costs of” National and
Dulles.

Finally, Plaintiffs claim that MWAA has violated 49

U.S.C. § 47107(a)(13)(A), which requires MWAA to set “charges
for the use of facilities . . . that will make the airport as
self-sustaining as possible.”
At the hearing on this matter, Plaintiffs expressly
abandoned their claim that MWAA’s activities have not served
“airport purposes” within the meaning of 49 U.S.C. § 49104.

As

such, the Court will dismiss Plaintiffs’ claims insofar as they
rest on that provision of the Transfer Act.
Plaintiffs’ second argument, that MWAA has failed to
spend “all revenues generated” on “the capital and operating
costs of” National and Dulles, id. § 49104(a)(3), takes issue
with MWAA’s contributions to the Silver Line Metro project and
funds MWAA has put toward improving roads in and around the
Dulles Corridor.

What constitutes a capital cost is not defined

in the airport lease or the Transfer Act.
Both the lease and Transfer Act, however, require MWAA
to assume responsibility for the FAA’s Master Plans.
U.S.C. § 49104(a)(6)(A).

See 49

Those Master Plans expressly

contemplate the extension of rail service to Dulles.
Federal Defs. Exh. 1 [Dkt. 88-1] at 2, 123–24, 131.

See
Plaintiffs

apparently concede that MWAA’s contributions to the Silver Line
37

Metro project are in keeping with the Master Plans, and that
MWAA’s efforts to improve Route 7 and Spring Hill Road are
incidental to the Silver Line project.
98-3] at ¶ 1.3.3.

See MWAA Exh. 12 [Dkt.

Plaintiffs’ argument that these are not

“capital costs” under the lease and Transfer Act would therefore
have the Court construe the term so narrowly that it would
exclude this project expressly contemplated by the lease and
Transfer Act.

MWAA would effectively be advised to pursue,

while at the same time forbidden to pursue, these projects.
That cannot be a proper construction of the lease and Transfer
Act.
Plaintiffs rejoin only that these improvements cannot
constitute “capital costs” because they will incidentally
benefit a large number of non-airport users.

For example,

Plaintiffs claim that only a relatively small fraction of the
people served by the Silver Line will, on a given day, use the
Silver Line to reach Dulles.
Summ. J. [Dkt. 47] at 24.
see why this matters.

See Mem. in Supp. of Mot. for

As a matter of logic, it is hard to

This incidental benefit to third parties

in no way diminishes the improvement to Dulles wrought by rail
accessibility.

It would be difficult – perhaps impossible – to

provide effective rail service to the airport without conferring
such a benefit on third parties.

38

Moreover, Plaintiffs cite no authority for the
proposition that a capital expenditure cannot incidentally
benefit third parties.

Ordinarily, a capital expenditure is

simply “[a]n outlay of funds to acquire or improve a fixed
asset.”
2014).

CAPITAL EXPENDITURE, Black’s Law Dictionary (10th ed.
The fact that the Silver Line will benefit non-airport

users does not take it outside this definition.

The Court notes

that the federal government – the lessor itself – has already
certified that the Silver Line project meets the requirements of
the lease and Transfer Act, see Pls. Mot. for Summ. J. Exh. 11
[Dkt. 52-1] at 3, including the requirement that “all revenues
generated by the [MWAA] . . . be expended for the capital and
operating costs of” National and Dulles.
§ 49104(a)(3).

See 49 U.S.C.

Plaintiffs provide no compelling reason to

second-guess the lessor’s construction of its own lease.
Plaintiffs similarly take issue with MWAA’s
improvements to Route 606 in and around the Dulles Corridor.
Route 606 lies partially on land leased to MWAA, and the
improvements to it are intended to enhance access to both Dulles
and the Dulles Toll Road.

See Pls. Exh. 35 [Dkt. 65-1] at 199.

At the hearing on this matter, Plaintiffs’ counsel conceded that
capital expenditures need not pertain to assets resting entirely
on property leased to MWAA.

It is therefore difficult to see

why MWAA’s expenditures on Route 606 would not constitute
39

capital costs under the airport lease and Transfer Act.

The

Court therefore finds that Plaintiffs have failed to demonstrate
that MWAA violated 49 U.S.C. § 49104(a)(3) through its various
efforts to improve access to Dulles.
Plaintiffs next argue that MWAA has violated 49 U.S.C.
§ 47107(a)(13)(A) by failing to “make the airport as selfsustaining as possible.”

Plaintiffs claim that this is so

because “the obvious way to do that, if there are excess
revenues, is to put those revenues in a trust fund or analogous
account so they can be used to meet future expenses of airport
facilities[.]”

Am. Compl. [Dkt. 37] ¶ 174; see also Mem. in

Supp. of Mot. for Partial Summ. J. [Dkt. 47] at 25.
Simply characterizing a conclusion as “obvious,”
however, does not make it so.

Nor, for that matter, does it

suffice to survive a Rule 12(b)(6) motion.
evidence, analysis, or authority.

Plaintiffs offer no

Instead, they merely state

their conclusion that MWAA could pursue a broad statutory
directive more effectively and invite Defendants to prove them
wrong.
relief.

But it falls to Plaintiffs to state a viable claim for
See, e.g., Iqbal, 556 U.S. at 678.

Plaintiffs fail to

put forth sufficient factual matter or analysis to meet that
obligation.

They instead merely quibble with MWAA’s business

judgment.

40

If, as Plaintiffs claim, MWAA could only satisfy its
obligations under 49 U.S.C. § 47107(a)(13)(A) by putting excess
revenue in a trust fund, the lease and Transfer Act would say
so.

Instead, the lease and Transfer Act entrust MWAA with

discretion.

Plaintiffs have established they would exercise

that discretion differently.

That, however, does not

demonstrate MWAA has violated 49 U.S.C. § 47107(a)(13)(A),
notwithstanding Plaintiffs’ apparent confidence that they know
best how to run Dulles.11
In sum, Plaintiffs have failed to sufficiently allege
any violation of the Transfer Act and airport lease.

The Court

will therefore dismiss Counts VII and VIII of Plaintiffs’
Amended Complaint.
E. Plaintiffs fail to state a claim under the APA.
Finally, Plaintiffs allege in Counts IX and X of their
Amended Complaint that MWAA, the Department of Transportation,
and the Secretary have all violated the APA.
of Mot. for Partial Summ. J. [Dkt. 47] at 25.

See Mem. in Supp.
The Court

disagrees.
First, as discussed above, MWAA is not a federal
instrumentality.

It is therefore not an “authority of the

11

The Court notes that it is in fact not “obvious” that
using excess funds to improve public access to Dulles will make
the airport less sustainable than Plaintiffs’ vague “trust fund
or analogous account.”
41

Government of the United States,” 5 U.S.C. § 551(1), subject to
the APA.

See also Atl. States Marine Fisheries Comm’n, 609 F.3d

at 532-33 (finding that interstate compacts are generally not
subject to the APA).
Plaintiffs press the point nonetheless, arguing that
the “APA applies to quasi-agencies like interstate compact
entities that are imbued with a special federal interest[.]”
Mem. in Supp. of Mot. for Partial Summ. J. [Dkt. 47] at 27.

The

Court concludes that, for the reasons discussed above,
Plaintiffs have failed to show that MWAA is imbued with any
special federal interest that would justify subjecting MWAA to
the APA.
Regardless, neither this Court nor the Fourth Circuit
has embraced the “quasi-federal agency” doctrine advanced by
Plaintiffs.
it.

Indeed, the Fourth Circuit has implicitly rejected

See United States v. Saunders, 828 F.3d 198, 205 (4th Cir.

2016) (citing with approval the Second Circuit’s rejection of
the “quasi-federal agency” doctrine in New York v. Atlantic
States Marine Fisheries Commission, 609 F.3d 524, 527 (2d Cir.
2010)).

In the case Plaintiffs cite, Seal & Co. v. Washington

Metropolitan Area Transit Authority, 768 F. Supp. 1150, 1154
(E.D. Va. 1991), this Court explained that “the agency involved
— WMATA — is not a federal agency” and so “is not subject to the
APA,” but noted the reasoning of two other courts finding that
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“WMATA should be treated as a federal agency subject to the APA
with respect to standing” in certain circumstances.
1155.

Id. at

Judge Ellis did not endorse this conclusion, and the

Court finds the limited reasoning of the cases discussed in Seal
& Co. unpersuasive.

Having found that MWAA does not exercise

federal power, it would be inappropriate to subject it to a law
intended to restrain federal power.

See Atl. States Marine

Fisheries Comm’n, 609 F.3d at 532-33.
It is unclear whether Plaintiffs still maintain their
APA claim against the federal defendants.

As discussed above,

at the hearing on this matter Plaintiffs abandoned their
argument that MWAA’s activities do not serve valid “airport
purposes” within the meaning of 49 U.S.C. § 49104.

Plaintiffs’

APA claim against the federal defendants rests upon this
argument.

Having abandoned the argument without qualification

at the hearing, the Court is inclined to deem it withdrawn for
all purposes.
Regardless, Plaintiffs’ APA claim against the federal
defendants is both time barred and meritless.

First, as the

federal defendants note, there is a significant gulf between the
claim contemplated in Plaintiffs’ Amended Complaint and the
claim advanced in Plaintiffs’ briefs.

Plaintiffs’ Amended

Complaint specifically challenges “final agency action” under 5
U.S.C. § 706(2) – to wit, the Secretary’s 2008 “certif[ication]
43

that MWAA’s operation of the Toll Road and its use of toll
revenue to fund construction of the Metrorail Project were valid
‘airport purposes’ within the meaning of the MWAA lease.”
Compl. [Dkt. 37] ¶¶ 195-98.

Am.

A claim based on agency action that

occurred in 2008, however, is now time-barred by the APA’s sixyear statute of limitations.

See Jersey Heights Neighborhood

Ass’n v. Glendening, 174 F.3d 180, 186 (4th Cir. 1999).
Perhaps recognizing their error, Plaintiffs’ briefs
reframe their APA claim as challenging agency action unlawfully
withheld under 5 U.S.C. § 706(1).

As reformulated in

Plaintiffs’ briefs, the Secretary is committing an ongoing
violation of the APA by refusing to recognize that MWAA is using
airport property for other than “airport purposes.”
“It is well-established that parties cannot amend
their complaints through briefing or oral advocacy.”

S. Walk at

Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands,
LLC, 713 F.3d 175, 184 (4th Cir. 2013).

Here, Plaintiffs

attempt through briefing to modify their Amended Complaint to
allege the very opposite of what it now says.

Plaintiffs’

Amended Complaint clearly alleges that the Secretary has already
taken “final agency action” on the pertinent issue, Am. Compl.
[Dkt. 37] ¶ 196, not that he has refused to take action on it.
This is not, as Plaintiffs claim, a mere tweak of their legal

44

theory.

Plaintiffs cannot plead one set of facts in their

Amended Complaint and expect the Court to rule on another.
While the Court might otherwise grant leave to amend,
to do so here would be futile.

As discussed above, “airport

purposes” is defined broadly in the Transfer Act to include any
“business or activity not inconsistent with the needs of
aviation[.]”

49 U.S.C. § 49104(a)(2)(A)(iv).

Plaintiffs make

no serious effort to argue that MWAA’s various projects fall
outside this expansive definition.

Instead, Plaintiffs argue

only that the Court should artificially narrow the definition of
“airport purposes” to avoid “constitutional concerns” addressed
and rejected above.

See Mem. in Supp. of Mot. for Summ. J.

[Dkt. 47] at 27-28.

The Court declines to rewrite the statute

in this manner.

Accordingly, Plaintiffs’ APA claim against the

federal defendants lacks merit whatever its formulation.
IV. Conclusion
For the foregoing reasons, the Court finds that
Plaintiffs’ Amended Complaint fails to state a claim upon which
relief may be granted.

Accordingly, the Court will deny

Plaintiffs’ Motion for Partial Summary Judgment [Dkt. 46], grant
Defendants’ Motions to Dismiss for Failure to State a Claim
[Dkts. 85, 90, 94], deny Defendants’ other Motions [Dkts. 86,
91] as moot, and dismiss Plaintiffs’ Amended Complaint with
prejudice.

Because the Court does not reach the question of
45

whether this matter should be dismissed pursuant to Federal Rule
of Civil Procedure 19, the Court will deny Plaintiffs’ Motion
for Leave to File Supplemental Authority [Dkt. 127] as moot.
An appropriate order will issue.

May 30, 2017
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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