John Corr v. Metropolitan Washington Airports Authority ( 2014 )

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.
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BOARD OF SUPERVISORS OF FAIRFAX COUNTY, VIRGINIA; UNITED
STATES OF AMERICA,
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.
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.
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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 contend that this toll is, in
reality, an illegal tax. 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 the access 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 serve non-airport traffic
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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, 100 Stat. 3341-376 (1986) (codified as
amended at 49 U.S.C. § 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.
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government. Id. § 49106(a)(2). On the other, it was to possess
the powers delegated to it by the District of Columbia and
Virginia. Id. § 49106(a)(1)(A). Congress also explicitly
granted MWAA the power to “to levy fees or other charges.” Id.
§ 49106(b)(1)(E). 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 ensuing decades, the Virginia General Assembly
repeatedly authorized CTB to use toll revenue to fund mass
transit projects within the Dulles Corridor. In 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. 1995 Va.
Acts ch. 560 § § 2, 14, J.A. 410-13. In 2002, the General
Assembly approved a CTB resolution 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. 200 (Va. 2002). Finally, in 2004, the Virginia
General Assembly granted CTB open-ended authority to issue
revenue bonds to fund, among other things, a mass-transit rail
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project in the Dulles Corridor, to be paid with revenues from
the Dulles Toll Road. 2004 Va. Acts ch. 807 § 1, J.A. 224-30.
CTB then raised the Dulles Toll Road 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 Master Plans for the Metropolitan
Washington Airports.” 49 U.S.C. § 49104(a)(6). 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 transferred from
Virginia to MWAA in December of 2006. The agreement gave MWAA
the power to set tolls on the Dulles Toll Road, but required it
to use toll-road revenues exclusively for transportation
improvements within the Dulles Corridor.
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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 representation in
violation of the Virginia Constitution. See Va. Const. art. I,
§ 6. 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. Among many other counts, the plaintiffs in that suit
also contended that MWAA’s use of toll revenue to fund the
Metrorail project was an illegal tax under the Virginia
Constitution. 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. Concluding that plaintiffs’ grievance
was too generalized to support standing, the district court
dismissed the complaint on prudential grounds. Plaintiffs’
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proper recourse, the court concluded, lay in the political
process.
The court also deemed it necessary to reach the merits of
plaintiffs’ complaint should a reviewing court, on appeal,
disagree with its standing analysis. The court concluded, among
other things, that plaintiffs had 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 of the interstate compact preempted any
restrictions that Virginia law might have placed on 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. Under
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Article I, § 6, of the Virginia Constitution, “taxes must be
imposed only by a majority of the elected representatives of a
legislative body, with the votes cast by the elected
representatives being duly recorded.” Marshall v. N. Virginia
Transp. Auth., 657 S.E.2d 71, 79 (Va. 2008). Thus, appellants
argue, Virginia could not legally have 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. While it is clear that they allege a violation of
the Due 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). Rather,
“[appellants’] due process argument sounds like a state law
claim dressed up in due process clothing. . . . Such suits are
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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. The district court
held that the plaintiffs present a “‘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.”
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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. While they
may bring with them the baggage of various policy-based
objections to the Metrorail expansion project, they also bear
the concrete harm of having paid what are, in their view,
inflated tolls. They seek tangible and particularized relief:
they want their money back. Moreover, they are not so numerous,
and their grievance is not so attenuated, that their claim
amounts to a generalized, and impermissible, taxpayers’ claim.
See Bishop, 575 F.3d at 424. We therefore conclude that
appellants’ claims are barred neither by the standing
requirement of Article III of the United States Constitution nor
the prudential restrictions we have recognized on our own
judicial power. See Frank Krasner Enterprises, Ltd. 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 state-
law arguments. The question before us, ultimately, relates to
what fund-raising powers the General Assembly could have
delegated to the MWAA under Virginia law. As the numerous
Virginia cases cited infra demonstrate, Virginia courts look to
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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). Virginia courts ask whether a given exaction is “a
bona fide fee-for-service or an invalid revenue-generating
device.” Eagle Harbor, L.L.C. v. Isle 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 authorized charge for the use of a special
facility.’” 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
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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. This is evident not only in the findings
of the Virginia General Assembly and the Federal Transit
Administration, but also as a matter of common sense: the
planned expansion adds multiple stops both before and after the
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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. While there is no
guarantee that each driver who pays the toll will be the
exclusive beneficiary of those funds, Virginia law does not
require such a direct correspondence. It requires only a
“reasonable correlation.” 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 the tolls or accept the
benefits of the Project facilities.” 749 S.E.2d at 183. There
are two aspects of this conclusion: the fee is both voluntarily
paid and the resulting benefits are voluntarily received. While
the latter inquiry is counterintuitive, it serves a useful
purpose. Some exactions, such as a sales tax, remain taxes
despite 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
with their proceeds benefit every citizen in the community,
whether she has asked for the benefit or not. Id. at 185.
Turning to the first inquiry, it is clear that the toll is
voluntarily paid. Nobody is forced to drive on the Dulles Toll
Road. Like most 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. The
funds raised for the Metrorail expansion project directly
benefit only travelers who use the Dulles Corridor, not the
community as a whole. Receipt of the benefit is therefore
voluntary in that it only accrues to those who have chosen to
travel in the corridor. While this group is not limited only to
Dulles Toll Road drivers, this prong of the Elizabeth River
Crossings test does not ask whether those who pay the toll are
the only ones who benefit. It asks only whether receipt of the
benefit is voluntary. 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 Road--is
voluntary.
3.
Finally, “the tolls are collected solely to fund the
Project.” Id. at 183. The Metrorail expansion is part of the
15
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 of the same commuters. The Virginia General
Assembly explicitly found as much when it 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 argued that, regardless of how the state
characterized them, the various particular arteries were not
sufficiently intertwined to be considered parts of a single
project. But the Virginia Supreme Court showed no appetite for
such an inquiry. It took for granted the state’s choice to
treat the individual tunnels and bridges as components of a
common project. It instead inquired into whether the toll
revenue would flow outside of the project, so defined, to
benefit citizens at large. 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--
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though we observe once more that this notion hardly strains
credulity. 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, does not violate the due process rights of
motorists. The district court’s order dismissing the complaint
is therefore
AFFIRMED.
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