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Kerpen v. Metropolitan Washington Airports Authority

United States Court of Appeals, Fourth Circuit

October 22, 2018

PHIL KERPEN, Individually and on Behalf of All Others Similarly Situated; AUSTIN RUSE, Individually and on Behalf of All Others Similarly Situated; CATHY RUSE, Individually and on Behalf of All Others Similarly Situated; CHARLOTTE SELLIER, Individually and on Behalf of All Others Similarly Situated; JOEL SELLIER, Individually and on Behalf of All Others Similarly Situated; MICHAEL GINGRAS, Individually and on Behalf of All Others Similarly Situated, Plaintiffs - Appellants,
v.
METROPOLITAN WASHINGTON AIRPORTS AUTHORITY; ELAINE L. CHAO, in her official capacity as Secretary of Transportation; UNITED STATES DEPARTMENT OF TRANSPORTATION, Defendants - Appellees, DISTRICT OF COLUMBIA, Intervenor - Appellee, KARL ANTHONY RACINE, Intervenor/Defendant-Appellee.

          Argued: September 27, 2018

          Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:16-cv-01307-JCC-TCB)

         ARGUED:

          Gene C. Schaerr, SCHAERR | DUNCAN LLP, Washington, D.C., for Appellants.

          Stuart Alan Raphael, HUNTON & WILLIAMS LLP, Washington, D.C., for Appellee

          Metropolitan Washington Airports Authority. Lewis Yelin, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees Elaine Chao and United States Department of Transportation.

         ON BRIEF:

         Robert J. Cynkar, Patrick M. McSweeney, Christopher I. Kachouroff, MCSWEENEY, CYNKAR & KACHOUROFF PLLC, Woodbridge, Virginia; S. Kyle Duncan, Stephen S. Schwartz, Michael T. Worley, SCHAERR | DUNCAN LLP, Washington, D.C., for Appellants.

          Philip G. Sunderland, Office of General Counsel, METROPOLITAN WASHINGTON AIRPORTS AUTHORITY, Washington, D.C.; Sona Rewari, HUNTON & WILLIAMS LLP, Washington, D.C., for Appellee

          Washington Metropolitan Airports Authority. Chad A. Readler, Acting Assistant Attorney General, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Steven G. Bradbury, General Counsel, Paul M. Geier, Assistant General Counsel for Litigation and Enforcement, Joy K. Park, UNITED STATES DEPARTMENT OF TRANSPORTATION, Washington, D.C.; Tracy McCormick, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Federal Appellees.

          Mark R. Herring, Attorney General, Stephen A. Cobb, Deputy Attorney General, Toby J. Heytens, Solicitor General, Matthew R. McGuire, Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Amicus Curiae.

          Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.

          OPINION

          WILKINSON, CIRCUIT JUDGE

         Appellants here have raised a variety of constitutional and statutory challenges to Metropolitan Washington Airport Authority's (MWAA) ability to use toll revenues to fund projects enhancing access to Dulles airport. The district court granted defendants' motion to dismiss all of these claims, and we now affirm its judgment.

         I.

         In 1950, the federal government began to build Dulles Airport. Recognizing that access to the airport was as important as the airport itself, the government also acquired a right of way to begin building an access road, linking Dulles to two of the major highways serving the Washington, D.C. region. In 1962, the airport and the access road were opened under the management of the Federal Aviation Administration.

         In 1983, the federal government gave Virginia an easement to build a toll road through the right of way previously acquired for the access road. The federal government determined that the new toll road would help mitigate increasing congestion in the vicinity of Dulles. The road was opened one year later and was operated by the Commonwealth of Virginia.

         By 1984, the federal government was concerned that needed capital improvements at Dulles, and its sister airport National, could not be funded. The solution, devised by a Commission created at the behest of the Secretary of Transportation, was to transfer control of both airports to an authority with the ability to raise money by selling tax-exempt bonds. The next year, Virginia and the District of Columbia passed reciprocal laws to create an interstate compact for the management of Dulles and National. Congress had already consented to the compact in 1959, when it gave advance approval to interstate compacts for the ...


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