for the eastern district of virginia alexandria...

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

JOHN B. CORR, et al., ) ) Plaintiffs, ) ) v. ) Case No. 1:11cv389 (AJT/TRJ) ) METROPOLITAN WASHINGTON AIRPORTS AUTHORITY,

) )

) Defendant. )

BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

Thomas J. Cawley (VSB 04612) Stuart A. Raphael (VSB 30380) HUNTON & WILLIAMS LLP 1751 Pinnacle Drive, Suite 1700 McLean, Va. 22102 (703) 714-7463 (703) 918-4015 (fax) [email protected] [email protected] Philip G. Sunderland (VSB 25604) Office of General Counsel Metropolitan Washington Airports Authority 1 Aviation Circle Washington, D.C. 20001-6000 (703) 417-8615

May 5, 2011

Case 1:11-cv-00389-AJT -TRJ Document 7 Filed 05/05/11 of 42 PageID# 60

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TABLE OF CONTENTS

Page

TABLE OF CONTENTS................................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................................... iv

PRELIMINARY STATEMENT .................................................................................................... 1

STANDARD OF REVIEW ............................................................................................................ 2

STATEMENT OF FACTS ............................................................................................................. 2

A. The Federal Government’s Ownership of Reagan, Dulles, and the Dulles Corridor Right-of-Way, and Its Lease of the Toll Road Land to Virginia. ................2

B. Congress Approves an Interstate Compact by Virginia and the District of Columbia to Establish the Metropolitan Washington Airports Authority. .................3

C. Virginia’s Transportation Improvements in the Dulles Corridor and Its Commitment to Extend Metrorail to Dulles, Relying on Surplus Revenues from the Toll Road......................................................................................................5

D. MWAA Agrees to Assume Virginia’s Share and to Build Metrorail to Dulles Using the Same Toll Road Funding Mechanism.............................................8

E. After Favorable Rulings in Gray, Virginia Transfers the Toll Road to MWAA, and Then MWAA Issues $1 Billion in Bonds and Starts Construction................................................................................................................9

F. This Court and the Fourth Circuit Reject the Tax Claims Again in Parkridge. .................................................................................................................11

G. The Current Lawsuit. ................................................................................................11

ARGUMENT................................................................................................................................ 12

I. THE COMPLAINT SHOULD BE DISMISSED FOR LACK OF STANDING..............12

A. Plaintiffs Lack Minimum Article III Standing..........................................................12

1. Plaintiffs’ Injuries Are Not Particularized Because Any Toll Payer Could Complain.............................................................................................................13

2. Plaintiffs Cannot Prove Causation or Redressability Because They Cannot Show That An Elected Body Would Set Lower Tolls. ..........................14

B. The Prudential Standing Doctrine Also Warrants Dismissal....................................15


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II. THE COMPLAINT FAILS TO STATE A CLAIM FOR FEDERAL CONSTITUTIONAL VIOLATIONS................................................................................16

A. There Is No Federal Constitutional Right Against “Taxation Without Representation.”........................................................................................................17

B. A Bivens Claim Cannot Be Asserted Against MWAA.............................................20

III. THE COMPLAINT FAILS TO STATE A CLAIM FOR VIOLATIONS OF THE VIRGINIA CONSTITUTION. ..........................................................................................20

A. Plaintiffs May Not Base Their § 1983 Claim on Violations of Virginia Law..........21

B. The MWAA Compact Preempts Plaintiffs’ Virginia Law Claims. ..........................21

C. The Tolls Are Not Taxes...........................................................................................24

IV. PLAINTIFFS’ CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS AND LACHES........................................................................................27

A. All Refund Claims Older Than Two Years Are Time-Barred..................................28

B. Plaintiffs’ Laches Bars Their Request for Injunctive Relief.....................................29

CONCLUSION............................................................................................................................. 30

CERTIFICATE OF SERVICE ..................................................................................................... 32

LIST OF EXHIBITS..................................................................................................................... 33


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TABLE OF AUTHORITIES

Page

CASES Adams v. Clinton, 90 F. Supp. 2d 35 (D.D.C.), aff’d, 531 U.S. 941 (2000) ................................ 19

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)....................................................................... 21

Alcorn v. Wolfe, 827 F. Supp. 47 (D.D.C. 1993) .......................................................................... 22

Almond v. Gilmer, 188 Va. 822, 51 S.E.2d 272 (1949) ................................................................ 26

Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011) .................................. 12, 13, 15

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ....................................................................................... 2

Baker v. McCollan, 443 U.S. 137 (1979) ..................................................................................... 21

Banner v. United States, 303 F. Supp. 2d 1 (D.D.C. 2004) .......................................................... 19

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................... 2

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) .................................... 20, 28

Breakefield v. District of Columbia, 442 F.2d 1227 (D.C. Cir. 1970).......................................... 19

Button v. Day, 204 Va. 270, 130 S.E.2d 459 (1963) .................................................................... 26

Button v. Day, 205 Va. 739, 139 S.E.2d 838 (1965) .................................................................... 26

Byrd v. United States, 2010 U.S. Dist. LEXIS 125315 (E.D. Va. Nov. 29, 2010)....................... 20

Campbell v. Hilton Head No. 1 Public Serv. Dist., 580 S.E.2d 137 (S.C. 2003) ......................... 19

Clark v. NCUA, 2009 U.S. Dist. LEXIS 78666 (E.D. Va. Aug. 28, 2009), aff’d, 354 Fed. Appx. 805 (4th Cir. Dec. 1, 2009) ............................................................................................ 20

Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001)...................................................................... 20

Crawford-El v. Britton, 523 U.S. 574 (1998) ............................................................................... 21

Cuyler v. Adams, 449 U.S. 433 (1981) ......................................................................................... 21

DaimlerChrysler Corp. v. Cuno, 547 U. S. 332 (2006).......................................................... 12, 13

Doe v. Maximus, 2010 U.S. Dist. LEXIS 122286 (M.D. Tenn. Nov. 15, 2010) .......................... 19


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Eagle Harbor, LLC v. Isle of Wight County, 271 Va. 603, 628 S.E.2d 298 (2006) .................... 25

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) ................................................. 15, 16

Fairchild Corp. v. MWAA, 50 Va. Cir. 127 (Loudoun 1999) ....................................................... 22

Farquhar v. Bd. of Sup'rs, 196 Va. 54, 82 S.E.2d 577 (1954)...................................................... 26

FDIC v. Meyer, 510 U.S. 471 (1994) ........................................................................................... 20

Frothingham v. Mellon, 262 U. S. 447 (1923)........................................................................ 13, 14

Gray v. Va. Sec’y of Transp., 276 Va. 93, 662 S.E.2d 66 (2008) ................... 2, 3, 9, 11, 14, 16, 30

Gray v. Va. Sec’y of Transp., CL-07-203 (Richmond Cir. Ct. Oct. 20, 2008) ................. 10, 27, 30

Heald v. District of Columbia, 259 U.S. 114 (1922) ........................................................ 18, 19, 20

Hildebrandt v. Ill. Dep't of Natural Res., 347 F.3d 1014 (7th Cir. 2003)..................................... 29

Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938) ........................... 22

Hobson v. Tobriner, 255 F. Supp. 295 (D.D.C. 1966).................................................................. 19

Horton v. West, 2011 U.S. Dist. LEXIS 3964 (E.D. Va. Jan. 13, 2011) ...................................... 28

Huron Valley Hosp., Inc. v. Pontiac, 887 F.2d 710 (6th Cir. 1989) ............................................. 21

Kloth v. Microsoft Corp., 444 F.3d 312 (4th Cir. 2006) ............................................................... 29

Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007) .................................. 28, 29

Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820) ........................................................ 18, 19

Marshall v. N. Va. Transp. Auth., 275 Va. 419, 657 S.E.2d 71 (2008) ........................................ 24

McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819) ........................................................ 17, 18

Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991)............................................................................................................. 2, 3, 5, 23

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) ...................................................... 28

New Jersey v. New York, 523 U.S. 767 (1998) ............................................................................. 21

Parkridge 6 LLC v. U.S. Dep’t of Transp., 2010 U.S. Dist. LEXIS 34182 (E.D. Va. Apr. 6, 2010), aff'd, 2011 U.S. App. LEXIS 5777 (4th Cir. Va. Mar. 21, 2011) ....................... 11, 23


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Parkridge 6 LLC v. U.S. Dep’t of Transp., 2011 U.S. App. LEXIS 5777 (4th Cir. Va. Mar. 21, 2011) .................................................................................................................... 11, 16

Paul v. Davis, 424 U.S. 693 (1976) .............................................................................................. 21

Philips v. Pitt County Mem’l Hosp., 572 F.3d 176 (4th Cir. 2009) ................................................ 2

Russell v. County of Nassau, 696 F. Supp. 2d 213 (E.D.N.Y. 2010)............................................ 29

Sharpe v. Cureton, 319 F.3d 259 (6th Cir. 2003) ......................................................................... 29

Soling v. New York, 804 F. Supp. 532 (S.D.N.Y. 1992)................................................... 13, 14, 16

Soules v. Kauaians for Nukolii Campaign Comm., 849 F.2d 1176 (9th Cir. 1988) ..................... 29

Southside Fair Hous. Comm. v. City of New York, 928 F.2d 1336 (2d Cir. 1991)................. 29, 30

Stephens v. County of Albemarle, 524 F.3d 485 (4th Cir. 2008) .................................................. 12

Tidewater Ass’n of Homebuilders, Inc. v. City of Virginia Beach, 241 Va. 114, 400 S.E.2d 523 (1991) ..................................................................................................................... 25

Vereen v. Woodland Hills Sch. Dist., 2008 U.S. Dist. LEXIS 23075 (W.D. Pa. Mar. 24, 2008) ......................................................................................................................................... 29

Virginia v. Achu, 54 Va. Cir. 109 (Loudoun 2000) ..................................................................... 22

West Virginia ex rel. Dyer v. Sims, 341 U.S. 22 (1951) ............................................................... 22

Westbrook, Inc. v. Town of Falls Church, 185 Va. 577, 39 S.E.2d 277 (1946) ........................... 24

White v. Daniel, 909 F.2d 99 (4th Cir. 1990) ............................................................................... 29

Williams v. Riley, 280 U.S. 78 (1929)........................................................................................... 14

STATUTES 1985 D.C. Law 6-67........................................................................................................................ 4

1985 Va. Acts ch. 598..................................................................................................................... 4

1989 Va. Acts ch. 615..................................................................................................................... 5

1990 Va. Acts ch. 251........................................................................................................... 5, 6, 26

1995 Va. Acts ch. 560............................................................................................................... 6, 26

2004 Va. Acts ch. 807........................................................................................................... 7, 8, 26


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49 U.S.C. § 47107(a)(13)(A) .......................................................................................................... 4

49 U.S.C. § 49101........................................................................................................................... 4

49 U.S.C. § 49102........................................................................................................................... 4

49 U.S.C. § 49103..................................................................................................................... 5, 22

49 U.S.C. § 49104....................................................................................................................... 4, 8

49 U.S.C. § 49106..................................................................................................................... 4, 22

Delaware River Port Authority Compact, N.J. Stat. Ann. § 32:3-5(j) (1990 & 2011 Supp.)....... 23

H.J. Res. 165 (Va. 2000)................................................................................................................. 7

H.J. Res. 200 (Va. 2002)................................................................................................................. 7

Metropolitan Washington Airports Act of 1986, Pub. L. No. 99-591, Tit. VI, 100 Stat. 3341-376 (1986) ......................................................................................................................... 4

Va. Code Ann. § 5.1-152 (2010)................................................................................................... 22

Va. Code Ann. § 5.1-156(A)(8) (2010) ........................................................................................ 22

Va. Code Ann. § 5.1-172 (2010)..................................................................................................... 4

Va. Code Ann. § 5.1-173 (2010)..................................................................................................... 4

Va. Code Ann. § 5.1-175 (2010)..................................................................................................... 4

Va. Code Ann. § 8.01-243(A) (Supp. 2010)................................................................................. 28

Va. Code Ann. § 8.01-248 (2007)................................................................................................. 28

Va. Code Ann. § 33.1-268(2)(n) (Supp. 2010) ................................................................... 7, 24, 27

Va. Code Ann. § 33.1-269(2) (Supp. 2010).................................................................................... 7

CONSTITUTIONAL PROVISIONS

U.S. Const. Am. 5 ......................................................................................................................... 12

U.S. Const. Am. 14 ....................................................................................................................... 12

U.S. Const. art. IV, § 2.................................................................................................................. 12

U.S. Const. art. IV, § 4............................................................................................................ 12, 14


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U.S. Const. art. VI, § 2.................................................................................................................. 23

Va. Const. art. I, § 14.............................................................................................................. 12, 21

Va. Const. art. VII, § 10................................................................................................................ 26

Va. Const. art. X, § 9 .................................................................................................................... 26

LEGISLATIVE MATERIALS H. Doc. No. 23, Tyson's Corner Interim Transportation Improvements (Va. 1999) ...................... 6

H.B. 1650 (Va. 2007)...................................................................................................................... 9

H.B. 5010 (Va. 2006)...................................................................................................................... 9

H.B. 5068 (Va. 2006)...................................................................................................................... 9

OPINIONS OF THE ATTORNEY GENERAL OF VIRGINIA 1998 Op. Att’y Gen. 91, 1998 Va. AG LEXIS 18.......................................................................... 6

2004 Op. Att’y Gen. No. 03-121, 2004 Va. AG LEXIS 10............................................................ 6

OTHER AUTHORITIES Council of State Governments, Interstate Compacts & Agencies (2003) .................................... 23


PRELIMINARY STATEMENT

This is the third lawsuit in four years that seeks to prevent using surplus revenues from the

Dulles Toll Road to defray the cost of extending Metrorail to Dulles International Airport.

Represented by the same lawyer here, two citizens who use the Toll Road filed suit in February

2007 against the Commonwealth of Virginia and the Metropolitan Washington Airports Authority

(MWAA). They claimed that using Toll Road moneys for Metrorail constituted “taxation without

representation” under the Virginia Constitution and sought to invalidate Virginia’s plans to transfer

control over the Toll Road to MWAA. In October 2008, the Circuit Court for the City of Richmond

rejected their claims, finding that the tolls in question were not “taxes.” Judge Brinkema rejected a

second lawsuit making the same claim in 2010, finding that plaintiffs lacked standing and that the

MWAA Compact preempted any claim for “taxation without representation” under the Virginia

Constitution. The Fourth Circuit affirmed based on “prudential standing,” concluding that the

plaintiffs’ grievances were more appropriately directed to the representative branches, not the

judiciary.

In this latest lawsuit seeking to kill Metrorail to Dulles, two things are new. First, Plaintiffs

base their right to “no taxation without representation” on the Federal Constitution, not just

Virginia’s. They add Bivens and § 1983 claims for good measure. Second, Plaintiffs seek to certify

a plaintiff class comprised of everyone who has used the Toll Road since 2005.

Like the two complaints dismissed before it, this one is also fatally defective. The Plaintiffs

lack standing. And even assuming for the sake of argument that the tolls were “taxes” imposed by

an unelected body (a claim rejected by the Richmond Circuit Court), it is well established that the

Federal Constitution provides no enforceable right against “taxation without representation.” That

leaves the same Virginia law claims that were rejected in the two prior cases. They should be

rejected again for the same reasons as before.


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STANDARD OF REVIEW

“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

STATEMENT OF FACTS

The trial court under Rule 12(b)(6) may “properly take judicial notice of matters of public

record.” Philips v. Pitt County Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). It may also

consider documents “attached to the motion to dismiss, so long as they are integral to the complaint

and authentic.” Id. Accordingly, the facts set forth below are taken from the Complaint, public

records of which the Court may take judicial notice, and documents referenced in the Complaint.

These are cited as “Ex. __” and attached to the accompanying Declaration of Stuart A. Raphael.

A. The Federal Government’s Ownership of Reagan, Dulles, and the Dulles Corridor Right-of-Way, and Its Lease of the Toll Road Land to Virginia.

Reagan Washington National Airport (Reagan) and Washington Dulles International Airport

(Dulles) “are the only two major commercial airports owned by the Federal Government.” Metro.

Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 256 (1991)

(CAAN). Congress authorized the Executive Branch to acquire the land for Reagan in 1940. Id.

When Congress later authorized the construction of “a second major airport to serve the

Washington area . . . it again provided for federal ownership and operation,” and Dulles “was

opened in 1962 under the direct control of the [Federal Aviation Administration].” Id.; Gray v. Va.

Sec’y of Transp., 276 Va. 93, 98, 662 S.E.2d 66, 68 (2008) .

To facilitate access to Dulles, the federal government acquired a broad corridor of land

connecting to the airport. A portion of that Dulles Corridor right-of-way was used to build the

“Dulles Airport Access Highway” (the “Access Road”), which “connect[s] the airport to Interstate


3

495 (the Beltway) and Interstate 66.” Id. at 98, 66 S.E.2d at 68. (Compl. ¶¶ 48-49.) The portion of

the Access Road between I-495 and Dulles was opened in 1962. It is limited to airport traffic “and

has no exits . . . other than direct access to the airport.” Gray, 276 Va. at 98, 66 S.E.2d at 68. No

tolls have ever been charged to use the Access Road. (Compl. ¶ 49.)

When the Access Road was built, the median strip was “reserved for a future rail line” with

a view to facilitating “public transit access to Dulles.” (Ex. 11 at 4.)

In 1983, the federal government granted Virginia a 99-year easement within the Dulles

Corridor right-of-way to construct, operate and maintain a “limited access highway to be called the

Dulles Toll Road and which is known today as the Omer L. Hirst-Adelard L. Brault Expressway

(the ‘Toll Road’).” (Ex. 2 at, Master Transfer Agreement Recital A at 1.) The 1983 easement

reserved the “median between the eastbound and westbound lanes of the [Access Road] for future

rail service to Dulles Airport.” (Ex. 1, 1983 Easement, ¶ 13.)

The Toll Road opened in October 1984. (Compl. ¶ 54.) The Commonwealth Transportation

Board set the tolls at 50 cents at the main plaza and 25 cents at the exit ramps. (Id. ¶ 78.)

B. Congress Approves an Interstate Compact by Virginia and the District of Columbia to Establish the Metropolitan Washington Airports Authority.

Concerned that federal funding for future improvements at Reagan and Dulles was not

sufficiently reliable, the Secretary of Transportation in 1984 appointed a commission to develop a

plan to create a regional airport authority. CAAN, 501 U.S. at 257. “The Commission

recommended that the proposed authority be created by a congressionally approved compact

between Virginia and the District.” Id.

“Emphasizing the importance of a ‘non-political, independent authority,’ the Commission

recommended that members of the board ‘should not hold elective or appointive political office.’”

CAAN, 501 U.S. at 257 (citation omitted). The Commission also recommended that the board be


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comprised of “11 members serving staggered 6-year terms, with 5 members to be appointed by the

Governor of Virginia, 3 by the Mayor of the District, 2 by the Governor of Maryland, and 1 by the

President, with the advice and consent of the Senate.” Id.

Virginia and the District supported the Commission’s recommendations and each enacted

compact-legislation to create MWAA in 1985. 1985 Va. Acts ch. 598; 1985 D. C. Law 6-67.

Under the Compact, MWAA performs “essential governmental functions.” 1985 Va. Acts ch. 598

¶ 21, codified at Va. Code Ann. § 5.1-172 (2010). The Compact makes MWAA immune from tort

liability for the performance of any “governmental function,” and liable only for its contracts and

torts occurring in the conduct of “any proprietary function.” Id. § 22(B), codified at Va. Code Ann.

§ 5.1-173. The compact is required to be “liberally construed,” “being necessary for the welfare of

the Commonwealth . . . and its inhabitants.” Id. § 24, codified at Va. Code Ann. § 5.1-175.

Congress approved the Compact the following year. Metropolitan Washington Airports Act

of 1986, Pub. L. No. 99-591, Tit. VI, 100 Stat. 3341-376 (1986), codified at 49 U.S.C. § 49101 et

seq. The Act approving the Compact also authorized the Secretary of Transportation to enter into a

long-term, 50-year lease with MWAA and to give it control over both airports. 49 U.S.C.

§§ 49102, 49104. MWAA is required to “operate, maintain, protect, promote, and develop the

Metropolitan Washington Airports as a unit and as primary airports serving the Metropolitan

Washington area.” Id. § 49104(a)(1). It is empowered “to levy fees or other charges.” Id.

§ 49106(b)(1)(E). In § 49104(a)(3), Congress made MWAA subject to the same requirements

applicable to airports receiving federal grants – it must set “charges for the use of facilities . . . that

will make the airport as self-sustaining as possible . . . .” 49 U.S.C. § 47107(a)(13)(A). And “all

revenues” generated by the “Metropolitan Washington Airports” are required to be used solely for

the “capital and operating costs” of the airports. 49 U.S.C. § 49104(a)(3).


5

Importantly for this case, Congress specifically defined – as part of Dulles Airport itself –

the right-of-way through the Dulles Corridor on which the Access Road and Toll Road were built:

“Washington Dulles International Airport” means the airport constructed under the Act of September 7, 1950 (ch. 905, 64 Stat. 770), and includes the Dulles Airport Access Highway and Right-of-way, including the extension between Interstate Routes I-495 and I-66.

49 U.S.C. § 49103.

In 1987, in accordance with the Act, the Secretary of Transportation granted the 50-year

lease to MWAA (the “Federal Lease”). CAAN, 501 U.S. at 261. The Federal Lease also included

the entire Dulles Corridor right-of-way. (Ex. 21, Arts. 1.L, 3.A.) MWAA was required to pay $3

million a year to the United States in annual rental payments. (Id. Art. 16.A.).

The Federal Lease gave MWAA full control over the Dulles Corridor right-of-way, subject

to Virginia’s existing easement for the Toll Road. (Id. Art. 11.G(1).) Pursuant to that control, for

example, MWAA issued additional easements to Virginia to widen the Toll Road. (Ex. 2, Master

Transfer Agreement, Recital C.)

C. Virginia’s Transportation Improvements in the Dulles Corridor and Its Commitment to Extend Metrorail to Dulles, Relying on Surplus Revenues from the Toll Road.

Beginning in 1990, Virginia committed itself to building various improvements in the Dulles

Corridor, including extending Metrorail to the Airport. This commitment began with ad hoc Bond

Acts in 1990 and 1995, and it was codified in 2004. As shown below, Virginia clearly recognized

that Metrorail, the Access Road, and the Toll Road were three interrelated transportation modalities

within the same vital transportation corridor.

In 1990, the General Assembly amended the Bond Act of 1989. 1990 Va. Acts ch. 251, § 13

(Ex. 5). The 1989 Bond Act had authorized $252.6 million in funding to widen the Toll Road, but it

said nothing about Metrorail or mass transit. 1989 Va. Acts ch. 615 (Ex. 4.)


6

The 1990 Act specifically permitted the Commonwealth Transportation Board (or “CTB”)

to “provide for additional improvements to the Dulles Toll Road and Dulles Access Road corridor

including, but not limited, to mass transit . . . from surplus net revenues of the Dulles Toll Road.”

1990 Va. Acts ch. 251, § 13 (Ex. 5). Use of surplus Toll Road revenues was not limited to “mass

transit,” but included “capacity enhancing treatments, such as High Occupancy Vehicle lanes,

interchange improvements, commuter parking lots and other transportation management strategies.”

Id. The statute restricted using Toll Road revenues, however, to the “Dulles Toll Road and Dulles

Access Road corridor.” Id. §§ 13-14 (emphasis added).1

In 1995, the General Assembly approved another $45 million in bonds for the Toll Road,

again authorizing the CTB to use surplus Toll Road revenues to fund various improvements in the

Dulles Corridor, including mass transit. 1995 Va. Acts ch. 560, §§ 2, 14 (Ex. 22).

In 1999, a committee of the Virginia House of Delegates reported that the “extension of rail

from West Falls Church to Dulles Airport through Tysons Corner is a critical transportation

component to the continued economic support and future development of Tysons Corner, Virginia’s

largest economic and employment center.” H. Doc. No. 23, Tyson's Corner Interim Transportation

Improvements at 2 (Va. 1999).2

In 2000, the General Assembly again stated its strong support for extending Metrorail to

Dulles “to ensure that Tysons Corner and the Dulles Corridor become and remain a first-class

global international center of retail, culture, and business, and home of major corporations.” H.J.

1 The Virginia Attorney General subsequently opined that the 1990 Bond Act permitted the

CTB to use surplus Toll Road revenues to construct a commuter parking lot in Loudoun County. 1998 Op. Att’y Gen. 91, 1998 Va. AG LEXIS 18. The CTB, he said, was entitled to “[g]reat deference in determining whether a particular facility was included within the ‘Dulles Corridor.’” Id.; see also 2004 Op. Att’y Gen. No. 03-121, 2004 Va. AG LEXIS 10 (same).

2 Available at http://leg2.state.va.us/dls/h&sdocs.nsf/Published%20by%20Year? OpenForm.


7

Res. 165 (Va. 2000) (Ex. 6). The legislature urged “every effort” to cause the project to be “funded

and move forward, sooner than the 2010 time table, if feasible.” Id.

In 2001, the CTB passed a resolution that, beginning in 2003, 85% of the surplus revenues

from the Dulles Toll Road would be set-aside for “mass transportation initiatives in the Dulles

Corridor.” See H.J. Res. 200 (Va. 2002) (Ex. 7). The General Assembly approved that approach in

2002 and encouraged further “innovative alternative management strategies for transportation

facilities and revenues in the Dulles Corridor.” Id.

In 2004, the General Assembly solidified and codified its commitment to building Metrorail

to Dulles. The General Assembly declared that “mass transit related improvements in the Dulles

Corridor are deemed to be of regional and national significance” and that the issuance of revenue

bonds “would accelerate the development of mass transit in the Dulles Corridor to improve safety,

reduce congestion, and stimulate economic development.” 2004 Va. Acts ch. 807 (Ex. 8). It

amended the State Revenue Bond Act specifically to define “Transportation improvements in the

Dulles Corridor” as a bond-eligible project. 2004 Va. Acts ch. 807, § 1 (amending Va. Code Ann. §

33.1-268(2)(n)). This definition of the Dulles Corridor “project” included

without limitation the Dulles Toll Road, the Dulles Access Road, outer roadways adjacent or parallel thereto, mass transit, including rail, bus rapid transit, and capacity enhancing treatments such as High-Occupancy Vehicle lanes, High-Occupancy Toll (HOT) lanes, interchange improvements, commuter parking lots, and other transportation management strategies.

Id. (emphasis added). With the inclusion of “mass transit” (among other transportation modalities)

in the definition of the Dulles Corridor “project,” the CTB now had express authority under the

State Revenue Bond Act to issue its own revenue bonds to fund construction of Metrorail to Dulles,

using revenues from the Toll Road. See Va. Code Ann. § 33.1-269(2) (Supp. 2010).

But the General Assembly did not stop there. The 2004 Act also authorized the issuance of


8

$145 million in new “Commonwealth of Virginia Transportation Credit Assistance Revenue

Bonds” for “mass transit in the Dulles Corridor.” 2004 Va. Acts ch. 807, § 2 at § 2 (Ex. 8). These

bonds were specifically to be repaid using revenues “generated by the Dulles Toll Road.” Id. § 11.

In 2005, the CTB raised tolls on the Toll Road to 75 cents at the main gate and 50 cents at

the exit ramps, expressly reserving the entire toll increase to fund Virginia’s share of the cost of

extending Metrorail to Dulles. (Compl. ¶¶ 83-84.)

D. MWAA Agrees to Assume Virginia’s Share and to Build Metrorail to Dulles Using the Same Toll Road Funding Mechanism.

MWAA shared Virginia’s goal of extending Metrorail to Dulles; it was one of MWAA’s

“highest priorities.” (Compl. ¶ 88.) Indeed, the FAA’s 1985 Master Plan for Dulles provided that

the median strip in the Access Road be “reserved for a future transit line and anticipated that this

would likely be an expansion of the region’s Metrorail system.” (Ex. 11 at 4.) Congress directed

MWAA to assume responsibility for that Master Plan. 49 U.S.C. § 49104(a)(6)(A).

In December 2005, Virginia received MWAA’s proposal to “operate the Dulles Toll Road

and oversee construction of the Metrorail Project.” (Compl. ¶ 87.) In March 2006, Virginia and

MWAA entered into a Memorandum of Agreement to pursue that objective. (Id. ¶ 94-98.)

In November 2006, the Federal Transit Administration concluded that the requirements of

the National Environmental Policy Act of 1969 “have been satisfied for the Dulles Corridor

Metrorail Project.” (Ex. 11, FTA Amended Record of Decision (Nov. 17, 2006).) The FTA echoed

the Virginia General Assembly’s 2004 conclusion (Ex. 8) that Metrorail was needed to reduce

congestion in the Dulles Corridor. The FTA stated that the rail line would best provide “shorter

travel times for trips within the corridor,” the “greatest increase in person throughput capacity,” and

the best “overall mobility within the corridor.” (Ex. 11 at 4.) It would also “benefit the airport’s

operator, tenants, and air passengers.” (Id. at 4-5.)


9

In December 2006, VDOT and MWAA entered into a Master Transfer Agreement. (Ex. 2.)

The Master Transfer Agreement included the terms of the Permit (Ex. 3) that, when issued, would:

(i) authorize MWAA to operate the Toll Road and to determine the tolls to be charged, after public

notice and hearing; (ii) obligate MWAA to construct the Metrorail Project in the Dulles Corridor;

and (iii) require MWAA to use Toll Road revenues solely and exclusively for transportation

improvements within the Dulles Corridor. (Compl. ¶¶ 99-102; Ex. 3, Permit at §§ 4.01, 6.01, 7.01.)

E. After Favorable Rulings in Gray, Virginia Transfers the Toll Road to MWAA, and Then MWAA Issues $1 Billion in Bonds and Starts Construction.

The plan to extend Metrorail to Dulles had its detractors. One Virginia House Delegate

repeatedly introduced legislation to prohibit VDOT from transferring control of the Toll Road to

MWAA; his efforts failed in 2006; H.B. 5010 (Va. 2006) (failed 9/28/2006) (Ex. 9); H.B. 5068 (Va.

2006) (failed 9/29/2006) (Ex. 10); and again in 2007, H.B. 1650 (Va. 2007) (Appropriations Bill,

Items 427 #2h and 445 #1h) (Ex. 12).

Other detractors resorted to litigation. In January 2007, two Toll Road drivers sued Virginia

and MWAA, in the Circuit Court of the City of Richmond, seeking to invalidate the Master

Transfer Agreement. They asked the court to declare that using Toll Road moneys for Metrorail

was an illegal tax under the Virginia Constitution. Gray, 276 Va. at 99-100, 662 S.E.2d at 69. The

Corr Plaintiffs’ counsel in this case (Patrick McSweeney) also represented the plaintiffs in Gray.

The trial court initially dismissed the case based on sovereign immunity. The Virginia Supreme

Court reversed and remanded, holding that sovereign immunity did not bar suit against the

Commonwealth under “self-executing” provisions of the Virginia constitution. Id. at 106-07, 662

S.E.2d at 73.

On October 22, 2008, however, the trial court on remand granted Virginia’s motion for

summary judgment, ruling, among other things, that the tolls were not a tax. Gray v. Va. Sec’y of


10

Transp., CL-07-203 (Richmond Cir. Ct. Oct. 20, 2008) (Ex. 14.)3 This cleared the way for the Toll

Road transfer to proceed.

On October 29, 2008, the U.S. Secretary of Transportation certified that MWAA’s operation

of the Toll Road was a valid “Airport Purpose” under the Federal Lease (Ex. 17, ¶ 10) and that

MWAA could properly use Toll Road revenues to pay for the Metrorail project (id. ¶ 12).

On November 1, 2008, VDOT issued the Permit and transferred control of the Toll Road to

MWAA. (Compl. ¶ 114.)

In March 2009, the Federal Transit Administration entered into a “Full Funding Grant

Agreement” with MWAA, committing up to $900 million in federal funds towards MWAA’s

construction of Phase I of the Project. (Ex. 18 at 3.) As required by the FTA, MWAA certified that

it would be responsible to make “full payment of the Project Costs as necessary to complete the

Project.” (Id. at 11.)

Construction on Phase 1 began in March 2009 and, as of March 2011 – just before this

lawsuit was filed – was 33% complete. (Exs. 13, 19.) Phase 1 extends Metrorail 11.7 miles to

Wiehle Avenue in Reston and includes five new Metro stations. (Ex. 19.) Phase 2 will extend it

another 11.5 miles to Route 772 in Loudoun County, add six new stations, and provide direct access

to the Dulles terminal. (Ex. 13.)

MWAA issued $972 million in bonds for the project in 2009, secured by Toll Road

revenues. (Compl. ¶¶ 114-16.) MWAA issued another $343 million in bonds in 2010, also secured

by Toll Road revenues. (Ex. 20.) MWAA, moreover, is depending on Toll Road revenues to

finance Phase 2. (Compl. ¶ 123.)

3 The Court also ruled that MWAA was an indispensable party. Id. See Raphael Decl. ¶ 16.


11

F. This Court and the Fourth Circuit Reject the Tax Claims Again in Parkridge.

Another challenge to extending Metrorail to Dulles was filed in August 2009 against

MWAA, the Virginia Secretary of Transportation, and the U.S. Department of Transportation.

Parkridge 6 LLC v. U.S. Dep’t of Transp., 2010 U.S. Dist. LEXIS 34182 (E.D. Va. Apr. 6, 2010),

aff'd, 2011 U.S. App. LEXIS 5777 (4th Cir. Va. Mar. 21, 2011). Count II of that complaint

repeated the claim from Gray that the tolls are an unconstitutional tax. Judge Brinkema ruled that:

(i) the plaintiffs lacked standing; and (ii) the federally-approved compact creating MWAA

preempted any claim under the Virginia Constitution that the tolls were invalid. 2010 U.S. Dist

LEXIS 34182 at *11, *16-18. The Fourth Circuit affirmed on the ground that the claim should be

dismissed based on the “prudential component of standing.” 2011 U.S. App. LEXIS 5777 at *4-5.

G. The Current Lawsuit.

The Plaintiffs in this case seek to enjoin MWAA from charging any tolls on the Toll Road in

excess of the rate structure in effect before 2005. They request that a plaintiff class be certified on

behalf of all people who have used the Toll Road since 2005. Plaintiffs also seek to enjoin MWAA

from using Toll Road moneys to repay the more than $1 billion in bonds that MWAA has already

issued to fund the construction, as well as to prevent MWAA from pledging Toll Road moneys for

bonds that MWAA is required to issue in order to pay for Phase 2 of the project.

As in Gray and Parkridge, Plaintiffs complain that using toll road revenues to fund

Metrorail to Dulles is an illegal tax imposed by an unelected body. But in the wake of the dismissal

of those cases, Plaintiffs have revamped the theory. The claim now is based on the Federal

Constitution, although the Virginia claims are also repeated.

Count I alleges violations of the Due Process Clause of the 5th and 14th Amendments.

Count II alleges liability under 42 U.S.C. § 1983 based on violating the federal Due Process Clause,

as well as the Virginia Constitution. Count III alleges violations of the federal constitutional


12

guarantee of a “Republican Form of Government” (U.S. Const. art. IV, § 4), and the entitlement of

citizens of each state to “all Privileges and Immunities of Citizens in the several States” (Art. IV,

§ 2), as well as violations of the Virginia Constitution’s prohibition on the erection of a government

“separate from, or independent of, the government of Virginia” (Va. Const. art. I, § 14).

ARGUMENT

I. THE COMPLAINT SHOULD BE DISMISSED FOR LACK OF STANDING.

Federal judges must “‘presume that federal courts lack jurisdiction unless the contrary

appears affirmatively from the record . . . .’” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 342

n.3 (2006). Thus, plaintiffs asserting federal jurisdiction “carry the burden of establishing their

standing under Article III.” Id. at 342; Stephens v. County of Albemarle, 524 F.3d 485, 491 (4th

Cir. 2008) (plaintiff must prove standing). The Plaintiffs here cannot meet their burden.

A. Plaintiffs Lack Minimum Article III Standing.

The Supreme Court and Fourth Circuit have repeatedly set forth the minimum constitutional

requirements for Article III standing:

First, the plaintiff must have suffered an “injury in fact” – an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not “conjectural” or “hypothetical.” Second, there must be a causal connection between the injury and the conduct complained of – the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”

Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011) (quoting Lujan v. Defenders

of Wildlife, 504 U. S. 555, 560-61 (1992)) (alterations in original); Stephens, 524 F.3d at 491

(same).


13

Plaintiffs’ claims fail here because their injuries are not “particularized” and they are unable

to demonstrate a likelihood that the tolls would have been lower (or will be lower in the future) if

set by an “elected” body.

1. Plaintiffs’ Injuries Are Not Particularized Because Any Toll Payer Could Complain.

Plaintiffs claim standing by virtue of paying tolls that they contend are “taxes” because a

portion of the toll is used to build Metrorail to Dulles, rather than being spent solely on the Toll

Road. But as Plaintiffs themselves point out, “[t]here were over 110 million toll transactions on the

Dulles Toll Road in 2009” alone.” (Compl. ¶ 129.) Plaintiffs’ injuries are not “particularized”

because any other toll-payer could make the same claim.

The Supreme Court has long ruled that “[a]bsent special circumstances . . . standing cannot

be based on a plaintiff’s mere status as a taxpayer.” Winn, 131 S. Ct. at 1442. “This precept has

been referred to as the rule against taxpayer standing.” Id. at 1443. The Supreme Court has

“declined to lower the taxpayer standing bar in suits alleging violations of any constitutional

provision apart from the Establishment Clause.” Id. at 1445 (emphasis added).

The rule against taxpayer standing derives from Frothingham v. Mellon, 262 U. S. 447

(1923), where the Court reasoned that the administration of a “statute, likely to produce additional

taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is

indefinite and constantly changing, is essentially a matter of public and not of individual concern.”

Id. at 487 (emphasis added). “If one taxpayer may champion and litigate such a cause, then every

other taxpayer may do the same.” Id. The “rationale for rejecting federal taxpayer standing applies

with undiminished force to state taxpayers.” DaimlerChrylser, 547 U.S. at 345.

In a case remarkably similar to this one, Soling v. New York, 804 F. Supp. 532 (S.D.N.Y.

1992), the court ruled that a toll-paying driver lacked standing to claim that it was unconstitutional


14

for unelected transit authorities in New York to set the tolls. Like the plaintiffs in this case, he

argued that this practice violated Article IV, § 4, requiring the United States to guarantee to the

States a “Republican Form of Government.” Id. at 533. The court said that the driver’s status as a

“potential or actual tollpayer” was irrelevant. Id. at 534. “Otherwise, every citizen” paying the tolls

could make the same claim. Id. at 535. The court noted that “toll charges and uses of toll proceeds

are more or less ordinary grist for the mill of democratic political controversy.” Id. “Under these

circumstances, the political branches of government – the executive and the legislative – provide the

appropriate fora for exploration of plaintiff's complaints.” Id. 4

Moreover, in Williams v. Riley, 280 U.S. 78 (1929), California drivers unhappy with gas

prices claimed that it violated federal law for the State to impose a three-cent per gallon tax on

gasoline distributors. They said that this violated a federal law prohibiting States from imposing

tolls on vehicles traveling on highways constructed with federal funds. The Supreme Court held

that the drivers lacked standing to bring that claim because, like the plaintiffs in this case, the injury

was shared by “a vast number of taxpayers” and was “essentially a matter of public, and not of

individual, concern.” Id. at 80 (quoting Frothingham, 262 U.S. at 487).

The injuries claimed by Plaintiffs here are no more “particularized” than the injuries claimed

by the drivers in Soling and Williams. They should be rejected on the same ground.

2. Plaintiffs Cannot Prove Causation or Redressability Because They Cannot Show That An Elected Body Would Set Lower Tolls.

The Supreme Court also dismisses cases like this one for lack of standing because the

plaintiffs usually cannot show “causation” or “redressablility” – they cannot demonstrate that their

4 The Supreme Court of Virginia likewise expressed skepticism of the toll-payers’ standing

in Gray, 276 Va. at 102 n.5, 662 S.E.2d at 71 n.5. But the Court could not reach that question because no objection to standing was made in the trial court. Id. Unlike under federal law, standing is waived in Virginia if not challenged at the trial court level. Id.


15

taxes would likely have been lower (or will be lowered) in the absence of the unconstitutional

action. Just last month in Winn, for example, the Court found that the plaintiffs could not show that

invalidating the challenged tax credit “would prompt Arizona legislators to pass along the supposed

increased revenue in the form of tax reductions.” Id. at 1444 (quotation omitted). “Those matters

. . . are conjectural,” the Court said. Id. Although Justice Kagan, writing for the dissent, would

have found standing in Winn under the narrow exception for Establishment Clause challenges, she

said the Justices “all agree” that “taxpayers in the ordinary case” cannot “establish causation (i.e.,

that the disputed government measure affects their tax burden) or redressability (i.e., that a judicial

remedy would result in tax reductions).” Id. at 1451 (Kagan, J., dissenting).

The same is true here. Plaintiffs’ complaint is simply that an unelected body has imposed

tolls on the Toll Road. As shown above, however, the Virginia General Assembly has committed to

build Metrorail to Dulles and, since 1990, has authorized using Toll Road moneys for that purpose.

So even if an elected body like the General Assembly had set the tolls (or sets them in the future), it

is pure conjecture that the tolls would have been (or would be) any lower. Plaintiffs certainly

cannot show that to be “likely.” Winn, 131 S. Ct. at 1442.

B. The Prudential Standing Doctrine Also Warrants Dismissal.

Even if Plaintiffs in this case had Article III standing, this Court would still have the power

to dismiss the case – and it should – based on prudential standing concerns. The Supreme Court’s

jurisprudence on standing “contains two strands: Article III standing, which enforces the

Constitution’s case-or-controversy requirement, and prudential standing, which embodies judicially

self-imposed limits on the exercise of federal jurisdiction.” Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1, 11 (2004) (citations and quotations omitted).


16

Importantly for this case, prudential standing includes “the rule barring adjudication of

generalized grievances more appropriately addressed in the representative branches.” Id. at 12;

Parkridge, 2011 U.S. App. LEXIS 5777 at *4-5. This case is a classic example.

The Plaintiffs’ complaint that MWAA is an unelected body when it sets the tolls is really a

complaint that the Virginia General Assembly and the District of Columbia should not have created

MWAA in the first place, that Congress should not have ratified the MWAA Compact, and that

Virginia should not have transferred control of the Toll Road to MWAA. Those “political branches

of government – the executive and the legislative – provide the appropriate fora for exploration of

plaintiff's complaints.” Soling, 804 F. Supp. at 535.

Indeed, the Fourth Circuit applied this aspect of prudential standing in Parkridge when it

dismissed various constitutional and statutory challenges to the extension of Metrorail to Dulles,

including the plaintiffs’ claim for taxation-without-representation:

The injuries Appellants identify fall squarely within the prudential limitation on standing that courts refrain from exercising jurisdiction over a “‘generalized grievance’ shared in substantially equal measure by all or a large class of citizens.” Warth v. Seldin, 422 U.S. 490, 500 (1975) . . . . We therefore find that these claims are “more appropriately addressed in the representative branches.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004).

2011 U.S. App. LEXIS 5777 at *4-5.

Just as in Parkridge, therefore, prudential standing warrants dismissal here.

II. THE COMPLAINT FAILS TO STATE A CLAIM FOR FEDERAL CONSTITUTIONAL VIOLATIONS.

As noted above, the court in Gray agreed with the Commonwealth in 2008 that using Dulles

Toll Road revenues to fund Metrorail to Dulles did not transform the tolls into a “tax” under the

Virginia Constitution. The same arguments that carried the day in Gray require dismissal of the

“tax” claims again in this case; they are discussed in part III-C below at page 24.


17

But even assuming for the sake of argument that the tolls are a “tax,” the Plaintiffs have

failed to state a federal constitutional claim against MWAA. The Federal Constitution simply does

not create a personal right against “taxation without representation.” In addition, the law does not

allow Plaintiffs to bring a Bivens action against MWAA as an entity.

A. There Is No Federal Constitutional Right Against “Taxation Without Representation.”

Plaintiffs mistakenly think that McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819),

created a federal constitutional right against “taxation without representation.” That case involved

the question whether the State of Maryland could impose a tax on the Bank of the United States.

The Supreme Court, in an opinion by Chief Justice Marshall, held that the Bank was immune from

taxation because it was a federal instrumentality. The Court rejected the argument that a State could

be trusted to protect the federal interest. The State represented only its own citizens, not all the

citizens of the United States. Chief Justice Marshall explained:

The only security against the abuse of this power, is found in the structure of the government itself. In imposing a tax, the legislature acts upon its constituents. This is in general, a sufficient security against erroneous and oppressive taxation.

Id. at 428.

Plaintiffs assert that the last two sentences of this quote establish a broad, individual right

against taxation without representation. (Compl. at 1.) But Chief Justice Marshall was clearly not

speaking about personal rights. He was simply showing that a single state like Maryland was

systemically incapable of protecting the federal interest. He reiterated that point several pages later:

“In the legislature of the Union alone are all represented. The legislature of the Union alone . . . can

be trusted by the people with the power of controlling measures which concern all.” Id. at 431.

The Supreme Court has never found an individual right against “taxation without

representation” in the Federal Constitution. To the contrary, it has rejected that claim three times.


18

Just one year after McCulloch, Chief Justice Marshall authored another opinion for a

unanimous Court, Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820), in which he explained

that the no-taxation-without-representation principle did not shield District of Columbia residents

from paying taxes. Id. at 324-25. The difference was “obvious,” he wrote, between the manner in

which England subjugated the colonies and the voluntary decision by Americans to structure their

own government in a way that established some places, like the District of Columbia, where the

people were not represented in Congress:

The difference between requiring a continent, with an immense population, to submit to be taxed by a government having no common interest with it, separated from it by a vast ocean, restrained by no principle of apportionment, and associated with it by no common feelings; and permitting the representatives of the American people, under the restrictions of our constitution, to tax a part of the society . . . which has voluntarily relinquished the right of representation, and has adopted the whole body of Congress for its legitimate government, as is the case with the district, is too obvious not to present itself to the minds of all.

Id. at 324. Marshall also pointed out that if “according to the spirit of our constitution, the power of

taxation must be limited by the right of representation,” it would also prohibit raising revenues “by

duties, imposts, and excises.” Id. at 325.

The Supreme Court rejected the no-taxation-without-representation claim a second time in

Heald v. District of Columbia, 259 U.S. 114 (1922). Writing for a unanimous Court (again), Justice

Brandeis stated emphatically: “There is no constitutional provision which so limits the power of

Congress that taxes can be imposed only upon those who have political representation.” Id. at 124

(emphasis added).

The Court dispatched the claim a third time when it affirmed, without opinion, the ruling of

the three-judge court in Adams v. Clinton that the principle of “no taxation without representation’”

did not give DC residents any constitutional right to representation in Congress. 90 F. Supp. 2d 35,


19

54-55 (D.D.C.), aff’d, 531 U.S. 941 (2000). The trial court observed that “If there were a Justice

who would have been particularly sensitive to this reprise of the Revolutionary War battle cry of

‘no taxation without representation,’ surely it would have been Marshall – who served as a

company commander at Valley Forge.” Id. at 55. The court continued that if there were any good

reason to depart from Loughborough and Heald, “[i]t is for the Supreme Court, not us to proclaim

error in its past rulings . . . .” Id. The Supreme Court responded to that invitation with a summary

affirmance, giving a judicial back of the hand to the Plaintiffs’ theory here.

Lower courts applying Loughborough and Heald have consistently refused to recognize a

federal constitutional right against “taxation without representation.” Most cases come from the

District of Columbia where, unlike the Virginia citizen-plaintiffs here, none of the residents is

represented in Congress.5 But they also include other jurisdictions. E.g., Doe v. Maximus, 2010

U.S. Dist. LEXIS 122286, *14 (M.D. Tenn. Nov. 15, 2010) (“There is no legal basis for Plaintiff's

‘taxation without representation’ claim”). The Supreme Court of South Carolina, for example, aptly

put it this way:

[W]hile the American Revolution may have been spurred on by the rallying cry “no taxation without representation,” the federal Constitution that was subsequently drafted contained no express provision guaranteeing that as a right.

Campbell v. Hilton Head No. 1 Public Serv. Dist., 580 S.E.2d 137, 140 (S.C. 2003).

5 Breakefield v. District of Columbia, 442 F.2d 1227, 1228-29 (D.C. Cir. 1970) (affirming

dismissal of DC residents’ challenge to income tax imposed on them despite their lack of representation in Congress); Banner v. United States, 303 F. Supp. 2d 1, 14 (D.D.C. 2004) (“As clearly established, although District residents have no right to congressional representation, the federal government may tax them.”); Hobson v. Tobriner, 255 F. Supp. 295, 298-99 (D.D.C. 1966) (holding that three judge court was not warranted because claim was insubstantial where plaintiffs alleged that Congress was taxing DC citizens without representation).


20

In short, because “[t]here is no constitutional provision” creating a right against taxation

without representation, Heald, 259 U.S. at 124, all of Plaintiffs’ federal constitutional claims

should be dismissed with prejudice.

B. A Bivens Claim Cannot Be Asserted Against MWAA.

Counts I and III of the Complaint must also be dismissed for the independent reason that

they purport to assert federal constitutional claims directly against MWAA.

It is true that the Supreme Court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.

388 (1971), implied a cause of action for damages against federal agents who allegedly violated the

Constitution. But the Court has expressly refused to permit such claims against a federal agency or

a federal instrumentality like MWAA. FDIC v. Meyer, 510 U.S. 471, 484-86 (1994). See Corr.

Servs. Corp. v. Malesko, 534 U.S. 61, 69 (2001) (explaining that Meyer “emphasized that ‘the

purpose of Bivens is to deter the officer,’ not the agency”; that “to allow a Bivens claim against

federal agencies ‘would mean the evisceration of the Bivens remedy, rather than its extension’”; and

that “‘special factors’ counseled hesitation in light of the ‘potentially enormous financial burden’

that agency liability would entail”) (quoting Meyer, 510 U.S. at 484-86).

In light of Meyer, this Court routinely dismisses Bivens claims against federal entities. E.g.,

Byrd v. United States, 2010 U.S. Dist. LEXIS 125315, *5-6 (E.D. Va. Nov. 29, 2010) (Hilton, J.);

Clark v. NCUA, 2009 U.S. Dist. LEXIS 78666, *4-5 (E.D. Va. Aug. 28, 2009) (Ellis, J.), aff’d, 354

Fed. Appx. 805 (4th Cir. Dec. 1, 2009). So Counts I and III must likewise be dismissed.

III. THE COMPLAINT FAILS TO STATE A CLAIM FOR VIOLATIONS OF THE VIRGINIA CONSTITUTION.

Counts II and III claim that the tolls constitute a tax in violation of the Virginia Constitution,

in addition to the Federal Constitution. Count II includes the State-law claim as a predicate to a

§ 1983 violation. Count III does not cite § 1983 but asserts that MWAA’s very existence violates


21

Art. I, § 14 of the Virginia Constitution, which provides “no government separate from, or

independent of, the government of Virginia, ought to be erected or established within the limits

thereof.” (Compl. ¶ 173.) These State law claims are also fatally defective.

A. Plaintiffs May Not Base Their § 1983 Claim on Violations of Virginia Law.

Plaintiffs’ § 1983 claim in Count II must be dismissed to the extent it relies on Virginia law.

As the very first element of a § 1983 claim, “the plaintiff must prove that the defendant has

deprived him of a right secured by the ‘Constitution and laws’ of the United States.” Adickes v.

S.H. Kress & Co., 398 U.S. 144, 150 (1970) (quoting 42 U.S.C. § 1983) (emphasis added). The

purpose of § 1983 is “to provide a remedy for the violation of federal rights.” Crawford-El v.

Britton, 523 U.S. 574, 595 (1998) (emphasis added). The Supreme Court therefore rejects § 1983

claims premised solely on State law violations.6 Lower courts do too.7

Thus, the State law claims in Count II should be dismissed.

B. The MWAA Compact Preempts Plaintiffs’ Virginia Law Claims.

The MWAA Compact preempts Plaintiffs’ contention that the Virginia Constitution requires

that MWAA be an elected body before it can set tolls on the Toll Road. “[C]ongressional consent

‘transforms an interstate compact within [the Compact] Clause into a law of the United States.’”

New Jersey v. New York, 523 U.S. 767, 811 (1998) (quoting Cuyler v. Adams, 449 U.S. 433, 438

(1981)). As a result, federally approved “compacts may be enforced despite otherwise valid state

6 E.g., Baker v. McCollan, 443 U.S. 137, 146 (1979) (holding that § 1983 liability cannot be

premised on state tort law violations); Paul v. Davis, 424 U.S. 693, 700 (1976) (stating that violation of a plaintiff’s rights under state law “does not necessarily mean that he is deprived of any right protected or secured by the Constitution or laws of the United States.”) (quoting Screws v. United States, 325 U.S. 91, 108-09 (1945)).

7 E.g., Huron Valley Hosp., Inc. v. Pontiac, 887 F.2d 710, 714 (6th Cir. 1989) (§ 1983 “is thus limited to deprivations of federal statutory and constitutional rights. It does not cover official conduct that allegedly violates state law.”).


22

restrictions on state action.” West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 34 (1951) (Reed, J.,

concurring) (emphasis added). Indeed, an interstate compact is valid despite a State’s later claim

that it “involves a principle which might be inconvenient, or even pernicious to the State” in some

respect. Green v. Biddle, 21 U.S. (8 Wheat) 1, 89 (1823).

The Court in Sims, for instance, held that West Virginia was bound by the Ohio River

Valley Water Sanitation Compact even though the supreme court of West Virginia ruled, after the

compact was signed, that it violated the State constitution. 341 U.S. at 26. Similarly, the Court in

Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938), upheld the La Plata

River Compact, which apportioned water rights between Colorado and New Mexico, despite claims

by Colorado citizens that it violated their pre-existing, vested water rights under Colorado’s

constitution. Id. at 99.

Various courts have likewise held that MWAA’s federal compact powers preempt

inconsistent provisions under the Virginia Constitution.8 Indeed, Judge Brinkema applied this

compact-preemption principle in dismissing the identical tax claim in Parkridge:

MWAA’s Compact gives it broad authority to “fix, revise, charge, and collect rates, fees . . . and other charges for the use of the airports.” Va. Code § 5.1-156(A)(8); 49 U.S.C. § 49106(b)(1)(E) (MWAA “shall be authorized . . . to levy fees or other charges”). The “airports” are defined to include the “Dulles . . . Right-of-way” on which the Route 267 toll road was built. 49 U.S.C. § 49103 (3)-(4); Va. Code § 5.1-152. The MWAA is therefore authorized to levy tolls on the roadway, and any Virginia law or provision of the Virginia Constitution that conflicts with that authority is preempted under the

8 See Alcorn v. Wolfe, 827 F. Supp. 47, 53 (D.D.C. 1993) (holding that Va. Const. art. V,

§ 7, as applied to MWAA, was “preempted under the Supremacy Clause and caselaw governing the construction of interstate compacts”); Virginia v. Achu, 54 Va. Cir. 109, 109-10 (Loudoun 2000) (rejecting claims that MWAA’s creation and its regulations violated the Virginia Constitution, finding that MWAA’s “provisions enjoy supremacy over inconsistent state and constitutional mandates”); Fairchild Corp. v. MWAA, 50 Va. Cir. 127, 132 (Loudoun 1999) (stating that MWAA’s statutory powers “enjoy supremacy over inconsistent state statutory and constitutional mandates and must be interpreted in light of federal law”).


23

Supremacy Clause of the United States Constitution. U.S. Const, art. VI, § 2.

2010 U.S. Dist. LEXIS 34182 at *17-18 (emphasis added).

There is no reason for a different ruling here.

It bears mention that Plaintiffs’ theory of the case would impose a new, dangerous, and

entirely unheard-of obstacle to the operation of countless interstate compact entities like MWAA.

The plaintiff-class proposed by Corr, for instance, is comprised of drivers who paid tolls on the Toll

Road since 2005. (Compl. ¶ 128-129.) They are not limited to Virginia residents but necessarily

include tens of thousands from other States and DC, not to mention foreign nationals who also use

the Toll Road. It would be impossible to obtain the Toll Road users’ consent before the tolls are set,

let alone create a board of directors elected by them.

As of 2003, there were some 114 interstate compact agencies and commissions.9 Interstate

compacts routinely empower entities like MWAA to set tolls, fees, and charges for their facilities,

and to use the moneys they raise to repay revenue bonds issued for their capital projects. E.g.,

Delaware River Port Authority Compact, N.J. Stat. Ann. § 32:3-5(j) (1990 & 2011 Supp.).

Interstate compacts allow States to solve their regional problems when each would be incapable of

doing so alone. MWAA’s appointed board was also conceived in the belief that it needed a margin

of independence from parochial influences. CAAN, 501 U.S. at 257.

No precedent whatsoever supports the Plaintiffs’ effort to kill an interstate compact entity

like MWAA by imposing a novel application of the “no taxation without representation” principle.

9 See Council of State Governments, Interstate Compacts & Agencies 163-65 (2003),

available at http://www.csg.org/knowledgecenter/docs/ncic/CompactsAgencies95.pdf


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C. The Tolls Are Not Taxes.

The argument at the heart of Plaintiffs’ case is also completely wrong. The tolls that drivers

pay to use the Toll Road are not “taxes” for two independent reasons.

First, payment of the toll is purely voluntary. By contrast, 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, 185 Va. 577, 582, 39 S.E.2d 277,

280 (1946) (emphasis added) (holding that fee for voluntary sewer connection was not a tax).

As Plaintiffs concede, no one is forced to use the Toll Road; “drivers [may] choose other,

less convenient or efficient routes in the face of rising tolls.” (Compl. ¶ 127 (emphasis added).) But

choosing to drive on the Toll Road because other roads are “less convenient” is a far cry from

paying one’s income or property tax; the latter (like the adage about “death and taxes”) cannot be

avoided, at least not without paying civil and criminal sanctions. The voluntary nature of the toll

distinguishes it from mandatory fees that, if used for general revenue purposes, can constitute an

unlawful tax. Marshall v. N. Va. Transp. Auth., 275 Va. 419, 426, 657 S.E.2d 71, 74 (2008)

(invalidating mandatory vehicle registration, repair, and other fees).

Second, even assuming that drivers were somehow “compelled” to use the Toll Road, the

tolls would not be a tax because the proceeds are not used as general revenues for unrelated

purposes; rather, the revenues are specifically limited to transportation improvements within the

Dulles Corridor, a transportation artery containing various transportation modalities that Virginia

has expressly defined as a single transportation “project,” Code § § 33.1-268(2)(n), and which

MWAA now maintains and operates as a single enterprise.

The Virginia Supreme Court has repeatedly held that the government does not impose an

unlawful “tax” when, while operating a utility or similar enterprise, it uses fee revenues from one

part of the system to finance improvements in the system as a whole. This principle is found in two


25

lines of cases: those involving the validity of utility fees challenged as a tax; and those involving

whether revenue bonds secured by user fees trigger the requirement for voter approval or constitute

taxation without representation.

With regard to utility fees, the Virginia Supreme Court has repeatedly held that the proper

focus is on whether the fee is needed to meet the needs of the utility as a whole, not on whether the

fee exceeds the benefit conferred on the individual ratepayer. For example, the City of Virginia

Beach did not “tax” its citizens when it imposed a substantial connection charge on new water

customers and used the proceeds to secure revenue bonds needed to build a massive pipeline to

Lake Gaston. Tidewater Ass’n of Homebuilders, Inc. v. City of Virginia Beach, 241 Va. 114, 120-

21, 400 S.E.2d 523, 527 (1991). The Court rejected the argument that there was “no particularized

benefit to those who pay the fee.” Id. at 120, 400 S.E.2d at 527. Similarly, in Eagle Harbor, LLC

v. Isle of Wight County, 271 Va. 603, 628 S.E.2d 298 (2006), the sizable tap fees for new water and

sewer connections raised money “to meet the policy goal of having a self-sufficient utility system.”

Id. at 618, 628 S.E.2d at 306. When viewed from a system-wide perspective, the fees bore a proper

relationship to the locality’s costs of constructing and operating the system as a whole. Id. at 618-

19, 628 S.E.2d at 306. It did not matter that the tap fee greatly exceeded the benefit conferred on

the individual customer who paid it. Id. at 608, 628 S.E.2d at 300.10

The same principle underlies the Court’s revenue bond cases. The Virginia Constitution

prohibits the Commonwealth from incurring debt for capital projects secured by the full faith and

credit of the Commonwealth – i.e., the taxpayers’ obligation to pay the bill – without an election to

approve it. Va. Const. art. Art. X, § 9(b). Similar provisions apply to local debt. See Va. Const.

10 As discussed supra at 4, MWAA is statutorily required to operate the airports together

(including the Dulles Corridor) as an enterprise fund. It must charge fees for the use of facilities in order to be self-sufficient, ensuring that all of the revenues are kept within the system.


26

art. VII, § 10. But in Almond v. Gilmer, 188 Va. 822, 51 S.E.2d 272 (1949), the Court adopted the

Special Fund Doctrine, recognized by a “vast majority of the States,” when it upheld the first State

Revenue Bond Act. Id. at 842-47, 51 S.E.2d at 280-82. Revenue bonds, the Court said, impose “no

indirect or contingent obligation . . . upon the State to levy any tax or make any appropriation

toward the enterprise.” Id. at 840, 51 S.E.2d at 279. Accordingly, the constitutional requirement

that voters approve the debt did not apply because the bonds would be repaid “solely from a special

fund derived from the revenue of the enterprise for which such obligations are issued.” Id. at 844,

51 S.E.2d at 281 (citation and quotation omitted). And in Farquhar v. Bd. of Sup'rs, 196 Va. 54,

62-63, 82 S.E.2d 577, 583 (1954), the Court rejected the claim that the use of such a funding

mechanism constituted “taxation with representation.” Id. at 62-63, 82 S.E.2d at 583.

The Court subsequently broadened the concept of what constitutes a “project” or

“enterprise“ under the Special Fund doctrine. In Button v. Day, 204 Va. 270, 130 S.E.2d 459

(1963), it held that state universities could pledge revenues from existing facilities to help repay

bonds issued to construct new college facilities without running afoul of Virginia’s Constitution. Id.

at 273-74, 130 S.E.2d at 462. The Court expanded the doctrine again in Button v. Day (II), 205 Va.

739, 139 S.E.2d 838 (1965), where it upheld an amendment to the Virginia College Building

Authority Act that made revenues from other existing college facilities available to repay the bonds.

Id. at 743, 139 S.E.2d at 840. The new and existing facilities were part and parcel of the same

“project” or “enterprise” that was the subject of the “special fund.” Id.

Virginia’s and MWAA’s treatment of the Dulles Corridor fit squarely within the Special

Fund doctrine. Since 1990, Virginia has treated the Dulles Toll Road, the Access Road, and

Metrorail to Dulles as part of the same “Dulles Corridor” project. 1990 Va. Acts ch. 251, §§ 13-14

(Ex. 5); 1995 Va. Acts ch. 560, § 14 (Ex. 22); 2004 Va. Acts ch. 807 (Ex. 8). Virginia codified that


27

judgment in the 2004 Act when it amended Virginia’s State Revenue Bond Act to identify as a

single project – “Transportation improvements in the Dulles Corridor” – which includes the Toll

Road, the Access Road, and mass transit. Va. Code § 33.1-268(2)(n) (Ex. 8). This complies fully

with the Special Fund Doctrine and plainly allows revenues from the Toll Road to be used for

Metrorail to Dulles. MWAA is likewise reserving all Toll Road revenues solely and exclusively for

transportation improvements within the Dulles Corridor. (Compl. ¶ 102; see Ex. 3, Permit,

§ 4.01(d) at 9.) It is simply using money from one modality of transportation within the Dulles

Corridor to fund another modality of transportation within the same corridor. This is necessary to

“reduce congestion,” as Virginia stated (Ex. 8), and to provide “shorter travel times for trips within

the corridor,” increase the “person throughput capacity,” and provide the best “overall mobility

within the corridor,” as the FTA concluded (Ex. 11 at 4).

Significantly, the trial court in Gray entered judgment for Virginia, concluding that tolls

were not taxes. CL-07-203 at 2 (Ex. 14.) Although the trial judge did not issue a written opinion on

this issue, her ruling was explicitly based on “the reasons stated in the Defendants’ Motion and

Reply.” (Id. at 1.) Notably, the Commonwealth made both of the arguments here in its papers in

Gray: that the tolls are voluntary payments, not taxes, and that using toll revenues to fund Metrorail

to Dulles is proper because it is part of the same project or enterprise under Virginia law. (See Ex.

15 at 30-32; Ex. 16 at 10-15.) Those arguments should prevail in this case as well.

IV. PLAINTIFFS’ CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS AND LACHES.

Even assuming that Plaintiffs had standing and could state a viable claim, most of their

damages are time-barred and laches would preclude their request for injunctive relief.


28

A. All Refund Claims Older Than Two Years Are Time-Barred.

Each of the claims asserted in this case is governed by a two-year statute of limitations. The

limitations period for the Bivens and § 1983 claims is two years because it is borrowed from

Virginia’s statute of limitations for personal injury claims. Horton v. West, 2011 U.S. Dist. LEXIS

3964, *12 (E.D. Va. Jan. 13, 2011) (Ellis, J.) (“The timeliness of Bivens actions, like those brought

pursuant to § 1983, are governed by the statute of limitation for personal injury actions in the state

where the claim arose.”); Va. Code Ann. § 8.01-243(A) (Supp. 2010) (2 years for personal injuries).

And any direct claims for violating the Virginia Constitution are governed by Virginia’s catch-all

statute, which also provides a two-year limitations period. Va. Code Ann. § 8.01-248 (2007).11

Where the allegedly wrongful conduct involves repeated, discrete acts – here the payment of

tolls set by an unelected body – the limitations period commences from the date of each act, and the

failure to file suit within the limitations period bars the claim. See Ledbetter v. Goodyear Tire &

Rubber Co., Inc., 550 U.S. 618 (2007) (holding that Title VII claim for unequal pay was time-

barred where the discriminatory act occurred outside of the charging period, despite that plaintiffs’

paychecks reflected the historical effect of prior discrimination); Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002) (holding, in Title VII case, that “[e]ach discrete discriminatory

act starts a new clock for filing charges alleging that act.”). Although Ledbetter and Morgan were

11 A claim under Bivens or § 1983 accrues “when the plaintiff possesses sufficient facts

about the harm done to him that reasonable inquiry will reveal his cause of action.” Reinbold v. Evers, 187 F.3d 348, 359 n.10 (4th Cir. 1999) (quoting Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995) (en banc)). A claim under Virginia law for State constitutional violations involving economic loss would accrue on “the date the injury is sustained.” Va. Code Ann. 8.01-230 (2007). The accrual rule makes no difference here because Plaintiffs complain they have been paying the allegedly illegal tolls since 2005. (Compl. ¶ 3.)


29

decided under Title VII, lower courts hold that the same reasoning “applies equally to § 1983

cases.” Hildebrandt v. Ill. Dep't of Natural Res., 347 F.3d 1014, 1036 n.18 (7th Cir. 2003).12

Plaintiffs complain in this case that the “illegal exactions began with the 2005 increase in

tolls imposed by the Commonwealth Transportation Board.” (Compl. ¶ 3 (emphasis added).)

Accordingly, the two-year statute of limitations clearly bars any refund claims for tolls paid prior to

April 14, 2009 – two years before this suit was filed.

B. Plaintiffs’ Laches Bars Their Request for Injunctive Relief.

“Laches can bar constitutional claims.” Southside Fair Hous. Comm. v. City of New York,

928 F.2d 1336, 1354 (2d Cir. 1991); Soules v. Kauaians for Nukolii Campaign Comm., 849 F.2d

1176, 1181-82 (9th Cir. 1988) (same). In White v. Daniel, 909 F.2d 99 (4th Cir. 1990), for instance,

the Fourth Circuit ruled that the trial court abused its discretion when it failed to dismiss based on

laches when the plaintiffs had unreasonably delayed seeking injunctive relief to invalidate a voting

district they challenged as racially discriminatory. Id. at 102-05. Laches is properly raised on a

Rule 12(b)(6) motion. See Kloth v. Microsoft Corp., 444 F.3d 312, 325 (4th Cir. 2006) (affirming

trial court’s Rule 12(b)(6) dismissal of injunctive relief claims).

Laches bars the Plaintiffs’ injunctive relief claims here for the same reason as in Southside.

The plaintiffs there sued under the Establishment Clause to block the construction of a yeshiva

Academy and Hasidic synagogue. 928 F.2d at 1354-55. Although the trial court had not considered

laches, the Second Circuit found laches based on the record before it. The Court said that plaintiffs

had “inexcusably dragged their heels,” resulting in “manifest” prejudice to the Academy. Id. at

12 See also Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir. 2003) (finding “no principled basis upon which to restrict Morgan to Title VII claims”); Russell v. County of Nassau, 696 F. Supp. 2d 213, 230 (E.D.N.Y. 2010) (“claims for salary discrimination under . . . § 1983 . . . are governed by the Supreme Court’s analysis in Ledbetter”); Vereen v. Woodland Hills Sch. Dist., 2008 U.S. Dist. LEXIS 23075, at *42 (W.D. Pa. Mar. 24, 2008) (“the Morgan framework for identifying ‘discrete acts’ of discrimination applies to claims brought under section 1983”).


30

1355. The Academy’s construction plans (like the plans of Virginia and MWAA to extend

Metrorail to Dulles) had been known publicly for years. Id. The Academy had already spent $2.5

million in site development costs, had raised another $3 million, and had $6 million more in further

commitments. Id. Yet even after the Academy began construction at a public “groundbreaking,

appellants waited more than fourteen months to commence [their] lawsuit . . . .” Id. at 1355.

The Plaintiffs’ laches in this case is more stunning. They could have sued years ago.

Indeed, the plaintiffs in Gray filed suit in January 2007 based on the “no taxation without

representation” theory. The Gray plaintiffs were represented by the same counsel as Plaintiffs here.

Why Plaintiffs in this case waited until April 2011 to file suit is inexplicable, particularly since they

claim that the illegal tolls “began” in 2005. (Compl. ¶ 3.) Even after Virginia won the case in Gray

and transferred control over the Toll Road to MWAA in November 2008, Plaintiffs waited another

2½ years to file this action.

And while Plaintiffs “stood mute,” 928 F.2d at 1353, MWAA, on the other hand:

• signed a $1.6 billion contract to build Phase I of the project (Ex. 13);

• obtained $900 million from the FTA in exchange for promising to fund all other costs of Phase I (Ex. 18 at 3, 11);

• issued $972.3 million in bonds in 2009 (Compl. ¶ 116), and another $342.6 million bonds in 2010 (Ex. 20), all secured by revenues from the Toll Road; and

• as of March 2011, completed 33% of Phase I, including significant work on all five new Metro stations, building portions of the elevated track, and tunneling under Tysons Corner between Route 123 and Route 7 (Ex. 19).

The Plaintiffs’ indefensible delay, and the obvious prejudice to MWAA, are many orders of

magnitude worse than what happened in Southside. Because destroying MWAA’s key funding

source now would be disastrous, laches precludes the Plaintiffs’ claims for equitable relief.

CONCLUSION

The Complaint should be dismissed with prejudice.


31

Respectfully submitted: METROPOLITAN WASHINGTON AIRPORTS AUTHORITY By:______/s/_____________________ Stuart A. Raphael (VSB 30380) HUNTON & WILLIAMS LLP 1751 Pinnacle Drive, Suite 1700 McLean, Va. 22102 (703) 714-7463 (703) 918-4015 (fax) [email protected]

Thomas J. Cawley (VSB 04612) HUNTON & WILLIAMS LLP 1751 Pinnacle Drive, Suite 1700 McLean, Va. 22102 (703) 714-7424 (703) 714-7400 (fax) [email protected] Philip G. Sunderland (VSB 25604) Office of General Counsel Metropolitan Washington Airports Authority 1 Aviation Circle Washington, D.C. 20001-6000 (703) 417-8615

Counsel for Metropolitan Washington Airports Authority


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CERTIFICATE OF SERVICE

I certify that on May 5, 2010, I will electronically file this document with the Clerk of Court

using the CM/ECF system, which will then send a notification of the electronic filing (NEF) to all

counsel of record who are registered CM/ECF users, and that a copy will be emailed and hand-

delivered to the offices of:

Christopher I. Kachouroff, Esq. Dominion Law Center, P.C. 13649 Office Place, Suite 101 Woodbridge, Virginia 22192 [email protected]

Robert Cynkar, Esq. CUNEO, GILBERT & LADUCA, LLP 106-A South Columbus Street Alexandria, Virginia 22314 [email protected]

Counsel for Plaintiffs, John B. Corr and John W. Grigsby

and also emailed and sent by overnight delivery to the offices of:

Patrick M. McSweeney, Esq. 3358 John Tree Hill Road Powhatan, Virginia 23139 (804) 794-5740 [email protected] Additional Counsel for Plaintiffs

_________/s/__________________ Stuart A. Raphael (VSB 30380) HUNTON & WILLIAMS LLP 1751 Pinnacle Drive, Suite 1700 McLean, Va. 22102 (703) 714-7463 (703) 918-4015 (fax) [email protected]


33

LIST OF EXHIBITS (Attached to Accompanying Declaration of Stuart A. Raphael)

1. Deed of Easement (Jan. 10, 1983)

2. Master Transfer Agreement (Dec. 29, 2006)

3. Dulles Toll Road Permit and Operating Agreement (Dec. 29, 2006), First Amendment (July 9, 2007), and Second Amendment (Nov. 1, 2008)

4. 1989 Va. Acts ch. 615

5. 1990 Va. Acts ch. 251

6. H.J. Res. 165 (Va. 2000)

7. H.J. Res. 200 (Va. 2002)

8. 2004 Va. Acts ch. 807

9. H.B. 5010 (Va. 2006) (failed 9/28/2006)

10. H.B. 5068 (Va. 2006) (failed 9/29/2006)

11. Federal Transit Administration, Amended Record of Decision, Dulles Corridor Metrorail Project (Nov. 17, 2006)

12. H.B. 1650 (Va. 2007) (failed items 427 #2h and 445 #1h)

13. MWAA Newsletter, Dulles Corridor Metrorail Project (Aug. 5, 2008)

14. Gray v. Va. Sec’y of Transp., CL-07-203 (Richmond Cir. Ct. Oct. 20, 2008)

15. Defendants’ Motion for Summary Judgment, Gray v. Va. Sec’y of Transp., CL-07-203 (filed Aug. 15, 2008)

16. Defendant’s Reply to Plaintiffs’ Cross-Motion for Summary Judgment, Gray v. Va. Sec’y of Transp., CL-07-203 (filed Sept. 5, 2008)

17. US DOT Certificate issued to MWAA (Oct. 22, 2008)

18. FTA-MWAA Transmittal Correspondence and Executed Version of Full Funding Grant Agreement (Mar. 10, 2009)

19. MWAA Newsletter, Dulles Corridor Metrorail Project (March 2011)

20. Cover Page, Dulles Toll Road Revenue Bonds, Series 2010 (2010)


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21. Lease of the Washington Metropolitan Airports between the United States of America, acting by and through the Secretary of Transportation, and the Washington Metropolitan Washington Airports Authority (Mar. 2, 1987), as amended

22. 1995 Va. Acts ch. 560

99900.07754 EMF_US 35371297v8


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