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Federal Circuit Transfers Dulles Toll Road Challenge

By Robyn Hagan Cain on December 15, 2012 | Last updated on March 21, 2019

You can't blame the Federal Circuit Court of Appeals for what happens to the Dulles Toll Road.

The Metropolitan Washington Airport Authority (MWAA) operates the Dulles Toll Road in Virginia. Plaintiffs John Corr and John Grisby claim the tolls are a tax and constitute an illegal exaction in violation of the Due Process Clause because they are assessed by MWAA, an unelected body.

They also assert that the MWAA composition violates separation of powers by intruding on the president's authority under Article II.

The Dulles Airport Access Highway -- which is adjacent to the Toll Road -- connects Dulles Airport to Interstate 495 and Interstate 66. It was built on a portion of a federally-purchased right-of-way for the exclusive purpose of providing access to and from the Dulles Airport. In 1983, the federal government granted the Virginia Department of Highways and Transportation a 99-year easement within the right-of-way to construct, operate and maintain the Toll Road for the use of non-airport traffic.

The Toll Road opened in 1984, and became MWAA's problem in 2005.

MWAA is independent of the federal government, and authorized to "operate, maintain, protect, promote, and develop the Metropolitan Washington Airports as a unit and as primary airports serving the Metropolitan Washington area." Under its permit, MWAA was authorized to operate the Toll Road and collect toll revenues in consideration for its obligation to oversee the Dulles Corridor Metrorail Project and other transportation improvements in the Dulles Corridor.

In 2011, the plaintiffs filed their claim in the Eastern District of Virginia to challenge MWAA's authority to collect tolls. The district court dismissed the case with prejudice, holding that the plaintiffs' claims were barred by the prudential standing doctrine. Alternatively, the district court held that plaintiffs failed to state a claim under the Due Process Clause, that the tolls do not constitute a tax. The plaintiffs appealed to the Federal Circuit for a second opinion.

Since this complaint was filed in Virginia, you might be wondering why the Fourth Circuit didn't get the appeal. Well, it should have.

Though the plaintiffs alleged that the Federal Circuit had federal question jurisdiction -- as well as jurisdiction under the Little Tucker Act, -- the appellate court disagreed.

The Federal Circuit noted that the plaintiffs alleged federal question jurisdiction, and there was no dispute that the appeal could have been filed in the Fourth Circuit Court of Appeals. Accordingly, the court transferred the appeal to its Richmond-based sister circuit.

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