36 F.3d 97 (D.C. Cir. 1994), 94-7036, Hechinger v. Metropolitan Washington Airports Authority

Docket Nº:94-7036.
Citation:36 F.3d 97
Party Name:John W. HECHINGER, Jr.; Craig H. Baab; Citizens for the Abatement of Aircraft Noise, Inc., Appellees, United States of America, Intervenor for Appellee, v. METROPOLITAN WASHINGTON AIRPORTS AUTHORITY; Board of Review, Appellants.
Case Date:September 27, 1994
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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

John W. HECHINGER, Jr.; Craig H. Baab; Citizens for the

Abatement of Aircraft Noise, Inc., Appellees,

United States of America, Intervenor for Appellee,



Review, Appellants.

No. 94-7036.

United States Court of Appeals, District of Columbia Circuit

September 27, 1994

Argued May 19, 1994.

William T. Coleman, Jr., with whom Donald T. Bliss, Debra A. Valentine, and Matthew B. Pachman were on the briefs, for appellants.

Patti A. Goldman, with whom Alan B. Morrison was on the brief, for appellees.

Douglas Letter, Atty., U.S. Dept. of Justice, with whom Frank W. Hunger, Asst. Atty. Gen., and Eric H. Holder, Jr., U.S. Atty., were on the brief, for intervenor U.S.

Before BUCKLEY, WILLIAMS, and ROGERS, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

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BUCKLEY, Circuit Judge:

The Metropolitan Washington Airports Authority operates the Washington National and Dulles International Airports under lease from the Federal Government and is required by statute to submit certain actions to a Board of Review before they may take effect. As originally enacted, the statute stipulated that the Board be composed entirely of Members of Congress and gave it the power to veto the Authority's actions. In 1991, the Supreme Court held that the Board was an agent of Congress and that it exercised federal power in violation of the doctrine of the separation of powers. The Court's decision was based in significant degree on the Board's mandatory congressional membership and its veto power. Although Congress has since amended the statute to eliminate these provisions, we conclude that the amendments impose other qualifications for Board membership and have vested the Board with other powers that, together, continue to offend the Constitution.


In 1987, the Secretary of Transportation entered into a long-term lease of the Washington National and Dulles International Airports to the Metropolitan Washington Airports Authority ("Authority"), an independent regional authority that had been created two years earlier by compact between the Commonwealth of Virginia and the District of Columbia. Prior to that time, the two airports had been operated by the Federal Government.

The lease was authorized by the Metropolitan Washington Airports Act of 1986 ("Transfer Act") (codified as amended at 49 U.S.C.App. Secs. 2451-2461 (1988 & Supp. III 1991)). Congress conditioned the lease on the Authority's establishment of a Board of Review ("Board") consisting of nine Members of Congress. Id. Sec. 2456(f)(1) (1988) (superseded); Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 259, 111 S.Ct. 2298, 2303, 115 L.Ed.2d 236 (1991) ("CAAN"). Under the congressional scheme, the Authority was required to submit the following actions for the Board's consideration at least 30 calendar days before they were to become effective (60 days in the case of the annual budget):

(i) the adoption of an annual budget;

(ii) the authorization for the issuance of bonds;

(iii) the adoption, amendment, or repeal of a regulation;

(iv) the adoption or revision of a master plan, including any proposal for land acquisition; and

(v) the appointment of the chief executive officer.

49 U.S.C.App. Sec. 2456(f)(4)(B) (1988) (superseded). If the Board did not disapprove an action within 30 days, it could take effect. 49 U.S.C.App. Sec. 2456(f)(4)(C) (1988) (superseded).

On June 17, 1991, the Supreme Court ruled that the Board was vested with power that violated the constitutional doctrine of the separation of powers. CAAN, 501 U.S. at 275-76, 111 S.Ct. at 2312 (1991) (affirming judgment in Citizens for the Abatement of Aircraft Noise, Inc. v. Metropolitan Washington Airports Auth., 917 F.2d 48 (D.C.Cir.1990)). Within six months, Congress enacted amendments to the Transfer Act ("1991 Amendments" or "Amendments") that effected major changes in the composition and powers of the Board.

We begin with the first. As originally enacted, the Transfer Act required that the nine members of the Board be Members of Congress, of whom eight had to be members of specified congressional committees having jurisdiction over transportation issues. The Board members were to be chosen from lists furnished by the Speaker of the House and the President pro tempore of the Senate. 49 U.S.C.App. Sec. 2456(f)(1) (1988) (superseded). The Supreme Court noted the following problems with this arrangement:

The list system, combined with congressional authority over committee assignments, guarantees Congress effective control over appointments. Control over committee assignments also gives Congress effective removal power over Board members because depriving a Board member of membership in the relevant committees

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deprives the member of authority to sit on the Board.

CAAN, 501 U.S. at 269, 111 S.Ct. at 2308. After this admonishment, Congress revised the composition of the Board to require that

[m]embers of the Board of Review shall be individuals who have experience in aviation matters and in addressing the needs of airport users and who themselves are frequent users of the Metropolitan Washington Airports. A member of the Board of Review shall be a registered voter of a State other than Maryland, Virginia, or the District of Columbia.

49 U.S.C.App. Sec. 2456(f)(2)(C). While the Authority's Board of Directors ("Directors") continues to appoint the members of the Board of Review and now has the power to remove members for cause, id. Sec. 2456(f)(11), the Directors are still confined to the lists of nominees submitted by the Speaker and the President pro tempore. Id. Sec. 2456(f)(1).

The 1991 Amendments also redefined the powers of the Board. While they eliminated the Board's veto authority, they expanded its other powers in a number of significant ways. The Amendments extended the list of actions requiring Board review to include "the award of a contract ... which has been approved by the board of directors of the Airports Authority" as well as "any action of the board of directors approving a terminal design or airport layout or modification of such design or layout[,]" 49 U.S.C.App. Sec. 2456(f)(4)(B) (Supp. III 1991), and authorized members of the Board to participate in, but not vote at, meetings of the Directors. Id. Sec. 2456(f)(7). The Amendments also made substantial changes in the review process, including a grant to the Board of the authority to make recommendations regarding actions submitted for its review, id. Sec. 2456(f)(4)(C), such actions to be referred to Congress for its further review if the Directors fail to adopt the Board's recommendations. Id. Sec. 2456(f)(4)(D)(ii).

Specifically, the amended Transfer Act provides that the Board may, within 30 calendar days or 10 "legislative days" of its submission, whichever is longer, present to the Directors a recommendation concerning a proposed action. Id. Sec. 2456(f)(4)(C). Legislative days are calculated by

excluding Saturdays, Sundays, and holidays, and any day on which neither House of Congress is in session because of an adjournment sine die, a recess of more than 3 days, or an adjournment of more than 3 days....

Id. If no recommendation is made during that period, or if the Board decides it will make no recommendation before the period elapses, the Directors' proposal may take effect. Id.

Similarly, if the Board makes a recommendation and the Directors adopt it, the revised proposal may go into effect immediately. Id. Sec. 2456(f)(4)(D)(i). If the Directors do not adopt the Board's recommendation, the Directors must submit a detailed description of the proposed action, the Board's recommendation, and the Directors' evaluation and response to the recommendation to the Speaker of the House and the President of the Senate for a review period of 60 legislative days. Id. Sec. 2456(f)(4)(D)(ii). If Congress does not pass a joint resolution of disapproval within this period, the Directors' proposed action may take effect. Id. Sec. 2456(f)(4)(D)(i), (5)(B).

Among the features of the original Act that have been retained are the Board's authority to "request the ... Authority to consider and vote, or to report, on any matter related to" the Dulles or National Airports, to which the Authority must comply "as promptly as feasible," id. Sec. 2456(f)(6), and what may be described as the 1986 Act's "drop-dead" clause. It provides that if the Board of Review

is unable to carry out its functions under this subchapter by reason of a judicial order, the Airports Authority thereafter shall have no authority to perform any of the actions that are required ... to be submitted to the Board of Review.

Id. Sec. 2456(h).

On cross-motions for summary judgment, U.S. District Judge Joyce Hens Green concluded that the Board of Review was an agent of Congress that exercised federal power, Hechinger v. Metropolitan Washington Airports Auth., 845 F.Supp. 902, 907

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(D.D.C.1994), and held that the amended Act was unconstitutional in that it permitted the Board to exercise impermissible control over the Authority. Id. at 908. Judge Green also held that the members of the Board were selected in a manner that violated the Constitution's Appointments Clause. Id. at 908-09. As we agree that the Board is a congressional agent that exercises significant federal power in violation of separation-of-powers principles, we do not address the latter ruling.


  1. Is the Board of Review an Agent of Congress?

    Following the approach adopted by the Supreme Court in CAAN, 501 U.S. at 264-70, 111 S.Ct. at 2306-09, we first determine whether the Board is an agent of Congress. No single factor is dispositive. Among the factors considered by the CAAN Court were the conditioning of the lease of the two airports...

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