917 F.2d 48 (D.C. Cir. 1990), 89-7182, Citizens for Abatement of Aircraft Noise, Inc. v. Metropolitan Washington Airports Authority

Docket Nº:89-7182.
Citation:917 F.2d 48
Case Date:October 26, 1990
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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917 F.2d 48 (D.C. Cir. 1990)




General, Intervenor.

No. 89-7182.

United States Court of Appeals, District of Columbia Circuit.

October 26, 1990

Argued April 9, 1990.

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Appeal from the United States District Court for the District of Columbia.

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

William T. Coleman, Jr., with whom Donald T. Bliss, Debra A. Valentine, and Nancy E. McFadden, were on the brief, for appellees.

Douglas Letter, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and Jay B. Stephens, U.S. Atty., were on the brief, for intervenor.

Before WALD, Chief Judge, and MIKVA and BUCKLEY, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

Dissenting opinion filed by Circuit Judge MIKVA.

BUCKLEY, Circuit Judge:

Citizens for the Abatement of Aircraft Noise challenge the constitutionality of certain conditions attached by Congress to the transfer of two federally owned and operated airports to a regional airport authority

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created by the Commonwealth of Virginia and the District of Columbia. Specifically, they contest the legitimacy of the Board of Review, composed entirely of members of Congress, which the Authority was required to establish as a specific condition to the transfer of the airports. Because we find that the Board is effectively an agent of Congress and that its functions are executive in nature, we conclude that the Board is prohibited by the constitutional doctrine of the separation of powers from carrying out those functions.


    1. Legislative Background

      The Washington, D.C., metropolitan area is served by two major airports, Washington National and Washington Dulles International. These are owned by the Federal Government and were operated by it from the time they were opened (in 1941 and 1962, respectively) until March 1987, when they were leased to the newly formed Metropolitan Washington Airports Authority ("MWAA" or "Authority"). Their history of federal ownership and control is unique, as all other civilian airports in the country are operated by local, state, or regional authorities. Because of the importance of National and Dulles to the economic development of Northern Virginia and the District of Columbia, there have been several unsuccessful attempts over the years to transfer control of the airports to local authorities. In 1984, a commission under the chairmanship of former Virginia Governor A. Linwood Holton issued a report that provided the necessary catalyst for the relinquishment of federal control.

      The Holton Commission recommended that the airports be turned over to an independent regional authority to be established by the Commonwealth of Virginia and the District of Columbia. To this end, the Virginia Assembly passed legislation authorizing the creation of the Metropolitan Washington Airports Authority. See 1985 Va. Acts ch. 598. The District of Columbia followed suit. See D.C.Law 6-67, 32 D.C.Reg. 6,093, 7,393 (1985). These acts empowered the Authority to acquire the airports by lease or otherwise, to issue bonds, carry out expansion plans, and perform other acts necessary to the task of administering the airports. Neither the Virginia nor the D.C. legislation provided for a special board with the power to veto the actions of the Authority and its governing board.

      At about the same time, Congress also began work on legislation to implement the Holton Commission's recommendations and, on April 11, 1986, the Senate approved a bill that provided for a straightforward transfer of control over the airports to the Authority. 132 Cong.Rec. 7,263-81 (1986). Subsequently, in the course of the House Subcommittee on Aviation's consideration of the measure, its staff prepared drafts of three proposals for the establishment of a board composed of members of Congress that would have the power to review and disapprove actions taken by the new Authority.

      Under the first proposal, Congress would create a "Federal Board of Review" having the power to veto Authority decisions. This board would consist of the Comptroller General plus three members appointed by the House and three by the Senate. The second proposal would require that the board be established by state law as a condition for the transfer of the airports to the Authority. Its congressional members, however, would continue to be appointed directly by their respective houses. Under the third proposal, the members would be selected by the Authority's Board of Directors from names submitted by the congressional leadership and would serve in their individual capacities as representatives of the airports' users.

      In an advisory letter addressed to the Subcommittee Chairman, Assistant Attorney General John R. Bolton ("AAG") expressed the view that the first approach was clearly unconstitutional, as it sought to establish a committee of Congress vested with the authority to take legislative action--in the form of a veto--without meeting the Constitution's Bicameralism and Presentment requirements, namely, that legislative acts be approved by both houses

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      of Congress and presented to the President for his approval or veto. See Letter from Asst. Att'y Gen. J. Bolton to Rep. N. Mineta, at 1-2 (Aug. 6, 1986). Moreover, as at least some of the functions to be performed by the proposed board were "clearly operational" in nature, performance of them by members of Congress would violate the Constitution's Incompatibility and Appointments Clauses, which forbid officers of the United States from serving in Congress and require such officers to be appointed by the President. Id. at 2-3.

      While the second proposal addressed some of these concerns by having the board created by state law rather than directly by Congress, the AAG concluded that this alternative was similarly flawed because Congress, through its agents, would still be exercising direct control over the operations of the airports. Id. at 5-7. The AAG, however, found the third proposal constitutionally acceptable, although not free from doubt. He reasoned that as the members would be representing their own interests as airport users, their membership on the board would not implicate separation-of-powers concerns. Id. at 7-8. Nevertheless, his letter suggested that efforts should be made to minimize the institutional role of Congress in the board's affairs, as the avoidance of constitutional difficulties turned on the board members' representing only their individual interests. Id. at 8.

      This third proposal was adopted with minor modifications and was signed into law as the Metropolitan Washington Airports Act of 1986. 49 U.S.C.App. Secs. 2451-2461 (Supp. V 1987) ("Airports Act"). The Airports Act authorized a long-term lease of National and Dulles Airports to the Authority created by Virginia and the District of Columbia. Under its terms, however, the Authority was required to establish a board of review composed entirely of members of Congress, with the power to veto certain actions of the Authority. 49 U.S.C.App. Sec. 2456(f).

      In response to this congressional action, Virginia and the District amended their respective statutes to empower the Authority to create such a board. 1987 Va. Acts ch. 665, Sec. 1, Sec. 5(5); D.C.Law 7-18 Sec. 3(c)(2), 34 D.C.Reg. 3,805, 5,249 (1987). These acts, however, did not require the Authority to establish a review board, nor did they specify what its composition or powers would be in the event the Authority decided to create one. By contrast, the Airports Act not only required the Authority to establish the present Board of Review as a condition for the lease of the airports, but described its composition and powers in great detail:

      The [Authority's] board of directors shall be subject to review of its actions ... by a Board of Review of the Airports Authority. Such Board of Review shall be established by the board of directors and shall consist of the following, in their individual capacities, as representatives of users of the Metropolitan Washington Airports:

      (A) two members [from each of two named House committees] from a list provided by the Speaker of the House;

      (B) two members [from each of two named Senate committees] from a list provided by the President pro tempore of the Senate; and

      (C) one member chosen alternately from members of the House of Representatives and members of the Senate, from a list provided by the Speaker of the House or the President pro tempore of the Senate, respectively.

      49 U.S.C.App. Sec. 2456(f)(1).

      The Act required that the Board be granted the power to disapprove the following decisions of the Authority:

      (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.

      Id. Sec. 2456(f)(4). The Act then states that in the event the Board is

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      unable to carry out its functions under this subchapter by reason of a judicial order, the Airports Authority shall have no authority to perform any of the actions that are required by [subsection (f)(4) ] to be submitted to the Board of Review.

      Id. Sec. 2456(h).

      After the enactment of this legislation, the Secretary of Transportation entered into a lease with the Authority on March 2, 1987. Six months later its board of directors completed selection of the Board of Review from the lists submitted by the Speaker of the House of Representatives and the President pro tempore of the Senate. On March 13, 1988, the Authority adopted a Master Plan for the renovation of National and Dulles International Airports. On April 13,...

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