United States Court of Appeals 

for the Federal Circuit 

__________________________ 

JOHN B. CORR AND JOHN W. GRIGSBY, 

Plaintiffs-Appellants, 

v. 

METROPOLITAN WASHINGTON AIRPORTS 

AUTHORITY, 

Defendant-Appellee. 

__________________________ 

2011-1501 

__________________________ 

Appeal from the United States District Court for the 

Eastern District of Virginia in No. 11-CV-0389, Judge 

Anthony J. Trenga. 

__________________________ 

ROBERT J. CYNKAR, Cuneo, Gilbert & LaDuca, LLP, of 

Alexandria, Virginia, argued for the plaintiffs-appellants. 

With him on the brief were PATRICK M. MCSWEENEY, of 

Powhatan, Virginia, CHRISTOPHER I. KACHOUROFF, Dominion Law Center, P.C., of Woodbridge, Virginia, and 

RICHARD B. ROSENTHAL, Law Offices of Richard B. Rosenthal, of Miami, Florida. 

STUART A. RAPHAEL, Hunton & Williams, LLP, of 

McLean, Virginia, argued for defendant-appellee. 

__________________________ 

Before NEWMAN, DYK, and PROST, Circuit Judges. 
CORR v. METRO WASHINGTON AIRPORTS 2

PROST, Circuit Judge. 

ORDER 

Petitioners John B. Corr and John W. Grisby filed this 

class action against the Metropolitan Washington Airports Authority (“MWAA”) on behalf of themselves and all 

drivers who have used the Omer L. Hirst–Adelard L. 

Brault Expressway, also known as the Dulles Toll Road 

(“Toll Road”) in Virginia since 2005. They claim that the 

tolls are a tax and constitute an illegal exaction in violation of the Due Process Clause of the Fifth and Fourteenth Amendments because they are assessed by MWAA, 

an unelected body. Petitioners also assert that the composition of MWAA violates separation of powers by intruding on the President’s authority under Article II of 

the Constitution. Finally, Petitioners allege a violation of 

the Virginia Constitution’s prohibition on the establishment of a government “separate from, or independent of, 

the government of Virginia,” set forth in Article I, § 14. 

Because we conclude that this court lacks jurisdiction, we 

transfer this case to the United States Court of Appeals 

for the Fourth Circuit. 

I 

Opening in 1962, The Dulles Airport Access Highway 

(“Access Road”) which connects Dulles Airport to Interstate 495 and Interstate 66 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. 

At the request of the Virginia Department of Highways 

and Transportation (“VDOT”), in 1983, the federal government granted Virginia a 99-year easement within the 

Right-of-way to construct, operate and maintain the Toll 

Road for the use of non-airport traffic. On October 1, 

1984, the Toll Road opened and became a “project” within 

the jurisdiction of the Commonwealth Transportation 

Board (“CTB”). Va. Code § 33.1–268(2)(n). Beginning in 
3 CORR v. METRO WASHINGTON AIRPORTS

1989, Virginia enacted a series of statutes to facilitate the 

maintenance and expansion of the Toll Road and mass 

transit in the Right-of-way. In 2005, CTB raised tolls on 

the Toll Road, expressly reserving the entire toll increase 

to fund Virginia’s share of the cost of extending Metrorail 

to Dulles. 

In 1985, Virginia and the District of Columbia passed 

compact-legislation authorizing the establishment of the 

MWAA. A year later, Congress passed the Metropolitan 

Washington Airports Act of 1986, 49 U.S.C. § 49101 et 

seq. (“Airports Act”), approving the compact-legislation. 

MWAA is governed by a Board of Directors consisting of 

thirteen members: five members appointed by the Governor of Virginia, three members appointed by the Mayor of 

the District of Columbia, two members appointed by the 

Governor of Maryland, and three members appointed by 

the President of the United States with the advice and 

consent of the Senate. 49 U.S.C. § 49106(c). According to 

the Airports Act, MWAA is independent of the United 

States 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.” Id. § 49104(a)(1),(2). 

Beginning in December 2005, MWAA proposed that it 

operate the Dulles Toll Road and oversee the construction 

of the Metrorail project, including assuming responsibility 

for toll rate setting for the Dulles Toll Road and for Virginia’s remaining share of financing for both Phase I and 

II of the Dulles Metrorail extension. On December 29, 

2006, VDOT and MWAA executed a Master Transfer 

Agreement and Dulles Toll Road Permit and Operating 

Agreement. Under the Permit, MWAA was authorized to 

operate the Toll Road and collect toll revenues in consideration for its obligation to fund and cause to be constructed the Dulles Corridor Metrorail Project and other 

transportation improvements in the Dulles Corridor. On 
CORR v. METRO WASHINGTON AIRPORTS 4

November 1, 2008, control of the Toll Road transferred 

from VDOT to MWAA. 

Petitioners filed their complaint in the United States 

District Court of the Eastern District of Virginia on April 

14, 2011. On May 5, 2011, MWAA filed a motion to 

dismiss on the grounds that Petitioners lack both Article 

III and prudential standing and that Petitioners’ Complaint fails to state a claim. On July 7, 2011, the district 

court granted MWAA’s motion and dismissed the Complaint with prejudice holding that the Petitioners’ claims 

were barred by the prudential standing doctrine. The 

court alternatively held that Petitioners failed to state a 

claim under the Due Process Clause, that the tolls do not 

constitute a tax, and that even if the Virginia Constitution was violated, such claims are preempted by the 

Supremacy Clause. This appeal followed. On July 25, 

2011, MWAA filed a motion claiming that this court 

lacked appellate jurisdiction and requesting that the 

appeal be either dismissed or transferred to the United 

States Court of Appeals for the Fourth Circuit. On December 9, 2011, this court denied the motion and invited 

the parties to reiterate their arguments in their merits 

briefs. 

II 

As a threshold matter, we must determine whether 

this court has jurisdiction to hear the Petitioners’ appeal. 

In the Complaint, Petitioners allege federal question 

jurisdiction under 28 U.S.C. § 1331, as well as jurisdiction 

under the so-called Little Tucker Act, 28 U.S.C. 

§ 1346(a)(2). On appeal, Petitioners argue that jurisdiction properly lies with this court based on their Little 

Tucker Act claims. In their motion to transfer and merits 

brief, MWAA argues that there is no Little Tucker Act 

jurisdiction and the case should either be dismissed or 

transferred to the United States Court of Appeals for the 

Fourth Circuit. 
5 CORR v. METRO WASHINGTON AIRPORTS

District courts have jurisdiction under the Little 

Tucker Act to hear claims “against the United States, not 

exceeding $10,000” and this court has jurisdiction to hear 

the appeals of claims brought pursuant to the Little 

Tucker Act. 28 U.S.C. § 1346(a)(2); 28 U.S.C. 

§ 1295(a)(2). Little Tucker Act jurisdiction “may be 

invoked whenever ‘a federal instrumentality acts within 

its statutory authority to carry out [the government’s] 

purposes’ as long as no other specific statutory provision 

bars jurisdiction.” Auction Co. of Am. v. FDIC, 132 F.3d 

746, 749 (D.C. Cir. 1997), decision clarified on denial of 

reh’g, 141 F.3d 1198 (D.C. Cir. 1998) (quoting Butz Eng’g 

Corp. v. United States, 204 Ct. Cl. 561, 499 F.2d 619, 622 

(Ct. Cl.1974)). Petitioners allege that MWAA is a federal 

instrumentality for purposes of their constitutional claims 

and, therefore, jurisdiction in this court is proper under 

the Little Tucker Act. 

We must therefore determine whether MWAA is a 

federal instrumentality. “[T]here is no simple test for 

ascertaining whether an institution is so closely related to 

governmental activity as to become a [federal] instrumentality.” Dep’t of Emp’t v. United States, 385 U.S. 355, 358-

59 (1966). Nonetheless, “the Supreme Court has looked to 

several factors, including: whether the entity was created 

by the government; whether it was established to pursue 

governmental objectives; whether government officials 

handle and control its operations; and whether the officers of the entity are appointed by the government.” 

Augustine v. Dep’t of Veterans Affairs, 429 F.3d 1334, 

1339 n.3 (Fed. Cir. 2005) (citing Lebron v. Nat’l R.R. 

Passenger Corp., 513 U.S. 374, 397-98 (1995)). 

The first factor–whether the entity was created by the 

federal government–does not support the conclusion that 

MWAA is a federal instrumentality. It is true that 

MWAA was created by Congress through passage of the 

Airports Act. The Airports Act, however, represents 
CORR v. METRO WASHINGTON AIRPORTS 6

Congressional approval of Virginia’s and the District of 

Columbia’s compact-legislation authorizing the establishment of MWAA rather than the creation of the Authority in the first instance. Moreover, the Airports Act 

states that MWAA “shall be a public body corporate and 

politic with the powers and jurisdiction conferred upon it 

jointly by the legislative authority of Virginia and the 

District of Columbia or by either of them and concurred in 

by the legislative authority of the other jurisdiction.” 49 

U.S.C. § 49106(a). Thus, though it may partly owe its 

existence to an act of Congress, MWAA was in large part 

created by, and exercises the authority of, Virginia and 

the District of Columbia. 

Petitioners fare little better under the second factor. 

Petitioners allege that MWAA was created to serve federal interests such as managing and raising funds for 

federally owned airports. These facts must be balanced 

against the fact that the Airports Act indicates that the 

federal government had “a continuing but limited interest” in the operation of Reagan National Airport and 

Dulles International Airport. Id. § 49101(3). That “limited” federal interest is satisfied “through a lease mechanism which provides for local control and operation.” Id.

§ 49101(10). Moreover, Congress found that many groups 

had an interest in the airports, including: “nearby communities, the traveling public, air carriers, general aviation, airport employees, and other interested groups, as 

well as the interests of the United States Government and 

State governments.” Id. § 49101(6). Thus, while MWAA 

does serve limited federal interests, it serves regional and 

state interests as well. 

Turning to the final two factors, it becomes clear that 

MWAA cannot be considered a federal instrumentality for 

the purpose of Petitioners’ claims. Petitioners do not 

allege any facts that would allow this court to determine 

that federal officials handle and control MWAA’s opera-
7 CORR v. METRO WASHINGTON AIRPORTS

tions. To the contrary, the gravamen of Petitioners’ 

constitutional claims is that MWAA is an unelected entity 

independent of elected authorities exercising governmental power. Furthermore, the President appoints only 

three of MWAA’s thirteen board members. The fact that 

a small minority of the board members are federal appointees is insufficient to establish MWAA as a federal 

instrumentality. See Chas. H. Tompkins Co. v. United 

States, 230 Ct. Cl. 754, 756 (1982) (finding, inter alia, 

three federal appointees out of thirty-five board members 

was insufficient to establish federal control and, in turn, 

federal instrumentality status); cf. Lebron, 513 U.S. at 

399 (holding that where the government, inter alia, 

“retains for itself permanent authority to appoint a majority of the directors of [a] corporation, the corporation is 

part of the Government for purposes of the First Amendment”). 

As MWAA possesses few, if any, of the hallmarks of a 

federal instrumentality identified in Lebron, we conclude 

that MWAA is not a federal instrumentality for the 

purpose of Petitioners’ claims. Since MWAA is not a 

federal instrumentality and has not been alleged to act on 

behalf of the government in any other capacity, this court 

does not have jurisdiction over Petitioners’ Little Tucker 

Act claims. See Slattery v. United States, 635 F.3d 1298, 

1301 (Fed. Cir. 2011) (en banc) (“The [Tucker Act’s] 

jurisdictional criterion is . . . whether the government 

entity was acting on behalf of the government”). Therefore, this court lacks jurisdiction to hear Petitioners’ nonLittle Tucker Act claims. 

III 
CORR v. METRO WASHINGTON AIRPORTS 8

In their Complaint, Petitioners allege federal question 

jurisdiction under 28 U.S.C. § 1331 and there is no dispute that this appeal could have been filed in the United 

States Court of Appeals for the Fourth Circuit. Thus, this 

court will transfer the appeal to the court in which it 

could have been brought, pursuant to 28 U.S.C. § 1631 

(when an appeal is filed in a court which thereafter determines that it lacks jurisdiction, “the court shall, if it is 

in the interest of justice, transfer such action or appeal to 

any other such court in which the action or appeal could 

have been brought at the time it was filed or noticed”). 

Accordingly, 

IT IS ORDERED THAT: 

The motion to transfer the appeal, pursuant to 28 

U.S.C. § 1631, is granted. The appeal is transferred to the 

United States Court of Appeals for the Fourth Circuit. 

 FOR THE COURT

December 12, 2012

Date 

/s/ Sharon Prost

Sharon Prost 

Circuit Judge