Mem") at 2. As such, defendants assert that the new Board of Review neither is an agent of Congress nor exercises significant federal authority. Id.
A. The Powers of the Board of Review
Plaintiffs first argue that the Board of Review cannot exercise its prescribed functions consistent with the Constitution. This challenge focuses on the doctrine of separation of powers and the requirements of bicameralism and presentment. The doctrine of separation of powers prohibits Congress, either directly or through its agents, from exercising executive power. See Bowsher v. Synar, 478 U.S. 714, 733, 92 L. Ed. 2d 583, 106 S. Ct. 3181 (1986). Similarly, Congress, either directly or through its agents, cannot exercise legislative power without complying with the requirements of bicameralism and presentment. CAAN I, 111 S. Ct. at 2312; see INS v. Chadha, 462 U.S. 919, 951, 77 L. Ed. 2d 317, 103 S. Ct. 2764 (1983).
To demonstrate that the Board of Review is constitutionally deficient, therefore, plaintiffs must show that the Board of Review is an agent of Congress and that it exercises some type of federal power. Plaintiffs have established both elements.
To reiterate, briefly, to qualify for membership on the Board of Review, a person must: (1) have experience in aviation matters and in addressing the needs of airport users; (2) be a frequent user of the metropolitan Washington airports; and (3) not be a registered voter in Maryland, Virginia, or the District of Columbia. 1991 Amendments § 7002(b)(2)(C). The Airports Authority selects the members of the Board of Review, but it can only choose those individuals that either the Speaker or the President pro tempore recommend. If the Airports Authority is dissatisfied with the candidates recommended, it can request additional names for consideration. The Airports Authority can remove members of the Board of Review for cause by a two-thirds vote.
These criteria and conditions create an entity that is unquestionably an agent of Congress. Although Congress divested itself of removal power, it retained appointment power and ensured that many members of Congress--and few others--will be eligible to serve on the Board of Review. Further, and more fundamentally, either the Speaker or the President pro tempore must select every member of the Board of Review. Although the Airports Authority may request additional names for consideration, it is forced to choose only those individuals recommended by Congress. Congress, therefore, retained extraordinary control over the composition of the Board of Review; the Board of Directors is without power to appoint anyone who has not received a recommendation from the congressional leadership.
Moreover, Congress clearly did not address the concerns that the Supreme Court expressed in CAAN I. In CAAN I, the Court declared that the original Board of Review mandated separation of powers review because it was "an entity created at the initiative of Congress, the powers of which Congress has delineated, the purpose of which is to protect an acknowledged federal interest, and membership in which is restricted to congressional officials." 111 S. Ct. at 2308. Pursuant to the 1991 Amendments, the Board of Review is still an entity created at the initiative of Congress, the powers of which Congress has delineated, and the purpose of which is to protect an acknowledged federal interest. The only change is that membership is not restricted to congressional officials, but rather to those selected by congressional officials. This superficial change is insufficient to insulate the Board of Review from constitutional scrutiny.
The more provocative question is whether the Board of Review exercises federal power. And the answer is "yes." Pursuant to the 1991 Amendments, the Board of Review no longer has the power to veto actions of the Board of Directors. The Board of Review does, however, exercise significant control over the Airports Authority and management over its core aspects of operation through its power to make "recommendations." In fact, the new Board of Review has power to influence more actions than the old Board of Review. In addition to control over the adoption of a budget, authorization for the issuance of bonds,
the promulgation of regulations, the adoption of a master plan, and the appointment of a chief executive officer, the new Board of Review can control the award of contracts, any terminal design or modification, and any land transaction. 49 U.S.C. App. § 2456(f)(4)(B); 1991 Amendments § 7002(d)(1)(E).
Upon receipt of a "recommendation" from the Board of Review, the Airports Authority has two choices. It can adopt the recommendation, at which point the proposal with the recommendation takes effect. 1991 Amendments § 7002(d)(2)(D). If the Airports Authority does not adopt a recommendation, it must transmit a detailed description of the proposed action to Congress. The action cannot take effect until after the expiration of sixty calendar days, "excluding Saturdays, Sundays, 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," unless Congress acts sooner. 1991 Amendments § 7002(d)(2)(D)(ii). This report and wait provision, in effect, gives the Board of Review power to delay an action of the Board of Directors by as long as six months.
The Airports Authority has a choice: accept the "recommendation" of the Board of Review for immediate enactment of the proposal, or submit the proposal to Congress, wait a potentially lengthy period of time, and hope that Congress does not disapprove the proposal. In short, the Airports Authority must either bow to the will of the Board of Review, or risk the time and uncertainty of congressional action. This power is far more than merely "advisory" as defendants claim; it gives the Board of Review the power to coerce the Airports Authority to comply with any "recommendation." The Constitution does not permit this agent of Congress to play such an influential role in controlling the actions of the Airports Authority. See Lear Siegler, Inc. v. Lehman, 842 F.2d 1102, 1108 (9th Cir. 1988) (stating that if "Congress 'in effect has retained control,' its action and the statutory provision on which it is based are unconstitutional") (quoting Bowsher, 106 S. Ct. at 3192), rev'd on other grounds, 893 F.2d 205 (9th Cir. 1989) (en banc).
B. The Appointments Clause
Plaintiffs next argue that the members of the Board of Review are selected in violation of the Appointments Clause. The Appointments Clause dictates that the President shall appoint all officers of the United States. U.S. Const., Art. II, § 2, cl. 2. Principal officers must be selected with the advice and consent of the Senate, and the appointment of inferior officers is vested in the President alone. Id.; see Buckley v. Valeo, 424 U.S. 1, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976). The President does not select the members of the Board of Review; they are selected by the Airports Authority from lists provided by the Speaker and President pro tempore. If the Board of Review exercises significant executive authority,
the method of appointing its members is constitutionally defective. Id. at 126; see Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 115 L. Ed. 2d 764, 111 S. Ct. 2631, 2640 (1991).
Defendants assert that there is no Appointments Clause violation because the Board of Review is a nonfederal, interstate agency. Defendants' Mem. at 33-34. This argument clearly is without merit. In CAAN I, the Supreme Court determined that "the fact that the Board of Review was created by state enactments is not enough to immunize it from separation-of-powers review." CAAN I, 111 S. Ct. at 2306-07. Defendants do not advance any reason why an Appointments Clause analysis should be any different. The strong federal interest of the Airports Authority plainly warrants Appointments Clause review.
Defendants also argue that the Board of Review does not exercise significant federal authority. Defendants' Mem. at 33. The Court has already considered and rejected this argument in the context of separation of powers and holds also that the members of the Board of Review are selected in violation of the Appointments Clause.
The Board of Review plays a pivotal role in the administration of the Metropolitan Washington Airports Act. It exercises significant executive powers delegated to it by Congress, which created the Board of Review and over which Congress continues to wield considerable control. This unconstitutionally violates separation of powers principles and the Appointments Clause.
Since the provisions regarding the Board of Review in the Metropolitan Washington Airports Act Amendments of 1991 have this date been found unconstitutional and the Board of Review must be, and is, invalidated, the MWAA is without authority "thereafter" to carry out those actions the Board of Review is required to oversee. 49 U.S.C.A. App. § 2456(h). It is, therefore, essential to direct (as did the Circuit Court) that "actions taken by the Board [of Review] to this date not be invalidated automatically on the basis of [this] decision." CAAN I, 917 F.2d at 57-58; see Buckley v. Valeo, 424 U.S. 1, 142, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976).
While there shall be no stay for the reasons noted herein, the Court clearly recognizes the impact of this decision and the immediate jeopardy of operations at both Washington National Airport and Dulles International Airport. I strongly urge that prompt review be given this matter in the Circuit Court and/or in Congress.
Therefore, for the reasons stated above, it is hereby
ORDERED that plaintiffs' motion for summary judgment is granted; it is
FURTHER DECLARED that the Board of Review is unconstitutional and its actions invalid from the date of this order; it is
FURTHER ORDERED that defendants' motion for summary judgment is denied.
IT IS SO ORDERED.
JOYCE HENS GREEN
United States District Judge
In accordance with the Memorandum Opinion and Order issued this date, judgment is hereby entered in favor of plaintiffs John W. Hechinger, Sr., Craig H. Baab, and Citizens for the Abatement of Aircraft Noise, Inc., and against defendants Board of Review and Metropolitan Washington Airports Authority.
IT IS SO ORDERED.
January 31, 1994
JOYCE HENS GREEN
United States District Judge