The opinion of the court was delivered by: JOYCE HENS GREEN
Plaintiffs, John W. Hechinger, Sr., Craig H. Baab, and Citizens for the Abatement of Aircraft Noise, Inc., initiated this action challenging the constitutionality of defendant Board of Review. The Board of Review is an entity with the power to review certain actions of defendant Metropolitan Washington Airports Authority ("Airports Authority"), which was created to operate the metropolitan Washington airports located in the Virginia suburbs. Plaintiffs allege that the Board of Review violates the doctrine of separation of powers and that its members are appointed in violation of the Appointments Clause
and serve in violation of the Incompatibility and Ineligibility Clause.
Through this action, plaintiffs seek: (1) a declaration that the Board of Review is unconstitutional; and (2) an order enjoining the Board of Review from exercising its review authority and enjoining the Airports Authority from performing any actions that it is required to submit to the Board of Review. The parties filed cross-motions for summary judgment. In addition, the United States filed a statement of interest pursuant to 28 U.S.C. § 517, in which it offered its views supporting the plaintiffs' position that the Board of Review is unconstitutional. For the reasons expressed below, plaintiffs' motion for summary judgment is granted and defendants' motion for summary judgment is denied.
These parties are before this Court for the second time to litigate the constitutionality of the Board of Review. Although the new Board of Review will be evaluated without any taint from the earlier proceedings, it is necessary to review certain details from the earlier litigation to properly understand the present action. See Century Communications Corp. v. FCC, 266 U.S. App. D.C. 228, 835 F.2d 292, 299 (D.C. Cir. 1987), cert. denied, 486 U.S. 1032 (1988).
The federal government historically maintained control over the two metropolitan Washington airports in the Virginia suburbs, Washington National Airport ("National") and Dulles International Airport ("Dulles"). In the mid-1980's, however, the Secretary of Transportation ("Secretary") determined that it was necessary to shift control over these airports away from the federal government to ease the burden of financing capital improvements. The Secretary recommended that the federal government transfer control over these airports to a regional authority and appointed an advisory commission to develop a plan to create this authority.
The advisory commission recommended that this regional authority be created by a congressionally approved compact between Virginia and the District of Columbia. The advisory commission further recommended that an eleven-member Board of Directors, composed of individuals who were neither elected nor appointed officials, govern the authority, and that ten of these directors reside in the metropolitan Washington area. These recommendations were intended not only to ensure the non-political nature of the authority but to protect local interests as well.
In accordance with the Metropolitan Washington Airports Act of 1986, Pub. L. No. 99-591, 99th Cong., 2d Sess. (1986) ("Transfer Act") (codified at 49 U.S.C. App. §§ 2451-2461), Virginia and the District of Columbia passed legislation to establish the Airports Authority. See 1985 Va. Acts, ch. 598, as amended by 1987 Va. Acts ch. 665; 1985 D.C. Law 6-67, as amended by 1987 D.C. Law. 7-18. The Transfer Act authorized the transfer of operating control over National and Dulles to the Airports Authority, which was to be independent of the federal, Virginia, and District of Columbia governments. 49 U.S.C. App. § 2456(a)(6). The Transfer Act established a Board of Directors to govern the Airports Authority, but mandated the creation of the Board of Review to review certain actions of the Board of Directors.
The original Board of Review was composed of nine members of Congress, eight of whom served on specified congressional committees and none of whom could be from Maryland, Virginia, or the District of Columbia. 49 U.S.C. App. § 2456 (f)(1). The Board of Directors had to submit many core decisions to the Board of Review for approval, including the adoption of its budget, authorization of bonds, promulgation of regulations, adoption of a master plan, and the appointment of its chief executive officer. 49 U.S.C. App. § 2456(f)(4)(B). Significantly, the Board of Review could veto any of these core decisions. 49 U.S.C. App. § 2456(f)(4)(D). Moreover, the legislation provided that the Airports Authority could not independently carry out any of these core functions if a court declared the Board of Review unconstitutional. 49 U.S.C. § 2456(h).
The Airports Authority assumed operating responsibility of National and Dulles in mid-1987, pursuant to a lease that contained all of the provisions of the Transfer Act. Subsequently, plaintiffs filed a lawsuit challenging the constitutionality of the original Board of Review. In that earlier lawsuit, Citizens for the Abatement of Aircraft Noise, Inc. v. Metropolitan Washington Airports Authority, 718 F. Supp. 974 (D.D.C. 1989), rev'd in part, 286 U.S. App. D.C. 334, 917 F.2d 48 (D.C. Cir. 1990), aff'd, 501 U.S. 252, 115 L. Ed. 2d 236, 111 S. Ct. 2298 (1991) [hereinafter "CAAN I"], the Supreme Court held that the Board of Review, as then comprised, was unconstitutional.
The Court determined that the Board of Review exercised sufficient federal power to mandate separation of powers scrutiny even though the Airports Authority was technically a creature of state law. 111 S. Ct. at 2306. Separation of powers scrutiny was necessary because transfer of control over National and Dulles was conditioned on the creation of the Board of Review and the federal government has a strong and continuing interest in the operation of these airports. Id. at 2307.
The Supreme Court further determined that the Board of Review was an agent of Congress. Membership on the Board of Review was restricted to members of Congress, all but one of whom served on particular committees. Thus, the Board of Review was composed exclusively of members of Congress and Congress could control who served on the Board of Review by altering the membership on the relevant committees. In essence, Congress had the power to appoint and remove members of the Board of Review. Id. at 2307-08.
In sum, the Court invalidated the Board of 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." Id. at 2308. The Board of Review was simply an improper attempt by Congress either to assume executive responsibilities or to exercise legislative authority in violation of the bicameralism and presentment requirements of Article I, Section 7. Id. at 2312.
In response to the Supreme Court's decision, Congress passed the Metropolitan Washington Airports Act Amendments of 1991, Pub. L. No. 102-240, Title VII, 105 Stat. 2197 (Dec. 18, 1991) ("1991 Amendments"). The 1991 Amendments retained the Board of Review, but altered its composition, the qualifications for membership, and its powers.
president Bush signed the 1991 Amendments into law on December 18, 1991, but expressed concern about the constitutionality of these provisions in his signing statement:
During congressional consideration of amendments intended to cure the defects found by the Supreme Court, the Administration expressed the view that the new Board of Review created by Title VII would violate the Appointments Clause of the Constitution. We adhere to ...