Federal appeals court judges heard oral arguments Tuesday in the case of Corr V. Metropolitan Washington Airports Authority, a lawsuit that strikes at MWAA’s plan to use tolls to back more than $2 billion of bonds financing the Washington Metrorail’s Silver Line to Dulles International Airport.

Robert Cynkar, an attorney at Cuneo, Gilbert & LaDuca LLP, took the first turn before the three-judge panel of the U.S. Court of Appeals for the Federal Circuit. Arguing the case of two Northern Virginians, John Corr and John Grigsby, Cynkar tried to persuade the trio that MWAA is a federal authority that violated his clients’ state and federal constitutional rights by imposing an “illegal tax” on toll road drivers.

The Metropolitan Washington Airports Act of 1986 granted MWAA a 50-year lease over both Washington-area airports — Dulles and Ronald Reagan National Airport. The toll road came under MWAA’s control in 2008. Cynkar told judges Pauline Newman, Timothy Dyk, and Sharon Prost that charging toll road drivers for a train they are not using is a tax because the tolls are not paying exclusively for the service those drivers get. No part of the 1986 law or lease allows MWAA that power, he said.

“Those documents do not give the power to tax,” argued Cynkar. “Virginia, under its constitution, cannot delegate taxing power. That’s a legislative power.”

Dyk questioned whether the case was in the right court, a point also argued for MWAA by Hunton & Williams LLP attorney Stuart Raphael. Appeals from the U.S. District Court for the Eastern District of Virginia, which ruled against Corr and Grigsby last July, generally go to the U.S. Court of Appeals for the Fourth Circuit. However, this appeal was filed in the federal circuit, which has jurisdiction over complaints against the U.S. government. Newman also expressed skepticism that MWAA, overseen by a 13-member board of which Virginia appoints five members, the District of Columbia three, Maryland two, and the federal government three, is a federal entity.

As Cynkar asked the panel to reach the conclusion that the tolls represent a tax, Dyk interrupted him.

“We can’t reach that if we don’t have jurisdiction,” the judge said.

When Raphael’s turn came, he launched a multi-directional assault on Cynkar’s arguments. Calling MWAA an “independent, hybrid entity,” Raphael said the case would have been more properly argued in the Fourth Circuit. Further, he said, the toll road revenues are still being used to improve the same corridor of travel that the road follows. Since that could benefit toll road users, Raphael argued, Cynkar’s claim that the tolls represent a “regressive tax” are unfounded.

“The claimants cannot come forward with a single case where a toll was invalidated as a tax,” he told the judges.

Newman seemed inclined to order the case moved to the fourth circuit if the judges decide the jurisdictional question in MWAA’s favor, but Raphael argued against such a move.

“This case has been a cloud over this multibillion dollar entity for long enough,” he said.

All three judges seemed concerned that Cynkar’s brief might not address enough points to survive a transfer for jurisdictional reasons, but Cynkar afterward seemed confident that a change of venue would not affect the outcome.  He said the jurisdictional question is legal “inside baseball.”

If the court were to reverse the district court’s decision, MWAA General Counsel Philip Sunderland admitted earlier this year, it would cause a problem for the authority’s bond repayment mechanism. Sunderland has said he doesn’t expect the argument to clear the jurisdictional hurdle.

Cynkar said the court will likely take at least a couple of months to hand down an opinion.

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