A lawyer for two Dulles Toll Road users said his clients are still reviewing whether to appeal a Richmond circuit court judge’s decision to dismiss a lawsuit challenging Virginia’s transfer of the road from the state’s Department of Transportation to the Metropolitan Washington Airports Authority.
The MWAA is slated to oversee the $5.2 billion Metrorail extension to Dulles International Airport that will be partly financed by more than $2 billion of tax-exempt bonds.
Patrick McSweeney, a lawyer with McSweeney, Crump, Childress & Gould in Richmond, is representing Patrick R. Gray and James W. Nagle, who filed the suit. McSweeney said his clients may appeal the recent decision by Judge Margaret P. Spencer, but that they are still discussing their options.
Gray and Nagle sued Virginia and the MWAA in January 2007, claiming the state has no authority to transfer control of the road, and that the toll on the road is actually a tax since it is going to be primarily used to finance a subway expansion.
The state, however, maintained that it and the authority were entitled to sovereign immunity, which bars suits against the commonwealth and its agencies and boards.
Spencer first dismissed the lawsuit in March 2007, agreeing that the state and the authority are entitled to sovereign immunity. Gray and Nagle asked the Virginia Supreme Court to review that ruling in a petition they filed in June of that year. The high court agreed with the men that the state was not entitled to sovereign immunity and sent the case back to the circuit court for further proceedings.