Washington-Dulles Transportation, Ltd. v. Metropolitan Washington Airports Authority

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

WASHINGTON-DULLES 
TRANSPORTATION, LIMITED,
Plaintiff-Appellant,
v.
METROPOLITAN WASHINGTON AIRPORTS
AUTHORITY,
 No. 00-2153
Defendant-Appellee,
DULLES TAXI SYSTEMS,
INCORPORATED,
Intervenor/Defendant-Appellee.

WASHINGTON-DULLES 
TRANSPORTATION, LIMITED,
Plaintiff-Appellant,
v.
METROPOLITAN WASHINGTON AIRPORTS
AUTHORITY,
 No. 01-1095
Defendant-Appellee,
DULLES TAXI SYSTEMS,
INCORPORATED,
Intervenor/Defendant-Appellee.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-00-999-A)

Argued: June 5, 2001

Decided: August 29, 2001
2 WASHINGTON-DULLES TRANSP. v. MWAA
Before MOTZ, TRAXLER, and KING, Circuit Judges.

Reversed and remanded by published opinion. Judge Traxler wrote
the opinion, in which Judge Motz and Judge King joined.

COUNSEL

ARGUED: Hopewell H. Darneille, III, VERNER, LIIPFERT,
BERNHARD, MCPHERSON & HAND, CHARTERED, Washing-
ton, D.C., for Appellant. Raymond F. Monroe, CROWELL & MOR-
ING, L.L.P., Washington, D.C., for Appellees. ON BRIEF: Monica
G. Parham, CROWELL & MORING, L.L.P., Washington, D.C.;
Janis Orfe, THE LAW OFFICES OF JANIS ORFE, P.C., Fairfax,
Virginia; John S. Pachter, Jonathan D. Shaffer, SMITH, PACHTER,
MCWHORTER & D’AMBROSIO, P.L.C., Vienna, Virginia, for
Appellees.

OPINION

TRAXLER, Circuit Judge:

The Metropolitan Washington Airports Authority (MWAA) is a
regional entity created by the Virginia General Assembly and the Dis-
trict of Columbia City Council for the purpose of operating the feder-
ally owned Washington-Dulles International Airport and Ronald
Reagan Washington National Airport. The Metropolitan Washington
Airports Act of 1986, see Pub. L. 99-591, §§ 6001-6012, 100 Stat.
3341-376 (1986) (codified as amended at 49 U.S.C.A. § 49101 -
49112 (West Supp. 2000)) ("the Enabling Act"), authorized the trans-
fer of the control and operation of these airports to MWAA via a 50-
year lease (the "Lease") between the Secretary of Transportation and
MWAA, see 49 U.S.C.A. §§ 49102(a), 49104.

In August 1999, MWAA issued a Request for Proposals for the
Dulles taxicab concession contract. Appellant Washington-Dulles
 WASHINGTON-DULLES TRANSP. v. MWAA 3
Transportation, Ltd. (WDT), the incumbent taxi concessionaire, sub-
mitted a proposal but was not awarded the contract. MWAA’s busi-
ness administration committee instead selected Dulles Taxi Systems,
Inc. to receive the taxi concession. WDT filed an action in federal
court first seeking a declaration that MWAA’s decision violated the
Enabling Act and the Lease, and also seeking an injunction barring
MWAA from awarding the taxi concession to Dulles Taxi and direct-
ing MWAA to give the concession to WDT. The district court subse-
quently dismissed WDT’s complaint for want of subject matter
jurisdiction. On appeal, we are asked to decide whether the district
court had jurisdiction over this matter and, if so, whether WDT has
standing to bring this action in the first place. We answer both ques-
tions in the affirmative. Accordingly, we reverse and remand for fur-
ther proceedings.

I.

A.

Before Congress enacted legislation authorizing the Secretary of
Transportation to transfer control of Dulles and Reagan National air-
ports, the Commonwealth of Virginia and the District of Columbia,
acting pursuant to an interstate compact, jointly created MWAA for
the sole purpose of leasing Dulles and Reagan National airports from
the federal government. See 1985 Va. Acts ch. 598, repealed by 2001
Va. Acts ch. 342 § 1 (to be codified at Va. Code Ann. § 5.1-153);
D.C. Code Ann. § 7-1252. Virginia and the District of Columbia
enacted similar statutes that conferred on MWAA various powers and
assigned it various duties. See 2001 Va. Acts ch. 342 § 1 (to be codi-
fied at Va. Code Ann. § 5.1-156); D.C. Code Ann. § 7-1255. Under
both statutory schemes, the courts of the Commonwealth of Virginia
are vested with original jurisdiction "of all actions brought by or
against [MWAA], which courts shall in all cases apply the law of the
Commonwealth of Virginia." 2001 Va. Acts ch. 342 § 1 (to be codi-
fied at Va. Code Ann. § 5.1-173(A)); see D.C. Code Ann. § 7-
1272(a). Virginia courts are given jurisdiction over lawsuits against
MWAA for breach of contract, see 2001 Va. Acts ch. 342 § 1 (to be
codified at Va. Code Ann. § 5.1-173(B)); D.C. Code Ann. § 7-
1272(b); however, neither the Virginia Code nor the D.C. Code spe-
4 WASHINGTON-DULLES TRANSP. v. MWAA
cifically purports to give Virginia courts jurisdiction over actions
against MWAA to force it to adhere to the terms of the Lease.

Thus, when Congress passed the Enabling Act, it did so with the
knowledge that the state statutes creating MWAA broadly conferred
jurisdiction to Virginia courts over legal actions involving MWAA.
Recognizing a "continuing but limited" federal interest, 49 U.S.C.A.
§ 49101(3), in the operation of the two airports that "can be provided
through a lease mechanism which provides for local control and oper-
ation," 49 U.S.C.A. § 49101(10), Congress dictated various require-
ments that the Lease must satisfy. Moreover, Congress granted the
federal courts jurisdiction to enforce the provisions of the Lease: "The
district courts of the United States have jurisdiction to compel the
Airports Authority and its officers and employees to comply with the
terms of the lease." 49 U.S.C.A. § 49104(c). The parties, however,
dispute whether this action technically qualifies as one to compel
MWAA to comply with the Lease under § 49104(c).

The Enabling Act prescribes a number of mandatory provisions
that must be included in the Lease. See U.S.C.A. § 49104(a). The
Lease, in turn, specifically incorporates these mandatory terms. The
Enabling Act requires the Lease to provide that "[i]n acquiring by
contract supplies or services for an amount estimated to be more than
$200,000, or awarding concession contracts, the Airports Authority to
the maximum extent practicable shall obtain complete and open com-
petition through the use of published competitive procedures." 49
U.S.C.A. § 49104(a)(4) (emphasis added). Section 11.D. of the Lease
more or less incorporates this provision, except that the Lease
employs the phrase "full and open competition." J.A. 55. Congress
determined that the Lease must also include a provision directing
MWAA to "develop a code of ethics and financial disclosure to
ensure the integrity of all decisions made by its board of directors and
employees." 49 U.S.C.A. § 49104(a)(8). This provision is contained
in section 14.C of the Lease.

The Lease also incorporates a number of the Enabling Act’s other
provisions even though these provisions are not statutorily required to
be made part of the Lease. For example, the Enabling Act subjects
MWAA’s contracts to review to ensure the contracts "were awarded
by procedures that follow sound Government contracting principles,"
 WASHINGTON-DULLES TRANSP. v. MWAA 5
see 49 U.S.C.A. § 49106(g), and the Lease provides for such a review
as well. The Lease incorporates the Enabling Act’s prohibition against
board members and their immediate families working for or holding
a "substantial financial interest" in any entity "that has or is seeking
a contract or agreement with [the Authority]." 49 U.S.C.A.
§ 49106(d). The code of ethics that MWAA is directed to develop
must include standards for determining what constitutes a "substantial
financial interest" under § 49106(d). See 49 U.S.C.A. § 49104(a)(8).
In addition to incorporating specific statutory requirements, the Lease
also includes a catch-all requirement that MWAA "comply with the
conditions imposed by the [Enabling] Act." J.A. 65.

MWAA adopted a "Contracting Policies and Procedures Manual"
(the "contracting manual") expressly for the purpose of fulfilling "the
legislative and lease requirements for published competitive proce-
dures." J.A. 76. The contracting manual provides that when a Request
for Proposals is issued, as in this case, the proposals "are evaluated
and scored against predetermined evaluation criteria" and MWAA
"select[s] the proposal which offers the greatest overall benefit to the
[MWAA] in terms of the evaluation criteria listed in the Request for
Proposals." J.A. 83. WDT argues that its action for declaratory and
injunctive relief is an attempt to compel MWAA to comply with these
provisions of the Lease.

B.

WDT’s complaint alleges that MWAA issued a formal Request for
Proposals that disclosed the criteria MWAA would use in selecting
the best proposal. An evaluation team reviewed the proposals and
determined that WDT’s proposal scored higher under these criteria
than any other proposal and recommended that the concession be
awarded to WDT. WDT’s proposal, according to the complaint, was
also the most "financially advantageous" proposal submitted to
MWAA. Nevertheless, MWAA’s business administration committee
voted to reject the evaluation team’s recommendation and to award
the taxi concession to Dulles Taxi. Subsequently, one of the members
of the business administration committee revealed that his law firm
represented an entity that was partially owned by Dulles Taxi’s prin-
cipals and recused himself from further involvement in MWAA’s
request for proposals for the taxi concession. WDT formally protested
6 WASHINGTON-DULLES TRANSP. v. MWAA
MWAA’s selection of Dulles Taxi. MWAA permitted WDT and Dul-
les Taxi to present additional information to the business administra-
tion committee, but the committee was not persuaded to change its
recommendation that Dulles Taxi be awarded the taxi concession.
Subsequently, MWAA’s board of directors denied WDT’s protest.

In its complaint, WDT contends that MWAA deviated from its
published competitive procedures in refusing to award the taxi con-
cession to WDT, which scored the highest on the selection criteria
and received the recommendation of the evaluation team, and failed,
therefore, to obtain "full and open competition," 49 U.S.C.A.
§ 49104(a)(4), or comply with "sound Government contracting princi-
ples," 49 U.S.C.A. § 49104(g), in violation of the Enabling Act and
the Lease. Additionally, WDT contends that the competitive nature of
the procurement process was tainted by the business administration
committee member’s conflict of interest.

The district court ruled that it lacked jurisdiction. The court rea-
soned that federal courts have jurisdiction to decide whether MWAA
has adopted competitive bid procedures that satisfy the mandate of
the Enabling Act and that a federal court may entertain a facial chal-
lenge to the sufficiency of the "published competitive procedures"
used by MWAA. However, the district court concluded that when the
application of the published competitive procedures was at issue,
there was no federal jurisdiction.1
1
Shortly after the district court entered its order of dismissal, WDT
filed a similar action in Virginia state court. MWAA sought to dismiss
that action as well, on the grounds that there is no cause of action under
Virginia law permitting a disappointed bidder to challenge the decision
of MWAA. The Virginia Circuit Court dismissed WDT’s complaint, and
the Supreme Court of Virginia denied review of that decision. WDT
returned to district court and moved the court to vacate its order of dis-
missal under Rule 60(b)(1) of the Federal Rules of Civil Procedure
because the district court’s order, according to WDT, was based on the
erroneous assumption that relief was available in the courts of Virginia.
WDT also sought to have the order vacated under Rule 60(b)(3) because
MWAA had taken inconsistent legal positions by arguing in federal court
that Virginia courts would have jurisdiction but then moving to dismiss
WDT’s state action for lack of jurisdiction. The district court denied the
motion. WDT appeals that decision as well as the original order of dis-
missal. We consolidated the separate appeals for purposes of review. In
light of our disposition of the original order of dismissal, we need not
address the district court’s ruling on WDT’s Rule 60(b) motion.
 WASHINGTON-DULLES TRANSP. v. MWAA 7
II.

We first consider whether the district court had jurisdiction under
§ 49104(c). It is not clear to us why, under the language of the
Enabling Act and the Lease, federal jurisdiction would be limited to
ensuring only that MWAA has adopted competitive bid procedures
that satisfy the requirements of the Enabling Act. Federal district
courts "have jurisdiction to compel [MWAA] and its officers and
employees to comply with the terms of the lease." 49 U.S.C.A.
§ 49104(c) (emphasis added). Nothing in this broad language suggests
that federal jurisdiction over an action to enforce the terms of the
Lease is circumscribed by anything other than the Lease itself. The
Enabling Act is straightforward on this point — the district court has
jurisdiction to entertain an action brought by a proper party to require
MWAA to comply with any term contained in the Lease.

Thus, the question becomes whether WDT’s complaint fairly
alleges that MWAA failed to adhere to the terms of the Lease. We
think the complaint clearly alleges that MWAA has failed to comply
with the terms of the Lease. WDT contends that MWAA failed to
"obtain complete and open competition through the use of published
competitive procedures," 49 U.S.C.A. § 49104(a)(4), a mandatory
term that is specifically incorporated into the Lease. According to
WDT, MWAA ignored its published selection criteria in awarding the
taxi concession and therefore failed to use its published competitive
procedures. The Enabling Act and the Lease require MWAA to use
published competitive procedures, not merely put them on paper. Fed-
eral jurisdiction over the enforcement of the Lease is consistent with
the continuing federal interest in the airport. The federal government,
as the lessor, has an obvious interest in the enforcement of the terms
of a lease to which it is a party. Moreover, federal jurisdiction to
enforce lease provisions involving procurement procedures is consis-
tent with the structure of the relevant state statutes and the interplay
between those statutes and the Enabling Act. Virginia law expressly
exempts MWAA from the Virginia Public Procurement Act, see 2001
Va. Acts ch. 342 § 1 (to be codified at Va. Stat. § 5.1-174), and the
District of Columbia’s statute likewise exempts MWAA from its pro-
curement law, see D.C. Code Ann. § 7-1273. Unlike the Enabling
Act, neither state statute addresses procurement procedures. And,
although the state statutes provide a state court forum for general con-
8 WASHINGTON-DULLES TRANSP. v. MWAA
tract claims against MWAA, see 2001 Va. Acts ch. 342 § 1 (to be
codified at Va. Code Ann. § 5.1-173(A), (B)); see D.C. Code Ann.
§ 7-1272(a), (b), these statutes do not specifically address actions to
compel MWAA to adhere to its duties under the Lease. The Enabling
Act, which was enacted after the state legislation, fills this gap, spe-
cifically providing for the enforcement of the terms of the Lease,
including the provisions addressing the procurement of concession
contracts, in federal court. Indeed, if the provision requiring full and
open competition in competitive bidding is not enforceable in federal
court, then this requirement in the Lease mandated by an Act of Con-
gress would be a hollow and toothless promise.

Relying on Metropolitan Washington Airports Auth. Prof’l Fire-
fighters Local 3217 v. Metropolitan Washington Airports Auth., 159
F.3d 630 (D.C. Cir. 1998), MWAA argues that the jurisdiction of the
district court does not extend to determining whether MWAA prop-
erly applied its published competitive procedures for awarding con-
cession contracts. Firefighters Local considered the question of
whether federal courts have jurisdiction to adjudicate an unfair labor
practices claim brought by MWAA employees. See id. at 631. The
Enabling Act requires the MWAA to continue the collective bargain-
ing rights enjoyed by MWAA employees before the Lease became
effective. See id. (citing 49 U.S.C.A. § 49104(a)(6)(D)). In view of
this mandatory term, Article 14.B of the Lease requires MWAA to
"‘adopt and maintain an employment code.’" Id. MWAA therefore
adopted, and Virginia ratified, a labor code that required unfair labor
practices claims to be submitted to an Unfair Labor Practices Panel.
Under the labor code, Virginia Circuit Court is vested with jurisdic-
tion to consider challenges to the panel’s decision. See id. In Fire-
fighters Local, the firemen’s union filed an action in district court to
enforce a decision of the panel that MWAA had violated the labor
code by refusing to bargain in good faith. The District of Columbia
Circuit held that the district court had no jurisdiction because the
union’s position was not that MWAA had violated the terms of the
Lease, but that MWAA had violated the labor code. See id. at 633.
The court distinguished the union’s claim from one that "the Code on
its face violated the lease in some manner," in which case "the federal
district court would have had jurisdiction." Id. MWAA takes this to
mean that when MWAA adopts policies or procedures pursuant to a
directive from the Lease, federal district courts have jurisdiction only
 WASHINGTON-DULLES TRANSP. v. MWAA 9
to the extent that an adopted policy or procedure, on its face, violates
the Lease. Thus, according to MWAA, any matter involving the mere
application or interpretation of the policy or procedure itself does not
fall within the jurisdictional reach of the federal courts.

MWAA reads too much into Firefighters Local. Our case is differ-
ent in this critical respect: We are presented with a claim that MWAA
violated the terms of the Lease itself. In Firefighters Local, the court
resolved a claim that MWAA had violated a provision of a state labor
code, which had its own detailed enforcement mechanism. We do not
face such an impediment to federal jurisdiction in this case. Thus, our
determination that federal court is a proper forum for a Lease enforce-
ment action under § 49104(c) is not inconsistent with Firefighters
Local.

III.

MWAA argues that even if the federal courts have jurisdiction,
WDT does not have standing to bring this action. MWAA does not
suggest that WDT lacks Article III standing or that prudential consid-
erations preclude WDT from bringing suit. Rather, MWAA has
framed this issue simply as one of statutory standing — whether Con-
gress intended to confer standing on a litigant like WDT to bring an
action under § 49104(c). Our task is essentially one of statutory con-
struction. The provision at issue indicates that "[t]he Attorney General
or an aggrieved party may bring an action on behalf of the Govern-
ment" to compel MWAA to comply with the terms of the Lease. 49
U.S.C.A. § 49104(c) (emphasis added). MWAA concedes that WDT
is "aggrieved" within the meaning of § 49104(c), but argues that
WDT does not have standing to bring this action on its own behalf
under § 49104(c) in view of the statutory command that such an
action be brought "on behalf of the Government."

WDT, however, contends that the original language of the
Enabling Act, as set forth in the Statutes at Large, differs significantly
from the codified version of the Enabling Act and clearly permits
WDT to bring this action: "An action may be brought on behalf of the
United States by the Attorney General, or by any aggrieved party."
100 Stat. 3341-381. MWAA argues that the codification of the
Enabling Act did not work a change in the meaning and, under either
10 WASHINGTON-DULLES TRANSP. v. MWAA
version, an aggrieved party must bring an action on behalf of the
Government, if at all.

We disagree. We read the language of the original enactment to
allow an "aggrieved" party to bring an enforcement action in its own
right, and to permit the Attorney General to bring such an action on
behalf of the Government. If Congress truly intended an aggrieved
party to bring an action on behalf of the federal government, it is sur-
prising there is no requirement that the aggrieved party seek the con-
sent of the Government before proceeding, or, at the very least,
inform the Government of its intent to proceed on behalf of the Gov-
ernment, as would a private relator in a qui tam action under the False
Claims Act. See 31 U.S.C.A. § 3730(b) (West Supp. 2001). Our read-
ing of this provision, we note, is confirmed by the legislative history.
See 131 Cong. Rec. S4879, S4887 (daily ed. April 26, 1985) (explain-
ing, in a section-by-section analysis of the Enabling Act, that the
"failure to observe [the mandatory] or other conditions of the lease
would be the basis for the Attorney General (on behalf of the United
States) or another aggrieved party to seek judicial enforcement of the
lease."). Thus, we conclude that the Statutes at Large and the United
States Code contain inconsistent provisions with respect to whether
a private party, provided that it is "aggrieved," can bring an action on
its own behalf against MWAA to enforce the Lease.

The statutory text contained in the United States Code is "prima
facie" evidence of what the law is. See 1 U.S.C.A. § 204(a) (West
1997). The Statutes at Large, however, are "legal evidence" of the
law. See 1 U.S.C.A. § 112 (West 1997). Accordingly, if there is a dis-
crepancy between the two, the codified version of the law must yield
to the Statutes at Large. See United States Nat’l Bank of Oregon v.
Independent Ins. Agents of America, Inc., 508 U.S. 439, 448 (1993);
United States v. Welden, 377 U.S. 95, 98 n.4 (1964). By the same
token, Congress has enacted some (slightly less than half) of the titles
of the United States Code into positive law, in which case the text of
the Code also becomes "legal evidence of the laws." 1 U.S.C.A.
§ 204(a).2 Title 49 was enacted into positive law prior to the passage
2
The Office of Revision Counsel submits to Congress the United
States Code, one title at a time, for enactment into law. See LaCrosse v.
 WASHINGTON-DULLES TRANSP. v. MWAA 11
of the Enabling Act, see Pub. L. 95-473, 92 Stat. 1337 (1978), and the
Enabling Act was subsequently codified by congressional enactment
and incorporated into Title 49, see Pub. L. 105-102, 111 Stat. 2204-
2217 (1997).

Even if there is a conflict between the original Congressional
enactment contained in the Statutes at Large and a codification that
has been enacted into positive law, the Statutes at Large control when
(1) the meaning of the original enactment was "clear and quite differ-
ent from the meaning . . . ascribe[d] to the codified law," and (2) "the
revisers expressly stated that changes in language resulting from the
codification were to have no substantive effect." Cass v. United
States, 417 U.S. 72, 82 (1974); see Welden, 377 U.S. at 98 n.4; see
also Finley v. United States, 490 U.S. 545, 554 (1989) ("[I]t will not
be inferred that Congress, in revising and consolidating the laws,
intended to change their effect unless such intention is clearly
expressed." (internal quotation marks omitted)). The Act that codifies
the Enabling Act expressly disclaims the intent to make any substan-
tive change in the law. See Pub. L. 105-102, § 4(a), 111 Stat. 2204,
2216. Because the codification of the Enabling Act resulted in a
change that altered its substantive effect, we look to the Statutes at
Large which, as we have explained, confer standing on WDT to bring
this action on its own behalf.

IV.

For the foregoing reasons, we conclude that the district court has
jurisdiction over the action brought by WDT. We further hold that,
under the circumstances here, WDT has standing to bring such an

Commodity Futures Trading Comm’n, 137 F.3d 925, 927 n.1 (7th Cir.
1998). When Congress enacts a title of the Code into "positive law," it
puts its authoritative imprimatur on the language appearing in that partic-
ular title of the Code. See generally Norman J. Singer, Sutherland Statu-
tory Construction § 36A:10 at 132 (6th ed. 2001) ("[T]he text of a code
section in an enacted title can be taken as authoritative and need not be
checked or verified with the corresponding section in the original Stat-
utes at Large, which must be done with respect to those titles which have
not yet been enacted.").
12 WASHINGTON-DULLES TRANSP. v. MWAA
action. We express no opinion, however, on the underlying merits of
WDT’s claim that MWAA failed to comply with the provisions of the
Lease. Accordingly, we remand this case for further proceedings con-
sistent with this opinion.

REVERSED AND REMANDED