A view of Dulles Toll Road looking west from Trap Road in Vienna. The Metropolitan Airports Authority took control of the Dulles Toll Road on Oct 1, 2009. (TOGRAPHER: Jahi Chikwendiu/The Washington Post)

Could Dulles Toll Road users get some of their money back?

That’s the aim of a recently filed lawsuit that challenges the use of toll road dollars to fund the Silver Line rail project.

The 66-page suit was filed in U.S. District Court for the District of Columbia last month and names the Metropolitan Washington Airports Authority, Transportation Secretary Anthony Foxx and the U.S. Department of Transportation as defendants.

The class action complaint paints a picture of a quasi-government agency run amok.

“At the heart of this case is an unprecedented delegation of government power to the Defendant Metropolitan Washington Airports Authority (“MWAA”) unfettered by any of the Constitution’s structural protections against the unaccountable exercise of such power,” the suit reads.

Later it states, “MWAA is an unprecedented creature.”

A spokesman for MWAA confirmed that board members discussed the matter in closed session Wednesday at the panel’s regularly scheduled meeting but would have no comment on the matter.

The lawsuit was filed by the some of the same lawyers who were behind a similar suit in 2011 that challenged MWAA’s use of toll road revenues to pay for construction of the $5.8-billion rail project.  While state, federal and local governments are helping pay for the rail extension, more than half of the project’s cost is borne by toll road users, which the suit contended amounted to a tax. And because it was a tax, it violated the Virginia constitution which prohibits the delegation of taxing power to an unelected body such as MWAA. But the argument was dismissed by the United States Court of Appeals for the Fourth Circuit in Richmond, which ruled that Dulles Toll Road charges were user fees not taxes under Virginia law. An appeal was filed to the Supreme Court, which last year, declined to take up the case.

In 2008, another suit, which sought to block the transfer of the Dulles Toll Road to MWAA, also was knocked down.

Attorney Robert Cynkar said while the previous suit examined MWAA’s authority in the context of Virginia law, this new suit raises broader federal questions about MWAA’s authority — even challenging the agency’s very existence. The suit contends that, “. . . the extraordinary delegation of power of which MWAA is the beneficiary violates the constitutional separation of powers.”

In short, because MWAA is neither a federal or state entity but an entity all of its own, there are no checks and balances on its authority.

As a consequence, “MWAA can fashion any revenue-generating scheme it desires, going so far as to force on group of citizens to subsidize another group of citizens,” the suit maintains.

For his part Cynkar knows he could be facing an uphill battle. Still, he said, at a time when many people are questioning the use of federal power and the importance of holding government institutions accountable, the plaintiffs might just have a shot.

“People feel like their government has gotten away from them,” he said. “This is a very small scale example of that.”

As a remedy, Cynkar and his team are asking for restitution of the amount toll road users have paid beyond what would have been necessary to maintain the Dulles Toll Road. Given that toll road users are contributing billions to pay for the Silver Line that amount could be substantial.

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