  United States Court of Appeals
      for the Federal Circuit
               __________________________

      JOHN B. CORR AND JOHN W. GRIGSBY,
               Plaintiffs-Appellants,

                            v.
   METROPOLITAN WASHINGTON AIRPORTS
              AUTHORITY,
            Defendant-Appellee.
               __________________________

                       2011-1501
               __________________________

   Appeal from the United States District Court for the
Eastern District of Virginia in No. 11-CV-0389, Judge
Anthony J. Trenga.
              __________________________

    ROBERT J. CYNKAR, Cuneo, Gilbert & LaDuca, LLP, of
Alexandria, Virginia, argued for the plaintiffs-appellants.
With him on the brief were PATRICK M. MCSWEENEY, of
Powhatan, Virginia, CHRISTOPHER I. KACHOUROFF, Do-
minion Law Center, P.C., of Woodbridge, Virginia, and
RICHARD B. ROSENTHAL, Law Offices of Richard B. Rosen-
thal, of Miami, Florida.

   STUART A. RAPHAEL, Hunton & Williams, LLP, of
McLean, Virginia, argued for defendant-appellee.

               __________________________


    Before NEWMAN, DYK, and PROST, Circuit Judges.
CORR   v. METRO WASHINGTON AIRPORTS                       2


PROST, Circuit Judge.

                         ORDER

     Petitioners John B. Corr and John W. Grisby filed this
class action against the Metropolitan Washington Air-
ports Authority (“MWAA”) on behalf of themselves and all
drivers who have used the Omer L. Hirst–Adelard L.
Brault Expressway, also known as the Dulles Toll Road
(“Toll Road”) in Virginia since 2005. They claim that the
tolls are a tax and constitute an illegal exaction in viola-
tion of the Due Process Clause of the Fifth and Four-
teenth Amendments because they are assessed by MWAA,
an unelected body. Petitioners also assert that the com-
position of MWAA violates separation of powers by in-
truding on the President’s authority under Article II of
the Constitution. Finally, Petitioners allege a violation of
the Virginia Constitution’s prohibition on the establish-
ment of a government “separate from, or independent of,
the government of Virginia,” set forth in Article I, § 14.
Because we conclude that this court lacks jurisdiction, we
transfer this case to the United States Court of Appeals
for the Fourth Circuit.

                             I

    Opening in 1962, The Dulles Airport Access Highway
(“Access Road”) which connects Dulles Airport to Inter-
state 495 and Interstate 66 was built on a portion of a
federally purchased Right-of-way for the exclusive pur-
pose of providing access to and from the Dulles Airport.
At the request of the Virginia Department of Highways
and Transportation (“VDOT”), in 1983, the federal gov-
ernment granted Virginia a 99-year easement within the
Right-of-way to construct, operate and maintain the Toll
Road for the use of non-airport traffic. On October 1,
1984, the Toll Road opened and became a “project” within
the jurisdiction of the Commonwealth Transportation
Board (“CTB”). Va. Code § 33.1–268(2)(n). Beginning in
3                       CORR   v. METRO WASHINGTON AIRPORTS


1989, Virginia enacted a series of statutes to facilitate the
maintenance and expansion of the Toll Road and mass
transit in the Right-of-way. In 2005, CTB raised tolls on
the Toll Road, expressly reserving the entire toll increase
to fund Virginia’s share of the cost of extending Metrorail
to Dulles.

    In 1985, Virginia and the District of Columbia passed
compact-legislation authorizing the establishment of the
MWAA. A year later, Congress passed the Metropolitan
Washington Airports Act of 1986, 49 U.S.C. § 49101 et
seq. (“Airports Act”), approving the compact-legislation.
MWAA is governed by a Board of Directors consisting of
thirteen members: five members appointed by the Gover-
nor of Virginia, three members appointed by the Mayor of
the District of Columbia, two members appointed by the
Governor of Maryland, and three members appointed by
the President of the United States with the advice and
consent of the Senate. 49 U.S.C. § 49106(c). According to
the Airports Act, MWAA is independent of the United
States Government and authorized to “operate, maintain,
protect, promote, and develop the Metropolitan Washing-
ton Airports as a unit and as primary airports serving the
Metropolitan Washington area.” Id. § 49104(a)(1),(2).

    Beginning in December 2005, MWAA proposed that it
operate the Dulles Toll Road and oversee the construction
of the Metrorail project, including assuming responsibility
for toll rate setting for the Dulles Toll Road and for Vir-
ginia’s remaining share of financing for both Phase I and
II of the Dulles Metrorail extension. On December 29,
2006, VDOT and MWAA executed a Master Transfer
Agreement and Dulles Toll Road Permit and Operating
Agreement. Under the Permit, MWAA was authorized to
operate the Toll Road and collect toll revenues in consid-
eration for its obligation to fund and cause to be con-
structed the Dulles Corridor Metrorail Project and other
transportation improvements in the Dulles Corridor. On
CORR   v. METRO WASHINGTON AIRPORTS                       4


November 1, 2008, control of the Toll Road transferred
from VDOT to MWAA.

    Petitioners filed their complaint in the United States
District Court of the Eastern District of Virginia on April
14, 2011. On May 5, 2011, MWAA filed a motion to
dismiss on the grounds that Petitioners lack both Article
III and prudential standing and that Petitioners’ Com-
plaint fails to state a claim. On July 7, 2011, the district
court granted MWAA’s motion and dismissed the Com-
plaint with prejudice holding that the Petitioners’ claims
were barred by the prudential standing doctrine. The
court alternatively held that Petitioners failed to state a
claim under the Due Process Clause, that the tolls do not
constitute a tax, and that even if the Virginia Constitu-
tion was violated, such claims are preempted by the
Supremacy Clause. This appeal followed. On July 25,
2011, MWAA filed a motion claiming that this court
lacked appellate jurisdiction and requesting that the
appeal be either dismissed or transferred to the United
States Court of Appeals for the Fourth Circuit. On De-
cember 9, 2011, this court denied the motion and invited
the parties to reiterate their arguments in their merits
briefs.

                             II

    As a threshold matter, we must determine whether
this court has jurisdiction to hear the Petitioners’ appeal.
In the Complaint, Petitioners allege federal question
jurisdiction under 28 U.S.C. § 1331, as well as jurisdiction
under the so-called Little Tucker Act, 28 U.S.C.
§ 1346(a)(2). On appeal, Petitioners argue that jurisdic-
tion properly lies with this court based on their Little
Tucker Act claims. In their motion to transfer and merits
brief, MWAA argues that there is no Little Tucker Act
jurisdiction and the case should either be dismissed or
transferred to the United States Court of Appeals for the
Fourth Circuit.
5                      CORR   v. METRO WASHINGTON AIRPORTS


    District courts have jurisdiction under the Little
Tucker Act to hear claims “against the United States, not
exceeding $10,000” and this court has jurisdiction to hear
the appeals of claims brought pursuant to the Little
Tucker Act.        28 U.S.C. § 1346(a)(2); 28 U.S.C.
§ 1295(a)(2). Little Tucker Act jurisdiction “may be
invoked whenever ‘a federal instrumentality acts within
its statutory authority to carry out [the government’s]
purposes’ as long as no other specific statutory provision
bars jurisdiction.” Auction Co. of Am. v. FDIC, 132 F.3d
746, 749 (D.C. Cir. 1997), decision clarified on denial of
reh’g, 141 F.3d 1198 (D.C. Cir. 1998) (quoting Butz Eng’g
Corp. v. United States, 204 Ct. Cl. 561, 499 F.2d 619, 622
(Ct. Cl.1974)). Petitioners allege that MWAA is a federal
instrumentality for purposes of their constitutional claims
and, therefore, jurisdiction in this court is proper under
the Little Tucker Act.

     We must therefore determine whether MWAA is a
federal instrumentality. “[T]here is no simple test for
ascertaining whether an institution is so closely related to
governmental activity as to become a [federal] instrumen-
tality.” Dep’t of Emp’t v. United States, 385 U.S. 355, 358-
59 (1966). Nonetheless, “the Supreme Court has looked to
several factors, including: whether the entity was created
by the government; whether it was established to pursue
governmental objectives; whether government officials
handle and control its operations; and whether the offi-
cers of the entity are appointed by the government.”
Augustine v. Dep’t of Veterans Affairs, 429 F.3d 1334,
1339 n.3 (Fed. Cir. 2005) (citing Lebron v. Nat’l R.R.
Passenger Corp., 513 U.S. 374, 397-98 (1995)).

    The first factor–whether the entity was created by the
federal government–does not support the conclusion that
MWAA is a federal instrumentality. It is true that
MWAA was created by Congress through passage of the
Airports Act. The Airports Act, however, represents
CORR   v. METRO WASHINGTON AIRPORTS                       6


Congressional approval of Virginia’s and the District of
Columbia’s compact-legislation authorizing the estab-
lishment of MWAA rather than the creation of the Au-
thority in the first instance. Moreover, the Airports Act
states that MWAA “shall be a public body corporate and
politic with the powers and jurisdiction conferred upon it
jointly by the legislative authority of Virginia and the
District of Columbia or by either of them and concurred in
by the legislative authority of the other jurisdiction.” 49
U.S.C. § 49106(a). Thus, though it may partly owe its
existence to an act of Congress, MWAA was in large part
created by, and exercises the authority of, Virginia and
the District of Columbia.

    Petitioners fare little better under the second factor.
Petitioners allege that MWAA was created to serve fed-
eral interests such as managing and raising funds for
federally owned airports. These facts must be balanced
against the fact that the Airports Act indicates that the
federal government had “a continuing but limited inter-
est” in the operation of Reagan National Airport and
Dulles International Airport. Id. § 49101(3). That “lim-
ited” federal interest is satisfied “through a lease mecha-
nism which provides for local control and operation.” Id.
§ 49101(10). Moreover, Congress found that many groups
had an interest in the airports, including: “nearby com-
munities, the traveling public, air carriers, general avia-
tion, airport employees, and other interested groups, as
well as the interests of the United States Government and
State governments.” Id. § 49101(6). Thus, while MWAA
does serve limited federal interests, it serves regional and
state interests as well.

    Turning to the final two factors, it becomes clear that
MWAA cannot be considered a federal instrumentality for
the purpose of Petitioners’ claims. Petitioners do not
allege any facts that would allow this court to determine
that federal officials handle and control MWAA’s opera-
7                       CORR   v. METRO WASHINGTON AIRPORTS


tions. To the contrary, the gravamen of Petitioners’
constitutional claims is that MWAA is an unelected entity
independent of elected authorities exercising governmen-
tal power. Furthermore, the President appoints only
three of MWAA’s thirteen board members. The fact that
a small minority of the board members are federal ap-
pointees is insufficient to establish MWAA as a federal
instrumentality. See Chas. H. Tompkins Co. v. United
States, 230 Ct. Cl. 754, 756 (1982) (finding, inter alia,
three federal appointees out of thirty-five board members
was insufficient to establish federal control and, in turn,
federal instrumentality status); cf. Lebron, 513 U.S. at
399 (holding that where the government, inter alia,
“retains for itself permanent authority to appoint a major-
ity of the directors of [a] corporation, the corporation is
part of the Government for purposes of the First Amend-
ment”).

    As MWAA possesses few, if any, of the hallmarks of a
federal instrumentality identified in Lebron, we conclude
that MWAA is not a federal instrumentality for the
purpose of Petitioners’ claims. Since MWAA is not a
federal instrumentality and has not been alleged to act on
behalf of the government in any other capacity, this court
does not have jurisdiction over Petitioners’ Little Tucker
Act claims. See Slattery v. United States, 635 F.3d 1298,
1301 (Fed. Cir. 2011) (en banc) (“The [Tucker Act’s]
jurisdictional criterion is . . . whether the government
entity was acting on behalf of the government”). There-
fore, this court lacks jurisdiction to hear Petitioners’ non-
Little Tucker Act claims.




                             III
CORR   v. METRO WASHINGTON AIRPORTS                          8


    In their Complaint, Petitioners allege federal question
jurisdiction under 28 U.S.C. § 1331 and there is no dis-
pute that this appeal could have been filed in the United
States Court of Appeals for the Fourth Circuit. Thus, this
court will transfer the appeal to the court in which it
could have been brought, pursuant to 28 U.S.C. § 1631
(when an appeal is filed in a court which thereafter de-
termines that it lacks jurisdiction, “the court shall, if it is
in the interest of justice, transfer such action or appeal to
any other such court in which the action or appeal could
have been brought at the time it was filed or noticed”).

    Accordingly,

    IT IS ORDERED THAT:

   The motion to transfer the appeal, pursuant to 28
U.S.C. § 1631, is granted. The appeal is transferred to the
United States Court of Appeals for the Fourth Circuit.

                                     FOR THE COURT


  December 12, 2012                  /s/ Sharon Prost
       Date                          Sharon Prost
                                     Circuit Judge
