POND CONSTRUCTORS, INC. v. GOVERNMENT ACCOUNTABILITY OFFICE

Filing 20

Amended MEMORANDUM OPINION. See Dkt. 19. Signed by Judge Dabney L. Friedrich on May 30, 2018. (MJS)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
POND CONSTRUCTORS, INC.,
Plaintiff,
v.

Civil Action No. 17-0881 (DLF)

UNITED STATES GOVERNMENT
ACCOUNTABILITY OFFICE,
Defendant.
MEMORANDUM OPINION
In rejecting a government-contracting bid submitted by Pond Constructors, the U.S.
Government Accountability Office (GAO) published a decision that included information that
Pond says is commercially confidential. Pond alleges that GAO’s refusal to redact this
information from the decision is arbitrary and capricious in violation of the Administrative
Procedure Act. See 5 U.S.C. § 706(2)(A). Before the Court is GAO’s motion to dismiss under
Rule 12(b)(6) of the Federal Rules of Civil Procedure or alternatively for summary judgment.
Dkt. 12. For the reasons that follow, the Court will dismiss the suit under Rule 12(h)(3).
The Court lacks jurisdiction to address Pond’s claim because under D.C. Circuit caselaw,
GAO—an entity within the legislative branch—is not an agency under the APA. The APA
waives sovereign immunity only with respect to suits seeking relief other than money damages
and challenging the action or inaction of an “agency.” 5 U.S.C. § 702. The APA defines
“agency” as “each authority of the Government of the United States” other than “the Congress,”
“the courts of the United States,” and other intuitive exceptions. Id. § 701(b). This definition is
very broad, but higher courts have interpreted it narrowly. For example, the President is plainly

an “authority of the Government of the United States” and does not fall under an exception, yet
the Supreme Court has decided that the President is not an agency under the APA, Franklin v.
Massachusetts, 505 U.S. 788, 800–801 (1992).
More relevant here, the APA’s definition of “agency” excludes “the Congress” but does
not explicitly exclude an entity like GAO that is considered a “legislative branch agency,”
Chennareddy v. Bowsher, 935 F.2d 315, 319 (D.C. Cir. 1991). The D.C. Circuit has concluded,
however, that “the APA exemption for ‘the Congress’ mean[s] the entire legislative branch.”
Washington Legal Found. v. U.S. Sentencing Comm’n, 17 F.3d 1446, 1449 (D.C. Cir. 1994).
GAO is “part of the legislative branch.” Chen v. General Accounting Office, 821 F.2d 732 (D.C.
Cir. 1987). The APA, therefore, does not waive sovereign immunity for suits against GAO.
“Absent a waiver, sovereign immunity shields the Federal Government and its agencies
from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). And sovereign immunity “is
jurisdictional in nature.” Id.; see also id. (“[T]he terms of the United States’ consent to be sued
in any court define that court’s jurisdiction to entertain the suit.” (internal quotation marks and
alteration omitted)). That means the Court has no power to adjudicate this suit. GAO did not
move to dismiss for lack of jurisdiction, but Rule 12(h)(3) requires a court to dismiss an action if
it “determines at any time that it lacks subject-matter jurisdiction.” Fed. R. Civ. P. 12(h)(3).
Therefore, the Court dismisses the case under Rule 12(h)(3) and denies GAO’s motion,
Dkt. 12, as moot. A separate order consistent with this decision accompanies this memorandum
opinion.

________________________
DABNEY L. FRIEDRICH
United States District Judge

Date: May 30, 2018

2