                             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, and

higher courts—perhaps implicitly employing a version of the absurdity doctrine—have interpreted

it narrowly. For example, the President is plainly an “authority of the Government of the United
States” and plainly 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, 13 821 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
Date: May 30, 2018                                             United States District Judge




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