                             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
Date: May 30, 2018                                            United States District Judge



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