16 F.4th 294
D.C. Cir.2021Background:
- WMATA, created by an interstate compact (Maryland, Virginia, DC) approved by Congress, enjoys the sovereign immunities of its signatory jurisdictions.
- In 2020 WMATA issued an RFP to replace escalators; Schindler submitted a bid, provided requested clarifications, and was later disqualified by WMATA for alleged RFP deficiencies.
- Schindler sought debriefing, filed initial and supplemental protests; WMATA issued a Final Decision denying the protests and awarded the contract to Kone.
- Schindler sued in federal district court seeking declaratory and injunctive relief to vacate the award or require reevaluation; the court denied preliminary relief and dismissed the complaint sua sponte for lack of subject-matter jurisdiction.
- On appeal Schindler argued WMATA waived sovereign immunity via the WMATA Compact, WMATA procurement documents (PPM, RFP, Final Decision), and/or the Administrative Procedure Act (APA).
- The D.C. Circuit reviewed whether any of those sources effect a waiver and whether WMATA is a federal "agency" under the APA.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the WMATA Compact waives sovereign immunity for procurement challenges | Compact provisions (including sections 12, 73, 81 and congressional approval) permit suits challenging procurement decisions | The Compact's waiver is narrow: §80 waives liability only for contracts and torts; other sections do not expand that waiver | No waiver; §80 is limited to contracts/torts and other Compact provisions do not waive immunity for procurement challenges |
| Whether WMATA procurement documents (PPM, RFP, Final Decision) effect a waiver of sovereign immunity | PPM §17-10(d), RFP jurisdiction/choice-of-law clauses, and Final Decision language confer jurisdiction and thus waive immunity for procurement protests | Those provisions mirror §81 and merely identify courts to hear claims where immunity is already waived; they lack the clear, express declaration required to waive immunity | No waiver; procurement documents fall short of the required clear declaration to waive sovereign immunity |
| Whether the APA waives WMATA's sovereign immunity by treating WMATA as a federal agency | APA waives sovereign immunity and should apply because WMATA conducts procurements like a federal agency; Elcon assumed agency status for purposes of appeal | WMATA is an interstate-compact instrumentality of state/territorial signatories, not a federal agency under the APA | No waiver; WMATA is not a federal agency under the APA, so the APA does not waive WMATA's sovereign immunity |
Key Cases Cited
- Brownback v. King, 141 S. Ct. 740 (federal courts always have jurisdiction to decide their own jurisdiction)
- Edelman v. Jordan, 415 U.S. 651 (waiver of Eleventh Amendment immunity must be unmistakably clear)
- FDIC v. Meyer, 510 U.S. 471 (sovereign immunity is jurisdictional)
- Morris v. WMATA, 781 F.2d 218 (Compact waiver must be explicit; §80 is the specific limited waiver)
- KiSKA Constr. Corp. v. WMATA, 321 F.3d 1151 (reviewing district court dismissal for lack of jurisdiction in disputes with WMATA)
- Watters v. WMATA, 295 F.3d 36 (WMATA vested with sovereign immunities of signatories; scope of waiver limited)
- Barbour v. WMATA, 374 F.3d 1161 (stringent requirement for clear declaration to waive immunity)
- Trudeau v. Fed. Trade Comm’n, 456 F.3d 178 (APA waives sovereign immunity for non-money relief if defendant is an "agency")
- Old Town Trolley Tours of Wash., Inc. v. WMATC, 129 F.3d 201 (interstate-compact entity is not a federal agency under the APA)
- Kerpen v. Metro. Wash. Airports Auth., 907 F.3d 152 (interstate-compact entities are not federal entities for purposes of the APA)