Potomac Construction Company, Inc. v. Washington Metropolitan Area Transit Authority

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

(SOUTHERN DIVISION)

POTOMAC CONSTRUCTION COMPANY, )

INC., )

Plaintiff, )

)

v. ) Civil Case No.: GLS-21-193

)

WASHINGTON METROPOLITAN AREA )

TRANSIT AUTHORITY, )

)

Defendant. )

__________________________________________)

MEMORANDUM OPINION

Potomac Construction Company, Inc. (“Potomac” or “Plaintiff”) has brought a declaratory

judgment and injunctive relief action against the Washington Metropolitan Area Transit Authority

(“Defendant,” “WMATA,” or “the Authority”). Plaintiff claims that Defendant violated the law

and its own procurement regulations by failing to award it a contract to repave Metro station

surface parking lots.

Pending before the Court is a “Motion to Dismiss the Complaint” (ECF No. 17) (“Motion

to Dismiss”) filed by Defendant. Plaintiff has filed an opposition to the Motion to Dismiss, and

Defendant replied. (ECF Nos. 22-23).

As a preliminary matter, this Court finds that even though a preliminary injunction motion

has been filed, no hearing is necessary given the procedural posture of this case; namely, a fully-

briefed motion to dismiss that raises subject matter jurisdiction issues under Federal Rule of Civil

Procedure 12(b)(1), and not factual issues that necessitate a hearing.1 See Fundamental Admin.

1 As set forth more dully below in Sections B to E, because the Court finds that dismissal is required on the

jurisdictional issue, it need not address the factual issues related to WMATA’s argument that dismissal is

appropriate pursuant to Federal Rule of Civil Procedure 12(b)(6).

Servs., LLC v. Anderson, Civ. No. JKB 13-1708, 2015 WL 2340831, at *1 (D. Md. May 13, 2015)

(declining to hold hearing where “the parties’ written submissions do not raise a question of fact

that must be resolved before the Court may rule on Plaintiff’s motion”); see also 11A Charles

Allen Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2949 (3d

ed. 2019) (“[P]reliminary injunctions are denied without a hearing, despite a request for one by

the movant, when the written evidence shows the lack of a right to relief so clearly that receiving

further evidence would be manifestly pointless.”). Thus, the issues raised by the Motion to Dismiss

have been fully briefed and no hearing is necessary. See Local Rule (L.R.) 105.6 (D. Md. 2018).

For the reasons set forth more fully herein, the Court will grant Defendant’s Motion to Dismiss for

lack of subject matter jurisdiction.

I. FACTUAL BACKGROUND2

Potomac, a Minority-Owned small business, is a Virginia limited liability company.

Plaintiff has a Class A General Contractor license, and allegedly has performed construction

contracts for WMATA for over twenty years. (ECF No. 1, ¶ 12). WMATA “is an interstate

instrumentality of Maryland, the District of Columbia, and the Commonwealth of Virginia, created

by the WMATA Compact.” (Id., ¶ 13). WMATA operates the Metrorail and Metrobus system

that transports passengers in and between the District of Columbia, Maryland, and Virginia. (Id.).

On July 17, 2020, WMATA made public an invitation for bid (“IFB”) for a project

(“Repaving Contract”) to resurface parking garages at five Metro facilities. All bids were

ultimately due by September 2, 2020, by no later than 2:00 p.m. local time. (Id., ¶¶ 19, 22).

2 Unless otherwise noted, the facts are taken from the “Verified Complaint for Declaratory and Injunctive

Relief,” ECF No. 1, and are construed in the light most favorable to the non-moving party, Plaintiff. This

Court assumes Plaintiff’s version of facts to be true. Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011);

Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009).

The IFB called for the submission of bids in electronic format; initially, via email to a

certain address (“PRMTPolicy@wmata.com”) and a later amendment to the IFB instructed bids

to be uploaded to a WMATA webpage (“supplier.wmata.com”), “but continued to reference

‘email’ as an acceptable means of electronic bid submission.” (Id., ¶¶ 22-23, 27-29). The IFB

further required bids to be addressed to the Contract Administrator, with a copy emailed to

“PRMTPolicy@wmata.com” and also uploaded to the web server, “supplier.wmata.com.” The

amended IFB referenced electronic bid submissions to “supplier.wmata.com,” but also “continued

to reference email as an acceptable means for submitting electronic bids,” including a scenario

where a bidder wanted to change an offer already submitted. (Id., ¶¶ 24-28).

The amended IFB also specified that bid files were not to be in excess of 20 MB when

emailed, and that files larger than this size would be rejected by the web server. Any file larger

than 20 MB had to be reduced and submitted via multiple separate emails. In addition, “the body

of the email for bids shall show the hour and date specified in the solicitation for bid opening, the

solicitation number, and the bidder’s name and address.” Moreover, the amended IFB stated “bids

shall be timely emailed to reach WMATA (sic) designated Web Server before 1400 (local time)

on day of Bid opening.” (Id., ¶¶ 29, 30).

Potomac was one of three vendors that submitted bids. Potomac timely submitted “a

responsive, acceptable, electronic bid to WMATA via email,” specifically “via electronic

transmission to: “PRMTPolicy@wmata.com” on September 2, 2020, at 1:49 P.M. EST.”

WMATA received Potomac’s bid electronically via “PRMTPolicy@wmata.com,” i.e., Potomac

did not receive an “error or return/kick back message” contradicting WMATA’s receipt. Thus,

WMATA was “in control of Potomac’s bid submission in advance of the bid submission deadline.”

(Id., ¶¶ 31-35,41).

Six days after Potomac submitted its bid, WMATA notified Potomac that it did not

consider Plaintiff’s submission because the bid was not submitted to the “supplier.wmata.com”

Web Server address. (Id., ¶¶ 36, 38). On September 9, 2020, consistent with WMATA’s

Procurement Procedures Manual (“PPM”), Potomac submitted a bid protest to the Contracting

Officer, challenging its decision to exclude Potomac from the resurface project competition. On

October 28, 2020, WMATA acknowledged timely receipt of the original bid, and responded to the

bid protest, denying it. Specifically, even though WMATA timely received Plaintiff’s bid via

“PRMTPolicy@wmata.com,” the Contracting Officer rejected the submission, (“the denial

letter”), deeming it materially non-responsive because it was not uploaded to

“supplier.wmata.com.” (Id., ¶¶ 36, 41-43). On October 29, 2020, Potomac filed a request for

reconsideration, which was denied on November 24, 2020. When denying reconsideration,

WMATA notified Potomac of its right to appeal to the Federal Transportation Authority (“FTA”).

(Id., ¶¶ 51-53).

On December 4, 2020, Potomac noted an appeal to the FTA, also providing a copy of the

same to the Contracting Officer. As part of its appeal, Potomac asserted that the Contracting

Officer failed to follow the bid protest procedures outlined in the PPM. Roughly three days later,

WMATA violated the PPM by awarding the Repaving Contract to another vendor, in the amount

of $5,790,189.35. WMATA issued the Repaving Contract to another vendor, despite the fact that

Potomac’s bid was the lowest. (Id., ¶¶ 57-58). The award was contrary to the requirements in the

PPM that any contract award should not proceed if a bid protest were lodged with the FTA. (Id.,

¶¶ 53-55). This appeal is likely still pending. (See ECF Nos. 17-1, 22).

II. PROCEDURAL BACKGROUND

On January 22, 2021, Potomac filed its “Verified Complaint for Declaratory and Injunctive

Relief” challenging WMATA’s bid selection process related to a contract to repave five Metro

parking lots. (“Verified Complaint,” ECF No. 1). Potomac first maintains that WMATA acted

arbitrarily, capriciously, and without any rational basis when it excluded Potomac from the bid

competition for the Repaving Contract. Second, Potomac contends that it materially complied

with all IFB requirements for its bid submission, and that its “minor irregularity” in its bid

submission was immaterial, and that WMATA violated procurement regulations by denying

Potomac the opportunity to cure its error, or by not waiving the bid submission requirement.

Relatedly, WMATA treated Potomac disparately when it afforded the winning vendor an

opportunity to “correct an actual material error [in its submission] two days after bid opening.”

Third, Potomac asserts that WMATA violated its own procurement regulations when it denied

Potomac’s agency-level bid protest. Fourth, by awarding the Repaving Contract to another vendor,

Potomac argues that WMATA violated requirements outlined in the PPM, namely that the contract

was only to be awarded to the “lowest priced responsive, responsible bidder.” (Verified

Complaint, ¶¶ 22-30, 33, 36, 38, 54-58, 80, 86, 102).

In its two-count Verified Complaint—Count I - Declaratory Judgment, Count II -

Permanent Injunction—Plaintiff seeks an order: (1) declaring, inter alia, that: (a) “WMATA’s

decision to reject Potomac’s proposal and award the subject surface parking pavement

rehabilitation contracts to another entity was in violation of law;” and (b) “but for WMATA’s

failure to execute a ‘fair and equal consideration’ of Potomac’s proposal in accordance with

WMATA’s own Procurement Procedures Manual and applicable law, Potomac would have been

awarded [the] surface parking pavement rehabilitation contract;” and (2) requiring WMATA to (a)

“rescind the award of the subject contract to [another vendor-bidder] due to the manifest violations

of WMATA procedures”; and (b) directing WMATA to “review anew . . . [Potomac’s] proposal .

. . affor[d] Potomac . . . a fair and equal opportunity to be consideration (sic) for [the] award, or in

the alternative. . . award the paving contract to Potomac as the lowest priced acceptable,

responsive, and responsible offeror.” (Verified Complaint, pp. 23-24).

On January 26, 2021, Plaintiff filed a “Motion for Preliminary Injunction and Request for

a Hearing” (“Preliminary Injunction Motion”) (ECF Nos. 4-5). Following a case management

conference with the predecessor judge assigned to this case, the parties identified the date of

February 25, 2021 as the date by which Defendant had to file its Answer or other responsive

pleading to the Preliminary Injunction Motion. (ECF No. 9). In the interim, on February 17, 2021,

Potomac filed a notice of intent to file a motion for expedited discovery, whereby Plaintiff sought

a limited amount of materials from Defendant related to its Preliminary Injunction Motion. (ECF

No. 16). On February 19, 2021, Defendant filed the Motion to Dismiss, (ECF No. 17, “Motion to

Dismiss”), which Plaintiff opposed on March 5, 2021. (ECF No. 22, “Opposition Motion”).

Defendant filed its Reply on March 12, 2021 (ECF No. 23, “Reply”). On March 12, 2021,

Defendant also filed its response to the discovery-related letter filed by Plaintiff. (ECF No. 24).

III. STANDARDS OF REVIEW

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Pursuant to Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) 12(b)(1), a party may

move to dismiss a complaint for lack of subject matter jurisdiction. A Rule 12(b)(1) motion may

allege that sovereign immunity serves as a jurisdictional bar against the claim. Smith v. Wash.

Metro. Area. Transit Auth., 290 F.3d 201, 205 (4th Cir. 2002). When a defendant challenges

subject matter jurisdiction, the plaintiff bears the burden of establishing that subject matter

jurisdiction exists. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).

A Rule 12(b)(1) challenge to subject matter jurisdiction may proceed “in one of two ways”:

(1) by mounting either a facial challenge, asserting that the allegations pleaded in the complaint

are insufficient to establish subject matter jurisdiction; or (2) a factual challenge, asserting “‘that

the jurisdictional allegations of the complaint [are] not true.’” Kerns v. United States, 585 F.3d

187, 192 (4th Cir. 2009) (alteration in original) (citation omitted). In a facial challenge, “the facts

alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges

sufficient facts to invoke subject matter jurisdiction.” Kerns, 585 F.3d at 192. In a factual

challenge, however, a “district court is entitled to decide disputed issues of fact with respect to

subject matter jurisdiction.” Id. Under this scenario, a “district court may regard the pleadings as

mere evidence on the issue and may consider evidence outside the pleadings without converting

the proceeding to one for summary judgment.” Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398

(4th Cir. 2004).

B. Motion to Dismiss for Failure to State a Claim

When a defendant files a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), it is

asserting that, even if a court construes the facts advanced in the Plaintiff’s complaint as true, that

complaint fails to state a claim upon which relief can be granted. To survive a motion to dismiss,

then, a complaint must contain sufficient facts, and must state a “plausible claim for relief.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Fed. R. Civ. P. 8(a); Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 556 (2007) (complaint must set forth enough facts as to suggest a

“cognizable cause of action”). A claim has facial plausibility when the plaintiff pleads factual

content that “allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. The purpose of Rule 12(b)(6) “‘is to test the

sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim,

or the applicability of defenses.’” Velencia v. Drezhlo, Civ. No. RDB 12-237, 2012 WL 6562764,

at *4 (D. Md. Dec. 13, 2012) (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th

Cir. 2006)). A complaint must only satisfy the standard of Fed. R. Civ. P. 8(a), namely, it must

have a “short and plain statement of the claim showing that the pleader is entitled to relief.”

Twombly, 550 U.S. at 555.

IV. DISCUSSION

As a preliminary matter, this Court must have subject-matter jurisdiction in order to

entertain a matter before it. Lightfoot v. Cendant Mort. Corp., 137 S. Ct. 553, 562 (2017). If a

court lacks subject matter jurisdiction, then it must dismiss the case. Fed. R. Civ. P. 12(b)(1).

Accordingly, the Court will first consider Defendant’s arguments that sovereign immunity shields

it from Plaintiff’s claims.

Defendant advances several arguments in support of dismissing the Verified Complaint.

First, that this Court lacks subject matter jurisdiction because WMATA is protected by sovereign

immunity, which is outlined in the interstate compact that created WMATA (“the WMATA

Compact” or “the Compact”). Relatedly, Plaintiff does not advance any claims that are within the

scope of WMATA’s limited waiver of sovereign immunity outlined in the Compact. Second, that

WMATA’s PPM does not independently confer subject matter jurisdiction on this Court. Third,

that the Administrative Procedure Act’s (“APA”) waiver of sovereign immunity is inapplicable to

WMATA because WMATA is not a federal government agency but, rather, a state agency. Fourth,

that the two counts in the Verified Complaint fail to confer subject matter jurisdiction upon this

Court, as they are not independent causes of federal action and therefore this case should be

dismissed under Fed. R. Civ. P. 12(b)(6). (Motion to Dismiss, pp. 10-17). Relatedly, Defendant

contends Potomac fails to state claims upon which relief can be granted because the Verified

Complaint and documents related thereto demonstrate that WMATA acted in accordance with its

regulations when addressing Potomac’s bid submission. In essence, Defendant’s averment that

Plaintiff has no plausible entitlement to relief necessarily means that WMATA believes Plaintiff’s

preliminary injunction is unlikely to succeed. (Motion to Dismiss, pp. 17-22).

Plaintiff counters with four arguments. First, that this Court has original and subject matter

jurisdiction over this suit because the WMATA Compact, PPM, the IFB, and the Contracting

Officer’s denial letter expressly waive WMATA’s sovereign immunity in bid protest actions.

Second, that APA review applies to actions challenging WMATA’s procurement decisions

because WMATA is “both a multi-state agency and a federal agency,” and because the WMATA

Compact and PPM intend for WMATA to perform procurements as federal agencies do. Third,

that Potomac’s cause of action for declaratory and injunctive relief is sufficient to state a

cognizable claim upon which relief can be granted because WMATA arbitrarily and capriciously

rejected Plaintiff’s bid submission. Last, Plaintiff contends that the Court, based on the facts

alleged in its opposition, should “deny WMATA’s motion to dismiss and grant WMATA’s motion

for preliminary injunction.” Accordingly, Potomac urges this Court to grant its preliminary

injunction motion. (Opposition, pp. 5-19).

The Court will first analyze the subject matter jurisdiction issues.

A. Sovereign Immunity and the Washington Metropolitan Area Transit Authority

Maryland, Virginia, and the District of Columbia created WMATA via an interstate

compact, so that WMATA would provide transportation in the Washington D.C. metro area.

Delon Hampton & Assocs., Chartered v. Wash. Metro. Area Transit Auth., 943 F.2d 355, 357-59

(4th Cir. 1991). The Compact between these three governments established WMATA as an

interstate agency and instrumentality of each signatory. Id. at 359.

Three sections of the Compact are relevant here: Sections 80, 81, and 73.

Section 80 of the Compact states, in pertinent part:

The Authority shall be liable for its contracts and for its torts and

those of its directors, officers, employees, and agents committed in

the conduct of any proprietary function, in accordance with the

applicable signatory (including rules of conflict of laws), but shall

not be liable for any torts occurring in the performance of a

governmental function.

Md. Code Ann., Transp. § 10–204(80) (2010).

Section 81 of the Compact states, in pertinent part:

The United States District Courts shall have original jurisdiction,

concurrent with the courts of Maryland, Virginia, and the District of

Columbia, of all actions brought by or against the Authority and to

enforce subpoenas issued under this title. Any such action initiated

in a State or District of Columbia court shall be removable to the

appropriate United States District Court in the manner provided by

Act of June 25, 1948, as amended (28 U.S.C. § 1446).

Md. Code Ann., Transp. § 10–204(81) (2010).

Section 73 of the Compact states, in pertinent part that:

the Authority in conducting a procurement of property, services, or

construction shall . . . [o]btain full and open competition through the

use of competitive procedures in accordance with the requirements

of this section; and . . . [u]se the competitive procedure or

combination of competitive procedures that is best suited under the

circumstances of the procurement.

Md. Code Ann., Transp. § 10–204(73) (2010).

B. No Express Waiver of Sovereign Immunity for Private Causes of Action to

Enforce the Compact’s Procurement Provisions

Plaintiff contends that when taken together, Sections 73 and 81 of the Compact, Section 17

of WMATA’s PPM, the IFB, and the Contracting Officer’s denial letter, constitute an express

waiver of WMATA’s sovereign immunity in suits alleging a violation of the Authority’s

procurement policies and procedures. (Opposition, pp. 10-12). The Court does not find this

argument to be persuasive.3

Section 80 of the Compact “specifically and expressly delineates the scope of WMATA’s

consent to be sued.” Lizzi v. Alexander, 255 F.3d 128, 133 (4th Cir. 2001) (citation omitted),

overruled in part on other grounds by Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003).

Because any waiver of sovereign immunity “must be clear and unequivocal,” the Fourth Circuit

has read Section 80 as only waiving WMATA’s sovereign immunity for “breaches of contract and

for torts committed in the conduct of a proprietary function.” Id. In Lizzi, the Fourth Circuit

rejected the appellant’s attempt to rely on a combination of Sections 124 and 81 of the Compact to

establish a waiver of sovereign immunity not provided for in Section 80—specifically, the

appellant’s argument that WMATA was subject to suit under the Family Medical Leave Act. Id.

at 132-33. The court explained that Section 80 “provides only for a limited waiver of sovereign

immunity,” and that it would be “particularly inappropriate” to rely on Sections 12 and 81 as

effecting an even broader waiver of sovereign immunity where Section 80 “delineates the entire

scope of WMATA’s waiver of its sovereign immunity.” Id. at 133.

3 Plaintiff further argues that WMATA’s “violation of its regulations in the . . . Compact, which Congress

approved, and which became federal law, create federal questions under 28 U.S.C. § 1331.” (Opposition,

pp. 11-12). Plaintiff is correct that Congress “consented to the Compact” and “any legal issues relating to

its interpretation are federal questions.” Smith, 290 F.3d at 206. But, as explained below, because Section

80 of the Compact does not waive WMATA’s sovereign immunity in actions challenging the Authority’s

procurement decisions, this argument is unavailing.

4 Section 12 of the Compact provides in pertinent part: “In addition to the powers and duties elsewhere

described in this title, and except as limited in this title, the Authority may . . . [s]ue and be sued.” Md.

Code Ann., Transp. § 10–204(12)(a) (2010).

The D.C. Circuit has similarly interpreted the Compact, holding that Section 81 of the

Compact must be read in conjunction with Section 80. Morris v. Wash. Metro. Area Transit Auth.,

781 F.2d 218, 221 (D.C. Cir. 1986) (“Sections 80 and 81 should read as parts of a coherent

whole.”). Morris also rejected an attempt to find a waiver of WMATA’s sovereign immunity in

Section 12 of the Compact. Id. at 221 n.3 (“reliance on [Section 12’s] ‘sue and be sued’ clause

would be particularly inappropriate in this case where another section of the Compact, § 80,

specifically and expressly delineates the scope of WMATA's consent to be sued”).

More to the point, the United States District Court for the District of Columbia recently

held that Section 81 of the Compact does not waive WMATA’s sovereign immunity for actions

involving bid protest decisions. Schindler Elevator Corp. v. Wash. Metro. Area Transit Auth., Civ.

No. RC 20-3157, 2020 WL 7668905, at *6 (D.D.C. Dec. 23, 2020). Schindler held that Section

81 does not establish a cause of action because a statute’s jurisdictional provision—like Section

81—“‘creates no cause of action of its own force and effect.’” Id. at *6 (quoting Touche Ross &

Co. v. Redington, 442 U.S. 560, 577 (1979)). The Schindler court explained that this was “because

a cause of action must be grounded ‘in the substantive provisions’” of the statute a plaintiff seeks

to enforce. Id. (quoting Touche, 442 U.S at 577).

Here too, Plaintiff’s argument that Sections 73 and 81 of the Compact establish a waiver

of the Authority’s sovereign immunity must fail. “It is a commonplace (sic) of statutory

construction that the specific governs the general,” Lizzi, 255 F.3d at 133-34, and here, where

Section 80 of the Compact provides only for an explicit waiver of WMATA’s sovereign immunity

for breaches of contract and torts committed in the conduct of any proprietary function, Plaintiff

cannot rely on a combined reading of Sections 73 and 81 to create a waiver that Section 80 does

not provide. This conclusion also finds support in the specific text of Sections 73 and 81. Section

73 of the Compact establishes WMATA’s obligations “in conducting a procurement of property,

services, or construction,” but is silent as to any waiver of sovereign immunity and therefore cannot

serve as a basis for establishing a private cause of action in suits challenging WMATA’s

procurement decisions. Md. Code Ann., Transp. § 10–204(73); see also Schindler, 2020 WL

7668905, at *8 (holding, in part, that Section 73 of the WMATA Compact “provides no such

waiver of sovereign immunity”). Section 81 establishes that the United States District Courts for

Maryland, Virginia, and the District of Columbia shall have jurisdiction over actions brought

against WMATA. Md. Code Ann., Transp. § 10–204(81). But, because the source of a plaintiff’s

rights must be found in the “substantive provisions of the . . . Act which they seek to enforce, [and]

not the jurisdictional provision,” Touche, 442 U.S. at 577, Section 81 of the Compact cannot form

the basis for a cause of action in this matter either. Therefore, the WMATA Compact does not

contain an express waiver of sovereign immunity for actions involving the Authority’s

procurement decisions.

Equally unavailing is Plaintiff’s contention that PPM Chapter 17, the IFB, and the

Contracting Officer’s denial letter support a finding that WMATA’s sovereign immunity is waived

for actions challenging the Authority’s procurement decisions.

Section 17 of the PPM establishes procedures for the administrative resolution of bid

protests. (ECF No. 1-3, p. 20). Section 17-10 provides, in relevant part, that “[t]he United States

District Courts for the Districts of Maryland, Virginia, and the District of Columbia . . . have

jurisdiction over court actions concerning protest decisions.” (ECF No. 1-3, p. 24).

The IFB provides that “[t]he judicial authorities having jurisdiction over court actions

concerning protest decisions are the United States District Courts for the Districts of . . . Virginia,

Maryland, and the District of Columbia, and the local courts in [the] State of Maryland,

Commonwealth of Virginia, and the District of Columbia.”5 (Opposition, p. 11).

The Contracting Officer’s denial letter explained that because this is a federally assisted

procurement, the “protester has the right to file an appeal against the [Contracting Officer’s] final

decision in conformism with PPM Chapter 17, Article 8.”6 (ECF No. 1-9, p. 6). In response to a

letter from Plaintiff seeking reconsideration of WMATA’s resolution of its bid protest, WMATA

notified Plaintiff that its next step was to appeal to the “FTA or the United States District Courts

for the Districts of Maryland, Virginia and the District of Columbia . . . [which] have jurisdiction

over court actions concerning protest decisions.” (ECF No. 1-11, p. 11).

Despite these explicit statements by WMATA that the United States District Court for the

District of Maryland has “jurisdiction over court actions concerning protest decisions,” such

pronouncements cannot establish a waiver of WMATA’s sovereign immunity. “The Supreme

Court has long held that any waiver of sovereign immunity must be ‘unequivocally expressed in

statutory text.’” Cunningham v. Lester, 990 F.3d 361, 365 (4th Cir. 2021) (quoting FAA v. Cooper,

566 U.S. 284, 290 (2012)). Thus, where Plaintiff has not identified an express waiver of

WMATA’s sovereign immunity in the statutory text authorizing judicial review of bid protest

decisions, Plaintiff’s reliance on documents with even less force cannot establish a waiver of

WMATA’s sovereign immunity for such actions. The United States District Court for the District

of Columbia has similarly concluded that PPM Chapter 17 “cannot operate as a source of

jurisdiction.” Schindler, 2020 WL 7668905, at *6. Schindler held that the PPM could not confer

5 Plaintiff did not submit this specific portion of the IFB as an exhibit, but instead quoted the relevant

language from the IFB in its pleading. (Opposition, p. 11). However, the Court accepts the above quoted

language from the IFB as true.

6 PPM Chapter 17, Article 8 establishes the procedures for when an aggrieved bidder can file a bid protest

with the Federal Transit Authority. (ECF No. 1-3, p. 23).

jurisdiction on the court where Congress has not done so, because “only Congress can create

jurisdiction regardless of the consent of any parties to an action.” Id. (citing Patchak v. Zinke, 138

S. Ct. 897, 907 (2018)).

Therefore, the PPM, IFB, and denial letter do not serve to expressly waive WMATA’s

sovereign immunity for actions involving procurement decisions.

C. No Implied Cause of Action in the WMATA Compact for Bidders Challenging

WMATA’s Procurement Decisions

Next, Plaintiff urges this Court to follow the holding of Challenger Transportation, Inc. v.

Washington Metropolitan Area Transit Authority (Challenger I), Civ. No. TDC 14-3322, 2015

WL 4608060, at *4 (D. Md. July 30, 2015), to find that WMATA’s sovereign immunity does not

bar challenges to the Authority’s procurement decisions. (Opposition, p. 10). WMATA counters

that the court’s decision in Challenger I is based on a discredited theory of statutory interpretation

that has been “squarely rejected by the Fourth Circuit.” (Reply, p. 10).

The Challenger I court held that WMATA’s sovereign immunity does not bar suits

alleging that the Authority arbitrarily and capriciously violated its procurement policies and

procedures. Challenger I identified two bases on which the Plaintiff’s suit could proceed. The

first basis is that because WMATA is “treated as a federal agency” in challenges to the Authority’s

procurement decisions, contract award protest claims “are statutory causes of action that arise out

of the Administrative Procedure Act . . . and federal procurement law.” 2015 WL 4608060, at *4

(citing Seal & Co. v. Wash. Metro. Area Transit Auth., 768 F. Supp. 1150, 1157 (E.D. Va. 1991)

(“Congress intended WMATA to conduct its procurements as a federal agency would and to be

subject to suits by aggrieved bidders for procurement activities in violation of the Compact or

WMATA’s regulations.”); Monument Realty, LLC v. Wash. Metro. Area Transit Auth., 535 F.

Supp. 2d 60, 73-74 (D.D.C. 2008) (finding WMATA is “a federal agency for purposes of standing

when a party seeks to challenge WMATA’s procurement decisions” and its “procurement

decisions must be in accordance with the APA”); Elcon Enters., Inc. v. Wash. Metro. Area Transit

Auth., 977 F.2d 1472, 1479-80 (D.C. Cir. 1992) (assuming without deciding that WMATA is a

federal agency and therefore subject to federal procurement law)). The second basis followed a

line of cases recognizing an implied cause of action for disappointed bidders in the scheme of the

Compact. 2015 WL 4608060, at *5 (citing Seal & Co., 768 F. Supp. at 1157) (“[T]he existence

of a cause of action for disappointed bidders is arguably implicit . . . in the scheme of the

Compact”)). In reaching this holding, Challenger I relied heavily on three cases: Seal & Co. v.

WMATA; Monument Realty, LLC v. WMATA; and Elcon Enters., Inc. v. WMATA. This Court will

begin by examining whether there is an implied cause of action in the Compact for disappointed

bidders seeking to challenge WMATA’s procurement decisions. The Court will then turn in

Sections D and E to the question of whether WMATA is a federal agency subject to the APA (“the

federal agency question”) and the applicability of the quasi-federal agency doctrine to WMATA.

In Seal, an unsuccessful bidder for a WMATA contract to construct a communications

system sought judicial review of the denial of its bid protest. 758 F. Supp. at 1152. WMATA

moved to dismiss the suit, asserting that disappointed bidders lack standing to challenge its

procurement decisions. Id. at 1153. The Seal court disagreed, holding that private parties have

standing to challenge WMATA’s procurement actions under two theories: (1) where a private

cause of action is implicit in the scheme of the WMATA compact; or (2) where WMATA is viewed

as a “quasi-federal agency” and “a zone of interests test is applied.” Id. at 1156. Monument, held,

in part, that for the purposes of standing, when a party challenges WMATA’s procurement

decisions in federal court “WMATA is treated as a federal agency.” 535 F. Supp. 2d at 73. The

Monument court’s decision relied heavily on the D.C. Circuit’s decision in Elcon. Monument, 535

F. Supp. 2d at 73-74 (citing Elcon, 977 F.2d at 1479-80). Elcon, however, never actually reached

this issue, as the court assumed arguendo that WMATA was a federal agency and that its

“procurement decisions must be reached in accordance with the APA.” 977 F.2d at 1480.7

This Court declines to follow Challenger I’s holding that implicit in the scheme of the

WMATA Compact is a cause of action permitting suits challenging WMATA’s procurement

decisions. The Court finds that in the intervening years between the decision in Seal and the filing

of this action, the Supreme Court has narrowed the circumstances in which federal courts can

create implied causes of action. See Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001).

Alexander held that “[l]ike substantive federal law itself, private rights of action to enforce federal

law must be created by Congress,” and charged courts with interpreting Congressional legislation

to “determine whether it displays an intent to create not just a private right but also a private

remedy.” Id. at 286. If a court finds legislation to be “silent or ambiguous” as to Congress’s intent,

then a court cannot find a cause of action. Planned Parenthood South Atl. v. Baker, 941 F.3d 687,

694 (4th Cir. 2019).

Finding an implied cause of action here would, by its very nature, require this Court to

conclude that the Compact waives WMATA’s sovereign immunity for actions in which

disappointed bidders challenge the Authority’s procurement decisions. However, such a finding

is squarely foreclosed by recent decisions of both the Supreme Court and the Fourth Circuit. The

Supreme Court has held that any waiver of sovereign immunity “must be ‘unequivocally expressed

in statutory text.’” Cunningham v. Lester, 990 F.3d at 365 (quoting Cooper, 566 U.S. at 290).

Therefore, it follows that a waiver of the Federal Government’s sovereign immunity may not be

7 In Sections D and E the Court more fully discusses the federal agency and quasi-federal agency issues.

implied from statutory text.8 See Robinson v. United States Dep’t of Ed., 917 F.3d 799, 801 (4th

Cir. 2019) (citation omitted) (“A waiver of the Federal Government’s sovereign immunity must

be unequivocally expressed in statutory text . . . and will not be implied.”). Nor can legislative

history “supply a waiver that is not clearly evident from the language of the statute.” Cooper, 566

U.S. at 290. Put simply, sovereign immunity “can only be waived by statutory text that is

unambiguous and unequivocal.” Robinson, 917 F.3d at 802. Guided by these principles, this

Court declines to follow Challenger and Seal in recognizing an implied cause of action for

disappointed bidders in the scheme of the WMATA compact.9

D. Impact of Administrative Procedure Act on Sovereign Immunity: Federal

Agency Question

In the alternative, Plaintiff urges this Court to follow Challenger I’s holding that WMATA

is treated as a federal agency, subject to the strictures of the APA, in actions alleging that the

Authority violated its own procurement policies and procedures. (Opposition, p. 15). WMATA

8 WMATA is unique among interstate compacts in that “Congress adopted and enacted the WMATA

Compact for the District of Columbia” while also consenting to Maryland and Virginia entering into the

Compact. Morris, 781 F.2d at 222. In doing so, there is “no question that the United States could validly

confer its sovereign immunity upon WMATA” and that Maryland and Virginia validly conferred their

Eleventh Amendment immunity on WMATA as well. Id.; see also Smith, 290 F.3d at 206 (“[t]he Compact

. . . evinces the clear intent of its signatories to effect . . . a conferral” of their sovereign immunity on

WMATA). Regardless of whether this Court follows the framework for assessing a waiver of the Federal

Government’s sovereign immunity, or a waiver of the Eleventh Amendment immunity conferred on

WMATA by Maryland and Virginia, one constant remains: a waiver of sovereign immunity must be

express and unequivocal. Cooper, 566 U.S. at 290 (“waiver of sovereign immunity must be unequivocally

expressed in statutory text”); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985), superseded by

statute, P.L. 99-506, as recognized in Lane v. Pena, 518 U.S. 187 (1996) (“a State will be deemed to have

waived its immunity only where stated by the most express language or by such overwhelming implication

from the text”).

9 This Court is sympathetic to Plaintiff’s argument that an implied cause of action would allow courts to

“fulfill WMATA’s own procurement rules appointing the judiciary to serve as the external check against

procurement misconduct,” and that without an implied cause of action parts of the Compact “cannot be

enforced by an aggrieved bidder.” (Opposition, p. 15-16). But where a statute does not create a private

cause of action, a court may not find one, “‘no matter how desirable that might be as a policy matter.’”

Planned Parenthood, 941 F.3d at 695 (quoting Alexander, 532 U.S. at 286-87).

counters that it is not a federal agency but rather a state agency created by interstate compact, and

therefore cannot be subject to the APA. (Motion to Dismiss, pp. 19-20; Reply, p. 12).

The APA provides, in relevant part, that “[a] person suffering legal wrong because of

agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant

statute, is entitled to judicial review.” 5 U.S.C. § 702. The APA defines an “agency” as “each

authority of the Government of the United States,” and excludes, in relevant part, “the Congress”

and “the government of the District of Columbia.” 5 U.S.C. § 701(b)(1)(A), (D); § 551(1)(A),

(D). Therefore, § 702 waives sovereign immunity only when the Defendant is an agency as defined

by § 701(b)(1). See Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 187 (D.C. Cir. 2006) (the APA

“waives immunity only when the defendant” is an “agency” within the meaning of the APA).

Pursuant to § 702, the Fourth Circuit has held that “a disappointed bidder for a federal agency

contract is a person adversely affected or aggrieved by agency action” with standing to challenge

an agency’s contract award in federal court. Seal, 768 F. Supp. at 1154 (citing Motor Coach

Industries, Inc. v. Dole, 725 F.2d 958, 962-64 (4th Cir. 1984) (finding unsuccessful competitor for

contract at airport operated by Federal Aviation Administration had standing under APA to

challenge Administration’s alleged failure to follow procurement procedures).

Plaintiff raises two arguments in support of its claim that WMATA is a federal agency, and

therefore, that its procurement decisions are subject to APA review. First, Plaintiff contends that

WMATA is both a “multi-state agency” and a “federal agency that is federally approved by

Congress” because the United States government entered into the Compact on behalf of the District

of Columbia. (Opposition, p. 13). Second, Plaintiff asserts that the WMATA Compact and PPM

intend for WMATA to “perform federal procurements as federal agencies do,” and therefore APA

review should apply to the Authority’s procurement decisions. (Opposition, pp. 13-14). Plaintiff’s

second argument is simply a variation of its earlier argument that the WMATA Compact, PPM,

IFB, and the denial letter expressly waive WMATA’s sovereign immunity. As further support for

this argument, Plaintiff asserts that the PPM mirrors many of same procurement regulations

governing federal agencies and even expressly incorporates provisions of the Federal Acquisition

regulations. (Opposition, pp. 13-14). But even assuming that the Compact and the PPM intend

for WMATA to perform federal procurements as federal agencies do, this cannot establish

WMATA as an “authority of the Government of the United States” subject to the APA.

Ultimately, Plaintiff urges that this Court need not reach either argument and instead,

should follow the decisions of other courts that have applied APA review to bid protests involving

WMATA. None of these arguments are persuasive.

Determining whether an entity is an agency as defined by the APA requires a nuanced

analysis. See McKinney v. Caldera, 141 F. Supp. 2d 25, 31 (D.D.C. 2001) (quoting Lee Constr.

Co., Inc. v. Federal Reserve Bank, 558 F. Supp. 165, 172) (D. Md. 1982) (further citation omitted))

(“The law on the simple question of what is an agency is quite complex.”). Thus, when assessing

whether an entity is an agency within the meaning of the APA, courts “examine the structure,

function, and mandate of the entity in question.” New York v. Atlantic States Marine Fisheries

Comm’n (ASMFC), 609 F.3d 524, 531 (2d Cir. 2010) (citation omitted).

The Fourth Circuit has acknowledged in other contexts that WMATA is “an

instrumentality and agency of each of the signatory parties—the District of Columbia, Maryland,

and Virginia.” Wash. Metro. Area Transit Auth. v. One Parcel of Land, 706 F.2d 1312, 1314 (4th

Cir. 1983); see also Delon Hampton, 943 F.2d at 359 (“WMATA is an interstate agency and

instrumentality of each of the signatories of the Compact”). However, the Court does not believe

that the Fourth Circuit has decided whether WMATA is a federal agency subject to the strictures

of the APA. The Fourth Circuit has, however, examined the federal agency question in a suit

involving the Metropolitan Washington Airports Authority (“MWAA”).10 Kerpen v. Metro. Wash.

Airports Auth. (Kerpen II), 907 F.3d 152 (4th Cir. 2018). A brief discussion of Kerpen II is

instructive.

In Kerpen II, the Fourth Circuit held that the MWAA is not a federal entity, and therefore,

not an “author[ity] of the Government of the United States” subject to the APA. Id. at 160. Kerpen

II followed the two-prong test established by the Supreme Court in Lebron v. National Railroad

Passenger Corp., 513, U.S. 374 (1995). Under Lebron, a federal entity is an entity that is “both

created and controlled by the federal government.” Kerpen II, 943 F.3d at 158 (emphasis added)

(citing Lebron, 513 U.S. at 397). Under the first prong—the creation prong—an entity is

established by the federal government when it is “created by a special statute, explicitly for the

furtherance of federal government goals.” Lebron, 513 U.S. at 397. Under prong two—the control

prong—an entity is controlled by the federal government when its “operations are ‘controlled’ by

federal government appointees,” such that the federal government is “the ‘policymaker’ for the

entity.” Kerpen II, 943 F.3d at 158 (quoting Lebron, 513 U.S. at 396, 398-99).

Kerpen II held that the MWAA was not created by the federal government because

Congress did not enact “a special law” to create it, but rather by Virginia’s and the District of

Columbia’s enactment of reciprocal laws in 1985. Id. at 159. The Fourth Circuit found that

Congress’s preapproval of the MWAA with the passage of the Transfer Act, “a law giving

advance consent to regional compacts for the management of airports,” did not transform the

MWAA into a creation of the federal government because it “conferred no powers on MWAA; it

simply specified the minimum powers MWAA must have in order to lease Dulles and National.”

10 Virginia and the District of Columbia created the MWAA by interstate compact for the management of

Dulles and National airports. Kerpen II, 907 F.3d at 157.

Id. As for Lebron’s control prong, the Fourth Circuit decided that MWAA was not controlled by

the federal government because only three of MWAA’s seventeen board members are appointed

by the federal government, a “distinct minority of the Board” unable exercise control over the

MWAA. Id. The Kerpen II court reasoned that if the MWAA was not a federal entity, then it

could not be an “author[ity] of the Government of the United States” pursuant to the APA. Id. at

160.

Here, the question of whether WMATA was created by the federal government as

contemplated by Lebron is not an entirely straight forward one. As several courts have noted,

WMATA is unique in that Congress entered the Compact on behalf of the District of Columbia,

and “was the motivating force behind the creation of the Compact.” Seal, 768 F. Supp. at 1157

(“Congress on behalf of the District of Columbia was one of the parties agreeing to the Compact.”);

see also Schindler, 2020 WL 7668905, at *4 (“WMATA is unique . . . in that the District of

Columbia, a federal territory over which Congress holds ultimate authority, is a party to the

WMATA Compact.”); Martha’s Vineyard/Duke’s Cnty. Fisherman’s Ass’n v. Locke, 811 F. Supp.

2d 308, 315 n.2 (D.D.C. 2011) (citing The Bootery, Inc. v. Wash. Metro. Area Transit Auth., 326

F. Supp. 794, 798-99 (D.D.C. 1971) (finding Congress “authorized and directed the Board of

Commissioners of the District of Columbia to enter into and execute the Authority Compact on

behalf of the United States for the District of Columbia”)). However, this Court need not decide

whether WMATA satisfies the creation prong of Lebron because WMATA’s operations are not

controlled by federal government appointees. Only two of the Authority’s eight Directors are

appointed by the federal government with the other six divided equally between, Maryland,

Virginia, and the District of Columbia, a minority that cannot exercise control over WMATA. See

Md. Code Ann., Transp. § 10–204(5)(a) (2010). Therefore, because WMATA does not satisfy

both prongs of Lebron, it is not a federal entity. It follows, a fortiori, that WMATA is not an

“authority of the Government of the United States” within the meaning of § 701(b)(1) of the APA.

Old Town Trolley Tours of Washington, Inc. v. Washington Metropolitan Area Transit

Commission, 129 F.3d 201 (D.C. Cir. 1997), a case involving WMATA’s sister organization, the

Washington Metropolitan Area Transit Commission (“WMATC”), further supports the conclusion

that WMATA is not a federal agency. In Old Town Trolley, the D.C. Circuit held that the WMATC

is not “a federal agency governed by the Administrative Procedure Act.” Id. at 204. The WMATC

was established in 1960 when Maryland, Virginia, and the District of Columbia entered into the

Washington Metropolitan Area Transit Regulation Compact (“the WMATC Compact”) with

Congress’s consent. Id. at 203. While acknowledging that the WMATC Compact is federal law,

the D.C. Circuit held that the WMATC is not a federal agency governed by the APA because “it

is an authority, not of the federal government, but of Virginia, Maryland, and the District of

Columbia.” Id. at 204. Here, too, the mere fact that the WMATA Compact is federal law does

not transmogrify WMATA into a federal agency, where it also is “an instrumentality and agency

of each of the signatory parties—the District of Columbia, Maryland, and Virginia.” One Parcel

of Land, 706 F.2d at 1314; see also Saunders v. Wash. Metro. Transit Auth., 359 F. Supp. 457, 460

(D.D.C. 1973) (finding that the WMATA Compact was “authorized and approved by Congress on

behalf of the District of Columbia” but that the plaintiff “offered nothing” indicating “that

[WMATA] thereby became a Federal agency”). Therefore, this Court does not find persuasive

Plaintiff’s argument that WMATA is a federal agency.11

11 Moreover, the “general consensus” among the federal courts that have examined whether interstate

entities are federal agencies within the meaning of the APA is that they are not. Schindler, 2020 WL

7668905 at *4 (collecting cases).

E. Impact of Administrative Procedure Act on Sovereign Immunity: Quasi Federal

Agency Question

Perhaps anticipating such a finding, Plaintiff contends that this Court need not decide

whether WMATA is a federal agency, instead urging the Court to follow the holding of Challenger

Transportation, Inc. v. Washington Metropolitan Area Transit Authority (Challenger II), Civ. No.

TDC 14-3322, 2017 WL 7691746, at *6 (D. Md. Nov. 28, 2017), that the Compact provides this

Court with “original and subject matter jurisdiction over bid protests against WMATA.”

(Opposition, p. 14). WMATA counters that the foundation for Challenger II, like Challenger I,

has been eroded by subsequent caselaw and, therefore, is not persuasive. (Reply, p. 15).

Challenger II’s holding recognizing “a cause of action for a disappointed offeror to

challenge a WMATA contract award . . . under a standard comparable to that applied under the

Administrative Procedure Act,” is grounded in the same three cases as Challenger I: Elcon,

Monument, and Seal. 2017 WL 7691746, at *6 (citing Elcon, 977 F.2d at 1478-80; Monument,

535 F. Supp. 2d at 73-74; and Seal, 768 F. Supp. at 1157). In Section C, the Court briefly

mentioned Elcon, Monument, and Seal. A further analysis of these cases follows.

Turning first to the D.C. Circuit’s decision in Elcon, there, the Court assumed, without

deciding, that WMATA was a federal agency and accordingly that its procurement decisions were

governed by the APA. 977 F.2d at 1480. Thus, Elcon does not decide the issue. Monument,

relying entirely on Elcon, held that “WMATA is treated as a federal agency for purposes of

standing when a party seeks to challenge WMATA’s procurement decisions in federal court,” and

therefore, that “WMATA’s procurement decisions must be made in accordance with the APA.”

540 F. Supp. 2d at 73-74. As such, neither Elcon nor Monument conclusively establishes that

WMATA is a federal agency as defined by the APA. See Schindler, 2020 WL 7668905, at *4

(“Elcon and its progeny provide little in the way of persuasive support for [the] position that

WMATA is a federal agency for the purposes of the APA”.). Therefore, an analysis of Seal

remains.

First, the Seal court explicitly held that WMATA was not a federal agency, finding instead

that it is “an instrumentality and agency of each of the signatory parties [the District of Columbia,

Maryland and Virginia.]” Seal, 768 F. Supp. at 1154 (citation omitted). Next, the Seal court held

that “private parties have standing to challenge WMATA’s procurement actions,” in part, because

WMATA is a “quasi-federal agency” that Congress intended “be subject to APA-like review of

its procurement activities.”12 768 F. Supp. at 1156-157. Under the quasi-federal agency doctrine,

an entity that is not subject to the APA but nonetheless performs tasks as a federal agency would,

is subject to APA-like review. See Schindler, 2020 WL 7668905, at *5 (citing Jacob E. Gersen,

Administrative Law’s Shadow, 88 Geo. Wash. L. Rev. 1071, 1087 (2020) (explaining that under

the quasi-federal agency doctrine “when an entity is not classified as a federal agency for purposes

of the APA, but performs tasks and functions in the same way that a federal agency did or could,

then it should be treated as though it is a federal agency”)). The Fourth Circuit has yet to rule on

the validity of the quasi-federal agency doctrine, and thus far no federal court of appeals has

adopted the doctrine in a published opinion.13 The Second Circuit, despite applying the quasi-

federal agency doctrine to conclude that the Atlantic States Marine Fisheries Commission was not

a quasi-federal agency, has questioned the validity of the doctrine. ASMFC, 609 F.3d at 534. More

recent decisions by the United States District Court for the District of Columbia have rejected the

12 Seal also held that this same result was compelled viewing WMATA as a non-federal agency and

employing an implied cause of action analysis. 768 F. Supp. at 1156. However, as discussed above in

Section C, this Court declines to follow Seal’s implied cause of action analysis.

13 The Eighth Circuit is the only federal appeals court to have adopted the quasi-federal agency doctrine.

Heard Commc’ns, Inc. v. Bi-State Dev. Agency, 18 Fed. App’x 438 (8th Cir. 2001). However, it did so in

an unpublished opinion and applied the doctrine to conclude that an interstate compact—the Bi-State

Development Agency—was not a quasi-federal agency. Id. at 440-41.

quasi-federal agency doctrine as “‘incompatible with the modern doctrine that causes of action are

created by Congress, not federal courts.’”14 Schindler¸ 2020 WL 7668905, at *5 (quoting Martha’s

Vineyard, 811 F. Supp. 2d at 314). Beyond Seal, only one other district court decision in this

Circuit has directly examined the quasi-federal agency doctrine. See Kerpen v. Metro. Wash.

Airports. Auth. (Kerpen I), 260 F. Supp. 3d 567 (E.D. Va. 2017) (rejecting the quasi-federal agency

doctrine). Kerpen I declined to embrace the quasi-federal agency doctrine, noting that the “Fourth

Circuit has implicitly rejected it.”15 Id. at 586-87.

However, this Court need not decide the validity of the quasi-federal agency doctrine

because, even assuming arguendo the legitimacy of the doctrine, its application here cannot result

in a waiver of WMATA’s sovereign immunity. Such a holding would squarely conflict with the

rule that a waiver of sovereign immunity must be unequivocally expressed in statutory text. See

Robinson, 917 F.3d at 802 (sovereign immunity “can only be waived by statutory text that is

unambiguous and unequivocal.” Thus, Plaintiff has not identified a valid waiver of WMATA’s

sovereign immunity, and absent a statutory waiver of WMATA’ sovereign immunity, this Court

lacks subject matter jurisdiction to hear this matter and must dismiss this case.

V. CONCLUSION

For the foregoing reasons, the Court lacks subject matter jurisdiction to entertain this

Complaint. Accordingly, the Motion to Dismiss filed by Defendant predicated on Fed. R. Civ. P.

14 Plaintiff argues that its unanswered FTA appeal distinguishes this case from Schindler, where the

aggrieved bidder did not seek an appeal to the FTA. (Opposition, p. 16). The Court does not find this

argument persuasive but rather a repackaged version of Plaintiff’s argument that this Court has rejected—

that without an implied cause of action parts of the Compact “cannot be enforced by an aggrieved bidder.”

(See supra p. 18, n.9)

15 Kerpen I cites to United States v. Saunders, 828 F.3d 198, 205 (4th Cir. 2016), for the proposition that

the Fourth Circuit implicitly rejected the quasi-federal agency doctrine by “citing with approval the Second

Circuit’s rejection” of the doctrine in New York v. ASFMC. Kerpen I, 260 F. Supp. 3d at 586-87. However,

the Fourth Circuit did not explicitly examine the validity of the quasi-federal agency doctrine in Saunders.

828 F.3d at 205.

12(b)(1) will be granted. The Court declines to address the Fed. R. Civ. P. 12(b)(6) dismissal

arguments raised by Defendant. The Verified Complaint will be dismissed.

The Court further orders that Plaintiff’s Preliminary Injunction Motion will be denied as

moot. Plaintiff’s notice of intent to file a motion for expedited discovery will be denied as moot.

A separate order will follow.

Dated: April 16, 2021 ____________/s/___________

The Honorable Gina L. Simms

United States Magistrate Judge