Crowley Government Services, Inc. v. GSA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 10, 2024 Decided July 18, 2025

No. 23-5183

CROWLEY GOVERNMENT SERVICES, INC.,

APPELLANT

v.

GENERAL SERVICES ADMINISTRATION AND ROBIN CARNAHAN,

IN HER OFFICIAL CAPACITY AS ADMINISTRATOR OF THE

GENERAL SERVICES ADMINISTRATION,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-02298)

James Y. Boland argued the cause for appellant. With him

on the briefs were Christopher G. Griesedieck, Nicholas M.

DePalma, Kevin W. Weigand, and Kelly M. Boppe.

Steven H. Hazel, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were

Brian M. Boynton, Principal Deputy Assistant Attorney

General, and Mark B. Stern, Attorney, as well as Alex Demots,

General Counsel of the General Services Administration, and

Dan Hall and Aaron Pound, Assistant General Counsel.

2

Before: WILKINS and GARCIA, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WILKINS.

Dissenting opinion filed by Senior Circuit Judge

RANDOLPH.

WILKINS, Circuit Judge: Crowley Government Services,

Inc. (“Crowley”) is a federal contractor. In 2016, Crowley and

the Department of Defense United States Transportation

Command (“USTRANSCOM”) reached an agreement

concerning Crowley’s provision of “transportation

coordination services,” which required it to engage motor

carriers to move USTRANSCOM freight in support of the

military’s logistical needs. J.A. 104. Years after Crowley

began performing under the contract, the Government Services

Agency (“GSA”)—not itself a party to or involved with the

agreement in any way—began auditing bills Crowley had

invoiced USTRANSCOM. It did so under a provision of the

Transportation Act of 1940 amended by Congress in 1998.

That statute, 31 U.S.C. § 3726(b), allows GSA to conduct

audits of “transportation bills.” To complete its audits and

assess whether Crowley appropriately charged the government,

GSA interpreted the agreement, but in ways that contradicted

the Department’s oversight of the contract. GSA, on its read

of the contract, believed Crowley overbilled USTRANSCOM

by millions of dollars. The agency sought to recover the

overcharges by garnishing future payments due to Crowley.

Crowley objects to these audits as an unlawful exercise of

GSA’s authority. The District Court sided with GSA. We

agree with Crowley. After concluding that the case is not moot,

we hold that 31 U.S.C. § 3726(b) allows GSA to audit only

those bills presented to the government by carriers and freight

3

forwarders. We further hold that Crowley is not a carrier

because it neither physically transports Department of Defense

freight, nor is it contractually bound to help perform the

movement of goods.1 Instead, Crowley serves as an

intermediary, hiring third-party carriers to move the

Department’s freight. We therefore reverse the District Court’s

decision on the scope of § 3726(b).

I.

A.

Subsection 3726(b) allows GSA’s Administrator to

“conduct pre- or post-payment audits of transportation bills of

any Federal agency. The number and types of bills audited

shall be based on the Administrator’s judgment.” 31 U.S.C.

§ 3726(b).

GSA’s audit authority and the surrounding § 3726

provisions are part of a statutory scheme that traces its roots to

the Interstate Commerce Act (“ICA”), ch. 104, 24 Stat. 379

(1887), and the English and American law of common carriage.

In the ICA, Congress “codified the common carriage

obligations of rail carriers” and created the Interstate

Commerce Commission (“ICC”). Cellco P’ship v. FCC, 700

F.3d 534, 545 (D.C. Cir. 2012). Its “great purpose” was to

“secure equality of rates” and “destroy favoritism” in the

railroad industry. Id. (quoting N.Y., New Haven & Hartford

R.R. v. ICC, 200 U.S. 361, 391 (1906)). But industrialization,

the Great Depression, and a changing American economy led

1

Section 3726 at times refers to both carriers and freight forwarders,

but the statutory definition of “carrier” includes the term “freight

forwarder.” 49 U.S.C. § 13102(3). For that reason, and because no

party suggests that Crowley is a freight forwarder, we use the term

“carrier” as a stand-in for both when no distinction is needed.

4

to what the ICC called a “transportation problem”: the decline

of rail carriage and corresponding growth of transportation by

land, water, and air. 1938 ICC ANN. REP. 1–5, reprinted in 52

I.C.C. 1 (1938). So, Congress amended the ICA in the Motor

Carrier Act of 1935, ch. 498, 49 Stat. 543, and the

Transportation Act of 1940, ch. 722, 54 Stat. 898, to give the

ICC regulatory authority over motor and water carriers. See

Cent. & S. Motor Freight Tariff Ass’n v. United States, 757

F.2d 301, 309 (D.C. Cir. 1985); Water Transp. Ass’n v. ICC,

715 F.2d 581, 589 (D.C. Cir. 1983).

That latter amendment, the Transportation Act of 1940,

also included the predecessor to the auditing provision at issue

here. It permitted the Executive Branch to audit “any common

carrier” and “deduct . . . overpayment[s]” from subsequent

bills. § 322, 54 Stat. at 955. Later amendments in 1972, 1982,

and 1986 left the audit power largely unchanged. See Pub. L.

No. 92-550, 86 Stat. 1163 (1972); Pub. L. No. 97-258, 96 Stat.

877 (1982); Pub. L. No. 99-627, 100 Stat. 3508 (1986).

In 1998, Congress passed the Travel and Transportation

Reform Act, Pub. L. No. 105-264, 112 Stat. 2350 (1998),

which mandated in § 3726(a) that agencies conduct

prepayment audits, created the § 3726(b) GSA audit power,

granted GSA the authority under § 3726(c) to adjudicate claims

that cannot be resolved by the agency or the carrier or freight

forwarder with the bill, permitted GSA in § 3726(j) to help

agencies with their audits, and otherwise recodified previously

existing statutory provisions.

B.

USTRANSCOM awarded Crowley the Department

Freight Transportation Services (“DFTS”) contract under the

Federal Acquisition Regulation (“FAR”), a regulatory

5

framework governing federal procurement. Crowley Gov’t

Servs., Inc. v. GSA, No. 21-cv-2298 (BAH), 2023 WL

4846719, at *2 (D.D.C. July 28, 2023). The DFTS contract is

a “follow-on” to a previous one; the predecessor agreement

“changed the basic business model for moving [certain

Department of Defense] freight.” J.A. 439. In this new model,

the Department sought “transportation coordination

services”—“not just transportation”—from a “Third Party

Logistics provider to manage [the Department’s] freight” and

“leverage[] and centrally manage[]” all “freight movements.”

Id.

Crowley and USTRANSCOM’s contract delineated a

standardized process under which Crowley would provide

logistics and coordination services. First, the Department

generates a request for transportation for the Contractor.

Crowley receives the request, acknowledges it, and then

“engage[s] its network of carriers to secure transportation

arrangements in accordance with the shipment request.” J.A.

147. The carrier “confirms its arrangements” with Crowley

and picks up the freight “at the shipper location.” J.A. 147–48.

At that point, the shipper generates a bill of lading and forwards

it to the Department. J.A. 148. Once the shipment is

completed, Crowley “bundle[s]” the “shipment movement

data, at the bill of lading . . . level” and invoices the third-party

payment system, which validates the invoice and pays

Crowley. J.A. 149, 269. Crowley then “pay[s] its carriers for

shipments they transported.” J.A. 149 (emphasis added).

In administering a FAR-based contract, USTRANSCOM

designated a Contracting Officer to oversee and administer the

agreement. See 48 C.F.R. § 1.602-2 (2024). Like others

governed by the FAR, this contract incorporated the Contract

Disputes Act (“CDA”) as the dispute resolution scheme. See

Crowley, 2023 WL 4846719, at *15. The USTRANSCOM

6

Contracting Officer’s interpretations of and decisions about the

contract are considered “final” unless Crowley pursues an

appeal under the CDA. 41 U.S.C. § 7103(g).

Notwithstanding the USTRANSCOM Contracting

Officer’s authority over the contract, GSA in 2018 began

paying vendors to audit Crowley’s performance. Crowley,

2023 WL 4846719, at *3. GSA maintained it was authorized

to act under 31 U.S.C. § 3726(b). From 2018 until Crowley

filed its Complaint in August 2021, GSA issued more than fifty

thousand Notices of Overcharge (“NOCs”) to Crowley, each

alleging Crowley overbilled USTRANSCOM small amounts,

which in the aggregate totaled about $37 million. Id. To arrive

at its overcharge value, GSA interpreted the DFTS contract

“across a range of categories,” from delivery timelines to

performance timetables. Id. The agency issued these NOCs

even though its interpretation of the contract diverged from that

of the USTRANSOM Contracting Officer. To collect on the

NOCs, GSA “seized” the overcharged amount by siphoning off

money from subsequent contract payments owed to Crowley

before they were paid, which GSA asserted was permissible

under 31 U.S.C. § 3726(d). Id. After Crowley lodged

challenges with the USTRANSCOM Contracting Officer to

certain NOCs, the Officer issued three Final Decisions—each

of which held that GSA’s conclusions were “erroneous” and

“should not have been issued.” Id. (internal quotation marks

omitted).

All told, GSA has issued Crowley over one hundred

thousand NOCs. Id. at *3–4. GSA uses money that it garnishes

to fund its Transportation Audit Division. 31 U.S.C. § 3726(e).

And, notwithstanding this yearslong litigation,

USTRANSCOM recently awarded Crowley the DFTS II

contract, which follows the DFTS I agreement at issue here.

7

C.

Despite the Contracting Officer’s view that the contested

NOCs were erroneous, USTRANSCOM asserted that it

“lacked the authority to order GSA to refund Crowley’s seized

payments.” Crowley, 2023 WL 4846719, at *3. In response,

Crowley initiated two lawsuits. First was in the United States

Court of Federal Claims, where Crowley primarily alleges a

breach of contract claim against USTRANSCOM for

nonpayment. Id. at *4. In that litigation, which is stayed

pending resolution of this case, Crowley seeks to recover $11.8

million taken in allegedly unlawful offsets. Id. at *4, 8.

Crowley also filed the instant suit in the United States

District Court for the District of Columbia. The Complaint

alleges a violation of the Administrative Procedure Act

(“APA”) arising from GSA’s purported misinterpretation of

§ 3726(b) to allow the contested audits. Crowley alleges that

GSA’s audit authority extends only over bills presented for

payment by carriers or freight forwarders—and that Crowley is

neither. Crowley thus sought a declaratory judgment that GSA

is not permitted to audit the DFTS contract under 31 U.S.C.

§ 3726(b). Further, Crowley asked the District Court to declare

that the NOCs “violate the finality of the Contracting Officer’s

final decisions” and that GSA lacks authority to contradict the

Officer’s determinations. J.A. 32. Aside from declaratory

relief, Crowley requested an injunction prohibiting GSA from

“conducting any further such audits and issuing such NOCs.”

Id.

Without reaching the merits, the District Court granted

GSA’s motion to dismiss for lack of jurisdiction. Crowley

Gov’t Servs., Inc. v. GSA, No. 21-2298, 2021 WL 4940953, at

*7–11 (D.D.C. Oct. 22, 2021). It held that Crowley’s APA

claims were, at bottom, contractual and thus fell within the

8

exclusive jurisdiction of the Court of Federal Claims. Id. at

*11. Our Court reversed, finding that Crowley’s suit in the

District Court was not “in essence” a contract claim because

the source of the right at issue was not contractual in nature,

and because Crowley sought non-monetary (i.e., declaratory

and injunctive) relief. Crowley Gov’t Servs., Inc. v. GSA

(Crowley I), 38 F.4th 1099, 1108–13 (D.C. Cir. 2022)

(applying Megapulse, Inc. v. Lewis, 672 F.2d 959, 968 (D.C.

Cir. 1982)).

On remand, the District Court rejected Crowley’s

§ 3726(b) argument and held that GSA can audit both carriers

and non-carriers. To start, it noted that the relevant ICA

definitional section, 49 U.S.C. § 13102, does not define

“transportation bills.” Crowley, 2023 WL 4846719, at *17. It

then looked to “transportation” as defined by 49 U.S.C.

§ 13102(23), which includes “‘services related to’ the

movement of passengers or property.” Id. (quoting 49 U.S.C.

§ 13102(23)). And the court paired that definition with the

“ordinary meaning” of “bill”—“an itemized account of the

separate cost of goods sold, services performed, or work done.”

Id. (quoting Bill, MERRIAM-WEBSTER, https://www.merriam-

webster.com/dictionary/bill) (internal quotation marks

omitted). On that basis, it concluded that the term

“transportation bill” is “simple and far-reaching, covering all

itemized accounts of the costs of services rendered to the

United States government related to the movement of people

or property.” Id.

Because the District Court construed subsection 3726(b)

as permitting GSA audits of carriers and non-carriers alike, it

did not determine whether Crowley is a carrier. Id. at *18 &

n.18. Nevertheless, the District Court agreed with Crowley that

the USTRANSCOM Contracting Officer’s interpretations

govern any GSA audits and that the CDA’s dispute resolution

9

scheme, not the administrative review procedure in § 3726(c),

applies to Crowley’s claims. The court thus enjoined GSA

from issuing Crowley NOCs contrary to the Contracting

Officer’s determinations about the contract and further

declared that all disputed NOCs must be channeled through the

CDA process. These rulings are not under review.

Crowley timely appealed. Before us is the District Court’s

denial of declaratory and injunctive relief on the scope of

§ 3726(b). We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we review the District Court’s interpretation of § 3726(b)

de novo. Woodhull Freedom Found. v. United States, 72 F.4th

1286, 1297 (D.C. Cir. 2023). Because we agree with Crowley

that § 3726(b) permits only audits of carriers and freight

forwarders, and because we further hold that Crowley is

neither, we reverse the District Court’s decision on the scope

of § 3726(b) and remand for further proceedings.

II.

We first consider whether Article III of the Constitution

grants us power to hear this case. Federal courts may only

“resolve ‘actual, ongoing controversies.’” Trump v. Mazars

USA, LLP, 39 F.4th 774, 785 (D.C. Cir. 2022) (quoting

Planned Parenthood of Wis., Inc. v. Azar, 942 F.3d 512, 516

(D.C. Cir. 2019)). We lose jurisdiction over a case—and must

dismiss it as moot—“when the issues presented are no longer

‘live’ or the parties lack a legally cognizable interest in the

outcome.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quoting

Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)).

Below, GSA argued the case was mooted by its

mid-litigation declaration that it would cease auditing the

DFTS agreement and a separate contract. The District Court

denied the government’s motion to dismiss after applying the

10

voluntary cessation exception, Crowley, 2023 WL 4846719, at

*9–14, which prevents a defendant from mooting a case merely

by ceasing the challenged conduct, FBI v. Fikre, 601 U.S. 234,

241 (2024). GSA abandoned its mootness argument on appeal.

Appellee’s Br. 10 n.2. But we have an “‘independent

obligation’ to ensure that appeals before us are not moot.”

Mazars, 39 F.4th at 785 (quoting Planned Parenthood, 942

F.3d at 516).

While GSA initially triggered the voluntary cessation

framework by deliberately attempting to moot the case, the sole

event that now raises mootness concerns is the expiration of the

DFTS I contract. At oral argument in September 2024,

Crowley’s counsel indicated that the DFTS I agreement would

“run at least four to six more months,” Oral Arg. Tr. 26:18–21,

meaning it expired at least three months ago. USTRANSCOM

has since awarded Crowley the DFTS II contract. See id. at

25:21–25; Supp. App. Ex. A, at 27, Crowley Gov’t Servs., Inc.

v. GSA, No. 23-5183 (D.C. Cir. Mar. 10, 2025), Dkt. No.

2104739. According to our dissenting colleague, this sequence

of events conclusively mooted Crowley’s lawsuit. Dissenting

Op. 1–6.

Not so. A case becomes moot “only when it is impossible

for a court to grant ‘any effectual relief whatever’ to the

prevailing party.” Zukerman v. U.S. Postal Serv., 961 F.3d

431, 442 (D.C. Cir. 2020) (emphasis added) (quoting Knox v.

Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307

(2012)). “As long as the parties have a concrete interest,

however small, in the outcome of the litigation, the case is not

moot.” Id. (quoting Chafin, 568 U.S. at 172). Crowley readily

clears that bar, and the case is not moot, for two reasons.

First, Crowley retains an interest in declaratory relief from

this Court because it may affect Crowley’s related lawsuit in

11

the Court of Federal Claims. There, Crowley seeks $11.8

million dollars in damages from deducted payments. See supra

Section I.C. Damages claims, “if at all plausible, ensure a live

controversy.” Mission Prod. Holdings, Inc. v. Tempnology,

LLC, 587 U.S. 370, 377 (2019). “Ultimate recovery on [a

demand for money] may be uncertain or even unlikely for any

number of reasons,” yet “[i]f there is any chance of money

changing hands, [a] suit remains live.” Id.

The dissent insists otherwise because Crowley seeks

damages in the Claims Court, not here. It thus suggests that

Crowley’s interest in today’s decision is an “advisory opinion”

in its favor. Dissenting Op. 2. But the dissent errs because a

court may “entertain a request for a declaration that could

resolve a damages claim advanced only in a parallel action.”

13C WRIGHT & MILLER’S FEDERAL PRACTICE & PROCEDURE

§ 3533.3 & n.17 (3d ed. Supp. 2025); see also Me. Cent. R.R.

Co. v. Bhd. of Maint. of Way Emps., 813 F.2d 484, 486–87 (1st

Cir.), cert. denied, 484 U.S. 825 (1987) (holding that lawsuit

seeking injunction and declaratory judgment was not moot

because parallel damages suit was live and might be affected

by equitable relief); cf. Powell v. McCormack, 395 U.S. 486,

495–500 (1969) (rejecting argument that action for injunction,

declaratory judgment, and backpay was moot because plaintiff

should have sought damages in Court of Claims).

The weight of authority from our Court endorses this

approach. See, e.g., Mine Reclamation Corp. v. FERC, 30 F.3d

1519, 1523 (D.C. Cir. 1994) (case not moot where judicial

resolution would affect “on-going litigation within the

Department of the Interior”); Reeve Aleutian Airways, Inc. v.

United States, 889 F.2d 1139, 1143 (D.C. Cir. 1989) (crediting

“the not insignificant point” that a favorable decision “may

provide the basis for a subsequent action for money damages

in the United States Court of Claims”); British Caledonian

12

Airways Ltd. v. Bond, 665 F.2d 1153, 1158 n.2 (D.C. Cir. 1981)

(finding case not moot in part because plaintiffs “intend[ed] to

take any judgment in their favor to the Court of Claims in an

attempt to recover money damages”); see also Unión de

Empleados de Muelles de P.R., Inc. v. Int’l Longshoremen’s

Ass’n, 884 F.3d 48, 58–59 (1st Cir. 2018) (noting that a

declaratory judgment is “often a means to an end rather than an

end in and of itself” and holding that case was not moot, in part

because a favorable declaratory judgment could be used “for

the purposes of a subsequent challenge”). Two circuits have

reached the opposite conclusion, but only when the parallel

damages claim is hypothetical, which is inapplicable to

Crowley’s pending lawsuits. See Schell v. OXY USA Inc., 814

F.3d 1107, 1115 (10th Cir. 2016) (finding that “potential

preclusive effect[]” of a declaratory judgment in a

“hypothetical” suit was not “a legally cognizable interest that

w[ould] defeat mootness”); CFTC v. Bd. of Trade of Chi., 701

F.2d 653, 656 (7th Cir. 1983) (refusing to reach merits solely

because preclusive effect of judgment might help litigant in

future, speculative case).

For mootness purposes, we cannot say that Crowley lacks

any interest in a declaratory judgment that implicates a core

issue in its parallel damages suit. The dissent fundamentally

missteps by failing to grasp that we consider the Claims Court

litigation because mootness doctrine calls for us to do so. One

unmistakable effect of the challenged audits is that Crowley

was deprived of millions of dollars in compensation for

services it rendered to the government. Although that money

is not the subject of this case, the damages claim is viable and

unquestionably live, Mission Prod. Holdings, 587 U.S. at 377,

and our decision may (although it certainly may not) prove

useful to Crowley in its quest for damages in the Court of

Federal Claims. That possibility defeats any mootness

argument and preserves our jurisdiction.

13

Our mootness holding comports with how the Claims

Court has treated Crowley’s damages action. In that case, the

Court of Federal Claims found good cause to stay litigation

pending resolution of the “related legal issues” in this appeal.

Order, Crowley Gov’t Servs., Inc. v. United States (Crowley),

No. 21-1405 (Fed. Cl. Dec. 15, 2023), Dkt. No. 75. Crowley’s

motion seeking a stay, which the government did not oppose,

explained that the “interpretation of 31 U.S.C. § 3726(b) is

relevant to [its] monetary claims.” Unopposed Mot. to Stay

Case, Crowley, No. 21-1405 (Fed. Cl. Dec. 1, 2023), Dkt.

No. 71. If resolving the merits of this case truly “intrude[d] on

the exclusive jurisdiction” of the Claims Court and the Federal

Circuit as the dissent proclaims, Dissenting Op. 1, staying the

damages claim would make no sense.

The dissent also is flat wrong about its related argument—

that the only consequence of the Court’s merits holding is to

serve as a “predicate” for Crowley to seek damages in the Court

of Federal Claims. Id. at 3 (quoting Christopher Village, L.P.

v. United States, 360 F.3d 1319, 1321 (Fed. Cir. 2004)).

Christopher Village is inapposite. That case rests on the

Federal Circuit’s conclusion that the APA’s waiver of

sovereign immunity applies—and a court may exercise

jurisdiction to conduct APA review—only where “there is no

other adequate remedy” available. Christopher Village, 360

F.3d at 1327 (emphasis omitted) (quoting 5 U.S.C. § 704). The

Federal Circuit thus found a Fifth Circuit declaratory judgment

to be void (and lack preclusive effect) because an adequate

remedy existed in the Claims Court. Id. at 1327–29. Our

Circuit’s cases are clear, however, that the APA’s “adequate

remedy bar . . . determine[s] whether there is a cause of action

under the APA, not whether there is federal subject matter

jurisdiction.” Perry Cap. LLC v. Mnuchin, 864 F.3d 591, 621

(D.C. Cir. 2017); see also Crowley I, 38 F.4th at 1113 & n.11.

14

The dissent’s reading of Christopher Village cannot be

squared with Perry and Crowley I because we have jurisdiction

to conduct APA review and issue a declaratory judgment with

preclusive effect. It is not clear, though, that even the dissent’s

understanding compels the Claims Court to treat as “void” the

judgment that follows from this decision. The reasoning in

Christopher Village relied in part on the fact that under Fifth

Circuit precedent, the existence of an adequate remedy

defeated the APA’s waiver of sovereign immunity, meaning

the Fifth Circuit lacked jurisdiction to issue the declaratory

judgment not only under Federal Circuit precedent, but also

under its own. See Christopher Village, 360 F.3d at 1329 (“The

Fifth Circuit itself has repeatedly emphasized the limited nature

of the APA’s waiver of sovereign immunity where there is an

adequate remedy in the Court of Federal Claims.”). The same

is not true here; our precedent is clear that the adequate remedy

bar does not limit the APA’s waiver of sovereign immunity and

is not jurisdictional. See Perry, 864 F.3d at 619–20 (explaining

that sovereign immunity is “jurisdictional in nature,” but that

this Court views “the adequate remedy bar not as a condition

of immunity, but instead as a requirement for a cause of

action”).

Accordingly, assuming the dissent frames the issue

correctly, the Federal Circuit will face a different question

when applying any judgment following this decision: What

effect does a judgment have when the issuing court—under its

own valid reading of the law—possessed jurisdiction? The

Federal Circuit may reach a different conclusion than it did in

Christopher Village, particularly given that “the fact that a

court did not have jurisdiction over a suit in which it issued a

decision does not automatically strip that decision of preclusive

effect.” Christopher Village, 360 F.3d at 1329. Moreover, at

least one circuit (our own) has come to a different view of the

adequate remedy bar since Christopher Village was decided.

15

See Perry, 864 F.3d at 620–21 (citing Cohen v. United States,

650 F.3d 717, 731 (D.C. Cir. 2011) (en banc)). Given this shift

by one of its “sister circuits,” Christopher Village, 360 F.3d at

1328, the Federal Circuit could change its stance on the

adequate remedy bar (or could apply the bar differently here).2

The Federal Circuit would have even more reason to find

that Crowley’s action does not implicate the APA’s adequate

remedy bar under its own precedent. The Federal Circuit’s

animating principle in enforcing that bar is “[t]o

thwart . . . attempted forum shopping.” Suburban Mortg.

Assocs., Inc. v. U.S. Dep’t of Hous. & Urb. Dev., 480 F.3d

1116, 1124 (Fed. Cir. 2007). But under both our and the

Federal Circuit’s precedent, this Court properly has subject

matter jurisdiction over Crowley’s suit under 5 U.S.C. § 702

because it “is not founded on a contract.” Crowley I, 38 F.4th

at 1109 (internal quotation marks omitted); see also Fairholme

Funds, Inc. v. United States, 26 F.4th 1274, 1298 (Fed. Cir.

2022); accord Doe v. United States, 372 F.3d 1308, 1313–14

2

The dissent contends that we are assuming that sovereign immunity

is not jurisdictional. Dissenting Op. 5. But that is not our argument.

Our point is that in Christopher Village, the Federal Circuit

concluded that under both its and the Fifth Circuit’s precedent, the

“adequate remedy” bar of 5 U.S.C. § 704 conditioned the scope of

the APA’s waiver of sovereign immunity. See 360 F.3d at 1327,

1329. Because the Federal Circuit believed that suit in the Claims

Court for money damages provided an adequate remedy for the only

claim still live at the time the Fifth Circuit issued its judgment, it held

that the Fifth Circuit lacked jurisdiction to provide that relief. Id. at

1329. But our court, as noted above, has squarely held that Section

704’s adequate remedy bar is not a condition on the APA’s waiver

of sovereign immunity and is instead a non-jurisdictional aspect of

an APA cause of action. See Perry, 864 F.3d at 620. So whether

there is another adequate remedy or not, Section 704’s adequate

remedy bar does not affect our jurisdiction.

16

(Fed. Cir. 2004) (construing Christopher Village to mean that

the adequate remedy bar was inapplicable when “the plaintiff’s

claim for relief [was not] simply a request for money damages

disguised as a request for an order granting injunctive relief, or

in which the grant of equitable relief would give the plaintiff

nothing more than an award of damages”). It does not “dress[]

up a claim for money as one for equitable relief.” Suburban

Mortg. Assocs., 480 F.3d at 1124.

Indeed, the analog to Crowley’s Complaint here is a “tort

action” for “tortious interference with contractual relations,” a

claim it “could not bring” in the Claims Court. Crowley I, 38

F.4th at 1109. It cannot be said that Crowley was engaged in

forum shopping when it filed this suit in district court.

Moreover, we recognized that Crowley seeks “a host of

non-monetary benefits” that affect its “business operations and

professional reputation.” Id. at 1111. To the extent any

benefits no longer are implicated because the DFTS I

agreement expired, others, including those to reputational

harms, may still be remediated by equitable relief. For our

purposes, declaratory relief affects these “concrete interest[s],

however small,” which contributes to our finding that this case

is not moot. Zukerman, 961 F.3d at 442 (quoting Chafin, 568

U.S. at 172).

At bottom, we cannot control how a court in another

jurisdiction applies the law, and it ultimately is for the Court of

Federal Claims and the Federal Circuit to decide what, if any,

preclusive effect or persuasive value attaches to our decision.

Cf. Christopher Village, 360 F.3d at 1333.3 But despite that

3

Acknowledging that we cannot control how the Federal Circuit

decides its cases does not, as the dissent proclaims, make this an

advisory opinion. Cf. Dissenting Op. 2 n.4 (citing Haaland v.

Brackeen, 599 U.S. 255, 293 (2023)).

17

uncertainty—and the ever-present possibility that another court

may view our jurisdiction differently than we do—our

precedents have repeatedly indicated that a case may be saved

from mootness where a declaratory judgment has the potential

to impact a concrete interest pending before another

decisionmaker. See supra pp. 11–12. And the dissent has cited

no contrary case, in which our Court faced similar

circumstances and ceded jurisdiction because of another

court’s potentially different reading of the law on a question

that court has not yet decided.

Several features of Crowley’s pending challenge to the

DFTS II agreement, which subjects Crowley to GSA audits and

deems Crowley a carrier, Supp. App. Ex. A, at 51, 58, Crowley

Gov’t Servs., Inc. v. GSA, No. 23-5183 (D.C. Cir. Mar. 10,

2025), Dkt. No. 2104739, confirm our view that the Claims

Court need not treat any judgment following this decision as

“void.” For one, the Court of Federal Claims has not

adjudicated the merits of the § 3726 interpretive question.

Crowley validly protested the legality of the DFTS II audit and

carrier provisions before it was awarded the contract. Crowley

Gov’t Servs., Inc. v. United States, 171 Fed. Cl. 453, 458

(2024); see also Supp. App. Ex. D, at 224–39, Crowley Gov’t

Servs., Inc. v. GSA, No. 23-5183 (D.C. Cir. Mar. 10, 2025),

Dkt. No. 2104739 (protesting both as contrary to law).

Although the dissent notes that the “Claims Court . . . rejected

Crowley’s complaint” contesting the DFTS II audit provision,

Dissenting Op. 7, it did so not by addressing the merits of

Crowley’s arguments, but by finding that Crowley was

precluded from relitigating the issue it lost in the District Court

in this case. Crowley, 171 Fed. Cl. at 461–63. In short, the

18

very ruling we reverse today was the sole basis for applying

issue preclusion.4

What’s more, the Federal Circuit has suggested that this

appeal has some connection to the DFTS II suit. Currently, the

Court of Federal Claims decision concerning the new contract

is pending before the Federal Circuit, which granted an

unopposed request to hold briefing in abeyance until resolution

of this case. See Order, Crowley Gov’t Servs., Inc. v. United

States, No. 24-2121 (Fed. Cir. Aug. 14, 2024), Dkt. No. 9. Had

the Federal Circuit deemed Christopher Village controlling (as

the dissent suggests), it would not have held the case in

abeyance. Instead, it is far more likely that the Federal Circuit

recognized that the resolution of whether the DFTS II

agreement may, consistent with § 3726(b), subject Crowley to

4

Nor is the dissent on better footing when it says the Claims Court

addressed the government’s ability to dictate contract terms.

Dissenting Op. 7. The Claims Court held that USTRANSCOM can

designate Crowley a “carrier” for audit purposes. Crowley, 171 Fed.

Cl. at 463–65. But Crowley has appealed that ruling too, and it is

unclear whether the court viewed the “carrier” designation as

independent of the issue-precluded question of whether “GSA has

audit authority” in the first instance. Id. Further, even if the Claims

Court considered Crowley a “carrier” under the DFTS II contract,

Crowley’s designation under the DFTS I agreement is an issue that

we resolve in Crowley’s favor. See infra Part IV. We thus reach the

question that the Claims Court did not address—what § 3726, and

not any contract, says about Crowley’s carrier status—even though

that court acknowledged USTRANSCOM’s ability to set contract

terms only “so long as they do not contravene statute.” Crowley, 171

Fed. Cl. at 464. At any rate, setting aside the “carrier” question, the

Claims Court still did not resolve (and instead considered precluded)

the antecedent issue: whether GSA has authority under § 3726 to

audit a FAR-based contract. See id. at 463. Our resolution of GSA’s

audit power unquestionably affects the DFTS I agreement and may

affect the DFTS II arrangement.

19

GSA audits implicates the same underlying legal question at

issue here. That is particularly likely where GSA has pledged

to continue committing the same legal wrong under the DFTS

II contract that Crowley alleges in its Complaint.

Post-abeyance, the Federal Circuit’s decision on the Claims

Court’s application of issue preclusion, along with its

resolution of the merits questions about the DFTS II audit

provision and its designation of Crowley as a carrier, may be

influenced, at least in part, by our holding here. The dissent

therefore defies rationality by suggesting that the DFTS II

agreement “show[s] beyond any doubt that the [Court] should

have declared this case moot.” Dissenting Op. 7.

Second, even if we were wrong to conclude that Crowley

has a sufficient interest in declaratory relief both on its own and

due to its effect on the parallel damages suit, this case is not

moot because Crowley challenges an ongoing GSA policy.

Our precedent is clear that “if a plaintiff’s allegations go not

only to a specific agency action, but to an ongoing policy as

well,” the plaintiff may seek declaratory relief notwithstanding

a “moot or otherwise fully resolved” claim, so long as the

plaintiff has standing and the claim is ripe for review. City of

Houston v. Dep’t of Hous. & Urb. Dev., 24 F.3d 1421, 1429–30

(D.C. Cir. 1994); see also Del Monte Fresh Produce Co. v.

United States, 570 F.3d 316, 321 (D.C. Cir. 2009); Nat’l Air

Traffic Controllers Ass’n v. Fed. Serv. Impasses Panel, 606

F.3d 780, 786 n.* (D.C. Cir. 2010).

Crowley raised this argument in the District Court as a

basis for rejecting the government’s mootness arguments. Pl.’s

Opp’n to Def.’s Mot. to Dismiss 19–21, Crowley, No. 21-cv-

2298, 2023 WL 4846719 (D.D.C. July 28, 2023), Dkt. No. 71.

Although the District Court dispensed with mootness issues on

the voluntary cessation exception, it also correctly recognized

that GSA has an “ongoing and consistent policy, pursuant

20

to . . . [its] interpretation of its statutory authority under 31

U.S.C. § 3726(b).” Crowley, 2023 WL 4846719, at *10. The

ongoing policy doctrine suits Crowley’s challenge in this

litigation. To be sure, Crowley’s Complaint primarily seeks

relief with respect to GSA’s audits under the DFTS I

agreement. See J.A. 32. But Crowley also vigorously disputes

an ongoing agency policy that it believes contravenes GSA’s

statutory authority. See J.A. 29 (Compl. ¶ 107) (“Crowley

seeks . . . declaratory and injunctive relief to avoid the

irreparable harm caused by a federal agency acting outside the

powers granted it by Congress.”); J.A. 26 (Compl. ¶¶ 88–90)

(outlining GSA’s policy); Oral Arg. Tr. 5:25–6:1 (“[GSA has]

taken the view that [it has] the authority to audit contracts.

They intend to audit the next contract . . . .”).

GSA has no power to “exercise its authority in a manner

that is inconsistent with the administrative structure that

Congress enacted into law.” FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 125 (2000) (internal quotation

marks omitted); see also NRDC v. Regan, 67 F.4th 397, 404

(D.C. Cir. 2023) (applying Brown to hold agency acted in

excess of statutory authority); N.Y. Stock Exch. LLC v. SEC,

962 F.3d 541, 546, 553–58 (D.C. Cir. 2020) (same). It is this

authority that Crowley challenges. Because Crowley has

standing to challenge GSA’s policy,5 and that challenge is ripe

5

The record reveals an “imminent,” and “not conjectural or

hypothetical” injury to Crowley’s “concrete and particularized”

interest. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)

(internal quotation marks omitted). For over two decades, Crowley

has performed “at least one FAR-based transportation-related

contract.” J.A. 639. And, over two years ago, Crowley confirmed

its intent to participate in the procurement process for the DFTS II

agreement, id., which it later was awarded. This is sufficient to

satisfy Article III. Cf. Adarand Constructors, Inc. v. Pena, 515 U.S.

21

for review,6 Crowley’s interest in a declaratory judgment

concerning the ongoing audit practice makes this a live

controversy.7

Underlying two of Crowley’s interests in declaratory

relief—the impact on its damages claim and its challenge to an

ongoing policy—is a core mootness principle: “This is not a

case where a decision would address a hypothetical state of

facts.” Chafin, 568 U.S. at 173 (internal quotation marks

200, 212 (1995) (finding Article III injury requirement satisfied

when agency on average had one and a half contracts per year that

could injure company); City of Houston, 24 F.3d at 1430 (noting

plaintiff met standing requirement for challenge to ongoing policy

when it received yearly entitlements and “so presumably would be at

sufficiently imminent risk of [future] injury”).

6

To determine ripeness, we evaluate the “fitness of the issues for

judicial decision and the hardship to the parties of withholding court

consideration.” Nat’l Air Traffic Controllers Ass’n, 606 F.3d at 786

n.* (internal quotation marks omitted). Crowley’s APA challenge to

GSA’s interpretation of § 3726(b) is a “purely legal question about

the meaning of [a] statutory phrase” and, therefore, ripe for review.

Kaufman v. Nielsen, 896 F.3d 475, 483 (D.C. Cir. 2018). To the

extent the carrier question involves factual development, the issue

remains fit for review because the record on appeal contains both

DFTS I and DFTS II contracts. And, hardship here is “largely

irrelevant” because “neither . . . [GSA] nor the court has a significant

interest in postponing review.” Id. (cleaned up).

7

The dissent appears to confuse the interests that are sufficient to

keep an otherwise mooted case alive for the requirements to bring a

cause of action under the APA in the first instance. See Dissenting

Op. 8–9. Its claim that a challenge to an ongoing policy is not a “final

agency action” for purposes of an APA challenge, id. at 9, has no

bearing on the mootness analysis. In fact, we already recognized in

City of Houston that an otherwise moot APA challenge to a specific

agency action is not moot when the lawsuit also challenges an

ongoing policy. 24 F.3d at 1428.

22

omitted). Instead, “there is not the slightest doubt that there

continues to exist between the parties that concrete adverseness

which sharpens the presentation of issues.” Id. (internal

quotation marks omitted). Accordingly, we decline the

dissent’s invitation to ignore settled precedent in favor of a

strained understanding of what Crowley alleges and how this

case relates to pending litigation. The case is not moot.

III.

At issue is how to interpret § 3726(b)’s reference to GSA’s

audit authority. Recall the text: “The Administrator may

conduct pre- or post-payment audits of transportation bills of

any Federal agency. The number and types of bills audited

shall be based on the Administrator’s judgment.”

31 U.S.C. § 3726(b). Crowley primarily contends that

§ 3726(b) must be read in context; on that view, Section 3726

as a whole covers only carriers and freight forwarders.

Otherwise, § 3726(b) becomes incongruous with its

companion provisions. GSA resists Crowley’s approach and

asks us to adopt the District Court’s approach: interpret the

scope of § 3726 by looking only to the statutory definition of

“transportation” and the plain meaning of “bills.” We conclude

that the statutory text and context, along with its history, all

point to the same interpretation. GSA may only audit bills

presented by carriers and freight forwarders.

A.

To interpret a statute, we must start with the text and

statutory context. Noble v. Nat’l Ass’n of Letter Carriers, 103

F.4th 45, 50 (D.C. Cir. 2024) (“The text must be read in the

context of the entire statute.” (citing Sierra Club v. Wheeler,

956 F.3d 612, 616 (D.C. Cir. 2020); Petit v. U.S. Dep’t of

23

Educ., 675 F.3d 769, 781 (D.C. Cir. 2012))). So, a word on the

provisions surrounding § 3726(b) is in order.

Alongside the audit provision are several others directed at

transportation bills. The preceding subsection requires

agencies receiving a bill “from a carrier or freight forwarder”

to conduct prepayment audits, 31 U.S.C. § 3726(a)(1), but

allows GSA to exempt agencies, bills, or modes of

transportation from that requirement because of considerations

like “cost effectiveness” and the “public interest,” id.

§ 3726(a)(2). Section 3726 also details how disputes about

audits and potential overcharges are resolved: GSA has

authority to adjudicate timely claims “which cannot be

resolved by the agency procuring the transportation services,

or the carrier or freight-forwarder presenting the bill.” Id.

§ 3726(c)(1). Then, § 3726(d) permits the government to

collect on overcharges by deducting money from future

payments “due [to] a carrier or freight forwarder” and

delineates how deductions are calculated. Id. § 3726(d).

Elsewhere the statute discusses how GSA funds audits—from

“overpayments collected from carriers on transportation bills

paid by the Government and other similar type refunds.” Id.

§ 3726(e). And the statute directs GSA to transfer all

deductions it receives to the United States Treasury, except for

money it expects to “refund[] to carriers” or use for audit

program administration. Id. § 3726(f).

Subsection 3726(b) does not explicitly address carriers or

freight forwarders. Nor is the term “transportation bills”

defined in § 3726. But Title 49’s subchapter for carriers,

brokers, and freight forwarders defines each of these terms, as

well as “motor carrier” and “transportation.” 49 U.S.C.

§ 13102. A “broker” is defined as a “person, other than a motor

carrier or an employee or agent of a motor carrier, that as a

principal or agent sells, offers for sale, negotiates for, or holds

24

itself out by solicitation, advertisement, or otherwise as selling,

providing, or arranging for, transportation by motor carrier for

compensation.” Id. § 13102(2). A “carrier,” on the other hand,

“means a motor carrier, a water carrier, and a freight

forwarder.” Id. § 13102(3). And a “motor carrier” is “a person

providing motor vehicle transportation for compensation.” Id.

§ 13102(14). Transportation, in turn, includes:

(A) a motor vehicle, vessel, warehouse, wharf, pier,

dock, yard, property, facility, instrumentality, or

equipment of any kind related to the movement of

passengers or property, or both, regardless of

ownership or an agreement concerning use; and

(B) services related to that movement, including

arranging for, receipt, delivery, elevation, transfer

in transit, refrigeration, icing, ventilation, storage,

handling, packing, unpacking, and interchange of

passengers and property.

Id. § 13102(23)(A)–(B).

B.

With the relevant context in mind, we return to the scope

of § 3726(b). A statutory provision read “[i]n complete

isolation . . . might be amenable to [one] reading.” Turkiye

Halk Bankasi A.S. v. United States, 598 U.S. 264, 275 (2023).

“But [a court] has a ‘duty to construe statutes, not isolated

provisions.’” Id. (quoting Graham Cnty. Soil & Water

Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 290

(2010)). Simply referencing the dictionary definition of “bills”

may produce the sweeping construction that GSA offers and

the District Court reached. Yet “a statute’s meaning does not

always turn solely on the broadest imaginable definitions of its

25

component words.” Dubin v. United States, 599 U.S. 110, 120

(2023) (quoting Epic Sys. Corp. v. Lewis, 584 U.S. 497, 523

(2018)). And “[w]hen we consider [subsection 3726(b)]

alongside its neighboring [Transportation Act] provisions, it

becomes overwhelmingly evident,” Turkiye, 598 U.S. at

275–76, that § 3726(b) does not permit GSA to audit bills

presented by non-carriers.

Try as it might to isolate § 3726(b) from its surrounding

provisions, GSA cannot avoid the obvious: Section 3726 offers

an integrated scheme for transportation auditing, payment,

reductions, and dispute resolution. See supra Section III.A.

The agency’s own regulations admit as much. See 41 C.F.R.

§ 102-118.400 (2024) (“The audit may also include subsequent

adjustments and collection actions . . . .”). And, precedent

confirms that reading. See, e.g., Mohawk Airlines, Inc. v. Civ.

Aeronautics Bd., 329 F.2d 894, 897 (D.C. Cir. 1964) (per

curiam) (noting Board “first pays carriers’ claims as presented,

then audits them and deducts any overpayments”); United

States v. W. Pac. R.R. Co., 352 U.S. 59, 60–61 (1956)

(describing billing, payment, audit, and then deductions of

carriers, there railroads).

Because § 3726 explicitly addresses only carriers and

freight forwarders, see 31 U.S.C. § 3726(a)(1), (c)(1), (d), (e),

(f), (h), (i)(1), the best interpretation of subsection (b)

incorporates that limitation as well. In § 3726, Congress used

the phrase “a bill from a carrier or freight forwarder,” id.

§ 3726(a)(1); elsewhere, just “bills,” id. § 3726(a)(2), “a bill,”

id. § 3726(d), (h), or “the bill,” id. § 3726(c)(1), (d); and still

other times, “transportation bills,” id. § 3726(b), (e). Cf. United

States v. N.Y., New Haven & Hartford R.R. Co., 355 U.S. 253,

254–56 (1957) (similarly referring to transportation bills in

various ways for § 3726(b)’s predecessor provision). We see

no reason why the terms “bill” or “bills” would mean

26

something different in the various subsections of § 3726, as

they are interrelated and pertain to the billing, auditing,

payment, and deductions of bills from carriers. Thus, to give

effect to the entirety of § 3726, each use of the term “bills”

must address only those from carriers or freight forwarders,

even when an individual provision like § 3726(b) omits

reference to carriers and freight forwarders. In that way,

§ 3726 speaks only to carriers and freight forwarders.8

Aside from its plain-meaning argument, the government’s

primary textual response is that understanding § 3726 as an

integrated scheme upends Congress’s omission of “carrier” and

“freight forwarder” from § 3726(b). As such, the government

asks us to “give effect to, not nullify, Congress’s choice to

include limiting language in some provisions but not others.”

Appellee’s Br. 19–20 (quoting Gallardo ex rel. Vassallo v.

Marstiller, 596 U.S. 420, 431 (2022)). GSA also argues that

reading § 3726(b) to cover only carriers would render “the

statute’s [other] express references to carriers . . . superfluous.”

8

GSA resists this understanding of Section 3726 by passing

reference to a separate provision, 49 U.S.C. § 13101(a), which

enshrines some of the ICA’s transportation goals. Appellee’s Br.

20–21. The government claims that statute’s nod to transportation

“overs[ight]” and policy “[i]n general” supports its view that Section

3726 sweeps broader than carriers and freight forwarders. Id.

(quoting 49 U.S.C. § 13101(a), (a)(1)). That argument misses the

mark. Aside from the fact that 49 U.S.C. § 13101(a) is not part of

the integrated audit scheme, the statute cited by GSA is itself codified

in “Part B” of Title 49, which addresses only “Motor Carriers, Water

Carriers, Brokers, and Freight Forwarders.” 49 U.S.C. § 13101. Nor

is GSA’s position saved by pointing to other regulatory provisions

addressing brokers. Appellee’s Br. 21. Brokers historically were

regulated as a category apart from carriers, so it makes sense to find

ICA provisions regulating them. See infra Section IV.A. But in

crafting § 3726, Congress singled out only carriers and freight

forwarders, not brokers.

27

Appellee’s Br. 19 (citing Cmty. Oncology All., Inc. v. OMB,

987 F.3d 1137, 1141 (D.C. Cir. 2021)).

Those concerns are misplaced. For one, the interpretive

principle on which GSA relies, about giving effect to limiting

language, “is not absolute.” Bartenwerfer v. Buckley, 598 U.S.

69, 78 (2023). “Context counts, and it is sometimes difficult to

read much into the absence of a word that is present elsewhere

in a statute.” Id.; see also Field v. Mans, 516 U.S. 59, 68 (1995)

(refusing to follow the rule interpreting omissions when result

is so odd it defies “common sense” to impute that motive to

Congress). Such is the case here. Rather than nullify

Congress’s decision, our interpretation gives effect to its choice

over fifty years to create a multi-part scheme for transportation

audits and bills. Given the oddities that would result from

GSA’s reading of the statute and the ways that reading would

disrupt the integrated scheme, see infra, we find little meaning

in any “omission” of the word “carrier” in § 3726(b). Nor does

our interpretation create surplusage, because each reference to

“transportation bills”—whether accompanied by a reference to

carriers and freight forwarders—means the same thing.

Our read of § 3726 and the scope of subsection (b)’s audit

authority is reinforced by the undisputed view of the relevant

statutory and amendment history. Legislators, regulators, and

industry have long understood the “obvious fact that the

Interstate Commerce Act codified the common-law obligations

of railroads as common carriers.” Am. Trucking Ass’ns v.

Atchison, Topeka, & Santa Fe Ry. Co., 387 U.S. 397, 406

(1967). The “historic purpose of the [ICA]” was “to achieve

uniformity in freight transportation charges, and thereby to

eliminate the discrimination and favoritism that had plagued

the railroad industry in the late 19th century.” S. Pac. Transp.

Co. v. Com. Metals Co., 456 U.S. 336, 344 (1982). On its own

terms, the ICA addresses only carriers. Ch. 104, 24 Stat. at

28

379–87. And when speaking of the ICA’s reach and purpose,

courts refer to those involved in the freight transportation

industry—namely, carriers, freight forwarders, brokers, and

shippers. See, e.g., Am. Broad. Cos. v. FCC, 643 F.2d 818, 823

(D.C. Cir. 1980) (“[T]he Interstate Commerce Act seeks to

achieve its central purpose of preventing unjust discrimination

by requiring that all carriers file with the Commission the terms

and conditions on which their services are available.”); United

States v. Louisiana, 290 U.S 70, 75 (1933) (noting “broad

purpose” to “maintain an efficient transportation system by

enabling the carriers to earn a fair return”). Congress did not

disturb that view when amending the ICA in the Motor Carrier

Act or the Transportation Act. And GSA has offered no

evidence that Congress used the 1998 Amendment—which

otherwise targeted the use of credit cards by government

officials—to upend this longstanding statutory and regulatory

backdrop.

Instead, that amendment preserved the core mechanics of

the transportation bill scheme. Congress left subsections (b),

(c), (d), (e), (f) and (g) largely unchanged and recodified them

as subsections (d), (e), (f), (g), (h), and (i), respectively. So too

with the time limitations to file a claim, which appeared pre-

amendment in § 3726(a) and were moved to § 3726(c)(2).

Aside from creating the § 3726(b) GSA audit authority, the

105th Congress made only three other substantive changes in

the 1998 Amendment: mandating prepayment audits of

carriers and freight forwarders, subject to GSA’s exemptions

and oversight, 31 U.S.C. § 3726(a)(1)–(a)(4); requiring GSA

to adjudicate claims that cannot be resolved by the agency or

the carrier or freight forwarder with the bill, id. § 3726(c)(1);

and permitting GSA to give agencies audit and technical

assistance on a reimbursable basis, id. § 3726(j). These

drafting choices speak plainly to Congress’s intent. It

maintained that transportation bill audits would be funded by

29

overpayments collected from carriers. It limited GSA’s new

adjudicative authority to claims involving carriers and freight

forwarders. And it kept intact the structure and effect of § 3726

as whole. Rather than a wholesale departure from the tradition

of government audits of bills presented by carriers and freight

forwarders, the 1998 Amendment reflects the opposite.

Concluding otherwise, as GSA asks us to do, would create

several oddities in the statute’s operation that otherwise do not

exist. Even though GSA, on its interpretation, would have

wide-ranging power to audit all transportation-related bills of

any non-carrier before or after payment, no agency would be

forced to conduct prepayment audits of a non-carrier’s bills

because § 3726(a) applies only to carriers and freight

forwarders. And notwithstanding GSA’s vast new authority, it

would lack authority to adjudicate claims related to a non-

carrier’s bills under § 3726(c)(1), and the government could

not rely on § 3726(d) to deduct money from future bills owed

non-carriers to compensate for overcharges. The oddities

continue in subsection (i): whereas carriers subjected to GSA

audits may request review of the GSA Administrator’s actions,

non-carriers would have no such recourse. We decline to read

§ 3726(b) in a way that both disrupts a carefully drafted

integrated scheme and produces anomalies not contemplated

by Congress. Cf. Ne. Hosp. Corp. v. Sebelius, 657 F.3d 1, 7–13

(D.C. Cir. 2011) (rejecting interpretation that creates “odd” or

“anomalous result[s]” in statutory scheme); Georgetown Univ.

Hosp. v. Sullivan, 934 F.2d 1280, 1283 (D.C. Cir. 1991)

(rejecting “interpretation [that] creates an odd result not

contemplated by Congress”).

Stated differently, GSA admits that before Congress’s

1998 Amendment, the agency lacked authority to audit as it

seeks to do now. Appellee’s Br. 21. Per GSA, the 1998

Amendment was Congress’s attempt to vastly expand GSA’s

30

audit authority to cover an entirely new category of bills. But

at the same time, Congress left the rest of § 3726 unchanged,

at least as it concerns the scheme’s operation over non-carriers.

It would escape rationality to read § 3726(b) as creating a

sweeping audit power over all transportation bills of any type

presented by any person or entity—all while believing that

Congress prohibited GSA from deducting overcharges from

non-carriers and adjudicating disputes about NOCs.

The government tries to account for the odd results of its

position. On the mismatch between permissible audits in

§ 3726(b) and the adjudicative scheme in § 3726(c), GSA

concedes such a disconnect would result, but nevertheless

insists it would be “common” for audit power not to be

coextensive with adjudication authority. Appellee’s Br. 22.

Yet the government provides no similar statute to support its

claim. Meanwhile, the District Court suggested that the

comma after “transportation services” in § 3726(c)(1) creates a

“disjunctive,” which means GSA can resolve any claim

“aris[ing] from the agency’s procurement of ‘transportation

services’”—not just claims from carriers and freight

forwarders. Crowley, 2023 WL 4846719, at *22 n.21. But that

reading defies reason. On the District Court’s logic, for bills

involving carriers, both the agency and the carrier would have

an opportunity to resolve the dispute before GSA must

intervene and adjudicate the claim, yet for non-carriers, only

the agency could resolve a claim, not the non-carrier submitting

the bill. We decline to give the comma in § 3726(c)(1) that

effect absent any evidence Congress sought to create such

incongruity in the statute.

Similarly, on the deduction power in § 3726(d), GSA

insists that there is no gap between what audits it is empowered

to conduct and which bills are ripe for deductions. In GSA’s

view, notwithstanding the fact that § 3726(d) permits

31

deductions only from a carrier’s bills, Congress actually

created a new “source[] of funding” from non-carriers’ bills in

subsection (e) by referencing “similar type refunds” alongside

“overpayments collected from carriers” as a means to finance

transportation audits. Appellee’s Br. 22–23. That argument

does not withstand scrutiny. GSA would have us reason that

Congress authorized broad new power to conduct audits of

non-carriers, and then authorized deductions related to those

non-carriers through a general phrase in a provision that itself

does not address deductions. Section 3726(d)’s specificity

about how deductions are calculated, with its reference to

specific tariffs and rates only applicable to carriers, shows that

Congress in § 3726(e) was not generating a new funding source

for deductions on non-carriers’ bills.

C.

Because the text, statutory context, and statutory history

make clear that § 3726(b) covers only those bills presented to

the government by carriers and freight forwarders, we need not

rely on the 1998 Amendment’s legislative history. Noble, 103

F.4th at 50; United States v. Burwell, 122 F.4th 984, 991 (D.C.

Cir. 2024); see also United States v. Hansen, 599 U.S. 762, 775

(2023) (“Statutory history is an important part of [a statute’s]

context.”). We only note that GSA’s arguments about the

legislative history are misplaced. GSA contends that the 1998

Amendment “aimed to reduce ‘Federal agency transportation

expenses,’” Appellee’s Br. 17 (quoting 112 Stat. at 2350), and

the Senate Report “identified audits as a ‘cost-effective tool’

for achieving that goal,” Appellee’s Br. 17 (quoting S. REP. NO.

105-295, at 3 (1998) [hereinafter 1998 Senate Report]). But

that passage does not make the point that GSA advances;

instead, the report highlights how “cost effective” prepayment

audits were compared to postpayment ones, which barely broke

even. 1998 Senate Report, at 3. This difference accounts for

32

Congress’s creation of mandatory prepayment audits. See 31

U.S.C. § 3726(a)(1). Put differently, the change that Congress

thought would save “$50 million per year in reduced

transportation expenses” was a switch from post- to

prepayment audits of carriers and freight forwarders, 1998

Senate Report at 3, 6, not new and expansive power for GSA

to audit non-carriers.

If anything, the history supports limiting § 3726(b)’s reach

as we do today. For one, the bulk of the 1998 Amendment

“require[d] [Federal] employees to use Federal travel charge

cards” for payments relating to official travel and otherwise

altered travel programs for government workers. 1998 Senate

Report at 1; see also §§ 2, 4–7, 112 Stat. at 2350–52, 2354–57.

Congress therefore was not focused on fundamentally altering

the scope of § 3726—which for decades reached only carriers

and freight forwarders—via the new § 3726(b) reference to

GSA audit authority. Legislators are not presumed to “alter the

fundamental details of a regulatory scheme in vague terms” or

“one might say, hide elephants in mouseholes.” Whitman v.

Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).

And, the Senate Report envisions a reduced role for GSA

in the transportation auditing scheme. Congress anticipated

more agency audits and fewer done by GSA. The

Congressional Budget Office (“CBO”) score of the 1998

Amendment’s costs confirms this: “H.R. 930 would also

increase direct spending by reducing the amount of

overcharges that GSA recovers by auditing payments under

current law.” 1998 Senate Report, at 11. “GSA’s recoveries

would decrease because agencies would prevent many of the

billing errors now detected by GSA.” Id. Further, the CBO

expected that “GSA would reduce the size and scope of its staff

responsible for overseeing the audit contracts” after the 1998

Amendment. Id. The CBO score does not dictate our

33

interpretation of § 3726(b) because the statute’s text, context,

and history are clear. But the legislative history confirms our

reading of the statute.

Accordingly, we hold that under § 3726(b), GSA may only

audit bills presented by carriers and freight forwarders.

IV.

Because GSA is limited to auditing transportation bills

presented by carriers and freight forwarders, we turn to the

question of whether Crowley falls into that category. The

District Court did not resolve the issue below. Rather than

remand for the District Court to decide it in the first instance,

we do so here.9

9

This Court has latitude to address issues before us, even those not

“passed upon below.” Liff v. Off. of Inspector Gen. for U.S. Dep’t of

Lab., 881 F.3d 912, 919 (D.C. Cir. 2018) (internal quotation marks

omitted). We are well-suited to answer the carrier question because

GSA addressed the issue in its brief and Crowley did so in its reply.

See id. (quoting Prime Time Int’l Co. v. Vilsack, 599 F.3d 678, 686

(D.C. Cir. 2010)). Neither party requested remand for resolution of

the issue if it became ripe. Indeed, Crowley asserted without

contradiction that there are no disputed facts on the question and both

parties requested that we decide the issue in the first instance if we

need to reach it. See Appellant’s Br. 41; Appellee’s Br. 24; Oral Arg.

Tr. 29:12–20. Plus, with the DFTS contract and supporting

documentation in the record on appeal, there are no additional facts

that are unavailable to us but that the District Court would need to

consider on remand. See Liff, 881 F.3d at 919. And, critically,

resolving the carrier question here “avoids unnecessary expenditure

of judicial resources and expedites final resolution of [a] dispute,”

id., that already has come before our Court once before, Crowley I,

38 F.4th 1099.

34

We first must determine the governing test, as our Circuit

has not yet articulated one. Three statutory provisions are

relevant to this inquiry: First, a “motor carrier” is a “person

providing motor vehicle transportation for compensation.” 49

U.S.C. § 13102(14) (emphasis added). Second, a “broker” is a

“person, other than a motor carrier [or that carrier’s employee

or agent], that . . . offers for sale, negotiates for, or holds itself

out by solicitation, advertisement, or otherwise selling,

providing, or arranging for, transportation by motor carrier for

compensation.” Id. § 13102(2). Third, “transportation”

includes “services related to [the] movement . . . of passengers

and property,” including “arranging for” such movement. Id.

§ 13102(23)(B).

We hold that, to be a carrier, one must physically transport

freight or be contractually bound to help perform the

movement of goods or passengers. Applying that test, Crowley

does neither, so it is not a carrier and § 3726(b) does not allow

GSA to audit bills Crowley invoiced under this contract.

A.

While our decision about the governing test makes new

law for our Circuit, we fortunately do not write on a blank slate.

Congress and the Executive Branch have done much of the

work for us. When interpreting 49 U.S.C. § 13102’s

definitions of carrier and broker, we have the benefit of the

ICC’s and the Department of Transportation’s (“DOT”)

longstanding and unequivocal grasp of what those terms mean.

Cf. Food & Drug Admin. v. Brown & Williamson, Tobacco

Corp., 529 U.S. 120, 156 (2000) (finding Congress legislating

against backdrop of consistent agency regulation “effectively

ratified the FDA’s previous position”). Our respect for the ICC

and DOT’s understanding of brokers and carriers is “especially

warranted” because the “Executive Branch interpretation was

35

issued roughly contemporaneously with enactment of the

statute and remained consistent over time”—for more than 70

years. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 386

(2024).

The DOT’s distinction between carriers and brokers, 49

C.F.R. § 371.2 (2024), comes to us largely unchanged from

two seminal reports published by the ICC in 1949 and 1951.

From 1887 until 1996, the ICC first regulated rail carriers, then

motor carriers and brokers, and, eventually, water carriers. See

United States v. Penn. R.R. Co., 323 U.S. 612, 616–19 & n.5

(1945); N.Y. Foreign Freight Forwarders & Brokers Ass’n v.

ICC, 589 F.2d 696, 700 (D.C. Cir. 1978); see also supra

Section I.A. After Congress passed the ICC Termination Act

of 1995 and abolished the ICC, it transferred that authority to

DOT. Pub. L. 104-88, 109 Stat. 803, 804, 856–57. The

Department kept intact “all regulations in [the old title 49, Code

of Federal Regulations] chapter X [as] previously issued by the

ICC.” Motor Carrier Transportation and Redesignation of

Regulations Pursuant to the ICC Termination Act, 61 Fed. Reg.

54706 (Oct. 21, 1996) (codified at 49 C.F.R. Chs. III and X).

The source of the current regulation explicitly adopts the

substantive “legal meanings” and “definitions” that were

“previously discussed” in the ICC’s 1949 and 1951 reports. 45

Fed. Reg. 31140 (May 12, 1980) (codified at 49 C.F.R. § 1045)

(citing ICC, PRACTICES OF PROPERTY BROKERS, EX PARTE NO.

MC-39, at 288–303 (1949) [hereinafter 1949 REPORT]; then

citing ICC, PRACTICES OF PROPERTY BROKERS, EX PARTE NO.

MC-39, at 633–47 (1951) [hereinafter 1951 REPORT]).10

10

The “source” for DOT regulation 49 C.F.R. § 371.2(a) is 45 Fed.

Reg. 68942 (Oct. 17, 1980). See 49 C.F.R. § 371 (1997). That final

rule was “identical to those proposed” at 45 Fed. Reg. 31140 (May

36

In those publications, the ICC referred to carriers as those

physically moving goods and to brokers as intermediaries

facilitating transport by choosing carriers to do the job. Take

the ICC’s description of how the brokerage industry

materialized “long prior to the adoption of the Motor Carrier

Act of 1935”: Brokers were “independent of both carriers and

shippers,” and “devoted to the solicitation of traffic to be

moved by [the] carriers” they selected. 1949 REPORT, at 278

(emphasis added) (citation omitted). They worked “not only to

the convenience of carriers,” who often were small operators

without sophisticated businesses, but also to help shippers, who

were not “readily” able to “locate available motor carrier

service when desired.” Id. (citation omitted). Thus, the ICC’s

Coordinator of Transportation, in his second annual report,

described brokers as “intermediaries between . . . shippers and

motor carriers” that “in general, are not themselves engaged in

transportation.” Id. at 279 (citation omitted). Likewise, the

Commission found that “a broker [was] essentially a

middleman or intermediary.” Id. at 298 (citation omitted). The

broker, “[a]fter booking the shipment,” would “arrange for a

carrier, if none is readily on hand, to transport the shipment.”

Id. at 311. Freight brokers therefore “employ[ed]” carriers that

“operate[d] over both regular and irregular routes.” Id. at 281.

And as the ICC recognized when it amended the broker

definition in 1951, motor carriers only became brokers when

they surrendered shipments “which they, themselves, are not

12, 1980), “except for minor corrections.” 45 Fed. Reg. 68941 (Oct.

17, 1980) (codified at 49 C.F.R. § 1045). The proposed rule, in

turn—including its definitions that would be codified in ICC

regulations and imported in DOT’s rule at 49 C.F.R. § 371.2(a)—

explicitly intended to “not . . . make any changes in the legal

meanings of the definitions” that were “previously discussed” in the

ICC’s 1949 and 1951 reports. 45 Fed. Reg. 31140 (May 12, 1980)

(codified at 49 C.F.R. § 1045).

37

authorized to perform, in whole or in part.” 1951 REPORT, at

646 (emphasis added).

The upshot is that both reports make clear that carriers

perform or agree to perform the actual physical movement of

freight. Brokers do neither. This understanding was

incorporated into the ICC’s regulations and those reissued by

DOT, which defined brokers as those who “arrange[] or offer[]

to arrange[] the transportation of property by an authorized

motor carrier.” 49 C.F.R. § 371.2 (emphasis added). As a

textual matter, the regulation acknowledges that carriers are the

party doing the physical movement of property.

The etymology of DOT’s regulation is confirmed by the

ICC’s recognition, nearly contemporaneously with the 1935

Motor Carrier Act, that carriers alone physically transport

goods. In applying Congress’s definitions of carriers and

brokers, the Commission found that applicants for carriage

licenses who do not complete the transportation themselves

cannot be carriers under the ICA:

Applicant owns no motor vehicles, nor does it[]

operate or control the operation of any such

vehicles. It invariably employs the services of

independent motor, rail, or water carriers to

perform the transportation. Applicant’s

undertaking is not to transport, as in the case of a

carrier, but is to see to it that goods are

transported, using for this purpose the services of

established carriers.

Merchs. Carloading Co., Inc., Broker Application, 22 I.C.C.

496, 496–98 (1940). Accordingly, a party that “bind[s] [itself]

by contract to perform the transportation” is a carrier rather

38

than a broker, “even if the shipments are later in fact turned

over [by that party] to other carriers.” 1951 REPORT at 644.

Congress amended the ICA multiple times against this

regulatory backdrop. Legislators never disapproved of the

agency’s distinctions between, or regulation of, carriers and

brokers; instead, when Congress dissolved the ICC, it gave

DOT authority (which the agency exercised) to reimplement

the same carrier and broker definitions we see today. See ICC

Termination Act § 204; cf. Burlington N. R.R. Co. v. Surface

Transp. Bd., 75 F.3d 685, 688 (D.C. Cir. 1996) (“[T]he

Termination Act provides that ‘[a]ll orders . . . that have been

issued . . . by the [ICC] . . . in the performance of any function

that is transferred by this Act . . . shall continue in effect

according to their terms.’” (alteration in Burlington) (quoting

ICC Termination Act § 204(a))). We view “carrier” and

“broker” as used by Congress, over more than a century and

against consistent regulatory application, to be terms of art in

the transportation industry, meaning Congress “kn[ew] and

adopt[ed] the cluster of ideas that were attached to each

borrowed word in the body of learning from which it was

taken.” United States v. Alford, 89 F.4th 943, 949 (D.C. Cir.

2024) (quoting FAA v. Cooper, 566 U.S. 284, 292 (2012)).

GSA asks us to upend decades of regulatory practice

defining what it means to be a carrier via its proposed

expansive interpretation of a phrase in the definition of

“transportation.” See 49 U.S.C. § 13102(23). Congress’s

acquiescence, however, in the Executive Branch’s

understanding of carriers and brokers governs our

interpretation of 49 U.S.C. § 13102. Recall that motor carriers

“provid[e] motor vehicle transportation for compensation,” 49

U.S.C. § 13102(14) (emphasis added), and transportation

covers the following services “related to” the “movement of

passengers or property,” id. § 13102(23)(A): “arranging for,

39

receipt, delivery, elevation, transfer in transit, refrigeration,

icing, ventilation, storage, handling, packing, unpacking, and

interchange of passengers and property,” id. at § 13102(23)(B).

Legislators determined which “services” to include in the

definition of “transportation” while simultaneously preserving

the longstanding belief that a carrier is the party that physically

moves goods or passengers, or is contracted to help do so. At

the same time, Congress expressed its preference that the term

“carrier” not engulf “broker.” 49 U.S.C. § 13102(2) (defining

broker in part as person “other than a motor carrier”).

We therefore decline to adopt as broad an interpretation of

“arranging for” transportation as the government would like.

We need not prescribe an exhaustive list of what services

qualify as “arranging for” transportation within the meaning of

49 U.S.C. § 13102(23)(B). We do, however, hold that—

whatever services are at issue—an entity can be a carrier only

if it physically transports freight or is contracted to help do so.

Our conclusion is consistent with the long-held regulatory view

that for “services[] to constitute transportation within the

meaning of the [ICA],” they “must be rendered in conjunction

with a line-haul movement by the carrier who performs the

line-haul movement or its agent.” 1951 REPORT, at 645.

B.

GSA seeks support for its interpretation from the Eleventh

Circuit’s “legal liability” framework in Essex Insurance Co. v.

Barrett Moving & Storage, 885 F.3d 1292 (11th Cir. 2018).

But GSA misreads the case.

In Essex, the Eleventh Circuit looked to the same DOT

regulation discussed above, 49 C.F.R. § 371.2(a), and homed

in on the final sentence’s reference to motor carriers “legally

bound . . . to transport” freight. Id. at 1300 (emphasis in

40

Essex) (quoting 49 C.F.R. § 371.2(a)). Reviewing a Carmack

Amendment claim, 49 U.S.C. § 14706 et seq., which concerns

when motor carriers are “strictly liable to shippers” for “loss of

goods damaged in transit,” the Eleventh Circuit referenced the

DOT regulation and held that a party was a carrier, and “not a

broker[,] . . . if it has agreed with the shipper to accept legal

responsibility for that shipment.” Essex, 885 F.3d at 1296,

1301. In that Court’s view, a genuine factual dispute existed

as to whether a carrier (“Barrett”)—one who was authorized to

complete a shipment and had accepted and legally bound itself

to do so—retained its carrier status, rather than becoming a

broker, even for part of the shipment that it hired another carrier

(“Landstar”) to handle. Id. at 1295–96.

The government misreads Essex, in part because that case

presented a question that does not appear here. When goods

transported by Landstar were damaged en route, the property

owner and its insurer sued Barrett to recover the loss. Id. Both

the DOT regulation and the Carmack Amendment indicate that

Barrett could not escape liability for damage to the cargo

merely by claiming it was a broker as to the portion of the

shipment completed by Landstar. Id. at 1299–1301.

Consistent with our discussion above, see supra Section IV.A,

the Essex court concluded that even if Barrett had hired

Landstar to perform the transportation that damaged the cargo,

Barrett nonetheless could be a carrier rather than a broker if it

had “accepted legal responsibility to transport the shipment.”

Id. at 1301 (emphasis in original).

The regulation, 49 C.F.R. § 371.2, boils down to simple

logic. If a party is a motor carrier, then it is not a broker under

the ICA when it arranges transportation that it accepted and

legally bound itself to complete. And the Carmack

Amendment “makes all motor carriers ‘who receive[],

deliver[], or provide[] transportation or service’ during a

41

shipment strictly liable to the shipper ‘for the actual loss or

injury to the property,’ regardless of which carrier had

possession of the shipment at the time it was lost or damaged.”

Essex, 885 F.3d at 1298 (alteration in Essex) (quoting 49

U.S.C. § 14706(a)(1)). “Carmack’s purpose is to relieve cargo

owners ‘of the burden of searching out a particular negligent

carrier from among the often numerous carriers handling an

interstate shipment of goods.’” Kawasaki Kisen Kaisha Ltd. v.

Regal-Beloit Corp., 561 U.S. 89, 98 (2010) (quoting Reider v.

Thompson, 339 U.S. 113, 119 (1950)); see also Se. Freight

Lines, 63 Comp. Gen. 1, 243–45 (1984) (“[T]he [ICA] permits

a claim for damage to be filed against either the originating or

delivering carrier, and either is liable for the full loss

irrespective of who may have possession of the goods when

damaged.”).

GSA argues that because Crowley agreed to be liable for

any damage to property transported under the contract, Essex

supports the conclusion that Crowley is a carrier. Appellee’s

Br. 25–27; Oral Arg. Tr. 27–29. In GSA’s view, if carriers are

strictly liable for all damage under the Carmack Amendment,

then Crowley’s acceptance of liability for damage makes it a

carrier.

But that is not what Essex says, nor is it consistent with the

Carmack Amendment. Just because the Carmack Amendment

says that a carrier is strictly liable for any damage to the

shipment, the statute cannot be turned backwards to mean that

any party that agrees to accept liability for damage to a

shipment is a carrier. GSA’s argument is akin to saying that

because all squirrels eat nuts, anything that eats nuts must be a

squirrel. The Carmack Amendment’s imposition of strict

liability upon carriers simply does not answer the antecedent

question of whether a party is a carrier in the first instance.

Further, GSA’s contention that Crowley’s acceptance of

42

responsibility for damage to shipments makes it a carrier under

Essex’s “legal responsibility” test is unpersuasive. As

described above, Essex concluded that a carrier was a party that

“accepted legal responsibility to transport the shipment,” 885

F.3d at 1301 (emphasis altered), rather than a party that

accepted legal responsibility for any damage to the shipment.

Essex nowhere endorsed the reverse engineering of the

Carmack Amendment that GSA attempts here.

Established regulatory distinctions between carriers and

brokers—which were incorporated into the provision cited in

Essex—confirm this understanding. Aside from Carmack’s

assignment of responsibility, the ICC referred to legal liability

to address a specific problem that occurred frequently in the

developing carriage industry: whether carrier or broker

registration was required for a motor carrier who turned over

freight to another motor carrier in order to complete a shipment

that the first carrier agreed to transport. See, e.g., 1951

REPORT, at 636–37. This “more or less universal” practice

among carriers persisted for several reasons. 1949 REPORT, at

290. Some carriers lacked equipment necessary to finish a

shipment, whereas some maximized profits by utilizing

another carrier to complete economically inefficient routes.

Id.; 1951 REPORT, at 637. Still others helped competing

carriers in exchange for assistance with future cargo. 1949

REPORT, at 290. In 1949, the Commission determined that

motor carriers must register as brokers when they turn over

freight in this manner. Id. at 290. Just two years later, though,

the Commission reversed course and sided with carriers who

argued that they did not become brokers solely because they

relied on other carriers to complete shipments. 1951 REPORT,

at 647. When it adopted this new framework, the ICC excluded

from broker registration requirements any carrier both

authorized to complete a shipment and “legally bound . . . by

43

contract to transport” the freight, even when it relied on other

carriers to do so. Id.

This issue in the carriage industry and the resulting

distinction between carriers and brokers confirms our reading

of Essex and further supports rejecting GSA’s blinkered

approach. The ICC regulations’ reference to legal liability,

1951 REPORT, at 638, 647, mirrors the usage of that concept in

the Carmack Amendment context—and both are reflected in

DOT’s current iteration of 49 C.F.R. § 371.2(a). Legal liability

did not distinguish between carriers and brokers, as GSA

suggests, but instead gave carriers the freedom to subcontract

other carriers for all or part of a shipment without necessitating

a separate brokerage license. If a motor carrier elected to do

so, however, it could not later disclaim liability for damage that

occurred when the subcontractor had possession of the freight.

GSA’s reliance on Essex is misplaced because none of this

establishes that an entity’s acceptance of legal liability makes

it ipso facto a motor carrier. In other words, any assumption

by Crowley of liability for damage to USTRANSCOM’s cargo

might be a beneficial arrangement for the government, but it

does not make Crowley a carrier.

C.

A complete read of the parties’ contractual obligations and

their positions in litigation demonstrate that Crowley is not a

carrier because the company does not physically transport

freight for USTRANSCOM, nor is it contractually bound to

help do so.

Start with the contract, which is replete with references to

Crowley’s role as an intermediary. The contract’s standard

process makes clear that Crowley receives a request and

engages third-party carriers to complete the movement of

44

freight. See supra Section I.B; J.A. 147–49. And the “Process

Overview” section describes “the general process flow of a

typical shipment and the accompanying responsibility of each

party to the contract,” J.A. 126–27 (emphasis added): The

Department of Defense determines the requirements for a

particular shipment and sends a request to Crowley, after which

Crowley draws upon “its expertise, tools, and best commercial

business practices” to pick a third-party carrier and a mode of

transportation that minimizes costs to the government and

meets delivery expectations. J.A. 127. Elsewhere, Crowley is

tasked with “provid[ing] oversight and management of

transportation tasks in [the Performance Work Statement

(“PWS”)].” J.A. 96–97. That PWS in turn provides that the

“contractor’s carrier shall pick up and deliver the shipment as

directed by the contractor.” J.A. 127 (emphasis added).

Nowhere in the agreement’s “typical” process does it suggest

Crowley itself undertakes physical movement of any freight.

Instead, the “typical” arrangement corresponds to the

PWS’s “[s]cope”: that Crowley provides “transportation

coordination services . . . to support the United States

Government,” the “Department of Defense,” and “DoD

contractors.” J.A. 94. Among these transportation

coordination services are “[a]rranging, coordinating,

monitoring, and controlling freight shipments from receipt of

shipment request through final delivery”; “[a]rrang[ing]

transportation services to meet Mandatory Delivery Date”;

“[p]erforming shipment routing services as applicable

according to Defense Table of Distances”; “[p]erforming

subcontractor pre-payment audits, processing and making

payments to sub-[c]ontractors and transportation providers for

services provided”; “[a]ccepting, processing, and facilitating

the resolution of claims resulting from loss or damage”; and

“[s]electing and managing carriers, carrier quality and

performance.” J.A. 104–06.

45

Finally, consider the various contractual provisions that

differentiate between Crowley’s job and the responsibilities of

its carriers. Crowley’s “Carrier Management” responsibility

covers “all facets of carrier management, from carrier selection

through final payment”—including the duty to “select

transportation providers (motor carriers, rail carriers, air

carriers) to transport [Department] cargo and ensure such

carriers meet [regulatory standards].” J.A. 106. Accordingly,

Crowley must “establish, maintain, and manage all necessary

subcontracts with carriers to move freight under this contract.”

Id. Crowley also manages “administrative, clerical,

documentation, billing, carrier payment audit, and related

functions that provide general support for the program.” J.A.

97. And Crowley assumes responsibility for amassing specific

types of data and conducting certain types of analytics to

evaluate performance—including, “provid[ing] a scorecard

indicating [Crowley’s] success in making timely freight

payments to carriers.” J.A. 101.

Carriers, on the other hand, are the only ones referenced in

the contract’s section on “Shipment Delivery”—that is, the

actual freight movement—which provides that “[t]he

contractor’s carrier shall make on-time delivery of the

shipment.” J.A. 133. When it comes to physically moving

freight, Crowley, for example, “coordinate[s] the arrival of

loaded trailers to be unloaded at a later time” when requested

“by a shipper or carrier.” J.A. 134. Or, Crowley can use

“intermodal transportation” (one shipment completed by

multiple modes) and it can “shift” the “mode,” to “meet pickup

and delivery constraints,” but any time there is resulting

“change to [a] carrier assignment,” Crowley must give

advance notice. J.A. 115 (emphasis added).

The contract thus contemplates Crowley as an

intermediary, not a carrier. In resolving the question, though,

46

we are aided not only by the contract, but also by the positions

both parties have adopted in this litigation. In its Answer to

Crowley’s Complaint, GSA admitted, J.A. 277, several critical

facts: that Crowley “coordinates services between various

locations,” cf. J.A. 19–20 (Compl. ¶ 30); that “Crowley

subcontracts the movements to third parties and handles all

facets of carrier management, from selection through final

payment, including selecting transportation providers (motor

carriers, rail carriers, air carriers) to transport [Department]

cargo,” cf. J.A. 20 (Compl. ¶ 32); and that the typical process

outlined above for the shipping process results in Crowley

“coordinate[ing] transportation services,” cf. J.A. 20 (Compl.

¶¶ 34–35). The only thing GSA denied in its Answer was the

bottom-line conclusion that Crowley is a carrier, J.A. 277

(Answer ¶ 31), which is unsurprising because doing so would

be fatal to its audit authority over Crowley under our

interpretation of § 3726(b). But that insistence from GSA, like

its arguments on appeal, cannot alter the contract’s terms or

undermine USTRANSCOM’s decision to hire an intermediary

that would, in turn, “arrang[e] for[] transportation by motor

carrier for compensation.” 49 U.S.C. § 13102(2) (definition

of “broker”).

At oral argument, GSA homed in on the contract’s

“liability standard.” There, the agreement states that

“[w]hether [Crowley] functions as a transportation provider

itself or enters into a contractual or other arrangement with a

transportation provider,” Crowley is “liable to the Government

for the property transported under th[e] contract while the

property is in the possession of the transportation provider.”

J.A. 107. In GSA’s view, this clause is dispositive of

Crowley’s status as a carrier. Oral Arg. Tr. 27:18–28:5.

While the provisions GSA references underscore

Crowley’s role in guaranteeing the successful shipment of

47

goods for USTRANSCOM, they do not show that Crowley

itself moves any freight or is contractually bound to help do so.

It therefore is of no moment that Crowley bears full

“responsib[ility] for all facets of carrier management,” J.A.

106, or that Crowley ensures that its carriers arrive timely and

have proper equipment, J.A. 104, 112, 116–17, 130, 147. What

matters is that the contract envisions the physical movement of

freight to be performed by the carriers Crowley hires, not by

Crowley.

Crowley therefore is not a carrier within the meaning of 31

U.S.C. § 3726. GSA cannot leverage its § 3726(b) authority to

audit bills that Crowley submits to USTRANSCOM. The

District Court erred by failing to permanently enjoin GSA from

conducting postpayment audits of those bills.

V.

For these reasons, we reverse the District Court’s holding

that 31 U.S.C. § 3726(b) permits GSA to audit non-carriers,

and we remand for proceedings consistent with this opinion.

So ordered.

RANDOLPH, Senior Circuit Judge, dissenting:

This case is moot. The majority opinion undertakes to

resolve a dispute about a contract that is no longer in effect.

Doing so violates Article III of the Constitution, intrudes on the

exclusive jurisdiction of the Court of Federal Claims and the

Court of Appeals for the Federal Circuit, and disregards the

restrictions on judicial review in the Administrative Procedure

Act.

I.

Crowley brought this action in August 2021, seeking an

injunction and a declaratory judgment to prevent the General

Services Administration from conducting audits of its invoices

issued during the DFTS I contract. Several months earlier,

Crowley filed an action in the Court of Federal Claims pursuant

to the Tucker Act1 alleging breach of contract and seeking $11.8

million in damages resulting from past GSA audits under the

same DFTS I contract.2

The DFTS I contract expired in December 2024.3 To state

the obvious, Crowley is no longer performing any services under

that contract and GSA is not auditing any of its DFTS I invoices.

The expiration of the DFTS I contract while this appeal was

pending ended the only controversy over which the district court

1

The Tucker Act confers exclusive jurisdiction on the Claims Court

“to render judgment . . . upon any express or implied contract with the

United States.” 28 U.S.C. § 1491(a)(1).

2

See Crowley Gov’t Servs., Inc. v. GSA, 38 F.4th 1099 (D.C. Cir.

2022) (Crowley I).

3

Even before the contract expired, and in the wake of settlement

discussions, GSA agreed to stop and did stop auditing Crowley’s

invoices.

2

(and thus this court) had jurisdiction—namely, whether Crowley

was entitled to an injunction preventing GSA from auditing

Crowley’s DFTS I invoices.

The majority nevertheless declares that the case is not

moot. It is not moot because if our court issues a judgment

favorable to Crowley, this would assist Crowley in its Claims

Court damages action claiming that GSA exceeded its authority.

Majority Op. at 11. The majority puts it another way: “although

[the $11.8 million] is not the subject of this case . . . our decision

may (although it certainly may not) prove useful to Crowley in

its quest for damages in the Court of Federal Claims.” Id. at 12-

13.

That rationale contradicts a constitutional principle

“established as early as 1793,” a principle that “has been

adhered to without deviation.” Flast v. Cohen, 392 U.S. 83, 96

(1968). The principle is that no federal court may render an

advisory opinion. Yet that is precisely what the majority is

doing—overtly, no less. They are issuing an opinion to provide

advice to the Claims Court about a damages action over which

our court has no jurisdiction. See note 1 supra.4

The parties in the case before us—Crowley and GSA—are

also parties in Crowley’s Claims Court damages action. This

raises still another problem with the majority’s rationale—it

contradicts Christopher Village, L.P. v. United States, 360 F.3d

1319 (Fed. Cir. 2004).

4

At several points my colleagues state that the Claims Court may

either take their advice or leave it. Majority Op. at 14, 16. Those

statements further emphasize the advisory nature of their opinion.

See, e.g., Haaland v. Brackeen, 599 U.S. 255, 293 (2023) (“Without

preclusive effect, a declaratory judgment is little more than an

advisory opinion.”).

3

The opening paragraph of the Christopher Village opinion

deserves full quotation: “This case presents the question whether

a federal district court has jurisdiction to issue a declaratory

judgment as to the government’s liability for breach of contract

solely in order to create a predicate for suit to recover damages

in the Court of Federal Claims. We hold that district courts do

not have such jurisdiction because the Court of Federal Claims

has exclusive jurisdiction under the Tucker Act, 28 U.S.C.

§ 1491 (2000), to adjudicate breach of contract claims for money

damages in excess of $10,000, and Congress has not waived

sovereign immunity for such suits in district courts.”5

The Claims Court, bound by Christopher Village, would

therefore be compelled to treat the majority’s decision here as

“void,” which is how the Federal Circuit treated a comparable

judgment of the Fifth Circuit. Id. at 1333.

It does not matter that in Christopher Village the injunction

suit in the district court was filed before the damages action in

the Claims Court, whereas here, the damages suit was filed

before the injunction action. The Christopher Village plaintiffs

argued that their victory in the Fifth Circuit, issued before a

decision in the Claims Court damages action involving the same

parties, was res judicata. 360 F.3d at 1326. The Federal Circuit

rejected that argument because the Fifth Circuit’s decision was

“void.” Id. at 1332. What mattered in Christopher

Village—and what matters here—is not which complaint was

filed first. What mattered was that the mooted injunction action

was decided before a decision in the damages action—a

sequence that potentially gave rise to res judicata. That

sequence is the same in all relevant respects as the sequence in

5

As the Federal Circuit held, “the court of appeals jurisdiction is

dependent on the district court’s jurisdiction.” 360 F.3d at 1326.

4

this case.

The majority tries to distinguish Christopher Village on the

basis that the district court here had jurisdiction over the

complaint when Crowley filed it. Majority Op. at 13. That is

no distinction at all. As the Federal Circuit in Christopher

Village recognized, the district court in that case also had

jurisdiction when the complaint was filed. 360 F.3d at 1327.6

Another Federal Circuit precedent, relied upon in

Christopher Village, further undercuts the majority. Section 704

of the Administrative Procedure Act, 5 U.S.C. § 704, which

Crowley invoked in the district court, permits a claim for relief

other than money damages only if “there is no other adequate

remedy.” Id. Consolidated Edison Co. v. United States, 247

F.3d 1378 (Fed. Cir. 2001), held that “a litigant’s ability to sue

the government for money damages in the Court of Federal

Claims is an ‘adequate remedy’ that preclude[s] an APA waiver

of sovereign immunity in other courts.” Christopher Village,

360 F.3d at 1327 (quoting Consolidated Edison, 247 F.3d at

1384). At least four other circuits agree. See id. at 1328-29.

That too dooms the majority’s venture into the Claims Court’s

jurisdiction.

The majority makes one final, labored effort to distinguish

Christopher Village. Majority Op. at 14-16. This one is even

more contrived. Now the idea is that the Federal Circuit could

not have meant that the Fifth Circuit lacked “jurisdiction.”

Instead, according to my colleagues, the Federal Circuit must

6

“Thus, there is no question that the District Court for the Southern

District of Texas properly had jurisdiction over the original

[injunction] action . . . But, as the Fifth Circuit correctly held, . . . the

request to enjoin” the government “became moot.” Christopher

Village, 360 F.3d at 1327.

5

have (should have?) meant that the Fifth Circuit’s decision

rested on APA § 704 and the lack of a waiver of sovereign

immunity.7

On the (dubious) assumption that any of this even matters,

the majority—to quote their opinion—is “flat wrong”8 in

assuming that sovereign immunity is not jurisdictional. A bit of

legal research would have produced the Supreme Court’s

unanimous decision in FDIC v. Meyer, 510 U.S. 471, 475

(1994): “Sovereign immunity is jurisdictional in nature.”9

To sum up, the majority finds itself in a trap of its own

devising. If it intends its opinion to be res judicata in the

Claims Court it runs headlong into Christopher Village and

more.10 If instead the majority intends that its decision not have

7

The Federal Circuit’s holding was this: “Under these circumstances

we must conclude that the Fifth Circuit lacked jurisdiction over the

action for a declaratory judgment because the APA did not waive the

United States’ sovereign immunity for such a suit in district courts.”

Christopher Village, 360 F.3d at 1329.

8

Majority Op. at 13.

9

There is some room for disagreement on this question, but it has no

bearing on this case. See Mowrer v. U.S. Dep’t of Transportation, 14

F.4th 723, 733 (D.C. Cir. 2021) (“sovereign-immunity . . . goes to our

jurisdiction”) (Katsas, J., concurring); but see id. at 744 n.2

(Randolph, J., concurring).

10

Judge Posner accurately criticized the sort of faulty reasoning

reflected in the majority’s opinion: “it is circular to argue that a

judgment is not moot because it may have preclusive effect, when it

can have preclusive effect only if it is not moot. That determination

must rest on more than the truism that a final judgment can collaterally

estop parties (and sometimes nonparties) in future litigation.” CFTC

6

any preclusive effect in the Claims Court, it is confessing that its

opinion is advisory-only in violation of the Constitution.

II.

Perhaps realizing the weakness of its justifications, the

majority comes up with still another inadequate reason to

explain why it is refusing to declare the case moot: that Crowley

is challenging an “ongoing GSA policy.” Majority Op. at 19. To

understand why this reason is inadequate, some additional

background information is needed.

As the expiration of the DFTS I contract approached, the

United States Transportation Command issued requests for

proposals on a new contract—DFTS II. Unlike DFTS I, the

proposed DFTS II contract contained clauses stating that the

contractor who is awarded the new contract will be subject to

audits by GSA pursuant to the Transportation Act of 1940, 31

U.S.C. § 3726(b). Crowley protested these clauses, but the

Government Accountability Office dismissed the protest

because the issue Crowley raised was before our court. Crowley

Gov’t Servs., Inc., B-421982, 2023 WL 9184936 (Comp. Gen.

Dec. 19, 2023).

After GAO’s dismissal, Crowley brought a separate action

in the Claims Court, a pre-award bid protest objecting to the

DFTS II auditing clauses. In May 2024, the Claims Court issued

its opinion. See Crowley Gov’t. Servs., Inc. v. United States, 171

Fed. Cl. 453 (2024). The court agreed with an argument made

by Crowley: that—contrary to GAO’s opinion—its protest

regarding the DFTS II contract was not the same as the claim

v. Board of Trade, 701 F.2d 653, 656 (7th Cir. 1983) (Posner, J.), cited

with approval in Camreta v. Greene, 563 U.S. 692, 712 (2011); U.S.

v. Juvenile Male, 564 U.S. 932, 937 (2011).

7

then pending on appeal in our court. Id. at 462. The claim was

not the same because GSA’s auditing of the DFTS II contract

would occur in accordance with contractual provisions.11 The

Claims Court then rejected Crowley’s complaint on the ground

that the government has the authority to set its own contract

terms. Id. at 465-67.

Later that summer, the Transportation Command awarded

Crowley the new $2.3 billion DFTS II contract. The contract

took effect at the beginning of 2025 and runs through January

31, 2032. The DFTS II contract contains two clauses not

contained in DFTS I. Clause 1.12.1.1. states: “The Contractor

is deemed to be a carrier and/or freight forwarder for purposes

of this contract.” And Clause 1.12.19.1. states: “This contract

is subject to GSA audits . . ..”

These developments alone show beyond any doubt that the

majority should have declared this case moot. That is so even

if one generalizes the allegedly wrongful conduct in Crowley’s

district court complaint to be GSA’s auditing of any Crowley

contract not containing clauses authorizing GSA to do so. That

describes the DFTS I contract. It does not describe the DFTS II

contract now in effect.

More important, the validity of the DFTS II auditing

clauses is now properly before the Federal Circuit. “Properly”

because the issue concerns an “object[ion] to a solicitation by a

Federal agency for bids or proposals for a proposed contract.”

11

On the other hand, Crowley’s district court complaint alleged that

GSA was acting without contractual authority because the DFTS I

contract does not “state that the contract is subject to GSA’s audit

authority,” Compl. ¶ 29, and because “[t]he contract does not identify

GSA as having any role to play in the contract, much less authority to

make decisions or participate in the dispute process,” id. ¶ 41.

8

28 U.S.C. § 1491(b)(1). Under the Administrative Dispute

Resolution Act, which amended the Tucker Act, the Claims

Court, and thus the Federal Circuit, has exclusive jurisdiction

over such cases. Emery Worldwide Airlines, Inc. v. United

States, 264 F.3d 1071, 1079 (Fed. Cir. 2001) (“it is clear that

Congress’s intent in enacting the ADRA . . . was to vest a single

judicial tribunal with exclusive jurisdiction to review

government contract protest actions.”); see also

Labat-Anderson, Inc. v. United States, 346 F. Supp. 2d 145, 148

(D.D.C. 2004); Novell, Inc. v. United States, 109 F. Supp. 2d 22,

24-25 (D.D.C. 2000).

Despite all this, the majority states that the case is not moot

because “Crowley challenges an ongoing GSA policy.”

Majority Op. at 19. As with its initial rationale for keeping the

case alive, this newly-minted claim is frivolous.

First, what is meant by “an ongoing GSA policy”? Where

exactly may we find this “policy”? Is it in some regulation

issued after notice and comment? No. Is it in some guidance

document? No. Perhaps in a press release? No. So where is

this “ongoing policy” dealing with GSA audits of Crowley? The

only such “policy” that is “ongoing” in this case is the DFTS II

contract. But the Court of Federal Claims and the Federal

Circuit have exclusive jurisdiction to determine the validity of

the GSA audit provisions in that ongoing contract.

Furthermore, since when did federal courts become

arbiters of “ongoing policies” of federal agencies? The

Administrative Procedure Act provides the answer: never.

“[A]n on-going program or policy is not, in itself, a ‘final

agency action’ under the APA.” Cobell v. Norton, 240 F.3d

1081, 1095 (D.C. Cir. 2001) (citing Lujan v. Nat’l Wildlife

Fed’n, 497 U.S. 871, 890 (1990)); see also, e.g., Cobell v.

Kempthorne, 455 F.3d 301, 307 (D.C. Cir. 2006); Ctr. for Auto

9

Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798,

807-08 (D.C. Cir. 2006). Federal jurisdiction depends on “final

agency action.” So where is the final agency action with respect

to this ongoing GSA policy? The majority does not say. It does

not say because the only relevant final agency actions in this

administrative law case are GSA’s audits of the DFTS I contract,

which has expired, and the execution of the DFTS II contract,

over which our court has no jurisdiction.

Perhaps the majority’s thinking is that sometime in the

future Crowley might enter into some other government contract

and become subject to GSA audits.12 If this is the thought, it

evokes the standard mootness exception for issues “capable of

repetition, yet evading review.” S. Pac. Terminal Co. v. ICC,

219 U.S. 498, 515 (1911); see also Christian Knights of the Ku

Klux Klan v. District of Columbia, 972 F.2d 365, 367, 370 (D.C.

Cir. 1992). But there is no need to evaluate the “repetition” part

here. The second half of the exception—the “evading review”

requirement—clearly, certainly does not apply. Both of the

DFTS contracts were for many years, during which judicial

review could, did, and is taking place—in the Federal Circuit

and in the Court of Federal Claims, where these cases now

belong.

12

Pursuant to 31 U.S.C. § 3726(g), on July 2, 2025, GSA delegated its

authority to audit transportation bills to the “agency where the

transportation invoice was paid.” GSA, ADM 5450.39D CHGE 183,

Delegation of Authority (Order) (July 2, 2025).