Crowley Government Services, Inc. v. General Services Administration

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.

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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

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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.

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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

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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

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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.

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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

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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

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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

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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

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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

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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.

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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.

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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.

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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.

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(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)).

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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

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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.

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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

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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.

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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.

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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).

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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

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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,

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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

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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

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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

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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

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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

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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.

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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,

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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

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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.

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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.

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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.”).

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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.

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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.

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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

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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).

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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.

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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

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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).

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