United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2006 Decided September 26, 2006
No. 05-5133
COLLEGE SPORTS COUNCIL, ET AL.,
APPELLANTS
v.
DEPARTMENT OF EDUCATION, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 03cv02588)
Before: RANDOLPH and BROWN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
JUDGMENT
This cause was considered on the record from the United
States District Court for the District of Columbia, and was
briefed and argued by counsel. It is
ORDERED AND ADJUDGED that the judgment of the District
Court be affirmed in part and reversed and remanded in part.
Title IX of the Education Amendments of 1972 prohibits
discrimination on the basis of sex in federally funded
educational programs and activities. See Education
Amendments of 1972, Pub. L. No. 92-318, §§ 901-907, 86 Stat.
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235, 373-75 (codified as amended at 20 U.S.C. §§ 1681-1688)
(“Title IX”). Appellants seek reversal of the District Court’s
dismissal of various challenges to a Department of Education
(“Department”) Title IX policy interpretation. Coll. Sports
Council v. Dep’t of Educ., 357 F. Supp. 2d 311 (D.D.C. 2005).
Appellants claim that the policy interpretation, Policy
Interpretation: Title IX and Intercollegiate Athletics, 44 Fed.
Reg. 71,413 (Dec. 11, 1979) (“Three-Part Test”), and
subsequent clarifications violate the Constitution, Title IX, and
the Administrative Procedure Act (“APA”).
We affirm the District Court’s judgment that appellants lack
standing for want of redressability with respect to their statutory
and constitutional claims. Appellants’ claims here mirror the
claims raised by the plaintiffs in National Wrestling Coaches
Ass’n v. Department of Education, 263 F. Supp. 2d 82 (D.D.C.
2003) (“NWCA”), aff’d, 366 F.3d 930 (D.C. Cir. 2004) (“NWCA
II”), reh’g denied, 383 F.3d 1047 (D.C. Cir. 2004) (“NWCA
III”). Indeed, five of the seven appellants in this case were
claimants in NWCA. The District Court dismissed the statutory
and constitutional claims in NWCA for want of jurisdiction,
because the plaintiffs there could not satisfy the redressability
prong of Article III standing. 263 F. Supp. 2d at 111-12. This
court affirmed that judgment in NWCA II. See 366 F.3d at 937
(“Appellants offer nothing but speculation to substantiate their
claim that a favorable decision from this court will redress their
injuries . . . . Absent a showing of redressability, appellants
have no standing to challenge the Department’s enforcement
policies, and we have no jurisdiction to consider their claims.”).
There are no material differences between the complaint in
NWCA and the complaint in this case with respect to appellants’
statutory and constitutional claims. Therefore, the jurisdictional
holding in NWCA II is res judicata here as to the five parties
who appeared in NWCA. See Dozier v. Ford Motor Co., 702
F.2d 1189, 1191 (D.C. Cir. 1983) (“[T]he doctrine of res
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judicata applies to dismissal for lack of jurisdiction as well as
for other grounds . . . .”). In addition, all parties here are bound
by the stare decisis effect of this court’s decisions. The
statutory and constitutional issues raised in this case have been
conclusively settled by this court in NWCA II and NWCA III.
These decisions are thus binding circuit precedent and
dispositive of appellants’ current statutory and constitutional
claims.
There is one notable difference between the instant case and
the challenge raised in NWCA. In this case, appellant College
Sports Council challenges the Department’s denial of its petition
for rulemaking. See Petition To Repeal and Amend Guidance
Issued Under 34 C.F.R. § 106.41(c) Concerning Equal Athletic
Opportunity, College Sports Council (Jan. 10, 2003), Joint
Appendix (“JA”) 12. The petition requested that the Department
initiate a rulemaking to repeal the Three-Part Test and to clarify
whether the Department’s regulations purported to create private
rights of action. After the judgment had issued in NWCA, the
Department denied appellant’s petition. See Letter from Rod
Paige, Secretary of Education, to Eric Pearson, Chairman,
College Sports Council (July 28, 2003), JA 19 (explaining the
Department’s decision declining to initiate rulemaking).
“[R]efusals to institute rulemaking proceedings . . . are
subject to a judicial check.” Nat’l Customs Brokers &
Forwarders Ass’n of Am., Inc. v. United States, 883 F.2d 93, 96
(D.C. Cir. 1989). Such review is “extremely limited” and
“highly deferential,” id., and an agency’s decision not to initiate
rulemaking will be overturned “only in the rarest and most
compelling of circumstances,” WWHT, Inc. v. FCC, 656 F.2d
807, 818 (D.C. Cir. 1981). In this case, the District Court
erroneously concluded that appellant College Sports Council
lacked standing to seek judicial review of the Department’s
denial of the petition to initiate rulemaking. The judgment in
NWCA II is not res judicata as to this issue and we conclude that
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the allegations of the complaint are sufficient to confer standing
to bring this new claim. Because the District Court failed to
consider appellant’s challenge to the Department’s refusal to
institute rulemaking proceedings, we must remand the case for
proper disposition of this issue. On remand, the District Court
should address appellant’s challenge pursuant to the standards
of review enunciated in National Customs Brokers and WWHT,
Inc.
The Clerk is directed to withhold issuance of the mandate
herein until seven days after resolution of any timely petition for
rehearing or rehearing en banc. See FED. R. APP. P. 41(b); D.C.
CIR. R. 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk