Title VI instructs agencies to ensure compliance by aid recipients first through a system of voluntary-adherence, and then, if necessary, by initiating a process leading to the termination of federal funding. See id.; see also Women's Equity Action League v. Cavazos, 906 F.2d 742, 745 (D.C. Cir. 1990) ( "WEAL"). DOE's current regulations effectuating Title VI have been in force since 1980.

More recently, this Circuit, has squarely held that no implied right of action exists under Title VI to sue the enforcing agency. See Women's Equity Action League v. Cavazos, 906 F.2d 742, 748-50 (D.C. Cir. 1990) ( "WEAL"). Thus, the type of suit which plaintiffs now bring, is not permissible under Title VI of the Civil Rights Act of 1964.

The second problem arises because, even giving credence to appellants' futility suggestion, they still would be unable to show that they lack an adequate remedy at law. Under the ECOA, to the extent appellants can offer proof that the USDA discriminated against them in the administration of its credit programs, appellants will be entitled to recover money damages and attorneys' fees, and, as appropriate, also injunctive and declaratory relief. 15 U.S.C. § 1691 e. This court's precedent in Council of and for the Blind of Delaware County Valley, Inc. v. Regan, 709 F.2d 1521 (1983) (en banc), and its progeny — Coker v. Sullivan, 902 F.2d 84 (1990), and Women's Equity Action League v. Cavazos ("WEAL"), 906 F.2d 742 (1990) — make clear that an ECOA discrimination claim filed directly against the USDA would be adequate to preclude a cause of action under the APA. In those cases the court held that the plaintiff could not maintain an action under the APA directly against a federal agency for failure to investigate and rectify the wrongdoing of a third party where Congress had provided the plaintiff with a private right of action against the third party.

DOE is then required to undertake a prompt investigation to determine if the program receiving federal funds is in compliance with the statute. 34 C.F.R. § 100.7(c). If DOE determines that the complaint is meritorious, DOE then directs the funds recipient to undertake various compliance efforts. 34 C.F.R. §§ 100.7(d) 108; see also Women's Equity Action League v. Cavazos, 906 F.2d 742, 750 (D.C. Cir. 1990) (describing administrative process under Title VI); Marlow v. U.S. Dep't of Educ., 820 F.2d 581, 584 (2d Cir. 1987) (citing procedural steps in Section 504 cases). Noncompliance can result in the suspension or termination of federal funding. 34 C.F.R. § 108.

In a distinct line of cases, the court also has held APA review is unavailable where there is a private cause of action against a third party otherwise subject to agency regulation. See Nat'l Wrestling Coaches Ass'n, 366 F.3d at 945; Godwin v. Sec'y of Hous. Urban Dev., 356 F.3d 310, 312 (D.C. Cir. 2004); Wash. Legal Found. v. Alexander, 984 F.2d 483, 485 (D.C. Cir. 1993); Women's Equity Action League v. Cavazos (" WEAL"), 906 F.2d 742, 751 (D.C. Cir. 1990); Coker v. Sullivan, 902 F.2d 84, 89-90 (D.C. Cir. 1990); Council, 709 F.2d at 1531. While originally deferring to congressional intent to provide a remedy for an acknowledged problem, Council, 709 F.2d at 1532 n. 75, this court later embraced the doctrinal view disfavoring suits directly against federal enforcement authorities administering anti-discrimination laws, holding that remedies against the discriminating entity were of "the same genre" as that which the court in Council had held were adequate so as to preclude APA review, WEAL, 906 F.2d at 751 (citing Council, 709 F.2d at 1531-33).

However, "a statutory remedy specifically against the discriminating entity [can be] 'adequate,' and therefore preclusive of a default remedy under the APA." Women's Equity Action League v. Cavazos, 906 F.2d 742, 750-51 (D.C. Cir. 1990) "[T]he alternative remedy need not provide relief identical to relief under the APA, so long as it offers relief of the 'same genre.'" Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009).

What identifies this as true law-of-the-case preclusion is that the first appeals court has affirmatively decided the issue, be it explicitly or by necessary implication. See Women's Equity Action League v. Cavazos, 906 F.2d 742, 751 n. 14 (D.C. Cir. 1990) ("Questions that merely could have been decided do not become law of the case") (citing Bouchet v. National Urban League, 730 F.2d 799, 806 (D.C. Cir. 1984)). Previous decisions of this court have extended these principles beyond their core application.

However, Title IX does not create a private right of action against Defendant, the Department of Education, or against the United States itself. Women's Equity Action League v. Cavazos (“WEAL”), 906 F.2d 742, 751 (D.C. Cir. 1990) (citing Cannon v. Univ. of Chi., 441 U.S. 677 (1979)); cf. Marlow v. U.S. Dept. of Educ., 820 F.2d 581, 583 (2d Cir. 1987) (finding Section 504 of the Rehabilitation Act “does not provide for a claim against the Government when the plaintiff seeks review of a particular agency decision regarding an alleged act of discrimination by a recipient of federal funds.”).

See Alexander v. Sandoval, 532 U.S. 275, 279 (2001) (“[P]rivate individuals may sue to enforce § 601 of Title VI and obtain both injunctive relief and damages.”); Women's Equity Action League v. Cavazos, 906 F.2d 742, 751 (D.C. Cir. 1990) (“[I]mplied private rights of action against discriminating institutions were intended by Congress to provide individual citizens effective protection against discriminatory practices.” (citation omitted) (internal quotation marks omitted) (alterations omitted))

See, e.g., Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180, 191-92 (4th Cir. 1999) ("[W]e think that [the] direct remedy against funding recipients is not only 'adequate,' but . . . is preferable to a direct suit against the agency itself."); Wash. Legal Found. v. Alexander, 984 F.2d 483, 486 (D.C. Cir. 1993) (holding "an adequate remedy is available to appellants, and . . . appellants have no cause of action under the APA for the discrimination alleged" because appellants could bring a direct Title VI action against the discriminating institution); Women's Equity Action League v. Cavazos (WEAL), 906 F.2d 742, 750-51 (D.C. Cir. 1990) (holding that plaintiffs' direct "rights of action against federally-funded institutions to redress discrimination proscribed by Title[] VI" were "preclusive of a default remedy under the APA" because "a statutory remedy specifically against the discriminating entity [was] 'adequate'"); Wasseff v. Nat'l Inst. of Health, No. CV 16-703, 2017 WL 495795, at *18 (E.D. Pa. Feb. 6, 2017) (holding Title VI provides an avenue for relief, precluding any APA claim); Caldwell v. Knox Cty. Bd. of Educ., No. 3:13-CV-552, 2014 WL 3735840, at *6 (E.D. Tenn. July 29, 2014) (holding "a direct Title VI suit . . . precludes review . . . under the APA"); Pratt v. Office of Civil Rights, No. CV-12-01821-PHX-JAT, 2014 WL 1628570, at *2 (D. Ariz. Apr. 23, 2014) (dismissing plaintiff's APA claim because plaintiff had another adequate remedy "by pursuing a claim of discrimination [under Title VI] directly against the alleged offender"); Sherman v. Black, 510 F. Supp. 2d 193, 198 (E.D.N.Y. 2007) ("This right of