Eric Flores v. US Department of Education , 619 F. App'x 244 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1974
ERIC FLORES,
Petitioner,
v.
UNITED STATES DEPARTMENT OF EDUCATION,
Respondent.
On Petition for Review of an Order of the Department of
Education.
Submitted: October 15, 2015 Decided: October 19, 2015
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Petition denied in part and dismissed in part by unpublished per
curiam opinion.
Eric Flores, Petitioner Pro Se. Mark L. Gross, Christopher
Chen-Hsin Wang, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Flores, a resident of El Paso, Texas has filed a
self-styled petition for review of an agency order, alleging
discrimination and retaliation by certain members of the
faculties of the University of Texas at El Paso (UTEP) and
Austin Community College (ACC) and that the United States
Department of Education (Department) did not properly review and
investigate his claims of discrimination and retaliation.
Flores seeks an order from this court compelling the Deputy
Assistant Secretary for Enforcement of the Department to
prohibit UTEP and ACC faculty members from further
discriminating and retaliating against him and to reinstate him
as a student at both UTEP and ACC. Flores also seeks review of
alleged dismissals of his complaints of discrimination and
retaliation by the Department’s Dallas, Texas, Office for Civil
Rights (OCR). Respondent moves to dismiss the petition for
review. We deny in part and dismiss in part the petition for
review.
Although Flores’ petition is styled as a petition for
review of an agency order, Flores’ requests for relief with
respect to the UTEP and ACC faculty members and reinstatement as
a student take the form of a petition for a writ of mandamus or
a writ of prohibition. Writs of mandamus and prohibition are
drastic remedies to be used only in extraordinary circumstances.
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Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976) (writ of
mandamus); In re Vargas, 723 F.2d 1461, 1468 (10th Cir. 1983)
(writ of prohibition). Relief under these writs is available
only when the party seeking relief shows that his right to
relief “is clear and indisputable,” United States v. Moussaoui,
333 F.3d 509, 517 (4th Cir. 2003) (internal quotation marks
omitted), and that he has “no other adequate means to attain the
relief he desires.” Allied Chem. Corp. v. Daiflon, Inc.,
449 U.S. 33, 35 (1980). The relief Flores seeks with respect to
the UTEP and ACC is not available by way of mandamus or
prohibition. We therefore deny this portion of the petition for
review.
Flores also seeks review of the Dallas OCR’s alleged
dismissals of his complaints of discrimination and retaliation.
In the motion to dismiss the petition for review, Respondent
argues that we lack jurisdiction to review the OCR’s alleged
dismissal decisions.
“Federal courts are courts of limited jurisdiction”
possessing “only that power authorized by Constitution and
statute.” Robb Evans & Assocs., LLC v. Holibaugh, 609 F.3d 359,
362 (4th Cir. 2010) (internal quotation marks omitted).
The burden of establishing subject matter jurisdiction in this
court is on Flores, the party asserting it. Id. Contrary to
Flores’ assertions, the regulations on which he relies,
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34 C.F.R. Pt. 100 (2015), do not confer jurisdiction on this
court to review the Dallas OCR’s alleged dismissals of his
complaints, and jurisdiction cannot be based on the provisions
of the Administrative Procedure Act, 5 U.S.C. §§ 701-06 (2012).
Further, insofar as Flores relies on Rule 15 of the Federal
Rules of Appellate Procedure as a basis for jurisdiction, the
rule does not confer appellate jurisdiction but, rather,
addresses the procedures to be utilized in reviewing agency
orders where a court of appeals is authorized by statute to
review final agency determinations, Dillard v. U.S. Dep’t of
Hous. & Urban Dev., 548 F.2d 1142, 1143 (4th Cir. 1977)
(per curiam), an authorization that is lacking in this case.
We thus lack jurisdiction to review the Dallas OCR’s alleged
dismissals of Flores’ complaints and grant Respondent’s motion
to dismiss this portion of the petition for review.
Accordingly, we deny in part and dismiss in part the
petition for review. We deny Flores’ motions for judicial
notice and for a preliminary injunction and dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
PETITION DENIED IN PART
AND DISMISSED IN PART
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