Eric Flores v. US Department of Education, No. 15-1974 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1974 ERIC FLORES, Petitioner, v. UNITED STATES DEPARTMENT OF EDUCATION, Respondent.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 Petition denied in part and dismissed in part by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 faculties Austin of and the retaliation University Community College by of certain Texas (ACC) and at members El that Paso the of (UTEP) United the and States Department of Education (Department) did not properly review and investigate Flores his seeks an claims order Assistant Secretary prohibit UTEP of from for and discrimination this court Enforcement ACC retaliation. compelling of faculty and the the Deputy Department members from to further discriminating and retaliating against him and to reinstate him as a student at both UTEP and ACC. alleged dismissals of his Flores also seeks review of complaints of discrimination and retaliation by the Department’s Dallas, Texas, Office for Civil Rights (OCR). review. Respondent moves to dismiss the petition for We deny in part and dismiss in part the petition for review. Although review of an Flores’ agency petition order, is Flores’ styled as requests a petition for relief for 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. 2 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). only when the party Relief under these writs is available 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 449 U.S. 33, 35 (1980). the UTEP and prohibition. ACC Chem. Corp. v. Daiflon, Inc., is The relief Flores seeks with respect to not available by way of mandamus or 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 possessing statute.” 362 courts “only are that courts power of limited authorized by jurisdiction” Constitution and (4th Robb Evans & Assocs., LLC v. Holibaugh, 609 F.3d 359, Cir. 2010) (internal quotation marks omitted). The burden of establishing subject matter jurisdiction in this court is on Flores, the party asserting it. Flores’ assertions, the regulations 3 on Id. which Contrary to he relies, 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 addresses not the confer appellate procedures to be jurisdiction utilized in but, rather, 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, petition for we review. deny We in part deny and dismiss in Flores’ motions for part the 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 4
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