Eric Flores v. United States Department of Education, No. 15-2417 (4th Cir. 2016)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-2417 ERIC FLORES, Petitioner, v. UNITED STATES DEPARTMENT OF EDUCATION, Respondent. On Petition for Review of an Order of the Department of Education. Submitted: January 14, 2016 Decided: January 19, 2016 Before AGEE, WYNN, and FLOYD, 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 Petition denied in part and dismissed in part by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 that the United States Department of Education (Department)’s Dallas, Texas Office for Civil Rights and the office of the Department’s Deputy Assistant Secretary for Enforcement retaliated and discriminated against him by knowingly refusing to investigate his discrimination complaint, so as to “prevent criminal lawful sanctions against corrupt faculty members of an educational institution for using mind controlling computers to compel a person to procedure students States into a at of finding use an weapon educational America.” that the act of such dures[s] as a gun institution[s] Flores seeks Department an by to a calculated shoot and throughout the order this discriminated from against kill United court him by “rejecting” his discrimination complaint and appears to request that the court appoint a federal grand jury. 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’ request for the appointment of a grand jury takes the form of a petition for a writ of mandamus or prohibition a writ are of prohibition. drastic extraordinary circumstances. remedies Writs to be of mandamus used only and in Kerr v. U.S. Dist. Court, 426 U.S. 2 394, 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). Relief in the form of appointment by this court of a grand jury 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 rejection of his discrimination complaint. Department’s alleged We lack jurisdiction to review this alleged rejection. “Federal possessing statute.” 362 (4th courts “only that are courts power of authorized limited by jurisdiction” Constitution and 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. Id. Contrary to Flores’ assertion, jurisdiction in this court cannot be based on the provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701-06 (2012). We thus lack 3 jurisdiction to review the Department’s alleged rejection of Flores’ complaint and dismiss this portion of the petition for review. Accordingly, although we grant leave to proceed in forma pauperis, we deny in part and dismiss in part the petition for review. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. PETITION DENIED IN PART AND DISMISSED IN PART 4
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