Eric Flores v. US Dept of Education

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999408761-2] Originating case number: n/a Copies to all parties and the district court/agency. [999420258].. [14-1582]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1582

ERIC FLORES,
Petitioner,
v.
UNITED STATES DEPARTMENT OF EDUCATION, Attorney Rhonda
Jackson; UNITED STATES DEPARTMENT OF JUSTICE, United States
Attorney General,
Respondents.

On Petition
Education.

Submitted:

for

Review

July 18, 2014

of

an

Order

of

the

Decided:

Department

of

August 21, 2014

Before WILKINSON and GREGORY, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Petition denied in part and dismissed in part by unpublished per
curiam opinion.

Eric Flores, Petitioner Pro Se. Dennis John Dimsey, Christopher
Chen-Hsin Wang, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondents.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Eric
review

of

Flores

an

has

agency

filed

order,

a

self-styled

alleging

petition

discrimination

for
and

retaliation by certain members of the faculty and administration
of the University of Texas at El Paso (“UTEP”) and that the
United

States

Department

of

Education

(“Department”)

did

not

properly review and investigate his claims of discrimination and
retaliation,

thereby

preventing

the

issuance

of

sanctions

against the faculty members for their alleged failures to comply
with Title VI of the Civil Rights Act of 1964 (“the Act”),
42 U.S.C. §§ 2000d to 2000d-7 (2012).

Flores seeks an order (1)

prohibiting the UTEP faculty members from retaliating against
him;

(2)

directing

the

Deputy

Assistant

Secretary

for

Enforcement of the Department to impose sanctions against UTEP
and the UTEP faculty members; (3) admonishing an investigative
attorney with the Department’s Office for Civil Rights (“OCR”)
in Dallas, Texas, for her alleged failure to comply with Title
VI

of

the

Act;

and

Department of Justice.

(4)

referring

his

complaints

to

the

Flores also seeks review of the OCR’s

dismissal of his complaints of discrimination and retaliation.
Respondents move 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 take the
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form of a writ of mandamus or a writ of prohibition.

Writs of

mandamus and prohibition are drastic remedies to be used only in
extraordinary circumstances.

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.”
Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980).

Allied Chem.
The relief

Flores seeks is not available by way of mandamus or prohibition.
We therefore grant leave to proceed in forma pauperis and deny
this portion of the petition for review.
Flores also seeks review of the OCR’s dismissal of his
complaints of retaliation and discrimination.

In the motion to

dismiss the petition for review, Respondents argue that we lack
jurisdiction to review the OCR’s dismissal decision.
“Federal
possessing
statute.”

“only

courts
that

are

power

courts

of

authorized

limited
by

jurisdiction”

Constitution

and

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.
3

Id.

Contrary to Flores’

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assertions, the regulations implementing Title VI of the Act on
which

he

relies,

34

C.F.R.

Pt.

100

(2013),

do

not

confer

jurisdiction on this court to review dismissals by the OCR of
complaints of discrimination and retaliation, and jurisdiction
cannot

be

based

on

the

provisions

of

the

Administrative

Procedure Act, 5 U.S.C. §§ 701-06 (2012).

Further, insofar as

Flores

Rules

relies

on

Rule

15

of

the

Federal

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 OCR’s

decision to dismiss Flores’ complaints and grant Respondents’
motion to dismiss this portion of the petition for review. *
Accordingly, we deny in part and dismiss in part the
petition for review.
facts

and

legal

We dispense with oral argument because the

contentions

are

*

adequately

presented

in

the

Insofar as Flores also may be seeking review of the OCR’s
denial of his administrative appeal, we conclude we lack
jurisdiction to review that decision for the same reasons we
lack jurisdiction to review the OCR’s dismissal decision.

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materials

before

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this

court

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and

argument

would

not

aid

the

decisional process.
PETITION DENIED IN PART
AND DISMISSED IN PART

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