Eric Flores v. US Department of Education

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting in part motion to dismiss appeal [999675011-2]; denying Motion for injunctive relief pending appeal (FRAP 8) [999648851-2]; denying Motion for judicial notice [999648835-2] Originating case number: Copies to all parties and the district court/agency. [999680272]. Mailed to: petitioner. [15-1974]

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UNPUBLISHED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Petition denied in part and dismissed in part by unpublished per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Unpublished opinions are not binding precedent in this circuit.

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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

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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).
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,

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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

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

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