UNPUBLISHED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 for Review of an Order of the Department of
Education.
Submitted: July 18, 2014 Decided: 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Petition denied in part and dismissed in part by unpublished per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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Flores has filed a self-styled petition for
review of an agency order, alleging discrimination 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 (4) referring his complaints to the
Department of Justice. 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.” Allied Chem.
Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). 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 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’
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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 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 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. We dispense with oral argument because the
facts and legal 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 this court and argument would not aid the
decisional process.
PETITION DENIED IN PART
AND DISMISSED IN PART
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