Eric Flores v. United States Department of Education

UNPUBLISHED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Petition denied in part and dismissed in part by unpublished per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Unpublished opinions are not binding precedent in this circuit.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 into an act of dures[s] by a calculated
procedure to use a weapon such as a gun to shoot and kill
students at educational institution[s] throughout the United
States of America.” Flores seeks an order from this court
finding that the Department discriminated against 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 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.
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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 Department’s alleged
rejection of his discrimination complaint. We lack jurisdiction
to review this alleged rejection.
“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’ 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 jurisdiction to review the
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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. We 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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