UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STEPHEN MILNE,

Plaintiff-Appellant,

and

SUSAN M. HABIT,

Plaintiff, No. 96-1128

v.

TOGO D. WEST, JR., Secretary of the

Army,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Chief District Judge.

(CA-95-1142-A)

Submitted: March 26, 1996

Decided: April 15, 1996

Before MURNAGHAN, WILLIAMS, and MICHAEL,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Stephen Milne, Appellant Pro Se. Paula Pugh Newett, OFFICE OF

THE UNITED STATES ATTORNEY, Alexandria, Virginia, for

Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant appeals the district court's order granting Defendant's

motion to dismiss or, in the alternative, for summary judgment, and

dismissing his complaint. Appellant, a federal employee, brought suit

under the Mandamus Act of 1962, 28 U.S.C. § 1361 (1988), seeking

a writ of mandamus ordering Defendant to promote him to a General

Schedule (GS) 14 level, based on alleged violation of 5 U.S.C. § 5101

(1988). Appellant claimed that for a period of time of over four years

he had performed the work of GS-14 employees, while classified and

paid at a GS-13 level. Appellant does not dispute that following that

period of time, he performed, was classified, and was paid at a GS-13

level. The sole remedy Appellant sought is mandamus to compel

Defendant to retroactively promote him to level GS-14. Appellant

exhausted his available administrative remedies. 1

At the conclusion of a hearing on Defendant's motion to dismiss

or for summary judgment, the district court held that it has no authority to grant mandamus. This timely appeal followed.

Mandamus is a drastic remedy, only to be granted in extraordinary

circumstances. In re Beard, 811 F.2d 818, 826 (4th Cir. 1987) (citing

Kerr v. United States Dist. Court, 426 U.S. 394 (1976)). The party

seeking mandamus relief has the heavy burden of showing that he has

no other adequate avenues of relief and that his right to the relief

sought is "clear and indisputable." Mallard v. United States Dist.

Court, 490 U.S. 296, 309 (1989) (quoting Bankers Life & Casualty

Co. v. Holland, 346 U.S. 379, 384 (1953)); Beard, 811 F.2d at 826.

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1 Specifically, Appellant filed a complaint with the Office of Special

Counsel (OSC) of the Merit Systems Protection Board (MSPB). The

OSC notified Appellant that it found no evidence of any prohibited personnel practice warranting further consideration by the MSPB.

 2
Courts are extremely reluctant to grant a writ of mandamus, and the

decision is within the discretion of the court addressing the application for the writ. Beard, 811 F.2d at 827 (citations omitted).

We have reviewed the record, including the transcript of the hearing on the dispositive motion, and find no reversible error. Even

assuming the district court had subject matter jurisdiction, a tenuous

assumption,2 Appellant's claim is moot because he no longer is performing GS-14 work. See, e.g., Finn v. United States, 856 F.2d 606,

608 (4th Cir. 1988).

Accordingly, we affirm the district court's grant of Defendant's

motion to dismiss or for summary judgment, and its dismissal of

Appellant's suit. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials before

the Court and argument would not aid the decisional process.

AFFIRMED

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2 See National Treasury Employees Union v. Egger, 783 F.2d 1114,

1117 (D.C. Cir. 1986) (pay category reclassification was a minor personnel action precluded from judicial review by the Civil Service Reform

Act (CSRA)); Pinar v. Dole, 747 F.2d 899, 909 (4th Cir. 1984) (federal

employee aggrieved by personnel actions allegedly violative of his first

amendment rights is limited to the remedies provided by the CSRA),

cert. denied, 471 U.S. 1016 (1985); Barnhart v. Devine, 771 F.2d 1515,

1524 (D.C. Cir. 1985) (failure to pursue relief through the Office of Special Counsel (OSC) precludes availability of writ of mandamus; mandamus relief would have been available if OSC had"utterly failed to take

action" on classification complaint); Carducci v. Regan, 714 F.2d 171

(D.C. Cir. 1983) (adverse personnel action under CSRA not subject to

judicial review unless OSC fails to perform adequate statutory inquiry).

 3