Gross v. West ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-30508
Summary Calendar
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EDWARD R. GROSS, JR.,
Plaintiff-Appellant,
versus
TOGO WEST, Secretary, United States Department of the Army,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
(D.C. No. 97-CV-3237-C)
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March 1, 2000
Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.
PER CURIAM:*
Edward Gross appeals the district court’s denial of his request for a writ of
mandamus directing the Secretary of the Army to retroactively grant an increase in his
service rating. We affirm.
The district court concluded that Gross could not demonstrate a clear right to the
relief requested, which is a rating of GS-11 retroactive to the date of initial hiring,
because the position he accepted with the Corps of Engineers was only offered to
candidates with GS-5 or GS-7 ratings. The district court’s conclusion is supported by
evidence and is not clearly erroneous.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
The district court also concluded that Gross failed to demonstrate the absence of
another adequate remedy because Gross could have appealed his rating as soon as it was
made. Gross testified that he was dissatisfied with his rating from the beginning of his
employment, therefore the dismissal of his grievance as untimely was not erroneous. The
district court concluded that the Corps was not equitably estopped from asserting the
limitation preclusion because Gross did not show that the Corps purposefully
misrepresented material facts. These conclusions are supported by evidence and are not
clearly erroneous.
In addition to the grounds cited by the district court, Appellee argues that the Civil
Service Reform Act provides the exclusive remedy for Gross and the exclusivity of this
remedy precludes Mandamus. The CSRA provides the exclusive remedy for civil service
employees seeking ratings changes, which precludes mandamus relief, Towers v. Horner,
791 F.2d 1244 (5th Cir. 1986), therefore mandamus was properly denied.
Because the findings of the district court are supported by evidence and the CSRA
precludes mandamus relief, the district court did not abuse its discretion in refusing the
writ of mandamus.
AFFIRMED
2