                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-3472
                                     ___________

David R. Hastings,                    *
                                      *
             Appellant,               *
                                      *
      v.                              * Appeal from the United States District
                                      * Court for the Eastern District
Federal Aviation Administration;      * of Missouri.
Office of Personnel Management,       *
                                      *
             Appellees.               *
                                 ___________

                              Submitted: May 10, 1999

                                   Filed: August 10, 1999
                                    ___________

Before WOLLMAN, Chief Judge, BEAM, and MURPHY, Circuit Judges.
                             ___________

BEAM, Circuit Judge.

       David Hastings, an air traffic controller, brought an action under the
Classification Act claiming that the Federal Aviation Administration (FAA) improperly
failed to reclassify his facility. Shortly after this action was filed, the FAA did
reclassify the facility. The district court eventually ruled in favor of the FAA, finding
that Hastings had failed to exhaust his administrative remedies. We dismiss this appeal
as moot.
I.     BACKGROUND

       In 1990, the St. Louis airport tower was classified as a level IV facility and the
full employment level (maximum pay grade) for a controller there was GS-13.
Accordingly, Hastings, as an air traffic controller for the St. Louis airport tower, was
classified as a GS-13. Concerned about the increasing traffic and complexity of the
work at major airports in the New York City area, as well as the area's high cost of
living, Congress directed the FAA to "undertake and complete a study on the
classification of air traffic controllers at level IV limited radar approach facilities which
includes airspace complexity as a factor in determining grade classification." Pub. L.
No. 101-516, Sec. 337, 104 Stat. 2187 (1990). The FAA evaluated its level IV towers,
including St. Louis, and in 1991, found that the three New York area facilities and the
San Francisco tower should be upgraded to level V facilities, thus allowing the full
maximum pay grade for controllers at those facilities to reach GS-14.

       Hastings and other controllers at the St. Louis tower asked that the decision not
to upgrade their facility be revisited. They prepared an analysis of the St. Louis facility,
claiming that unique aspects of the airport made work there at least as complex and
demanding as at those which had been upgraded. After the FAA denied his request,
Hastings filed a classification appeal with the Office of Personnel Management (OPM).
The OPM denied Hastings's classification appeal, and later declined to reconsider that
ruling. Under the Civil Service Reform Act (CSRA), Pub. L. 95-454, 92 Stat. 1111 et
seq. (1978) (codified as amended in scattered sections of 5 U.S.C.), Hastings should
then have appealed to the Office of Special Counsel. However, he instead filed suit pro
se in district court in 1994, asking the court to "mandate that the Federal Aviation
Administration upgrade Lamber [sic] St. Louis international tower . . . to level V
status."




                                            -2-
      The government moved for summary judgment, arguing that, in passing the
CSRA, Congress intended to preclude judicial review of classification decisions. See
Carducci v. Regan, 714 F.2d 171, 174 (D.C. Cir. 1983). In June 1995, the FAA did
upgrade the St. Louis tower to a level V facility. The FAA then amended its motion
for summary judgment to include the argument that the case was moot because
Hastings had already received the relief he was seeking from the court.

       In June 1996, pursuant to Congressional direction, the FAA established its own
Personnel Management System, which essentially exempted the FAA from most
sections of the CSRA and from the jurisdiction of the Office of Special Counsel.
Though the government had mistakenly conceded early on that Hastings had exhausted
his administrative remedies by appealing to the OPM, the district court dismissed the
action for Hastings's failure to exhaust his administrative remedies. Hastings appeals.

II.   DISCUSSION

       At the outset, we note that, since the FAA initially conceded that Hastings had
exhausted his administrative remedies, and now acknowledges that Hastings is
foreclosed from appealing to the Office of Special Counsel to do so, the government
will not be heard to argue that the district court lacked jurisdiction due to Hastings's
failure to exhaust remedies.

        In any event, we need not examine the administrative appeal process because the
case is moot. The FAA has long since upgraded the St. Louis tower to a level V
facility, which is the only relief Hastings sought from the district court. Hastings argues
that the case is not moot because the district court could still award back pay. In
United States v. Testan, 424 U.S. 392 (1976), the Supreme Court held that an award
of back pay is not an available remedy for a violation of the Classification Act. See id.
at 399. Hastings argues that since the holding in Testan, Congress passed the CSRA
which made the FAA's failure to reclassify the St. Louis tower a "prohibited personnel

                                           -3-
practice" under 5 U.S.C. § 2302(b)(11).1 Since the CSRA expressly allows the Merit
Systems Protection Board to award back pay as part of its corrective action once it
determines that there has been a prohibited personnel practice, see 5 U.S.C. § 1214(g),
Hastings argues, Testan no longer applies. However, this argument is undermined by
the fact that courts have unanimously held that section 2302, defining and providing
recourse for prohibited personnel actions, does not create a private right of action. See
United States v. Fausto, 484 U.S. 439 (1988); Ryon v. O'Neill, 894 F.2d 199 (6th Cir.
1990); Taydus v. Cisneros, 902 F. Supp. 288, 292 (D. Mass. 1995) (collecting cases).
Thus, even though back pay is a corrective action available to the Board, the
implication that a private cause of action for back pay may now be brought in a district
court for violations of the Classification Act is far from certain.

        But Hastings has a more fundamental problem that precludes this remedy–he
never asked the district court to award back pay. His initial complaint asked the court
only to mandate that the St. Louis tower be reclassified and specifically indicated that
he was not seeking money damages. Three years later, after retaining counsel,
Hastings requested, and was granted, leave to file an amended complaint, however he
failed to do so. Without a request for back pay or money damages, those issues are not
before the district court.2 Since the only issue before the court, upgrading the St. Louis


       1
        Section 2302(b)(11) prohibits the failure to take a personnel action if that failure
violates "any law, rule, or regulation implementing, or directly concerning, the merit
system principles contained in section 2301." Among the principles listed in section
2301 is the notion that "[e]qual pay should be provided for work of equal value." 5
U.S.C. § 2301(b)(3). See also 5 U.S.C. § 5101(1)(A) ("equal pay for substantially
equal work" among purposes of the Classification Act). See Houlihan v. Office of
Personnel Management, 909 F.2d 383 (9th Cir. 1990).
       2
       Hastings raised the issue of back pay for the first time in April 1996 in a
memorandum in response to the defendants' amended motion for summary judgment
wherein the defendants first raised the issue of mootness. However, without ever
asking the court for money damages, or back pay, or even asserting a general prayer

                                            -4-
tower from level IV to level V, occurred in 1995, there is nothing for the district court
to do, and the case is moot. "Through the passage of time and the occurrence of
irrevocable events, disputes may disappear so that federal courts no longer can grant
effective relief." McFarlin v. Newport Special Sch. Dist., 980 F.2d 1208, 1210 (8th
Cir. 1992). At oral argument, Hastings asserted that the case is not moot because an
award of back pay would be within the equitable discretion of the district court. Even
assuming that were the case, without a request for that relief, there was nothing before
the court after the tower was upgraded, thus the case is moot.

III.   CONCLUSION

       Accordingly, this appeal is dismissed.

       A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




for relief, we do not believe that using back pay as an argument against mootness in a
memorandum sufficiently places the issue before the court as a requested remedy.

                                          -5-
