Jessie I. Etelson v. Office of Personnel Management

878 F.2d 1447 Unpublished Disposition NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. Jessie I. ETELSON, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. No. 89-3085. United States Court of Appeals, Federal Circuit. June 21, 1989. Rehearing Denied July 27, 1989. Before RICH, Circuit Judge, COWEN, Senior Circuit Judge, and BISSELL, Circuit Judge. DECISION PER CURIAM. — 1 — Jessie I. Etelson petitions for review of a decision of the Merit Systems Protection Board in Docket No. DC34438710376-1 dismissing his appeal challenging the validity of the Office of Personnel Management examination for Administrative Law Judges. We affirm. OPINION — 2 — Section 1205(g) of Title 5 provides: "The Board shall not issue advisory opinions." 5 U.S.C. Sec. 1205(g) (1982). Although petitioner attempts to cast the matter in a different light, we agree with respondent that what petitioner is really seeking in this case is an advisory opinion from us or from the Board. The statute says he cannot have it. Ashcroft v. Mattis, 431 U.S. 171 (1977) (holding that "[f]or a declaratory judgment to issue, there must be a dispute which 'calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication of present right upon established facts' " (citations omitted)).