Andrew Kozer, Petitioner, v. Office of Personnel Management, Respondent, 925 F.2d 1479 (Fed. Cir. 1991)

Andrew Kozer appeals from a decision of the Merit Systems Protection Board (MSPB or Board), No. AT831E8910498. He claimed that he was entitled to disability retirement, but the Board dismissed his appeal on the ground that his case was moot. We affirm the Board's decision.

OPINION

On March 2, 1988, Mr. Kozer applied for disability

retirement from his position as a Distribution Clerk with

the United States Postal Service. The application was

denied by the Office of Personnel Management and the Atlanta

office of the MSPB affirmed the disallowance. He then filed

a petition for review with the full Board.

On June 30, 1989, Mr. Kozer applied for optional or

nondisability retirement. That application was granted and

he has since been receiving optional retirement pay. It is

undisputed that Mr. Kozer's annuity is equal to what it

would have been had he been granted disability retirement.

The Board also found that he is actually in a better

position than he would have been had he been granted

disability retirement, because he does not have to annually

reestablish his disability. Therefore, the Board correctly

dismissed his appeal as moot, because he had no legally

cognizable interest in the outcome of the case. Murphy v.

Hunt, 455 U.S. 478, 481 (1980); Harner v. Merit Sys.

Protection Bd., 815 F.2d 668, 670-71 (Fed. Cir. 1987).

Since Mr. Kozer has failed to show that the Board's decision

should be reversed on any of the grounds set forth in 5

U.S.C. § 7703, the applicable statute, it follows that

the Board's decision must be affirmed. Hayes v. Department

of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).