925 F. 2d 1479 - Kozer v. Office of Personnel Management
925 F2d 1479 Kozer v. Office of Personnel Management
925 F.2d 1479
Andrew KOZER, Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 90-3466.
United States Court of Appeals, Federal Circuit.
Jan. 14, 1991.
Unpublished Disposition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issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Before CLEVENGER, Circuit Judge, COWEN, Senior Circuit Judge, and RADER, Circuit Judge.
DECISION
PER CURIAM.
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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.
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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. Sec. 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).