925 F.2d 1479
Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or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issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Andrew KOZER, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 90-3466.
United States Court of Appeals, Federal Circuit.
Jan. 14, 1991.

Before CLEVENGER, Circuit Judge, COWEN, Senior Circuit Judge, and RADER, Circuit Judge.
DECISION
PER CURIAM.


1
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

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


3
retirement from his position as a Distribution Clerk with


4
the United States Postal Service.  The application was


5
denied by the Office of Personnel Management and the Atlanta


6
office of the MSPB affirmed the disallowance.  He then filed


7
a petition for review with the full Board.


8
On June 30, 1989, Mr. Kozer applied for optional or


9
nondisability retirement.  That application was granted and


10
he has since been receiving optional retirement pay.  It is


11
undisputed that Mr. Kozer's annuity is equal to what it


12
would have been had he been granted disability retirement.


13
The Board also found that he is actually in a better


14
position than he would have been had he been granted


15
disability retirement, because he does not have to annually


16
reestablish his disability.  Therefore, the Board correctly


17
dismissed his appeal as moot, because he had no legally


18
cognizable interest in the outcome of the case.  Murphy v.


19
Hunt, 455 U.S. 478, 481 (1980);  Harner v. Merit Sys.


20
Protection Bd., 815 F.2d 668, 670-71 (Fed.Cir.1987).


21
Since Mr. Kozer has failed to show that the Board's decision


22
should be reversed on any of the grounds set forth in 5


23
U.S.C. Sec. 7703, the applicable statute, it follows that


24
the Board's decision must be affirmed.  Hayes v. Department


25
of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984).

