Dionisio DELA CRUZ Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent, 140 F. App'x 261

ON MOTION DYK, Circuit Judge. ORDER Napoleon déla Cruz informs the court of the death of his brother, Dionisio déla Cruz, and asks that he be substituted as petitioner in this petition for review of the Merit System Protection Board’s decision in Dela Cruz v. OPM, SF-0831-04-0586—I—1, affirming the denial of his brother’s application for a deferred annuity under the Civil Service Retirement Act. Napoleon déla Cruz moves for leave to proceed in forma pauperis. The court considers whether this petition for review should be remanded to the Board.

On April 6, 2005, Napoleon déla Cruz informed the Board that Dionisio déla Cruz died on March 1, 2005, and moved to be substituted as the appellant. On April 25, 2005, without ruling on the motion for substitution, the Board issued its final decision. The Board’s regulations allow substitution of a proper party on the death of an appellant. See 5 C.F.R. § 1201.35. Thus, we conclude that the better course is to remand this case to allow the Board to determine whether Napoleon déla Cruz may be properly substituted for the deceased. Accordingly, IT IS ORDERED THAT

(1) The case is remanded.

(2) The motion for leave to proceed in forma pauperis is moot.