Gil L. Torallo v. Office of Personnel Management

985 F.2d 582

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issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. Gil L. TORALLO, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 92-3461.

United States Court of Appeals, Federal Circuit.

Nov. 24, 1992.

53 M.S.P.R. 681 .

VACATED AND REMANDED.

ON MOTION

FRIEDMAN, Senior Circuit Judge.

ORDER 1

Joaquina A. Torallo, widow of Gil L. Torallo, moves for reconsideration of the court's September 1, 1992 order dismissing her petition for review. The Office of Personnel Management (OPM) has not responded.

2

OPM moved to dismiss Mrs. Torallo's petition for review because Mr. Torallo's estate was not represented by counsel. Mrs. Torallo did not respond to that motion. The court dismissed Mrs. Torallo's petition for review on September 1, 1992, and noted that only counsel, and not Mrs. Torallo, could represent the estate. The court noted that it was not clear when Mr. Torallo died but that Mrs. Torallo had filed the petition for review.

3

Mrs. Torallo states that she never received a copy of OPM's motion to dismiss. Mrs. Torallo also states that Mr. Torallo died on April 29, 1992, eight days before the Merit Systems Protection Board's May 7, 1992 order denying review of the initial decision. Mrs. Torallo also states that she filed a motion with the Board to substitute her as the appellant.

4

In order for Mrs. Torallo to proceed pro se as the petitioner in this court, she must have been the appellant at the Board. See Fed.Cir.R. 47.3; 28 U.S.C. § 1654 . Accordingly, we deem it to be the best course to remand this case to allow the Board to consider whether Mrs. Torallo should be substituted. * 5

Accordingly,

IT IS ORDERED THAT:

6

(1) The motion for reconsideration is granted. The September 1, 1992 dismissal order is vacated and the mandate is recalled.

7

(2) This petition for review is remanded to the Merit Systems Protection Board for further proceedings consistent with this order.

* If the Board substitutes Mrs. Torallo, then Mrs. Torallo must again file a petition for review. If the substitution is denied, only counsel may file a petition for review