## United States Court of Appeals for the Federal Circuit

05-3064

MADONNA A. LENGERICH, Petitioner,

v.

DEPARTMENT OF THE INTERIOR, Respondent.

W. Craig James , Mauk & Burgoyne, of Bois e, Idaho, argued for petitioner. Christian J. Moran , Trial Attorney, Commercial Li tigation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, ar gued for respondent. With him on the brief were Peter D. Keisler , Assistant Attorney G eneral, David M. Cohen , Director, and Bryant G. Snee , Assistant Director. Appealed from: United States Merit Systems Protection Board

## United States Court of Appeals for the Federal Circuit

05-3064

MADONNA A. LENGERICH, Petitioner,

v.

DEPARTMENT OF THE INTERIOR, Respondent.

______ ____________________ DECIDED: July 17, 2006

______ ____________________ Before MAYER, RADER, and LINN, Circuit Judges

. Opinion for the court filed by Circuit Judge LINN. Dissenting opinion filed by Circuit Judge MAYER. Madonna A. Lengerich (“Lengerich”) appeals from a final decision of the Merit Systems Protection Board (“Board”), affirmi ng the decision of the Department of the Interior that Lengerich’s oral requests for firefighter annuity retirement credit under the Civil Service Retirement System (“CSRS”) are time barred. See Lengerich v. Dep’t of the Interior , No. SE-0831-04-0062-I-1 (M.S.P.B. Oct. 5, 2004) (“Final Order ”); Lengerich v. Dep’t of the Interior , No. SE-0831-04-0062-I-1 (M.S.P.B. Aug. 31, 2004) (“Initial Decision ”). Because the Board’s decision is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, we affirm.I. BACKGROUND Under 5 U. S.C. § 8336(a)-(b), federal empl oyees generally are eligible to r e tire with an annuity upon reaching 55 years of age and c o mpleti ng 30 years of service or
upon reac hing 60 y ears of age and completing 20 years of service. Howev e r, a qualified law enforcement officer or firefighter who c o mpletes 20 years of service i s eligible to retire upon attaining 50 years of age. See 5 U.S.C. § 8336(c) (2000). Such a qualified employee receives an enhanced annuity , but is subject to mandatory early retirement and larger salary de ductions during employment. See 5 U.S.C. §§ 833 5 , 8336(c) (2000). An employee c an qualify f o r t he enhanced annuity eit her by serving in a position that has been approved for law enforc ement officer or fi refighter service credit as such, or by applying to his or her employing agency for enhanced annuity servic e credit and establishing that hi s or her position and duties qualif y for such credit. Se e 5 C.F.R. §§ 831.903-831. 906 (2006). Prior to 1988, regulations promulgated by t he Office of Personnel Management (“OPM”) instructed that “the appr opriate administrative author ity of an agenc y,” with the concurrence of OPM, shall det ermine the appl icability of retirement credit. See 5 C.F.R. §§ 831.902, 831.905 (1986) . Those regulations did not address how or when an individual should request service credit from his or her employing agency. Id. Consistent with the regulations then in pl ace, and to assist em ployees seeking to qualify, the agency at issue in this case, the Department of Interior, Bureau of Land Management (“Bureau” or “Agency”) publish ed instruction memoranda regarding enhanced annuity service credit. See Bureau of Land Mgm t., Dep’t of Interior, Instruction Memorandum No. 80-660, Special Retirement Provisions for Firefighters

05-3064 2(July 25, 1980) (hereinafte r the “1980 Agency Memorandu m”); Bureau of Land Mgmt., Dep’t of Interior, Instruction Memorandum No . 83-663, Request s for Retirement Under PL 92-350 for Law Enforcement and Firefighter Pers onnel (July 6, 1983) (hereinafter the “1983 Agency Memorandum”) (collectiv ely the “Agency Memoranda”). These Agency M e moranda prescribe how an employ ee s hould request a “verification” of whether his or her service qualified for such credit, encourage all po tentially eligib le employees to request a verificat i on of se rv ice, adopt forms for making a r equest for service credit, and ur ge employ ees to retain a copy of the request. See Agency Memoranda. In 1987, OPM issued regulations, effect ive in 1988, specif ying procedures for how an in divid ual sh ould reque st a deter mination o f eligib ility for enhanced annuity service credit under s e ction 8336(c) and setti ng deadlines for submitting suc h requests. See 5 C.F.R. § 831.901, et seq. (1988) (the “1988 version”). The revised r egulations included a provision, entitled “[r]equests from individuals,” requiring an individual t o request, no later than September 30, 1989, a det ermination of whether any periods of past gover nment service qualified for enhanc ed annuity servic e credit. 5 C.F.R. § 831.908(e) (1988). That provis ion also specified t hat “[ a]fter September 30, 1989, coverage in a pos ition or credit for service will not be granted for a period greater than one year prior to the date t hat the request from an indi v i dual is received by the employing agency, the agency where past service was performed, or OPM.” Id. T h e current version of this prov ision is found at 5 C.F.R. § 831.906, and ad ds that requests from individuals must be “submitted” and “f iled” according to certain procedures.

05-3064 3Lengerich began work at the Bu reau, at its National Interagency-Fire Center (“Fire Center”) in Idaho, on Ma y 6, 1979. In late 1986 and early 1987, Lengerich, along with other Bureau employees, met with William J. Mitchell (“Mitchell”), a Technic a l Represent ative als o employed by the Bureau at the Fire Cent er, to disc uss whether their various past job duties at the Bureau qualified for firefighter enhanced annuity service credit. Mitchell’s author ity in such matters was limit ed to assisting employees in providing required inf o rmation to Carmen Sim onson (“Simonson”) , the Personnel officer at the Fire Center responsible for Fire Cent er firefighter reti rement cases. Simonson, in turn, was one of sever a l retirement coordina tors, all of whom reported to, and provided the retirement information to, Mary Haugland (“Haugland”), the person ultimately in charge of all Bureau firefighter enhanced annuity servic e credit cases. Employees wer e instructed to refer specific questions to Haugland. Lengerich contends t hat the me etings with Mitchell took plac e on December 10, 1986 and in the spring of 1987. Mitchell c annot recall the dates of the meetings, although he does recall meeting with a group of Bureau employees on at least one occasion to disc uss service credit toward an enhanc ed annuity. Mitchell asserts that, because h e had no direct responsib ility f o r the preparation of claims for enhanc e d annuity ser v ice credit, he had a general disc u ssion with the group of Bureau employees. Mitchell recalled that the group was seeking information as to what they must do to determine whether they might be eligible f o r an enhanced annuity and th at, at the instruction of his supervisor s, he relayed to the group c e rtain information regarding the unlik elihood that their servic e would qualify. Lengerich does not deny these facts, but characterizes the oral discussions as form al “requests” for enhanced annuity servic e

05-3064 4credit. On August 23, 1993, and May 17, 1996, more than six years after her oral discussions with Mitc hell, Lenge rich filed written requests (the “written requests”) for enhanced annuity service credit, addressing them to Haugland’s succes s or, Marci a Scifres. On October 7, 2003, the Agenc y found th at Lengerich’s oral dis c ussions were ineffective and did not meet the September 30, 1989 r equest deadline. T he Agency thus did not credit service prior to Lengeric h’ s oral requests and, apparently overlooking Lengerich’s 1993 written request, dete rmined that it would not consider service prior to one year before the 1996 writt en request; that is, prior to May 1995. Lengerich petitioned for review by the Board. At the request of the parties , the administrative judge (“AJ”) bifurcated the case and, in the proceeding at issue here, consid ered only the timeliness of Lengerich’s oral discussions and written request s . After a hear ing, the AJ credit ed both of Lengerich’s written requests, concluding that she timely requested a determination with respect to service that preceded either of them by no more than o ne year. Initial Dec i sion , slip op. at 12. However, the AJ, like the Agency, did not credit Lengerich’s oral discussions, holding that requests for firefighter enhanc ed ann uity service cr edit must be in writing and that Lengerich’s oral discus s ions were , for that reason, not timely. Id. at 11. The Initial Dec i sion became the final decis ion of the Board on October 5, 2004. Lengerich appeals the timelines s determination of her or al “requests” to this court. We hav e jurisdiction under 28 U.S.C. § 1295(a)(9).

05-3064 5II. DISCUSSION A. Standard of Review Our scope of review in an appeal from a decision of the Board is limited. Specifica lly , we must affirm the Board’s d e ci sion unless we find it to be arbitrary, capricious, an abuse of discret ion, or otherwise not in a ccordanc e with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by subst antial evidence. 5 U. S.C. § 7703(c) (2000); Cheeseman v. Office of Pers. Mgmt. , 791 F.2d 138, 140 (Fed. Cir . 1986). The petitioner bears the burden of establishing error in t he Board’s decision. See Cheeseman , 791 F.2d at 140. The interpr e tation of a regulation is a question of law wh ich we r e view de novo

. Reflectone, Inc. v. Dalt on , 60 F.3d 1572, 1575 (F ed. Cir. 1995) (en banc ). We construe a regulation in the same manner as we cons true a statute, by a scertaining its plain meaning. Bowles v. Se minole Rock & Sand Co. , 325 U.S. 410, 414-15 (1945) (focusing on the “plain words of the regulation” to ascertain the meaning of the regulation); Lockheed Corp. v. Widnall , 113 F.3d 1225, 1227 (Fed. Cir. 1997) (“T o interpret a regulation we must look at its plain language and con s ider the terms in accordance with their common meaning.”). In interpreting a r egulatory provision, we examine the text of the regulation as a whole, reconc iling the section in question with sections r e lated to it. See Reflec tone , 60 F.3d at 1577-78 (holding that t he proper interpretation of the plain language of the regulation “exami nes and reconciles the text of the entire regulation, not simply isolated sentences”).

05-3064 6B. Analysis Lengerich contends t hat the Bo ard erred in concluding t hat her oral d i scussions were ineffective and, thus, not timely. Lengeric h argues t hat, under Henry v. Department of Justice , 157 F.3d 863, 865 (Fed. Cir. 1998), there is a distinction between m a king a “request” and submitting writt en documents in support of a request. She contends that because her oral discussions with Mitche ll took place prior to the September 30, 1989 deadline, they were timely with r e spect to all of her past service, regardless of when she foll owed up on thos e disc ussion s by s u bmitting doc u mentary evidenc e. Lengerich also argue s that the Board erred in finding her oral discussions untimely based on r egulations that were promulgated in 1988, after she had the meetings with Mitchell. Lengerich urges us to find that her oral di s c ussions were timely under the version of the regulati ons then in place bec ause that version is silent as to a written/oral distinction, and she complied wit h the requirem ent that a request be made to the appropriate administr ative authority when she addre ssed her oral requests to Mitchell. The Agenc y argues that the various vers ions of the regulations, the Agency Memoranda, and the OPM publications support t he requirement that a request must be written, and that the Board t hus did not err in affirming the Agency’s determination th at requests must be written. The Agency also argues that, even if oral requests were contemplated by the regulations , Lengerich st ill did not comply with the regulation s because s he addres sed her requests to Mi tchell, who was not the “appropriate administrative authority.”

05-3064 7The Board affirmed the Agency’s determinati on that “requests” must be in writing. In so holding, the Board first ev aluated th e regulatory procedures for proce ssing and approving r equests, which, at the time of Lenger ich’s oral discussions, required that the “appropriate administrative aut hority,” with the concurrenc e of OPM, “shall” determine the applicability of t he special retirement provisions. See 5 C.F.R. §§ 831.902, 831.905 (1986). The Board found that, in 1986, Mitche ll was a go-between, or contact point for employees with questions; that al l Bureau retirement cases went through Haugland; and that employees were directed t o giv e claims to their personnel officer (in this cas e Simonson) who would in turn send it to Haugland. Initial Dec i sion , slip op. at 6-7

. Given the multiple people and offices involv ed, and in light of the regulatory requirement for joint determination by the employi ng agency and OPM, the Board found that Lengerich would hav e to make a request in a fo rm that could be passed on for review by the agencies explicitly charged with det ermining the applicability of the regulations and concluded that a request mu st be in writing. Id. , slip op. at 6. As support for its conclus i on, the Board found that the forms and requirements set forth in the Agenc y Memoranda, which were published prior to Lengerich’s oral disc ussions wit h Mitchell, reflected that a request for firefighter enhanced annuity service cr edit needed to be in writing. Id. , slip op. at 9. As further suppor t fo r its interpretation, the Board f ound that the 1988 version of 5 C.F.R. § 831.908, which set the deadline for making a “request,” implic itly required that a reques t must be in written form bec ause it states that a request “must be submitted to OPM through t he current employing agency.” Id. , slip op. at 11- 12. The Board concluded that use of the words “must be subm itted” implies that “the pertinent regulations did not contemplate or condone an oral reques t.” Id. slip op. at 12.

05-3064 8The Board also distinguished Henry on the ground that, in that case, there was a written request whereas here, there was not. Id. , slip op. at 10. Having determined that a request must be in writing, the Board di d not consider whether Mitchell was the “appropriate adminis trative authority.” Because the regulations in effect at t he time of Lengerich’s oral discussions did not expressly permit or prohibit oral reques ts, and because at that time the Agency had in plac e a policy, expressed in the A gency Memoranda, that requests be made in writing, we hold that the Bo ard did not err in affirming t he Agenc y ’s determination that Lengerich’s oral discussions with Mitchell were not timel y

. At the outset, we note that th is is not a case like Henry

. In Henry , we he ld th at a “request” was timely despite t he employee’s dormancy in fai ling to follow up t he request with details to support service credit. But in Henry , as contrasted with the pr esent case, the request was written, not oral. See Henry , 157 F.3d at 865. As described above, the versio ns of the OPM regulations in place at the time of Lengerich’s oral requests were silent as to requests from individuals and therefore did not specify procedures to be used by employees seeking to make a “request” wit h respect to past service credit. Indeed, the r egulations stated only that “the appropriat e administrative authorit y,” with the concurrence of OPM, shall deter mi ne the applic ability of the special retirement provisions, thus leav ing it up to the various agencies to establish procedures for making such determi nations and seeking OPM’s concurrence. See 5 C.F

. R. §§ 831.902, 831.905 (1986) . In this case, the Bureau published the Agency M e moranda, instructing employees how to seek a determi nation of whether they are eligible for enhanced annuity service credit.

05-3064 9One such Agency memorandum, publis hed on July 25, 1980, states: In the pas t, there has been s o me confusion and uncertainty in regard to the subject of this memo. A part of this confus ion has been related to the definition of covered positions. Another pr oblem has been determining employee elig ibility. Discuss ions have been held with the Office of Personnel Management, and we are now able to inform you of some of their guidelines in reviewing positions for coverage under the special retirement provisions. 1980 Agency Memorandum (emphasis added). One such guide line is that “[a]ll employees who may have creditable ser v ice toward firefighter retirement should complete Enclosure No. 1, Summary of Ex perienc e for Firefighter/Law Enforcement Officer Reti rement.” Id. Another Agency memorandum states that “[b]efore any employee is separated from Bureau rolls under these special reti rement provisions, BLM/OPM determinations on the creditability of the firefight er [] serv ice must b e received by the Bureau.” 1983 Agency M e morandum (emphasis added) . The 1983 Agency Memorandum als o instructs that “[e]mpl o yees who may be e ligible under the spec ial provisions are encouraged to obtain verification of service early in their car eers . . . .” Id

. In a section entitled “Verification of Service,” the 198 3 Agency Memorandum provides that requests must contain, “as a minimum,” specific information regarding job exper ience and personnel actions. Id. The 1983 Agency Memorandum also st ates that “[e]mployees who submit requests for verification of service determinations should maint a in a copy of all information submitted,” and th at requests “must be forwarded t o the De nv er Service Center (D-533) for further action pr ior to submission t o OPM.” Id. (emphases added). The 1983 Agency Memorandum cautions that it is “essential” that empl oyees keep

05-3064 10copies of their reques ts because OPM will not return copies forwar ded to them and als o because it is “hard to recall exact informat ion submitted if questions arise in further review processes.” Id. The Supreme Court has advis ed that “[c]og ent ‘administrative interpretations . . . not [the] products of formal rulemaking . . . warrant respect.’” Alaska Dep’t of Envtl. Conservation v. EPA , 540 U.S. 461, 487 ( 2004) (citing Wash. Stat e Dep’t of Soc. & Health Ser vs. v. Guardi anship Estate of Keffeler , 537 U.S. 371, 385 ( 2003)). Moreover, “an agenc y’s construction of its own regulations is entitled to substantial deference.” Lyng v. Payne , 476 U.S. 926, 939 (1986); Martin v. Occupational Safety & Health Revie w Co mm’n , 499 U.S. 144, 150 (1991). To meri t deference, however, an “agency’s interpretation (1) must have been directed to regulatory language that is unclear; (2) must have been actually applie d in the present agency ac tion; and (3) must not be plainly erroneous or inconsistent with the r egulation. In addition, we consider the consistenc y vel non with whic h the agency has applied that interpretation.” Gose v. U.S. Postal Serv. , 2006 U.S. App. LEXIS 14526 at 19 (Fed. Cir. June 14, 2006); see also Rober tson v. Methow Valley Citizens Counc il , 490 U.S. 332, 359 (1989) (agency interpretation found to be c ontrolling wher e not “‘plainly erroneous or inc o nsistent with the regulation’” (quoting Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410, 414 (1945))); Auer v. Robbins , 519 U.S. 452, 462-63 (1 997) (deferring to agency ’ s interpretation of its own regulation). Although the regulations at issue in th is cas e were promulgated by OPM and the Agency Memoranda were promulgated by a different agency, the Bureau of Land Management, we need not address whether this caus es us to withhold deference to the

05-3064 11interpretation reflected in the Agency Memoranda because the Agency Memoranda specify the manner in which both OPM, the agency charged by Congress with the function of “executing, adminis tering, and enforcing” retirem ent activities, 5 U.S.C. § 1103(a)(5)(B), and the Bureau, the “appropriate administrat ive authority” charged with determining the applicability of the reti rement regulations, 5 C.F.R. §§ 831.902, 831.905, elected to address the gap left in the regulations.. For example, the 1980 Agency Memorandum states that it is the re sult of “[d]iscussions [ t hat] have been held with the Office of Personnel Management” and that it was distributed to employees “ t o inform [the m ] of some of [OPM’s] guidelines.” Collectiv e ly, the Agency Memoranda als o reflect a c onsistent c ourse of interpreta tion, dating back to 19 80. “It is enough to observe that the well-reasoned v i ews of the agenc ies implement ing a statute ‘constitut e a body of experience and info rmed judgment to which cour ts and litigants may properly resort for guidanc e.’” Bragdon v. Abbott , 524 U.S. 624, 642 (1998) (citing Skidmore v. Swift & Co

. , 323 U.S. 134-139-40 (1944) and resorting for guidance to a “consistent course of agency interpretation” by the agencies delegated with responsibility for administering the Re h abilitation Act). In filli ng the g a p in the reg u lations, which do not explic itly state whether a “r equest” from an indiv i dual should be oral or written, these Agency Memoranda reveal the agencies ’ interpreta tion that a request mu st be in writing. Lengerich has not persuaded us t hat this interpretation is plainly erroneous or incons istent with the r egulations, whic h are silent as to this iss ue. See Robertson , 490 U.S. at 359. The Agenc y ’s requirement for a writt en request reasonably rec ognizes the fact that retirement benefits are sufficiently import ant financial considerations as to warrant

05-3064 12that they be in writing to avoid confusion or inconsis tency. Rodriguez v. West , 189 F.3d 1351 (Fed. Cir. 1999), is informative. In that case, in August of 1979, after the death of her husband, Rodriguez filed an application for a surviving spo u se’s pens ion with th e Veteran’s Department regional office. Her claim was deni ed because she was receiving Social Sec u rity benefits that exceeded th e permissible maximu m under the pension provisions. Id. at 1352. In 1986, Rodriguez receiv ed a notice from the Social Security Administration, stating that her Social Sec u rity benefits w ould terminate in February 1987, making her eligible for the pension as of that date. Id. So me time after that date , she vis i ted the Veteran’s Depar tment regional office, showed them the lett er, and orally requested a surviving spouse’s pension, but wa s told she was not entitled t o it. Id. I n March 1990, Rodriguez filed a written request for a pens ion with the Veteran’s Department and was awarded a pens ion effective only April 1, 1990, but not effective February 1987. Id. Rodriguez brought suit, alleging that the effective date of her benefits should hav e been Febr uary 1987. This court held that the oral request for benefits was insufficient and that the claim fo r benefits, required to be filed with the Department of Veterans Affairs, must be in writing. In so hol ding, we stated that: A large number of claims ar e filed with the Department, and without written evidence of t hem, it would be extremely difficult, if not impossible, to determine exactly when an informal claim was filed and what benefits were sought . . . . To permit an oral statement to constitute the filing of an informal claim would create serious problems in the operation of the veterans benefit s programs. It would often be impossible for the Departm ent’s personnel who handle and process these claims to re collect many of the oral applications made, let alone the details of those claims. Id. at 1354.

05-3064 13Disabled American Vete rans v. United States , 650 F. 2d 1178 ( C t. Cl. 1981), is also instruc t ive. In that case, the Court of Claims was faced with t he issue of whether a refund claim for a certain tax deduction s ought by the Disabled American Veterans organization was properly submitted to the Inte rnal Revenue Serv ice (the “I.R.S.”). The trial judge found that the claim was properly submitted. In so holding, the trial judge charged the I.R.S. with expre ss knowledge of the refund cl aim based upon inf o rmal oral discussions during an audit of the tax retu rns of the Disabled American Veteran s organization. Id. at 1179. The Disabl ed American Veterans or ganization subsequently filed a written claim (which was denied), but that claim did not encompass the claim for the deduction at issue. Id. Thus, for there to have bee n an acceptable cla i m for refund of the deduction at iss ue, the oral representations at the audit would have to c onstitute a valid “claim.” Our predecessor court dis agreed with the trial judge, holding that the claim must be written due to pr actical concerns, stating: It is common knowledge that th e personnel in gov ernmental departments is const antly changing. Many times several different employees work on a single cas e . Some of them have before them only such information as is contained in the files. For this reason, and because of the shortness of the memory of man, and for many other reasons, only a written claim is sufficient to meet the requirements of the statute and the need it intended to fill. Id. at 1180. Although Lengerich c haracterizes her or al discussions with M i tchell as for m al “requests,” the record in this case equally su pports the Agency’s determination that they were infor m al inquiries and dis c ussions of a general nature amongst a group of coworkers regarding the special ret i rement prov isions. The record hi ghlights the parties’ divergent recollections and char acterization s of events that happened long ago, bringing

05-3064 14to bear not only the practical concerns noted above, but also the difficulty in drawing the line between general c onversations, informal in quiries, and formal “requests.” Apply i ng our limited scope of review and the respect owed the Agency in the circumstances of this case, and for all of the reasons noted abov e, we hold that the Board d i d not err in affirming the Agency ’ s determination that Lenger ich’s oral discussions were ineffective as requests for enhanced firefighter annuity servic e credit and, therefore, were untimely. In light of our affirmance of the Boar d’s dec ision finding the Age n cy’s determination that Lengerich’s oral requests we re not timely because they were not in writing, we do not address whether Mitc hell was an “appropriate administrative authority.” III. CONCLUSION For all of the foregoing reasons, the Board’s decision is affirmed.
AFFIRMED

05-3064 15

## United States Court of Appeals for the Federal Circuit

05-3064

MADONNA A. LENGERICH, Petitioner,

v. DEPARTMENT OF THE INTERIOR, Respondent.
MAYER, Circuit Judge , dissenting. Because the Merit Systems Protecti on Board misinterpreted 5 C.F.R. § 831.908(e) (1988) and c onflated “request” with “ application,” I dissent. Section 831.908(e) states that “[r] equests [for enhanced retirement benefits] received . . . not later than September 30, 1989, may include any periods of previous service.” The board interpret ed this regulation as requiring requests be in the form of a formal writing. Lengerich asserts that su ch requests may be made orally, but agrees with the board that enhanced reti rement benefit applications must be in writing. Despite the fact that the request in Henry v. Dept. of Justice , 157 F.3d 863 (Fed. Cir. 1998), was written, not oral, Henry makes it clear that a “request” and an “application” are two different things, and that it is the timing of the request that is relevant in determining whethe r a claim is timely. Henry further states that section 831.908(e) specifies neither the form nor the content of a proper request. Given that the regulation requires nothing more than a “request” before September 30, 1989, andthat a request and an application are distinct, an oral request is sufficient to satisfy the regulation. Because the board incorrectly interpreted 5 C.F.R. § 831.908(e), and because it conflated “r equest” wit h “application,” the record is not sufficiently developed to determine whether Lengerich’s discuss ions wit h Mitc hell were r equests for, or merely discussions about, her enhanced retirement eligibil ity. Therefore, I would vacate the board’s decision and remand.

05-3064 2