[00:00:00] Speaker 00:
which is being submitted on the briefs and will therefore not be argued.

[00:00:05] Speaker 00:
Our first case is Gerald Baker versus OPM 2018-23-24, Ms.

[00:00:11] Speaker 00:
Wu.

[00:00:12] Speaker 04:
Good morning, Your Honors, and may it please the Court, Jennifer Wu for Mr. Gerald Baker.

[00:00:24] Speaker 04:
This case involves Mr. Baker's involuntary placement in the federal employee's retirement system rather than the civil service retirement system for a period of 20 years starting in July of 1988.

[00:00:39] Speaker 04:
Mr. Baker's placement in the FERS system is meaningful to him because as a result of the way that retirement benefits are calculated differently between FERS and CSRS,

[00:00:51] Speaker 00:
Well, one cannot doubt that if he'd made a different election, he, in the long run, finally might have gotten more of a payout.

[00:01:01] Speaker 00:
But he made an election.

[00:01:03] Speaker 00:
And he signed a form that had two possibilities.

[00:01:07] Speaker 00:
I elect first coverage.

[00:01:08] Speaker 00:
I elect not first coverage.

[00:01:10] Speaker 00:
And he elected first coverage.

[00:01:12] Speaker 04:
Your Honor, I think the question in this case is whether his signature in that form is a valid election.

[00:01:18] Speaker 04:
He testified at the hearing that he was mandated to choose that form, choose box A in the form, which is that APPX 126.

[00:01:27] Speaker 04:
And he did not look at box B. The OPM attorney at the hearing also elicited testimony from Mr. Baker at the hearing that he signed that form under duress.

[00:01:38] Speaker 04:
And I think the question- What's the duress?

[00:01:40] Speaker 04:
The duress was that he was told that he must sign box, he must check box A.

[00:01:45] Speaker 04:
He was not given any other information.

[00:01:46] Speaker 00:
Well, that's advice.

[00:01:47] Speaker 00:
That's bad advice.

[00:01:48] Speaker 00:
That was possibly bad advice.

[00:01:50] Speaker 04:
I think he believes his decision was not freely made.

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And the AJ in this decision did not felt that he had no choice but to affirm OPM's decision in this case.

[00:02:03] Speaker 01:
Do you think that all misinformation regarding

[00:02:12] Speaker 01:
relative value of the options, for example, would constitute duress.

[00:02:16] Speaker 04:
No, Your Honor.

[00:02:17] Speaker 04:
I think there are instances in which misinformation does not constitute duress.

[00:02:20] Speaker 01:
Well, suppose that he were told, you can check the CSRS box if you want, but you will get no pension if you check that box.

[00:02:31] Speaker 01:
That's essentially what, that's not much different from what happened here, is it?

[00:02:37] Speaker 04:
I think that he was told that he must check it, and so he did.

[00:02:40] Speaker 04:
I'm not sure that he even knew he had another option.

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And I guess in the context of what was going on at the time, FERS was the only system that was available at the time for new employees.

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And my belief is that, although there's no testimony from the government in this respect below,

[00:02:59] Speaker 04:
is that the government employee or the agency personnel believed that he was a new employee, and thus could only select FERS and not CSRS.

[00:03:06] Speaker 01:
Well, FERS was available for new employees who could not choose CSRS, but old employees could choose either.

[00:03:14] Speaker 01:
Right.

[00:03:15] Speaker 01:
Or re-employed employees, as he was.

[00:03:17] Speaker 01:
Right.

[00:03:17] Speaker 01:
And for many people, FERS was the choice that they made with eyes open, because it had certain advantages over CSRS.

[00:03:27] Speaker 01:
Correct.

[00:03:28] Speaker 01:
Right.

[00:03:28] Speaker 01:
OK.

[00:03:29] Speaker 01:
But you think that the difference between this case and a hypothetical in which he was told that he was given misinformation about the relative value of the two options, that would not be duress, in your view?

[00:03:44] Speaker 04:
I think that it would depend on whether he felt like he was being told he had to do it.

[00:03:48] Speaker 04:
I think that if you're given options, then you do have a free choice, that there was a free election in the sense

[00:03:54] Speaker 04:
You had the option of A or B. And it was up to you to pick.

[00:03:59] Speaker 04:
And if you were rolling the dice, as it were, and didn't know which one to pick and chose A incorrectly, that's on you.

[00:04:04] Speaker 04:
I think in this case, what Mr. Baker testified to at the hearing was that he wasn't given the choice of B. He never even looked at B. He didn't know he had the option of B. And he simply was told, you must check box A. And I think in those circumstances, there is a difference.

[00:04:20] Speaker 04:
And I think that estoppel as a doctrine necessarily is equitable.

[00:04:24] Speaker 04:
And what the AJ felt constrained to say was that all misinformation necessarily does not lead to estoppel against the government, even in cases where there's no monetary payment.

[00:04:36] Speaker 04:
And we believe that if there was a remand and the AJ was instructed that the proper law is that there may be instances in which an election may be invalid because of a lack of free choice, the AJ could then make factual findings as to whether or not

[00:04:52] Speaker 04:
Mr. Baker had free choice when he was signing the form that he signed in 1988.

[00:04:59] Speaker 02:
What is it that you think is needed to transform misinformation into duress?

[00:05:07] Speaker 04:
I think that that depends on whether or not there was a free choice.

[00:05:10] Speaker 04:
I think the line between misinformation and duress can be fuzzy and dependent on the facts of each case.

[00:05:17] Speaker 02:
Well, I guess I'm imagining the conversation.

[00:05:19] Speaker 02:
Right.

[00:05:20] Speaker 02:
He's there.

[00:05:21] Speaker 02:
The employee says, you must sign the first box.

[00:05:33] Speaker 02:
Does he say, I thought I had the option?

[00:05:38] Speaker 02:
The employee says, you're a new employee.

[00:05:40] Speaker 02:
He says, no, no, I'm not a new employee.

[00:05:42] Speaker 02:
At which point, the employee, the officer says, oh, I was mistaken.

[00:05:50] Speaker 04:
In this case, he actually asked.

[00:05:51] Speaker 02:
I think you indicated you thought that the officer of HUD misunderstood his status, thought that he was a new employee, as opposed to a returning one.

[00:06:03] Speaker 04:
Right.

[00:06:03] Speaker 04:
And we surmised that she must have believed that he was a new employee.

[00:06:08] Speaker 04:
And for that reason, he asked for retirement counsel.

[00:06:10] Speaker 02:
I guess when I hear the term duress, I think of something

[00:06:15] Speaker 02:
not curable by a couple of more sentences exchanged in which somebody realizes, oh, I was mistaken.

[00:06:23] Speaker 04:
I think that we are not arguing that duress is the only circumstance in which Mr. Baker could prevail.

[00:06:28] Speaker 04:
We think that if his choice was not freely made, even if it did not rise to the level of duress, that an involuntary election of furs

[00:06:38] Speaker 04:
would mean that there was no election as the term implies.

[00:06:41] Speaker 01:
But what do you mean about that's where it starts to get pretty mushy, it seems to me.

[00:06:47] Speaker 01:
What do you mean by involuntary?

[00:06:49] Speaker 01:
Because there is a pretty good argument, it would seem to me, for setting the case law here aside, that somebody who is given completely incorrect information, such as my previous example, would be incorrect.

[00:07:05] Speaker 01:
Arguing that that was involuntary, I was told something that's completely wrong.

[00:07:10] Speaker 04:
I think that's relying on misinformation to your detriment, which doesn't mean that you didn't have free choice.

[00:07:15] Speaker 04:
You may be given information that's correct and incorrect, but you relied on the incorrect information.

[00:07:20] Speaker 04:
That was your choice.

[00:07:22] Speaker 04:
Here, I think he was told you must sign this.

[00:07:24] Speaker 04:
Right.

[00:07:25] Speaker 01:
And I think that makes it different.

[00:07:26] Speaker 01:
If that was your category that you identified as duress, suggesting that there's another category that might not be quite as

[00:07:35] Speaker 01:
as much of a compulsion as duress.

[00:07:38] Speaker 01:
Right.

[00:07:38] Speaker 01:
There might be a lack of informed consent, something like that.

[00:07:41] Speaker 01:
Lack of informed consent.

[00:07:43] Speaker 01:
But that sounds like it's getting into, if there's a mistake in the characterization of the benefits or the characterization of the choice by the government, then relief is available.

[00:07:55] Speaker 04:
Are you?

[00:07:56] Speaker 04:
We're not arguing that informed consent is required for the election of first.

[00:08:00] Speaker 04:
That's not provided for in the statute here, although it is in other cases.

[00:08:04] Speaker 04:
for annuities and other types of retirement claims.

[00:08:07] Speaker 04:
What we're arguing is that the AJ was entitled to look at the equities and figure out whether or not the decision was freely made, and that his decision in this case is not controlled by Springer and by Richmond as a matter of law.

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And I think the way that the AJ wrote his decision, it was clear that he felt that as a matter of law, he was required to reject Mr. Baker's claim based on the law.

[00:08:32] Speaker 04:
and not based on the equities and not looking at the facts of this particular case.

[00:08:37] Speaker 00:
What would be the consequences to the system if the agency took a more generous, looser approach?

[00:08:49] Speaker 00:
The word floodgates comes to mind.

[00:08:52] Speaker 04:
Your Honor, respectfully, we believe that the Board and the Ministry of Judges are able to make these kinds of factual decisions on their own.

[00:09:00] Speaker 04:
in all the cases that have been cited by the parties, which have gone either way.

[00:09:04] Speaker 04:
In Archer, for example, they granted the claim by the employee.

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In other cases, they rejected the employee's claim.

[00:09:13] Speaker 04:
But these kinds of hard questions, these factual questions as to whether there was a free choice, those are made on an everyday basis by the administrative judge, and I don't think would open the floodgates.

[00:09:25] Speaker 04:
It may very well be the case that

[00:09:27] Speaker 04:
In this case, if there were a remand, the administrative judge would say, I don't find that what happened here rises to the level of not a free choice.

[00:09:35] Speaker 04:
But I think that the administrative judge didn't feel able to make that decision because he felt that Richmond and Springer precluded, as a matter of law, all of these kinds of claims that are based on a lack of free choice and that those cases were controlling.

[00:09:53] Speaker 01:
I wanted to ask you about the Archer case and the statute that Archer was based on, which is, I take it, the FERCCA?

[00:10:00] Speaker 01:
Right.

[00:10:01] Speaker 01:
Right.

[00:10:01] Speaker 01:
This case is not an FERCCA case, right?

[00:10:04] Speaker 01:
Right.

[00:10:04] Speaker 01:
That's right.

[00:10:05] Speaker 01:
And I take it that that is the statute that was intended to correct certain kinds of errors that were made with respect to people that were arguably eligible for one or the other of the two systems, but not this kind of error.

[00:10:20] Speaker 04:
That's correct.

[00:10:20] Speaker 01:
Am I right?

[00:10:21] Speaker 04:
You're right about that.

[00:10:22] Speaker 04:
The statute, if you RCC, was intended to correct misplacement in a retirement system to which you are not entitled.

[00:10:29] Speaker 04:
In this case, Mr. Baker is entitled to be in CSRS or FERS based on his previous service.

[00:10:37] Speaker 04:
And therefore, that correction provision is not available to him.

[00:10:42] Speaker 04:
Based on the cases cited in the party's briefs, there appears to only have been three cases before this court involving

[00:10:49] Speaker 04:
a invalid or allegedly invalid election of FERS instead of CSRS.

[00:10:54] Speaker 04:
And those cases are Springer, Nielsen, and one is England.

[00:11:02] Speaker 04:
England and Nielsen are both non-precedential cases.

[00:11:05] Speaker 04:
Springer is the only precedential case.

[00:11:07] Speaker 04:
And I think one of the reasons that we stand here today is because the administrative judges before the board do not have guidance

[00:11:14] Speaker 04:
as to what the standard is when it comes to evaluating whether a first election has been freely made.

[00:11:21] Speaker 04:
The board itself is the one that has been looking at these decisions.

[00:11:24] Speaker 04:
But in the absence of a quorum, the minister of judges don't have guidance as to how to interpret Springer.

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And so that's one of the reasons that we are here today.

[00:11:33] Speaker 04:
Just to touch briefly on England and Nielsen, which are the other two cases in which this court has looked at

[00:11:41] Speaker 04:
an allegedly invalid election of FERS over CRS.

[00:11:46] Speaker 04:
We recognize that neither of those cases did the employee prevail.

[00:11:52] Speaker 04:
In both of those cases, the Federal Circuit found in non-presidential decisions that the employee was not entitled to the finding of an invalid election.

[00:12:01] Speaker 04:
But the Federal Circuit was clear to point out that the law does permit a showing of

[00:12:08] Speaker 04:
duress or fraud or even not a free choice in addition to mental incompetence that would permit a finding of an invalid election.

[00:12:16] Speaker 04:
And that is consistent with the precedent in Springer.

[00:12:19] Speaker 04:
And so given that there have been so few cases before this court on this issue, we respectfully request that this court reverse the board's decision and remand for consideration of whether or not there was a freely made choice in Mr. Baker's election of first in 1988.

[00:12:37] Speaker 00:
Thank you, Mr. Wu.

[00:12:38] Speaker 00:
We will save the remainder of your time for bottle, Mr. Yale.

[00:12:41] Speaker 00:
Thank you.

[00:12:52] Speaker 03:
Thank you, Your Honor, and may it please the Court.

[00:12:55] Speaker 03:
I'd like to address a few points.

[00:12:58] Speaker 03:
First, there was a choice in this case.

[00:13:02] Speaker 03:
The form is in the record, Form 1555.

[00:13:04] Speaker 03:
There were two options.

[00:13:06] Speaker 03:
It said Appendix 126.

[00:13:07] Speaker 03:
I think I just heard.

[00:13:11] Speaker 00:
That's not the issue.

[00:13:11] Speaker 00:
We know there was a choice.

[00:13:13] Speaker 00:
But the issue was misinformation, isn't it?

[00:13:17] Speaker 03:
The issue is misinformation, and that's what the board held a hearing.

[00:13:22] Speaker 03:
It characterized the testimony that was presented as misinformation, which it was.

[00:13:28] Speaker 03:
And that sort of claim is barred by Richmond, but also the Coyne decision, which hasn't been mentioned here at all, as well as Springer.

[00:13:42] Speaker 03:
This isn't an involuntary retirement case.

[00:13:45] Speaker 03:
This is a separate precedent based upon a statute.

[00:13:53] Speaker 03:
And so we think that it's clear that those cases bar this.

[00:13:59] Speaker 03:
I think in the briefing there's been some mention that there could be a possible

[00:14:04] Speaker 03:
exception, one based upon maybe mental incompetence or theoretically something along the lines of duress.

[00:14:13] Speaker 03:
But this court has never found that that has been met.

[00:14:17] Speaker 03:
And part of that, it's such a high bar.

[00:14:20] Speaker 01:
What do you think is the difference between misinformation

[00:14:24] Speaker 01:
of the sort that we have at issue here in duress.

[00:14:27] Speaker 01:
Where would you draw that?

[00:14:29] Speaker 03:
Well, I would think that duress would, at minimum, require some sort of a threat, which has never been the case here.

[00:14:36] Speaker 03:
I mean, frankly, Petitioner's own brief undermines any assertion that there has been duress here.

[00:14:45] Speaker 02:
Is there a common law meaning of duress that you can quote?

[00:14:51] Speaker 03:
I mean, just Black's law dictionary, this isn't in the briefing, but Black's law dictionary would say it's broadly a threat of harm to compel a person to do something against his will.

[00:15:06] Speaker 03:
But there's a threat component to that here, to that definition.

[00:15:10] Speaker 03:
And that's not, I mean, the cases that

[00:15:13] Speaker 03:
have broadly mentioned duress with regards to elections have not gone through the elements that would apply here.

[00:15:21] Speaker 03:
I think we mentioned a non-precedential case.

[00:15:24] Speaker 03:
I believe it was Veal that mentioned a threat that got a little bit into the elements.

[00:15:37] Speaker 03:
Petitioner's own brief is really the logical inference from what happened was that this personal assistant at HUD provided incorrect advice.

[00:15:48] Speaker 03:
And it was likely correct for most new employees who were starting.

[00:15:52] Speaker 03:
It just so happened that for Petitioner, it may have been incorrect.

[00:15:55] Speaker 03:
But it's misinformation.

[00:15:57] Speaker 03:
And that's the heart of the matter.

[00:15:58] Speaker 03:
And that's barred by Richmond and Coyne and Springer.

[00:16:02] Speaker 03:
And I'd also like to address a couple other points.

[00:16:06] Speaker 03:
To your question about Archer, I mean, Archer just doesn't apply here, because that's a separate statute.

[00:16:13] Speaker 03:
There is a case, I believe, Nielsen, which, again, a non-precedence of decision, but I think persuasively addressed why it doesn't apply.

[00:16:21] Speaker 03:
Because here we have an election.

[00:16:24] Speaker 03:
We don't have the agency making an erroneous placement at the initial stage of somebody infers poor service.

[00:16:32] Speaker 03:
The other point I would like to make I think there was Some assertions about springer and that there needs to be more guidance I mean springer was a 1990 decision Yeah, we haven't seen that the board is struggling with duress claims.

[00:16:48] Speaker 03:
I mean they're very It's a very

[00:16:52] Speaker 03:
minor exception, if anything, here.

[00:16:55] Speaker 03:
And so we really think that the case law firmly bars the claim in this case and that there really was no error by the board.

[00:17:05] Speaker 02:
Can I just check my understanding?

[00:17:07] Speaker 02:
Is your position that it's clear in this case that there was no duress and that is the ground on which you say Richmond Springer, Coy and Barrett

[00:17:22] Speaker 02:
or that even if there was something that meant duress, that those decisions would bar the attempt to undo, to revoke the election?

[00:17:38] Speaker 03:
The board held a hearing and looked at the evidence and found that what was presented was misinformation.

[00:17:45] Speaker 03:
And based upon that misinformation, the cases that we just discussed, Corian and Springer and Richmond, bars it.

[00:17:56] Speaker 03:
So we're not saying that those cases necessarily bar a duress claim, per se or something.

[00:18:04] Speaker 03:
I mean, could there be a situation where

[00:18:09] Speaker 03:
this agency employee put a gun to somebody's head and said, you have to fill out this form,

[00:18:17] Speaker 03:
You know, I'll fire this weapon.

[00:18:20] Speaker 03:
Would that be duress under the circumstances to invalidate an election?

[00:18:24] Speaker 03:
I don't know.

[00:18:25] Speaker 03:
Maybe that's the case.

[00:18:28] Speaker 03:
I don't think.

[00:18:28] Speaker 00:
Maybe.

[00:18:31] Speaker 03:
Probably that's the case.

[00:18:32] Speaker 03:
But that's so far away from what we have here.

[00:18:35] Speaker 03:
So to answer your question, those cases bar what was presented, the evidence that was presented, which was a misinformation claim.

[00:18:46] Speaker 03:
We can look at the evidence that was presented, and it doesn't meet duress.

[00:18:52] Speaker 03:
I mean, just as sort of a general common law, sort of general matter about what you would need to prove.

[00:19:01] Speaker 03:
And so even if

[00:19:04] Speaker 03:
You know, the board, when we talk about a remand or something, I mean, all of the evidence is in the record.

[00:19:12] Speaker 03:
And it just doesn't meet the elements of what would constitute duress under the common law.

[00:19:18] Speaker 03:
And if there's nothing further, we simply ask that you affirm the judgment of the board.

[00:19:23] Speaker 00:
Thank you, Mr. Yale.

[00:19:24] Speaker 00:
Ms.

[00:19:24] Speaker 00:
Wu has a couple minutes left.

[00:19:30] Speaker 04:
Thank you, Your Honor.

[00:19:31] Speaker 04:
I think the government's argument that there is no duress in this case illustrates why remand is required.

[00:19:37] Speaker 04:
The administrative judge did not consider that issue or discuss that issue.

[00:19:40] Speaker 04:
And in fact, before the Mayor's Systems Protection Board, the government's argument, which is at APPX 95, was that the only instance in which, or the only example of an invalid election would be if an employee is found to be mentally incompetent.

[00:19:57] Speaker 04:
And so there was simply no argument to the administrative judge or even discussion, as illustrated on the APPX 95 to 96, that duress or any other circumstance other than mental incompetence could lead to an invalid election.

[00:20:12] Speaker 04:
And I think the line drawing exercise as to whether there's misinformation or a choice that wasn't freely made, such as duress, should be made by the administrative judge in the first instance and not be determined by this court.

[00:20:25] Speaker 02:
And just to confirm, where in the joint appendix is there a document that shows that your client argued duress in terms like that?

[00:20:40] Speaker 04:
Correct.

[00:20:40] Speaker 04:
So Mr. Baker was pro se below.

[00:20:43] Speaker 04:
And so the clearest testimony or evidence that there was duress is on APPX 260.

[00:20:50] Speaker 04:
There is a recross examination by Ms.

[00:20:52] Speaker 04:
Johnson, who is the OPM attorney.

[00:20:55] Speaker 04:
And she says, Mr. Baker, when you signed the form in 1988, at that time, you felt like you were signing under duress.

[00:21:02] Speaker 04:
Answer, yes, I was.

[00:21:04] Speaker 04:
And then he is asked why he didn't write, I am signing under duress.

[00:21:08] Speaker 04:
And he says, I didn't know I had a right to put that.

[00:21:11] Speaker 04:
I signed it because I was told this is it.

[00:21:14] Speaker 04:
And so the testimony on duress was really elicited by the government attorney.

[00:21:19] Speaker 04:
But even as early as his initial claim to the agency,

[00:21:22] Speaker 04:
He consistently put, and this is not always true in every case, but is true in this case, that there was coercion by the government attorney.

[00:21:29] Speaker 04:
His claim has been consistent throughout that there was duress.

[00:21:33] Speaker 04:
And so the fact that the administrative judge did not address that.

[00:21:37] Speaker 02:
Do I understand also that notwithstanding that word or those words, coercion, duress, the facts that have been alleged and described are only that

[00:21:52] Speaker 02:
HUD officer on the other side of the table said, you must do this.

[00:21:57] Speaker 04:
Correct.

[00:21:57] Speaker 04:
And I think you can see that also to APPX 258, where the judge said, are you saying that the agency personnel said initial A?

[00:22:05] Speaker 04:
And so you did that, and you didn't look at what A or B said.

[00:22:08] Speaker 04:
And he testifies, I did not look at B. I was just told this is the only retirement option available.

[00:22:14] Speaker 04:
I don't think those facts are disputed.

[00:22:15] Speaker 04:
And I think that our view is that this court should not determine in the first instance whether those facts rise to the level of duress

[00:22:22] Speaker 04:
but allowed the administrative judge to determine that on his own.

[00:22:26] Speaker 04:
And I think, in our view, the administrative judge didn't even feel that he had found facts, because he assumed the correctness of these factual assertions, and nevertheless held as a matter of law that the claim was barred.

[00:22:39] Speaker 00:
Thank you.

[00:22:39] Speaker 00:
Ms.

[00:22:40] Speaker 00:
Wolk, the case is taken under submission.