court jennifer groove for mr gerald baker this case involves mr baker's involuntary placement in the federal employees retirement system rather than the civil service retirement system for a period of twenty years starting in july of ninety eight mr baker's placement in the st system is meaningful to him because as a result of the way that retirement benefits are calculated differently between there was possibly better choice i think he believes his decision was not freely made and the a j in this decision did not help that he had no choice but to affirm o p m is decision in this case i do think that all misinformation would be misinformation regarding the law of the two value of the options for example would would constitute duress no your honor i think there are what that's not much different from what happened here is i think that he was told that he must check it in so he did i'm not sure that he even knew he had another option and i guess in the context of what was going on at the time it st w only available st was the only system that was available at the time for new employees and my belief is that although there's no testimony from the government in this respect the law is that the government employee or the agency personnel believe that he was a new and for many people first pushing the choice that they made with eyes open because it had certain advantages over c s r s correct ok but but you think that the difference between this case and hypothetical in which he was told that he was given misinformation about the relative value of the two options that would not be duration your view i think that it would depend on whether he felt like he he had to do it i think that if you're given options then you do have a free choice that there was a free election in the sense that you had the option of a or b and it was up to you to to pick 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 i think in this case what mr baker testified to at the hearing was that he wasn't given the choice of he never even looked at the he didn't know he had the option of b then he simply was told you must check box a and i think in those circumstances there is a difference and i think that a stoppel as a doctorate necessarily is applicable and what the a j felt constrained to say was that all misinformation necessarily does not lead to a stop against the government even in cases where there is no monetary payment and we believe that if there was a remit and in the a j was instructed that the proper law is that there may be instances in which  to transform misinformation into duress i think that that depends on whether or not there was a free choice i think the line between misinformation and arrests can be fuzzy and dependent on the facts of what i guess i'm  does he say i thought i had the option the employee says you're a new employee he says no no i'm not a new employee at which point the employee the officer says oh i was a returning one right and we surmise that that that she must have believed that he was a new employee and for that reason he asked for retirement just when i fear the term to rest i think of something not curable by a couple of more of sentences exchanged or in which somebody realizes oh i was mistaken you know we are not arguing that direct is the only circumstance in which mr baker could prevail we think that if his choice was not freely made even if it did the level of duress that an involuntary election of st would mean that there was no election the term go his do you mean about that's where it starts to get pretty much it seems to me what do you mean by involuntary because there's a pretty good argument it would seem to me for the setting the case law here aside that somebody who is given completely incorrect information such as my previous example would be in arguing that that was involuntary i was told something that's completely wrong i think that's relying on misinformation to your detriment which doesn't mean that you didn't have free choice you may be given the characterization of the benefits from the characterization of the choice then by the government and then relief is available we're not we're not arguing that informed consent is required for the election or for us that's not provided in the statute here although it is in other cases for annuities and other types of retirement claims we're arguing is that the a j 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 was is not controlled by springer and by richmond as a matter of law and i think the way that the a j wrote his decision it was clear that he felt that as a matter of law he was required to reject mr baker's cl more generous looser approach the word floodgates comes to mind your honor respectfully we believe that the that the board in the ministry of judges are able to make these kinds of factual decisions on their own in all the cases that been cited by the parties in which have gone either way in archer for example they granted the claim by the by the by the employees in other cases they've rejected employees claim but these kinds of hard questions these factual questions as to whether there was a free choice that those are made on every day basis by the ministry of judge and i don't think would open the floodgates it may very well be the case that in in this case if there were a remit and the minister a judge would say i don't find that what happened here rises to a level of not a free choice but i think that the ministry of judge wasn't didn't feel able to make that decision because he felt that richmond in spring or precluded as a matter of law all that these kinds of claims that that are based on a lack of free choice and that those cases were controlling i'm going to ask you about the archer case and the statute that archer was based on which is a take it the f e r c c a right right this case is not an if you are seasoned a case right right now that's right and i take it that the that is the statute that was intended to correct shipton kinds of errors that were made with respect to people that were arguably  mr baker is entitled to be in c s r s or st based on his previous service and therefore that correction provision is not available to him based on the cases cited in the party's briefs there appears to one is england and england in the olson are both non presidential cases springer is the only presidential case and i think one of the reasons that we stand here today is because the ministry of judges books before the board do not have guidance as to what the standard is when it comes to evaluating whether of course an election has been thrilling made the board itself is the one that has been looking at these decisions but in the absence of a quorum the minister judges don't have guidance as to how to interpret springer overseer s we you know we recognize that in either of those cases did the employee prevail in both of those cases that the federal circuit found in non presidential decisions of them was not entitled to the funding of an invalid election but the federal circuit was clear to point out that the law does permit a showing of dress or fraud or even not a free choice in addition to mental incompetence that would permit  ending of an invalid election and that is consistent with the precedent and springer and so given that there have been so many so few cases before this court on this issue we respectfully request that this court reversed the board's decision  it characterize the testimony that was presented as misinformation which it was and that sort of claim is barred by richmond but also the coin decision which hasn't been mentioned here at all as well as well as well as springer this is an involuntary retirement case this this is a separate set of you know separate precedent based upon the statute and so we think that it's clear that those cases are this you know i think in the briefing there's been some mention that there could be a possible exception one based upon maybe mental incompetence or theoretically something on the lines of duress but this court has i mean this court has never found that that has been met and it's in part of that it's such a it's such a high bar but what do you think is the difference between misinformation of the sort that we have that issue here and duress where where would you draw i would think that duress would at minimum require some sort of a threat which is never been the case i mean frankly petitioners own brief undermines you know any assertion that there has been duress here because it is the most the most common law meaning of duress that you can  there's a threat component to that here to that definition and that's not i mean the cases that have brought the mention duress with regards to some elections have not gone through sort of the elements that would apply here i think we mentioned a non presidential case i believe it was via veal that mentioned sort of a threat that was you know sort of got a little bit into the  again you know petitioners own brief is really the logical inference from what happened was that this personal assistant at hud provided incorrect advice and it was likely correct for most new employees were starting it just so happened that for petitioner it may have been incorrect but it's misinformation and that's the heart of the matter and that's part by richmond in korean and springer and i'd also like to you know address a couple other points to your question about archer i mean that just doesn't apply here because that's a separate statute there is a case i believe neal sin which again and precedence of decision but i think persuasively addressed why it doesn't apply because election here we have an election we don't have the agency making it in a roni as placement at the initial stage of somebody in for four years 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 spring was in one thousand nine hundred and six and yet we haven't seen that the board is struggling with duress claims i mean they're very it's a very minor exception if anything here and so we really think that the case law is firmly bars on the claim in this case and that there really was no error by the the can i just checked my understanding is your position that it's clear in this case that there was no direct us and that is the ground on which you say richmond springer korean bar it or that even if there was something that meant duress that those decisions would bar the attempt to undo revoke the election our position is that the board held a hearing and looked at the evidence and found that what was presented was misinformation and based upon that misinformation that i mean could there be a situation where this agency employee put a gun to somebodies head and said you have to fill out this form or you know i'll fire this weapon would that be dressed under the circumstances to invalidate an election i don't know maybe sad sack maybe that's the case i don't think that maybe and maybe you describe probably that's the case but that's so far away from what we have here so to answer your question those cases bar what was presented the evidence that was presented which was a misinformation but we also i mean we can look at the evidence that was presented and it's not it doesn't meet direct us i mean just a sort of a general common law in the you know sort of general matter about what you would need to prove and so even  if you know the board you know when we talk about a three man or something i mean all of the evidence is in the record and it just doesn't meet the elements of what would constitute arrest under the comm here on earth i think the government's argument that there is no dress in this case illustrates why every man is required the ministry of judge to not consider that issue or discuss that issue and in fact before the their systems protection or the government's argument which is that a p x ninety five dollars was that the only th of which are the only example of invalid lection would be if an employee is found to be mentally competent and so there is simply no argument to the misanthropy there is misinformation or the choice that wasn't freely made such as dress should be made by the ministry of judge in the st instance and not be determined by this core and just just to confirm we're in the that time you felt like you were signing under duress answer yes i was and then he is asked why he didn't write i am signing under duress and he says i don't i didn't know i had a right to put that i was i signed it because i was told this is it and so the testimony under arrest was really elicited by the government attorney but even as early as his initial claim to the agency he consistently put in this is not always true in every case but it is true in this case that there was coercion by the government facts that are have been alleged and described are only that the hot officer on the other side of the table said you must do this crisis and i think you can see that judge didn't even feel that he had found fast because he assumed the correctness of these factual search ships and nevertheless held as a matter of law that the