[00:00:00] Speaker 02:
Our next case for argument is 21-2330, Lowe versus HHS.

[00:00:09] Speaker 02:
Mr. Chousy, am I saying that right?

[00:00:12] Speaker 02:
Yes, you are, Judge.

[00:00:13] Speaker 03:
Although I'm not sure I would correct you, even if you did.

[00:00:15] Speaker 02:
Well, when I ask you a question, you should answer it.

[00:00:18] Speaker 02:
So when I'm saying it right, you should correct me if I'm wrong.

[00:00:21] Speaker 02:
But I'm hoping I'm right.

[00:00:23] Speaker 02:
And please proceed.

[00:00:24] Speaker 03:
Thank you, Your Honor.

[00:00:25] Speaker 03:
May it please the court.

[00:00:28] Speaker 03:
Structuring.

[00:00:29] Speaker 03:
as it is used in the context of this case, is adjusting an amount of money to be carried into the United States in order to avoid the reporting requirement on the IRS or the customs form, whichever it is.

[00:00:49] Speaker 03:
It's clear from this case that HHS believed that Dr. Lal had, in fact, engaged in structuring

[00:00:59] Speaker 03:
Because, as they charged her, when she testified that the amounts she asked people to carry were only the amounts given to her by her father and were not based at all on the reporting requirements.

[00:01:15] Speaker 02:
But Council, the problem for you is they found otherwise.

[00:01:18] Speaker 02:
I'm sorry, who found otherwise?

[00:01:22] Speaker 02:
the court below?

[00:01:24] Speaker 03:
Yes, the judge.

[00:01:25] Speaker 02:
Yes, the board below.

[00:01:26] Speaker 02:
They found otherwise.

[00:01:28] Speaker 02:
And this is a substantial evidence question.

[00:01:30] Speaker 02:
And one of the pieces of evidence that resonated with me in particular was the Davies declaration at A152 and 153.

[00:01:41] Speaker 02:
And in particular with that, Mr. Lowe asked, expressly asked Davies, how much money Davies personally intended to take in

[00:01:51] Speaker 02:
and then adjusted the amount of money she requested Davies to take to remain under the $10,000 limit.

[00:02:02] Speaker 03:
No.

[00:02:03] Speaker 04:
Mistakes.

[00:02:04] Speaker 04:
You know what?

[00:02:04] Speaker 04:
I mean, that's in the declaration.

[00:02:06] Speaker 04:
You disagree with it.

[00:02:08] Speaker 04:
But when we're looking at substantial evidence, we look at the evidence before the board.

[00:02:13] Speaker 04:
And if that supports the finding, even if you disagree with the declaration, it doesn't get you anywhere on appeal.

[00:02:19] Speaker 04:
What's wrong with that declaration?

[00:02:21] Speaker 03:
You said that's at PEDS 151 and 152.

[00:02:23] Speaker 02:
152.

[00:02:24] Speaker 02:
The declaration of Sharon Davies starts at 152, and it goes over to 153.

[00:02:33] Speaker 04:
I mean, if you look at paragraph five on page 153.

[00:02:37] Speaker 03:
Yes.

[00:02:38] Speaker 03:
And that's why I said no, Your Honor, because that's not my reading of that paragraph.

[00:02:43] Speaker 04:
She asked me how much money I was going to take with me so she could send an amount that did not put me over the $10,000 limit.

[00:02:50] Speaker 04:
Yes.

[00:02:50] Speaker 04:
What $10,000 limit do you think that's referring to?

[00:02:53] Speaker 03:
Oh, I think that was a customs reporting requirement.

[00:02:55] Speaker 03:
Everybody who was located in India working for the government knew

[00:03:00] Speaker 03:
that if you were traveling back to the United States, there was a $10,000 limit.

[00:03:05] Speaker 03:
However, what I disagreed respectfully with Chief Judge Moore is that there was an adjustment made.

[00:03:12] Speaker 03:
Dr. Law asked Ms.

[00:03:13] Speaker 04:
Dayes... Who cares if there's an adjustment or not?

[00:03:16] Speaker 04:
It's clear from this that what she was trying to do was give her an amount that coupled with her cash would remain below the customs reporting limit.

[00:03:25] Speaker 04:
So that evidences that the purpose of this was for her to give money to her co-workers to avoid the limit.

[00:03:33] Speaker 04:
She said other things during the investigation.

[00:03:35] Speaker 04:
They charged her with misrepresenting the facts because this is what she was doing.

[00:03:40] Speaker 04:
I don't understand what the argument here is on this point.

[00:03:42] Speaker 03:
The argument, Judge Hughes, is if Dr. Lal only had $9,000 when she made this request of Ms.

[00:03:53] Speaker 03:
Dave's.

[00:03:54] Speaker 03:
And Ms.

[00:03:56] Speaker 03:
Dave said, I'm not carrying any money.

[00:03:58] Speaker 03:
And Dr. Lal gave her the $9,000.

[00:04:03] Speaker 03:
Your hypothetical would be different for me if, in fact, when Miss Dave said, oh, I'm not carrying any money.

[00:04:12] Speaker 04:
I don't think it matters at all about how much money she was trying to give her.

[00:04:18] Speaker 04:
She was trying to make sure that she was giving them money to stay under the limit.

[00:04:22] Speaker 04:
When the investigators asked her, she did not say that that was the point of it.

[00:04:28] Speaker 03:
She said it was only what my father gave me.

[00:04:31] Speaker 03:
Right.

[00:04:31] Speaker 03:
And the question is, I asked the deciding official six different times, do you have any evidence that the amounts of money that she asked people to carry for her were different

[00:04:45] Speaker 03:
from the amount that her father gave her.

[00:04:48] Speaker 04:
It doesn't matter what it was amount her father gave her or not.

[00:04:51] Speaker 04:
The question is, was she giving people money and adjusting it to stay under the limit?

[00:04:57] Speaker 04:
She lied about that during the investigation.

[00:05:00] Speaker 03:
But Judge Hughes, it's the adjusting part.

[00:05:03] Speaker 03:
There's no evidence from paragraph five on page 153 that any adjustment was made.

[00:05:09] Speaker 04:
Let's look at page 151 at the top.

[00:05:12] Speaker 04:
where Anne Moen is, it's a declaration of her.

[00:05:16] Speaker 04:
Yes.

[00:05:17] Speaker 04:
And she asked her, and Dr. Law said, here's $10,000.

[00:05:22] Speaker 04:
And then she took some of it back because she, Moen was going to carry her own money.

[00:05:32] Speaker 04:
She's purposely adjusting the amount of money to make sure it stays under the limit.

[00:05:36] Speaker 04:
Yes, however.

[00:05:37] Speaker 04:
She didn't tell that to the investigators.

[00:05:40] Speaker 03:
She said, did she tell that to the investigators?

[00:05:43] Speaker 03:
She wasn't asked that question, Judge Hughes.

[00:05:46] Speaker 03:
She was not asked the question.

[00:05:48] Speaker 03:
She wasn't asked the question with Ms.

[00:05:50] Speaker 03:
Daves.

[00:05:50] Speaker 03:
She wasn't asked the question with Ms.

[00:05:52] Speaker 03:
Mowen.

[00:05:53] Speaker 03:
10 pages after her testimony about Ms.

[00:05:57] Speaker 03:
Mowen, the investigator said, did you discuss the cash limit with anyone?

[00:06:01] Speaker 02:
I don't understand, though.

[00:06:03] Speaker 02:
Counsel, you stood here, and I said that Dave's declaration was a problem from your Davies, or however you pronounce it.

[00:06:08] Speaker 02:
And you're agreeing that, yes, she was intending to help make sure the person stayed under the $10,000, but you corrected Judge Hughes and said, but you see there's no evidence that she adjusted

[00:06:19] Speaker 02:
the amount she gave in order to keep it under the $10,000.

[00:06:22] Speaker 00:
In paragraph five?

[00:06:22] Speaker 02:
Yes, that's what he said with the greater Davies.

[00:06:24] Speaker 02:
So then Judge Hughes points you to Moen, where there's clearly evidence that she adjusted the amount for the sole purpose of keeping this person under the $10,000 limit.

[00:06:34] Speaker 02:
Why isn't that substantial evidence?

[00:06:35] Speaker 02:
Why isn't it at the end of this case?

[00:06:36] Speaker 03:
Because Judge Moore, the charge raised by the agency, and this is what I was getting at in my opening, the charge raised by the agency was basing the request

[00:06:49] Speaker 03:
on the customs limit.

[00:06:52] Speaker 03:
When Dr. Lal asked Ms.

[00:06:54] Speaker 03:
Mowen to carry $10,000, that was under the customs limit.

[00:07:00] Speaker 03:
The customs limit is over $10,000.

[00:07:03] Speaker 03:
There's no evidence that she was basing that request

[00:07:07] Speaker 03:
on the customs limit, because in order to find that, one would have to find that her father either had or gave her in excess of $10,000.

[00:07:17] Speaker 02:
No, but you said she gave every time exactly the amount her dad gave her.

[00:07:23] Speaker 02:
That's not true, because here

[00:07:24] Speaker 02:
Right?

[00:07:25] Speaker 02:
In this paragraph, she wanted this person to carry 10,000.

[00:07:27] Speaker 02:
So according to your facts, that must be the amount her dad gave her.

[00:07:30] Speaker 02:
But she adjusted that to a lower amount.

[00:07:33] Speaker 02:
So she didn't give the amount her dad gave her.

[00:07:35] Speaker 02:
She gave less than the amount her dad gave her in order to keep this person under the custom.

[00:07:39] Speaker 03:
But Judge Moore, the charge is not that she gave people the amount.

[00:07:44] Speaker 03:
It's that she requested people to carry.

[00:07:46] Speaker 03:
That's the charge.

[00:07:48] Speaker 03:
But this paragraph says she requested.

[00:07:51] Speaker 03:
She requested $10,000.

[00:07:52] Speaker 03:
It was Ms.

[00:07:54] Speaker 03:
Mowen.

[00:07:55] Speaker 03:
It was Ms.

[00:07:55] Speaker 03:
Mowen.

[00:07:57] Speaker 03:
I'm detecting a little skepticism here.

[00:07:59] Speaker 03:
Ms.

[00:08:00] Speaker 03:
Mowen, if the charge is going to be structuring, if what the- Where is the charge structuring?

[00:08:09] Speaker 04:
The charge is misrepresentation of material facts to the investigator.

[00:08:14] Speaker 03:
And the investigators- No.

[00:08:16] Speaker 03:
Judge Hughes.

[00:08:17] Speaker 04:
I'm sorry, don't try to dispute that.

[00:08:19] Speaker 04:
That's on page 28 of the proposed charge.

[00:08:22] Speaker 04:
That's what the charge is, misrepresentation of material facts in connection with an investigation.

[00:08:27] Speaker 04:
And then it has a narrative which shows the investigator ask her.

[00:08:32] Speaker 04:
Did you adjust amounts to get below the customs limit?

[00:08:36] Speaker 04:
And she said no, I did it.

[00:08:38] Speaker 04:
I only gave what my father gave me.

[00:08:40] Speaker 04:
All these other people said in their declarations, yes, she asked me to take money for them and it was adjusted to stay under the limit.

[00:08:49] Speaker 03:
Ms.

[00:08:49] Speaker 03:
Staves never said it was adjusted.

[00:08:51] Speaker 04:
uh... and if you look on page twenty nine about specific i'm sorry if you look at declaration i don't understand how you read that declaration and don't understand it as saying here i'm giving you ten thousand dollars and and

[00:09:07] Speaker 04:
And the person says, oh, I can't take that because I have my own money.

[00:09:11] Speaker 04:
So she adjusted it.

[00:09:13] Speaker 04:
So she would stand under the $10,000 limit.

[00:09:14] Speaker 03:
I'm not talking about Ms.

[00:09:15] Speaker 03:
Mowen.

[00:09:16] Speaker 03:
I'm talking about Ms.

[00:09:17] Speaker 03:
Staves.

[00:09:18] Speaker 03:
There's no adjustment.

[00:09:19] Speaker 04:
Well, I don't care if you only need one piece of evidence.

[00:09:21] Speaker 04:
If Ms.

[00:09:21] Speaker 04:
Mowen is good enough, Ms.

[00:09:23] Speaker 04:
Mowen is good enough.

[00:09:24] Speaker 03:
Except, Judge Hughes, the specific charge right above specification one on page 29 of the appendix, I have determined that your statements claiming the IRS limit

[00:09:35] Speaker 03:
was not the basis for the amounts you asked employees to carry from India to the United States.

[00:09:43] Speaker 03:
In order to find that that statement is false, there would have to be some evidence that Dr. Lal had had a larger amount of money and asked somebody to carry a smaller amount in order to be under

[00:10:02] Speaker 03:
the limit.

[00:10:04] Speaker 01:
And why isn't the Mowen Declaration exactly that evidence?

[00:10:08] Speaker 03:
Well, it is that evidence, except no.

[00:10:12] Speaker 01:
Then what's left?

[00:10:13] Speaker 03:
No, no, just start.

[00:10:15] Speaker 03:
It is that evidence, except the request was not over the limit.

[00:10:23] Speaker 01:
The request was $10,000.

[00:10:26] Speaker 01:
That's what Ms.

[00:10:27] Speaker 01:
Mowen says, right?

[00:10:28] Speaker 01:
Yes.

[00:10:29] Speaker 01:
And then Ms.

[00:10:30] Speaker 03:
Mowen says, I can't.

[00:10:31] Speaker 03:
And then the adjustment was made.

[00:10:33] Speaker 03:
And if the charge was that you adjusted the amount in order to be under the limit, I would agree with you.

[00:10:43] Speaker 03:
But she was not charged with structuring.

[00:10:45] Speaker 03:
The word structuring is not used.

[00:10:47] Speaker 03:
The judge came up with dividing the agree that she was structuring.

[00:10:53] Speaker 04:
I believe that... What does the evidence not show she was structuring?

[00:10:57] Speaker 03:
I believe that if Dr. Lahl was structuring...

[00:11:01] Speaker 03:
with Ms.

[00:11:01] Speaker 03:
Mowen?

[00:11:02] Speaker 03:
Ms.

[00:11:03] Speaker 03:
Mowen was equally culpable in structuring.

[00:11:06] Speaker 03:
Ms.

[00:11:06] Speaker 03:
Mowen was counseled.

[00:11:07] Speaker 04:
Well, it doesn't matter.

[00:11:08] Speaker 04:
Ms.

[00:11:08] Speaker 04:
Mowen was not charged here.

[00:11:10] Speaker 04:
We're not talking about her.

[00:11:11] Speaker 04:
Yes.

[00:11:12] Speaker 04:
And we're not talking about whether structuring is the basis for the charge.

[00:11:16] Speaker 04:
Was she structuring or not?

[00:11:17] Speaker 04:
If she was structuring, then when she got interviewed with the investigator, she should have admitted to it.

[00:11:24] Speaker 04:
She didn't admit to it.

[00:11:24] Speaker 03:
She was not asked if she structured.

[00:11:26] Speaker 04:
Well, I understand you're doing your best for your client to read this record, but it kind of flies straight in the face of what these things say.

[00:11:36] Speaker 03:
But let me just say, and just start with directly responsive to your question, if Ms.

[00:11:42] Speaker 03:
Mowen was not charged with structuring after she gave a declaration to HHS,

[00:11:48] Speaker 03:
saying that when Dr. Lal offered her $10,000, that Ms.

[00:11:54] Speaker 03:
Mowen said, that'll put me over the limit.

[00:11:57] Speaker 03:
And Dr. Lal adjusted the amount that Ms.

[00:12:01] Speaker 03:
Mowen then carried along with her own money.

[00:12:05] Speaker 03:
That is as culpable of structuring as Dr. Lal.

[00:12:10] Speaker 01:
I just don't see how that helps you, even if it's true.

[00:12:14] Speaker 02:
Counsel, you're into your rebuttal time.

[00:12:15] Speaker 02:
Would you like to say some?

[00:12:17] Speaker 03:
No, Your Honor, thank you.

[00:12:20] Speaker 00:
Thank you, Your Honor.

[00:12:22] Speaker 00:
May I please support?

[00:12:23] Speaker 00:
The court is presented with three issues in this appeal, and I'm going to jump right to the charge one, which is the first issue that's been presented, as that's what has been dealt with by the court so far.

[00:12:33] Speaker 00:
I think the court has properly identified what the issue is here.

[00:12:37] Speaker 00:
Counsel for Dr. Law seems to think that the charge of misrepresentation is dependent on, and the government must establish

[00:12:44] Speaker 00:
the amounts given to Dr. Law by her father don't in any way or correlate to the amounts that she gave to the employees.

[00:12:52] Speaker 00:
But that is not the charge.

[00:12:53] Speaker 00:
The charge was misrepresentation of facts in the investigation.

[00:12:57] Speaker 00:
And indeed, there is a correlation between the amount she asked the naive carriers who worked with her to carry back to the United States and the IRS reporting requirements or the customs reporting requirements.

[00:13:09] Speaker 00:
And that's clear on the record with the declarations that the court has already pointed out.

[00:13:15] Speaker 00:
I have a dumb question.

[00:13:16] Speaker 02:
So it's kind of related to this case, but not exactly.

[00:13:20] Speaker 02:
Does this mean if I were going to carry money abroad back into the US, should I purposefully try to carry less than $10,000 so I'm not above it?

[00:13:29] Speaker 02:
And if I did that, if I want to stay below the limit, am I breaking the law by choosing to carry an amount that's less than the limit?

[00:13:35] Speaker 02:
Or is it here just the collaboration to do so?

[00:13:39] Speaker 02:
What is the illegality?

[00:13:40] Speaker 00:
Right.

[00:13:41] Speaker 00:
So one thing, I mean, we talked a lot about structuring.

[00:13:44] Speaker 00:
And so I just don't want the court to conflate structuring, which is a federal crime, with what we're looking at here, which is employment and being a federal employee and whether or not her removal was appropriate or reasonable.

[00:13:54] Speaker 00:
And so further to your question, I don't know that you deciding personally to carry less than $10,000 so you don't have to report it is a crime.

[00:14:03] Speaker 00:
That's not what structuring is.

[00:14:05] Speaker 00:
Structuring is attempting to avoid reporting by

[00:14:09] Speaker 00:
dividing the amount you have into smaller portions, et cetera.

[00:14:13] Speaker 00:
We know here, the thing about Dr. Law, she not only carried less than $10,000 herself, but she asked other people who were also employees to carry less than $10,000 to be under the reporting requirement.

[00:14:26] Speaker 00:
And I want to move to removal because I think it's very important to note that she was a very high-ranking official with HHS.

[00:14:32] Speaker 00:
serving on behalf of our country in India.

[00:14:35] Speaker 00:
When this allegation came to light, the U.S.

[00:14:37] Speaker 00:
Ambassador asked her to leave India immediately.

[00:14:40] Speaker 00:
Certainly that resulted in embarrassment for the agency, as well as a loss of trust and confidence in her ability to serve as a federal employee.

[00:14:48] Speaker 02:
Well, and also she's asking this personal favor of subordinate employees in her reporting chain, isn't she?

[00:14:53] Speaker 00:
Some of them were subordinate, some were not.

[00:14:54] Speaker 00:
Okay.

[00:14:55] Speaker 00:
And so we didn't make a big deal out of that because there were some who were on her level.

[00:14:59] Speaker 00:
I think what's interesting and why they're not similarly situated to Dr. Law is they were individual, right?

[00:15:05] Speaker 00:
And so this came to light because of a conversation in the cafeteria where it was overheard when someone else has been asked to do this.

[00:15:10] Speaker 02:
And they immediately answered all the questions.

[00:15:12] Speaker 00:
Exactly.

[00:15:13] Speaker 02:
They were truthful.

[00:15:13] Speaker 02:
Right.

[00:15:14] Speaker 02:
There wasn't a misrepresentation.

[00:15:15] Speaker 02:
They were truthful.

[00:15:17] Speaker 00:
And they thought they were, you know, it might be called naive carriers because they thought, oh, I'm just one person.

[00:15:22] Speaker 00:
Right.

[00:15:22] Speaker 00:
So as a federal employee, you asked me to carry $9,000 cash on my person on an international flight.

[00:15:29] Speaker 00:
That raised a concern for me.

[00:15:31] Speaker 00:
But if I did it, it would be different for me if I heard that another colleague was asked and then another colleague was asked.

[00:15:37] Speaker 00:
And so it raises a greater question.

[00:15:39] Speaker 00:
And we look at charge two, which is sort of the generic charge of inappropriate conduct.

[00:15:45] Speaker 00:
It raises a question of inappropriate conduct when you use several different employees to transport a large amount of cash back into the United States for you.

[00:15:56] Speaker 00:
And it falls right under the reporting requirements, which again, Dr. Law alleges, is a coincidence.

[00:16:04] Speaker 00:
And the MSPB found that to not be credible.

[00:16:07] Speaker 02:
Anything further?

[00:16:09] Speaker 00:
Nothing further, Your Honors, if you don't have any further questions for me.

[00:16:11] Speaker 00:
Thank you, Ms.

[00:16:12] Speaker 00:
Murphy.

[00:16:13] Speaker 00:
Thank you so much.

[00:16:16] Speaker 03:
I disagree.

[00:16:17] Speaker 03:
I believe that the words of the charge, the words of the charge matter.

[00:16:23] Speaker 03:
This court has held on numerous occasions that it's not up to the board to find that somebody engaged in misconduct that was not charged by the agency.

[00:16:33] Speaker 03:
The specific charge here

[00:16:35] Speaker 03:
is not that she misrepresented.

[00:16:39] Speaker 03:
It's that she misrepresented that the source of the funds, the basis for her requests with the amounts given to her by her father and not the customs requirement.

[00:16:49] Speaker 03:
I agree that if she had been charged with structuring, and I disagree with Ms.

[00:16:55] Speaker 03:
Murphy, structuring is a crime.

[00:17:03] Speaker 03:
The agency had an infinite number of charges that they could have raised against her.

[00:17:10] Speaker 03:
One of them would have been what the judge found, which is you divided an amount of money into smaller parts to avoid the reporting requirement.

[00:17:20] Speaker 03:
That would not be criminal, but it would be misconduct if she had done it.

[00:17:25] Speaker 03:
They didn't charge her with that.

[00:17:27] Speaker 03:
They charged her with misstating that the source of her requests

[00:17:32] Speaker 03:
were the gifts from her father and not the customs requirement.

[00:17:36] Speaker 03:
And to his credit, the deciding official testified that he had no evidence that that was true.

[00:17:45] Speaker 03:
He had no evidence that, in fact, the amounts that Dr. Lal asked people to carry were not the amounts given to her by her father, but instead were adjusted in order to meet the customs requirement.

[00:17:57] Speaker 03:
And even though the judge found that, in essence,

[00:18:02] Speaker 03:
that Dr. Lau had structured, that she had engaged in these various practices to reduce the amount of money, that was never charged.

[00:18:12] Speaker 03:
And she had no ability to meet that charge because it was not charged.

[00:18:18] Speaker 02:
OK.

[00:18:18] Speaker 02:
Thank you, Mr. Chousy.

[00:18:20] Speaker 02:
I thank both counsel.

[00:18:21] Speaker 02:
This case is taken under submission.