## United States Court of Appeals for the Federal Circuit

2006-3098

THOMAS F. KALIL, Petitioner,

v.

DEPARTMENT OF AGRICULTURE, Respondent.

George M. Chuzi , Kalijarvi, Chuzi & Newman, P. C., of Washingt on, DC, argued for petitioner. Brian M. Simkin , Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With him on the brief were Peter D. Keisler , Assistant Attorney General; David M. Cohen , Director; and Allison Kidd-Miller , Trial Attorney. Of counsel on the brief was Albert T. Berry , United States Department of Agricultur e, Office of the General Counsel, of Washington, DC. Appealed from: United States Merit Systems Protection Board

## United States Court of Appeals for the Federal Circuit

2006-3098 THOMAS F. KALIL, Petitioner,

v. DEPARTMENT OF AGRICULTURE, Respondent.

__________________ _________ DECIDED: February 16, 2007

__________________ _________ Before RADER, Circuit Judge , CLEVENGER, Senior Circuit Judge , and PROST, Circuit Judge

. RADER, Circuit Judge

. The Merit Systems Protection Board (t he Board) affirmed the United States Department of Agriculture's (Agency's) decisi on to suspend Thomas F. Kalil for fourteen days. See Kalil v. Dep't of Agric. , DC1221020792-B-2 (M.S.P.B. Oc t. 24, 2005) (Final Order), denying petition for review of , Kalil v. Dep't of Agric. , DC1221020792-B-2 (M.S.P.B. Dec. 21, 2004) (Initi al Decision). Because the Board committed no reversible errors, this court affirms.
I At the time of his suspension, Mr. Kalil was an assist ant to the Deputy Administrator of the Farm Loan Programs (FLP ), a part of the Agency's Farm Service Agency (FSA). Among other pr ograms, the FLP administers the Shared Appreciation Agreement (SAA). This program uses a debt reduction concept to help small andminority farmers avoid foreclos ure. A dispute arose ov er the repayment feature of the SAA progr am. The repayment clause reads : (2) Terms. Shared appreciation agr eements shall have a term not to exceed 10 years, and sha ll provide for recapture base on the difference between the appraised values of the real security pr operty at the time of restructuring and at the time of recapture. (3) Percentage of recapture. The am ount of the appreciation to be recaptured by the Sec r etary shall be 75 per cent of the appreciation in the value of such real sec u rity property if the recapture occurs within 4 year s of the restructuring, and 50 percent if recapture occurs during the remainder of the term of the agreement. (4) Time of recapture. Recapture sha ll take place at the end of the term of the agreement, or sooner- (A) on conveyance of the real security property; (B) on the repayment of the loans; or (C) if the borrower ceases farmi ng operations. 7 U.S.C. § 2001(e). In the late 1990s, before the present di spute, Mr. Kalil reviewed many case studies of t he actual applic ation of the SAA program a nd prepared a s u mmary for his supervisor, Carolyn Cooksie, the Deputy Dir ecto r of the FLP. Mr. Ka lil reported that the Agency had on s o me occasions waived debt recapture unless the subject property had been sold or the farmer had st opped farming before the 10 year term expir ed. Indee d , Mr. Kalil fo und the Ag ency had p ublis hed re gulat ory gu idelines wa iving recap t ure after 10 years. Further, Mr. Kalil f oun d that FLP agents in the field ha d instructed farmers to follow thos e guidelines. In August 2001, however, Mr . Kalil read a newspaper account about litigation over the SAA progra m , Stahl v. Dep't of Agric. , No. A3-01-85 (D.N.D. 2001), in whic h the Agenc y was apparently taking a contrary position. In the lit igation, the Agenc y

2006-3098 2advocated that the law require d beneficiaries who had neither conveyed their land nor stopped farming to repay 50% of appr eciated value of t heir land/l oan collater al just as if they had violated the t e rms and conditio n s o f the SAA. Althoug h not involv e d with the Stahl litigation, Mr. Kalil contacted empl oyees in the Loan Serv icing and Property Management division (LSPM) of the Agency to i nquire if the Agenc y had in fact changed its position. The LS PM confirmed the Agency had changed its interpretation of the SAA. Bas ed on his conversatio n with the L SPM, Mr. Kalil decid ed that neither LSPM nor the Stahl court had received his report from Ms. Cooksie. As a licensed attorney (although not an attorney for the Agency), Mr. Kalil contacted the District of Columbia bar to det ermine his ethical res ponsibility. Mr. Kalil testified that Bar offic i als advis ed him to re port his concerns. Mr. Kalil further testified that the Bar officials advised him to satisf y his ethical obligation by disc losing his concerns to the Department of Justice (DOJ) attorneys prosecuting the Stahl case. On August 17, 2001, Mr. Kalil ca lled DOJ Atto rney Michael Sitcov to advise him that the Government's position in Stahl was incorrect. Mr. Si tcov strongly disagreed with Mr. Kalil's ch aracterization of the Govern ment's position but a d vised h i m to contact the attorney in charge, Charlene Rosen, at the Agency's Offic e of General Counsel. Unab le to contact Ms. Rosen in her office in Washingt on, D.C., Mr. Kalil lef t a message for Ms. Rosen's supe rvisor, Arnold Grund eman. Mr. Kalil then tried to contact Ms

. Rosen at the United States Attorney's office in North Dakota. During this attempt, Mr

. Kalil alleges his call was transferred to the chambers of the j udge handling the Stahl case. In a conversation with the judge's cler k, Mr. K a lil alleges, and the Government disputes, that he said nothing prejudicial to the case.

2006-3098 3Shortly thereafter Mr. Sitcov learned of Mr. Kalil's call t o t he court and contacted Mr. Grundeman. Mr. Grundeman contac ted Mr. Kalil to discuss the call to t he court. In their conve r sation, Mr. Grundman alle ges Mr. Kalil admitted telling Judge We bb's clerk about the Agency's " a ttempted fraud" (from the perspective of Mr. Kalil) o n the court. Mr. Grundeman then reported his conversati on with Mr. Kalil to Ms. Cooksie. A few weeks later, an FSA official cont ac ted Ms. Cooksie regarding Mr. Kalil's discussion with Judge Webb's cl erk. On September 10, 2001, Ms. Cooksie sent an email to Mr. Kalil requ esting information regarding his involvement in the Stahl case. In response, Mr. Kalil se nt an email to Mr. Gr undeman as king if he could respo nd to Ms. Cooksie's email. Mr. Kalil states he di d not receive an ans wer from Mr. Grundeman. On October 10, 2001, Ms. Cooksie s ent another email to Mr. Kalil requesting information. Mr. Kalil responded that he was forwarding her request to Mr. Grundeman. Mr. Kalil also sent an email to Mr. Grundem an ex pressing his position that he had made a protected disclosure about Ms. Cooksie's performance. Then Ms. Cooksie contacted Mr. Grundeman. Mr. Grundeman advised Ms. Cooksie that she had every right to talk to Mr. Kalil. Mr. Grundeman further assert s he called Mr. Kalil th e same da y and told Mr. Kalil and that he had an oblig atio n to discuss work related iss ues with his supervisor. On February 22, 2002, Ms. Cooksie c ontact ed the human resourc e s department of the FSA and proposed a f ourteen-day suspension. S he bas ed her recommendation on Mr. Kalil's improper in terference with the Stahl litigation, his rel ease of an FSA report without prior approval, his disrespectful treatment of his supervisor, and his refusal to follow instructions. On June 19, 2002, F S A's reviewing official Ja mes Little dismissed

2006-3098 4the disrespectful treatment count, but sustai ned the rest. On that basis, Mr. Little approved suspension. In his opinion, Mr. Littl e did not consider Mr. Kalil's actions as whistle b lo wing. In response to the suspension, Mr. Ka lil sought corrective action through the Office of Special Counsel (OSC). On Ju ly 8, 2002, the OSC dismissed Mr. Kalil's complaint, informing Mr. Kalil of his right to file an ind i vidua l-right-of-action (IRA) under the Whistleblower Protection Act ( W PA). On October 10, 2002 Mr. Kalil filed an IRA but on January 8, 2003 the administr ative judge dismissed the complaint withou t a hearing for lack of jurisdiction. The administr ative judge found no genui ne WPA disclosures and further fau l ted Mr. Kalil for f a ilure to exhaust his remedies at OSC. Upon reconsider ation, the full Board found Mr . Kalil had exh auste d his OSC remedie s regarding his disclos ures to Mr. Sitc ov and Mr. Grundeman and had lodged nonfrivolous allegations of an obstruction of justice. Kalil v. Dep't of Agric. , 96 M.S.P.R. 77, 83-85 (2004). The Board stated, however , t heir findings only enti tled Mr. Kalil to a hearing and remanded for adjudica tion on the merits. Id. at 85-86. On remand, the administrative judge fram ed the issue as, "whether the agency established by clear and conv incing evidence that it would ha ve taken the 14-day suspension action abs ent the appellant's whistl eblowing activities." On that question, the administrative judge upheld the impr oper interference and failure to follow instruction counts and dismiss ed the impr oper release of documents count. The dismissed count dealt with Mr. Kalil's distribution of his report to a Native American National Tribal Development A ssociation ( N TDA) meeting. In dismissing the second

2006-3098 5count, the administrative judge found Mr. Kalil had provided sufficient evidenc e showing that he had permission to distribute the report. II This court must affirm unless the agency ac tion is (1) arbitrary or capricious , an abuse of discretion, or otherwise not in ac c o rdance with the law; (2) obtained witho ut procedure required by law, ru le, or regulation having been followed; or (3) unsupported by substantial evidenc e . 5 U.S.C

. § 7703(c) (2006); H a yes v. Dep't of Navy , 727 F.2d 1535, 1537 (Fed. Cir. 1984). T he Board has jurisdiction over an IRA appeal if the appellant has exhaust ed his adm inistrative re medies before the OSC and makes "nonfrivolous allegations" of whis tleblowing activit y with evidenc e that the disc losure was a contributing factor in the agen cy' s personnel action. Yunus v. Dep't of Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001). Under 5 U.S.C. § 2302(b)(8)(A) (2006), whistleblowing activ i ty embraces "any di sclosure of information by an employee or applicant which the employee or applicant r easonably believes ev idences-(i) a violation of any law, rule, or regulatio n, or (ii) gross mismanag emen t, a gross waste of funds, an abuse of authority, or a subs tantial and spec ific danger to public health and safety." When determining whether t he same agency action would have taken p l ace without the whistleblowing discl osures, the Board in Geyer v. Department of Justice , 70 M.S.P.R. 682, 688 (1996) , aff'd , 116 F.3d 1497 (Fed. Cir. 1997), identified several factors that may be consider ed, including (1) t he strength of the agency's reas on for the personnel action excluding the whis tleblowing, (2) the strength of any motive to retaliate for the whistleblowing, and (3) any evidenc e of similar action against similarly situated employees for the non-whistleblowing aspect alone. Greenspan v. Dep't of Veterans

2006-3098 6Affairs , 464 F.3d 1297, 1303 (Fed. Cir. 2006). See also Carr v. Soc. Sec. Admin. , 18 5 F.3d 1318, 1323 (Fed. Cir. 1999)( approving use of the Geyer t e st in "det er m i nin g whether an agency has shown by clear and c onvincing evidence that it would ha ve taken the same personnel action in the absence of whistleblowing" ). The Agenc y argues that even wi thout any protected dis c lo sures, which it denies, it would have suspended Mr. Kalil anyway. The administrative judge found that the Agency presented strong ev idence that Mr. Kalil had interfer ed with ongoing litigation. In particular, the Agency noted "that the appellant (Mr. Kalil) had, without authority to do so, spoken to Judge Webb's cle r k, telling h i m that the agency ' w as not being truthful with the Court with regard to its inte nt behind Farm Loan Program's Shared Appreciation Agreement [SAA].'" The record included a declaration from Mr. Grundeman discussin g Mr. Kalil' s admissio n of an explanation to Judge Webb's clerk that the Agency was attempting to commit fraud on the court. The record also inc l udes a mem o randum from Lynn E. Crooks, Assistant United States Attorney, describing Mr. K a lil's call to ensure that government lawyers told the judge about his report and that he had c ontacted the judge's clerk as a last resort. Finally, the administrative judge found "incr edi ble" Mr. Kalil's explanation th at he had inadvertent ly contacted the court whil e attempting to contact Ms. Rosen. Upon review of the record, substantial evidence supports the findings of the Board. Lastly, at oral argument, counsel for Mr . Kalil argue d that this court's Greenspan decision means that once a discl osure qualifies as protected, the character or nature of that disclos ure can never supply support for any disciplinary action. 464 F.3d at 1305 ("[W]hen the disclosur e is protected the bur den is on the agency to show, by clear and

2006-3098 7convinc i ng evidenc e, that it would have dis c iplined the empl oyee for reasons unrelate d to the protected di sclosure."). Greenspan does not stand for that expansiv e proposition. Indeed in this case, the administrative judge found, and this court agrees, tha t Mr. Kalil's ex parte c ontact with a court regarding an ongoing litigation was "an outrageous offense, especially for an attorney." Thus, the character of this disc losure itself supplies clear and convinc i ng evidence that the Agency met its burden of proof. For the foregoing reasons, we a ffirm the decision of the Board.
AFFIRMED

2006-3098 8