"[A]n outrageous offense, especially for an attorney"

By on February 28, 2007 in Current Events with 0 Comments

The Federal Circuit recently upheld a 14-day suspension levied by the Department of Agriculture against an assistant to the Deputy Administrator of the Farm Loan Programs. (Kalil v. Department of Agriculture, C.A.F.C. No. 2006-3098, 2/16/07)

Kalil (a licensed attorney, but having no legal responsibilities in his position) apparently took issue with the legal position being taken by his agency and the Department of Justice in pending litigation involving detailed aspects of the debt reduction program administered by the agency. He went around his supervisors and communicated directly with the Department of Justice attorneys to argue against what he viewed as the government’s “incorrect” position.

The DOJ attorney strongly disagreed with Kalil, but told him to discuss his views with the Agriculture Department attorney in charge of the case. When he could not immediately get in touch with this attorney, Kalil ended up in a phone conversation with the clerk for the judge assigned to the particular case. According to the agency, Kalil referred in this discussion with the clerk to the Agency’s “attempted fraud” on the court.

Not very happy with this unauthorized phone call to the court, Kalil’s supervisor requested information from him as to exactly what his involvement with the case had been. Kalil basically would not respond to the supervisor.

This ultimately led to the agency suspending Kalil for 14 days for, among other things, his improper interference with the court case and failure to follow orders.

Kalil complained to the Office of Special Counsel that the suspension was retaliation for whistleblowing. The OSC apparently did not see it that way and dismissed his complaint. Kalil took his case to the Merit Systems Protection Board. The Board sided with the agency and affirmed Kalil’s 14-day suspension.

Kalil then turned to the Federal Circuit Court of Appeals. That court has now affirmed the agency and the Board. Kalil’s suspension stands.

As the court states, “…in this case, the administrative judge found, and this court agrees, that Mr. Kalil’s ex parte contact with a court regarding an ongoing litigation was ‘an outrageous offense, especially for an attorney.’ Thus, the character of this disclosure itself supplies clear and convincing evidence that the Agency met its burden of proof.” (Opinion, p. 8)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.