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MARCATO v. UNITED STATES AGENCY FOR INT'L DEV.

No. 19-1041.

11 F.4th 781 (2021)

Robin S. MARCATO, Petitioner v. UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT, Respondent. Merit Systems Protection Board, Intervenor.

United States Court of Appeals, District of Columbia Circuit.

Decided August 24, 2021.

Attorney(s) appearing for the Case

Kathleen McClellan , argued the cause for petitioner. With her on the briefs was Jesselyn A. Radack .

Allison Kidd-Miller , Assistant Director, U.S. Department of Justice, argued the cause for respondent. With her on the brief were Jeffrey Bossert Clark , Acting Assistant Attorney General, Robert E. Kirschman, Jr. , Director, and Isaac B. Rosenberg , Attorney.

Tristan L. Leavitt , General Counsel, Merit Systems Protection Board, Katherine M. Smith , Deputy General Counsel, and Stephen W. Fung , Attorney, were on the brief for intervenor Merit Systems Protection Board in support of respondent.

Before: Garland, Pillard, and Katsas, Circuit Judges.

A federal agency may defend an adverse personnel action taken against a whistleblower by showing that it would have taken the same action in the absence of any protected disclosures. In this case, the Merit Systems Protection Board found that the Office of the Inspector General (OIG) of the United States Agency for International...

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