                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAR 1 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

WENDY M. ALGUARD,                               No.    15-35808

                Plaintiff-Appellant,            D.C. No. 2:13-cv-03083-TOR

 v.
                                                MEMORANDUM*
UNITED STATES DEPARTMENT OF
AGRICULTURE and SONNY PERDUE,
US Dept of Agriculture,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Eastern District of Washington
                    Thomas O. Rice, Chief Judge, Presiding

                     Argued and Submitted November 8, 2018
                              Pasadena, California

Before: RAWLINSON, MELLOY,** and HURWITZ, Circuit Judges.

      Wendy M. Alguard appeals a summary judgment in this action challenging

the rejection by the Merit Systems Protection Board (the “Board”) of her claim under

the Whistleblower Protection Act of 1989, 5 U.S.C. § 2302(b)(8). We review the


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
district court judgment de novo, and set aside a Board action only if it is “(1)

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) obtained without procedures required by law, rule, or regulation having been

followed; or (3) unsupported by substantial evidence.” Washington v. Garrett, 10

F.3d 1421, 1428 (9th Cir. 1993) (quoting 5 U.S.C. § 7703(c)). We affirm.

      1. Alguard, an agricultural commodity grader, reported a private company’s

use of tainted food for school meals. Shortly thereafter, the USDA cancelled its

inspection contract with that company. At approximately the same time, several

other companies within Alguard’s duty area ceased operations or substantially

reduced their need for inspection services. Alguard’s duty station then eliminated

three full-time grader positions; Alguard was the least senior grader. The USDA

offered Alguard a transfer to a site nearly 1000 miles away. She refused the transfer,

and the USDA terminated her employment. After Alguard unsuccessfully raised a

whistleblower claim in administrative proceedings, this suit followed.

      2. We assume arguendo that Alguard’s disclosure was protected under the

Whistleblower Protection Act. The USDA must therefore prove by clear and

convincing evidence that it would have taken the same action absent the disclosure.

5 U.S.C. § 1221(e)(2). We analyze three factors in determining whether substantial

evidence supports the determination by the Administrative Law Judge (“ALJ”) that

the USDA met that burden: (1) “the strength of the agency’s evidence in support of”


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its action; (2) “the existence and strength of any motive to retaliate”; and (3) “any

evidence that the agency takes similar actions against” otherwise similarly situated

non-whistleblowers. Duggan v. Dep’t of Def., 883 F.3d 842, 846 (9th Cir. 2018)

(adopting the test articulated in Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed.

Cir. 1999)). Considering these factors and the record “as a whole,” see id. at 847,

we find the ALJ’s denial of Alguard’s whistleblower claim supported by substantial

evidence.

      a. On the first factor, the ALJ permissibly determined that Alguard was

reassigned due to overstaffing and declining work. The demand for inspection

services in the relevant geographic region had declined substantially even without

the loss of the company whose misconduct Alguard reported. The agency relied on

seniority in making reassignment decisions, and Alguard was the least senior of the

graders. That Alguard’s disclosure may have contributed to the decline in work is

immaterial.

      b. On the second factor, any motive of the USDA to retaliate against Alguard

was weak at best. The ALJ considered all appropriate evidence, and reasonably

concluded that because Alguard’s disclosure was not directed at agency personnel,

it was not likely to create a strong motive to retaliate.

      c. On the third factor, we find no error in the agency’s determination of the

relevant geographic area or in its analysis of similarly situated non-whistleblowers.


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A whistleblower need not fare better than similarly situated non-whistleblowers; she

must only be treated the same as she would have been absent the protected

disclosure. See 5 U.S.C. § 1221(e)(2).

      AFFIRMED.




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