5 C.F.R. § 1209.4

Definitions

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(a) Personnel action means, as to individuals and agencies covered by 5 U.S.C. 2302:

(1) An appointment;

(2) A promotion;

(3) An adverse action under chapter 75 of title 5, United States Code or other disciplinary or corrective action;

(4) A detail, transfer, or reassignment;

(5) A reinstatement;

(6) A restoration;

(7) A reemployment;

(8) A performance evaluation under chapter 43 of title 5, United States Code;

(9) A decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other personnel action;

(10) A decision to order psychiatric testing or examination;

(11) The implementation or enforcement of any nondisclosure policy, form, or agreement; and

(12) Any other significant change in duties, responsibilities, or working conditions.

(b) Whistleblowing is the making of a protected disclosure, that is, a formal or informal communication or transmission, but does not include a communication concerning policy decisions that lawfully exercise discretionary authority, unless the employee or applicant providing the disclosure reasonably believes that the disclosure evidences any violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. It does not include a disclosure that is specifically prohibited by law or required by Executive order to be kept secret in the interest of national defense or foreign affairs, unless such information is disclosed to Congress, the Special Counsel, the Inspector General of an agency, or an employee designated by the head of the agency to receive it.

(1) The exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation with regard to remedying a violation of 5 U.S.C. 2302(b)(8), i.e., retaliation for whistleblowing;

(2) Testifying for or otherwise lawfully assisting any individual in the exercise of any right granted by any law, rule, or regulation;

(3) Cooperating with or disclosing information to Congress, the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or

(4) Refusing to obey an order that would require the individual to violate a law.

(d) Contributing factor means any disclosure that affects an agency's decision to threaten, propose, take, or not take a personnel action with respect to the individual making the disclosure.

(e) Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established. It is a higher standard than “preponderance of the evidence” as defined in 5 CFR 1201.4(q).

(f) Reasonable belief. An employee or applicant may be said to have a reasonable belief when a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee or applicant could reasonably conclude that the actions of the Government evidence the violation, mismanagement, waste, abuse, or danger in question.

[55 FR 28592, July 12, 1990, as amended at 62 FR 17048, Apr. 9, 1997; 77 FR 62374, Oct. 12, 2012; 78 FR 39547, July 2, 2013; 89 FR 72966, Sept. 9, 2024]

Notes of Decisions

Cited in 103 cases (61 in the last 5 years), 1992–2026 · leading case: Garilynn Smith v. Dep't of the Army, 2022 MSPB 4 (MSPB 2022).

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Garilynn Smith v. Dep't of the Army, 2022 MSPB 4 (MSPB 2022). · cites it 2× “” 5 C.F.R. § 1209.4 (e). 8 must show that the matter disclosed was one which a reasonable person in her position would believe evidenced any of the situations specified in 5 U.”

Anthony Salazar v. Dep't of Vets. Affairs, 2022 MSPB 42 (MSPB 2022). · cites it 2× “8; 5 C.F.R. § 1209.4 (e). It is an intentionally high standard of proof and is higher than the “preponderance of the evidence” standard.”

Javier Soto v. Dep't of Vets. Affairs, 2022 MSPB 6 (MSPB 2022). “5 C.F.R. § 1209.4 (e). Section 1221(e)(2) does not explicitly state that the clear and convincing evidence test applies to claims of retaliation for protected activity under 5 U.”

Arnold Wilson v. Dep't of Vets. Affairs, 2022 MSPB 7 (MSPB 2022). “5 C.F.R. § 1209.4 (e). It is a higher standard than a preponderance of the evidence, which is the degree of relevant ev idence that a 23 reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than…”

Karen L. Kewley v. Dep't of Health & Human Servs., 153 F.3d 1357 (Fed. Cir. 1998). “*1361 Kewley failed to show that the protected whistleblowing disclosure was a contributing factor in her removal, and that, even if it had been, the agency demonstrated by clear and convincing evidence, as defined in 5 C.F.R. § 1209.4 (d), that it would have removed her anyway.”

George Duggan v. Dep't of Def., 883 F.3d 842 (9th Cir. 2018). “” 5 C.F.R. § 1209.4 (e). As noted, we assume, without deciding, that all seven communications that Petitioner has identified constituted protected disclosures.”

Williams v. McCausland, 791 F. Supp. 992 (S.D.N.Y. 1992). · cites it 2× “and 5 C.F.R. § 1209.4 (b)(2); the Freedom of Information Act, 5 U.”

Flynn v. United States Sec. & Exch. Comm'n, 877 F.3d 200 (4th Cir. 2017). “” 5 C.F.R. § 1209.4 (b). Federal law prohibits certain agency actions in response to receiving such disclosures from whistleblowers.”

Robert v. Serrao v. Merit Sys. Prot. Bd., 95 F.3d 1569 (Fed. Cir. 1996). “§ 2302 (a)(2)(A)(iii), (viii); 5 C.F.R. § 1209.4 (a)(3), (8). Finally, 5 U.”

Baca v. Dep't of Army, 983 F.3d 1131 (10th Cir. 2020). “” 5 C.F.R. § 1209.4 (b). When asserting a whistleblower reprisal claim, the employee bears the prima facie burden of establishing that he made a protected disclosure and that it “was a contributing factor in the personnel action.”

Janie Young v. Dep't of Homeland Sec., 2024 MSPB 18 (MSPB 2024). “17 , ¶ 28 (2011); 5 C.F.R. § 1209.4 (e). Here, we are not left with the firm belief that the agency would have initiated an investigation into the appellant absent her protected whistleblowing activity.”

Robert M. Miller v. Fed. Deposit Ins. Corp., 2014 MSPB 83 (MSPB 2014). “§ 1221 (a) (2011); see also 5 C.F.R. § 1209.4 (b) (defining “whistleblowing”).”

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