[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR1201.56]

[Page 25-26]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
               CHAPTER II--MERIT SYSTEMS PROTECTION BOARD
 
PART 1201_PRACTICES AND PROCEDURES--Table of Contents
 
                Subpart B_Procedures for Appellate Cases
 
Sec. 1201.56  Burden and degree of proof; affirmative defenses.

    (a) Burden and degree of proof--(1) Agency: Under 5 U.S.C. 
7701(c)(1), and subject to the exceptions stated in paragraph (b) of 
this section, the agency action must be sustained if:
    (i) It is brought under 5 U.S.C. 4303 or 5 U.S.C. 5335 and is 
supported by substantial evidence; or
    (ii) It is brought under any other provision of law or regulation 
and is supported by a preponderance of the evidence.
    (2) Appellant. The appellant has the burden of proof, by a 
preponderance of the evidence, with respect to:
    (i) Issues of jurisdiction;
    (ii) The timeliness of the appeal; and
    (iii) Affirmative defenses.

In appeals from reconsideration decisions of the Office of Personnel 
Management involving retirement benefits, if the appellant filed the 
application, the appellant has the burden of proving, by a preponderance 
of the evidence, entitlement to the benefits. An appellant who has 
received an overpayment from the Civil Service Retirement and Disability 
Fund has the burden of proving, by substantial evidence, eligibility for 
waiver or adjustment.
    (b) Affirmative defenses of the appellant. Under 5 U.S.C. 
7701(c)(2), the Board is required to overturn the action of the agency, 
even where the agency has met the evidentiary standard stated in 
paragraph (a) of this section, if the appellant:
    (1) Shows harmful error in the application of the agency's 
procedures in arriving at its decision;
    (2) Shows that the decision was based on any prohibited personnel 
practice described in 5 U.S.C. 2302(b); or
    (3) Shows that the decision was not in accordance with law.
    (c) Definitions. The following definitions apply to this part:
    (1) Substantial evidence. The degree of relevant evidence that a 
reasonable person, considering the record as a whole, might accept as 
adequate to support a conclusion, even though other reasonable persons 
might disagree. This is a lower standard of proof than preponderance of 
the evidence.
    (2) Preponderance of the evidence. The degree of relevant evidence 
that a 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 untrue.
    (3) Harmful error. Error by the agency in the application of its 
procedures that is likely to have caused the agency to reach a 
conclusion different from the one it would have reached in the

[[Page 26]]

absence or cure of the error. The burden is upon the appellant to show 
that the error was harmful, i.e., that it caused substantial harm or 
prejudice to his or her rights.

[54 FR 53504, Dec. 29, 1989, as amended at 56 FR 41748, Aug. 23, 1991; 
70 FR 30608, May 27, 2005]