[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: 5CFR1210.13]

[Page 92-93]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
               CHAPTER II--MERIT SYSTEMS PROTECTION BOARD
 
PART 1210_DEPARTMENT OF HOMELAND SECURITY HUMAN RESOURCES MANAGEMENT SYSTEM--
 
Subpart B_Procedures for Appeals of Actions Taken Under 5 CFR Part 9701, 
                                Subpart F
 
Sec. 1210.13  Burden and degree of proof; affirmative defenses.

    (a) Burden and degree of proof--(1) Agency. Subject to paragraph (b) 
of this section, the decision of the Department must be sustained if it 
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.
    (b) Affirmative defenses of the appellant. The decision of the 
Department must be sustained where it has met the evidentiary standard 
stated in paragraph (a) of this section, unless the appellant shows 
that:
    (1) There was harmful error in the application of the Department's 
procedures in arriving at its decision;
    (2) The decision was based on a prohibited personnel practice 
described in 5 U.S.C. 2302(b); or
    (3) The decision was not in accordance with law.
    (c) Definitions. The following definitions apply to this part:
    (1) Preponderance of the evidence. The degree of relevant evidence 
that a reasonable person, considering the record as a whole, would 
accept as sufficient

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to find that a contested fact is more likely to be true than untrue.
    (2) Harmful error. Error by the Department in the application of its 
procedures that is likely to have caused it to reach a conclusion 
different from the one it would have reached in the absence or cure of 
the error. The burden is on the appellant to show that the error was 
harmful, i.e., that it caused substantial harm or prejudice to his or 
her rights.
    (d) Efficiency of the service. Pursuant to 5 CFR 9701.606, the 
Department may take an adverse action under subpart F of 5 CFR part 9701 
only for such cause as will promote the efficiency of the service.