---
kind: "section"
citation: "5 C.F.R. § 1201.56"
title: "5"
number: "1201.56"
heading: "Burden and degree of proof."
url: "https://uscodex.org/cfr/5/1201.56"
---

# §1201.56. Burden and degree of proof.

- (a) **Applicability.** This section does not apply to the following types of appeals which are covered by [§ 1201.57](/cfr/5/1201.57.md):
  - (1) An individual right of action appeal under the Whistleblower Protection Act, [5 U.S.C. 1221](/usc/5/1221.md);
  - (2) An appeal under the Veterans Employment Opportunities Act, [5 U.S.C. 3330a(d)](/usc/5/3330a.md?p=d);
  - (3) An appeal under the Uniformed Services Employment and Reemployment Rights Act, [38 U.S.C. 4324](/usc/38/4324.md), in which the appellant alleges discrimination or retaliation in violation of [38 U.S.C. 4311](/usc/38/4311.md); and
  - (4) An appeal under [5 CFR 353.304](/cfr/5/353.304.md), in which the appellant alleges a failure to restore, improper restoration of, or failure to return following a leave of absence.
- (b) **Burden and degree of proof—**
  - (1) **Agency.** Under [5 U.S.C. 7701(c)(1)](/usc/5/7701.md?p=c-1), and subject to the exceptions stated in [paragraph (c)](#c) of this section, the agency bears the burden of proof and its action must be sustained only if:
    - (i) It is brought under 5 U.S.C. [4303](/usc/5/4303.md) or [5](/usc/5/5.md) U.S.C. 5335 and is supported by substantial evidence (as defined in [§ 1201.4(p)](/cfr/5/1201.4.md?p=p)); or
    - (ii) It is brought under any other provision of law or regulation and is supported by a preponderance of the evidence (as defined in [§ 1201.4(q)](/cfr/5/1201.4.md?p=q)).
  - (2) **Appellant.**
    - (i) The appellant has the burden of proof, by a preponderance of the evidence (as defined in [§ 1201.4(q)](/cfr/5/1201.4.md?p=q)), with respect to:
      - (A) Issues of jurisdiction, except for cases in which the appellant asserts a violation of his right to reemployment following military duty under [38 U.S.C. 4312-4314](/usc/38/4312-4314.md);
      - (B) The timeliness of the appeal; and
      - (C) **Affirmative defenses.**
    - (ii) In appeals from final decisions of the Office of Personnel Management (OPM) involving retirement benefits, if the appellant filed the application, the appellant has the burden of proving, by a preponderance of the evidence (as defined in [§ 1201.4(q)](/cfr/5/1201.4.md?p=q)), entitlement to the benefits.
- (c) **Affirmative defenses of the appellant.** Under [5 U.S.C. 7701(c)(2)](/usc/5/7701.md?p=c-2), the Board is required to reverse the action of the agency, even where the agency has met the evidentiary standard stated in [paragraph (b)](#b) of this section, if the appellant:
  - (1) Shows harmful error in the application of the agency's procedures in arriving at its decision (as defined in [§ 1201.4(r)](/cfr/5/1201.4.md?p=r));
  - (2) Shows that the decision was based on any prohibited personnel practice described in [5 U.S.C. 2302(b)](/usc/5/2302.md?p=b); or
  - (3) **Shows that the decision was not in accordance with law.**
- (d) **Administrative judge.** The administrative judge will inform the parties of the proof required as to the issues of jurisdiction, the timeliness of the appeal, and affirmative defenses.

## Notes

### Amendments

[80 FR 4496, Jan. 28, 2015, as amended at 89 FR 72961, Sept. 9, 2024]

### Authority

Authority: 5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, unless otherwise noted.

### Source

Source: 54 FR 53504, Dec. 29, 1989, unless otherwise noted.

### Amendments

[80 FR 4496, Jan. 28, 2015, as amended at 89 FR 72961, Sept. 9, 2024]