---
kind: "section"
citation: "5 C.F.R. § 1201.57"
title: "5"
number: "1201.57"
heading: "Establishing jurisdiction in appeals not covered by § 1201.56; burden and degree of proof; scope of review."
url: "https://uscodex.org/cfr/5/1201.57"
---

# §1201.57. Establishing jurisdiction in appeals not covered by § 1201.56; burden and degree of proof; scope of review.

- (a) **Applicability.** This section applies to the following types of appeals:
  - (1) An individual right of action (IRA) appeal under the Whistleblower Protection Act, [5 U.S.C. 1221](/usc/5/1221.md);
  - (2) A request for corrective action under the Veterans Employment Opportunities Act (VEOA), [5 U.S.C. 3330a(d)](/usc/5/3330a.md?p=d);
  - (3) A request for corrective action under the Uniformed Services Employment and Reemployment Rights Act (USERRA), [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 an appellant alleges a failure to restore, improper restoration of, or failure to return following a leave of absence (denial of restoration appeal).
- (b) **Matters that must be supported by nonfrivolous allegations.** Except for proving exhaustion of a required statutory complaint process and standing to appeal (paragraphs [(c)(1)](#c-1) and [(3)](#c-3) of this section), in order to establish jurisdiction, an appellant who initiates an appeal covered by this section must make nonfrivolous allegations (as defined in [§ 1201.4(s)](/cfr/5/1201.4.md?p=s)) with regard to the substantive jurisdictional elements applicable to the particular type of appeal he or she has initiated.
- (c) **Matters that must be proven by a preponderance of the evidence.** An appellant who initiates an appeal covered by this section has the burden of proof, by a preponderance of the evidence (as defined in [§ 1201.4(q)](/cfr/5/1201.4.md?p=q)), on the following matters:
  - (1) When applicable, exhaustion of a statutory complaint process that is preliminary to an appeal to the Board;
  - (2) Timeliness of an appeal under [5 CFR 1201.22](/cfr/5/1201.22.md);
  - (3) **Standing to appeal, when disputed by the agency or questioned by the Board.** (An appellant has “standing” when he or she falls within the class of persons who may file an appeal under the law applicable to the appeal.); and
  - (4) **The merits of an appeal, if the appeal is within the Board's jurisdiction and was timely filed.**
- (d) **Scope of the appeal.** Appeals covered by this section are limited in scope. With the exception of denial of restoration appeals, the Board will not consider matters described at [5 U.S.C. 7701(c)(2)](/usc/5/7701.md?p=c-2) in an appeal covered by this section.
- (e) **Notice of jurisdictional, timeliness, and merits elements.** The administrative judge will provide notice to the parties of the specific jurisdictional, timeliness, and merits elements that apply in a particular appeal.
- (f) **Additional information.** For additional information on IRA appeals, the reader should consult [5 CFR part 1209](/cfr/5/part1209.md). For additional information on VEOA appeals, the reader should consult [5 CFR part 1208](/cfr/5/part1208.md), [subparts A](/cfr/5/subpartA.md) & C. For additional information on USERRA appeals, the reader should consult [5 CFR part 1208](/cfr/5/part1208.md), [subparts A](/cfr/5/subpartA.md) and B.
- (g) For additional information on denial of restoration appeals, the reader should consult [5 CFR part 353](/cfr/5/part353.md), [subparts A](/cfr/5/subpartA.md) and C.

## Notes

### Amendments

[80 FR 4496, Jan. 28, 2015]

### 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]