Burden and degree of proof; affirmative defenses.
(a) Burden and degree of proof—
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:
It is brought under 5 U.S.C. 4303 or 5 U.S.C. 5335 and is supported by substantial evidence; or
It is brought under any other provision of law or regulation and is supported by a preponderance of the evidence.
The appellant has the burden of proof, by a preponderance of the evidence, with respect to:
Issues of jurisdiction;
The timeliness of the appeal; and
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:
Shows harmful error in the application of the agency's procedures in arriving at its decision;
Shows that the decision was based on any prohibited personnel practice described in 5 U.S.C. 2302(b); or
Shows that the decision was not in accordance with law.
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 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]