5 CFR 1201.56 - Burden and degree of proof; affirmative defenses.
(a) Applicability. This section does not apply to the following types of appeals which are covered by § 1201.57:
(b) Burden and degree of proof -
(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)).
(i) The appellant has the burden of proof, by a preponderance of the evidence (as defined in § 1201.4(q)), with respect to:
(B) The timeliness of the appeal; and
(C) Affirmative defenses.
(ii) In appeals from reconsideration 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)), entitlement to the benefits. Where OPM proves by preponderant evidence an overpayment of benefits, an appellant may prove, by substantial evidence (as defined in § 1201.4(p)), eligibility for waiver or adjustment.
(c) Affirmative defenses of the appellant. Under 5 U.S.C. 7701(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) of this section, if the appellant:
(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.
Title 5 published on 2015-01-01
The following are ALL rules, proposed rules, and notices (chronologically) published in the Federal Register relating to 5 CFR Part 1201 after this date.