1. (a) Applicability. This section does not apply to the following types of appeals which are covered by § 1201.57:

   1. (1) An individual right of action appeal under the Whistleblower Protection Act, 5 U.S.C. 1221;
   2. (2) An appeal under the Veterans Employment Opportunities Act, 5 U.S.C. 3330a(d);
   3. (3) An appeal under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4324, in which the appellant alleges discrimination or retaliation in violation of 38 U.S.C. 4311; and
   4. (4) An appeal under 5 CFR 353.304, in which the appellant alleges a failure to restore, improper restoration of, or failure to return following a leave of absence.

2. (b) Burden and degree of proof—(1) Agency. Under 5 U.S.C. 7701(c)(1), and subject to the exceptions stated in paragraph (c) of this section, the agency bears the burden of proof and its action must be sustained only if:

   1. (i) It is brought under 5 U.S.C. 4303 or 5 U.S.C. 5335 and is supported by substantial evidence (as defined in § 1201.4(p)); or
   2. (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)).

   3. (2) Appellant.

      1. (i) The appellant has the burden of proof, by a preponderance of the evidence (as defined in § 1201.4(q)), with respect to:

         1. (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;
         2. (B) The timeliness of the appeal; and
         3. (C) Affirmative defenses.
      2. (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)), entitlement to the benefits.

3. (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:

   1. (1) Shows harmful error in the application of the agency's procedures in arriving at its decision (as defined in § 1201.4(r));
   2. (2) Shows that the decision was based on any prohibited personnel practice described in 5 U.S.C. 2302(b); or
   3. (3) Shows that the decision was not in accordance with law.
4. (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.

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