Burden and degree of proof.

CFR · 2024-01-01 · US · Title 5

(a) (1) An individual right of action appeal under the Whistleblower Protection Act, 5 U.S.C. 1221; (2) An appeal under the Veterans Employment Opportunities Act, 5 U.S.C. 3330a(d); (3) An appeal under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4324, in (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. (b) (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 (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)). (2) (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; (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) (1) Shows harmful error in the application of the ag

official document · source cfr-2024 · id 5:§ 1201.56