You are using an unsupported browser. This web site is designed for the current versions of Microsoft Edge, Google Chrome, Mozilla Firefox, or Safari.
The Office of the Federal Register publishes documents on behalf of Federal agencies but does not have any authority over their programs. We recommend you directly contact the agency associated with the content in question.
If you have comments or suggestions on how to improve the www.ecfr.gov website or have questions about using www.ecfr.gov, please choose the 'Website Feedback' button below.
If you would like to comment on the current content, please use the 'Content Feedback' button below for instructions on contacting the issuing agency
Enhanced content is provided to the user to provide additional context.
This content is from the eCFR and is authoritative but unofficial.
Navigate by entering citations or phrases (eg: 1 CFR 1.1 49 CFR 172.101 Organization and Purpose 1/1.1 Regulation Y FAR).
Choosing an item from citations and headings will bring you directly to the content. Choosing an item from full text search results will bring you to those results. Pressing enter in the search box will also bring you to search results.
Background and more details are available in the Search & Navigation guide.
The in-page Table of Contents is available only when multiple sections are being viewed.
Use the navigation links in the gray bar above to view the table of contents that this content belongs to.
5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, unless otherwise noted.
54 FR 53504, Dec. 29, 1989, unless otherwise noted.
This content is from the eCFR and may include recent changes applied to the CFR. The official, published CFR, is updated annually and available below under "Published Edition". You can learn more about the process here.
Subscribe to: 5 CFR 1201.56
View the most recent official publication:
These links go to the official, published CFR, which is updated annually. As a result, it may not include the most recent changes applied to the CFR. Learn more.
Information and documentation can be found in our developer resources.
The Code of Federal Regulations (CFR) is the official legal print publication containing the codification of the general and permanent rules published in the Federal Register by the departments and agencies of the Federal Government. The Electronic Code of Federal Regulations (eCFR) is a continuously updated online version of the CFR. It is not an official legal edition of the CFR.
Learn more about the eCFR, its status, and the editorial process.
(a) Applicability. This section does not apply to the following types of appeals which are covered by § 1201.57:
(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 which the appellant alleges discrimination or retaliation in violation of 38 U.S.C. 4311; and
(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) 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:
(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) Appellant.
(i) The appellant has the burden of proof, by a preponderance of the evidence (as defined in § 1201.4(q)), with respect to:
(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 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) Penalty determination.
(i) This paragraph (b)(3) applies only to appeals filed under 5 U.S.C. 7513.
(ii) The agency's choice of penalty is entitled to substantial deference. The Board will review a penalty only to determine whether it is within the tolerable limits of reasonableness in light of the charges sustained under paragraph (b)(1)(ii) of this section. This determination is based upon the totality of the circumstances relating to the efficiency of the service, on a case-by-case basis.
(iii) If the Board sustains all of the agency's charges, the Board will determine whether the penalty imposed by the agency is within the tolerable limits of reasonableness, and will not substitute its judgment for the judgment of the deciding official.
(A) If the Board makes an affirmative finding in this regard, the Board will sustain the agency's action.
(B) If the Board makes a negative finding in this regard, the Board may mitigate the agency's original penalty to the maximum reasonable penalty.
(iv) If the Board sustains fewer than all of the agency's charges, the Board may mitigate the agency's original penalty to the maximum reasonable penalty so long as the agency did not indicate either in its final decision, or during proceedings before the Board, that it desired that a lesser penalty be imposed if the Board did not sustain all of its charges.
(A) If the agency so indicated, the Board may:
(1) Impose the lesser penalty the agency indicated it would have imposed; or
(2) If the Board cannot discern what that penalty would have been, accord the agency an opportunity to institute a lesser penalty.
(B) If the agency did not so indicate, the Board may:
(1) Mitigate the agency's original penalty to the maximum reasonable penalty; or
(2) Accord the agency an opportunity to institute a lesser penalty.
(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) Shows harmful error in the application of the agency's procedures in arriving at its decision (as defined in § 1201.4(r));
(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.
(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; 91 FR 56574, Sept. 3, 2026]