5 C.F.R. § 1201.56

Burden and degree of proof

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(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

(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.

(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]

Notes of Decisions

Cited in 1,200 cases (387 in the last 5 years), 1980–2026 · leading case: Garcia v. Dep't of Homeland Sec., 437 F.3d 1322 (Fed. Cir. 2006).

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Garcia v. Dep't of Homeland Sec., 437 F.3d 1322 (Fed. Cir. 2006). · cites it 16× “See 5 C.F.R. § 1201.56 (2004). Since Cmz, the typical procedure in constructive adverse action cases first grants a claimant a jurisdictional hearing if the employee makes non-frivolous allegations that, if proven, could establish the Board’s jurisdiction.”

Ward v. United States Postal Serv., 634 F.3d 1274 (Fed. Cir. 2011). · cites it 3× “1983); see 5 C.F.R. § 1201.56 (b)(1). The Board’s regulations define “harmful error” as an “[e]rror 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…”

Whitmore v. Dep't of Labor, 680 F.3d 1353 (Fed. Cir. 2012). · cites it 2× “The AJ’s Decision on Whitmore’s Whistleblower Defense The AJ correctly understood that in the burden shifting scheme for whistleblower cases, the agency must first prove its case for removal by a preponderance of the evidence, 5 C.F.R. § 1201.56 , then the former employee must…”

Coulibaly v. Kerry, 213 F. Supp. 3d 93 (D.D.C. 2016). · cites it 2× “§ 2302 (b) or 5 C.F.R. § 1201.56 , those authorities do not contain a private right of action.”

Todd R. Haebe v. Dep't of Just., 288 F.3d 1288 (Fed. Cir. 2002). “” 5 C.F.R. § 1201.56 (c)(2) (2001). Our review is to determine whether the MSPB had substantial evidence to conclude that the DEA so proved its case, but in evaluating substantial evidence we review whether the MSPB properly applied the demeanor-based deference requirement.”

Bledsoe v. Merit Sys. Prot. Bd., 659 F.3d 1097 (Fed. Cir. 2011). · cites it 2× “5 C.F.R. § 1201.56 (a)(2) states that the "appellant has the burden of proof, by a preponderance of the evidence, with respect to .”

Gilbert H. Shaw v. United States Postal Serv., 697 F.2d 1078 (Fed. Cir. 1983). · cites it 4× “5 CFR § 1201.56 (c)(3) (1980). The agency notice to petitioner here was no more than pro forma.”

Makky v. Chertoff, 541 F.3d 205 (3rd Cir. 2008). “*217 Under the regulations governing the due process rights of TSA employees, the burden is on Makky to show that he suffered harmful error, which is “[e]rror by the agency in the application of its procedures that is likely to have caused the agency to reach a conclusion…”

Cornelius v. Nutt, 472 U.S. 648 (1985). · cites it 2× “" 5 CFR § 1201.56 (c)(3) (1985). [11] *659 The agency's "procedures" considered by the Board in applying § 7701(c)(2)(A) include not only procedures required by statute, rule, or regulation, [12] but also procedures required by a collective-bargaining agreement between the…”

Rommie Requena v. Dep't of Homeland Sec., 2022 MSPB 39 (MSPB 2022). “§ 7701 (c)(1); 5 C.F.R. § 1201.56 (a), (b); see also Gonzalez v.”

Randall Desjardin v. U.S. Postal Serv., 2023 MSPB 6 (MSPB 2023). “6 A preponderance of the evidence is “[t]he 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.”

Mikhail Semenov v. Dep't of Vets. Affairs, 2023 MSPB 16 (MSPB 2023). “5 C.F.R. § 1201.56 (b)(2)(i)(C). 5 In Rodriguez, as here, the deciding official appeared to have applied the substantial evidence standard in sustaining the charges.”

Show all 1,200 citing cases →

— 5 C.F.R. § 1201.56(2)(i) — 1 case

Fields v. Merit Sys. Prot. Bd., 544 F. App'x 981 (Fed. Cir. 2013).

— 5 C.F.R. § 1201.56(6)(2) — 1 case

Squires v. Merit Sys. Prot. Bd. (E.D.N.C. 2019).

— 5 C.F.R. § 1201.56(a) — 1 case

Simeon L. Corpuz v. Off. of Pers. Mgmt., 878 F.2d 1444 (Fed. Cir. 1989).

— 5 C.F.R. § 1201.56(a)(1) — 1 case

Bobby H. Mitchum v. Tennessee Valley Auth., 756 F.2d 82 (Fed. Cir. 1985).

— 5 C.F.R. § 1201.56(a)(2) — 6 cases

Watson v. Dep't of the Navy, 262 F.3d 1292 (Fed. Cir. 2001).

Kenneth Massingale v. Merit Sys. Prot. Bd., 736 F.2d 1521 (Fed. Cir. 1984).

Russell v. Off. of Pers. Mgmt., 120 F. App'x 802 (Fed. Cir. 2004).

Michael E. Pollak v. Off. of Pers. Mgmt. (MSPB 2015).

Oscar L. Thomas v. Merit Sys. Prot. Bd., 976 F.2d 747 (Fed. Cir. 1992).

— 5 C.F.R. § 1201.56(a)(2)(i) — 7 cases

Dr. R. Michael Harding v. Dep't of Vets. Affairs, 448 F.3d 1373 (Fed. Cir. 2006).

Doyle v. Dep't of Vets. Affairs, 273 F. App'x 961 (Fed. Cir. 2008).

Marassa v. United States Postal Serv., 249 F. App'x 177 (Fed. Cir. 2007).

Wheaton v. Merit Sys. Prot. Bd., 267 F. App'x 927 (Fed. Cir. 2008).

Harding v. Dept. Of Vets. Affairs (Fed. Cir. 2006).

— 5 C.F.R. § 1201.56(b) — 1 case

Moore v. Def. Logistics Agency, 670 F. Supp. 800 (N.D. Ill. 1987).

— 5 C.F.R. § 1201.56(b)(1) — 2 cases

Lawrence D. Hoffman v. Vets. Admin., 833 F.2d 1023 (Fed. Cir. 1987).

Bell v. Mattis (D.D.C. 2019).

— 5 C.F.R. § 1201.56(b)(1)(ii) — 1 case

Robert Miller v. Dep't of Def. (MSPB 2023).

— 5 C.F.R. § 1201.56(b)(2) — 1 case

Charles Patrick Meehan v. United States Postal Serv., 718 F.2d 1069 (Fed. Cir. 1983).

— 5 C.F.R. § 1201.56(b)(2)(i)(B) — 1 case

Cornelia White v. Dep't of Health & Human Servs. (MSPB 2016).

— 5 C.F.R. § 1201.56(b)(2)(i)(a) — 1 case

John Suggs v. Gov't Publ'g Off. (MSPB 2024).

— 5 C.F.R. § 1201.56(b)(2)(ii) — 2 cases

Villaruel v. Opm (Fed. Cir. 2018).

Tina Kormanik v. Off. of Pers. Mgmt. (MSPB 2026).

— 5 C.F.R. § 1201.56(c)(2) — 2 cases

Barry L. Hale & Judson B. Hudson v. Dep't of Transp., Fed. Aviation Admin., 772 F.2d 882 (Fed. Cir. 1985).

Bodine v. United States, 14 Cl. Ct. 661 (Ct. Cl. 1988).

— 5 C.F.R. § 1201.56(c)(3) — 4 cases

Gilbert H. Shaw v. United States Postal Serv., 697 F.2d 1078 (Fed. Cir. 1983). “5 CFR § 1201.56 (c)(3) (1980). The agency notice to petitioner here was no more than pro forma.”

Leonard L. Lisiecki v. Merit Sys. Prot. Bd., 769 F.2d 1558 (Fed. Cir. 1985).

Stevens v. Dep't of the Air Force, 395 F. App'x 679 (Fed. Cir. 2010).

Singleton v. United States Postal Serv., 259 F. App'x 311 (Fed. Cir. 2007).

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