[Code of Federal Regulations]
[Title 4, Volume 1]
[Revised as of January 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 4CFR28.61]

[Page 47-48]
 
                            TITLE 4--ACCOUNTS
 
               CHAPTER I--GOVERNMENT ACCOUNTABILITY OFFICE
 
PART 28_GOVERNMENT ACCOUNTABILITY OFFICE PERSONNEL APPEALS BOARD; PROCEDURES 
 
                          Subpart B_Procedures
 
Sec.  28.61  Burden and degree of proof.

    (a) In appealable actions, as defined by 5 U.S.C. 7701(a), agency 
action must be sustained by the Board if:
    (1) It is a performance-based action and is supported by substantial 
evidence; or
    (2) It is brought under any other provision of law, rule, or 
regulation as defined by 5 U.S.C. 7701(a) and is supported by a 
preponderance of evidence.
    (b) Notwithstanding paragraph (a) of this section, the agency's 
decision shall not be sustained if the petitioner:
    (1) Shows harmful error in the application of the agency's 
procedures in arriving at such decision;
    (2) Shows that the decision was based on any prohibited personnel 
practice described in 4 CFR 2.5; or
    (3) Shows that the decision was not in accordance with law.
    (c) In any other action within the Board's jurisdiction, the 
petitioner shall have the responsibility of presenting the evidence in 
support of the action and shall have the burden of proving the 
allegations of the appeal by a preponderance of the evidence.
    (d) Definitions. For purposes of this section, the following 
definitions shall apply:

[[Page 48]]

    Harmful error means error by the agency in the application of its 
procedures which, in the absence or cure of the error, might have caused 
the agency to reach a conclusion different from the one reached.
    Preponderance of the evidence means that degree of relevant evidence 
which a reasonable person, considering the record as a whole, would 
accept as sufficient to support a conclusion that the matter asserted is 
more likely to be true than not true.
    Substantial evidence means that degree of relevant evidence which a 
reasonable person, considering the record as a whole, might accept as 
adequate to support a conclusion, even though other reasonable persons 
might disagree. This is a lower standard of proof than preponderance of 
the evidence.

[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69302, Dec. 12, 2003]