§ 1210.18 Burden of proof, standard of review, and penalty.

(a) Agency. Under 5 U.S.C. 7701(c)(1), and subject to exceptions stated in paragraph (c) of this section, the agency (the Department of Veterans Affairs) bears the burden of proving that an appellant engaged in misconduct, as defined by 38 U.S.C. 713(g)(2), or poor performance, and the Secretary's determination as to such misconduct or poor performance shall be sustained only if the factual reasons for the charge(s) are supported by a preponderance of the evidence. Proof of misconduct or poor performance shall create a presumption that the Secretary's decision to remove or transfer the appellant was warranted. The appellant may rebut this presumption by establishing that the imposed penalty was unreasonable under the circumstances of the case. The following examples illustrate the application of this rule: (b) Appellant. The appellant has the burden of proof, by a preponderance of the evidence, concerning: (1) Issues of jurisdiction; (2) The timeliness of the appeal; and (3) Affirmative defenses. (c) Affirmative defenses. Under 5 U.S.C. 7701(c)(2), the Secretary's determination may not be sustained, even where the agency met the evidentiary standard stated in paragraph (a) of this section, if the appellant shows that: (1) The agency, in rendering its determination, committed harmful error in the application of its procedures; (2) The decision was based on any prohibited personnel practice described in 5 U.S.C. 2302(b); or (3) The determination is not otherwise in accordance with law. (d) Penalty review. As set forth in paragraph (a) of this section, proof of the agency's charge(s) by preponderant evidence creates a presumption that the Secretary's decision to remove or transfer the appellant was warranted. An appellant may rebut this presumption by establishing that the imposed penalty was unreasonable under the circumstances of the case, in which case the action is reversed. However, the administrative judge may not mitigate the Secretary's decision to remove or transfer the appellant.