Removal of Douglas Factors from MSPB Decisions

by Megan Penn, Esq.

Introducing the rulemaking

On September 3, 2026, the Merit Systems Protection Board (“MSPB”) issued a final rule amending its regulations regarding the MSPB’s review of misconduct-based adverse actions by federal employees. The final rule became effective on October 5, 2026. The MSPB is no longer required to consider the twelve factors set forth in its landmark case, Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981). Under the final rule, the MSPB is to evaluate whether the agency’s penalty is within the tolerable limits of reasonableness in light of the totality of the circumstances, determined on a case-by-case basis. 

What are the Douglas factors?

In Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), the Merit Systems Protection Board (“MSPB”) established the following list of factors that supervisors were to consider in determining the appropriate penalty to impose for an act of misconduct by a federal employee:

1. The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
2. The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
3. The employee’s past disciplinary record;
4. The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
5. The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect on supervisors’ confidence in the employee’s ability to perform assigned duties;
6. Consistency of the penalty with those imposed upon other employees for the same or similar offenses;
7. Consistency of the penalty with any applicable agency table of penalties;
8. The notoriety of the offense or its impact upon the reputation of the agency;
9. The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question; 
10. Potential for the employee’s rehabilitation;
11. Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and 
12. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.  The purpose of the Douglas factors was to ensure that federal agencies considered all relevant factors when taking adverse actions against their employees and that the penalty imposed by the agency was reasonable. 

What is the new standard?

The new standard implemented by the MSPB is whether the agency’s chosen penalty is within the tolerable limits of reasonableness in light of the “totality of the circumstances.” The MSPB explains that the considerations identified in Douglas may still be considered by the MSPB and that parties may continue to raise them when they are material to the reasonableness of the penalty in the case at hand. However, the factors are no longer to be considered as a “compulsory analytic code,” and the MSPB need not consider every Douglas factor in an enumerated list to justify the reasonableness of a penalty. The MSPB asserts that the purpose of the final rule is to make decisions as to employee’s penalties for misconduct less rigid and ensure that the decision applies to the specific circumstances of each individual case. 

Critics of the rule argue that the Douglas factors are not rigid and already serve as guidelines for MSPB appeals rather than an enumerated list that is strictly adhered to. Indeed, the MSPB stated in its Douglas decision that the factors were not to be evaluated mechanistically or with mathematical rigidity. 

What isn’t changing?

In its final rule, the MSPB assures that the rule does not affect its jurisdiction. Nor does it alter which actions are appealable to the MSPB, who may appeal, the agency’s burden of proof, the availability of affirmative defenses, or the availability of judicial review. Employees are to retain the same forum, procedural rights, and access to judicial review. The final rule also does not alter veterans’ preference rights or the appeal rights afforded by the Veterans Employment Opportunities Act. 

Additionally, the MSPB confirmed that nothing in the final rule alters the longstanding due process requirement that an agency intending to rely upon aggravating factors as a basis for its penalty must include those factors in the advance notice of the proposed action. This will continue to allow federal employees a fair opportunity to respond to such allegations and ensure due process. 

If you are a federal employee who is facing a proposed suspension or a proposed removal or is appealing an unfavorable adverse-action decision to the MSPB, please reach out to us immediately at (410) 514-6099 or complete the Contact Us form on our website so that we can discuss your matter.