On September 2, 2026, the Merit Systems Protection Board (MSPB) issued a final rule modifying its prior longstanding Douglas factor precedent.
The Douglas factor analysis derives from the MSPB’s decision in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), which set out a list of 12 factors which the MSPB deemed relevant in assessing the reasonableness of the penalty imposed by an agency in a disciplinary case. Penalties which were deemed to exceed the bounds of reasonableness were subject to reduction (“mitigation”) by the MSPB in certain circumstances.
Unusually for a quasi-judicial forum, the MSPB opted to revise its 25 year old precedent by way of a rulemaking rather than by issuing a new precedential decision in a pending case. The MSPB claimed that the new rule would serve to codify the general burdens of proof for MSPB penalty determinations, as defined previously by the MSPB’s chief reviewing court (the U.S. Court of Appeals for the Federal Circuit) in Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999). In doing so, the MSPB in its final rule declared that agencies would no longer be required to consider all 12 of the Douglas factors automatically in every case. In its place, the MSPB indicted that any or all of the Douglas factors could still be cited to in a given case—the consideration simply would no longer be automatic, and instead would require one of the parties to raise the issue. As the MSPB instructs, “Parties remain free to raise them; absent direction otherwise from OPM, deciding officials remain free to address them; and the Board and its administrative judges will weigh relevant record evidence bearing on them.” The MSPB further noted that “the rule expressly leaves intact the case law requiring that aggravating factors relied upon for the penalty be identified in the advance notice, on pain of reversal on due process grounds.” The MSPB claimed that earlier precedent on Douglas factor analysis from Federal Circuit still remains in force, and denied that the rule “adopts a rubber stamp” for agency penalty decisions. The MSPB advised that “Nothing in the rule requires agencies to discard existing training or internal analytic aids, and deciding officials remain free to organize their analyses around the considerations Douglas identified where they fit the case […]” The MSPB also recognized that its rule could be overturned by the Federal Circuit (if, for example, the court found that the new rule violated prior Federal Circuit decisions regarding the Douglas factor standard).
The new rule comes into effect on October 5, 2026. The MSPB noted that the new rule was not retroactive in effect, and that “the amended § 1201.56 standard applies to appeals filed with the Board on or after the effective date of this rule, and appeals pending before the Board on the effective date will be adjudicated under the framework in effect when they were filed.”
If you are a federal employee or applicant facing a disciplinary action, and wish to discuss your rights, consider contacting Gilbert Employment Law to request an initial consultation.