The MSPB Retires the Douglas Checklist: What Changes in Misconduct Appeals Filed After October 5

Bottom line

“What ends is the treatment of the twelve factors as a compulsory analytic code,” the Merit Systems Protection Board writes in a final rule published today ^[1]. From October 5, the Board will ask whether an agency’s penalty for misconduct is within “the tolerable limits of reasonableness” in light of the totality of the circumstances, with no set list of factors required in every case ^[1]. Appeals already pending stay under the old framework; anything filed on or after October 5 does not ^[1].

What happened

The old test. In Douglas v. Veterans Administration, decided in 1981, the Board listed 12 factors relevant to whether a penalty was reasonable ^[2]. They include the nature and seriousness of the offense, the employee’s past disciplinary and work record, consistency with penalties given to others for similar conduct, consistency with any agency table of penalties, clarity of notice, potential for rehabilitation and mitigating circumstances ^[2]. Douglas called the list nonexhaustive, and the Federal Circuit said in 1983 that it was not a checklist to be addressed “one by one” ^[2]. The factors spread through agency policies, OPM guidance and Board case law anyway ^[2].

The proposal. On July 2, OPM and the Board published a joint proposal under the title “Promoting Employee Accountability” ^[2]. The Board’s part was narrow: retire factor-by-factor review in chapter 75 appeals ^[2]. OPM’s part was broad. It would bar agencies from using tables of penalties, among other changes ^[2], and Government Executive reported it would also cut performance improvement plans to 30 days, ban settlements that clean a disciplinary record, and bar union official time for adverse action appeals ^[3]. The Board wrote that agencies “regularly rely on standardized ‘Douglas worksheets’ as if they were legally compulsory” and that this “checklist-centered mindset” had overshadowed the statutory question of whether a penalty promotes the efficiency of the service ^[2].

The comments. The comment period ran 32 days, July 2 to August 3 ^[1]. The Board counted about 676 unique comments on the joint docket and declined requests to extend it ^[1]. Opponents included six members of Congress representing workers at Portsmouth Naval Shipyard, who argued a case-by-case test “could allow agencies to ignore important mitigating factors,” in the Board’s summary, and urged withdrawal ^[1]. One commenter, citing the Board’s own annual reports, put mitigation at roughly 1.6 to 2.0 percent of adjudicated cases in sampled years from FY 2000 through FY 2025 ^[1]. Another noted that agencies prevail in more than 80 percent of cases before the Board ^[1]. Two federal executive departments supported the rule ^[1].

Raymond Limon, a Board member from 2021 to February 2025, told Government Executive in July that the proposal “assumes that Douglas is the disease, but it may simply be the stethoscope” ^[3]. Michael Fallings, a federal employment lawyer, called the new standard vague: “‘Totality’ is just a vague way of saying that we’re going to consider factors” ^[3].

The final rule. The Board adopted its regulatory text without change ^[1]. New 5 CFR 1201.56(b)(3) says the agency’s choice of penalty “is entitled to substantial deference” ^[1]. If the Board sustains every charge, it will not substitute its judgment for the deciding official’s; if the penalty is unreasonable, it may cut it to “the maximum reasonable penalty” ^[1]. If only some charges are sustained, the Board may mitigate, or let the agency impose a lesser penalty, depending on whether the agency said in advance what it would want in that case ^[1]. That last structure comes from a 1999 Federal Circuit decision, Lachance v. Devall, and is now written into regulation for the first time ^[1].

Bloomberg Law, which reported the rule when it was released on September 2, described it as giving agencies more leeway in discipline ^[4]. The Board’s answer is that the legal question has not moved: the agency must still prove by a preponderance of the evidence that its penalty is reasonable, and “material mitigating evidence cannot lawfully be passed over in silence” ^[1].

What it means for you

If you have an appeal pending at the Board. Nothing changes. Appeals pending on October 5 are decided under the framework in effect when filed ^[1].

If you are facing a proposed action now. Watch the calendar. The Board ties the new standard to the date an appeal is filed, not the date of the proposal or decision ^[1]. A removal proposed under the old framework in September and appealed in October is reviewed under the new one. The Board says that does not prejudice anyone, because a reply built around the Douglas considerations remains “fully probative” ^[1]. Readers should note that the 12 considerations are still usable; you may raise any of them, and the Board says it will weigh relevant evidence on them ^[1]. What you can no longer win on is an agency’s failure to march through the list ^[1].

What still binds the agency. The rule does not change which actions are appealable, who may appeal, the agency’s burden of proof, affirmative defenses, or judicial review under 5 U.S.C. 7703 ^[1]. An agency that relies on aggravating factors must still put them in the advance notice, or risk reversal on due process grounds ^[1].

Union-represented employees. The Board says arbitrators deciding grievances over matters that could have gone to the Board must apply its standard, under 5 U.S.C. 7121(e)(2) and the Supreme Court’s 1985 decision in Cornelius v. Nutt ^[1]. It expects the same prospective timing in arbitration ^[1]. It also says it does not administer grievance procedures ^[1], so how individual arbitrators apply the filing-date line is not settled by this rule.

Supervisors and HR offices. Nothing requires you to discard Douglas worksheets or training ^[1]. The preamble says deciding officials “remain free to address” the factors, “absent direction otherwise from OPM” ^[1]. That qualifier matters. OPM’s companion rule, including the proposed ban on penalty tables, is being finalized separately and had not been published as of this memo ^{[1, 2]}. The Army had already moved on its own; the July 29 memo covered its fast-track removal directive.

Who is outside the rule. Performance-based actions under chapter 43, where the Board says it cannot mitigate penalties, and Senior Executive Service actions under 5 U.S.C. 7543, where existing precedent still applies ^[1]. A request from law enforcement commenters for their own exclusion or factor list was declined ^[1]. Contractor staff have no Board appeal rights, and nothing in the rule reaches them ^[1].

Questions you’re probably asking

Are the Douglas factors gone for federal employee discipline?

Not as considerations. The Board says seriousness, work record, consistency, rehabilitation and mitigating circumstances still count wherever they matter to the case ^[1]. What ends is the requirement that all 12 be addressed in every case ^[1].

Does the new MSPB penalty standard apply to my appeal that is already pending?

No. Appeals pending on October 5, 2026 will be decided under the framework in effect when they were filed ^[1]. The new standard applies to appeals filed on or after that date ^[1].

If I am removed in September but appeal after October 5, which standard applies?

The new one. The Board keyed the change to the filing date of the appeal, not the date the action was proposed or decided ^[1].

Does the Douglas change affect union arbitration of removals?

The Board says yes, on the same timetable. Under 5 U.S.C. 7121(e)(2), arbitrators hearing grievances over matters appealable to the Board must apply the Board’s standards ^[1].

Does the rule change performance-based removals under chapter 43?

No. It covers appeals of chapter 75 actions under 5 U.S.C. 7513, and the Board says it has no authority to mitigate chapter 43 penalties in any case ^[1].

What I’m watching

• October 5, 2026: the rule takes effect for newly filed appeals ^[1].
• No date set: OPM’s separate final rule on penalty tables, improvement periods and official time ^{[1, 2]}.
• After October 5: the first Board decisions applying 1201.56(b)(3), and whether any reach the Federal Circuit ^[1].