The MSPB retires the mandatory Douglas framework

The Merit Systems Protection Board published a final rule on 3 September 2026 changing how it reviews the penalty an agency chooses in a misconduct case.¹ Under it the Board “will no longer require consideration of the 12 factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), in every case”; instead it “will 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.”¹² The Board’s own heading for the change is “Retirement of the Mandatory Douglas Framework” — it argues the factors “were never mandatory in every particular,” and that the replacement phrase is “the formulation drawn from Douglas itself, 5 M.S.P.R. at 306.”¹ The rule takes effect 5 October 2026 and applies to appeals filed on or after that date, with appeals already pending “adjudicated under the framework in effect when they were filed.”¹ It is one of four 2026 rules changing what becomes of a federal employee’s appeal, and the only one to leave the appeal with the Board while changing the test it applies (see OPM replaces the MSPB on reduction-in-force appeals and bars judicial review, OPM takes probationary appeals from the MSPB too and OPM replaces the MSPB for suitability appeals too).³

1. The operative change is a standard of review, and its reach is narrow. New § 1201.56(b)(3) applies “only to appeals filed under 5 U.S.C. 7513” — the adverse-action provision covering removal, suspension for more than fourteen days, reduction in grade or pay, and furlough of thirty days or less — and provides that “[t]he agency’s choice of penalty is entitled to substantial deference.”¹⁴ Where all charges are sustained, the Board “will not substitute its judgment for the judgment of the deciding official”; where the penalty falls outside tolerable limits, the Board “may mitigate the agency’s original penalty to the maximum reasonable penalty” — a ceiling the Board attributes not to this rule but to the Federal Circuit in Lachance v. Devall, which it says “binds the Board with or without this rule.”¹⁵ Where only some charges are sustained, a separate branch applies: if the agency said what lesser penalty it would have imposed the Board may impose it, and otherwise the Board may “accord the agency an opportunity to institute a lesser penalty.”¹ Outside § 7513 nothing changes. In performance-based appeals under chapter 43 the Board does not review penalty at all “because it lacks authority to mitigate chapter 43 actions,” and in other penalty appeals — “including actions taken against members of the Senior Executive Service under 5 U.S.C. 7543” — “the Board’s existing precedent continues to apply unless the Board in the future holds otherwise, either via regulation or case law.”¹ Douglas therefore survives indefinitely for senior-executive penalty review.

2. The Board is precise about what it says it is not doing. Recording a commenter’s argument that a standard under which no particular set of factors must be considered “gives employees no assurance that anything in particular will count,” it wrote: “What the rule does not do: It does not declare any consideration irrelevant.”¹ The considerations Douglas identified — nine, in the Board’s own summary, including the nature and seriousness of the offence, the employee’s position and responsibilities, the disciplinary and work record, consistency with penalties for similarly situated employees, the effect of the offence on the employee’s ability to perform and on supervisory confidence, clarity of notice, potential for rehabilitation, mitigating circumstances and the adequacy of alternative sanctions — “remain available to the parties and to the Board wherever they are material to the reasonableness of the penalty in the case at hand.”¹² What ends is “the treatment of the twelve factors as a compulsory analytic code”: the expectation of recitation in every case, “the litigation of penalty appeals as audits of factor-recitation,” and the premise that an otherwise reasonable penalty may be disturbed because a decision letter or an initial decision “did not march through an enumerated list.”¹ The agency still “bears the burden of proving its case, including the reasonableness of its penalty, by a preponderance of the evidence” under 5 U.S.C. 7701(c)(1)(B), and the rule “effects no change to the requirement that aggravating factors relied upon in penalty selection be identified in the advance notice of proposed action.”¹⁶

3. The authority argument is that Douglas was always the Board’s own. “The Board has ample authority for this rule,” it writes, because “the Douglas factors appear nowhere in the CSRA”: Congress enacted a standard — action “only for such cause as will promote the efficiency of the service” — and a burden of proof, “and left the methodology of penalty review to the Board,” under 5 U.S.C. 1204(h) and 7701(k).¹ Hence: “[t]he Board articulated one methodology in 1981 through adjudication (in Douglas); it may refine that methodology in 2026 through notice-and-comment rulemaking.”¹ Commenters contested the premise. The Board records Commenter 0647 as arguing the factors were compelled by the Civil Service Reform Act’s bar on penalties that are arbitrary, capricious or an abuse of discretion; another as arguing that a regulation cannot make material evidence optional by deleting the name of the framework in which courts have considered it, so the change is either semantic or invites reversal under 5 U.S.C. 7703(c); and Commenter 0559 as arguing that retiring Douglas while codifying Devall deference compounds a loss of transparency.¹ The Board’s answer is that the rule “neither adopts a rubber stamp nor purports to displace the Federal Circuit’s penalty-review precedent. On the contrary, the rule codifies this precedent.”¹

4. The evidentiary dispute is where the numbers are. Approximately 676 unique comments were filed on the joint docket.¹ Commenter 0647 presented data from the Board’s own annual reports: penalties were mitigated in “roughly 6.4 percent of adjudicated cases in FY 1986 and 4.7 percent in FY 1990, and in roughly 1.6 to 2.0 percent of adjudicated cases in each sampled year from FY 2000 through FY 2025.”¹ Commenter 0642 was “a letter from three United States Senators and three Members of the House of Representatives who represent the civilian workforce at the Portsmouth Naval Shipyard,” urging withdrawal.¹ On the other side, several commenters “expressed strong support for the proposed rule as a whole,” “including two Federal executive departments.”¹ The Board’s answer to the evidentiary objection is that “[n]othing in the Administrative Procedure Act requires an agency to substantiate a change of this kind with statistical studies; it requires a reasoned explanation,” an agency changing position “need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one.”¹⁷

The rule is the Board’s half of a joint notice of proposed rulemaking with the Office of Personnel Management published 2 July 2026, which carried two sets of proposals under two grants of authority — OPM’s on 5 CFR parts 412, 432, 715 and 752, the Board’s on 5 CFR 1201.56.⁸ Commenters objected that joint authorship with OPM sat badly with the Board’s statutory duty to review OPM’s rules; the Board answered that finalising “only its own proposal in this document, under its own title, on its own analysis, and on its own timetable, is itself a demonstration of that independence.”¹ Its response refers to “the separate final rule OPM is issuing in this proceeding.”¹ As of this rule’s publication no OPM final rule had appeared in the Federal Register under RIN 3206-AO91.⁹