Merit board drops the mandatory Douglas factors from its review of federal employee penalties
The Merit Systems Protection Board issued a final rule ending its requirement that the twelve Douglas factors be considered in every misconduct-based adverse action appealed to the Board, replacing that test with a case-by-case assessment of whether the agency's chosen penalty is within the tolerable limits of reasonableness.
What happened
The rule was published in the Federal Register on September 3, 2026 and is effective October 5, 2026. Under it the Board evaluates whether an agency's penalty falls within the tolerable limits of reasonableness in light of the totality of the circumstances, determined case by case, rather than working through the twelve factors set out in Douglas v. Veterans Administration. The rule amends the Board's regulations governing its review of the reasonableness of an agency's chosen penalty. It carries a separate applicability date: the amendments apply to appeals filed with the Board on or after October 5, 2026, and appeals pending before the Board on the effective date are adjudicated under the framework in effect when they were filed.
Why it matters
The Douglas factors are the structured test an employee uses to argue that a firing was disproportionate to the conduct charged. Removing the requirement that the Board work through them narrows the ground on which a removal can be contested, which bears on how much friction an agency meets when it removes someone who has refused an instruction.