Feds scrap decades-old misconduct penalty checklist in rule revamp
Published Date: 9/3/2026
Rule
Summary
The Merit Systems Protection Board (MSPB or Board) is issuing a final rule amending its regulations governing the Board's review of the reasonableness of an agency's chosen penalty in misconduct-based adverse actions appealed to the Board. Under the final rule, 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, the Board 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.
Analyzed Economic Effects
5 provisions identified: 3 benefits, 0 costs, 2 mixed.
Douglas Factors No Longer Mandatory
If you are a federal employee appealing a misconduct-based adverse action, the Board will no longer require that the 12 Douglas factors be considered in every case. Starting October 5, 2026, the Board will assess whether the agency's penalty is within the tolerable limits of reasonableness based on the totality of the circumstances in each case, and it codifies the Devall mitigation framework in 5 CFR 1201.56.
Advance Notice Must List Aggravators
The longstanding due process rule remains: if an agency intends to rely on aggravating factors to justify a harsher penalty, it must include those aggravating factors in the advance notice of the proposed action so the employee can respond. Failure to include aggravating factors in the advance notice can lead to reversal on constitutional due process grounds.
No Change To Appeal Rights Or Burdens
This rule does not change which actions are appealable to the Board, who may appeal, the agency's burden of proof under 5 U.S.C. 7701(c), the availability of affirmative defenses under 5 U.S.C. 7701(c)(2), or the availability of judicial review under 5 U.S.C. 7703. Veterans' preference rights and related protections (including disability and reprisal defenses) remain available.
Comparator Evidence Still Relevant
Evidence that similarly situated employees received materially different penalties for the same or similar conduct remains relevant under the Board's totality-of-the-circumstances review. The Board states that its existing precedent on comparators, including recent cases like Singh, is not disturbed by this rule.
When New Standard Applies
The new review standard applies to appeals filed with the Board on or after October 5, 2026. Appeals that are pending before the Board on October 5, 2026 will be decided under the framework that was in effect when they were filed.
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