Farewell, Douglas Factors

The Douglas Factors are officially out. 

The Merit Systems Protection Board (MSPB) has amended its regulations, and federal agencies are no longer required to consider the Douglas factors. The Douglas factors are a 12-factor test that has been used for decades to determine the reasonableness of an agency’s penalty in disciplinary cases.  Instead, federal agencies will only be required to explain why their chosen penalty is reasonable given the “totality of the circumstances.”  MSPB’s new regulations were published on September 3, 2026, and they will go into effect next Monday, October 5, 2026.

Does this mean that federal agencies will no longer consider the Douglas factors?  Not necessarily.  This new rule only says that agencies are no longer required to consider the Douglas factors in every case.  Bottomline: You can’t catch them on a technicality if they forget to include all 12 factors in your decision letter.  However, it is likely that agencies will still consider some of the Douglas factors in future disciplinary cases. For example, it is hard to imagine a deciding official would not consider the first Douglas factor (nature and seriousness of the misconduct) in most situations.  

Regardless of whether an agency continues to consider the Douglas factors, remember that they must still prove that their action promotes the efficiency of the federal service and prove the reasonableness of their penalty. Plus, they must also still comply with the procedural requirements of 5 U.S.C. Chapter 75 (including advance notice, required timelines, right to reply, etc.), if applicable.

Want to learn more?

A more in-depth look at the Douglas factors can be found here.

You can also find more information on disciplinary and adverse actions here and information on MSPB appeals here.