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.

Shifting MSPB Appeals

The move to shift appeals of reduction in force (RIF) actions, probationary and trial period terminations, and suitability actions from the Merit Systems Protection Board (MSPB) to the Office of Personnel Management (OPM) is nearly complete. 

Both OPM and MSPB issued final regulations to shift these three categories of appeals late this summer and the change took effect this month. All probationary and trial period terminations and RIF actions that are effective on September 2, 2026 or later must be appealed to OPM, and all suitability appeals filed after September 2, 2026 must be routed to OPM. The MSPB will only hear appeals of terminations and RIF actions that occurred prior to September 2, 2026 and suitability appeals that were filed prior to September 2, 2026.

Employees should also be aware that neither the MSPB’s website nor the MSPB appeal form have been fully updated yet. You may still see references to RIF, probationary, trial, and suitability appeals throughout. The MSPB has begun the process to update its appeal form with these changes, but the process will not be complete until later this year. (MSPB’s Proposed Appeal Form)

However, employees can visit OPM’s website and find instructions for each type of appeal (Probationary and Trial Period Appeals, RIF Appeals, and Suitability Appeals), and OPM is directing federal employees to file all new appeals through the OPM eFile system.

Employees should pay careful attention to ensure they do not mistakenly file an appeal with the wrong agency. Given these significant changes and evolving guidance, federal employees should consider contacting an experienced federal employment law attorney for assistance when filing these types of appeals.   

Want to learn more?

A more in-depth look at suitability determinations that may give rise to suitability appeals can be found here.

You can also find more information regarding reductions in force here and information regarding probationary and trial periods here.