Federal Discipline Without the Douglas Factors: What a New OPM-MSPB Rule Would Change
A new joint proposal from the Office of Personnel Management (OPM) and the Merit Systems Protection Board (MSPB) would retire the Douglas factors, the 45-year-old framework that has required federal agencies to weigh an employee's record before disciplining them. If finalized, the rule would replace that framework with a vaguer "totality of the circumstances" standard, and federal employees have only 30 days to weigh in before it becomes final.
What Are the Douglas Factors
Since the Merit Systems Protection Board's 1981 decision in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), federal agencies have been required to consider twelve factors before imposing discipline on an employee, including the nature and seriousness of the offense, the employee's length of service and work record, and whether a lesser penalty would be adequate. The Douglas factors don't guarantee an employee keeps their job, but they guarantee that someone has to actually look at the whole picture before taking it away.
What the Proposed Rule Would Change
On July 2, 2026, OPM and the MSPB jointly published a proposed rule in the Federal Register, "Promoting Employee Accountability," that would replace the Douglas factors analysis with a new standard under proposed 5 C.F.R. § 1201.56(b)(3): whether an agency's chosen penalty falls within the "tolerable limits of reasonableness" based on the totality of the circumstances. Unlike the current framework, the proposed rule states that "no particular set of factors must be considered in every case." The proposal would also make it optional, and narrower, for employees to point to coworkers who received lighter discipline for similar conduct, a comparison that has long been one of the strongest tools available to challenge unequal treatment.
Why the Timing and Authorship Raise Questions
Federal agencies already prevail in the large majority of adverse action appeals before the Board. That track record makes it fair to ask what problem this proposal is actually solving. It is also worth noting that the Douglas decision itself cautioned against applying its factors mechanically, and the new proposal cites that same 1981 warning as a reason to eliminate the framework altogether, rather than to apply it more carefully. And because the MSPB, the board that is supposed to independently review agency discipline, co-authored this rule with OPM, the agency whose personnel policies it is meant to check, employees facing discipline should understand that the referee had a hand in writing the new rules.
What Federal Employees Can Do Right Now
This rule is not final. OPM and the MSPB are accepting public comments for 30 days from publication, and federal employees can submit comments describing what the twelve factors have meant in their own careers by searching for the "Promoting Employee Accountability" proposed rule at regulations.gov. Separately, if you are currently facing a proposed removal, demotion, or suspension, the Douglas factors still apply to your case today, and your window to respond is short.
The Bottom Line
Forty-five years of built-in fairness shouldn't disappear with less time to weigh in than most agencies give an employee to respond to a proposed removal. Whether you're commenting on the rule or facing discipline under the current framework, timing matters.
If you're facing a proposed adverse action and want to understand your rights under the Douglas factors while they still apply, Southworth PC represents federal employees nationwide and offers free consultations.
Legal Disclaimer: This content is for general informational purposes only and does not constitute legal advice. Federal employment situations are fact-specific and time-sensitive. Please consult a qualified federal employment attorney about your specific situation. You can contact Southworth PC at attorneysforfederalemployees.com.