Power Grab/Fire anyone who can stop him
The Merit Systems Protection Board ends its requirement that federal employee penalties be weighed against the 12 Douglas factors
The final rule, published September 3, 2026 and effective October 5, applies to misconduct appeals filed on or after that date; AFGE said the change invites arbitrary decisions.
What happened
On September 3, 2026, the Merit Systems Protection Board published a final rule ending its requirement that the 12 Douglas factors be weighed in every misconduct-based adverse action appealed to the Board. The rule is titled “Determining the Appropriate Penalty for Federal Employees Charged With Misconduct.”
The Board now asks whether the agency’s penalty falls within the tolerable limits of reasonableness given the totality of circumstances. It may mitigate only to the maximum reasonable penalty. The Board called the factors rigid and mechanistic. The rule took effect October 5, 2026 and applies to appeals filed on or after that date. Pending appeals use the prior framework. AFGE said the change invited arbitrary decisions.
Who benefited
Federal agencies that fire or discipline employees now face a lighter review when the employee appeals. The Board asks only whether the penalty is within “tolerable limits of reasonableness.” It may mitigate only down to the maximum reasonable penalty, not to a lower one it prefers.
Who wanted something
The Board itself changed the rule, calling the Douglas factors “rigid and mechanistic.” The record names no outside requester. The rule gives agencies broader room to set penalties and gives the Board less to weigh on appeal.
Who lost out
Federal employees appealing a misconduct penalty lose the guarantee that the Board will weigh the 12 Douglas factors in their case. AFGE said the change invited arbitrary decisions. The rule applies to appeals filed on or after October 5, 2026; employees with pending appeals keep the prior framework.
Why it matters
Under the new rule, a penalty survives review if it falls within “tolerable limits of reasonableness,” whether or not each factor was weighed. The Board no longer asks for the 12-factor analysis in every appeal. AFGE’s concern is that outcomes will vary from case to case.
Sources Federal Register (GovInfo) (primary)Federal News NetworkFedWeekBloomberg Law