The Trump administration proposed scrapping the Douglas factors, a 45-year-old federal framework that has guided employee discipline decisions since 1981, in favor of a vaguer standard that critics say could enable bias and politically motivated firings.
In a rule jointly proposed by the Office of Personnel Management and Merit Systems Protection Board in early July, officials argued the 12-factor framework had grown too rigid and discouraged managers from pursuing disciplinary action. The Douglas factors—established in a 1981 MSPB case and named for that decision—include considerations such as the severity of an offense, an employee’s past performance and conduct, and potential for rehabilitation.
“In proposing this departure from the 12-factor Douglas test, MSPB acknowledges that Douglas has long been a cornerstone of federal employment law,” the agencies wrote in the proposed rule. “However, over the ensuing decades, agencies and, occasionally, MSPB, have applied Douglas in a rigid, mechanistic way that the original decision never contemplated or prescribed.”
Instead, the proposal would require agencies to consider the “totality of circumstances” when determining discipline—a standard that federal employment attorneys argue is far less protective. “‘Totality’ is just a vague way of saying that we’re going to consider factors, but what they’re trying to say is, ‘We don’t have to consider certain factors that may sometimes be in favor of the employee,'” said Michael Fallings, managing partner at Tully Rinckey PLLC, a firm specializing in federal employment law.
The proposed regulations would also tighten timelines for disciplinary action. Performance improvement plans would be limited to a minimum of 30 days, employees would have just 10 days to respond to a disciplinary action, and agencies would have 30 days to carry out final action after issuing notice. The rule would also set removal as the default penalty for unacceptable performance, though agencies could impose a lesser penalty if they choose.
Raymond Limon, who served as a Democratically appointed member of MSPB from 2021 until February 2025, disputed the administration’s characterization of how the Douglas factors work in practice. Agencies have better than an 80 percent success rate before the board, he noted, suggesting the framework is not as restrictive as OPM and MSPB claim. “I feel like the proposed regulation assumes that Douglas is the disease, but it may simply be the stethoscope,” Limon said.
Limon also raised concerns about the fact that OPM and MSPB jointly proposed the rule, arguing it undermines a key principle of the Civil Service Reform Act. “The MSPB was designed by Congress to be an oversight body over OPM and that also to be an independent institution,” he said. “That’s why the Civil Service Reform Act was created: to split up the Civil Service Commission. The policy wing became OPM, and MSPB would do the commission’s adjudication work. Good fences make good neighbors, but they’re collapsing that.”
Public Employees for Environmental Responsibility and other advocacy groups warn the changes would open the door to politically motivated discipline. “What we are seeing is the methodical implementation of a system where nonpolitical career employees can be fired for doing their job correctly but inconveniently, and where they will have nowhere to go for a fair, independent second look,” Tim Whitehouse, executive director of PEER, told Federal News Network.
OPM Director Scott Kupor framed the changes as necessary to improve accountability. “Simply put, we have made the disciplinary and removal process too complicated and inefficient such that it’s easier for managers to ignore under-performance than to address,” Kupor said in a blog post. The rule also proposes requiring additional training for managers and supervisors on performance and misconduct issues—a measure long requested by good government groups.
The proposed rule builds on earlier Trump administration efforts to reshape federal employment rules, including a June executive order that reclassified approximately 8,000 career federal employees into a new Schedule Policy/Career category that strips them of civil service protections. The administration says these changes aim to hold employees accountable and ensure they carry out presidential directives, while opponents argue they dismantle merit system protections and due process rights.
Comments on the proposed Douglas factors rule were due by August 3, 2026.
Sources
- Government Executive — detailed reporting on the Douglas factors proposal, including criticism from former MSPB member Raymond Limon and federal employment attorney Michael Fallings
- FEDmanager — timeline changes and OPM Director Scott Kupor’s statement on the proposed rule
- Federal News Network — comprehensive coverage of the proposal, including commentary from Tim Whitehouse of PEER, Jules Torti of Protect Democracy, and Dan Meyer of Tully Rinckey
