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Home
	   Studies
		   	 Adverse Actions: A Primer in Pieces
      Second-Hand News Can be Misleading
      The Adverse Action Process - A Flowchart
      Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences
      Different Types of Adverse Actions Use Different Rules
      Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply
      Decision-Maker Must Listen and Have Power to Decide
      Connecting the Job and the Offense ("Nexus")
      Labels are Not Required, but if Used They Must be Proven
      Determining the Penalty
      How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty
      Avoid Facilitating Prohibited Personnel Practices (PPPs)
      Agency Officials' Substantive and Procedural Errors and How to Fix Them
      Identifying Probationers and Their Rights
      The Limited Powers of the U.S. Merit Systems Protection Board
      Why Federal Employees Have the Right to a Hearing
      How a Hearing is Conducted
      Implementing or Challenging Initial Decisions
      Additional Resources
  Search and Site Index *Determining the Penalty*

    The rules for determining the penalty, and the  ability of MSPB to review that penalty, depend on the statute being used by the  agency to authorize the adverse action.   As instructed by the U.S. Court of Appeals for the Federal Circuit  (“Federal Circuit”), MSPB has no role in evaluating an agency’s chosen penalty  for a case proven under chapter 43 of title 5 (the chapter for demotions and  removals based upon failure in a critical performance element).1
The language of chapter 75 (the chapter for  taking actions to protect the efficiency of the service, which can include  performance or conduct cases) does not explicitly provide that MSPB will  determine if the penalty is reasonable under the circumstances of the  case.  However, prior to the enactment of  the Civil Service Reform Act of 1978 (CSRA), the Board’s adjudicatory functions  were performed by the Civil Service Commission (CSC).  The CSC reviewed the reasonableness of  penalties.  After enactment of the CSRA,  the Board concluded that it was expected to assess penalties as its predecessor  agency had done.2 
The Board examined past court rulings and CSC  decisions regarding penalties and then summarized them into twelve (12) factors  that it would look at to determine if a penalty was unreasonable.  These factors are collectively known as the *Douglas* factors for the case that  articulated them and they are still in use today.3  “It is well established that the Board’s  jurisdiction [for chapter 75 cases] includes the authority to review the agency’s  penalty determination using the factors articulated in *Douglas v. Veterans Administration*.”4
The *Douglas* factors are:
(1) The nature and  seriousness of the offense, and its relation to the employee’s duties,  position, and responsibilities, including whether the offense was intentional  or technical or inadvertent, or was committed maliciously or for gain, or was  frequently repeated; 
(2) The employee’s job  level and type of employment, including supervisory or fiduciary role, contacts  with the public, and prominence of the position; 
(3) The employee’s past  disciplinary record; 
(4) The employee’s past  work record, including length of service, performance on the job, ability to  get along with fellow workers, and dependability; 
(5) The effect of the  offense upon the employee’s ability to perform at a satisfactory level and its  effect upon supervisors’ confidence in the employee’s ability to perform  assigned duties; 
(6) Consistency of the  penalty with those imposed upon other employees for the same or similar  offenses; 
(7) Consistency of the  penalty with any applicable agency table of penalties; 
(8) The notoriety of  the offense or its impact upon the reputation of the agency; 
(9) The clarity with  which the employee was on notice of any rules that where violated in committing  the offense, or had been warned about the conduct in question; 
(10) Potential for the  employee’s rehabilitation; 
(11) Mitigating  circumstances surrounding the offense such as unusual job tensions, personality  problems, mental impairment, harassment, or bad faith, malice or provocation on  the part of others involved in the matter; and 
(12) The adequacy and  effectiveness of alternative sanctions to deter such conduct in the future by  the employee or others.5
When applying these factors, the “determination  of an appropriate penalty is a matter committed primarily to the sound  discretion of the employing agency.  The  Board’s role is not to insist that the balance be struck precisely where the  Board would choose to strike it if the Board were in the agency’s shoes in the  first instance.”6  Instead, the question is whether “managerial  judgment has been properly exercised within the tolerable limits of  reasonableness.”7  
The Federal Circuit has instructed that:
When the Board sustains all of an agency’s  charges the Board may mitigate the agency’s original penalty to the maximum  reasonable penalty when it finds the agency’s original penalty too severe.  When the Board sustains fewer than all of the  agency’s charges, the Board may mitigate to the maximum reasonable penalty so  long as the agency has not indicated either in its final decision or during  proceedings before the Board that it desires that a lesser penalty be imposed  on fewer charges.8
The Federal Circuit, interpreting decisions by  the U.S. Supreme Court, has also held that, as a matter of due process, in  actions taken under 5 U.S.C. § 7513, the agency must notify the employee of the  factors it will consider regarding the penalty and provide the employee with  the opportunity to respond.9  As explained in our article, *Agency Officials’ Substantive and Procedural  Errors and How to Fix Them*,**because this is a matter of constitutional due process rights, an agency’s  failure to provide notice and a meaningful opportunity to respond regarding the  penalty is a violation of the employee’s substantive rights.  A chapter 75 action with such a violation  must be canceled, although the agency will be free to start over and take a  constitutionally correct action.10
   1*Lisiecki v. Merit Systems Protection Board*, 769 F.2d 1558, 1567 (Fed. Cir. 1985).  Additionally, the Board cannot review the  reasonableness of a penalty that is set by law.  *See, e.g.,**Semans v. Department of the Interior*, 62  M.S.P.R. 502, 508 (1994) (holding that because 31 U.S.C. § 1349(b) requires a  suspension of not less than one month for the use of a Government vehicle for  other than an official purpose, and the appellant’s actions were closely  analogous, it would be “inappropriate” for the Board to scrutinize whether the  agency’s penalty of a 30-day suspension was warranted).
      2 “It cannot be doubted,  and no one disputes, that the Civil Service Commission was vested with and  exercised authority to mitigate penalties imposed by employing agencies.  Nor can it be doubted that the federal courts  have regarded that authority as properly within the Commission’s power.”  *Douglas  v. Veterans Administration*, 5 M.S.P.R. 280, 290 (1981).
      3*Douglas v. Veterans Administration*, 5 M.S.P.R. 280 (1981).
      4*Archuleta v. Hopper*, 786 F.3d 1340, 1352 (Fed. Cir. 2015).  *See U.S.  Postal Service v. Gregory*, 534 U.S. 1, 5 (2001) (noting that “the agency  bears the burden of proving its charge by a preponderance of the evidence” and  that, “[u]nder the Board’s settled procedures, this requires proving not only  that the misconduct actually occurred, but also that the penalty assessed was  reasonable in relation to it”); *Lachance  v. Devall*, 178 F.3d 1246, 1256 (Fed. Cir. 1999) (holding that “the Board  inherited mitigation authority in misconduct actions from the old Civil Service  Commission”).
      5*Douglas v. Veterans Administration*, 5 M.S.P.R. 280, 305-06 (1981).
      6*Norris v. Securities and Exchange Commission*, 675 F.3d 1349, 1355  (Fed. Cir. 2012) (internal citations and punctuation omitted).
      7*Douglas v. Veterans Administration*, 5 M.S.P.R. 280, 302 (1981).
      8*Lachance v. Devall*, 178 F.3d 1246, 1260 (Fed. Cir. 1999); *see* *Gaines v. Department of the Air Force*, 94 M.S.P.R. 527, ¶  8 (2003); *Zayer v. Department of Veterans Affairs,* 90 M.S.P.R. 51, ¶ 8  (2001).
      9*Ward v. U.S. Postal Service*, 634 F.3d 1274, 1282 (Fed. Cir. 2011); *Stone v. Federal Deposit Insurance  Corporation*, 179 F.3d 1368, 1376 (Fed. Cir. 1999).
      10*Ward v. U.S. Postal Service*, 634 F.3d 1274, 1279 (Fed. Cir. 2011); *Stone v. Federal Deposit Insurance  Corporation*, 179 F.3d 1368, 1377 (Fed. Cir. 1999).


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