## Facts

- Seven consolidated appeals involved competitive-service federal employees disciplined (primarily removed) for job-related misconduct under 5 U.S.C. § 7513.
- The employees appealed to the Merit Systems Protection Board (MSPB) under 5 U.S.C. § 7701, arguing chiefly that the penalties—especially removals—were too severe.
- In illustrative cases, Curtis Douglas (VA) and Joseph E. Cicero (VA) were removed following misconduct/insubordination allegations and prior disciplinary histories considered in penalty selection.
- MSPB presiding officials in the individual cases generally sustained both the misconduct findings and the agency-selected penalties, treating penalty selection as largely within agency discretion.
- The MSPB reopened the cases on its own motion, consolidated them, and invited amicus participation to resolve the Board’s authority and standards for reviewing penalties.

## Issues

1. Whether the MSPB has statutory authority to mitigate (modify or reduce) an agency-imposed adverse-action penalty.
2. Whether the agency must justify the chosen penalty by a preponderance of the evidence under 5 U.S.C. § 7701(c).
3. What standards should govern MSPB review of agency-selected penalties in adverse-action appeals.

## Decision

- The MSPB held it has authority to mitigate penalties that are clearly excessive, disproportionate to the sustained charges, or arbitrary, capricious, or unreasonable.
- The MSPB held agencies bear the burden to prove, by a preponderance of the evidence, that the penalty is appropriate and promotes the efficiency of the service.
- The MSPB announced a nonexclusive set of considerations—later called the “Douglas factors”—to guide agency penalty selection and MSPB penalty review.
- Applying these rules, the MSPB upheld removals in five of the seven cases and mitigated penalties in two cases.

## Legal Principles

- In adverse-action appeals, MSPB review of penalties includes abuse-of-discretion review; management’s penalty choice is not insulated from scrutiny.
- The MSPB may affirm, mitigate, or set aside an agency penalty; it is not limited to reversing and remanding for a new penalty choice.
- Under 5 U.S.C. § 7701(c), the agency must prove by a preponderance of the evidence both the charged misconduct and that the selected penalty reasonably promotes the efficiency of the service.
- A penalty is sustainable if it falls within tolerable limits of reasonableness after consideration of relevant circumstances; the agency need not show its choice was the only reasonable penalty.
- Relevant penalty factors include, among others: seriousness of the offense and its relation to duties; position and responsibilities; past disciplinary and work record; consistency with penalties for similar offenses and with any table of penalties; impact on agency reputation; notice of rules; potential for rehabilitation; mitigating circumstances; and adequacy of alternative sanctions.

## Conclusion

Douglas established that the MSPB can reduce an agency penalty when it is unreasonably harsh, required agencies to prove penalty reasonableness by a preponderance of the evidence, and set out the Douglas factors as the central framework for proportional penalty analysis in federal adverse-action cases.


Douglas v. Veterans Administration, 5 M.S.P.R. 280, 5 M.S.P.B. 313 (M.S.P.B. 1981)