Comment on Proposed Rule: Promoting Employee Accountability (RIN 3124-AA35)
August 1, 2026

Tully Rinckey PLLC respectfully submits these comments regarding the proposed rule entitled Promoting Employee Accountability, as published in the Federal Register on July 2, 2026. Several aspects of the proposed rule raise substantial concerns regarding vagueness, excessive discretion, consistency of adjudication, and preservation of statutory due-process protections afforded to federal employees.

The federal civil service system is intended to balance managerial authority with merit-system principles, procedural fairness, and meaningful review. Any effort to streamline personnel actions should be accompanied by sufficiently clear standards to ensure that employee protections are not diminished in practice.

Summary of Concerns

The proposed rule should be revised because:

1. Several provisions rely upon broad discretionary concepts without adequate definition.
2. The proposed shift toward a generalized “totality of the circumstances” review risks undermining decades of established MSPB and Federal Circuit precedent concerning penalty review.
3. The proposed framework may lead to inconsistent outcomes among agencies and adjudicators.
4. The lack of objective standards creates a heightened risk of arbitrary decision-making and abuse.
5. Restricting settlement practices may create unintended burdens on parties and the MSPB litigation system.

Vagueness and Potential for Abuse

A recurring concern throughout the proposal is the use of broad standards without corresponding objective criteria. While administrative flexibility has value, regulations should provide sufficient guidance to agencies, employees, administrative judges, and reviewing courts.

Rules that lack clear boundaries can be applied differently by different supervisors, deciding officials, and agencies. Such inconsistency undermines the merit-system principles that form the foundation of federal employment law.

More importantly, the proposed rule should be evaluated not only based upon how it will be administered by conscientious managers, but also how it may be used by poorly trained or bad-faith actors. When regulations grant broad discretion while limiting meaningful checks on that discretion, the potential for arbitrary or retaliatory actions increases.

For this reason, the final rule should include:

• Clear definitions of key terms;
• Objective evidentiary requirements;
• Documentation standards;
• Explicit safeguards against retaliation and favoritism; and
• Meaningful review mechanisms.

Absent such safeguards, the rule is vulnerable to inconsistent interpretation and abuse.

Performance-Based Actions

The proposed rule would unreasonably restrict federal employees’ due process rights by shortening Performance Improvement Periods (PIPs), treating removal as the presumptive outcome of a failed PIP, and limiting employees’ opportunities to respond to proposed removals. Additionally:

1. Reducing PIPs to 30 days may substantially limit an employee’s meaningful opportunity to demonstrate acceptable performance. The purpose of a PIP is not merely to document deficiencies but to provide an employee with a genuine opportunity to improve and retain employment. In many positions, particularly those involving long-term projects, recurring reporting cycles, or complex professional duties, a 30-day period may be insufficient to demonstrate sustained improvement.
2. Making removal the default penalty undermines the principle of individualized decision-making. Federal personnel laws have traditionally required agencies to evaluate the specific circumstances of each case rather than applying automatic outcomes. A presumption favoring removal may discourage consideration of less severe alternatives, such as reassignment, additional training, coaching, mentoring, or extended performance assistance. Such an approach risks transforming performance management from a corrective process into a removal-focused process.
3. The proposal would limit employees’ ability to respond to proposed removals and make extensions more difficult to obtain. The opportunity to respond is one of the most important due process protections available to a federal employee. Employees often need time to review the evidence supporting the proposed action, consult with legal counsel or a union representative, gather records, identify witnesses, and prepare a meaningful written or oral reply. Restricting this opportunity increases the likelihood of erroneous decisions and undermines confidence in the fairness of the process.

Taken together, these changes create a significant risk that employees will be removed before they have had a realistic opportunity to improve performance or adequately defend themselves. The combined effect is to reduce procedural protections that help ensure personnel decisions are accurate, fair, and consistent with merit system principles.

MSPB Penalty Review

The proposal indicates that MSPB seeks to place greater emphasis on a “totality of the circumstances” approach rather than what it characterizes as a rigid application of prescribed factors.

The concern is not with considering the totality of the circumstances. Rather, the concern is that the proposal may be interpreted as diminishing the significance of the analytical framework established in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981).

For more than four decades, the Douglas Factors have served as the principal mechanism for ensuring consistency, transparency, and proportionality in federal disciplinary actions. Agencies, practitioners, Administrative Judges, the MSPB, and the Federal Circuit have relied upon those factors to evaluate whether a penalty promotes the efficiency of the service while remaining reasonable under the circumstances.

The Douglas framework does not impose rigidity. Instead, it requires decision-makers to consider relevant aggravating and mitigating circumstances in a structured and reviewable manner. That structure promotes fairness and helps ensure that similarly situated employees receive similar treatment.

The Douglas Factors are a critical safeguard in the federal disciplinary process because they ensure penalties are individualized, reasonable, and based on the totality of the circumstances. While agency Tables of Penalties provide useful guidance and promote consistency, they cannot account for the unique facts of every case. The Douglas Factors allow agencies to consider mitigating and aggravating circumstances, including an employee’s past record, length of service, potential for rehabilitation, and consistency with penalties imposed in similar cases. Without meaningful consideration of the Douglas Factors, disciplinary decisions risk becoming rigid, arbitrary, and inconsistent with principles of due process and merit system protections.

An undefined totality-of-the-circumstances approach risks replacing a predictable analytical framework with a largely subjective inquiry. The result may be greater inconsistency and reduced confidence in agency disciplinary decisions.

Accordingly, the final rule should expressly provide that:

• Relevant Douglas Factors remain applicable;
• Agencies must articulate the basis for their penalty determinations;
• Administrative Judges retain authority to assess penalty reasonableness; and
• MSPB review remains grounded in objective and reviewable criteria.

Therefore, if agencies are permitted to impose penalties without meaningful consideration of the Douglas Factors, disciplinary actions may become less consistent, less transparent, and more vulnerable to claims of arbitrariness. The Douglas Factors ensure that penalties are tailored to the facts of each case, account for relevant mitigating and aggravating circumstances, and promote equitable treatment across the federal workforce. Eliminating or diminishing their role risks replacing informed discretion with rigid penalty determinations that may not withstand review and may undermine confidence in the merit system.

Judicial Review and Due Process Considerations

Federal courts have repeatedly emphasized the importance of clear procedural rules and transparent avenues for review. Federal employees should retain meaningful procedural protections and access to independent review when challenging disciplinary actions.

In Kloeckner v. Solis, the Supreme Court interpreted the Civil Service Reform Act in a way that preserved an employee’s ability to obtain judicial review of significant personnel actions. That reasoning aligns with arguments that disciplinary systems should include robust safeguards, independent review, and meaningful consideration of mitigating evidence such as the Douglas Factors.

Similarly, in Perry v. Merit Systems Protection Board, the Supreme Court, the Court again favored an interpretation that protects employees’ access to judicial review instead of creating procedural barriers based on technical distinctions about why the MSPB dismissed the case.

These decisions reflect a broader principle: federal personnel systems should be understandable, predictable, and governed by standards capable of meaningful judicial review.

If MSPB and OPM adopt broad discretionary standards without clearly articulated limits, court review may become more difficult and outcomes less predictable. This could ultimately increase litigation rather than reduce it.

We are concerned with the proposed rule’s statement that the MSPB will defer to an agency’s penalty analysis rather than conducting an independent review. The MSPB’s review of penalties under Douglas v. Veterans Administration has long served as an important safeguard against arbitrary, inconsistent, or disproportionate discipline. Independent review helps ensure that agencies have meaningfully considered relevant mitigating and aggravating factors, including an employee’s work record, disciplinary history, potential for rehabilitation, and consistency with penalties imposed in similar cases. The MSPB’s role is not merely to ratify agency decisions, but to provide an impartial check that promotes fairness, consistency, and public confidence in the merit system.

If the MSPB defers to an agency’s penalty determination without conducting its own meaningful analysis, the practical effect may be to insulate agency decisions from independent scrutiny. This could reduce accountability for decision-makers, increase disparities in discipline across agencies, and diminish the value of the Douglas Factors as a tool for ensuring individualized penalty determinations.

Douglas Factor #7 already requires consideration of the agency’s table of penalties, but Douglas never intended for the table alone to control the outcome. Rather, the MSPB weighs the entire record to determine whether the penalty falls within the bounds of reasonableness. If the Board simply accepts the agency’s analysis, its function shifts from independent adjudicator to reviewer of process, which is a significant departure from longstanding practice.

The final rule should therefore include clear regulatory language explaining:

• What standards govern agency decision-making;
• How MSPB will review those decisions; and
• What analytical framework courts should expect to see reflected in administrative records.

Settlement Agreement Restrictions

The proposed rule also seeks to limit certain settlement provisions involving the removal of records relating to misconduct or poor performance.

While transparency and accurate recordkeeping are legitimate objectives, settlement agreements have historically served as an important tool for resolving disputes efficiently.

Overly restrictive limitations on settlement authority may:

• Discourage resolution of disputes;
• Increase litigation costs;
• Extend case processing times;
• Increase MSPB caseloads; and
• Reduce flexibility for agencies and employees alike.

Before adopting these provisions, OPM and MSPB should carefully assess whether the anticipated benefits outweigh the likely increase in litigation and administrative burden.

Recommendations

We respectfully recommend that OPM and MSPB:

1. Clarify all provisions that rely upon broad discretionary language.
2. Retain and explicitly recognize the continuing relevance of the Douglas factors in penalty review.
3. Include objective standards that permit meaningful MSPB and judicial review.
4. Strengthen protections against arbitrary, retaliatory, or inconsistent application.
5. Reevaluate restrictions on settlement agreements.
6. Provide additional guidance regarding implementation of the proposed review standards.

Conclusion

Promoting accountability within the federal workforce is an important and worthwhile objective. However, accountability should not come at the expense of predictability, fairness, due process, or meaningful review.

As drafted, portions of the proposed rule are vague and afford agencies substantial discretion without corresponding safeguards. Such provisions are susceptible to inconsistent interpretation and may create opportunities for abuse. The final rule should therefore be revised to provide clearer standards, preserve established MSPB precedent, and ensure that federal employees continue to receive the procedural protections contemplated by the Civil Service Reform Act and decades of Board and judicial precedent.

Respectfully submitted,

Tully Rinckey PLLC

Aug. 1, 2026