‘Mitigation’ Provision Also Significant

McPhie also expressed concern about the limits the DHS rules impose on MSPB’s freedom to “mitigate,” or lessen, a penalty, for example when some but not all of the charges against the employee are upheld. The change would force MSPB to abandon a long-standing set of principles called the Douglas Factors for deciding when a penalty is reasonable in favor of a new standard of changing the agency action only when it is wholly unjustified. The Defense Department plans to carry out many of the same types of changes in its revised personnel system, although the DoD policies are still only at the proposed rulemaking stage.