BY RAEKA SAFAI
Photo by Sasun Bughdaryan
Since 2025, longstanding safeguards promoting fair and consistent treatment of federal employees have steadily eroded. A recent Merit Systems Protection Board (MSPB) final rule continues with that trend, giving federal agencies greater latitude to determine disciplinary penalties and departing from the structured framework in place for more than 40 years.
While the Foreign Service is technically outside the scope of the new ruling, the State Department, and other foreign affairs agencies, have already moved in the same direction, revising their disciplinary rules in ways that loosen a longstanding check on subjective decision-making by giving managers greater discretion over penalties.
This should be of great concern to all members of the Foreign Service who expect disciplinary decisions to be fair, consistent, and grounded in the principle that employees facing similar allegations should be treated similarly.
The Guardrail Behind Fair and Consistent Discipline
For more than 40 years, federal agencies and the MSPB have relied on a common framework of 12 considerations to select appropriate penalties for employee misconduct and assess whether those penalties are reasonable. Known as the Douglas factors, the framework takes its name from the MSPB’s landmark 1981 decision in Douglas v. Veterans Administration.
Historically, the Douglas factors have been applied to both Civil and Foreign Services. The framework calls for consideration of such basic questions as the seriousness of the misconduct, an employee’s record, mitigating circumstances, consistency with agency penalty guidelines, and, perhaps most important, “whether similarly situated employees have been treated similarly.” Within the Foreign Service, this was referred to as “like penalties for similar offenses,” and was found in the Foreign Affairs Manual, the main policy and procedures manual for the Foreign Service. [RS1.1]
However, with its new rule, the MSPB has moved away from the Douglas factors as mandatory. Instead, when the rule takes effect in October, the board needs only to consider whether an agency’s penalty falls within the “tolerable limits of reasonableness” based on the totality of the circumstances.
Why The Change Matters
This development is concerning, to say the least.
Disciplinary actions taken against an individual employee should not depend simply on whether a particular manager believes a penalty is reasonable. The Douglas factors create transparency, promote consistency, and require agencies to explain why one employee receives a reprimand while another receives a suspension, or even separation, for comparable conduct. Replacing the framework with a vague reasonableness test makes the disciplinary process less predictable and more dependent on the subjective judgment of individual officials.
How AFSA Has Pushed Back
When the MSPB proposed the rule, AFSA, acting as the exclusive representative of Foreign Service employees, asked the board to confirm that it could not amend the Foreign Service Act, dictate how the Foreign Service Grievance Board (FSGB) reviews disciplinary penalties or require changes to the Foreign Affairs Manual. Foreign Service disciplinary appeals are governed by the Foreign Service Act and adjudicated by the FSGB—not by the MSPB under 5 U.S.C. § 7513.
In Section IV.13 of its final rule, the MSPB confirmed AFSA’s position. The board stated that the rule applies only to appeals filed with the MSPB under 5 U.S.C. § 7513. It “does not govern or bind the Foreign Service Grievance Board or its review standards” and does not require the State Department or any other agency to revise its internal disciplinary guidance.
Consequences of Removing Collective Bargaining Rights
Unfortunately, the Department of State had already changed its disciplinary rules before the MSPB finalized its rule change.
Inspired, it seems, by the Office of Personnel Management, and the MSPB’s proposed rule change, the department revised the FAM (3 FAM 4370), replacing the requirement of “like penalties for similar offense” with the discretion of proposing and deciding officials to pick discipline that is within the “bounds of tolerable reasonableness.” The FAM change narrowed who can be used as a comparison when deciding whether discipline is fair, focusing mainly on employees in the same office, with the same supervisor, and who committed similar misconduct. In the Foreign Service, where employees rotate so frequently, it makes such comparisons nearly impossible. The new policy also says officials do not have to follow earlier decisions in similar cases and may instead rely on their own independent managerial judgment, giving them much broader discretion in deciding penalties.
To be clear, the Foreign Affairs Manual still allows officials to consider the Douglas factors. But the department’s recent revisions materially weaken one of the framework’s most important protections: consistency.
A Pattern of Stripped Safeguards
As we saw with the Department of Justice’s opinion regarding the authority of the FSGB, the new MSPB ruling removes yet another meaningful guardrail protecting the workforce.
The result is a disciplinary system with fewer meaningful checks and greater risk that outcomes will depend on the judgment of the individual deciding the case rather than on fair and consistent treatment of similar misconduct.
No public servant should have to wonder whether the penalty they face depends more on who is deciding the case than on how comparable cases have been handled before.
Raeka Safai is general counsel of the American Foreign Service Association (AFSA), where she advises AFSA’s leadership and represents members on labor-management relations, grievances, disciplinary matters, security clearances, and workplace policies.