NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

JOHN BURKS, 

Petitioner, 

v. 

RAILROAD RETIREMENT BOARD, 

Respondent. 

__________________________ 

2011-3196 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. CH0752100197-I-1. 

__________________________ 

Decided: June 12, 2012 

___________________________ 

JOHN BURKS, of Gladstone, Missouri, pro se. 

DOUGLAS T. HOFFMAN, Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for respondent. With him on 

the brief were TONY WEST, Assistant Attorney General, 

JEANNE E. DAVIDSON, Director, and STEVEN J.

GILLINGHAM, Assistant Director. 

__________________________ 
BURKS v. RAILROAD RETIREMENT BOARD 2

Before LOURIE, DYK, and WALLACH, Circuit Judges. 

PER CURIAM.

John Burks (“Burks”) petitions for review of a decision 

of the Merit Systems Protection Board (“Board”), which 

affirmed a decision of the Railroad Retirement Board 

(“the agency”) to remove Burks from his position. Burks 

v. R.R. Ret. Bd., No. CH-0752-10-0197-I-1 (M.S.P.B. June 

2, 2011) (“Final Order”); Burks v. R.R. Ret. Bd., No. CH0752-10-0197-I-1 (M.S.P.B. July 23, 2010) (“Initial Decision”). We affirm. 

BACKGROUND

Burks was employed by the agency as an Information 

Technology Specialist. The agency removed Burks based 

on two charges: (1) failure to follow supervisory instructions and (2) making an unauthorized configuration 

change to the data communication network. 

The first charge was based on an incident on May 29, 

2009. Burks’s supervisor had sent an e-mail to Burks and 

three co-workers on May 28 asking about user-reported 

network problems. On Friday, May 29, while off-duty, 

Burks sent two e-mails in response, suggesting that he 

might be able to fix the problem. His supervisor replied: 

John, 

We are trying to resolve this situation as soon as 

possible. The core and firewall passwords are not 

in the envelope [where Burks had been instructed 

to leave them]. Please call Roger [one of Burks’s 

co-workers] with the access information. Roger’s 

number is . . . . 

Resp’t’s App. 88. Burks responded to say that he had 

already made a change, that he was in court, and that 

“[t]his will have to wait until Monday [June 1] if it is not 
3 BURKS v. RAILROAD RETIREMENT BOARD

already resolved.” Id. Burks did not follow his supervisor’s instruction to call his co-worker with the access 

information. 

The second charge was based on an incident on June 

15, 2009, and was related to the agency’s transition from 

Sprint to a new internet service provider (“ISP”), Qwest. 

The first attempt to transition, on May 22, was canceled 

by Burks. After two meetings of agency engineers, including a conference call involving Qwest engineers, Burks’s 

supervisor approved a plan to transition both e-mail and 

internet service at the same time on June 12. Burks 

repeatedly objected to this plan, and on June 11, he told 

his supervisor that he would only move the e-mail services to the new ISP on June 12. After a long discussion, 

Burks agreed to migrate both e-mail and internet, and he 

successfully led this transition to Qwest on Friday, June 

12. On Monday, June 15, Burks e-mailed a co-worker to 

say that he was going to change the system back to 

Sprint, and the co-worker responded: “Please don’t do 

that. We should leave everything on Qwest . . . . Everything is working now.” Id. 109. Nevertheless, Burks 

changed some or all of the network back to Sprint, causing a number of network problems for agency employees. 

Based on these charges, the agency removed Burks, 

effective November 20, 2009. The removal notice stated 

that the deciding official considered Burks’s high ratings 

and lack of disciplinary record, but that the “seriousness 

of [his] misconduct on June 15, 2009,” and “failure to even 

recognize the problem with [his] behavior” made removal 

appropriate. Id. at 137-38. In a later affidavit for the 

Board, the deciding official confirmed that “[t]he second 

charge is the most serious and [he] would have sustained 

the proposal to remove based on the charge related to his 

June 15, 2009 actions alone.” Id. at 192. 
BURKS v. RAILROAD RETIREMENT BOARD 4

Burks appealed his removal to the Board, challenging 

both charges and alleging discrimination, procedural 

errors, and reprisal under 5 U.S.C. § 2302(b)(9). Burks 

withdrew his initial request for a hearing, and the case 

was decided on the written record. The administrative 

judge (“AJ”) found that the agency had proven both 

charges by a preponderance of the evidence. The AJ also 

found that Burks had failed to carry his burden of proving 

his discrimination and reprisal claims, and that the 

agency had not committed harmful procedural error. 

Finally, the AJ concluded that the agency adequately 

considered the Douglas factors and properly exercised its 

discretion in selecting the penalty of removal. See Initial 

Decision, slip op. at 24-26 (citing Douglas v. Veterans 

Admin., 5 M.S.P.R. 280 (1981)). The full Board declined 

to review the AJ’s decision, which thus became the final 

decision of the Board. Final Order, slip op. at 7. 

The Board’s Final Order informed Burks that he could 

appeal the Board’s decision within 30 days of receipt to 

the Equal Employment Opportunity Commission 

(“EEOC”) or a U.S. district court, or alternatively, if he 

did not want review of his discrimination claims, that he 

could appeal the decision within 60 days of receipt to this 

court. Id. at 7-8. Burks timely appealed to this court.

DISCUSSION

I 

Before reaching the merits of this appeal, we first address the agency’s argument that we lack jurisdiction 

because Burks first filed a petition with the EEOC. In 

general, we have jurisdiction over appeals from final 

orders of the Board under 28 U.S.C. § 1295(a)(9). In a 

“mixed case” such as Burks’s, in which it is alleged that a 

personnel action at issue before the MSPB is based on 
5 BURKS v. RAILROAD RETIREMENT BOARD

prohibited discrimination, the Board’s decision is “judicially reviewable” as of 

(A) the date of issuance of the decision if the employee or applicant does not file a petition with 

the [EEOC] under subsection (b)(1) of this section, 

or 

(B) the date the [EEOC] determines not to consider the decision under subsection (b)(2) of this 

section. 

5 U.S.C. § 7702(a)(3). Subsection (b)(1) states that an 

employee may petition the EEOC “within 30 days after 

notice of the decision of the Board,” and subsection (b)(2) 

states that the EEOC “shall, within 30 days after the date 

of the petition, determine whether to consider the decision.” Id. § 7702(b)(1)-(2). 

The Board’s final order issued on June 2, 2011, and 

was apparently received by Burks shortly thereafter. On 

July 26, 2011, after the 30-day deadline of subsection 

(b)(1), the EEOC received a petition for review from 

Burks, which included a handwritten note asking the 

petition to be accepted as timely because he had sent two 

earlier petitions to the wrong address. Both parties agree 

that the petition was untimely. On July 27, 2011, a 

separate petition for review was received and filed by this 

court. Burks’s EEOC appeal was closed, in response to 

his requests, on October 6, 2011. The agency argues that 

as of July 27, when Burks filed his Federal Circuit appeal, 

his case was not “judicially reviewable” under 5 U.S.C. 

§ 7702(a)(3) because Burks had filed a petition with the 

EEOC, and the EEOC had not “determine[d] not to consider the decision.” 

We disagree. An EEOC petition would bar judicial 

review only if the employee “file[s] a petition . . . under 
BURKS v. RAILROAD RETIREMENT BOARD 6

subsection (b)(1),” and subsection (b)(1) states that a 

petition may be filed “within 30 days.” Id. § 7702(a)(3)(A), 

(b)(1). In Cloer v. Secretary of Health and Human Services, 675 F.3d 1358, 1361 (Fed. Cir. 2012) (en banc), we 

recently held that an untimely petition may be “a petition 

filed under” a statutory provision where that provision is 

silent on timeliness. Here, however, we reach the opposite conclusion. Because subsection (b)(1) explicitly 

specifies a 30-day time limit, an employee only “file[s] a 

petition with the [EEOC] under subsection (b)(1)” if that 

petition is filed “within 30 days after notice of the decision 

of the Board.” 5 U.S.C. § 7702(a)(3)(A), (b)(1). 

Because both parties agree that Burks’s petition to 

the EEOC was not filed within 30 days of his notice of the 

Board decision, we conclude that Burks’s appeal in this 

court is “judicially reviewable” under 5 U.S.C. 

§ 7702(a)(3), and that we have jurisdiction under 28 

U.S.C. § 1295(a)(9).

II 

Turning to the merits, our review of final Board decisions is limited. Under 5 U.S.C. § 7703(c), we may only 

set aside agency actions, findings, or conclusions of law 

found to be “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained 

without procedures required by law, rule, or regulation 

having been followed; or (3) unsupported by substantial 

evidence.” 

Regarding the first charge, Burks concedes that he received and failed to follow his supervisor’s instructions on 

May 29, 2009, but argues that he had no obligation to 

follow instructions while off duty (relying on U.S. Department of the Navy v. Federal Labor Relations Authority, 962 F.2d 1066, 1068 (D.C. Cir. 1992)) and that he 

could not have called his co-worker because he was filing 
7 BURKS v. RAILROAD RETIREMENT BOARD

a pleading in a federal courthouse. We need not decide 

whether this charge was properly sustained or whether 

this minor offense would justify Burks’s removal because 

the deciding official stated that the second charge was the 

most serious, warranting removal for a first offense, and 

that he would have removed Burks for the second charge 

alone. See Guise v. Dep’t of Justice, 330 F.3d 1376, 1381 

(Fed. Cir. 2003) (“[W]hen there is no indication that the 

agency would have adopted a different penalty in the 

absence of the unsustained charge, we have upheld the 

penalty without the need for a remand.”). 

The second charge was making an unauthorized configuration change to the data communication network on 

June 15, 2009. Burks concedes that he made this network 

change, but he argues that it was not unauthorized because it was technically necessary and that he was authorized to take appropriate measures to deal with such 

technical problems. The Board rejected this argument, 

finding that Burks was aware of how his supervisor 

wanted to handle the ISP transition, that the transition 

was successful, and that Burks then made an unnecessary 

change back to Sprint that he knew was contrary to his 

supervisor’s instructions. Burks further argues that other 

employees made network changes that were not specifically authorized but were nonetheless condoned, but the 

Board found that he had not provided any examples 

comparable to his situation. Burks challenges these 

findings, but we review the Board’s factual findings for 

substantial evidence, which means that “[w]e do not 

substitute our judgment for that of the [B]oard as to the 

weight of the evidence or the inferences to be drawn 

therefrom.” Cross v. Dep’t of Transp., 127 F.3d 1443, 1448 

(Fed. Cir. 1997). We conclude that substantial evidence 

supports the Board’s finding that Burks made an unau-
BURKS v. RAILROAD RETIREMENT BOARD 8

thorized configuration change to the data communication 

network. 

Burks makes no showing that removal is an unreasonable penalty for the second charge. In general, “the 

penalty for employee misconduct is left to the agency’s 

discretion,” and this court’s review “is highly deferential.” 

Webster v. Dep’t of the Army, 911 F.2d 679, 685 (Fed. Cir. 

1990). “While . . . the penalty must be reasonable in light 

of the sustained charges, . . . reasonable in this context . 

. . mean[s] merely that the agency’s choice of penalty not 

be ‘grossly disproportionate to the offense . . . .’” Id. at 

686 (quoting Miguel v. Dep’t of the Army, 727 F.2d 1081, 

1083 (Fed. Cir. 1984)). The deciding official considered 

the Douglas factors, including “the seriousness of 

[Burks’s] misconduct on June 15, 2009,” “the jeopardy in 

which [his] actions placed [the agency’s] data communications system,” his work record, his “failure to even recognize the problem . . . [which] raises serious doubts about 

any potential for rehabilitation,” and the inadequacy of 

lesser penalties. Resp’t’s App. 137-38; see Douglas, 5 

M.S.P.R. 280. We find no error in the Board’s conclusion 

that the agency adequately considered the Douglas factors and properly exercised its discretion in selecting the 

penalty of removal. 

We have considered Burks’s remaining arguments 

and find them to be without merit. 

COSTS

No costs.