                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DWIGHT J. HASKINS,                              DOCKET NUMBER
                   Appellant,                        DC-1221-13-6540-W-1

                  v.

     FEDERAL DEPOSIT INSURANCE                       DATE: September 29, 2014
       CORPORATION,
                  Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Dwight J. Haskins, Bellingham, Washington, pro se.

           Scott David Cooper, Arlington, Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed the appeal for lack of jurisdiction. Generally, we grant petitions such
     as this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     regulation or the erroneous application of the law to the facts of the case; the
     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review. We AFFIRM
     the initial decision, except as expressly MODIFIED by this Final Order to further
     address the possible applicability of the Whistleblower Protection Enhancement
     Act (WPEA), Pub. L. No. 112-199, 126 Stat. 1465, to the appellant’s claim.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        In this individual right of action (IRA) appeal, the appellant alleged that he
     applied for a large bank analyst position “in later 2011” and that the agency failed
     to select him in retaliation for contacting agency equal employment opportunity
     (EEO) officials, as well as the agency’s chairman, inspector general, ombudsman,
     the Government Accountability Project, and the Office of Special Counsel (OSC).
     Initial Appeal File (IAF), Tab 1 at 11.      With his IRA appeal, the appellant
     included a copy of his OSC complaint (MA-13-0697), letters from OSC notifying
     him of its preliminary and final decisions to close its file on that complaint, the
     appellant’s response to OSC’s preliminary determination, and correspondence
     with the agency’s chief counsel regarding confidential information she alleged
     that the appellant had published on his blog. Id. at 15-59. He also included an
     e-filing form for another OSC complaint dated March 20, 2013, which, by its lack
     of an OSC docket number, does not appear to have been completed. Id. at 60-68.
                                                                                          3

¶3         The administrative judge issued an order in which she set forth the elements
     and burdens the appellant must meet to establish jurisdiction over his IRA appeal.
     IAF, Tab 3. The appellant filed a response in which he addressed both the instant
     IRA appeal and his separately docketed involuntary retirement appeal. 2           IAF,
     Tab 5. Without holding a hearing, the administrative judge dismissed this appeal
     for lack of jurisdiction, finding that the appellant failed to identify his allegedly
     protected disclosures, the dates on which he made those alleged disclosures, or
     how those disclosures were contributing factors to any of the personnel actions
     challenged in his submissions.     IAF, Tab 10, Initial Decision (ID) at 5.        The
     administrative judge further found that the appellant had “identified no evidence
     that, if true, would show that anyone who took or failed to take a personnel action
     against him, or anyone who influenced them, had any knowledge of his alleged
     protected disclosures.” ID at 5.
¶4         In his timely-filed petition for review, the appellant asserts that the Board
     has purposely ignored “the complete record of evidence,” which he claims shows
     “a systematic and orchestrated agreement amongst regulators to hide the true
     condition of the banks” in order to conclude that he is not a whistleblower, and
     further claims that if his “warnings and pleas [had] not been ignored by these
     officials, the public would have been spared a great deal of harm the financial
     crises caused.” Petition for Review (PFR) File, Tab 1 at 1. He also challenges
     the Board’s failure to apply the WPEA to his claim. Id. at 1-2. The agency did
     not respond.
¶5         The record reflects that the administrative judge properly gave the appellant
     specific instructions to, among other things, identify the exact disclosures and
     personnel actions he alleged in this IRA appeal. IAF, Tab 3 at 7; see Hoback v.

     2
       The administrative judge dismissed the appellant’s involuntary retirement appeal for
     lack of jurisdiction. Haskins v. Federal Deposit Insurance Corporation, MSPB Docket
     No. DC-0752-13-6541-I-1, Initial Decision (Oct. 30, 2013). The appellant did not file a
     petition for review and the initial decision in that matter became the Board’s final
     decision on December 4, 2013. Id. at 3; see 5 C.F.R. § 1201.113.
                                                                                        4

     Department of the Treasury, 86 M.S.P.R. 425, ¶ 6 (2000) (it is well within an
     administrative judge’s wide discretion to issue very specific orders that require
     IRA appellants to clarify their allegations by providing detailed information
     concerning disclosures and personnel actions).      The appellant responded with
     generalized, conclusory assertions without regard to the specific requirements of
     the administrative judge’s order.    IAF, Tab 5. In his petition for review, the
     appellant similarly combines and conflates the evidence and elements of his
     previous unsuccessful appeals 3 with his contentions regarding the instant matter
     into a conclusory narrative, which makes it particularly difficult to identify the
     specific evidence allegedly pertinent to the instant IRA appeal. PFR File, Tab 1;
     see Haskins v. Federal Deposit Insurance Corporation, MSPB Docket No.
     DC-1221-11-0416-W-1, Final Order (Sept. 28, 2012) (Robbins, M., concurring)
     (noting with regard to similar presentations by the appellant that it is not the
     Board’s obligation to pore through the record or to construe and make sense of
     allegations based on unidentified parts of the file).       Nevertheless, we have
     reviewed the appellant’s allegations in their entirety and have determined that, for
     the following reasons, the appellant’s claim in this action is outside the Board’s
     IRA jurisdiction.
¶6        In his OSC complaint, MA-13-0697, the appellant indicated that he claimed
     reprisal for his filing of an EEO complaint. IAF, Tab 1 at 29, 33.         Save for
     repeated references to his previous closed appeals, he asserted no other grounds
     for his complaint.   Id.   More explicitly, in his June 25, 2013 letter to OSC
     regarding its preliminary determination on the complaint at issue in this IRA
     appeal, the appellant makes clear that this action only involves reprisal

     3
       Haskins v. Federal Deposit Insurance Corporation, MSPB Docket No. DC-1221-11-
     0416-W-1, Final Order (Sept. 28, 2012); MSPB Docket No. DC-1221-13-0087-W-1,
     Initial Decision (Nov. 16, 2012); MSPB Docket No. DC-0752-13-6541-1-1, Initial
     Decision, (Oct. 30, 2013). The initial decisions in the latter two appeals became the
     Board’s final decisions on December 21, 2012 and December 4, 2013, respectively,
     when neither party filed a petition for review. See 5 C.F.R. § 1201.113.
                                                                                    5

     purportedly taken against him for his filing of an agency EEO complaint and not
     for any of his alleged whistleblowing disclosures. Id. at 41 (“I am not trying to
     re-hash earlier complaints that were decided and desire to emphasize that my new
     October/November complaints are not for my whistleblowing disclosures I
     previously made to the chairman, auditors, ombudsman, or inspector general in
     2009 or 2010”). Although the appellant maintains that there remains a pattern of
     retaliation and reprisal, he asserts that “the events which precipitated unlawful
     action by the respondent that have been taken against me in 2011 are for a
     completely different and separate reason, my filing a complaint with the EEO
     office at the FDIC.” Id. However, reprisal for the filing of an EEO complaint is
     a prohibited personnel practice under 5 U.S.C. § 2302(b)(9), not 5 U.S.C.
     § 2302(b)(8).    See, e.g., Applewhite      v. Equal   Employment Opportunity
     Commission, 94 M.S.P.R. 300, ¶ 23 (2003).
¶7        As noted above, the appellant argues that the Board erred in not applying
     the WPEA to his IRA appeal. PFR File, Tab 1 at 1. Under 5 U.S.C. § 1221(a), as
     amended by WPEA section 101(b)(1)(A), an employee, former employee, or
     applicant for employment may, with respect to any personnel action taken, or
     proposed to be taken against such employee, former employee, or applicant for
     employment, as a result of a prohibited personnel practice described in 5 U.S.C.
     § 2302(b)(8) or § 2302(b)(9)(A)(i), (B), (C), or (D), seek corrective action from
     the Board.
¶8        Among other things, the WPEA expanded the scope of 5 U.S.C.
     § 2302(b)(9), to include:
           (A) the exercise of any appeal, complaint, or grievance right granted
           by any law, rule, or regulation--
              (i) with regard to remedying a violation of paragraph (8); or
              (ii) other than with regard to remedying a violation of paragraph
           (8).
     Of those two categories, the WPEA extended the Board’s IRA jurisdiction to
     claims arising under 5 U.S.C. § 2302(b)(9)(A)(i), but not to those arising under
                                                                                      6

(b)(9)(A)(ii).     See WPEA section 101(b)(1)(A).        Nevertheless, the appellant’s
refusal to provide the details of his EEO complaint, as the administrative judge
correctly found, precludes finding Board jurisdiction over this IRA appeal. See
ID at 6 n.2 (“the appellant did not allege or show that his EEO and other alleged
activity pursuant to § 2302(b)(9) involved remedying a violation of § 2302(b)(8)
so as to fall within the enhanced protection of the WPEA”). Thus, the appellant
failed to show that the Board has jurisdiction over his reprisal claim under the
WPEA.      See Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7
(2013).

                   NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
      The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision.
      The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you want to request review of the Board’s decision concerning your
claims    of     prohibited   personnel   practices   under   5   U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
                                                                                    7

you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
        If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective         websites,     which       can       be      accessed       through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
        If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit.       The Merit Systems Protection Board
                                                                           8

neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
