Supporting Statement Revised Appeal Form

SUPPORTING STATEMENT
OMB Control No. 3124-009
ICR Ref. No. 200612-3124-001
PART A. JUSTIFICATION
1.

Circumstances that make the collection of information necessary.
The Merit Systems Protection Board (MSPB or the Board) is authorized to adjudicate appeals
of certain Federal agency personnel and retirement actions and certain alleged violations of
law. See 5 U.S.C. §§ 1204, 1221, 3330a and 7701, and 38 U.S.C. § 4324. The Board has
published its regulations for processing appeals at 5 C.F.R. Parts 1201, 1208, and 1209.
The Board requires that certain information be provided when an appeal is filed so that the
Board can determine whether it has jurisdiction over the appeal and whether it has been filed
within the applicable time limit. Although an appeal may be filed in any format, including
letter form, the MSPB provides an appeal form so that a person seeking to initiate an appeal
will know that he or she is providing all information required for the Board to initiate
processing.
The Government Paperwork Elimination Act (GPEA) required Federal agencies, by
October 21, 2003, to offer customers the option, where practicable, of sending information to
the agency and receiving information from the agency in electronic form. In response to this
mandate, the MSPB developed an electronic application, e-Appeal, for filing an appeal via the
Internet (https://e-appeal.mspb.gov/). The Board’s electronic application collects the same
information as the paper form. In addition to the difference in medium, e-Appeal differs from
the static form in that the question and answer process is interactive, i.e., the responses to
earlier questions affect the follow-up questions that will be asked. This eliminates the need for
an appellant to answer “not applicable” to or otherwise skip some portions of the form

2.

Reason for Adding Partial Social Security Numbers to the Appeal Form.
Several editorial changes are being made to the appeal form in this revision to make it more
understandable to appellants. The only substantive change being made is to require appellants
to supply the Board with the last four digits of their Social Security numbers. The reason for
adding this requirement is to enable the Board to ascertain whether appellants have filed
previous appeals with the MSPB that may affect the processing of the new appeal. Under the
legal doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion), a
party can be precluded from litigating legal claims and issues that have already been resolved
in a previous proceeding. Recent examples where the Board has applied these doctrines
include Green v. U.S. Postal Service, 103 M.S.P.R. 279 (2006) (appellant precluded by res
judicata from relitigating agency’s denial of restoration); Ward v. Office of Personnel
Management, 103 M.S.P.R. 24 (2006) (appellant precluded by res judicata from relitigating
disability retirement claim); Batiste v. U.S. Postal Service, 100 M.S.P.R. 369 (2005) (appellant
precluded by collateral estoppel from relitigating claim of constructive suspension).
Knowing a new appellant’s name and address is insufficient to determine whether that person
has filed previous appeals with the Board because people move, change their names, or list
their names differently from one appeal to the next. As explained in our first Federal Register
notice, section 7(a) of the Privacy Act precludes the Board from requiring appellants to provide

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their Social Security numbers when they file an appeal, but it does not preclude the Board from
requiring that appellants provide us with the last four digits of their Social Security numbers.
We are attaching a copy of an advisory memorandum prepared by our Office of General
Counsel (OGC). We note that OGC spoke with a Policy Analyst with OMB’s Information
Policy and Technology branch, who concurred with OGC’s legal conclusions.
Notwithstanding the need to collect this information, the MSPB is very aware of the sensitive
nature of even portions of appellants’ Social Security numbers. For that reason, our policy will
be to redact this information from documents supplied in response to requests for information
under the Freedom of Information and Privacy Acts. This information will be available to
MSPB personnel only, and will be used solely to determine whether a person filing a new
appeal has previously filed an appeal raising similar claims or issues.
3.

Uses of the information and consequences of not collecting it.
Both the e-Appeal application and MSPB Form 185 request basic information from persons
who initiate proceedings before the Board, including: name and address; the name and address
of the appellant’s designated representative (if any); the name and address of the agency that
took the appealed action, the nature of the action, an explanation of why the appellant believes
the action was wrong, and a statement of the remedy the appellant is seeking. The specific
requirements are set forth in the Board’s regulations at 5 C.F.R. §§ 1201.24, 1208.13, 1208.23,
and 1209.6. The appeal form (both paper and electronic) also give appellants the opportunity
to raise additional claims and affirmative defenses, including claims of discrimination and other
prohibited personnel practices, and harmful procedural error. Although use of either e-Appeal
or MSPB Form 185 is voluntary, each helps to ensure that an appellant will provide the basic
information necessary for the Board to determine whether the action falls within its appellate
jurisdiction, and to enable the Board to docket the appeal and obtain the file on the appealed
action from the appropriate agency.

4.

Efforts to identify duplication.
No duplication will exist since the responses are personal and based on specific circumstances
applicable to an individual appellant.

5.

Why similar information already available cannot be used.
No similar information is already available since the responses are personal and based on
specific circumstances applicable to an individual appellant.

6.

Methods used to minimize burden on small businesses or other small entities
This information collection is not applicable to small businesses or other small entities.

7.

Consequences if information was conducted less frequently.
Respondents provide the information only one time per appeal.

8.

Special circumstances requiring collection inconsistent with guidelines in 5 C.F.R. 1320.6..
None.

9.

Efforts to consult with persons outside the agency on the availability of the information.
Not applicable.

10.

Describe assurances of confidentiality given to respondents.

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The Privacy Act Statement on both e-Appeal and MSPB Form 185 state that the decisions of
the Board are final administrative decisions and, as such, are available to the public under the
provisions of the Freedom of Information Act. Additionally, it is possible that information
contained in the appeal file may be released as required by the Freedom of Information Act.
Certain information about appeals will also be used in depersonalized form as a database for
program statistics.
11.

Justification for any questions of a sensitive nature.
The Privacy Act Statement on both e-Appeal and MSPB Form 185 state that the personal
information requested is relevant and necessary to reach a decision in an appeal. The Board
collects the information in order to process an appeal under its statutory and regulatory
authority. Since an appeal is a voluntary action, the appellant is not required to give any
personal information. However, failure to supply the Board with all the essential information
could result in the rejection or dismissal of an appeal.
The Board received one response to its 60-day Federal Register notice, from a Personnel
Management Specialist with the Federal Trade Commission, regarding the requirement that
appellants provide the last four digits of their Social Security numbers:
We have concerns about protecting the privacy of appellants. The last four
digits of the SSN, in combination with any other amount of personal information
about the appellant, the complete SSN can be determined.
In our 30-day Federal Register notice, we responded to this comment as follows:
We appreciate and share the concern about protecting appellants’ privacy, but
our investigation failed to disclose a method for accurately determining a
person’s complete Social Security number having knowledge of the last four
digits (plus some other personal information). More importantly, as stated in
our earlier Federal Register notice, the MSPB will not be disclosing these
four-digit numbers to persons outside the agency. These numbers, along with
other personal identifiable information, would be redacted before releasing
copies of Board records to persons making requests under the Freedom of
Information Act or the Privacy Act.
We note in this regard that, according to the Social Security Administration’s website,
(http://ssa-custhelp.ssa.gov/cgi-bin/ssa.cfg/php/enduser/std_adp.php?p_faqid=87) the first three
digits of a Social Security number relate to the area where the person resided when the card
was issued. For example, Iowa residents are assigned numbers between 478 and 485. The
middle two digits range from 01 to 99, but are not assigned in consecutive order, and the final
four digits run consecutively from 0001 through 9999. The commenter did not articulate, and
we do not see, any way that someone could readily obtain someone’s full Social Security
number knowing only the last four digits, even when this knowledge is coupled with other
information such as date and/or place of birth.

12.

Estimated annualized cost to the Federal Government and to the respondents, and
description of the method used to estimate cost.
Both e-Appeal and MSPB Form 185 have been in use for a substantial period of time. The
only costs to the Federal Government entailed in the proposed revision to the appeal form are
staff time devoted to researching and editing the paper form and the related electronic

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processes. We no longer incur printing costs for Form 185, making it available for download
from our public website, and mailing paper copies when requested. The only additional cost to
respondents is the few seconds required to provide the last four digits of their Social Security
numbers.
Cost of Revising Form 185. Although others were consulted and asked for input, the bulk of
the work of revising Form 185, preparing the required Federal Register notices, and preparing
the submission of this information collection to OMB for approval was done by two
employees: a GS-14 step 10, and a GS-13 step 10, who spent approximately 40 and 10 hours
respectively. Adding 23% to the gross salary amounts for these employees and dividing by
2,087 work hours in a year, their per hour salary costs are $70 and $59, bringing the total cost
to $3,390.
Cost of Maintaining e-Appeal. The Board’s e-Appeal website (https://e-appeal.mspb.gov/) is
hosted by an outside contractor, who also performs significant programming/de-bugging work
on the website. The charge for hosting the website is approximately $40,000 per year; the costs
of the programming/de-bugging are approximately $200,000 per year. Only a portion of these
costs can properly be allocated to this information collection, however, because the e-Appeal
website handles more than the receipt of new appeals; it handles electronic filing of other
pleadings with the Board, as well as distribution of MSPB documents to e-filers. As incoming
appeals represent only about 10% of the documents handled by the e-Appeal system, we
estimate that $24,000 (10% of $240,000) is properly allocated to this information collection.
Accordingly, our estimated annualized cost to the Federal Government for this information
collection is $27,390.
13.

Provide estimates of the burden of the collection of information on respondents.
The public burden for this collection of information is estimated to vary from 20 minutes to 4
hours, with an average of 60 minutes per response, including time for reviewing the form and
instructions, searching existing data sources, gathering the data necessary, and completing and
reviewing the collection of information.

14.

Outline Plans for use and publication.
Both e-Appeal and MSPB Form 185 will only be used by MSPB to elicit pertinent information
from appellants. The only use is to provide information to the Board necessary to adjudicate an
appeal.
PART B.
COLLECTIONS OF INFORMATION EMPLOYING STATISTICAL METHODS
The methodology for identifying respondents will not rely on statistical methods. Rather,
respondents may use e-Appeal or MSPB Form 185 on an as-needed basis.