The Forest Service recently stated that, during appeals filed with the agency, it is appropriate for its lawyers to play dual roles in simultaneously advising both the employee who made the decision being appealed as well as the employee who decides if the appeal should be sustained. Under the agency’s appeal process, after a challenge to an agency decision is filed, the agency employee who made the decision is given the opportunity to submit a response to the allegations for consideration by the employee who is adjudicating the matter. In this instance, the response indicated that it was authored by the Office of General Counsel (OGC), the Forest Service’s attorneys.
The appellant complained that the process appeared to be pointless if the response defending the decision at issue was written by the very same lawyers who would then advise the appeal deciding officer as to whether the defense was valid. The appellant stated that this dual role of the agency’s attorneys “undermines any confidence private businesses can have that the Forest Service appeal process is objective.” The Forest Service did not deny that its attorneys had written the defense of the decision that was submitted to the employee adjudicating the appeal and then advised the adjudicating employee that the defense the attorneys had written was correct. Instead, the agency stated that it is “appropriate for OGC to provide legal advice to the Forest Service in connection with administrative appeals.”