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An environmental advocacy group has renewed its push to discredit competitive sourcing efforts at the Forest Service by advancing a lawsuit claiming the agency has inconsistent standards for compiling lists of jobs eligible for outsourcing.

In a brief filed late last month and pending before the U.S. District Court in Missoula, Mont., Forest Service Employees for Environmental Ethics, a nonprofit group based in Eugene, Ore., argued that the Forest Service has a fragmented system for designating jobs as commercial or inherently governmental on 1998 Federal Activities Inventory Reform Act lists.

The brief is the latest in a series of exchanges between Forest Service and FSEEE lawyers, set off in December 2003, when the environmental group filed a lawsuit claiming an agency decision to outsource analyst jobs in Missoula and Salt Lake City violated competitive sourcing rules in a fiscal 2004 appropriations act.

FSEEE later added the FAIR Act inventory allegations. The Forest Service has consistently argued that the U.S. District Court in Missoula is the wrong venue for the case. But the advocacy group's most recent filing, submitted on April 30, asks the court to reject that argument.

On the most recently published FAIR Act inventories, Forest Service officials classified nearly identical jobs as commercial at some locations, but inherently governmental at others, said Andy Stahl, director of the environmental group, earlier this week. "There is no apparent rhyme or reason to these different classifications of the same job functions," the April 30 FSEEE brief states.

For instance, in the 2002 FAIR Act inventory, the agency designated 173 of 223 budget support jobs as commercial and 50 as inherently governmental, FSEEE argues. The group's brief contains five other examples of inconsistent classifications, claiming the discrepancies arose because the agency may have relied on "the apparently contradictory and unsubstantiated judgment of local personnel who did the actual classifications."

The Forest Service, part of the Agriculture Department, has completed its 2003 inventory but the list has not been published. Changes made to the inventory process in 2003 did not resolve underlying problems of inconsistency, Stahl said.

Forest Service officials involved in compiling the agency's inventory declined to comment on the pending lawsuit Friday. A deputy assistant general counsel helping the agency with the case also said he could not discuss ongoing litigation.

In a brief responding to FSEEE's allegations, Forest Service lawyers argued that the FAIR Act and Office of Management and Budget guidance on implementing the law allow heads of executive-branch agencies leeway to use their own judgment in classifying jobs. If federal employees are not happy with decisions, they have 30 days from publication of the list to file challenges at the agency.

FAIR Act appeals require agency heads to defend their reasoning. "Thus, the FAIR Act requires a rationale for any decision made on a challenge to the inventory, but does not require a rationale for the initial publication of the inventory itself," Forest Service lawyers reasoned.

Federal employee unions have long argued that agencies are inconsistent in identifying federal jobs that could be performed by the private sector, and the General Accounting Office in February 2004 reported that agencies face challenges in completing FAIR Act inventories.

The Missoula U.S. District Court has yet to set a date for hearing FSEEE's complaint.

COMMENTS

• Preparing the inventory is not as easy as some believe. This analysis involves an examination of the "tasks" associated with the "position" (space) rahter than the actual person (face) currently doing the work. Only with this analysis of the specific tasks can an assessment be made on the commerciality or inherently governmental nature of the work. It is very common for FTE's within an organization, that are identical in grade and series, to be classified differently on the inventory. Typically, it is unusual to find an "position" that can be classified as purely inherently governmental. In practice, it's the aggregate that makes up the inherently governmental FTE's. It's difficult, particularily if you are very close (within) the organization being inventoried, to not associate faces with the spaces but the two must be seperated. GovExec.com reader Posted May 18, 2004 5:27 AM
• There could be a good reason for inconsistent classification. Since I don't know what classifications the environmental advocacy group is referring to I'll use an 802 Engineering Technician to show why there can be a rhyme or reason to these different classifications of the same job functions. An 802 classification covers all Engineer Technician positions, whether it's a Mechanical Engineer Tech, an Electrical Engineer Tech., or a Structural Engineer Tech. They are all classified as 802 Engineer Tech. (with out option), they do different types of work but are still 802 Engineering Technicians, but the Position Description will reflect different qualifications. There can also be an 802 Engineer Tech with option. That would be a position that requires a multiple tasked 802 Engineer Tech. A technician who is skilled in 2 fields, such as Electrical and Mechanical engineering. GovExec.com reader Posted May 17, 2004 3:11 PM