On March 25, Farm Commons hosted a webinar titled “Terminated and Frozen USDA Funding: Filing an Appeal to Protect Your Rights.” The intent of the session was to provide education rather than legal advice.
The mission of Farm Commons is to empower agricultural communities to resolve their own legal vulnerabilities within an ecosystem of support.
The webinar provided guidance for filing a USDA National Appeals Division (NAD) appeal. This is the first voluntary step farms impacted by impacted USDA funding can take. An NAD appeal may be required if a farm wants to preserve their ability to file a lawsuit in the future.
“Folks who are in a position to take the step of an appeal are individuals who have received some written communication from USDA of termination of a contract or grant. That’s definitely appeal-ready termination,” said Rachel Armstrong, founder and executive director of Farm Commons.
Some farms, however, have not received such direct communication, Armstrong noted. They may have received a verbal stop work order only. In this circumstance, the farmer is faced with two choices. They can wait and see or send an inquiry letter to the USDA office that administers the contract requesting clarification about the specific status of their contract.
Farm Commons created a document outlining suggested steps for farms that haven’t received direct communication regarding a freeze or termination. Other scenarios, including the one discussed in this article, are available in this document.
Farm Commons advised farmers to seek the advice of a lawyer before deciding which action step is best for their situation.
Agencies That Use the NAD Appeal Process
The NAD oversees challenges to decisions and actions made by the following USDA agencies:
- Commodity Credit Corporation (CCC)
- Farm Service Agency (FSA) – but an exception applies to FSA. NAD regulations state that if you receive an adverse decision at the FSA field service office level that is unrelated to farm credit programs, you must file an informal review with them before filing a NAD appeal.
- Federal Crop Insurance Corporation (FCIC)
- Natural Resources Conservation Service (NRCS)
- Risk Management Agency (RMA)
- Rural Business-Cooperative Service (RBS)
- Rural Development (RD)
- Rural Housing Service (RHS)
- Rural Utilities Service (RUS)
Note that contracts and grants awarded by the National Institute of Food & Agriculture (NIFA) and Agricultural Marketing Service (AMS) have their own appeal process.
Filing a NAD Appeal
The first step is to review the contract and make sure the terminated or canceled funding is subject to the NAD appeal process. If the contract is subject to the NAD process, farmers must file an administrative appeal within 30 days of receiving an “adverse decision.”
The “adverse decision” could be a written letter or an email. “The key is that it’s written so that it’s very clear that this has been communicated to you,” said Erin Hannum, Farm Commons’ associate director.
Filing a NAD appeal might sound intimidating, Hannum explained, but the process is straightforward. The NAD website provides clear instructions as well as a FAQs page. The NAD appeal request form can be e-filed on the website.
The next step is to gather documentation including a copy of the contract or grant, the freeze or termination notice and a description of activities already performed as well as any proof of financial hardship such as receipts and invoices from contractors.
Then, the farm must write a detailed appeal letter. “You’ll want to explain why you believe the freeze or termination is unfair or unlawful. You don’t have to be super specific in terms of your legal arguments at this point, but it is important to raise some of them,” said Hannum. Sample NAD appeals letters are available on the Farm Commons website.
The signed letter can be mailed (Hannum suggested sending it by certified mail) or it can be e-filed through the NAD website. Make sure to send it to the appropriate regional NAD office.
What to Expect After Submitting an Appeal
Within a week, NAD will send a confirmation letter and assign an administrative law judge. The judge will instruct the agency – the NRCS, for example – to send all related documents and records of their decision about the contract or grant.
The judge will then host a pre-hearing conference call where the parties can discuss whether a hearing is needed or whether the case can be resolved by what’s called “on the record,” meaning they can make a decision based on a review of the written documents. If a hearing does take place, it will typically be within 45 days from when the appeal is filed and is usually held by phone or video conference.
The judge typically issues a decision within 30 days of the hearing or when the record is closed.
“If the judge decides in your favor, the agency may be ordered to reinstate the grant or contract or reconsider its decision. If the judge upholds the agency’s decision, you can then file and appeal to the NAD director. Or at this point, you could instead bring a federal lawsuit because by this point, you’ve so-called exhausted your administrative remedies,” Hannum said.
Farm Commons suggested continuing to collect any relevant documents during the appeal process and to reach out to them if and when an appeal is filed.
“If you are granted a hearing, we can connect you with resources to help you prepare. It can also be helpful to stay connected with other farmers or organizations that are in a similar position or that have experience in filing a NAD appeal.
“I also want to acknowledge that we at Farm Commons do not have direct experience filing NAD appeals. All of the information provided here and that is in our resources is from the NAD website. It’s also from talking with farmers and other attorneys who have shared their experiences with the NAD process,” said Hannum.
by Sonja Heyck-Merlin
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