Fighting the Man: The Processes for Challenging Government Agency Determinations
Farm Service Agency (FSA), Natural Resources Conservation Service (NRCS), and Risk Management Agency (RMA) are all federal government agencies with which farmers and ranchers are very familiar. My guess is that many of you have received, or will receive, letters from some of these agencies that you disagree with. For example, a letter telling you that you are not in compliance with CRP requirements, that you are not eligible for program payments, that you have converted wetlands on your property, that you have been overpaid for disaster or other program payments, that you have to pay back prevented planting payments you received, and so on.
There are several avenues available to the producer to challenge these decisions. First, however, it is important to know that the agency is required to inform you of your appeal rights within the letter denying benefits. This is important because there is a limited timeframe for the producer to appeal the decision, usually 30 days, and the failure of the agency to notify the producer of appeal rights can stall the running of that time period in some instances.
Most of these decisions are issued by a local county committee or office, so typically your first option is to request reconsideration by the county FSA committee and gather and present information supporting your position at an informal hearing. Most producers handle this step on their own, but we have had and would recommend that producers contact an attorney at this early stage of the process to make a strong case right off the bat. If you lose the reconsideration request, the next step up the ladder is an appeal to the state agency. At the state committee appeal, you will again have the right to an informal hearing and the chance to present arguments and documents which support your case.
The last step up the ladder is an appeal to the National Appeals Division, or NAD. You’ll have the option of having the appeal determined on briefs submitted by each side, or having a teleconference or in-person hearing. After the hearing officer rules, either side will have the chance to request a Director Review of the decision (yet another appeal). After that, the parties may request a Reconsideration of Director Review. If neither side requests a director review or reconsideration within 30 days of receipt of the determination, the decision becomes final. It is also possible to appeal a final agency determination through the United States District Court. If the producer ultimately prevails, the producer may recover attorneys’ fees and costs under certain circumstances through an EAJA application and determination.
The unique, and sometimes confusing, part of the agency appeal process is that you can skip the county reconsideration step and go right to the State Committee, or skip the county and State appeals, and go right to NAD to shorten the appeal process. (Once you skip a step, however, you can’t “go back down” and once you are within the NAD process, you don’t have the option to skip through steps). The benefit of going through each step is that you’ll have more chances to prove your case and there is the potential to win the case early on in the process with less expense and wasted time. The downside is that you may go through 5, 6, or 7 steps of the appeal process, be many months or years down the road, and still not have a good decision.