01-APP R02 A03.pdf, Program Appeals, Mediation, And Litigation

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FSAHANDBOOKProgram Appeals, Mediation, and LitigationTo access the transmittal page click on the short referenceFor All FSA EmployeesSHORT REFERENCE1-APP(Revision 2)UNITED STATES DEPARTMENT OF AGRICULTUREFarm Service AgencyWashington, DC 20250


UNITED STATES DEPARTMENT OF AGRICULTUREFarm Service AgencyWashington, DC 20250Program Appeals, Mediation, and Litigation1-APP (Revision 2)Amendment 3Approved by: AdministratorAmendment TransmittalA Reason for AmendmentThis amendment: corrects reference errorsclarifies reporting and other requirements.B Major ChangesSubparagraphs 24 A and 87 A have been amended to provide guidance in situations where NADasserts jurisdiction after an adverse decision has been withdrawn by FSA.Subparagraph 73 B has been amended to update the link to the NAD Hearing Guide.Subparagraph 136 C has been amended to clarify implementation status reporting requirements.TC3, 41-8-09Page Control ChartText2-39, 2-402-43, 2-446-5, 6-66-55, 6-566-161 through 6-1706-177ExhibitPage 1


Table of ContentsPage No.Part 1Basic Information1234567Part 21-11-31-51-61-81-8General 2930Part 3Decisions for Which 7 CFR Part 780 and This Handbook Apply .Appealable Issues .Decisions Outside 7 CFR Part 780 and the Informal Appeals Process .Nonappealable Decisions .Required Elements of an Adverse Decision Letter .Appeal and Review Options in FSA’s Informal Appeals Process .Mandatory Language to Insert in Adverse Decision Letters .Decisions About Issues That Are Nonappealable.Time Limits for Issuing Adverse Determinations and Filing Requests forAppealability, Reconsideration, Mediation, or Appeal .Acknowledging Requests and Preparing for Informal Hearings,Meetings, and Appeals.Verbatim Transcripts .Due Process and Appellant Document Access .Conducting Meetings and Informal Hearings .Appeal or Reconsideration Determinations .Administrative Record .Avoiding Default Determinations in Payment Limitation Appeals .Withdrawing FSA Adverse Decisions .Finality of Administrative Decisions and Reopening FSA Appeals Cases .Employee Assistance to Program Participants .Discrimination or Misconduct Allegations.Suspensions, Debarments, Disqualifications, and Exclusions.EAJA Applications, Notices, or Claims eld Office Actions31323334-409-8-08Overview .FSA, Office of the Administrator, OBPI, ALS Organization.Reserving Authority .Coordinating Appeals in State Offices .NAD Case Activity Summary .State Supplements.(Reserved)Handling Requests for Reconsideration .COC Appeals .STC Appeals .(Reserved)1-APP (Rev. 2) Amend. 23-13-33-4TC Page 1

Table of ContentsPage No.Part 4NRCS Appeals41424344-50Part 54-14-24-8Mediation515253545556575859-70Part 6Mediation Features and Objectives .Mediation Availability .Conforming With Program Requirements .Processing Requests for Mediation .Participating in Mediation .Documenting Mediation Agreements .Closing Out Mediation .Reopening Mediation .(Reserved)5-15-45-55-65-95-145-165-20NADSection 1717273747576777879, 806-3-08NRCS Appeals .Procedures for Reviewing NRCS Technical Determinations .FSA’s Consideration of NRCS Determination Appeals.(Reserved)General ProvisionsOverview .Establishment of NAD.NAD Jurisdiction and Hearing Guide.Appealing to NAD .Procedural Rights Under NAD Rules .NAD Appeal Record.Ex Parte Communications.Subpoenas in NAD Proceedings.(Reserved)1-APP (Rev. 2) Amend. 16-16-36-46-76-116-156-186-21TC Page 2

Table of Contents (Continued)Page No.Part 6NAD (Continued)Section 2Conduct in NAD Appeals818283848586Pre-Hearing Conferences .Objections to NAD Jurisdiction to Conduct an Appeal Proceeding.Stipulations .Joint Proceedings and Consolidating Appeals.Discovery .Official Recordings and Requests for Verbatim Transcripts ofNAD Proceedings .87Withdrawals .88Appellant’s Right to NAD Hearing and Types of NAD Hearings .89NAD Hearings .90NAD Review Standards.91Burden of Proof.92Findings of Fact .93Hearing Conduct .94NAD Hearing Recordings and Verbatim Transcripts.95Opening Statements .96Evidence.97Documentary Evidence for NAD Appeals .98Witnesses .99Witness Examinations and Cross-Examinations .100FSA Rebuttal Case Presentation .101Closing Statements.102Closing NAD Hearing Records .103Failures to Appear.104NAD Appeal Hearing Do’s and Don’ts .105-110 (Reserved)Section -776-856-896-906-916-936-94NAD Hearing Officer Determinations111112113114115Hearing Officer Determinations .Hearing Officer Appeal Determination Format.Receiving and Distributing NAD Appeal Determinations .Misdirected NAD Appeal Determinations.Receiving, Disseminating, Analyzing, and Processing Hearing OfficerDeterminations.116Hearing Officer Determinations Finding Error or Reversing FSA.117Appellant Requests for NAD Director Review of Hearing OfficerDeterminations .118Hearing Officer Determinations Involving Equitable Relief.119Hearing Officer Determination Finalization.120-124 (Reserved)6-3-086-416-446-466-516-521-APP (Rev. 2) Amend. 16-1216-1226-1246-1256-1266-1286-1296-1316-133TC Page 3

Table of Contents (Continued)Page No.Part 6NAD (Continued)Section 4NAD Director Reviews125 Requesting Director Review of Hearing Officer Determinations.126Director Review Requests.127Formatting Director Review Requests and Distributing Determinations .128(Withdrawn--Amend. 2)129 Requests for Reconsideration of Director Review Determinations.130-134 (Reserved)6-1516-1556-1576-161Section 5 Implementing Final Administrative Decisions135Implementing Final NAD Director Review Determinations .136Reporting Implementation Status .137-150 (Reserved)Part 7FOIA and Privacy ActSection 1FOIA151Administrative Appeal Rights.152State FOIA Coordinators .153FOIA Request File .154Processing Appeals .155Final Administrative Determination .156Judicial Review.157-160 (Reserved)Section 2Section 37-17-47-67-77-87-9Privacy Act – Access to Records161Right to Appeal Decision to Deny Access to Records .162 Refusal to Grant Access Notification .163Processing Appeals .164Final Determinations.165-170 (Reserved)7-317-327-337-35Privacy Act – Amending FSA Records171 Right to Appeal Decision to Refuse to Amend and Notification.172Processing Appeals .173Review by Administrator and Final Determination.174-175 (Reserved)1-8-096-1716-1761-APP (Rev. 2) Amend. 37-717-737-75TC Page 4

Table of Contents (Continued)Part 7FOIA and Privacy Act (Continued)Section 4Privacy Act - Penalties176Statute of Limitations .177Civil Remedies.178Criminal Penalties.179-190 (Reserved)Part loyees Appearing as Witnesses in Judicial or Administrative Proceedings.Administrative Tort Claims .Awards Under EAJA 2728-404142-505152-60619-8-08Reports, Forms, Abbreviations, and Redelegations of AuthorityDefinitions of Terms Used in This Handbook(Reserved)ALS Generated NAD Case Activity Summary Report(Reserved)Example Initial Determination LettersSummary Outline for Informal Hearing or MeetingExample Letter Denying a Late-Filed Request for Appealability,Reconsideration, Mediation, or AppealExample Letter Allowing a Participant Time to Provide WrittenExplanation for a Late-Filed Request for Appealability, Reconsideration,Mediation, or AppealExample Letter Denying a Late-Filed Request for Appealability,Reconsideration, Mediation, or Appeal That is Accompanied byExplanation of Late-FilingExample Letter of Acknowledgement of Request for Review(Reserved)Example Determination Letter for a COC Appeal Hearing(Reserved)Example Letter of Acknowledgement of Request for Reconsiderationor AppealNRCS State Appeal Contacts(Reserved)Language for Objection to Parties Referencing NAD Cases in Other Decisions(Reserved)Example Summary Outline for Responses to Appellant-Filed Requests for NADDirector Review(Reserved)Example Letter to Participants or Payees for EFT’s1-APP (Rev. 2) Amend. 2TC Page 5


Par. 1Part 11Basic InformationOverviewA PurposeThis handbook provides: guidelines to FSA offices on matters about appeals and litigation, requests for documents,witnesses, etc. uniform procedure and policy about FSA’s informal appeal process that includes: ADR, also referred to as mediationappealability reviewsappealsreconsiderations.B Goal of Informal Appeals ProcessThe goal of the informal appeals process is to maximize opportunity for resolution of factualdisputes between participants and FSA at the lowest possible level within FSA.The informal appeals process provides opportunity for review by persons or committees withdetailed knowledge of FSA programs, knowledge of farming and ranching operations, andexpertise in farm and ranch management. This is in contrast to appeals administered byNAD under rules at 7 CFR Part 11.While participants may have the option to seek review at NAD, it is FSA’s experience that,generally, only the most difficult unresolved disputes proceed to further appeals before NAD.6-3-081-APP (Rev. 2) Amend. 1Page 1-1

Par. 11Overview (Continued)C Sources of AuthoritySources of authority for this handbook include the following: 5 U.S.C. 5747 U.S.C. 699515 U.S.C. 714b and 714c16 U.S.C. 590h7 CFR Part 1, Subpart K, Subpart G, Subpart A7 CFR Part 117 CFR Part 780individual program regulations and internal operating guidelines.This table provides steps to access CFR’s online.StepAction1Go to http://www.gpoaccess.gov/cfr/index.html.2On Code of Federal Regulations (CFR) Main Page, under 1996 Through CurrentYear Based On CFR Update Schedule, CLICK “Browse and/or Search the CFR”.3On Available CFR Titles on GPO Access Page, scroll down to “7”, “Agriculture”,and CLICK “Jan. 1”.4On Code of Federal Regulations Home Page, scroll down and under “Browse Parts”column, click the range of parts for the part user wants to view.5On the page displayed, scroll down and click on the part user wants to view.6Click either the TXT or PDF icon to view the subparts.Example: Starting with step 4, if user wants to view 7 CFR Part 780, user would: scroll down and CLICK “700-799”, “Farm Service Agency”scroll down and CLICK “780”, “Appeal regulations”click either the TXT or PDF icon, depending on preference.D Related HandbooksRelated handbooks include, but are not limited to the following: 9-AO for contact with OIG and using OIG documents to support an adverse decision 18-AO for Civil Rights compliance *--1-AS for State supplements--* 27-AS for mediation services contracting 61-FI for Prompt Payment Act 58-FI for establishing claims and making offsets 98-FI for mediation expense accounting codes 2-INFO and 3-INFO for FOIA and Privacy Act requests.9-8-081-APP (Rev. 2) Amend. 2Page 1-2

Par. 22FSA, Office of the Administrator, OBPI, ALS OrganizationA ALS Organizational Structure and DutiesALS is part of the Office of the Administrator. ALS: monitors and coordinates administrative appeal activities develops administrative appeal policy prepares National directives assists OGC and the Department of Justice with administrative appeals and litigationinvolving FSA and CCCNote: ALS is FSA’s point of contact for obtaining concurrence on behalf of theExecutive Vice President, CCC, or Administrator, on any compromise or offer ofsettlement stemming from or potentially about administrative appeal or litigation.6-3-08 conducts hearings, as necessary, about suspension and debarment appeals assembles and prepares for signature by the Administrator, requests for NAD Directorreview or reconsideration provides guidance to FSA offices and officials on mediation cases and on appeals andlitigation matters reviews and processes FOIA and Privacy Act appeals reviews and processes AFIDA appeals.1-APP (Rev. 2) Amend. 1Page 1-3

Par. 22FSA, Office of the Administrator, OBPI, ALS Organization (Continued)B ALS AddressesThe addresses for ALS are as follows.For FedEx, UPS, or other ApprovedOvernight Mail DeliveryUSDA, FSA, ALSSOUTH BUILDING ROOM 6722-S1400 INDEPENDENCE AVE SWWASHINGTON DC 20250-6722For USPS DeliveryUSDA, FSA, ALSSTOP 0570APPEALS AND LITIGATION STAFF1400 INDEPENDENCE AVE SWWASHINGTON DC 20250-0570Telephone: 202-690-3297.*--Notes: Use FedEx, UPS, or other approved overnight service when time is of the essence orwhen sending any electronic disks, photographs, or other sensitive or damageablematerial.USPS regular or priority mail shall not be used for packages or when time is a factor.USPS regular mail should only be used for routine letter correspondence.--*C ALS Contact InformationALS contacts are as follows.NameJohn W. WelchGwen SellmanCharles BergeH. Tal DayG. Sean O’NeillGalen VanVleetCarol WagnerRobin Wieland9-8-08Appeals and Litigation StaffMain Telephone Number: 202-690-3297FAX Number: 202-690-3003.TitlePhone NumberDirector202-690-3297Staff Assistant202-690-3297Management Analyst202-720-7757Management Analyst202-720-0358Management Analyst202-720-9003Management Analyst202-690-8034Management Analyst202-720-4966Paralegal Specialist202-690-28141-APP (Rev. 2) Amend. 2Page 1-4

Par. 33Reserving AuthorityA Regulation[7 CFR 780.3] (a) Representatives of FSA and CCC may correct all errors in dataentered on program contracts, loan agreements, and other program documents and theresults of the computations or calculations made pursuant to the contract or agreement.FSA and CCC will furnish appropriate notice of such corrections when corrections aredeemed necessary.(b) Nothing contained in this part shall preclude the Secretary, or the Administrator ofFSA, Executive Vice President of CCC, the Chief of NRCS, if applicable, or a designee,from determining at any time any question arising under the programs within theirrespective authority or from reversing or modifying any decision made by asubordinate employee of FSA or its county and State committees, or CCC.B Determinations Binding on FSA Reviewing AuthoritiesExcept for special determinations reserved for the Secretary; Administrator, FSA; ExecutiveVice President, CCC; or designees thereof, the following determinations, including technicaldeterminations, are binding on FSA reviewing authorities: any Federal agency, other than FSA and NRCSNRCS Title XII.Note: Process appeals about NRCS Title XII determinations according to Part 4.C Special Handling During AppealsAlthough an FSA reviewing authority must accept written findings of fact and technicaldeterminations as binding, the reviewing authority may, at its own option, requestclarification from the determining official or agency.Unusual situations or circumstances should be discussed with ALS as necessary.6-3-081-APP (Rev. 2) Amend. 1Page 1-5

Par. 44Coordinating Appeals in State OfficesA SAC DutiesEach State Office shall designate at least 1 employee as SAC who will be responsible for: ensuring that FSA’s interests are properly and adequately represented protecting the integrity of FSA’s programs in all administrative appeal and mediationproceedings assigning appeal cases to an FSA employee for handling appointing or designating an FSA employee as FSA representative for an appeal(subparagraph B)Note: SED’s have discretion to make each program specialist responsible for aparticular program area responsible as a SAC. Regardless whether a State Officehas 1 or more SAC’s, each appeal case shall be assigned to a particular FSAemployee for handling as the FSA’s representative. assisting, to the extent necessary, the employee assigned the case in assembling andpreparing the case file reviewing all NAD determinations where FSA error has been found * * * and submit toALS an analysis of NAD’s determination and recommendation for the case to ALSaccording to paragraph 113 ensuring that the employee assigned the responsibility for handling a case will beavailable and will attend scheduled NAD proceedings assuring that NAD determinations are properly and timely implementedNote: When there are questions about proper implementation, contact ALS and/or therespective National Office program division responsible for the subject, asnecessary. *--monitoring receipt and implementation of final NAD determinations9-8-08 preparing report required in subparagraph 136 C.--* reviewing and distributing, as appropriate, copies of the NAD appeal summary that isgenerated by ALS (paragraph 5 and 7 CFR Part 780 (see subparagraph 1 C)).1-APP (Rev. 2) Amend. 2Page 1-6

Par. 44Coordinating Appeals in State Offices (Continued)B Appeal Representative DutiesEmployees designated or appointed as FSA representative for an appeal are responsible for: ensuring that FSA’s interests are properly represented and that the integrity of FSA’s andCCC’s programs are protected managing FSA’s administrative record by making sure that all relevant and pertinentdocuments, program operating guidelines, and applicable regulations are includedNote: See paragraph 88 for instructions on records to be submitted to NAD.5 participating in the pre-hearing conference before a NAD appeal hearing submitting documents for inclusion in a NAD hearing record to NAD, appellant, andthird parties preparing for the hearing appearing at the NAD hearing as FSA’s authorized representative reviewing the NAD determinations according to paragraphs 111 through 114 coordinating appeal activities with SAC working with SAC in consulting with the National Office on program issues relating to aspecific case, including guidance on national policy and procedure, and, as appropriate,authority to resolve a case ensuring that NAD determinations are properly and promptly implemented within30 calendar days of the effective date of the notice of the final NAD determination(paragraph 5).NAD Case Activity SummaryA ALS Generated ReportALS generates a report for internal FSA use showing active NAD cases and the status as ofthe dates shown on the report. Generally, the report is issued to State Offices weekly. SAC’sand other interested FSA offices and employees are expected to use the report that includesinformation about:9-8-08 the due date for the Administrator to request a NAD Director review outcome or action required in response to individual NAD hearing officer determinationsreceived by FSA1-APP (Rev. 2) Amend. 2Page 1-7

Par. 55NAD Case Activity Summary (Continued)A ALS Generated Report (Continued) active cases for which FSA has requested NAD Director review and comments aboutaction that may be taken while FSA is waiting for the NAD determination active cases that were not submitted for NAD Director review and that may requireadditional FSA action and implementation active cases for which FSA or an appellant sought NAD Director reconsideration andoutcome or action required a list of notices of appellant-filed requests for NAD Director review or reconsiderationreceived by ALS and outcome or action required cases for which appealability determinations were made by NAD, received by ALS, andthe outcome of the appealability determinations a list of Notices of Conclusion received by ALS remaining cases due by a certain date pending disposition at NAD.Notes: The NAD Case Activity Summary may not contain complete information on allappellant-filed requests for NAD Director review or on NAD appealabilitydeterminations, because copies of those documents are not always sent to ALS.Additionally, NAD does not generally issue Notices of Conclusion on appealcases.See Exhibit 4 for an example of a NAD Case Activity Summary.*--6State SupplementsA SED ResponsibilitiesSED’s shall issue State supplements about appeals and litigation matters according to 1-AS,Part 8.B State Supplement ApprovalPrior approval of all State supplements will be obtained from the Director, ALS, using theState Directives Management System outlined in 1-AS, Exhibit 8.--*7 (Reserved)9-8-081-APP (Rev. 2) Amend. 2Page 1-8

Par. 8Part 28General ProvisionsDecisions for Which 7 CFR Part 780 and This Handbook ApplyA Applicability[7 CFR 780.4(a)(1)] Except as provided in other regulations, this part applies todecisions made under programs and by agencies, as set forth herein:(i)Decisions in programs administered by FSA to make, guarantee or service farmloans set forth in chapter VII and XVIII of this title relating to farm loanprograms;(ii)Decisions in those domestic programs administered by FSA on behalf of CCCthrough State and county committees, or itself, which are generally set forth inchapter XIV of this title, or in part VII relating to conservation or commodities;(iii)Appeals from adverse decisions, including technical determinations, made byNRCS under title XII of the Food Security Act of 1985, as amended;(iv)Penalties assessed by FSA under the Agricultural Foreign Investment DisclosureAct of 1978, 5 U.S.C. 501 et seq.;(v)Decisions on equitable relief made by a State Executive Director or StateConservationist pursuant to Section 1613 of the Farm Security and RuralInvestment Act of 2002, Pub. L. 107-171;(vi)Other programs to which this part is made applicable by specific programregulations or notices in the Federal Register.For FOIA and Privacy Act appeals, follow Part 7.6-3-081-APP (Rev. 2) Amend. 1Page 2-1

Par. 88Decisions for Which 7 CFR Part 780 and This Handbook Apply (Continued)B Prohibited Reviews[7 CFR 780.4(a)(2)] The procedures contained in this part may not be used to seekreview of statutes or regulations issued under Federal law or review of FSA’s generallyapplicable interpretations of such laws and regulations.Note: An explanation of policy or requirements does not constitute a program decision oreligibility determination. Likewise, a notice sent communicating what options maybe selected by a participant do not communicate a decision that can be challenged.Consequently, communications of this sort, whether in writing or verbal, should notconvey an opportunity to seek appealability, reconsideration, mediation, or appeal.C Decision-Makers Subject to FSA’s Informal Appeals Process[7 CFR 780.4(a)(3)] For covered programs, this part is applicable to any decision madeby an employee of FSA or of its State and county committees, CCC, the personnel ofFSA, or CCC, and by the officials of NRCS to the extent otherwise provided in thispart, and as otherwise may be provided in individual program requirements or by theSecretary.Note: Decisions of the Administrator and Deputy Administrators are considered finaldecisions not subject to mediation, reconsideration, or further appeal within FSA.They are, therefore, outside the scop

guidelines to FSA offices on matters about appeals and litigation, requests for documents, witnesses, etc. uniform procedure and policy about FSA's informal appeal process that includes: ADR, also referred to as mediation appealability reviews appeals reconsiderations. B Goal of Informal Appeals Process

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