USDA’s appeals division has option to grant ‘equitable relief’

By BRUCE HOTCHKISS
Senior Editor

USDA’s National Appeals Division, as its name indicates, is in the business of appeals and it gets a lot of them.
Ed Nilson, coordinator of national appeals for the compliance division of the Natural Resources Conservation Service, said NAD was established in the early 1990s to handle cases of 14 USDA agencies.
Of those agencies, four receive the most appeals, he said — NRCS and Farm Service Agency, Risk Management Agency and Rural Development.
According to data pulled on Jan. 21 from NRCS Protracts, a total of 674 CSP contracts were drawn by Maryland farmers between the years 2005 and 2008 when the Conservation Security Program ended.
Of those, 289 remain active, 337 were completed, 20 were cancelled and 28 were terminated.
As to terminations, Congress, perhaps anticipating that mistakes might be made, adopted the Improper Payment Act which declared that if improper payments were made, they were to be returned, Nilson noted.
“Equitable relief,” however, Nilson said, is considered in some instances.
He offered this example:
“A participant might be eligible for equitable relief. ... One of our employees informs the participant he or she is eligible for a higher payment under Tier 3 and we proceed to make payments at Tier 3.
“Subsequently on review after the CSP contract expired, we determine the participant never qualified for Tier 3 coverage — because, for example he had a waste site for toxic chemicals — and is only entitled to lower payments under Tier 1 coverage.
“Based on the participant now being found to be in non-compliance with his CSP contract, in good faith believing he was eligible for the payments he received under Tier 3, equitable relief could be provided by NRCS and allow him to retain the payments received. It is discretionary on the part of NRCS to grant equitable relief.”
In the determination in the Talbot County cases, filed Jan. 14,  a five-page document and a blow-by-blow account of the case, Hearing Office Karen King wrote:
“The law (governing cases like this) provides that an appellant bears the burden of proving that an agency’s adverse decision is erroneous by a preponderance of the evidence. In this case, appellant did not meet this burden. The agency decision is not erroneous.”
Nilson, in commenting on that aspect of the applicable law, said he often visualizes the iconic scale of justice.
“Simply a feather placed upon one side of that scale can make a difference. NAD must rule in many cases on that featherweight.”