Common Questions Related to Appeals
Q: What is the typical process of an appeal? And how long will this take?
A: While each case is different, there is a typical process:
- Participant files an appeal.
- The regional office assigns an Administrative Judge. The AJ will hold the hearing within 45 days of receipt of a complete appeal request. The participant may waive this time frame if he or she so desires.
- Parties receive a Notice of Appeal and Request for Agency Record.
- Parties receive a Notice of Pre-hearing Conference. This is a telephone conference between all parties to determine next steps for evidentiary hearing.
- Notice of In-Person Hearing/Telephone Hearing/Record Review.
- After all evidence has been submitted, the Administrative Judge makes a determination.
- An Appeal Determination will be issued within 30 days of the date the hearing record closes.
- If any party disagrees with the Appeal Determination, the party can file a Request for Director Review.
Q: Do I have to travel to a hearing site for my hearing?
A: Not necessarily. You, as the participant, have the right to a hearing before a NAD Administrative Judge (AJ). There are three options to choose from:
- In-Person - conducted in your state of residence, where you personally appear before the Administrative Judge to explain your position and present evidence.
- Telephone - conducted over the phone.
- Record Review - an AJ will review the documents submitted, without a personal appearance, and make a determination based on evidence submitted for review and the governing regulations.
Q. May I have someone represent me in my appeal?
A. An appellant may authorize someone to represent them at the hearing and throughout the appeal. The appellant must authorize the representative in writing. Note, however, that appellants must personally sign requests for appeals or reviews. 7 CFR 11.6(b)(2) and (c)
Q. When is an appeal considered to be filed?
A. An appeal is filed when it is received in writing, when postmarked or when a complete facsimile copy is received by NAD. Filing deadlines to request appeals, reviews and reconsiderations are set forth in the regulations. Whenever the final date for filing falls on a weekend, Federal holiday, or other day when NAD is not open for business, the filing deadline is extended to close of business on the next work day. The time for filing any request or document is 5:00 p.m. local time at the office at which the filing is made. 7 CFR 11.14
Q. The agency did not give me appeal rights. May I still file an appeal?
A. Any adverse decision of an agency whose appeals are adjudicated by NAD may be appealable, whether or not the agency provides appeal rights. For assistance as to whether an agency decision is appealable, contact the appropriate Regional Office. Be sure to include a copy of the agency determination and indicate when it was received. 7 CFR 11.6(a)
Q. May I tell the administrative judge my side of the issue before the hearing?
A. No. In the hearing, both the appellant and the agency representative have the opportunity to explain the issue as they see it, to hear the other side, and to ask questions. Communication with the administrative judge about the merits of the appeal at any time other than the hearing is forbidden. Violation of this rule by an appellant can result in dismissal of the appeal. 7 CFR 11.7
Q. May I have a mediator instead of an administrative judge?
A. NAD does not mediate disputes, but appellants have the right to use any available alternative dispute resolution mechanism, including mediation. Appellants generally have 30 days following receipt of the agency's adverse determination within which to request an appeal, but if, during that 30-day period, an appellant requests mediation, the running of the 30-day period stops. If mediation ends without resolving the dispute, the clocks begins to run again from where it stopped. If mediation is requested after an appeal has been requested but before the hearing, the appellant is deemed to have waived his right to a hearing within 45 days of submission of the request for an appeal. But, if mediation does not resolve the dispute, the appellant has the right to a hearing within 45 days of conclusion of mediation. 7 CFR 11.5(c)
Q: How much does it cost to appeal?
A: The National Appeals Division provides this service free of charge.
Q. Can the administrative judge's determination be appealed?
A. Yes. Either party may request a Director review of an appeal determination by an administrative judge. The request for review must be personally signed by the appellant or the head of the agency. Requests for review from appellants must be received by NAD no later than 30 calendar days after the appellant receives the administrative judge's determination. Requests for review from agencies must be received by NAD no later than 15 business days after the agency receives the administrative judge's determination. 7 CFR 11.9
Q. Do I get another hearing before the Director if I disagree with the administrative judge?
A. No. In a Director review, the administrative judge's decision is examined to determine whether it is supported by substantial evidence on the record. The parties may, however, submit additional information for consideration during a Director review. 7 CFR 11.9
Q. May I ask the Director to reconsider a Director review determination?
A. Yes. Either party may request a Director reconsideration of a Director review determination. The request for reconsideration must be signed by the appellant or the head of the agency and must be received by NAD no later than 10 calendar days of receipt of the Director review determination. A request for reconsideration must include a detailed statement of a material error of fact made in the determination or a detailed explanation of how the determination is contrary to law or regulation which would justify reversal or modification of the determination. 7 CFR 11.11
Q. If I win my appeal, how soon does the agency have to implement the NAD determination?
A. By law, the agency has 30 days from the date the appeal determination is final to implement the NAD determination. 7 CFR 11.12(a)
Q. Can I get NAD to enforce its determination?
A. NAD has no authority to enforce its determination. The head of the agency is responsible for implementing NAD determinations. 7 CFR 11.12(a)
Q. What can I do if the agency refuses to implement the NAD determination?
A. A NAD determination is enforceable in any United States District Court of competent jurisdiction. 7 CFR 11.13
Q. I don't agree with an agency regulation. May I challenge it through NAD?
A. No. NAD cannot rule on the correctness of either regulations or laws. Only agency program determinations which adversely affect a participant are appealable to NAD. 7 CFR 11.3
Q. Does NAD hear cases involving alleged discrimination by an agency against a program participant?
A. NAD hears appeals only from adverse determinations issued by certain agencies in relation to administration of certain program. Cases involving alleged discrimination by an agency or employee of USDA are the responsibility of the; Office of Civil Rights. 7 CFR 11.1
Q. I was denied food stamps. May I appeal that adverse determination to NAD?
A. No, the law gives NAD the authority to hear cases that arise only under the programs of certain agencies. The Food Stamp Program is not administered by any of the agencies over whose programs NAD has been given this authority. 7 CFR 11.1
Q. May I select my own administrative judge?
A. No. Administrative judges are assigned appeals by the Director. 7 CFR 11.8(b)(2)
Q: What is the difference between a “hearing officer” and “administrative judge”?
A: They are one in the same. The duty title was changed to administrative judge to more accurately reflect the duties and responsibilities of these positions. Older documents may use the term “hearing officer”.
Q: What is an "Adverse Decision"?
A: An adverse decision is “an administrative decision made by an officer, employee, or committee of an agency that is adverse to a participant. The term includes a denial of equitable relief by an agency or the failure of an agency to issue a decision or otherwise act on the request or right of the participant within timeframes specified by agency program statutes or regulations or within a reasonable time if timeframes are not specified in such statutes or regulations.”
Q. What is a "Participant"?
A. A Participant is “any individual or entity who has applied for, or whose right to participate in or receive, a payment, loan, loan guarantee, or other benefit, in accordance with any program of an agency to which the regulations in this part apply, is affected by a decision of such agency.”