V. TIPS FOR APPEALS
Every appellant should do the following before appealing:
- Read the Instruction on adverse decisions and administrative
appeals (7 CFR Part 11 and
HB-1-3550 Chapter 1);
- Read the program instruction governing the
reason(s) for the adverse decision; and
- If possible, read the applicable governing
law (it should be within Title V of the Housing Act of 1949, as
amended).
Remember that the burden of proof is on the appellant.
Having become familiar with the governing documents, the appellant
should be in a better position to be confident of his/her position.
This confidence is important because an appeal is a time-consuming and
costly process for all concerned. the appellant, the decision maker
and the National Appeals Division.
The second phase of the appeal is to thoroughly prepare and document
evidence that the RHS decision was wrong. In addition to documentation,
based on RHS regulations, consider the following:
- Find experts in the program area who will testify on your behalf.
- Find experts who can produce a written document that is helpful
to your case.
- If possible, interview or question RHS/Rural Development officials
not connected with your case and document their answers.
- Research RHS/Rural Development handling of cases similar to yours,
especially if adverse action was not taken against them.
- Assemble any other evidence germane to your case.
Prior to requesting a hearing the customer should (1) ask for an informal
review of the decision and (2) consider mediation or alternative dispute
resolution (ADR). RHS/Rural Development experience indicates that many
disputes can be resolved at the informal review stage. This saves time
and money for both parties.
The next phase is preparing for the hearing. If possible, obtain the
services of an attorney, or of someone very familiar with administrative
appeals, to lead your case, introduce and question you and your own
witnesses, and cross examine the decision maker(s). The most important
aspect of this preparation is to make sure that your case zeroes in
on the specific reasons for the adverse action. A chronology of events
leading to your situation may get to the specific reasons .for denial
and may not. The hearing officer will probably confine your oral presentation
to the specific reasons at issue, and not permit you to digress.
Once you have all of the evidence and players together and have devised
your strategy, a rehearsal of roles is advisable. The evening prior
to the hearing is a good time to do this. The hearing is informal, but
each side will be trying to convince the hearing officer that it is
right. Rehearsal helps ensure that nothing important will be withheld
or overlooked.
Our final advice involves decorum in the hearing room. The hearing
officer will want quiet from all who are not testifying or answering
questions. S/he is also taping the proceedings and extra conversations
interfere. When you or your colleagues need to confer, either ask for
a very brief recess or leave the immediate area. The means for conducting
these brief conferences is best discussed in advance with, and decided
by, the hearing officer.
All of these recommendations are important. The appeal process is built
on the assumption that USDA employees may err from time to time. Never
lose sight of the fact that you, too, can err.
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