Terminated and Frozen USDA Funding: Filing an Appeal to Protect Your Rights Webinar

Selected Q&A from the chat box

Q: When you are addressing whether communication is “in writing” what does that mean? Does email count?

A: Email can be considered a “writing” for some legal purposes.

Q: How long can USDA go on offering zero information other than not to bill them?

A: Offering no further information is inaction- and at some point, that inaction does become an “adverse decision” and, thus, is appealable. But, we can’t state a specific timeframe for when inaction becomes an adverse decision and is appealable. Options include sending an inquiry letter to try and get further communication OR to put in an appeal letter to try and compel a response that way.   

Q: If a larger organization (such as an ag membership organization) files a lawsuit on behalf of its members, will the members have to file an appeal?

A: This is uncertain. There is case law to support it, but also some that doesn’t.

Q: At what point would you recommend engaging legal counsel in this process?

A: It can be helpful to be informed of your options, collect your documents. Then seek legal counsel to support you. If you have received written termination, you do need to act fast. There are folks that use counsel to file appeals with NAD. There are farmers who do it themselves, too.

Q: Do executive orders constitute a written notice of termination/freeze?

A: They might, but likely not. An executive order directs the agencies (particularly, their leadership staff) that are under the direction of the Executive Branch to do something/stop something, etc, rather than the general citizenry or those who may have contracts/agreements with the agency.  

Q: Are there risks in providing documents during an appeal that can jeopardize a court appeal? Things that you have to argue in the administrative appeal to keep the right to bring up in court? Documents that if you fail to provide them on admin appeal will prejudice your court case?

A: This could be an issue. So you will want to be as comprehensive as you can in the documents and evidence you submit.

Q: We’ve been told by our grant contract officer that the USDA has 90 days to review their grants, so we should hear a final decision in mid-April 2025. Do we need to wait till after that April deadline to file an appeal? Or is the current delay in paying our invoice considered a freeze, so the 30-day appeal window to NAD is already closed because we submitted that invoice on Feb 8th and were told then that funding is delayed?

A: If a person has written communication that they were told to wait for a decision at a certain point makes it less likely they’ll be penalized later on for relying on that direction and for waiting. Please also note that a freeze/non-payment of invoice is not immediately “adverse decision,” and does not start the 30-day time frame immediately. A freeze can at some point become an adverse decision, and then the 30-day window will start. But it is difficult to determine how long the inaction must persist before it becomes an adverse decision.

Q: Are cooperative agreements treated differently in the appeals process?

A: Cooperative agreements are, generally speaking, at the discretion of the agency with respect to allocating and spending these funds. The contract language of the cooperative agreement and other regulations generally make it easier to exercise discretion in the opposite direction- to end the agreement. That doesn’t mean not appealable- it means less likely to succeed as there is less basis for the appeal. Thinking back to how the appeal has to make a case (there was a mistake, this isn’t allowed) is harder with a cooperative agreement because more discretion is allowed.

Q: At this point does it make sense to wait until after the march 21st deadline for completing administrative reviews before pursuing a letter of inquiry route for USDA grant programs that are not issuing payments?
A: It may be a fine choice, but it also may be needless delay. The deadline and related EO to which I think you are referring is not the only basis on which a grant/contract may be held up for review. So what I’m saying is that it’s very hard to determine the best time frame. The risk of filing too early is getting it rejected as untimely and having to do it again, and dealing with the process.