Publications: Administrative Law
USDA’s National Appeals Division Procedures and Practice
Karen R. Krub (original author, 2003)
Amanda Urbanek (updated, 2019)
The USDA National Appeals Division (NAD) was created by the Secretary of Agriculture in 1994 pursuant to the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994. The NAD is the USDA’s administrative appeal authority for resolving disputes arising between program participants and several USDA agencies, including the Farm Service Agency, the Natural Resources Conservation Service, the Risk Management Agency, the Rural Business-Cooperative Service, the Rural Housing Service, and the Rural Development agency. This Research Article provides a step-by-step guide to the NAD appeal process. It was originally written by Karen Krub in 2003, and updated by Amanda Urbanek in 2019 Download this article. Posted: April 3, 2019
Developments in Administrative Law and Regulatory Practice, 2005-2006 — Agriculture
Harrison M. Pittman Research Assistant Professor of Law and Co-Director National Agricultural Law Center
This article examines several important agriculture-related judicial, administrative, and legislative developments that occurred during 2005 and 2006. In particular, the article discusses three important decisions issued by the Ninth Circuit, including Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. United States, which was initially triggered by the May 20, 2003 discovery of a cow in Alberta, Canada infected with Bovine Spongiform Encephalopathy (BSE). The article also examines two Federal Circuit decisions that involved challenges associated with statutory amendments to the peanut quota program under the Farm Security and Rural Investment Act of 2002, commonly referred to as the 2002 Farm Bill. The article also highlights several important administrative developments, including regulatory amendments to the National Organic Program that occurred in response to the First Circuit’s decision in Harvey v. Veneman and the issuance by the Environmental Protection Agency of a proposed rule that involves concentrated animal feeding operations. Download this article Posted: November 15, 2006
Statutory Exhaustion of Administrative Remedies in Actions Against the USDA
Christopher R. Kelley National AgLaw Center Faculty Advisor Associate Professor, University of Arkansas School of Law
The exhaustion of administrative remedies doctrine requires those who claim that an agency’s action is unlawful to exhaust any administrative remedies as a precondition to judicial relief. The doctrine is a venerable one, having originated in the federal common law as a prudential rule of judicial administration. It seeks to ensure that agencies retain the primary responsibility for administering the programs that Congress has placed within their purview and to promote judicial efficiency. In other words, “[t]he exhaustion doctrine . . . acknowledges the commonsense notion of dispute resolution that an agency ought to have an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court.” This traditional, court-created exhaustion doctrine has exceptions. For example, exhaustion is not required when the administrative remedy is inadequate or pursuing it would be futile. In general, these and the other exceptions reflect the judiciary’s balancing of the affected individual’s need for immediate judicial relief against the institutional needs for agency autonomy and judicial efficiency. Download this article. Posted: June 24, 2004
Dealing with the USDA: Federal Administrative Law Basics
Christopher R. Kelley Associate Professor of Law University of Arkansas School of Law
“Administrative law is not for sissies.” Antonin Scalia, Judicial Deference to Administrative Interpretations of Law This article offers insight into dealing with the United States Department of Agriculture (USDA) by introducing and explaining some of the most basic principles of federal administrative law. The USDA, like all federal agencies, was created by Congress. Because federal administrative agencies are created by Congress, the “cardinal rule number one of administrative law” is that “the legislature creates agencies and sets limits on their authority.” Thus, a federal agency’s authority is both granted and limited by Congress. Download this article. Posted: July 24, 2002.
Attorney’s Fee Awards for Unreasonable Government Conduct: Notes on EAJA
Christopher R. Kelley National AgLaw Center Faculty Advisor Associate Professor, University of Arkansas School of Law
The “American Rule” of attorney’s fees ordinarily requires each party to pay its own fees in the absence of express statutory authority to the contrary. When one of the parties is the federal government this rule is bolstered by the government’s sovereign immunity. In about 200 statutes Congress has clearly put aside the American Rule and waived the federal government’s sovereign immunity to permit the award of attorney’s fees to prevailing parties other than the federal government. Unlike many of these statutes, the Equal Access to Justice Act (EAJA) is not attached to any particular substantive cause of action. Instead, subject to its exceptions and limitations, the EAJA operates as a broad waiver of the federal government’s sovereign immunity from awards of attorney’s fees in non-tort civil proceedings. Near the end of its 2003-3004 Term, the United States Supreme Court in Scarborough v. Principi again resolved a question of interpretation of the EAJA, one that had divided several circuits. In light of this decision, now may be an opportune time to re-acquaint readers with the most basic features of EAJA. This article intends to do just that. Download this article. Posted: June 24, 2004
The USDA National Appeals Division: An Outline of the Rules of Procedure
Christopher R. Kelley Associate Professor of Law University of Arkansas School of Law
The USDA National Appeals Division (USDA NAD) was created by the Secretary of Agriculture in 1994 pursuant to the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994. On December 29, 1995, the USDA NAD Rules of Procedure were published in the Federal Register as interim final rules. These rules remained in interim final form until June 23, 1999, when they were amended and published as final rules. They appear in the Code of Federal Regulations at 7 C.F.R. Part 11. This outline reviews these rules. Download this article. Posted: April 1, 2003.