The ARB has Rules of Practice and Procedure relating to efiling and eservice which were published in the Federal Register on January 11, 2021 and which became effective on February 25, 2021. 86 FR 1782-83. The Rules of Practice and Procedure are codified at 29 C.F.R. Part 26.

The Board applies the Federal Rules of Appellate Procedure to the extent practicable concerning the following matters:

  • Briefs – Rule 28
  • Computing and Extending Time – Rule 26
  • Corporate Disclosure – Rule 26.1
  • Cross-Appeals – Rule 28.1
  • Form of Briefs, Appendices, and Other Papers – Rule 32
  • Motions – Rule 27
  • Substitution of Parties – Rule 43
  • Voluntary Dismissal – Rule 42

However, there are several subject-specific rules of practice before the Board that have been published in the Code of Federal Regulations, including those listed below.

This list is not exhaustive, and judges, counsel, representatives, and other persons should ensure compliance with the applicable procedural rules. 

Otherwise, the Board applies standards for filings as set forth in the Board's orders. Parties should follow the specific guidance set forth in the orders issued in their cases.

Typically, after a party has filed an appeal with the ARB, the Board issues a Notice of Appeal and Briefing Order setting forth deadlines, service and filing information, rules, briefing guidelines, and other important information for the case.

The briefing order in a case may differ to some extent from the below, but generally briefing orders state the following:

Please read this document carefully and in its entirety. It contains important information about this appeal, including when and how to file with the Board, briefing requirements, and other important information. Failure to follow this Order may result in sanctions, including dismissal of this appeal.

1. ACCEPTANCE OF APPEAL.  The Board has accepted this matter for review and assigned it the ARB Case Number noted above. All future filings related to this matter must include this case name and ARB Case Number.

2. ARB Rules of Practice and Procedure. All filers are required to comply with the Board's rules of practice and procedure found in 29 C.F.R. Part 26, which can be accessed at https://www.ecfr.gov/current/title-29/subtitle-A/part-26. Additionally, the ARB Website at https://www.dol.gov/agencies/arb  contains many helpful resources including answers to "Frequently Asked Questions," and more.

3. ELECTRONIC FILING AND SERVICE

  1. Use of the EFS System
    The Board's Electronic Filing and Service (EFS) system allows parties to initiate appeals electronically, file briefs and motions electronically, receive electronic service of Board issuances and documents filed by other parties, and check the status of appeals via an Internet-accessible interface. Use of the EFS system is free of charge to all users. To use the EFS system, go to https://efile.dol.gov. 
     
    • Attorneys and Lay Representatives: Use of the EFS system is mandatory for all attorneys and lay representatives for all filings and service related to cases filed with the Board, absent an exemption granted in advance for good cause shown pursuant to 29 C.F.R. § 26.3(a)(1), (2).
       
    • Self-Represented Parties: Use of the EFS system is strongly encouraged for all self-represented parties for all filings and service related to cases filed with the Board. The EFS system spares litigants service-related time and expense by completing all required service upon all other parties to the case (once all parties are registered users in the system). 

      Without the use of the EFS system, parties must file documents with the Board and take the additional step of serving duplicate paper copies of all filings on every other party.   

      Self-represented parties who choose not to use the EFS system must file all pleadings, including briefs, appendices, motions, and other supporting documentation, by mail or by personal or commercial delivery. Email filings will not be accepted, absent extraordinary circumstances. Filings sent via mail or delivery must be paper documents—no electronic disks or flash drives will be accepted. Mailings and other delivery should be directed to:

      Administrative Review Board 
      Clerk of the Appellate Boards 
      U.S. Department of Labor 
      200 Constitution Avenue, N.W. Room S-5220
      Washington, D.C. 20210 

      Please note that the Board's rules at 29 C.F.R. § 26.3(a)(4) specify that "[u]nless a different time is set by statute, regulation, executive order, or judge's order, a document is considered filed when received by the Clerk of the Appellate Boards." This means that unless otherwise set by law, under the Board's regulations, a mailed document is filed upon receipt of the document by the Clerk's office (not as of the mailing or postmark date). 

      In contrast, documents filed through the EFS system are received as of the date and time recorded by the system, and, per 29 C.F.R. § 26.2(b)(2)(i), are timely as long as they are received at or before 11:59:59 Eastern time on the due date (i.e., the last minute and second of the day it is due). 

      The filing party must also serve all other parties to the case by a method of service authorized under applicable law or rule. 
       
    • Non-Party Participants: Amici or other non-party participants in a case filed before the Board, if represented by counsel or a lay representative, are required to use the EFS system for all filing and service. 
       
  2. EFS Registration and Duty to Designate E-mail Address for Service
    To use the Board's EFS system, a user must have a validated user account with Login.gov. To begin, go to https://efile.dol.gov, select the button to "Create Account," and proceed through the registration process. If the user already has an account, they may simply use the option to "Sign In." Once signed in, select "eFile & EServe with the Administrative Review Board (ARB)," and then select "Access Appeals."  

    In order for any other user (other than the EFS user who filed the appeal) to access the appeal, the user must first create an account following the steps above, then select "Request Access to Appeals," search for and select the appeal the user is requesting access to, answer the questions as prompted, and click the button "Submit to DOL." 

    Information regarding use of the EFS system, as well as a step-by-step User Guide, answers to frequently asked questions (FAQs), video tutorials, and contact information for login.gov and EFS support can be found under the "Support" tab at https://efile.dol.gov.  
     
  3. Effective Time of Filings
    Any electronic filing transmitted to the Board through the EFS e-File system by 11:59:59 Eastern Time shall be deemed to be filed on the date of transmission. A document filed by means other than EFS is considered filed when received by the Clerk of the Appellate Boards, unless a different time is set by statute, regulation, executive order, or judge's order. 29 C.F.R. § 26.3(a)(4). 
     
  4. Service of Filings
     
    • Service on Registered EFS Users: Service upon registered EFS users is accomplished​ by the EFS system.​ 
       
    • Service on Other Parties or Participants: Service upon a party that is not a registered EFS user must be accomplished​ through any other method of service authorized under​ applicable rule or law.​ 
       
  5. Proof of Service
    Every party is required to prepare and file a certificate of service with all filings. The certificate of service must identify what was served, upon whom it was served, and in what manner it was served. 
     
    • Service on EFS-registered parties: each EFS filing submitted and served on EFS-registered parties must include a certificate of service which indicates that service was accomplished via EFS with the date of service.  
       
    • Non EFS-registered parties must be served using other means authorized by law or rule.

4. BRIEFING REQUIREMENTS

  1. Briefing Schedule
    • Opening Brief:  Within 28 calendar days of the date of this Order, the petitioner (the party who filed the appeal) must file with the Board a supporting legal brief of points and authorities. The Opening Brief may not exceed 30 double-spaced pages.    
       
    • Response Brief:  Within 28 calendar days from the date of service of the petitioner's Opening Brief, the opposing party may file with the Board a Response Brief in opposition to the Opening Brief. The Response Brief may not exceed 30 double-spaced pages. 
       
    • Reply Brief:  Within 14 calendar days from the date of service of a Response Brief, the petitioner may file with the Board a Reply Brief. The Reply Brief may not exceed 15 double-spaced pages.   

      No additional briefs may be filed without the prior written permission of the Board, issued by Order.
  2. Motions and Responses 
     
    • Motions: All motions and other requests for action by the Board including, but not limited to, requests for extensions of time or to exceed page limitations, shall be in the form of a motion. Motions may not exceed 20 double-spaced pages.

      Before filing any motion or other request for non-dispositive action or relief with the Board, including any request for an extension of time, the moving party must make a good faith effort to confer with all other parties to ascertain whether they consent to the action or relief sought. The moving party must state in its motion whether the other parties' consent to the action or relief sought or, if no conference occurred, the efforts the moving party made to confer with the other parties. Any motion for non-dispositive action or relief that fails to include this information may be summarily denied.   
       
    • Response to motions:   Any party may file a response to a motion. Responses to motions may be filed within 10 calendar days after service of the motion unless the Board shortens or extends the time. However, nothing in this order limits the Board from granting or denying a motion before the expiration of this time period. Responses may not exceed 20 double-spaced pages.
       
    • Replies to Responses: Any movant may file a reply to a response. A reply must not present matters that do not relate to the response. Any reply to a response must be filed within 7 calendar days after service of the response. Responses may not exceed 10 double-spaced pages.
  3. Settlements
    Several of the Board's program regulations provide that settlements must be approved by the Board. Requests for Board approval of a settlement must be made by motion to the Board. For regulations requiring Board approval of settlements, parties must submit a fully executed and dated copy of the settlement agreement to the Board with its motion to dismiss based on settlement. Any motion that fails to comply with these requirements may be summarily denied. 
     
  4. Withdrawals
    Several of the Board's program regulations provide for withdrawal of an appeal. Requests to withdraw an appeal must be made by motion to the Board. If you are requesting to withdraw an appeal under a program regulation requiring the Board to approve of settlement agreements, you must certify that the withdrawal is not based on a settlement. Any motion that fails to comply with these requirements may be summarily denied. 
     

  5. Appendix and Exhibit Filings From the Record1

    Parties are not required to file an appendix, and to the extent an appendix does not comply with the requirements below, it is prohibited. Instead of filing an appendix, the Board encourages parties to cite directly to materials from the record in their briefing because the Board will review the record.2

    On the rare occasion when an appendix is filed, the filing party must file a clear table of contents for any exhibits the party wants to rely upon of well-labeled excerpts from the record that are directly cited in the brief, motion, or other accompanying filing. The Board specifies that these excerpts should be pages directly cited in the filing, rather than entire long documents and the filing should directly state where the materials are located in the record. Parties may not file the entire record or large portions of the record (such as transcripts or ALJ orders) with the Board.

    Finally, any appendix should be filed either 1) as an attachment in the same pdf document as the accompanying filing, or in one pdf document separate from the accompanying filing with all of the exhibits together in one document, 2) may not include evidence that is not in the record, and 3) may not exceed 50 pages. Any appendices should be submitted at the same time a party files its accompanying filing.

    Any appendix filed that does not meet the above requirements may be summarily rejected by the Board.

  6. New Evidence

    The Board generally does not consider materials presented for the first time on appeal. Therefore, parties may not file, or include in an appendix, any evidence not already contained in the record, without prior written permission granted by Board order.

    Parties seeking to file new evidence must file a motion with the Board with supporting argument. When considering whether to allow new evidence on appeal, the Board relies on the standard contained in the Office of Administrative Law Judges Rules at 29 C.F.R. § 18.90(b)(1): "[n]o additional evidence may be admitted unless the offering party shows that new and material evidence has become available that could not have been discovered with reasonable diligence before the record closed." The Board grants such requests only in limited circumstances. To satisfy this standard, the moving party typically must show that (1) the evidence was discovered after trial; (2) due diligence was exercised to discover the evidence; (3) the evidence is material and not merely cumulative or impeaching; and (4) the evidence is such that a new trial would probably produce a different result.

    The Board retains the authority to reject any appendix or exhibit filings that do not meet these requirements.

  7. Page Limitations

    The page limitations set forth in this Order do not include cover pages, tables of contents, tables of citations, signature blocks, or certificates of service. A motion to exceed an identified page limitation must specify how many additional pages are being requested and why additional pages are required.

    If a brief or motion is filed without approval that exceeds the stated page limitations, the Board may, with or without notice: (1) refuse to accept the filing; (2) strike the filing with leave to refile a compliant filing within a specified time; (3) disregard the pages of the filing that exceed the page limitation; or (4) issue any other appropriate order, including the issuance of sanctions.

  8. Required Format:  All pleadings, briefs, and motions must comply with the following requirements:
    • 12-point, 10 character-per-inch type or larger font
    • Double-spaced
    • Minimum of one-inch margins
    • Printable on 8.5- by 11-inch paper

  9. Artificial Intelligence

    The use of artificial intelligence (AI) is increasing every day. While it can be a helpful tool, parties are reminded to confirm the accuracy of all case citations and quotes before submitting them. In making submissions generated by AI, parties must note that the party has confirmed that the materials and cases generated are not fictitious.

    The submission of fabricated materials—by a human author or AI—will result in sanctions by the Board, up to and including dismissal of the appeal.

    Model Note of AI Use

    I, (Insert Name), verify that I have been assisted by AI in preparing this submission and confirm that the materials and cases generated therefrom and used herein are not fictitious or fabricated.
    /s/
    Signed

5. INQUIRIES AND CORRESPONDENCE: For efiling assistance, inquiries must be made while logged into the system by using the eFile and eServe Help Request Form at https://efile.dol.gov/contact. All other inquiries and correspondence related to filings should be directed to the Office of the Clerk of the Appellate Boards by email to ARB-Correspondence@dol.gov or by fax at 202-513-6832. If you still have questions after reviewing the above, inquiries or questions may be directed to the Board by telephone at (202) 693-6200 (please leave a voicemail message and every effort will be made to return your call as soon as feasible).

1An appendix is a document or documents attached to the end of a filing, which can be made up of exhibits. Exhibits, in the context of filings with the Board, are documents attached to briefs, motions, or other filings.
2To consider the appeal, the Board will obtain the entire record.