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Notice regarding the Benefits Review Board’s New Electronic Filing and Service Rule



(Notice Dated: 02/28/2024)

The Department of Labor recently published a final rule that requires electronic filing (e-filing), and makes acceptance of electronic service (e-service) automatic, by attorneys and lay representatives who represent parties in proceedings before the Benefits Review Board (BRB). See 89 Fed. Reg. 8,533 (Feb. 8, 2024). The rule provides an exception to the requirements for good cause shown and self-represented parties.

This new rule is effective on March 11, 2024. By this date, “attorneys and lay representatives must be registered with the BRB’s eFile/eServe system [EFS]—and file all pleadings, exhibits, and other documents through this system . . . .” 89 Fed. Reg. at 8,535 (emphasis added). E-filed documents must be in Portable Document format (PDF), and pleadings should be text searchable. Unless the BRB asks for them, paper copies of e-filed documents are not required.

Under the new rule, service may be completed by email, if the person being served consents to such service in writing, or by “[s]ending [the document] to a user registered with [EFS] by filing via this system.” 89 Fed. Reg. at 8,537. Importantly, “[a] person who registers to use [EFS] is deemed to have consented to accept service through the system.” Id. “Service by electronic means is effected on sending.” Id. Unless the serving party receives notice that the party served did not receive the document, “[a] document filed via [EFS] is considered received by the registered users on the date it is sent by the system,” and “[a] document served via electronic mail is considered received by the recipient on the date it is sent.” Id. A notice of appeal e-filed via EFS “is considered received by the office of the Clerk of the Board as of the date and time recorded by the system . . . .” Id.

Exceptions or exemptions are few, but important. First, self-represented parties may file pleadings, exhibits, and other documents in electronic or nonelectronic form. Second, attorneys and lay representatives may seek an exemption for good cause shown. In making such a request, the representative “must include a detailed explanation why e-filing or acceptance of e-service should not be required.” 89 Fed. Reg. at 8,537. If a person is “adversely affected by a technical failure in connection with filing or receipt of an electronic document,” they “may seek appropriate relief from the Board . . . .” Id. Should “a technical malfunction or other issue prevent[] access to the Board’s case management system for a protracted period, the Board by special order may provide appropriate relief pending restoration of electronic access.” Id.

The BRB urges all attorney and lay representatives who practice before the agency and who do not currently e-file to become familiar with EFS and the new rule in advance of it going into effect on March 11, 2024. If you do not yet have an EFS account, you may create one at https://efile.dol.gov.

Helpful User Guidance: Should you experience difficulty establishing your account, you can find helpful user guides, video tutorials, and answers to frequently asked questions at https://efile.dol.gov/support. You may also contact the Login.gov or eFile and eServe Help Desks via https://efile.dol.gov/contact

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