Stokes v. Albertsons LLC (agency decision, December 2, 2021)

Plain-English summary

Wayne Stokes already had an appeal pending as ARB 2022-0007 when he filed a petition challenging an amended ALJ decision. The filing was mistakenly opened as a second appeal, ARB 2022-0014. The Board removed the duplicate number and placed the November 30 petition and amended ALJ decision in the existing 2022-0007 case. It then gave the petitioner 28 days for an opening brief, the opposing party 28 days to respond, and the petitioner 14 days to reply. The order also explained electronic filing and service requirements and the optional OALJ alternative-dispute-resolution process. It made no ruling on the substance of Stokes's STAA claim.

Decision snapshot

• Cited authority: 29 C.F.R. § 26.1(b)
• Outcome: Duplicate docket 2022-0014 removed; filings moved to 2022-0007; briefing schedule issued.
• Key point: A later petition in the same dispute belongs in the existing appeal rather than a second ARB docket.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

 In the Matter of:


 WAYNE STOKES,                                  ARB CASE NOS. 2022-0007
                                                              2022-0014

              COMPLAINANT,                      ALJ CASE NOS. 2020-STA-00080
       v.                                                     2020-STA-00082

 ALBERTSONS LLC AND
 DARRELL KIDD,                                  DATE: December 2, 2021

              RESPONDENT.


                                       ORDER


       By Order dated November 4, 2021, the Administrative Review Board (Board)
 issued the Notice of Briefing Schedule. On November 17, 2021, Complainant filed a
 motion requesting the Board to stay the briefing schedule pending the resolution of
 Administrative Law Judge Christopher Larsen’s decision on the Motion for
 Reconsideration filed by Complainant. On November 22, 2021, the Board granted
 Complainant’s Motion to Stay.

        On November 30, 2021, the Board received a Petition for Review
 electronically filed by Complainant appealing Administrative Law Judge
 Christopher Lawson’s November 21, 2021 Amended Decision and Order Denying
 Relief. The Board accepted Complainant’s Petition for Review and the appeal was
 assigned ARB Case No. 2022-0014. However, the document should have been filed
 in the existing case, ARB No. 2022-0007, rather than as a second appeal. The Board
 hereby removes 2022-0014 from its docket. The November 30, 2021 Petition for
 Review and the ALJ’s Amended Decision and Order Denying Relief will be
 associated with ARB Case No. 2022-0007.

        If you are receiving this Order by email you must request electronic access
 through the EFS system in each appeal that you are not the petitioning party in
 order to receive any documents filed by the Board.
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    The use of the Board’s Electronic File and Service (EFS) system is

MANDATORY for all parties represented by counsel. The EFS for electronic filing (eFile) permits the submission of forms and documents to the Board through the Internet instead of using postal mail and fax. The EFS portal allows parties to file new appeals electronically, receive electronic service of Board issuances, file briefs and motions electronically, and check the status of existing appeals via a web- based interface accessible 24 hours every day. No paper copies need be filed.

   An e-Filer must register as a user by filing an online registration form. To

register, the e-Filer must have a valid e-mail address. The Board must validate the e-Filer before electronically filing any document.

   E-Filers will also have access to electronic service (eService), which is simply

a way to receive documents, issued by the Board, through the Internet instead of mailing paper notices/documents. Information regarding registration for access to the EFSR system, as well as a step-by-step user guide and FAQs can be found at https://efile.dol.gov.

  You are still ultimately responsible for service of all of your filings
  with the Board on the other parties to the case and for attaching a
  certificate of service to your filings. If the other parties are
  registered in the EFS system, then the filing of your document
  through EFS will constitute filing/service of your document on those
  registered parties. Non EFS-registered parties must be served using
  other means. Include a certificate of service showing how you
  completed service whether through the EFS system or otherwise.

   If you are a party other than the party that has filed an appeal with the ARB,

you may request access to the appeal by obtaining a login.gov account (if you do not already have one) and creating an EFS profile. Written directions and a video tutorial on how to request access to an appeal are located at https://efile.dol.gov/support/boards/request-access-an-appeal. If you experience difficulty establishing your account, you can find contact information for login.gov and EFS at https://efile.dol.gov/contact.

   If you are a self-represented (pro se) party, you may mail or deliver paper

copies (if e-Filing is not used) of pleadings, including briefs, appendices, motion, and other supporting documentation to: Administrative Review Board, U.S. Department of Labor, 200 Constitution Avenue, N.W., Room S-5220, Washington, D.C., 20210.
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The briefing schedule is as follows:

OPENING BRIEF: Within twenty-eight (28) days of the issuance of this Order, the petitioner must file with the Board a supporting legal brief of points and authorities.

RESPONSE BRIEF: The opposing party must file any response in opposition to the supporting legal brief with the Board within twenty-eight (28) calendar days from the date of service of the petitioner’s principal legal brief.

REPLY BRIEF: Within fourteen (14) calendar days of the service of a legal brief in opposition to the petitioner’s opening brief, the petitioner may file a reply brief.

ALL BRIEFS: No further briefs may be filed without the permission of the Board. Except as otherwise specified in this Order, the form of all briefs and other filings shall comply with Federal Rule of Appellate Procedure (FRAP) 32(a). The content of all briefs must comply to the extent practicable with FRAP 28.

OTHER FILINGS

   The parties are advised that no appendix may be filed without permission of

the Board. Any appendix must be efiled electronically unless good cause is shown by a pro se party why filing an electronic version is impossible or impracticable.

   All motions and other requests for extraordinary action by the Board

(including, but not limited to, requests for extensions of time or expansion of page limitations) shall be in the form of a motion appropriately captioned, titled, formatted and signed, consistent with FRAP 27(d).

OTHER MATTERS

  All pleadings should include the ARB case number as it appears in

this Order.

   The Administrative Review Board encourages the parties to consider the

alternative dispute resolution (ADR) program administered by the Office of Administrative Law Judges (OALJ). The OALJ offers two types of court-sponsored alternative dispute resolution: settlement judges and mediation services. If all parties agree to use the OALJ ADR program, they should jointly notify the Board of their intention, and the Chair of the Board will refer the matter to the Chief Administrative Law Judge for the limited purpose of appointing a mediator or settlement judge (other than a judge previously involved in the case). Unless the Chief Administrative Law Judge directs otherwise, settlement discussions must be

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completed within 56 days of the date of referral or the case will be automatically returned to the Board for the issuance of a new briefing schedule on the original grant of the petition for review. If the matter is settled, any agreement or consent findings will be reviewed and approved by the Board.

FOR THE ADMINISTRATIVE REVIEW BOARD

Aubrey Gordon
General Counsel

Note: Questions regarding any case pending before the Board should be directed to
the Board’s staff. Telephone: (202) 693-6200, Facsimile: (202) 693-6220