Sanctions for noncompliance

Under 1955.33(a) the administrative law judge or the Secretary may impose a range of just sanctions to move the case forward when a party fails without good cause to comply with an order or subpoena.

• The regulation lists specific examples the judge may use, including the five measures in 1955.33(a)(1)–(5).
• Those measures include drawing adverse inferences, treating facts as established against the noncompliant party, barring reliance on certain testimony or documents, permitting use of secondary evidence, and striking pleadings or deciding against the party.
• The rule also says the remedies are not limited to those listed and should be whatever is just to prevent unnecessary delay and resolve relevant issues (see 1955.33(a)).

Under 1955.33(a)(1), the judge may instruct or find that the admission, testimony, documents, or other evidence the party refused to produce would have been unfavorable to that party.

• Practically, this means the judge can treat the absence of the evidence as a negative fact when weighing credibility and deciding issues.
• This is an evidentiary sanction used to address gamesmanship or obstruction when a party withholds evidence without good cause.

Under 1955.33(a)(2), yes—the judge may rule that the specific matter(s) covered by the order or subpoena be taken as established adversely to the noncompliant party.

• That means the judge can accept certain facts as true for the purposes of the proceeding without requiring the other side to prove them further.
• This sanction effectively resolves an issue against the party who failed to produce required evidence, helping move the case forward.

Under 1955.33(a)(3), yes—the judge may rule that the party may not introduce into evidence or otherwise rely on testimony by that party, its officers or agents, or the withheld documents or other evidence.

• This sanction prevents a party from benefiting from evidence it refused to produce and can be applied to testimony or documents tied to the noncompliance.
• It is a strong remedy intended to deter withholding and to preserve fairness to the opposing party.

Under 1955.33(a)(4), yes—the judge can rule that the noncompliant party may not object to the introduction and use of secondary evidence showing what the withheld admissions, testimony, documents, or other evidence would have shown.

• This lets the proceeding rely on other proof (copies, witness testimony about the content, summaries, etc.) so the case can proceed despite the missing original materials.
• It prevents a party from frustrating the record by withholding documents and then blocking any substitute proof.

Under 1955.33(a)(5), striking a pleading means removing it from the record, and rendering a decision against the party means the judge may rule on the pleading adversely to that party.

• Striking a pleading can remove a claim or defense from consideration entirely; an adverse ruling on a pleading decides the issues raised by that filing against the noncomplying party.
• These are severe sanctions used when lesser remedies won't address the prejudice caused by the refusal to comply.

Under 1955.33(b), sanctions may be issued either by written or oral order during the course of the proceeding, or they may be included in the administrative law judge's initial decision or in an order or opinion of the Secretary.

• That means a judge can announce a sanction on the record at a hearing or include it later in writing in the decision.
• The rule also allows parties to seek relief and the judge to grant tailored remedies to compensate for the missing evidence.

Under 1955.33(a), sanctions are authorized only when a party, or an officer or agent of a party, fails to comply with an order or subpoena "without good cause."

• Practically, this means the judge must find that there was no valid excuse (good cause) for the noncompliance before imposing sanctions.
• If a party can show good cause, the judge should consider that before deciding whether and which sanctions are appropriate.

Under 1955.33(a), yes—the listed remedies are examples and not exclusive; the judge or the Secretary may take such other action as is just to permit resolution of relevant issues and disposition of the proceeding without unnecessary delay.

• The phrase "including, but not limited to" signals that the tribunal can craft other appropriate sanctions tailored to the circumstances.
• Any additional measure should still be just and proportionate to the noncompliance.

Under 1955.33(b), yes—the parties may seek, and the administrative law judge may grant, relief or other appropriate remedies sufficient to compensate for the lack of withheld testimony, documents, or other evidence.

• That allows the judge to fashion remedies (for example, allowing secondary evidence or adverse findings) that directly address the prejudice caused by the missing material.
• The goal is to restore fairness and permit the proceeding to reach a substantive resolution despite the absence of the evidence.

Under 1955.33(a), yes—the provision specifically covers failure to comply by a party or an official or agent of a party.

• Sanctions can therefore be directed at the party even when the noncompliance is by its officers, agents, or employees.
• This prevents a party from avoiding consequences by pointing to an agent's refusal to produce or testify.

Under 1955.33(a), yes—the regulation expressly includes failures to comply with orders for taking depositions, written interrogatories, and the production of documents as examples of situations where sanctions may be imposed.

• That means a party who ignores obligations in discovery can be subject to the listed remedies or other just sanctions.
• The purpose is to prevent delay and ensure the tribunal can obtain the evidence it needs to decide the case.

Under 1955.33(a), a party should promptly notify the administrative law judge and the opposing party and explain the reasons (good cause) for the inability to comply, seeking an extension or protective order.

• Providing timely, documented reasons gives the judge the information needed to determine whether there is "good cause" and may avoid sanctions.
• If relief is appropriate, the judge can grant accommodations or tailor remedies under 1955.33(b).

Under 1955.33(a)(4), no—the judge may rule that the party who withheld the original materials may not object to the introduction and use of secondary evidence showing what those withheld materials would have shown.

• This prevents the noncompliant party from blocking substitutes that let the case proceed despite missing evidence.
• The sanction both compensates the opposing party and discourages strategic withholding.