§ 308.108 Sanctions. ( a ) *General rule.* Appropriate sanctions may be imposed when any counsel or party has acted, or failed to act, in a manner required by applicable statute, regulations, or order, and that act or failure to act: ( 1 ) Constitutes contemptuous conduct;
( 2 ) Has in a material way injured or prejudiced some other party in terms of substantive injury, incurring additional expenses including attorney's fees, prejudicial delay, or otherwise;
( 3 ) Is a clear and unexcused violation of an applicable statute, regulation, or order; or
( 4 ) Has unduly delayed the proceeding.
( b ) *Sanctions.* Sanctions which may be imposed include any one or more of the following: ( 1 ) Issuing an order against the party;
( 2 ) Rejecting or striking any testimony or documentary evidence offered, or other papers filed, by the party;
( 3 ) Precluding the party from contesting specific issues or findings;
( 4 ) Precluding the party from offering certain evidence or from challenging or contesting certain evidence offered by another party;
( 5 ) Precluding the party from making a late filing or conditioning a late filing on any terms that are just; and
( 6 ) Assessing reasonable expenses, including attorney's fees, incurred by any other party as a result of the improper action or failure to act.
( c ) *Limits on dismissal as a sanction.* No recommendation of dismissal shall be made by the administrative law judge or granted by the Board of Directors based on the failure to hold a hearing within the time period called for in this part 308, or on the failure of an administrative law judge to render a recommended decision within the time period called for in this part 308, absent a finding: ( 1 ) That the delay resulted solely or principally from the conduct of the FDIC enforcement counsel;
( 2 ) That the conduct of the FDIC enforcement counsel is unexcused;
( 3 ) That the moving respondent took all reasonable steps to oppose and prevent the subject delay;
( 4 ) That the moving respondent has been materially prejudiced or injured; and
( 5 ) That no lesser or different sanction is adequate.
( d ) *Procedure for imposition of sanctions.* ( 1 ) The administrative law judge, upon the request of any party, or on his or her own motion, may impose sanctions in accordance with this section, provided that the administrative law judge may only recommend to the Board of Directors the sanction of entering a final order determining the case on the merits.
( 2 ) No sanction, other than refusing to accept late papers, authorized by this section shall be imposed without prior notice to all parties and an opportunity for any counsel or party against whom sanctions would be imposed to be heard. Such opportunity to be heard may be on such notice, and the response may be in such form, as the administrative law judge directs. The opportunity to be heard may be limited to an opportunity to respond orally immediately after the act or inaction covered by this section is noted by the administrative law judge.
( 3 ) Requests for the imposition of sanctions by any party, and the imposition of sanctions, shall be treated for interlocutory review purposes in the same manner as any other ruling by the administrative law judge.
( 4 ) *Section not exclusive.* Nothing in this section shall be read as precluding the administrative law judge or the Board of Directors from taking any other action, or imposing any restriction or sanction, authorized by applicable statute or regulation.