IN THE SUPREME COURT, STATE OF WYOMING

2015 WY 94

APRIL TERM, A.D. 2015

July 17, 2015

IN THE MATTER OF THE WORKER’S 

COMPENSATION CLAIM OF:

BLAINE LEE DEBYAH,

Appellant

(Petitioner),

v.

STATE OF WYOMING, ex rel., 

DEPARTMENT OF WORKFORCE 

SERVICES, WORKERS’

COMPENSATION DIVISION,

Appellee

(Respondent).

S-14-0277

Appeal from the District Court of Natrona County

The Honorable W. Thomas Sullins, Judge 

Representing Appellant:

R. Todd Ingram of Ingram | Olheiser, P.C., Casper, Wyoming.

Representing Appellee:

Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney 

General; Michael J. Finn, Senior Assistant Attorney General; Samantha Caselli, 

Assistant Attorney General. 

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be 

made before final publication in the permanent volume.
1

FOX, Justice.

[¶1] Blaine Lee Debyah suffered a workplace injury and applied for permanent partial 

disability, which was denied by the Workers’ Compensation Division (Division). Mr. 

Debyah requested a contested case hearing, and during discovery, the Division served a 

number of interrogatories and requests for production related to Mr. Debyah’s work 

history since the time of his injury. In response, Mr. Debyah asserted his Fifth 

Amendment right against self-incrimination. The hearing examiner compelled Mr. 

Debyah to answer the discovery, but Mr. Debyah consistently invoked the Fifth 

Amendment. The hearing examiner dismissed the contested case as a sanction for failing 

to comply with discovery. The district court affirmed the dismissal, and Mr. Debyah now 

appeals to this Court. We reverse and remand.

ISSUE

[¶2] Did the hearing examiner err in dismissing the contested case as a discovery 

sanction?

FACTS

[¶3] Mr. Debyah suffered a workplace injury to his back on October 8, 2009. He 

applied for, and received, temporary total disability benefits as a result of his injury.

[¶4] In 2011, the Division hired a private investigator who began surveillance on Mr. 

Debyah on November 17, 2011, which continued on and off for nearly a year. The 

investigator also interviewed a number of people who had contact with Mr. Debyah 

through his work. The private investigator discovered that Mr. Debyah had worked on a 

number of construction projects beginning in the fall of 2011 and extending through the 

end of the investigation, which he had not reported to the Division. The Division also 

received some information concerning Mr. Debyah’s income, though such information 

seems to be speculative and incomplete.

[¶5] In the midst of the investigation, Mr. Debyah applied for permanent partial 

disability benefits, which the Division denied. Mr. Debyah requested a contested case 

hearing, and the case was referred to the Office of Administrative Hearings (OAH). Mr. 

Debyah learned of the Division’s investigation through the proceedings leading up to the 

contested case hearing.

[¶6] In preparation for the hearing, the Division served interrogatories and requests for 

production on Mr. Debyah, many of which requested information regarding Mr. 

Debyah’s work history since his injury. Mr. Debyah objected to a number of the 

interrogatories and requests, asserting:
2

The request is overly broad, unduly burdensome, vague, 

ambiguous, and not reasonably calculated to lead to the 

discovery of admissible evidence. The only issues in this 

case are whether Mr. Debyah satisfactorily sought 

employment and whether his current impairments allow him 

to return to work at 95% or more of his pre-injury earnings 

capacity. Whether Mr. Debyah engaged in any manual labor 

activities going back over three years ago, both before and 

after his two lower back surgeries, and whether at the 

insistence of a creditor, for personal benefit, or otherwise, is 

not relevant to this hearing. The true purpose of this 

interrogatory is to intimidate Mr. Debyah and place him in 

fear of collection efforts or prosecution because Mr. Debyah 

was receiving TTD benefits at or near the time of his postinjury activities. The only issues at-hand, however, involve 

Mr. Debyah’s current condition and his ability to return to 

95% or more of his pre-injury earnings.

After sending a letter to Mr. Debyah’s attorney requesting that the discovery be answered 

in full, the Division filed a motion to compel on February 5, 2013. The hearing examiner 

granted the motion to compel on February 15, 2013, stating: 

[Mr. Debyah] has until close of business on March 1, 2013, to 

complete and serve upon the [Division] the answers to the 

[Division’s] Combined Interrogatories and Request for 

Production of Documents to Employee/Claimaint Regarding 

Referral Dated October 16, 2012. Should [Mr. Debyah] fail 

to complete and serve the answers to the [Division], sanctions 

against [Mr. Debyah] shall be ordered and may result in 

dismissal of this case.

[¶7] Thereafter, Mr. Debyah provided supplemental discovery responses to the 

Division. In response to many of the discovery requests, Mr. Debyah asserted his Fifth 

Amendment right against self-incrimination under the federal and state constitutions. Mr. 

Debyah claimed, “At this time the Division is threatening criminal prosecution of 

Claimant apparently arising out of Claimant’s receipt of TTD benefits following his 

initial work injury.” He based his assertion on a statement made by counsel for the 

Division to Mr. Debyah’s attorney that “if [Mr. Debyah] was working while collecting 

TTD benefits, . . . he might [have criminal accountability] as it was fraud to submit TTD 

certifications swearing he was not working when he was.”

[¶8] The Division then filed a motion to dismiss, arguing that Mr. Debyah’s failure to 

fully respond to the discovery requests warranted dismissal as a discovery sanction. 
3

Within a few days, and without the benefit of a response from Mr. Debyah, the hearing 

examiner ruled on the Division’s motion to dismiss. Instead of dismissing the case, the 

hearing examiner again compelled Mr. Debyah to fully respond to the discovery requests. 

In its order compelling discovery, the hearing examiner did not address the propriety of 

Mr. Debyah’s assertion of his Fifth Amendment privilege, but he did warn that failure to 

comply with the order may result in dismissal. Mr. Debyah filed a motion requesting that 

the hearing examiner reconsider the second order compelling discovery. In his motion, 

Mr. Debyah argued that invocation of the privilege was appropriate, assertion of the 

privilege did not make the proceedings unfair, and the facts that the Division sought to 

obtain were already known due to its previous investigation. The Division filed a 

response to Mr. Debyah’s motion, again urging the hearing examiner to dismiss the case. 

On May 3, 2013, the hearing examiner issued an order denying Mr. Debyah’s motion to 

reconsider and dismissing the case. After setting out the facts and recounting the 

arguments of each party, the hearing examiner determined:

The issue in this matter was whether Debyah was entitled to 

PPD benefits. In determining PPD entitlement there [are] 

numerous factors that this Hearing Examiner must consider, 

including, but not limited to, actual earnings; pre-injury and 

post-injury earnings; ability to continue pre-injury 

employment; and post-injury employment prospects. 

Debyah’s employment prior to September 2011 was not only 

relevant but important in deciding his entitlement to PPD 

benefits. There was no question the Division’s discovery 

requests were for relevant information that appears to be 

reasonably calculated to lead to discovery of admissible 

evidence. Whether Debyah may or may not face criminal 

prosecution is up to the discretion of the appropriate 

prosecuting attorney. The Division does not have the ability 

to bring criminal charges on its own. It also appears the 

Division was not using its discovery request to further a 

possible criminal prosecution.

[¶9] Mr. Debyah filed a petition for review in district court. Finding that the hearing

examiner had not abused his discretion, the district court affirmed the dismissal. Mr. 

Debyah timely filed his notice of appeal.

STANDARD OF REVIEW

[¶10] We review a district court’s decision on an administrative action as though it came 

directly from the administrative agency. Stevens v. State ex rel. Dep’t of Workforce 

Servs., Workers’ Safety & Comp. Div., 2014 WY 153, ¶ 30, 338 P.3d 921, 928 (Wyo. 

2014) (citing Hirsch v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2014 WY 61, 
4

¶ 33, 323 P.3d 1107, 1115 (Wyo. 2014)). Our review of agency action is strictly limited 

to “matters specified in [the Wyoming Administrative Procedure Act.].” W.R.A.P. 

12.09(a).

(c) To the extent necessary to make a decision and 

when presented, the reviewing court shall decide all relevant 

questions of law, interpret constitutional and statutory 

provisions, and determine the meaning or applicability of the 

terms of an agency action. In making the following 

determinations, the court shall review the whole record or 

those parts of it cited by a party and due account shall be 

taken of the rule of prejudicial error. The reviewing court 

shall:

. . .

(ii) Hold unlawful and set aside agency action, findings 

and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or 

otherwise not in accordance with the law;

(B) Contrary to constitutional right, power, 

privilege or immunity;

(C) In excess of statutory jurisdiction, authority or 

limitations or lacking statutory right;

(D) Without observance of procedure required by 

law; or

(E) Unsupported by substantial evidence in a case 

reviewed on the record of an agency hearing provided by 

statute.

Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2015). Determinations regarding discovery 

sanctions are committed to the sound discretion of the hearing examiner. See Global 

Shipping & Trading, Ltd. v. Verkhnesaldincky Metallurgic Co., 892 P.2d 143, 145-46 

(Wyo. 1995) (“The rule is that the trial court has broad discretion in controlling 

discovery.”). Under the Wyoming Administrative Procedure Act, we review an agency’s 

dismissal of an action as a discovery sanction to determine whether its decision was 

“[a]rbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” 

Wyo. Stat. Ann. § 16-3-114(c)(A). “In evaluating whether an administrative agency 

abused its discretion by acting arbitrarily or capriciously, we examine the action to 

determine whether the agency considered relevant factors in making its decision and 

whether the decision is rational.” State ex rel. Wyo. Workers’ Comp. Div. v. Waggener, 

946 P.2d 808, 813 (Wyo. 1997).
5

DISCUSSION

Did the hearing examiner err in dismissing the contested case as a discovery sanction?

[¶11] The Fifth Amendment right against self-incrimination “can be asserted in any 

proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory.” 

Kastigar v. United States, 406 U.S. 441, 444, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 

(1972). The privilege “protects against any disclosures which the witness reasonably 

believes could be used in a criminal prosecution or could lead to other evidence that 

might be so used.” Id. at 445, 92 S.Ct. at 1656. 

[¶12] The Ninth Circuit has addressed invocation of the Fifth Amendment during 

discovery in a civil case, using a two-step analysis. Davis v. Fendler, 650 F.2d 1154, 

1159 (9th Cir. 1981); Baker v. Limber, 647 F.2d 912, 916 (9th Cir. 1981). First, the court 

must ask whether “the party resisting discovery properly assert[ed] his Fifth Amendment 

privilege[.]” Davis, 650 F.2d at 1159. The court then examines whether the trial court, 

or administrative agency, abused its discretion in dismissing the case as a Rule 37 

sanction. Id. 

A. Did Mr. Debyah properly assert his Fifth Amendment privilege?

[¶13] Mr. Debyah invoked his Fifth Amendment privilege after communications with 

the Division’s attorney revealed that Mr. Debyah may be subject to criminal prosecution 

if he made false statements in his application for temporary total disability benefits. The 

hearing examiner compelled Mr. Debyah to answer the interrogatories without examining

whether Mr. Debyah had the right to invoke his Fifth Amendment privilege, finding only 

that criminal prosecution was “up to the discretion of the appropriate prosecuting 

attorney,” and “[t]he Division does not have the ability to bring criminal charges on its 

own.” However, the Division’s ability to bring criminal charges is irrelevant to a Fifth 

Amendment analysis. See Kastigar, 406 U.S. at 444, 92 S.Ct. at 1656. As the Ninth 

Circuit stated, “To sustain the privilege, it need only be evident from the implications of 

the question, in the setting in which it is asked, that a responsive answer to the question 

or an explanation of why it cannot be answered might be dangerous because injurious 

disclosure could result.” Baker, 647 F.2d at 917 (quoting Hoffman v. United States, 341 

U.S. 479, 486-87, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951)). 

[¶14] When Mr. Debyah invoked his Fifth Amendment privilege in answering the 

Division’s discovery, he stated:
6

At this time the Division is threatening[1]criminal prosecution 

of [Mr. Debyah] apparently arising out of [Mr. Debyah’s]

receipt of TTD benefits following his initial work injury. The 

bases for the threats of criminal prosecution are the 

applications for TTD benefits, including the language in the 

application to the effect that “[u]nder penalty of prosecution 

for false statement, I swear that the information given by me 

herein is true and correct.” . . . [Mr. Debyah] has asked the 

Division to agree to a no-prosecution letter limiting the State 

to potential civil remedies under W.S. § 27-14-511 in order to 

facilitate full and complete answers to the pending discovery. 

The Division has refused. The discovery requests seek sworn 

responses regarding alleged odd jobs or projects that [Mr. 

Debyah] did at or near the time of his TTD benefit payments. 

Accordingly, although undersigned counsel believes no crime 

has been committed whatsoever, counsel has no choice but to 

advise [Mr. Debyah] to assert his privilege against selfincrimination under the Fifth Amendment to the United States 

Constitution, and Article 1, Section 11 of the Wyoming 

Constitution. With this preface, [Mr. Debyah] responds as 

follows: On the advice of counsel, I hereby assert the 

privilege against self-incrimination under the federal and state 

constitutions and decline to answer the question. 

Mr. Debyah gave a reasoned explanation for invoking the privilege, considering the 

criminal penalties for false statements in workers’ compensation applications under Wyo. 

Stat. Ann. § 27-14-510(a) (LexisNexis 2015).2 It seems clear that Mr. Debyah 

reasonably believed that his responses to the Division’s discovery requests could be used 

 

1 The Division denies that it ever threatened criminal prosecution, and asserts that it only answered the 

question posed by Mr. Debyah’s counsel in a manner consistent with Wyo. Stat. Ann. § 27-14-510(a), 

which subjects a person to criminal prosecution for misrepresenting information when applying for 

worker’s compensation benefits.

2

(a) Any person who knowingly makes, authorizes or permits any 

misrepresentation or false statement to be made for the purpose of him or 

another person receiving payment of any kind under this act is guilty of:

(i) A misdemeanor punishable by a fine of not more than 

seven hundred fifty dollars ($750.00), imprisonment for not more 

than six (6) months, or both, if the value of the payment is less than 

five hundred dollars ($500.00); 

(ii) A felony punishable by a fine of not more than ten 

thousand dollars ($10,000.00), imprisonment for not more than ten 

(10) years, or both, if the value of the payment is five hundred 

dollars or more.
7

in a later criminal prosecution. Kastigar, 406 U.S. at 445, 92 S.Ct. at 1656. Thus, Mr. 

Debyah properly invoked his Fifth Amendment privilege.

B. Did the hearing officer abuse his discretion by acting arbitrarily and 

capriciously in dismissing the case as a Rule 37 sanction?

[¶15] This is not the end of our inquiry, however. An adjudicating body has the power 

to dismiss a case pursuant to Rule 37 even in the face of a litigant’s proper assertion of 

the privilege. Serafino v. Hasbro, Inc., 82 F.3d 515, 519 (1st Cir. 1996); Wehling v. 

Columbia Broadcasting Sys., 608 F.2d 1084, 1087 n.6 (5th Cir. 1979); Lyons v. Johnson, 

415 F.2d 540, 542 (9th Cir. 1969); Mount Vernon Sav. & Loan Ass’n v. Partridge 

Assocs., 679 F.Supp. 522, 529 (D. Md. 1987); Stop & Shop Cos. v. Interstate Cigar Co., 

110 F.R.D. 105, 108 (D. Mass. 1986); Jones v. B.C. Christopher & Co., 466 F.Supp. 213, 

227 (D. Kan. 1979); Penn Commc’ns Specialties, Inc. v. Hess, 65 F.R.D. 510, 512 (E.D. 

Pa. 1975); Wansong v. Wansong, 478 N.E.2d 1270, 1272-73 (Mass. 1985). While the 

Fifth Amendment “guarantees . . . the right of a person to remain silent unless he chooses 

to speak in the unfettered exercise of his own will and to suffer no penalty . . . for such 

silence,” dismissal of an action in the form of a discovery sanction is not considered a 

penalty, but is instead seen as a remedy to prevent unfairness. Spevack v. Klein, 385 U.S. 

511, 514, 87 S.Ct. 625, 627, 17 L.Ed.2d 574 (1967) (emphasis added); see also Wehling, 

608 F.2d at 1087; 1 McCormick on Evidence § 136, at 772 (Kenneth S. Broun ed., 7th ed. 

2013) (Discovery sanctions in the face of a valid Fifth Amendment assertion “should not 

be to sanction the party who invoked the privilege but rather to provide a remedy for the 

party disadvantaged by his opponent’s reliance upon the privilege.”). As the First Circuit 

noted: 

We think that in the civil context, where, systematically, the 

parties are on a somewhat equal footing, one party’s assertion 

of his constitutional right should not obliterate another party’s 

right to a fair proceeding. In other words, while a trial court 

should strive to accommodate a party’s Fifth Amendment 

interests, . . . it also must ensure that the opposing party is not 

unduly disadvantaged.

Serafino, 82 F.3d at 518. Thus an adjudicative body must balance the right of a litigant to 

assert the privilege against any unfair disadvantage that such an assertion may cause to 

the opposing party. Id.; Wehling, 608 F.2d at 1087.

[¶16] We first look to statutory language and legal precedent to determine the evidence 

needed by the Division to present its case to the hearing examiner. Wyo. Stat. Ann. § 27-

14-405(h) (LexisNexis 2015) provides that when a person applies for permanent partial 

disability benefits, the award of benefits is contingent upon: (1) the injured employee’s 

inability to return to employment at a wage that is at least 95% of the monthly gross 
8

earnings the employee was earning at the time of the injury; and (2) the injured 

employee’s efforts to actively seek suitable work, considering the employee’s health, 

education, training, and experience. This Court has also set out a non-determinative list 

of factors relevant to the earning capacity inquiry: “the employee’s physical impairment, 

including the nature and extent of his injury; age; education; actual earnings, including 

pre-injury and post-injury earnings; ability to continue pre-injury employment; and postinjury employment prospects.” Bonsell v. State ex rel. Wyo. Workers’ Safety & Comp. 

Div., 2006 WY 114, ¶ 12, 142 P.3d 686, 689 (Wyo. 2006). 

[¶17] The Division argues that the discovery was relevant to the issue of whether Mr. 

Debyah could return to employment at a wage that was at least 95% of the monthly gross 

earnings he was earning at the time of the injury. According to the Division, because it

sought “relevant information concerning the statutory requirements and Bonsell factors, 

the hearing examiner properly compelled answers.” Though not finding that the Division 

was unfairly disadvantaged by Mr. Debyah’s invocation of his Fifth Amendment 

privilege, the hearing examiner determined that the discovery was “relevant [and] 

important in deciding [Mr. Debyah’s] entitlement to PPD benefits.” Relevance, however, 

is not the only consideration when determining whether to compel discovery in the face 

of a valid Fifth Amendment assertion. The adjudicator must balance the right of a party 

to assert the privilege against any unfairness that may cause to the opposing party. 

Though the discovery sought does appear to be relevant, the hearing examiner did not 

perform this balancing in concluding that the case must be dismissed as a discovery 

sanction. Thus, the hearing examiner failed to weigh the relevant factors and as a result,

abused his discretion by acting arbitrarily and capriciously. See Waggener, 946 P.2d at 

813. We next consider whether the Division was so unfairly disadvantaged as a result of 

Mr. Debyah’s invocation of the privilege that dismissal as a discovery sanction was 

inevitable. Serafino, 82 F.3d at 518.

[¶18] The Division argues Mr. Debyah’s assertion of the privilege hampered its ability 

to prepare for the hearing, specifically contending that the requests went directly toward 

“proving or disproving whether or not Debyah could make 95% of his pre-injury wage.” 

Mr. Debyah contends that the Division’s investigation yielded all of the information the 

Division needed to defend its decision in the contested case hearing, and that it was not 

unfairly disadvantaged. The record does not contain sufficient information for this Court 

to determine whether the Division would have been unfairly disadvantaged at the 

contested case hearing without the information it sought through discovery. 

[¶19] The record reveals that the Division gathered some information concerning Mr. 

Debyah’s income post-injury through its investigation. While this information seems 

incomplete and somewhat speculative, it may still be sufficient to resolve whether Mr. 

Debyah is or is not able to return to employment at a wage that is at least 95% of his 

monthly gross earnings prior to the time of the injury. However, this Court cannot make 

that determination for a number of reasons. First, the record is devoid of any information 
9

concerning Mr. Debyah’s monthly gross income prior to his injury. As a result, we have 

no way to compare his earning capacity before and after the injury, to determine whether 

the Division was prejudiced by its inability to obtain complete discovery responses. 

Additionally, information pertaining to a number of Bonsell factors is absent from the 

record, including: Mr. Debyah’s physical impairment, including the nature and extent of 

his injury; Mr. Debyah’s age; and Mr. Debyah’s education. This Court, “sitting . . . in its 

customary role as an appellate court, is not the proper forum in which to develop facts,” 

Gifford v. Casper Neon Sign Co., Inc., 618 P.2d 547, 551 (Wyo. 1980), and “does not act 

as fact finder.” Wood v. Wood, 865 P.2d 616, 617 (Wyo. 1993). Our role is thus limited, 

and we must remand to allow the hearing examiner to develop additional facts as needed

and determine the weight to be given to each of the Bonsell factors. See Bonsell, 2006 

WY 114, ¶ 12, 142 P.3d at 689 (“Wages earned by the employee [are] material to the 

question of the employee’s earning capacity and [are] entitled to whatever weight the fact 

finder gives to it.” (quoting McCarty v. Bear Creek Uranium Co., 694 P.2d 93, 95 (Wyo. 

1985)). The hearing examiner must resolve whether, considering the weight to be given 

to each Bonsell factor, the Division was, or will be, unfairly disadvantaged by Mr. 

Debyah’s assertion of the Fifth Amendment. 

[¶20] If the hearing examiner determines that the Division was, or will be, unfairly 

disadvantaged, he must then balance Mr. Debyah’s right to assert his Fifth Amendment 

privilege against any unfair disadvantage such an assertion has on the Division. The 

weight to be given a civil litigant’s assertion of his Fifth Amendment privilege varies.

Arguably courts should be particularly willing to 

impose vigorous penalties such as dismissal where a civil 

plaintiff invokes the privilege, and thus uses the privilege’s 

shield as a sword to force an unfair advantage. Fundamental 

notions of fairness are violated if a party comes into court 

seeking relief from another and then relies upon his privilege 

to conceal information that might defeat his claim. A civil 

litigant’s involuntary involvement in a lawsuit, in contrast, 

suggests that in fashioning a remedy for the litigant’s 

invocation of the privilege more weight be given to that 

litigant’s self-incrimination interests. 

1 McCormick on Evidence, supra, § 136, at 773-74. However, even though Mr. 

Debyah’s Fifth Amendment assertion may be entitled to less weight than if he were a 

defendant in the action, the balance must still be weighted to safeguard the Fifth 

Amendment privilege if possible. Serafino, 82 F.3d at 518. “[T]he Fifth Amendment 

privilege should be upheld unless defendants have substantial need for particular 

information and there is no less burdensome effective means of obtaining it.” Id. (citing 

Black Panther Party v. Smith, 661 F.2d 1243, 1272 (D.C. Cir. 1981)). Moreover, the 

adjudicator must impose a discovery sanction no more burdensome than that required to 
10

remedy the prejudice suffered by the disadvantaged party. 1 McCormick on Evidence, 

supra, § 136, at 773. In other words, the hearing examiner must consider three things 

before he determines that dismissal is appropriate as a discovery sanction despite Mr. 

Debyah’s valid assertion of his privilege: (1) whether the Division has a substantial need 

for the information sought; (2) whether the Division has an alternative means of 

obtaining the information; and (3) whether there are less burdensome alternatives to 

dismissal that would remedy any unfair disadvantage experienced by the Division. 

Steiner v. Minnesota Life Ins. Co., 85 P.3d 135, 141 (Colo. 2004); Serafino, 82 F.3d at 

518-19. If the Division does not have a substantial need for the information, or if the 

Division has an alternative means of obtaining the information, or if there is a less 

burdensome alternative to dismissal that would remedy any unfair disadvantage 

experienced by the Division, then dismissal is unwarranted. However, the required 

balancing may reveal that the only method of ensuring that the Division is not unfairly 

disadvantaged in the proceedings is through dismissal. See Serafino, 82 F.3d at 518 

(“After balancing the conflicting interests, dismissal may be the only viable alternative.”). 

After engaging in the proper balancing of conflicting interests, the decision of whether 

dismissal is warranted as a discovery sanction is within the sound discretion of the 

hearing examiner. We therefore remand with instructions to the hearing examiner to 

balance the right of Mr. Debyah to invoke his Fifth Amendment privilege against any 

unfair disadvantage to the Division.

CONCLUSION

[¶21] Mr. Debyah reasonably believed that his answers to the discovery requests served 

by the Division could be used in a criminal prosecution against him and was therefore 

justified in asserting his Fifth Amendment privilege against self-incrimination. The 

hearing examiner abused his discretion by acting arbitrarily and capriciously when he 

compelled Mr. Debyah to answer the discovery and then dismissed the case without 

engaging in the proper balancing of Mr. Debyah’s and the Division’s conflicting 

interests. We therefore reverse and remand for further proceedings consistent with this 

opinion.