Amira Tobacco Inc. d/b/a Frogtown Market, DAB No. 3141 (2024)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Amira Tobacco Inc. d/b/a Frogtown Market (Respondent) appeals the initial decision and default judgment of an administrative law judge (ALJ) imposing a $638 civil money penalty against Respondent for three violations of the Federal Food, Drug, and Cosmetic Act (Act), 21 U.S.C. § 301 et seq., and its implementing regulations, over a period of 24 months.  Amira Tobacco Inc. d/b/a Frogtown Market, DAB TB7529 (2024) (ALJ Decision).  The ALJ struck Respondent’s Answer to the administrative complaint filed by the Center for Tobacco Products (CTP) of the Food and Drug Administration (FDA), as a sanction for failing to comply with orders and procedures governing the proceeding, including discovery orders; failing to defend the action; and interfering with the speedy, orderly, and fair conduct of the proceeding.  The ALJ entered a default judgment, concluding that the facts alleged in the complaint established Respondent’s liability for the three violations under the Act and provided a basis for assessing a $638 penalty.  For the reasons explained below, we conclude that the ALJ did not commit an abuse of discretion in striking Respondent’s Answer and entering default judgment, and we affirm the ALJ Decision because it is supported by substantial evidence and free of legal error.

Legal Background

To protect public health, the Act imposes restrictions on the sale, distribution, and use of tobacco products.  See 21 U.S.C. §§ 301, 331(b), 331(k), 387a(a)-(b), 387c(a)(7)(B), 387f(d).  One such restriction is that “[i]t shall be unlawful for any retailer to sell a tobacco product to any person younger than 21 years of age.”  Id. § 387f(d)(5).  The Act also prohibits any act with respect to a tobacco product held for sale after shipment in interstate commerce that results in the product being “misbranded.”  Id. § 331(k).  A tobacco product is misbranded if, among other things, “it is sold or distributed in violation of section 387f(d)(5)” or “regulations prescribed under section 387f(d).”  Id. § 387c(a)(7)(B).

The Act directed the Secretary of Health and Human Services (Secretary) to establish the CTP within the FDA and authorized the Secretary to issue regulations restricting the sale

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and distribution of tobacco products.  21 U.S.C. §§ 387a(e), 387f(d).  In accordance with the Act, the Secretary issued regulations codified in 21 C.F.R. Part 1140.  Failure to comply with any of those regulations in the sale or distribution of “covered tobacco products” renders them “misbranded” under the Act.  21 C.F.R. § 1140.1(b); see id. § 1143.1 (defining “Covered tobacco product”).  Regulations prohibiting the sale of covered tobacco products to an underage person appear in subpart B of 21 C.F.R. Part 1140.  Those regulations, in relevant part, prohibit a retailer from “sell[ing] covered tobacco products to any person younger than 18 years of age.”  21 C.F.R. § 1140.14(b)(1).  A retailer also must “verify by means of photographic identification containing the bearer’s date of birth that no person purchasing the product is younger than 18 years of age,” except that “[n]o such verification is required for any person over the age of 26.”  Id. § 1140.14(b)(2)(i)-(ii).¹

“FDA conducts inspections of tobacco product retailers to determine a retailer’s compliance with federal laws and regulations,” including the Act and its implementing regulations.  FDA, Advisory and Enforcement Actions Against Industry for Selling Tobacco Products to Underage Purchasers (Nov. 14, 2023), (last visited June 17, 2024), https://www.fda.gov/tobacco-products/compliance-enforcement-training/advisory-and-enforcement-actions-against-industry-selling-tobacco-products-underage-purchasers.  The violations in this case were discovered during undercover buy inspections.  “During Undercover Buy Inspections, the retailer is unaware an inspection is taking place.  The inspector and underage purchaser will not identify themselves.”  Id.

The Act provides for imposition of civil money penalties (CMPs) against “any person who violates a requirement of [the Act] which relates to tobacco products.”  21 U.S.C. § 333(f)(9)(A).  The implementing regulations concerning CMPs are found in 21 C.F.R. Part 17 and 45 C.F.R. § 102.3.  These regulations establish a schedule of maximum CMP amounts based on the number of violations committed and the time period over which they have occurred.  See 21 C.F.R. § 17.2 (citing 45 C.F.R. § 102.3 (table)).

To impose a CMP, CTP files a complaint with the Departmental Appeals Board’s Civil Remedies Division and serves a copy of the complaint on the “respondent” (the person or entity alleged to have committed the pertinent violation(s)).  See 21 C.F.R. §§ 17.3(b), 17.5, 17.7.  The respondent may then request a hearing before an ALJ by filing an answer to the complaint.  Id. § 17.9(a).  If the respondent fails to timely answer the complaint, the ALJ “shall assume the facts alleged in the complaint to be true” and issue an initial

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decision granting a default judgment to CTP if those facts “establish liability” for the remedy sought.  Id. § 17.11(a).

In anticipation of a hearing (and assuming the timely filing of an answer), a party may request discovery by asking the opposing party to produce relevant documents.  21 C.F.R. § 17.23(a).  A party must provide documents “no later than 30 days after the request has been made.”  Id.

An ALJ may sanction a party for “[f]ailing to comply with an order, subpoena, rule, or procedure governing the proceeding,” “[f]ailing to prosecute or defend an action,” or “[e]ngaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing.”  21 C.F.R. § 17.35(a)(1)-(3).  When a party “fails to comply with a discovery order” (e.g., an order to produce documents) or regulations in Part 17 relating to discovery, the ALJ may impose any of the sanctions specified in 21 C.F.R. § 17.35(c), including “[s]trik[ing] any part of the pleadings or other submissions of the party failing to comply[.]”  Id. § 17.35(c)(3).  Any sanction imposed “shall reasonably relate to the severity and nature of the failure or misconduct.”  Id. § 17.35(b).

The ALJ’s “initial decision” must be “based only on the administrative record.”  21 C.F.R. § 17.45(a).  The initial decision must address, among other things, (1) whether the factual allegations in the complaint are true, and, if so, whether they show that the respondent violated the law, and (2) whether the respondent is liable for any penalties or assessments.  Id. § 17.45(b)(1), (3).  A respondent may appeal an initial decision by filing a notice of appeal with the Board.  21 C.F.R. § 17.47(a).

Case Background²

A. Respondent denied the allegations in CTP’s administrative complaint.

On June 12, 2023, CTP served an administrative complaint for civil money penalty (Complaint) on Respondent alleging three violations of the Act and FDA’s tobacco regulations within a 24-month period.  Compl. ¶¶ 1, 13, 15.  On October 13, 2022, Respondent allegedly sold a covered tobacco product to an individual under the age of 21 and failed to verify the age of that individual purchasing covered tobacco products by means of photographic identification containing the bearer’s date of birth.  Id. ¶ 15; see ALJ Decision at 1 n.1 (explaining that “[i]n accordance with customary practice” CTP counted two separate violations on October 13, 2022, as a single violation for penalty calculation purposes).  In November 2022, after that alleged violation, CTP delivered a warning letter to Respondent.  ALJ Decision at 5; Compl. ¶ 16.  On March 8, 2023,

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Respondent again allegedly sold a covered tobacco product to an individual under the age of 21 and failed to verify the age of that individual purchasing covered tobacco products by means of photographic identification containing the bearer’s date of birth.  ALJ Decision at 5-6; Compl. ¶ 13.  CTP sought a CMP of $638, the maximum amount authorized in the applicable penalty schedule for a third violation of section 387f(d)(5) of the tobacco regulations within a 24-month period.  Compl. ¶ 19; 45 C.F.R. § 102.3 (table) (Mar. 17, 2022).

On June 29, 2023, Respondent, through counsel, timely filed an “Answer” to the Complaint.  In response to the Complaint, Respondent denied that it sold covered tobacco products to individuals under the age of 21 or failed to verify the age of the individuals purchasing covered tobacco products by means of photographic identification on October 13, 2022 and March 8, 2023.  Answer at 1-2. In addition, Respondent raised two affirmative defenses:  (1) that it “was not the licensed owner of the market for some or all of the violations alleged in the complaint,” and (2) that CTP “promised to Respondent that no formal action would be taken.”  Id. at 2.

B. Respondent failed to comply with its discovery obligations and all other ALJ-imposed deadlines and extended deadlines.

On July 7, 2023, the ALJ issued an Acknowledgment and Pre-Hearing Order (APHO) setting deadlines for the parties’ filings and exchanges of evidence and argument.  APHO at 2-5.  The APHO included a schedule for discovery, directing that a party receiving a discovery request must provide the requested documents within 30 days of the request.  Id. at 3 (citing 21 C.F.R. § 17.23(a)).  The APHO also stated that a party’s failure to comply with any order of the ALJ (including the APHO), or failure to defend its case, might result in sanctions including dismissal of the answer.  Id. at 10 (citing 21 C.F.R. § 17.35).

On August 3, 2023, CTP timely served on Respondent a request for production of documents (document requests).  Mot. to Compel Disc. at 1; Ex. A (document requests) & Ex. B (UPS Delivery Notification).  CTP’s document requests specifically requested discovery regarding the factual denials and affirmative defenses raised in Respondent’s Answer.  Mot. to Compel Disc. at 1; Ex. A.  On September 7, 2023, CTP filed a motion to compel because Respondent did not respond to the document requests.  Mot. to Compel Disc. at 1-2.  By order issued on September 19, 2023, the ALJ gave Respondent until October 3, 2023, to file a response to CTP’s motion to compel and extended the pre-hearing exchange deadlines.  Respondent filed no response to the motion to compel or the ALJ’s order.  See Order Granting CTP’s Mot. to Compel Disc. at 1-2.

On October 10, 2023, the ALJ issued an order granting CTP’s motion to compel, extending the pre-hearing exchange deadlines, and directing Respondent to respond to CTP’s document requests by October 25, 2023.  Id. at 1-2.  The order warned Respondent

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that a failure to comply may result in sanctions, “including the issuance of an Initial Decision and Default Judgment finding Respondent liable for the violations listed in the Complaint and imposing a civil money penalty.”  Id. at 2.  Respondent did not produce any documents or otherwise respond to the document requests or the ALJ’s order.

On October 27, 2023, CTP filed a motion to impose sanctions, asserting that Respondent had not complied with the ALJ’s September 19, 2023 order requiring a response to CTP’s motion to compel, and also failed to comply with the ALJ’s October 10, 2023 order requiring Respondent to produce documents responsive to CTP’s document requests.  CTP’s Status Report and Mot. to Impose Sanctions at 1-2.  CTP requested that the ALJ impose the following sanctions:  “(1) striking the Answer entered by Respondent in this case; and (2) issuing an initial decision and default judgment imposing a civil money penalty in the amount of $638 against Respondent.”  Id. at 2.

By order issued on October 31, 2023, the ALJ gave Respondent until November 15, 2023, to respond to CTP’s motion for sanctions.  Order at 2.  The order also extended the pre-hearing exchange deadlines, directing CTP to file its pre-hearing exchange by December 26, 2023, and Respondent to file its pre-hearing exchange by January 16, 2024.  Id.  The order warned Respondent that “if it fails to timely respond” to CTP’s motion, the ALJ “may grant CTP’s motion in its entirety.”  Id.  Respondent did not respond to CTP’s motion for sanctions.  ALJ Decision at 3.

On December 26, 2023, CTP timely filed its pre-hearing exchange, including a 19-page informal brief, witness list, and 21 proposed exhibits.  Respondent’s pre-hearing exchange was due on January 16, 2024; however, Respondent did not file a pre-hearing exchange or request an extension of time.

C. The ALJ entered a default judgment against Respondent.

The ALJ proceeded to issue a decision on January 23, 2024.  The ALJ resolved CTP’s pending motion to impose sanctions within the ALJ Decision.  ALJ Decision at 4-5.  The ALJ found that Respondent had “failed to comply with orders and procedures governing this proceeding” and to defend itself against CTP’s complaint.  Id. at 4 (“Respondent’s failure to respond to CTP’s motions, to comply with my multiple orders, and to fulfill its discovery obligations suggests that it has abandoned its defense in this case.”). The ALJ further found that Respondent had received “explicit warnings” that its failures to comply could result in sanctions, and that its “repeated misconduct interfered with the speedy, orderly, or fair conduct of this proceeding.”  Id. at 4, 5.  The ALJ determined that Respondent’s conduct was “sufficiently egregious” to warrant striking Respondent’s Answer and issuing a default judgment.  Id. at 5 (citing 21 C.F.R. § 17.35(b), (c)(3)).

Having stricken the Answer, the ALJ was “required to issue an initial decision by default, provided that the Complaint is sufficient to justify a penalty.”  ALJ Decision at 5 (citing

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21 C.F.R. § 17.11(a)).  The ALJ determined that the facts alleged in the Complaint, taken to be true, establish that Respondent is liable under the Act because Respondent committed three violations of the Act within a 24-month period.  Id. at 1, 5-6.  Those violations were:

• Selling covered tobacco products to a person under the age of 21 and failing to verify the age of that person by means of photographic identification containing the bearer’s date of birth on October 13, 2022;
• selling covered tobacco products to a person under the age of 21 on March 8, 2023; and
• failing to verify the age of that person by means of photographic identification containing the bearer’s date of birth on March 8, 2023.

Id.  Based on these findings, the ALJ entered a default judgment against Respondent and imposed a CMP in the amount of $638.  Id. at 6.

Respondent, through newly retained legal counsel, timely appealed the ALJ Decision.

Standard of Review

The Board’s standard of review on a disputed issue of fact is whether the initial decision is supported by substantial evidence on the whole record.  21 C.F.R. § 17.47(k).  The standard of review on a disputed issue of law is whether the initial decision is erroneous.  Id.  The standard of review on an ALJ’s imposition of a sanction under 21 C.F.R. § 17.35 is whether the ALJ committed an abuse of discretion.  Joshua Ranjit Inc. d/b/a 7-Eleven 10326, DAB No. 2758, at 7 (2017).  “Under an ‘abuse of discretion’ standard, ‘the reviewer may not simply substitute his or her judgment for that of the person exercising discretion.’”  Id. (quoting Vincent Baratta, M.D., DAB No. 1172, at 9 n.5 (1990)).  “Instead, the reviewing body considers only whether the decision maker has articulated a reasonable basis for the decision under review.”  Id. (citing River East Econ. Revitalization Corp., DAB No. 2087, at 9 (2007)).

Analysis

A. The ALJ did not abuse her discretion in striking Respondent’s Answer to the complaint and entering default judgment against Respondent.

An ALJ may sanction a party for, among other things, failing to comply with an order or failing to prosecute or defend an action.  21 C.F.R. § 17.35(a).  Any sanction must “reasonably relate to the severity and nature of the failure or misconduct.”  Id. § 17.35(b).

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“The regulations specifically authorize the ALJ to ‘[s]trike any part of the pleadings’ of any party that ‘fails to comply with a discovery order[.]’”  KKNJ, Inc. d/b/a Tobacco Hut 12, DAB No. 2678, at 10 (2016) (citing 21 C.F.R. § 17.35(c)(3)).

Here, the ALJ struck Respondent’s Answer as a sanction for Respondent’s repeated failures to comply with the ALJ’s orders and procedures governing discovery; failing to defend the action; and interfering with the speedy, orderly, and fair conduct of the proceeding.  ALJ Decision at 4-5.  The ALJ determined that the harshness of the sanction imposed reasonably related to the severity and nature of the misconduct or failure to comply because, among other things, “Respondent failed to comply with two [ALJ] orders, despite [the ALJ’s] explicit warnings that its failure could result in sanctions.”  Id.  The ALJ imposed the sanction only after providing Respondent multiple opportunities to respond to CTP’s motions, the ALJ’s orders and directives, and the document requests.  Id.  As explained below, we find no error in the ALJ’s conclusion that “Respondent’s actions are sufficiently egregious to warrant striking its Answer and issuing a decision by default, without further proceedings.”  Id. at 5.

Respondent argues that the ALJ abused her discretion in striking its Answer because that sanction is “not reasonably related to the severity and nature of the failure or misconduct.”  Resp’t Br. at 4, 5.  Respondent contends that it “did not purposefully or intentionally fail to respond to the ALJ and opposing counsel, its [former] attorney did,” and that the ALJ “fail[ed] to take into account the conduct of former counsel.”  Id. at 4.  Relying on federal court of appeals decisions, Respondent argues that striking its Answer due to its former attorney’s neglect “does not reasonably relate to the severity of the Respondent’s conduct, [which] was the result of attorney neglect outside the control of Respondent and of which Respondent was not aware.”  Resp’t Br. at 5 (citing McNeal v. Papasan, 842 F.2d 787 (5th Cir. 1988)).

Respondent, however, cannot avoid the consequences of its counsel’s conduct.  The Board recognizes “the general principle that ‘each party is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts of which can be charged upon the attorney.’”  Bryant H. Hudson, III, M.D., DAB No. 2442, at 6 n.5 (2012) (quoting Irwin v. Dep’t of Veterans Admin., 498 U.S. 89, 92 (1990) (quoting Link v. Wabash R.R. Co., 370 U.S. 626 (1962)) (internal quotation marks omitted)); see also Norman Johnson, M.D., DAB No. 2779, at 18 (2017) (“Petitioner is accountable for his lawyer’s omission.”).  Moreover, Respondent presented no evidence that it was not aware of its former counsel’s conduct or that it did not know of or receive copies of the ALJ’s multiple orders and directives.  Respondent, for example, did not submit an affidavit or declaration by any corporate officer attesting to the allegations in its brief.  Respondent also presented no evidence that its former counsel withdrew from the matter while the case was pending before the ALJ.

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Respondent’s reliance on McNeal (and the cases cited therein) is also unavailing.  As an initial matter, the authorities Respondent cites are decisions of the Fifth Circuit, whereas this case concerns a respondent located in Minnesota (in the Eighth Circuit).  The Board is not “bound by a federal court of appeals decision from a judicial circuit other than the circuit to which its decision in the pending matter may be appealed.”  See William Garner, M.D., DAB No. 3026, at 11 n.11 (2020).  In any event, the issues in those decisions concerned dismissal for failure to prosecute under Rule 41(b) or a dismissal with prejudice under Rule 16(f) of the Federal Rules of Civil Procedure, which do not apply here.  See Stowers Enterprises, Inc. d/b/a BP, DAB No. 2969, at 12 n.9 (2019) (“The ALJ was bound to follow the Part 17 regulations, not the Federal Rules [of Civil Procedure], which . . . are applied in federal courts.  Accordingly, the ALJ committed no error in not looking to the Federal Rules.”).  McNeal (and the cases cited therein) did not involve the question of whether a sanction reasonably relates to the severity and nature of the failure or misconduct under 21 C.F.R. § 17.35(b).³

Apart from allegations of attorney neglect, Respondent presents no other argument that the ALJ’s decision to strike Respondent’s Answer did not reasonably relate to the severity and nature of Respondent’s conduct.  We find no error or abuse of discretion in the ALJ’s decision to strike Respondent’s Answer as a sanction for its failure to comply with the ALJ’s orders.  We recognize that striking an answer is “a relatively harsh” sanction; however, “[o]ur role . . . is to determine whether the ALJ’s decision to impose that [sanction] was outside the bounds of [the ALJ’s] discretion.”  KKNJ at 11.  Respondent repeatedly failed to comply with the ALJ’s orders and procedures, despite having received multiple opportunities and ample time to comply, as well as warnings that noncompliance could result in sanctions and a default judgment.  Moreover, the discovery requested by CTP specifically related to factual denials and affirmative defenses raised in Respondent’s Answer and the failure to respond to CTP’s document requests and all subsequent orders issued by the ALJ unquestionably obstructed discovery with respect to the Answer and interfered with CTP’s timely prosecution of this matter.

Given these circumstances, the ALJ did not abuse her discretion in sanctioning Respondent, and the sanction imposed was reasonably related to the nature and severity

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of Respondent’s noncompliance.  See Ranjit at 1, 8-11 (concluding that the ALJ did not abuse his discretion in striking respondent’s answer and entering default judgment in favor of CTP as a sanction for respondent’s failure to respond to the ALJ’s orders); KKNJ at 8-11 (same); Retail LLC d/b/a Super Buy Rite, DAB No. 2660, at 10-14 (2015) (same); see also Guardian Care Nursing & Rehab. Ctr., DAB No. 2260, at 21 (2009) (“[T]he Board has an overarching responsibility to ensure the efficiency and integrity of proceedings before the [DAB] as a whole, which encompasses a concern that the orders of ALJs not be disregarded by counsel without consequence.”).  We conclude that the ALJ articulated a reasonable basis for striking Respondent’s Answer and find no abuse of discretion by the ALJ.

B. The ALJ did not err in determining that the facts alleged in the Complaint, taken to be true, established Respondent’s liability.

Respondent argues that the ALJ erred in entering default judgment because Respondent’s Answer raised affirmative defenses that the ALJ did not consider.  Resp’t Br. at 5-6.  More specifically, Respondent argues that “[t]he ownership of the premises at the time of the alleged violations and the license holder at the time of the alleged violations is a fact issue that is essential to determining an [initial default decision].”  Id. at 6.  Respondent failed to provide discovery responses relevant to the affirmative defenses and the consequences of that noncompliance was the striking of Respondent’s Answer.  Having determined that the ALJ did not err in striking Respondent’s Answer, we likewise find no error in not considering the affirmative defenses set forth in the Answer.

The ALJ correctly recognized that striking Respondent’s Answer left the complaint unanswered and, therefore, the ALJ was “required to issue an initial decision by default, provided that the Complaint is sufficient to justify a penalty.”  ALJ Decision at 5 (citing 21 C.F.R. § 17.11(a)); see Ranjit at 5 (citing KKNJ at 10 n.7) (“Striking an answer leaves a respondent in the position of a respondent that has not answered a complaint.”).  Section 17.11 of the regulations provides that if a respondent does not file an answer, the ALJ “shall assume the facts alleged in the complaint to be true,” and “issue an initial decision . . . imposing:  (1) The maximum amount of penalties provided for by law for the violations alleged; or (2) The amount asked for in the complaint, whichever amount is smaller.”  21 C.F.R. § 17.11(a).

The ALJ appropriately treated the allegations set out in the Complaint as proven and proceeded to apply the relevant law to those facts.  ALJ Decision at 5-6.  The Complaint specifically alleged that “Respondent owns an establishment that does business under the name Frogtown Market and is located at 516 Rice Street, Saint Paul, MN 55103.”  Compl. ¶ 11.  The ALJ determined that the facts alleged in the Complaint, taken to be true, establish that Respondent committed three violations of the Act and regulations at its place of business within a 24-month period and is therefore liable under the Act.  ALJ Decision at 5-6.  Those violations were undisputed because Respondent’s Answer,

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including its affirmative defenses, was stricken from the record as a sanction.  Respondent has not shown any error in the ALJ’s determination.

Respondent could have pursued its affirmative defenses during the ALJ proceeding had it cooperated in discovery, taken an active role in the case, and complied with the ALJ’s orders and procedures.  By failing to do so, and having been sanctioned as a result of its repeated and sustained noncompliance, Respondent forfeited the opportunity to “prove any affirmative defenses and any mitigating factors by a preponderance of the evidence.”  See 21 C.F.R. § 17.33(c).

In sum, we conclude that the ALJ did not err in determining that the facts alleged in the Complaint, taken to be true, established Respondent’s liability for the three violations under the Act and provided a basis for assessing a $638 penalty.

Conclusion

For the foregoing reasons, we affirm the ALJ Decision.

Endnotes

¹ The minimum age for sale of tobacco products, codified at 21 U.S.C. § 387f(d)(5), was changed from 18 to 21 as a result of 2019 amendments to the Act.  See Further Consolidated Appropriations Act, Pub. L. No. 116–94, § 603(a), (Dec. 20, 2019), http://uscode.house.gov/statviewer.htm?volume=133&page=3123 (last visited June 17, 2024).  Those statutory amendments also directed the Secretary to “update all references to persons younger than 18 years of age” in 21 C.F.R. Part 1140, subpart B, and to “update the relevant age verification requirements” to “require age verification for individuals under the age of 30.”  Id. at § 603(b)(1).  The relevant regulations are not yet updated.

² The facts stated here are taken from the ALJ Decision and the administrative record.  We make no new findings of fact, and the facts stated are undisputed unless we indicate otherwise.

³ McNeal is also factually dissimilar to this case and does not support Respondent’s contention that a corporate entity should not be sanctioned for the neglect of its counsel.  See McNeal, 842 F.2d at 787 (remanding discrimination case for further consideration where district court “may have” dismissed plaintiff’s case “solely because of the inconvenience plaintiff caused when she was not ready to proceed to trial” after terminating her counsel a few days before trial and requesting a continuance).  In sum, the two-factor test for Rule 41 dismissals as described in McNeal does not apply here.  Even if it did, the ALJ’s decision to strike Respondent’s Answer was well-within her discretion because (1) there was a “clear record of delay”; and (2) the ALJ did consider “lesser sanctions” before striking the answer.  Id. at 790.  We describe those delays and the ALJ’s repeated efforts to compel Respondent’s compliance in the main text of this decision.