Ardyce Carlson, M.D.
Dismissal vacated for factual inquiry
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This is citable Commission precedent from 1993, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
The chief administrative law judge dismissed Dr. Ardyce Carlson's notice of contest after no answer to the Secretary's complaint or response to an order to show cause appeared in the Commission's file. Dr. Carlson told the Commission that he had mailed an answer by certified mail, had not received the show-cause order, and had filed for bankruptcy and closed his practice. The Commission found that those circumstances might justify relief from dismissal under Federal Rule of Civil Procedure 60(b), but the existing record was insufficient to decide the issue. It vacated the dismissal and remanded for the judge to receive affidavits or conduct other proceedings so Dr. Carlson could offer proof.
Decision snapshot
- Cited standard(s): Not identified in the decision
- Outcome: The dismissal was vacated, and the case was remanded for development of an evidentiary record.
- Key point: Allegations that a filing was mailed and a show-cause order was not received may warrant relief from dismissal, but the party must be allowed to develop proof of those circumstances.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
FAX:
COM (202) 6064050 -
FTS, (202) 6064050
SECRETARY OF LABOR,
Complainant,
.
v. : OSHRC Docket No. 93-885
..
ARDYCE CARLSON, M.D., ..
..
Respondent. ..
.1
REMAND ORDER
BEFORE: FOULKE, Chairman, and MONTOYA, Commissioner.
BY THE COMMISSION:
By letter of August 14, 1993, Ardyce Carlson, M.D., acting pro se, requested relief
from an order of the Chief Administrative Law Judge. The judge dismissed Dr. Carlson’s
notice of contest for failure to file an answer to the Secretary’s complaint, and failure to
respond to the judge’s Order to Show Cause.
In his letter, Dr. Carlson states that “[a]n answer to the complaint was filed via
certified mail and receipt received.” He enclosed no receipt or copy thereof, however, and
there is no answer in the Commission’s file. Dr. Carlson also states that “[n]o order to show
cause was received by myself.” The address he gives on his letter is different from the one
he gave on his notice of contest, which is where the Order to Show Cause was addressed.
In further explanation, Dr. Carlson states, “I have unfortunately had to file for bankruptcy
and close my practice. You should have received notification from my attorney.” The
Commission’s file reveals no such notification.
The circumstances alleged in Dr. Carlson’s letter may represent adequate grounds for
relief from dismissal under Federal Rule of Civil Procedure 60(b). On the other hand, the
2
Commission has not been presented with a sufficient factual record upon which to base such
a decision. The Commission therefore finds it appropriate to allow Dr. Carlson an oppor-
tunity to establish whether his notice of contest should be reinstated.
.
Accordingly, the Commission vacates the Chief Administrative Law Judge’s order
dated August 10, 1993. The Commission remands this case to the Chief Administrative Law
Judge with instructions to develop an evidentiary record through affidavit(s) or other
appropriate proceedings to allow Dr. Carlson to offer proof of the circumstances alleged in
his letter.
Edwin G. Foulke, Jr.
-* .
Chairman
Velma Montoya
Commissioner
Dated*. September 30, 1993
NOTICE OF ORDER
The attached Remand Order by the Occupational Safety and Health Review
Commission was issued and served on the following on September 30, 1993.
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, USDOL
200 Constitution Ave., N.W. Room S4004
Washington, D.C. 20210
James E. White, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
Suite 501
525 S. Griffin Street
Dallas, TX 75202
Ardyce Carlson, M.D.
3212 Concord, Suite C
Orange, TX 77630
Irving Sommer
Administrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th Street, Suite 990
Washington, D.C. 20036-3419
FOR THE COMMISSION
Ray H. Darling, Jr.
Executive Secretary
0
UNITED STATES OF AMERICA
OCCtJPA”IONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
FAX:
PHONE:
COM (202) 6064100 COM (202) 606-5050
FTS (202) 60&5100 FTS (202) 606-5050
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-0885
ARDYCE CARLSON, M.D.
Respondent.,
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on August 12, 1993. The decision of the Judge
will become a final order of the Commission on September 10, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
September 1, 1993 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980 .
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
Date: August 12, 1993 *
DOCKET NO. 93-0885
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
James E. White, Esq.
Re ional Solicitor
Of&e of the Solicitor U S DOL
525 Griffin Square Blhg.,‘Suite 501
Griffin & Youn Streets
Dallas, TX 752 %2
Ard ce Carlson, M.D.
321l C oncord, Suite- C
Orange, TX 77630
Irvin Sommer
Chie HAdministrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00100752674 : 06
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
..
SECRETARY OF LABOR, .
.
.
Complainant, .
.
.
.
v. .
l Docket No. 93-0885
.
.
ARDYCE CARLSON, M.D., .
.
.
.
Respondent. .
.
.
On June 22, 1993, the undersigned issued an ORDER TO SHOW
CAUSE to the Respondent as to why his Notice of Contest should
not be dismissed for failure to file an answer to the complaint
as required by the Commission's Rules of Procedure. The
Respondent failed to reply to the ORDER. His actions demonstrate
either that he has abandoned the case or treats the Rules of
Procedure of the Commission with disdain. This cannot be
countenanced as it seriously impedes the administration of
justice.
Accordingly, the Notice of Contest filed by the Respondent
is dismissed. The Secretary's citation(s) and proposed penalties
are AFFIRMED in all respects.
IRVING SOMMER
Judge, OSHRC
DATED:
Washington, DC.
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