Arbitrary and Capricious

Arbitrary and capricious (See also Burden of proof and § 19-10 A.2.c)

The duty of a court reviewing agency action under the arbitrary or capricious standard is to ascertain whether the agency examined the relevant data and articulated a rational connectionbetween the facts found and the decision made.  In re Hamilton, CSA 100-09, 13 (9/17/10), citing Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir.1994). 

A reviewing body must determine whether the agency considered all relevant factors and whether there has been a clear error of judgment.  In re Hamilton, CSA 100-09, 13 (9/17/10), citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). 

A decision is an abuse of discretion if it is made without a rational explanation, departs from established policies, or rests on considerations not intended by the governing law. In re Hamilton, CSA 100-09, 13 (9/17/10), citing Wong Wing Hang v. INS, 360 F.2d 715, 719 (2nd Cir. 1965).

 A discretionary agency action is capricious or arbitrary if the agency
1) fails to use reasonable diligence to procure facts necessary to its decision,
2) does not consider relevant evidence, or
3) bases its action on conclusions reasonable persons could not reach.
In re Hamilton, CSA 100-09, 13 (9/17/10),citing Maggard v. Dept. of Human Services, 226 P.3d 1209, 1212 (Colo.App. 2009).

An agency action is arbitrary and capricious if an agency 1) fails to use reasonable diligence to determine facts necessary to its decision, 2) fails to give proper consideration to facts relevant to the decision, or 3) bases its action on conclusions that reasonable persons considering the facts would not reach. In re Foley, CSA 19-06, 8 (11/10/06), citing Lawley v. Dept. of Higher Education, 6 P3d 1239, 1252 (Colo. 2001).

The core of the concept of arbitrary and capricious action is rationality. In re Foley, CSA 19-06, 8 (11/10/06), citing Columbia Broadcasting System v. F.C.C., 454 F.2d 1018, 1028 (D.C.Cir. 1971).

An act is arbitrary and capricious if a reasonable person, considering all the evidence, would fairly and honestly be compelled to reach a different conclusion. In re Padilla, CSA 25-06, 11 (9/13/06), citing In re Leal-McIntyre, CSA 77-03, 5 (1/27/05); Wildwood v Colo. Dept. of Public Health Care, 985 P2d. 654 (Colo. App. 1999).

Express finding that “needs improvement” PEPR rating was arbitrary, capricious and without rational basis or foundation is sole basis for reversal of rating. Error in rating calculations is not sufficient to support reversal of rating. In re Padilla, CSA 25-06, 11 (9/13/06), affirmed CSB 2/15/07. See also In re Macieyovski, CSA 62-06, 3 (12/14/06).

PEPR rating was arbitrary, capricious, and without rational basis or foundation where deficiencies noted in PEPR were not clearly related to performance standards set in the PEP, PEPR was fraught with mathematical errors and procedural problems, and convincing evidence was presented that supervisor actively disliked appellant. In re Padilla, CSA 25-06, 11 (9/13/06).

Agency may not discipline an employee both for engaging in and, at the same time, failing to engage in the same conduct. In re Martinez, CSA 69-05, 3 (1/4/06) (decided under former §16-50 A. 1).

Agency neglected to use reasonable diligence to determine whether laid-off employee possessed the qualifications to perform the essential duties of the demotional appointment, gave undue weight to its own interpretation of the nature of the position, and disregarded more objective evidence, thereby exercising its discretion in an arbitrary and capricious manner. In re Romberger, CSA 89-04, 9-12 (3/2/05), citing Lawley v. Dept. of Higher Education, 6 P.3d 1239, 1252 (Colo. 2001).

An act is arbitrary and capricious if a reasonable person, considering all the evidence in the record, would fairly and honestly be compelled to reach a different conclusion. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 5 (1/27/05), citing Wildwood Child & Adult Care Program, Inc. v. Colo. Dept. of Public Health Care and Environment, 985 P.2d 654, 658 (Colo. App.1999). 

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