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ARBITRARY AND CAPRICIOUS

Absence of a rational connection between the facts found and the choice made. Natural Resources. v. U.S., 966 F.2d 1292, 97, (9th Cir.'92). A clear error of judgment; an action not based upon consideration of relevant factors and so is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law or if it was taken without observance of procedure required by law. 5 USC. 706(2)(A) (1988).

When a judge makes a decision without reasonable grounds or adequate consideration of the circumstances, it is said to be arbitrary and capricious and can be invalidated by an appellate court on that ground. There is, however, no set standard for what constitutes an arbitrary and capricious decision; what appears arbitrary to one judge may seem perfectly reasonable to another.

Example: Paul and Myra, both in their mid-30s, are involved in a disputed custody case. Both parents are fit to have custody of the child, so the judge must review all relevant information and decide what is in the best interest of the child. Myra raised the fact that when Paul was 16, he pleaded guilty to possessing marijuana. Based solely on Paul's previous conviction, the judge awarded custody to Myra. Paul appealed, arguing that the judge's decision was arbitrary and capricious, that his conviction nearly 20 years earlier was irrelevant, and that there is no reasonable basis to support the decision. The appellate court judges will make the decision.

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