23CA2203 Karl v Dept of Safety 10-10-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA2203 City and County of Denver District Court No. 23CV30672 Honorable Martin F. Egelhoff, Judge
Charles Karl,
Plaintiff-Appellant,
v.
Department of Safety,
Defendant-Appellee.
ORDERS AFFIRMED
Division VII Opinion by JUDGE SCHUTZ Tow and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 10, 2024
Empower P.C., Christopher M.A. Lujan, Aurora, Colorado, for Plaintiff- Appellant
Kerry C. Tipper, City Attorney, Charles T. Mitchell, Assistant City Attorney, Margaret C. Tharp, Assistant City Attorney, Denver, Colorado, for Defendant- Appellee ¶1 Plaintiff, Charles Karl, appeals the district court’s orders
denying his motion to certify the record and affirming the decision
and final order entered by defendant, the Civil Service Commission
of the City and County of Denver (Commission). We affirm.
I. Background
¶2 Karl was a captain with the Denver Fire Department. In
September 2021, the Department of Safety demoted him from the
rank of captain to the rank of firefighter based on two personnel
incidents that occurred in the spring of 2021. Karl appealed the
demotion. An administrate law judge held an evidentiary hearing in
December 2021. The hearing officer issued a decision upholding
the demotion in January 2022. Karl appealed the hearing officer’s
decision to the Commission on January 18, 2022.
¶3 After more than 200 days passed without a decision, Karl filed
a petition in Denver District Court Case No. 23CV30675, seeking an
order compelling the Commission to issue a decision. Eleven days
later, which was 238 days after the briefing period had ended, the
Commission issued its final decision and order affirming the
hearing officer’s decision.
1 ¶4 Karl then filed the present case in the district court under
C.R.C.P. 106(a)(4) seeking judicial review and reversal of the
Commission’s decision. He argued that the Commission abused its
discretion in two ways: (1) by misapplying the applicable provisions
of the Denver Fire Department Discipline Handbook; and (2) by
failing to issue a decision by the deadline specified in Denver Civil
Service Commission Rule 12, section 11(K)(3), which states the
Commission has eighty-four days to issue a decision.
¶5 Rule 106(a)(4)(III) provides that “[i]f the complaint is
accompanied by a motion and proposed order requiring certification
of a record, the court shall order the defendant body or officer to file
with the clerk on a specified date, the record or such portion or
transcript thereof as is identified in the order.” Karl did not file
such a motion with the complaint, or his subsequently filed
amended complaint. Rule 106(a)(4)(VII) continues: “If no record is
requested by the plaintiff, the plaintiff shall file an opening brief
within 42 days after the defendant has served its answer upon the
plaintiff.” Thus, Karl’s opening brief was due within forty-two days
after the Commission served its answer to the amended complaint.
See C.R.C.P. 106(a)(4)(VII).
2 ¶6 Nearly a month after Karl’s deadline for filing his opening brief,
the district court’s judicial assistant emailed Karl’s counsel to
inquire about the status of the case. Karl’s counsel responded that
“this matter is ready for a briefing schedule to be issued,” and
“[t]here is no motion for certification of the record pending in this
case.” The same day, the district court entered an order setting a
briefing schedule for the Rule 106 claims.
¶7 A month later, and approximately a week before the opening
brief was due, Karl filed a motion to certify the record. In his reply
to the Commission’s response to his motion to certify the record,
Karl’s attorney stated that he did not file the motion earlier because
he was trying to save his client the expense of certifying the record
and that he had an expectation the Commission’s counsel would file
the certification.1 The district court denied his motion, concluding
that it was untimely and that Karl had made no showing of
excusable neglect to justify the late filing.
1 On appeal, the Commission’s counsel denies that Karl’s attorney
ever asked or confirmed whether the Commission would file the certified record.
3 ¶8 After the briefing process, the district court entered an order
concluding that the Commission did not lose its jurisdiction, exceed
its authority, or abuse its discretion by issuing its final decision and
order more than eighty-four days after the briefing before the
Commission was completed. Karl appeals this order and the
district court’s order denying his motion to certify the record.
II. Timeliness of the Commission’s Order
A. Standard of Review
¶9 Under Rule 106(a)(4), we review an agency’s quasi-judicial
decisions to determine if it has “exceeded its jurisdiction or abused
its discretion.” The agency decision that Karl challenges is the
issuance of the Commission’s final decision and order long after the
expiration of the deadline established by Rule 12, section 11(K)(3).
The Commission’s interpretation and application of that Rule
presents an issue of law that we review de novo. See Colo. Dep’t of
Lab. & Emp. v. Esser, 30 P.3d 189, 194 (Colo. 2001) (“[C]onclusions
of law, including interpretations of the constitutions and statutes,
are always subject to de novo review.”); Safeway, Inc. v. Indus.
Claim Appeals Off., 186 P.3d 103, 105 (Colo. App. 2008) (“In
construing an administrative rule or regulation, we apply the same
4 rules of construction as we would in interpreting a statute.”
(quoting Lucero v. Dep’t of Insts., 942 P.2d 1246, 1249 (Colo. App.
1996))). An agency abuses its discretion when it misapplies the
law. Gallegos v. Garcia, 155 P.3d 405, 406 (Colo. App. 2006).
B. The Parties’ Arguments
¶ 10 As best we understand his argument on appeal, Karl asserts
that under Rule 12, section 11(K)(3), the Commission either
exceeded its authority or abused its discretion by issuing its final
decision and order more than eighty-four days after the briefing was
complete. In its answer brief, the Commission frames Karl’s
argument as a contention that the Commission lost its jurisdiction
to act.
¶ 11 Both in the district court and on appeal, the Commission cites
Shaball v. State Compensation Insurance Authority, 799 P.2d 399
(Colo. App. 1990), as the analytical framework for its jurisdictional
analysis. In rejecting Karl’s challenge to the timeliness of the
Commission’s decision, the district court also viewed the Rule 12,
section 11(K)(3), timing issue as a question of jurisdiction and
analyzed it through the Shaball framework.
5 ¶ 12 In his reply brief on appeal, however, Karl expressly denies
that he is making a jurisdictional argument. Rather, he reiterates
that he is arguing that the Commission exceeded its authority and
abused its discretion by deciding the appeal after the eighty-four-
day deadline.
¶ 13 As a remedy for the asserted violation of the deadline, Karl
requested that the district court reverse the Commission’s decision.
While less than clear, it seems he was also asking the court to
reverse or vacate the hearing officer’s decision and reinstate him to
his former rank of captain. This argument is premised on the
contention that the factual record and disciplinary matrix did not
support his demotion.
1. The Commission’s Jurisdiction and Authority to Act
¶ 14 Rule 12 addresses disqualification and disciplinary appeals,
hearings, and procedures. Section 11(K)(1) and (K)(3) of Rule 12
provides as follows:
1. The Commissioners shall issue a written Decision and Final Order, that shall be binding upon all parties, affirming, reversing, or modifying the Hearing Officer’s Decision and Order with respect to any charged violation and any imposed penalty that is a subject of
6 the appeal. The Commissioners’ decision shall be final and is subject to judicial review . . . .
....
3. The Commissioners shall issue their decision no later than eighty-four (84) days after the close of Oral Argument or, if no Oral Argument is held, after the close of the briefing period.
¶ 15 Despite the terms of Rule 12, section 11(K)(3), the Commission
did not issue its decision and final order within eighty-four days
after the close of the briefing period.
¶ 16 Although we acknowledge Karl’s disclaimer, we elect to
address the jurisdictional question for three reasons. First, an
agency decision is void if it is entered without jurisdiction. Emmons
v. Colo. Dep’t of Revenue, 2020 COA 17, ¶ 32 (“If we find that the
Department acted without jurisdiction, we must reverse the district
court judgment . . . .”). Second, an appellate court must be
satisfied that the reviewing agency had jurisdiction to resolve the
disputed issue. Id. And third, the district court expressly resolved
the jurisdictional question after applying Shaball, which we agree
provides the most relevant authority for determining if an agency
loses the ability to act because a decision was not timely issued.
7 ¶ 17 Shaball, like the present case, involved the appeal of a
disciplinary action. See 799 P.2d at 402. There, the plaintiff
argued that the administrative agency “lost jurisdiction when the
hearing officer failed to issue a decision” within the timeframe
specified by the applicable statute. Id. In rejecting the plaintiff’s
jurisdictional argument, the division held that “[s]tatutory
provisions governing the time for actions to be taken by public
officials and agencies are not jurisdictional unless a contrary intent
is clearly expressed.” Id. The division explained,
The crucial difference between statutes considered to be directory and those deemed mandatory arises from the consequence of noncompliance. Failure to follow the former does not terminate the authority of the administrative or judicial body to decide the issue, whereas the failure to follow the latter may terminate its power or jurisdiction.
¶ 18 Id.
¶ 19 Shaball sets forth three factors for assessing whether a time
limit governing the issuance of an agency decision is directory
rather than mandatory. Id. The first is whether the rule indicates
that “time is of the essence” to issue a decision. Id. Aside from
articulating the timeframe, Rule 12, section 11(K)(3), contains no
8 indication that time is of the essence in meeting the eighty-four-day
deadline.
¶ 20 The second Shaball factor is whether the governing statute
“contains negative language denying the exercise of authority
beyond the time period prescribed for action.” 799 P.2d at 402.
Section 11(K)(3) of Rule 12 contains no language indicating that an
agency loses jurisdiction or its authority to act if its decision is not
issued within eighty-four days.
¶ 21 The third Shaball factor requires us to consider whether
“disregarding the relevant provision would injuriously affect public
interests or private rights.” 799 P.2d at 402. Certainly, Karl had a
personal interest in receiving a timely decision from the
Commission. And we appreciate his frustration with the
Commission’s significant delay in issuing the decision in this case.
The Commission’s decisions materially impact important aspects of
employees’ daily lives: Karl’s employment status, salary, and
retirement benefits remained in limbo while the Commission
considered its decision. However, we find no indication that Karl
suffered a specific injury from the Commission’s delay that could
not have been remedied if the Commission had found in his favor.
9 His title and retirement benefits could have been reinstated, and he
could have received backpay.
¶ 22 On a less tangible level, the uncertainty created by the delayed
decision likely impacted Karl’s work environment and his mental
state. But these tensions are inherent in the litigation of all
employment actions, and Karl has identified no concrete personal
loss that he suffered because of the delay.
¶ 23 Finding none of the three Shaball factors satisfied in this case,
we conclude that the Commission’s delay in issuing its decision did
not result in the loss of its jurisdiction or authority to act.
2. Abuse of Discretion
¶ 24 Perhaps in view of Shaball, Karl’s focus in the district court
and on appeal is his argument that the Commission abused its
discretion by issuing its decision long after the eighty-four-day
deadline. An agency abuses its discretion when it misconstrues or
misapplies the law or when it makes a decision that is unsupported
by competent evidence in the record such that the decision can only
be explained as an arbitrary or capricious exercise of authority.
Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dep’t., 196 P.3d
10 892, 899-900 (Colo. App. 2008) (citing Ross v. Fire & Police Pension
Ass’n, 713 P.2d 1304, 1308-09 (Colo. 1986)).
¶ 25 In rejecting this argument, the district court relied on a
decision from a division of this court in Mayerle v. Civil Service
Commission, 738 P.2d 1198 (Colo. App. 1987). In Mayerle, the
division rejected the plaintiff’s contention that the Commission’s
five-month delay in issuing its opinion was arbitrary and
capricious. Id. at 1200 (“Petitioner’s argument that the Commission
acted arbitrarily and capriciously in rendering its decision five
months after the hearing is without merit.” (citing Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532 (1985))); Loudermill, 470 U.S. at
547 (concluding that a nine-month delay in issuing a decision was
neither unreasonable nor unconstitutionally lengthy per se). In
Karl’s case, the seven-month delay falls squarely between the five-
month delay in Mayerle and the nine-month delay in the case
Mayerle cites, Loudermill.
¶ 26 Karl relies heavily on Rags Over the Arkansas River, Inc. v.
Colorado Parks & Wildlife Board, 2015 COA 11M, to support his
argument that the Commission exceeded its authority by not
adhering to the eighty-four-day deadline. In Rags, the Colorado
11 Parks and Outdoor Recreation Board delayed issuing a permit that
would have allowed the plaintiff to create an outdoor artistic feature
over the Arkansas River. Id. at ¶ 5. Thus, Rags involved an
agency’s failure to follows its own rules governing the issuance of a
special activities permit. Id. at ¶ 66. The division concluded that
the agency’s failure to follow its own regulations in the permitting
process was error, but that any error was harmless. Id. at ¶ 64.
¶ 27 Karl’s contention is that the Commission’s failure to issue a
timely decision was an abuse of discretion. This is so, he argues,
because the language of Rule 12, section 11(K)(3), is mandatory
rather than directive. But Rags does not provide an analytic
framework for deciding when a deadline to issue a decision is
mandatory rather than directive. That framework is provided by
Shaball. 799 P.2d at 402. And for the reasons previously
articulated, the application of Shaball’s three factors leads to the
conclusion that Rule 12’s eighty-four-day deadline is directive
rather than mandatory.
¶ 28 Karl relies on various nonbinding decisions from other
jurisdictions to argue that the word “shall” in Rule 12, section
11(K)(3), imposes a mandatory deadline. See, e.g., Mohasco Corp. v.
12 Silver, 447 U.S. 807, 825-26 (1980) (concluding that deadline for
filing unfair employment practices claim is mandatory); In re Comp.
of Pena, 432 P.3d 382, 386 (Or. Ct. App. 2018) (concluding that the
Worker’s Compensation Division misapplied its own rules and
reversing decision that failed to follow the rule).
¶ 29 But these decisions are based on statutes or rules not at issue
here. Moreover, Karl cites no analytic framework that displaces the
Shaball factors in assessing whether an agency rule that
establishes a deadline for the issuance of a decision is mandatory or
directive. Similarly, he provides no framework by which we are to
determine when a delay in the issuance of a decision rises to the
level of arbitrary or capricious conduct.
¶ 30 In the absence of such authority, we conclude that the
Commission did not act arbitrarily or capriciously by issuing its
decision after the eighty-four-day deadline.
¶ 31 But even if we assume there was error, such error would not
justify either remedy that Karl requests. Karl effectively proposes
two remedies. First, he suggests that we should vacate the
Commission’s decision because of its untimeliness and vacate the
hearing officer’s decision, reinstating his original position as
13 captain. Alternatively, he argues that we should reverse the district
court’s order denying his motion to certify the record and remand
this matter with instructions that the district court review the
record and reconsider the merits of the Commission’s decision. The
first remedy is well outside our authority. The second would only
be possible if we found the district court had erred in denying Karl’s
motion to certify the record. But as explained below, we conclude
that the district court did not err by denying the motion to certify
the record.
III. Denial of the Motion to Certify Record
¶ 32 Karl argues that the district court abused its discretion by
denying his motion to certify the record. He asks that the case be
remanded to the district court with instructions to allow him to
submit a certified record, so the district court can evaluate the
merits of the Commission’s decision.
¶ 33 We review the district court’s decision whether to grant a tardy
motion for an abuse of discretion. See Brown v. Walker Com., Inc.,
2022 CO 57, ¶ 19-20 (concluding that trial courts have broad
latitude to allow untimely filings under the provisions of Rule
14 6(b)(2)). “A trial court abuses its discretion when its decision is
manifestly arbitrary, unreasonable, unfair, or based on a
misapplication of the law.” Adams Cnty. Hous. Auth. v. Panzlau,
2022 COA 148, ¶ 17 (quoting Black v. Black, 2020 CO 64M, ¶ 118).
B. Analysis
¶ 34 The district court’s order denying Karl’s motion adopted by
reference the arguments made in the Commission’s response to
Karl’s motion to certify the record. In its response, the Commission
argued Karl failed to demonstrate “good cause or excusable neglect”
for the delay in filing the motion. The Commission also noted that
in response to the district court’s inquiry, Karl represented that
there was no request to certify the record and that the case was ripe
for setting the briefing schedule.
¶ 35 In his reply to the Commission’s response, Karl argued that he
didn’t timely file a motion to certify because in a previous case
involving the same attorneys, defense counsel provided a certified
copy of the record even though Karl’s counsel had not filed a motion
to certify. Aside from this one alleged incident — the circumstances
of which are not documented or further explained — there is
nothing in the record to indicate an established relationship or
15 practice between counsel that would justify Karl assuming that
there was no need file a motion to certify in this case.
¶ 36 On appeal, Karl offers the same justification for his belated
filing: in one prior Rule 106 case with defense counsel, the city
attorney had filed a record even though Karl’s attorney had not filed
a motion to certify, and he assumed the same practice would be
followed in this case.
¶ 37 As an initial matter, we note that Karl’s counsel first raised
this argument in his reply brief filed in the district court. Generally,
we do not consider arguments raised for the first time in a reply
brief. See Flagstaff Enters. Constr., Inc. v. Snow, 908 P.2d 1183,
1185 (Colo. App. 1995) (it is not error for a trial court not to
consider arguments raised for the first time in a reply brief). But
even if we assume the argument was adequately preserved, we
conclude it fails on the merits.
¶ 38 Neither before the district court nor on appeal does Karl point
to an established practice between counsel, or an express
representation from opposing counsel, that would justify his
assumption that he could ignore the requirements of Rule
106(a)(4)(III) and (IV). Moreover, a party is not free to disregard a
16 deadline absent permission of the tribunal, and there is nothing in
the record suggesting that the district court agreed to such practice.
¶ 39 In addition to these omissions, Karl affirmatively represented
to the district court that there was no motion to certify the record
outstanding and that the parties were ready for a briefing schedule.
Noting that “a certified record has not been requested,” the district
court entered its order setting forth the deadlines for the parties’
briefs on appeal. Even then, Karl did not file his motion to certify
until more than a month later, seven days before his opening brief
was due. And in his reply brief concerning the motion to certify,
Karl stated that the filing of his opening brief “probably rendered
moot” the issue of record certification because he “was able to file
his brief without a certification of record.”
¶ 40 Karl lastly contends that his motion to certify should not be
treated as untimely because C.R.C.P. 106(a)(4) does not set forth an
express deadline for filing a motion to certify. Similarly, he
contends that any delay was inconsequential because he filed the
motion before the deadline for filing his opening brief. We disagree.
¶ 41 Rule 106(a)(4)(III) contemplates the filing of a motion to certify
contemporaneously with the complaint. If no record is requested,
17 an opening brief is due within forty-two days of the answer.
C.R.C.P. 106(a)(4)(VII). Karl’s opening brief was already
significantly past due before the court’s clerk contacted him to
inquire about its status. And when he stated that no record was
requested, the court set a deadline for filing the opening brief. After
another thirty-five days had expired, Karl filed the motion to certify
seven days before the deadline for his opening brief. If the motion
had been granted, it would have delayed the briefing until the
record could be prepared and filed. This would have required a new
briefing schedule and caused additional delay in resolving the case.
¶ 42 Given these facts, we cannot conclude that the district court
abused its discretion by denying Karl’s untimely motion to certify
IV. Disposition
¶ 43 The district court’s orders denying the motion to certify the
record and affirming the Commission’s final decision and order are
affirmed.
JUDGE TOW and JUDGE PAWAR concur.