En banc ninth tries to clear up the “abuse of discretion” standard

The “abuse of discretion” standard of review, depending on the particular court applying it and the particular case in which it is applied, can sometimes seem about as clear as mud. The en banc Ninth Circuit set out to clear up the standard in United States v. Hinkson, case no. 05-30303 (9th Cir. Nov. 5, 2009):

Today we consider the familiar “abuse of discretion” standard and how it limits our power as an appellate court to substitute our view of the facts, and the application of those facts to law, for that of the district court.


[W]e conclude that our “abuse of discretion” standard is in need of clarification. The standard, as it is currently described, grants a court of appeals power to reverse a district court’s determination of facts tried before it, and the application of those facts to law, if the court of appeals forms a “definite and firm conviction that a mistake has been committed.” At the same time, the standard denies a court of appeals the power to reverse such a determination if the district court’s finding is “permissible.”

Because it has previously been left to us to decide, without further objective guidance, whether we have a “definite and firm conviction that mistake has been committed,” or whether a district court’s finding is “permissible,” there has been no effective limit on our power to substitute our judgment for that of the district court.

Today, after review of our cases and relevant Supreme Court precedent, we re-state the “abuse of discretion” standard of review of a trial court’s factual findings as an objective two-part test. As discussed below, our newly stated “abuse of discretion” test requires us first to consider whether the district court identified the correct legal standard for decision of the issue before it. Second, the test then requires us to determine whether the district court’s findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that may be drawn from facts in the record.

I’ll be straight with you here: I haven’t read the combined 107 pages of opinions. You can get more details about the case from Ninth Circuit Blog.

I’ll probably have more to say about this case after I’ve read it in detail, but for now . . . well, as I’ve noted before, detailed formulations of the abuse of discretion standard tend to incorporate multiple standards of review, each of which is applied to a discrete step in a multiple-step analysis as to whether the trial court abused its discretion. The Hinkson formulation certainly seems to continue that tradition. It is a welcome development, but I’m not sure that the second step supplies the objectivity the court claims it does.

Ninth Circuit Fires Up Electronic Case Management Efforts

The Ninth Circuit announced last Friday that it “will begin implementation of the appellate version of a new case management system, CM/ECF (case management/electronic case files) on March 3, 2008.” See this link for details about timing, training, and sign-up for e-mail notification of docket activity.

Thanks to Criminal Appeal for the link.

Ninth Circuit Judicial Complaint Disposition Orders Published Online

Via NLJ’s L.A. Legal Pad comes news that, according to this press release from the Ninth Circuit, “disposition of judicial misconduct and disability complaints against federal judges sitting in the Ninth Circuit will be publicly available via the Internet” starting this month.  Three orders are already up.

The main page includes links to the governing rules,  a page listing the orders, and a downloadable complaint form.

Chutzpah on Appeal

Chutzpah” is about the most polite word I could come up with for the appellant’s audacity in United States v. Moreland,  case no. 05-30541 (9th Cir., Dec. 13, 2007).

Moreland apparently swindled people out of $73 million, so I’m going to assume he had a little bit of money, legitimately earned, set aside for his defense.  Yet he fought tooth and nail to proceed pro se, which is where all his problems started.

The decision is covered very well, and in some detail, in this post at Decision of the Day, which begins:

In my line of work, I see all kinds of appellate arguments: brilliantly creative, colossally stupid, and everything in between. I enjoy the wacky ones the most, because they tend to inspire spirited opinions, which in turn gives me something interesting to blog about. But occasionally, an appellant makes a wacky argument that really gets under my skin. The Ninth Circuit dealt with three such examples in a decision issued yesterday.

Worthy reading.  And it’s worth noting that Moreland was represented on appeal.  I have to wonder if his lawyers winced as they filed the brief.

We’re #1!

Today’s decision in Dukes v. Walmart, Inc., case no. 04-16688 (9th Cir. Dec 11, 2007), in which a panel of the Ninth, on rehearing, again affirms the class certification in this gender discrimination case, prompts this from Howard Bashman at How Appealing:

In the Ninth Circuit, to a degree not seen in any other federal appellate courts, published opinions often resemble works in progress. A three-judge panel will issue an opinion, the losing party will petition for rehearing and/or rehearing en banc, and then months later the panel will withdraw its original opinion and substitute in its place a new and presumably improved decision.

Bashman watches courts all over the country, and he seems to think the Ninth has more “do-overs” than any other circuit.  Maybe they ought to call them tenative opinions?

UPDATE (12/12/07):  For commentary on the merits of Dukes, see Decision of the Day.

Defense of the Ninth Circuit

The Ninth Circuit Court of Appeals gets plenty of criticism.  Not like you need me to point it out to you, but I have done so, along with pointing out some defenses.  See here, here and here.

NLJ’s L.A. Legal Pad links to an article in The National Law Journal (unfortunately, behind a subscription wall) with this introduction: “[C]atcallers should recognize that 27-judge court does not get to pick its cases and faces a great mix and concentration of cases compared to other circuits, finds a story in The National Law Journal.”

Might be worth checking out.