Thursday, November 5, 2009

En Banc Ninth Circuit Changes Abuse Of Discretion Standard

A divided en banc Ninth Circuit changed the standard of review for abuse of discretion today in United States v. Hinkson (05-30303).  The majority opinion written by Judge Bea stated:
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.
Judge Fletcher, joined by Judge Pregerson, Judge Wardlaw and Judge Paez, wrote a  72 page dissent.


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