Peter Smythe, P.C.

One of the most impor­tant aspects of appe­llate advo­cacy is the stan­dard of review. Very often the appellant’s des­tiny will be deci­ded solely on the basis of the appli­ca­ble stan­dard of review. The Ninth Cir­cuit Court of Appeals, in Uni­ted Sta­tes v. Hink­son, refashio­ned the circuit’s abuse of disc­re­tion stan­dard. The court held:

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.

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[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.

From an appellant’s point of view, the bur­den of pro­ving that a fede­ral trial judge’s fac­tual fin­dings were “illo­gi­cal, implau­si­ble, or without sup­port in infe­ren­ces that may be drawn from facts in the record” is pretty formidable.

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