The Case Law They Cite Is About the Abuse of Discretion, Not the Exercise of Discretion

March 29, 2013
By Hanging Out with Carl Gunn


  • A court of appeals opinion finding no abuse of discretion doesn’t mean the ruling being reviewed was the only permissible ruling, or even that it was the best ruling, so the opinion doesn’t mean a district court can’t or shouldn’t rule the other way in your case.
  • Because discretionary rulings favoring the government get appealed and reported in court of appeals opinions and discretionary rulings favoring the defense don’t get appealed and so don’t get reported in court of appeals opinions, the court of appeals opinions aren’t a representative sample of district courts’ exercise of discretion.
  • District court opinions and orders are more representative in this context, so find them.


As we’ve all seen in the court of appeals opinions we read – and know even better if we regularly handle appeals – district court rulings on many issues are reviewed on appeal only for “abuse of discretion.” These include issues which can be very important in trial practice, including, to name just a few, rulings on discovery issues, rulings on the admissibility of evidence, rulings on severance of defendants and/or counts, and rulings on the wording – or, in some instances, even the need – for certain jury instructions. And it always seems like almost all – certainly the vast majority – of court of appeals opinions on a given issue are upholding decisions in favor of the government. So the government comes in and argues something like, “Every [or ‘Almost every’] published opinion to consider the issue has held that . . . ,” leading the judge to conclude he or she would be a complete maverick to rule in favor of the defense. I offer this post to explain why that isn’t a fair conclusion and to offer some tools to make a judge understand that.

One needs to begin with an understanding of what the abuse of discretion standard of review does mean and doesn’t mean about the lower court ruling to which it is applied. Just a few years ago, the Ninth Circuit issued an en banc opinion – United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (en banc) – to clarify what the standard means. The court adopted a two-part test. See id. at 1261-63. The first step “is to determine de novo whether the trial court identified the correct legal rule to apply.”Id. at 1262. The second step is “to determine whether the trial court’s application of the correct legal standard was (1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support in inferences that may be drawn from the facts on the record.’” Id. (quotingAnderson v. City of Bessemer City, N.C., 470 U.S. 564, 577 (1985)). In other words, assuming the district court didn’t get the law wrong, its ruling will be affirmed unless it’s completely (yes, I guess I am adding a word there) illogical, implausible, or unsupported by any inference which can be drawn from the facts.

This suggests some things a court of appeals affirmance of a district court ruling on the ground that it is not an abuse of discretion does and does not mean. It does not mean that “the approach taken [by the district court] to the problem was ideal,”United States v. Hendrix, 549 F.2d 1225, 1229 (9th Cir. 1977), or even that it was “the best course,” United States v. White, 890 F.2d 1012, 1014 (8th Cir. 1989). It does not mean that the court of appeals judges would have ruled the same way if they were making the original decision; indeed, they may be certain that they would have ruled differently. See, e.g., United States v. Whitehead, 532 F.3d 991, 993 (9th Cir. 2008) (“Even if we are certain that we would have imposed a different sentence had we worn the judge’s robe, we can’t reverse on that basis.”); United States v. Armstrong, 48 F.3d 1508, 1521 (9th Cir. 1995) (en banc) (Wallace, J., concurring) (“[H]ad I been the district judge, I might well have concluded that it was insufficient to make out a colorable basis. Indeed, this en banc court might have resulted in a different outcome were we to review the district judge’s decision de novo.”), rev’d on other grounds, 517 U.S. 456 (1996); Zepeda v. U.S. Immigration and Naturalization Service, 753 F.2d 719, 725 (9th Cir. 1985) (“[W]e will not reverse the district court simply because we would have reached a different result.”). All “not an abuse of discretion” means is “that within substantial margins the district court could be upheld had it determined the issue one way or the other.” Speiser, Krause & Madole, P.C. v. Ortiz, 271 F.3d 884, 887 (9th Cir. 2001) (emphasis added).

This in turn explains why reported court of appeals opinions disproportionately favor the government. Rulings subject to abuse of discretion review will be affirmed the vast majority of the time, no matter which party they are against. But the rulings will not be presented to courts of appeals equally, because the parties will not appeal with the same frequency. The rulings against defendants will be regularly appealed, because there are no restrictions on defendants’ appeals and most defendants have little to lose by appealing. Rulings against the government, in contrast, will only rarely be appealed because (1) the government chooses to appeal relatively rarely as a policy matter; (2) the government can virtually never appeal rulings made during trial because it is not allowed to appeal “after the defendant has been put in jeopardy,” 18 U.S.C. § 3731; and (3) the government can appeal even a pretrial ruling only if the ruling excludes evidence that the government can certify is “substantial proof of a fact material in the proceeding,” 18 U.S.C. § 3731, or the ruling orders the government to do something, the government refuses to comply, and the district court then enters a dismissal that can be appealed, see, e.g., Armstrong, 48 F.3d at 1510.

This suggests several responses to the government’s argument that “Every [or “Almost every”] published opinion to consider the issue has held that . . . .” First, remind the judge of what a “no abuse of discretion” opinion does and doesn’t mean, i.e., that it doesn’t mean the approach taken by the district court in that case was the best approach and that it doesn’t mean that the court of appeals judges would have ruled the same way if they were making the original decision. Second, make the point I make above, that the reported court of appeals opinions disproportionately favor the government because abuse of discretion means the district court would have been upheld had it determined the issue one way or the other and the district court rulings against the government get appealed and thereby presented to a court of appeals only rarely. Third, try to find and present some of the district court rulings against the government, either in written district court opinions or orders if the ruling got written up, or in examples from your own experience or your colleagues’ experience if you can’t find any written opinions or orders. With these tools, and a fair-minded, independent-thinking judge, you can prevail over the government’s “Every [or ‘Almost every’] published opinion” argument.

Have fun.