3.21.2006

Ninth Circuit Notes Split re Whether Intervenor-Applicant Must Independently Satisfy Article III Standing to Intervene as of Right

Per Prete v. Bradbury, 438 F.3d 949 (9th Cir. Feb. 22, 2006) in Footnote 8:

There is some question, however, whether an intervenor-applicant must independently establish Article III standing to intervene as of right. For example, in the case at hand, Article III standing is satisfied between plaintiffs and defendant. But a circuit split exists whether an intervenor-applicant must also independently satisfy Article III standing to intervene as of right. Compare Planned Parenthood of Mid-Missouri & Eastern Kansas, Inc. v. Ehlmann, 137 F.3d 573, 576-77 (8th Cir.1998) (requiring independent intervenor standing) and Building & Const. Trades Dep't v. Reich, 40 F.3d 1275, 1282 (D.C.Cir.1994) (same), with Associated Builders & Contractors v. Perry, 16 F.3d 688, 690 (6th Cir.1994) (no independent intervenor standing required), and U.S. Postal Serv. v. Brennan, 579 F.2d 188, 190 (2d Cir.1978) (same). The U.S. Supreme Court has not yet settled the issue. See 7C Charles Alan Wright et al., Federal Practice and Procedure ยง 1908 (2d ed.2005). This court also has not definitively ruled on the issue. Although some sources (such as Federal Practice and Procedure) cite Yniguez v. Arizona, 939 F.2d 727 (9th Cir.1991), for the proposition that this court does not require independent Article III standing for intervenors, id. at 731, that opinion was vacated by the U.S. Supreme Court. See AOE, 520 U.S. at 80, 117 S.Ct. 1055; League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1305 n. 5 (9th Cir.1997) (noting Yniguez was vacated by the U.S. Supreme Court and "is thus wholly without precedential authority").

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