The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD A. CANATELLA,
Plaintiff,
and
RANDY E. BENDEL,
Intervenor-Appellant,
v.
STATE OF CALIFORNIA; BOARD OF
GOVERNORS OF THE STATE BAR OF
CALIFORNIA; PRESIDENT OF THE
STATE BAR ASSOCIATION; THE No. 03-15306
JUDGES OF THE STATE BAR COURT;
and THE OFFICE OF THE CHIEF D.C. No.
CV-00-01105-MJJ
COUNSEL OF THE STATE BAR OF
CALIFORNIA, OPINION
Defendants,
and
RONALD W. STOVITZ; JUDITH A.
EPSTEIN; MADGE S. WATAI;
RICHARD A. HONN; PATRICE E.
MCELROY; ALBAN I. NILES; JOANN
M. REMKE; ROBERT M. TALCOTT;
JAMES E. HERMAN; and MICHAEL
NISPEROS, JR.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding
4123
4124 BENDEL v. STATE OF CALIFORNIA
Submitted October 6, 2004*
San Francisco, California
Filed April 11, 2005
Before: Cynthia Holcomb Hall, Melvin Brunetti, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Brunetti
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
BENDEL v. STATE OF CALIFORNIA 4127
COUNSEL
Randy E. Bendel, Esq., Woodland Hills, California,
intervenor-appellant, Pro Se.
Jay M. Goldman, Office of the General Counsel, The State
Bar of California, San Francisco, California, for the
defendants-appellees.
OPINION
BRUNETTI, Circuit Judge:
California attorney Randy E. Bendel appeals the denial of
his motion to intervene as a plaintiff in a federal action bring-
ing constitutional challenges to California’s state bar statutes
and disciplinary proceedings. The district court determined
that it was required to abstain from exercising jurisdiction as
to Bendel under Younger v. Harris, 401 U.S. 37 (1971), and
denied Bendel’s motion to intervene on that basis alone, with-
out reaching the merits of either intervention as of right or
4128 BENDEL v. STATE OF CALIFORNIA
permissive intervention under Federal Rule of Civil Procedure
24(a)(2) and (b)(2). We affirm.
FACTS AND PROCEEDINGS BELOW
In March 2000, California attorney Richard A. Canatella
brought the underlying federal action. See generally Canatella
v. California, 304 F.3d 843, 848 (9th Cir. 2002) (“Canatella”)
(factual and procedural history). Having been subject to disci-
plinary action before the State Bar of California, Canatella
seeks an injunction against further disciplinary action and
challenges several state bar statutes and one professional rule
on the grounds that they are unconstitutional on their face and
as applied. Id. In our Canatella opinion, we held that Cana-
tella has standing, that his claims are ripe, and that Younger
abstention is inappropriate as to Canatella because the state
disciplinary proceedings against him are no longer ongoing.
Id. at 855.
In April 2002, the State Bar of California issued a notice of
disciplinary charges against Bendel. In November 2002, after
learning of Canatella’s action through our Canatella opinion
and wishing to join his cause, Bendel filed a motion for inter-
vention as of right or, alternatively, for permissive interven-
tion. Fed. R. Civ. P. 24(a) & (b). Like Canatella’s complaint,
Bendel’s proposed complaint-in-intervention seeks a declara-
tion that the state bar statutes are unconstitutional facially, as
applied and as administered, and seeks an injunction barring
disciplinary proceedings against him.
The district court denied Bendel’s motion to intervene.
Although both parties thoroughly briefed the merits, the dis-
trict court made no findings regarding the elements of either
intervention as of right or permissive intervention. Instead, the
district court solely addressed and found Bendel’s proposed
BENDEL v. STATE OF CALIFORNIA 4129
claims barred by the doctrine of Younger abstention. Bendel
timely appealed.1
DISCUSSION
I. Younger Abstention
We review de novo whether abstaining from exercising fed-
eral jurisdiction is required under Younger. Green v. City of
Tucson, 255 F.3d 1086, 1093 (9th Cir. 2001) (en banc), over-
ruled, in part, on other grounds by Gilbertson v. Albright, 381
F.3d 965, 976-78 (9th Cir. 2004) (en banc).
A. The Middlesex Factors
[1] “Absent ‘extraordinary circumstances’, abstention in
favor of state judicial proceedings is required if the state pro-
ceedings (1) are ongoing, (2) implicate important state inter-
ests, and (3) provide the plaintiff an adequate opportunity to
litigate federal claims.” Hirsh v. Justices of Supreme Court of
Cal., 67 F.3d 708, 712 (9th Cir. 1995) (per curiam) (citing
Middlesex County Ethics Comm. v. Garden State Bar Ass’n,
457 U.S. 423, 432, 437 (1982)).
1. Ongoing State Judicial Proceedings
[2] Bendel raises no dispute as to the first Middlesex prong.
1
On February 16, 2005, during the pendency of this appeal, the district
court dismissed Canatella’s underlying action without leave to amend.
Nevertheless, we do not believe that Bendel’s appeal has been rendered
moot. First, Canatella has kept the underlying action alive by filing a
notice of appeal with the district court. Second, “the intervention contro-
versy [is] still alive because, if it were concluded on appeal that the district
court had erred in denying the intervention motion, and that the applicant
was indeed entitled to intervene in the litigation, then the applicant would
have standing to appeal the district court’s judgment.” League of United
Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1301 n.1 (9th Cir. 1997)
(“LULAC”).
4130 BENDEL v. STATE OF CALIFORNIA
California’s attorney discipline proceedings are “judicial in
character” for purposes of Younger abstention. Hirsh, 67 F.3d
at 712. Such proceedings “commenced” when the State Bar
of California issued the notice of disciplinary charges against
Bendel. See Canatella, 304 F.3d at 851. They were still ongo-
ing at the time Bendel filed his motion to intervene and when
the district court denied the motion.
2. Important State Interests
[3] We have clearly stated that “California’s attorney disci-
plinary proceedings implicate important state interests.”
Hirsh, 67 F.3d at 712. We decline to depart from this general
pronouncement based on Bendel’s unsupported contention
that states have no interest in regulating attorney misconduct
occurring in federal court. “States traditionally have exercised
extensive control over the professional conduct of attorneys,”
as each state has “an extremely important interest in maintain-
ing and assuring the professional conduct of the attorneys it
licenses.” Middlesex, 457 U.S. at 434. This extensive control
has traditionally included the power to discipline attorneys for
misconduct regardless of the jurisdiction in which it occurs.
See LEGAL ETHICS, LAWYER’S DESKBOOK ON PROF’L RESPONSI-
BILITY § 56-1.
The States’ long-arm regulatory authority over the attor-
neys they license derives in part from the nature of disciplin-
ary proceedings. They are “neither civil nor criminal, but an
investigation in to the conduct of the lawyer-respondent.”
Standing Comm. on Discipline v. Ross, 735 F.2d 1168, 1170
(9th Cir. 1984). “[T]he question before the court is whether an
attorney may continue to practice a profession imbued with
the public interest and trust. The court must consider both the
fitness of one of its officers and the need to protect the public
from an unqualified or unscrupulous practitioner.” Id. (cita-
tions omitted). Because the relevant state interest is an attor-
ney’s integrity and continuing fitness to practice, rather than
the integrity of the particular courtroom in which misconduct
BENDEL v. STATE OF CALIFORNIA 4131
occurs, the venue is irrelevant to the reach of the state disci-
plinary authority.
[4] Accordingly, we have specifically held that the
Supreme Court of California has jurisdiction to discipline
members of the State Bar of California who practice even
exclusively in federal court or before federal agencies. Gadda
v. Ashcroft, 377 F.3d 934, 944-46 (9th Cir. 2004) (“Gadda”);
accord Geibel v. State Bar of Cal., 79 P.2d 1073, 1074 (Cal.
1938) (per curiam); In re Gadda, No. 97-O-15010, 2002 WL
31012596, at *1-4, 4 Cal. State Bar Ct. Rptr. 416 (Cal. Bar Ct.
2002), cited with approval in Gadda, 377 F.3d at 944 n.6
(construing the California Supreme Court’s summary affir-
mance of In re Gadda on de novo review as an implicit adop-
tion of its holding). In rejecting the argument that California’s
regulatory authority is preempted by federal law, we noted
that the applicable federal regulations condition federal bar
membership on an attorney’s good standing as a member of
a state bar and thereby invite or at least accommodate over-
lapping state regulation. Gadda, 377 F.3d at 944-46.
Similar federal regulations are applicable here and have the
same effect. Each of the four federal district courts in Califor-
nia specifically requires its bar members to be active members
in good standing and comply with the standards of profes-
sional conduct of the State Bar of California; three of the four
expressly adopt California’s standards as their own; and all
four refer to the American Bar Association’s Model Rules of
Professional Conduct as providing additional guidance. C.D.
Cal. L.R. 83-2.2.1 & 83-3.1.2; E.D. Cal. L.R. 83-180(a) & (e);
N.D. Cal. Civ. L.R. 11-1(b) & 11-4(a)(1); S.D. Cal. Civ. L.R.
83.3(c)(1)(a) & 83.4(b). Moreover, the California rules expan-
sively provide that they “govern the activities of members in
and outside this state.” CALIFORNIA RULES OF PROF’L CONDUCT
R. 1-100(D)(1). The ABA rules similarly provide: “A lawyer
admitted to practice in this jurisdiction is subject to the disci-
plinary authority of this jurisdiction, regardless of where the
lawyer’s conduct occurs.” MODEL RULES OF PROF’L CONDUCT
4132 BENDEL v. STATE OF CALIFORNIA
R. 8.5 (2004). None of these standards contains any jurisdic-
tional limitation of the kind advocated by Bendel, and for
good reason. Barring the States from disciplining their bar
members based on misconduct occurring in federal court
would lead to the unacceptable consequence that an attorney
could engage in misconduct at will in one federal district
without jeopardizing the state-issued license that facilitates
the attorney’s ability to practice in other federal and state ven-
ues.
3. Opportunity to Litigate Federal Claims
[5] California’s attorney disciplinary proceedings provide
Bendel with an adequate opportunity to litigate his federal
constitutional claims. Hirsh, 67 F.3d at 711-12, 713. It is
inconsequential that California’s State Bar Court has no juris-
diction to declare a statute unenforceable or unconstitutional
or refuse to enforce it on such a basis absent clear precedent.
Id. at 713. Federal constitutional rights may be asserted in
disciplinary proceedings, Cal. Bus. & Prof. Code § 6085(e),
and on judicial review of such proceedings. Hirsh, 67 F.3d at
713. Although judicial review is wholly discretionary, its
mere availability provides the requisite opportunity to litigate.
Id.
Bendel contends that abstention in this case would imper-
missibly allow a state tribunal to determine federal statutory
claims. Facing a similar issue with regard to a claim for dam-
ages under 42 U.S.C. § 1983, this court recently held:
When an injunction is sought and Younger applies,
it makes sense to abstain, that is, to refrain from
exercising jurisdiction, permanently by dismissing
the federal action because the federal court is only
being asked to stop the state proceeding. . . . But
when damages are sought and Younger principles
apply, it makes sense for the federal court to refrain
from exercising jurisdiction temporarily by staying
BENDEL v. STATE OF CALIFORNIA 4133
its hand until such time as the state proceeding is no
longer pending.
Gilbertson, 381 F.3d at 981. Bendel contends that, under Gil-
bertson, he should be permitted to intervene and federal pro-
ceedings should be stayed until the state disciplinary
proceedings against him conclude. We disagree.
[6] Bendel is not entitled to a stay under Gilbertson
because, contrary to his assertions, he has made no claim for
damages under § 1983 or any other federal statute. In his pro-
posed complaint-in-intervention, Bendel cites § 1983 only in
establishing subject-matter jurisdiction, and he requests only
declaratory and injunctive relief, attorney fees and costs. In
Gilbertson, we specifically distinguished damages from
declaratory and injunctive relief for purposes of their disposi-
tion under Younger. We observed that “damages actions are
different from actions that seek only declaratory relief in two
important respects: The relief is not discretionary, and it may
not be available in the state proceeding.” Id. at 980. Because
Bendel seeks declaratory and injunctive relief but not dam-
ages, the traditional rules of Younger abstention apply. The
federal courts must abstain permanently because Bendel is
asking only that the federal courts stop the state proceedings.
See id. at 981. Although permanently abstaining ordinarily
requires dismissing an action, in this case it requires denying
Bendel’s motion to intervene to prevent the filing of his pro-
posed complaint-in-intervention.
B. Extraordinary Circumstances Exception
[7] None of the “extraordinary circumstances” exceptions
to Younger abstention applies here. With respect to bias, Ben-
del fails to offer any “actual evidence” to overcome the “pre-
sumption of honesty and integrity in those serving as
adjudicators.” Hirsh, 67 F.3d at 713-14 (citations and internal
quotation marks omitted); see also Baffert v. Cal. Horse Rac-
ing Bd., 332 F.3d 613, 621 (9th Cir. 2003). We have also spe-
4134 BENDEL v. STATE OF CALIFORNIA
cifically rejected arguments like Bendel’s that the California
Supreme Court has an inherent conflict of interest in consider-
ing constitutional challenges to state bar disciplinary proceed-
ings. Hirsh, 67 F.3d at 713. Bendel’s claim that the state bar
statutes are patently unconstitutional also does not, by itself,
support an extraordinary circumstances exception to Younger
abstention. Id. at 714; see also Baffert, 332 F.3d at 621-22.
[8] Because each of the three Middlesex prongs is satisfied
and the extraordinary circumstances exception does not apply,
the district court was required to abstain from exercising juris-
diction. See Green, 255 F.3d at 1093.
II. Intervention as of Right
Bendel challenges the district court’s denial of his motion
for intervention as of right under Rule 24(a)(2) of the Federal
Rules of Civil Procedure notwithstanding the applicability of
Younger abstention. We review de novo a district court’s
denial of a motion to intervene as of right. LULAC, 131 F.3d
at 1302.
An applicant seeking intervention as of right must
show that: (1) it has a “significant protectable inter-
est” relating to the property or transaction that is the
subject of the action; (2) the disposition of the action
may, as a practical matter, impair or impede the
applicant’s ability to protect its interest; (3) the
application is timely; and (4) the existing parties may
not adequately represent the applicant’s interest.
Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998).
Because the district court did not apply this four-factor test
but addressed only Younger abstention, Bendel does not argue
the merits of intervention on appeal. Instead, Bendel contends
that the district court erred as a matter of law in denying inter-
vention solely on the basis of Younger abstention. Bendel
BENDEL v. STATE OF CALIFORNIA 4135
alternatively contends that our decision in Canatella v. Cali-
fornia, 304 F.3d 843 (9th Cir. 2002), creates a right of inter-
vention in Canatella’s action. We disagree on both counts.
A. Younger Abstention v. Intervention as of Right
[9] Although the district court did not explicitly acknowl-
edge the issue, its disposition necessarily implies the holding
that Younger abstention trumps intervention as of right. We
are not aware of any authority addressing this issue and there-
fore consider it as an issue of first impression.
[10] We recognize that we generally regard both Younger
abstention and intervention as of right as mandatory doctrines.
District courts applying Younger “must exercise jurisdiction
except when specific legal standards are met, and may not
exercise jurisdiction when those standards are met; there is no
discretion vested in the district courts to do otherwise.”
Green, 255 F.3d at 1093. Similarly, Rule 24 specifically pro-
vides that “anyone shall be permitted to intervene in an
action” when the required elements are satisfied. Fed. R. Civ.
P. 24(a) (emphasis added). Consequently, both issues are sub-
ject to de novo review. Green, 255 F.3d at 1093 (Younger
abstention); LULAC, 131 F.3d at 1302 (intervention as of
right).
[11] Beneath the surface, however, intervention as of right
is relatively more discretionary than Younger abstention. That
is, while district courts have no discretion as to the ultimate
application of either doctrine once they determine that the
respective elements are satisfied, they do have more discre-
tion in analyzing the elements of intervention as of right than
in analyzing the Middlesex factors for purposes of Younger
abstention. The threshold factor for intervention as of right —
timeliness — is discretionary as a doctrinal matter. A decision
on timeliness is generally reviewed for an abuse of discretion,
it involves equitable considerations, such as prejudice,
LULAC, 131 F.3d at 1302, and we have described the timeli-
4136 BENDEL v. STATE OF CALIFORNIA
ness factor as “flexible,” Blake v. Pallan, 554 F.2d 947, 952
(9th Cir. 1977). Moreover, application of the other elements
of intervention as of right (e.g., interests of the proposed inter-
venor in the underlying action) requires a practical and equita-
ble analysis of the underlying facts. See Arakaki v. Cayetano,
324 F.3d 1078, 1084 (9th Cir.), cert. denied, 540 U.S. 1017
(2003); United States v. City of Los Angeles, 288 F.3d 391,
397-98 (9th Cir. 2002); Blake, 554 F.2d at 952. By contrast,
the elements of Younger abstention — ongoing state judicial
proceeding, important state interest, and opportunity to raise
claims — involve relatively more objective factual elements
and more clearly delineated principles of law, as this very
case illustrates.
[12] More fundamentally, however, Younger abstention is
essentially a jurisdictional doctrine, whereas intervention is
essentially a procedural matter. Although Younger neither
provides a basis for nor destroys federal jurisdiction, Younger
does determine when the federal courts must “refrain from
exercising jurisdiction.” Gilbertson, 381 F.3d at 981. Inter-
vention as of right is merely a procedural means for entering
an existing federal action. Rule 24 “shall not be construed to
extend or limit the jurisdiction of the United States district
courts.” Fed. R. Civ. P. 82. The procedural mechanism of
Rule 24 may facilitate the invocation of ancillary jurisdiction;
however, Rule 24 does not itself provide the jurisdictional
hook. See 7C CHARLES ALAN WRIGHT, ARTHUR R. MILLER &
MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1917
(2d ed. 2004). “Rule 24 . . . states under what circumstances
intervention is proper as a matter of procedure but interven-
tion still must be denied, though all the requirements of Rule
24 are met, if the federal court cannot take jurisdiction with
regard to the intervenor.” Id. Because Rule 24 cannot extend
federal jurisdiction and Younger abstention imposes manda-
tory limits on the federal courts’ ability to exercise jurisdic-
tion, we hold that intervention as of right cannot be used to
circumvent Younger abstention.
BENDEL v. STATE OF CALIFORNIA 4137
[13] The remaining procedural question concerns the
proper order of operations: whether the district court should
have applied Younger only after determining whether to grant
or deny intervention. Because we find that Bendel and Cana-
tella’s respective interests are not so intertwined that they
should be subject to the same considerations under Younger,
we hold that the district court was not required to consider the
merits of intervention before disposing of Bendel’s action
under Younger.
The reverse procedure was followed in Deutsche Financial
Services Corp. v. Schwartz Homes, Inc., 187 F.R.D. 542, 547-
48 (N.D. Ohio 1999). The court granted a motion for inter-
vention as of right before considering and granting the inter-
venors’ motion to dismiss the federal action on abstention
grounds under Colorado River Water Conservation District v.
United States, 424 U.S. 800 (1976). Deutsche Financial is
distinguishable from the instant case. In Deutsche Financial,
the grounds for abstention as to the existing federal action
were present before the court granted intervention. All of the
existing parties to the federal action and the proposed interve-
nors were already parties or were already seeking to intervene
in a parallel action in state court, and the state court had
already assumed jurisdiction over the parties and the property.
187 F.R.D. at 548. The intervenors in the federal action did
not create the grounds for abstention by intervening; the inter-
venors were merely the parties who raised the issue. Id. at
547. By contrast, Canatella’s action is not independently sub-
ject to abstention, Canatella, 304 F.3d at 849-52 (considering
both Younger and the Rooker-Feldman doctrine), so there is
no need to allow Bendel to intervene to raise or rebut an
abstention issue, and the grounds for Younger abstention exist
as to Bendel regardless of whether or not he is permitted to
intervene.
Moreover, Bendel and Canatella must be treated indepen-
dently for purposes of Younger abstention. “While there
plainly may be some circumstances in which legally distinct
4138 BENDEL v. STATE OF CALIFORNIA
parties are so closely related that they should all be subject to
the Younger considerations which govern any one of them,
this is not such a case.” Doran v. Salem Inn, Inc., 422 U.S.
922, 928 (1975).
In Green, we compared the Court’s holdings in Doran and
Hicks v. Miranda, 422 U.S. 332 (1975), regarding the circum-
stances in which individuals who are parties to federal litiga-
tion but not state litigation should be subject to the same
Younger considerations as legally distinct individuals who are
parties to state litigation:
In Hicks, after two of their employees were charged
under the state obscenity statute for showing a film
and four copies of the film were seized, owners of an
adult movie theater sued in federal court for return
of their film copies and an injunction against the
enforcement of the statute. The Court explained that,
under the particular circumstances of that case,
Younger barred the federal suit: The owners’ “inter-
ests and those of their employees were intertwined,”
given the fact that the seized films belonged to the
owners but were central to the pending prosecutions.
Consequently, “the federal action sought to interfere
with the pending state prosecution,” and the district
court was constrained to abstain for that reason.
Green, 255 F.3d at 1099-1100 (quoting Hicks, 422 U.S. at
345, 348-49).
In Doran, three bar owners sought an injunction in
federal court against the operation of a local ordi-
nance prohibiting topless entertainment in bars. Two
had complied with the ordinance, but the third owner
had not and was prosecuted in state court. Despite
the similarity of the plaintiffs’ interests, the Court
held that Younger did not bar the two plaintiffs who
BENDEL v. STATE OF CALIFORNIA 4139
did not face prosecution from pursuing their cause of
action in federal court[.]
Id. at 1100 (citing Doran, 422 U.S. at 924-25, 928-29).
Although the bar owners in Doran were “represented by com-
mon counsel, and [had] similar business activities and prob-
lems, they [were] apparently unrelated in terms of ownership,
control, and management.” Doran, 422 U.S. at 928-29.
[14] We find Bendel and Canatella’s relationship and con-
gruence of interests to be more like those of the bar owners
in Doran than the theater owners and their employees in
Hicks. Both Bendel and Canatella are California attorneys,
both bring challenges to some of the same state bar statutes
and both seek to enjoin the State Bar of California from insti-
tuting further disciplinary proceedings against them. But Ben-
del is interested in Canatella’s action, and vice versa, only to
the extent that it may set a legal precedent and thereby collat-
erally affect the viability of his own federal action and his
constitutional objections to his own disciplinary proceedings.
Cf. Blake, 554 F.3d at 953 (holding that state banking com-
missioner did not necessarily have a sufficient interest in the
interpretation of state securities laws for purposes of interven-
tion as of right). Bendel and Canatella operate independent
legal practices, their disciplinary proceedings are not interre-
lated, and neither has a direct interest in the State Bar of Cali-
fornia’s ability to initiate disciplinary proceedings against the
other. “We thus think that each of the [plaintiffs] should be
placed in the position required by our cases as if that [plain-
tiff] stood alone.” Doran, 422 U.S. at 929.
[15] Accordingly, we see no need to require the district
court to consider the merits of Bendel’s right to intervene in
Canatella’s action before abstaining under Younger. Even if
Bendel were granted intervention first, we would apply the
considerations of Younger as to Bendel separately from Cana-
tella. Either way, the federal courts must abstain from exercis-
ing jurisdiction as to Bendel’s claims and must exercise
4140 BENDEL v. STATE OF CALIFORNIA
jurisdiction as to Canatella’s claims. We therefore hold that
the district court was not required to consider the merits of
intervention as of right and properly denied intervention
solely on the basis of Younger abstention.
B. Right to Intervene Pursuant to Canatella
Bendel argues that our prior Canatella decision, which we
are bound to follow, creates a right of intervention for Bendel
and all other attorneys subject or potentially subject to disci-
plinary proceedings before California’s State Bar Court. He
relies on the following passage:
It is enough that Canatella shows that he and others
in his position face a credible threat of discipline
under the challenged statutes, and may consequently
forego their expressive rights under the First Amend-
ment. Nor have we reason to doubt that other Cali-
fornia attorneys find themselves in Canatella’s
dilemma. The alleged source of the harms that Cana-
tella and others like him may face is the arguably
vague and overbroad language of the challenged pro-
visions under which California lawyers perform their
jobs and are subject to discipline.
Canatella, 304 F.3d at 854. Essentially, Bendel reasons that
pursuant to our holding that the federal courts must exercise
jurisdiction over Canatella’s constitutional challenges to Cali-
fornia disciplinary proceedings, the federal courts must also
exercise jurisdiction over Bendel’s similar challenges. We
disagree.
First, Canatella cannot have created a right of intervention
because it never considered that issue. We considered only
standing, ripeness, and abstention — i.e., whether the federal
courts have subject-matter jurisdiction, and whether they must
exercise or decline to exercise that jurisdiction. Id. at 855. The
quoted passage that Bendel relies on appears in a section dis-
BENDEL v. STATE OF CALIFORNIA 4141
cussing only standing. Id. at 852-54. It stands only for the
proposition that all attorneys facing a credible threat of disci-
pline at the expense of their constitutional rights have stand-
ing to bring challenges in federal court. We were not
considering either Younger abstention or any third-party right
of intervention in that section, nor did we ever consider the
intersection of those two issues anywhere in our opinion. Our
Canatella decision therefore has no binding effect on our res-
olution of those issues in this case.
Second, Bendel misinterprets Canatella by failing to appre-
ciate the nature of Younger abstention. Application of Youn-
ger does not lead to the determination that the federal courts
have no basis for jurisdiction in the first instance. Rather,
Younger abstention is a doctrine under which the federal
courts have bound themselves pursuant to principles of com-
ity to voluntarily decline to exercise jurisdiction that they
have and would otherwise exercise. See Middlesex, 457 U.S.
at 431; Gilbertson, 381 F.3d at 970-71, 975. In Canatella, we
determined that the district court had jurisdiction because
Canatella had standing and his claims were ripe and that the
district court must exercise that jurisdiction because Younger
did not apply. Canatella, 304 F.3d at 855. The difference here
is that Younger applies. Thus, Canatella may be dispositive in
determining that Bendel’s claims are ripe, that he has stand-
ing, and that therefore the district court has jurisdiction; how-
ever, Younger still requires abstention from exercising that
jurisdiction so long as there are ongoing state judicial pro-
ceedings with which Bendel’s federal action would interfere.
Third, as we have already determined, Bendel and Cana-
tella must be treated independently for purposes of Younger
abstention because they are legally distinct parties without a
sufficiently close relationship or sufficiently intertwined inter-
ests. See Doran, 422 U.S. at 928-29; Green, 255 F.3d at 1099-
1100. The fact that Younger does not apply to Canatella’s
action has no bearing on the applicability of Younger to Ben-
del’s action.
4142 BENDEL v. STATE OF CALIFORNIA
[16] Moreover, even if Bendel and Canatella’s interests
were so intertwined that they should be treated similarly for
purposes of Younger abstention, we would require abstention
as to both parties rather than permit the exercise of jurisdic-
tion as to both. We have already held today that intervention
cannot be used to circumvent Younger abstention. We have
also previously recognized that “Younger may oust a district
court of jurisdiction over a case where the plaintiff is not a
party to an ongoing state proceeding [when the plaintiff’s]
interest is so intertwined with those of the state court party
that direct interference with the state court proceeding is inev-
itable.” Green, 255 F.3d at 1100. And we are unaware of any
case in which a party independently subject to Younger
abstention has avoided abstention based on having inter-
twined interests with another party who was not subject to
Younger abstention. Indeed, allowing Bendel to intervene in
order to levy constitutional challenges to and interfere with
ongoing state proceedings based on a mere interest in the pre-
cedent that might be set in Canatella’s action would create an
unprecedented exception to the exceedingly important princi-
ples of comity underlying Younger. See generally Gilbertson,
381 F.3d at 970-71, 975.
Thus, aligning himself with Canatella cannot help Bendel
avoid Younger; if anything, it raises the possibility—albeit
one that we need not explore fully—that Younger could attach
to Canatella through Bendel. Cf. Doran, 422 U.S. at 924-25,
928-29 (requiring abstention as to one plaintiff who faced
prosecution in state court but not as to two others who did not,
even though all three filed suit in federal court to enjoin
enforcement of the same local ordinance); Hicks, 422 U.S. at
345, 348-49 (requiring abstention as to the owners of an adult
theater who sought an injunction in federal court because their
interests were “intertwined” with those of their employees
who faced prosecution in state court).
III. Permissive Intervention
“[C]ourts in this circuit have never squarely held that the
denial of a motion to intervene permissively is a ‘final deci-
BENDEL v. STATE OF CALIFORNIA 4143
sion’ within the meaning of 28 U.S.C. § 1291.” LULAC, 131
F.3d at 1307. Instead, we allow appeal of the denial of a
motion for permissive intervention only if the trial court
abused its discretion. Benny v. England (In re Benny), 791
F.2d 712, 720 (9th Cir. 1986). Thus, “[o]ur jurisdiction to
review the denial of [Bendel’s] motion for permissive inter-
vention exists as a practical matter because a consideration of
the jurisdictional issue necessarily involves a consideration of
the merits—whether an abuse of discretion occurred.” Id. at
720-21. We find no abuse of discretion here.
We have already held that Younger abstention trumps inter-
vention as of right in these circumstances. A fortiori, Younger
abstention trumps permissive intervention. Younger absten-
tion is mandatory, Green, 255 F.3d at 1093, whereas permis-
sive intervention under Rule 24(b) is discretionary. “Even if
an applicant satisfies [the] threshold requirements, the district
court has discretion to deny permissive intervention.” Don-
nelly, 159 F.3d at 412.
[17] Moreover, Younger abstention prevents Bendel from
qualifying for permissive intervention on the merits. “Permis-
sive intervention to litigate a claim on the merits under Rule
24(b) requires . . . an independent ground for jurisdiction.”
Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 473 (9th
Cir. 1992). Because Younger precludes the exercise of juris-
diction as to Bendel’s claims, Bendel cannot satisfy the first
of the three prerequisites for permissive intervention. The dis-
trict court therefore properly denied Bendel’s motion for per-
missive intervention solely on the basis of Younger
abstention.
[18] Having determined that the district court did not abuse
its discretion, we must dismiss that portion of Bendel’s appeal
relating to permissive intervention for lack of jurisdiction.
LULAC, 131 F.3d at 1308.
4144 BENDEL v. STATE OF CALIFORNIA
CONCLUSION
The district court correctly determined that it is required to
abstain from exercising jurisdiction as to Bendel’s proposed
complaint-in-intervention, in which he requests only declara-
tory and injunctive relief. Bendel is independently subject to
Younger abstention but Canatella is not, and Bendel and
Canatella’s respective interests are not so intertwined that
they should be subject to the same considerations under Youn-
ger. The district court therefore was not required to consider
the merits of intervention before denying Bendel’s motion to
intervene solely on the basis of Younger abstention.
AFFIRMED IN PART AND DISMISSED IN PART.