FILED
NOT FOR PUBLICATION JUN 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT RAYMOND, No. 13-35090
Plaintiff - Appellant, D.C. No. 3:12-cv-00185-JWS
v.
MEMORANDUM*
GAIL FENUMIAI,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted June 2, 2014
Anchorage, Alaska
Before: WALLACE, WARDLAW, and CHRISTEN, Circuit Judges.
Robert Raymond appeals the district court’s Rule 12(b)(1) dismissal for
failure to satisfy Article III standing. We have jurisdiction over this appeal, see
Cooper v. Ramos, 704 F.3d 772, 776-77 (9th Cir. 2012) (holding that we have
jurisdiction to review a district court’s dismissal of an action even if the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court also noted that the complaint was dismissed without prejudice), and we
affirm.
Raymond failed to allege sufficient injury in fact in his complaint, which
challenged the residency requirement for circulators of initiatives, referenda, and
recall campaigns. See Alaska Stat. §§ 15.45.105, 130, 335, 360, 575, 600 (2013).
Despite the more relaxed standard for pre-enforcement First Amendment
challenges, a plaintiff must still show “an injury or threat of injury that is credible,
not ‘imaginary or speculative.’” Lopez v. Candaele, 630 F.3d 775, 786 (9th Cir.
2010) (citation omitted); see Susan B. Anthony List v. Driehaus, 573 U.S. ___, slip
op. at 11, 14 (June 16, 2014) (holding that plaintiffs had standing where they
“pleaded specific statements they intend to make in future election cycles,” and
“there is a history of past enforcement”). Raymond, however, failed to “articulate
a concrete plan to violate the law in question by giving details about [his] future
speech such as when, to whom, where, or under what circumstances.” Lopez, 630
F.3d at 787 (citation and quotation marks omitted). Instead, he alleged only that
“[h]e has been active on behalf of Alaska political causes before, and he intends to
circulate petitions in Alaska for initiatives, referenda, and recall campaigns if the
Alaska laws prohibiting him from doing so were not enforced.” Statements of this
abstract nature do not confer Article III standing.
AFFIRMED.
FILED
Raymond v. Fenumiai, No. 13-35090 JUN 24 2014
MOLLY C. DWYER, CLERK
WALLACE, Senior Circuit Judge, dissenting: U.S. COURT OF APPEALS
I have no quarrel with the reasoning of the majority, insofar as it addresses
the merits of this case. Rather, my concern is whether we should reach those
merits at all. In my view, our court lacks jurisdiction over this appeal because the
district court dismissed the complaint, rather than the action, without prejudice.
Because we do not have jurisdiction, we should dismiss the appeal and remand this
case to the district court. Doing so would allow Raymond either to amend his
complaint or indicate to the district court that he prefers to stand on his pleadings,
at which point the district court could enter a judgment dismissing the action in its
entirety.
The majority cites Cooper v. Ramos, in which we held that we had
jurisdiction to review a district court’s order, even though the district court had
dismissed the complaint, and not the action, without prejudice. 704 F.3d 772,
776–77 (9th Cir. 2012). In Cooper, we explained that in the absence of any order
regarding leave to amend the complaint, our “precedent requires an evaluation of
the district court’s intent” in dismissing the complaint. Id. at 776. We went on to
explain that “if it appears that the district court intended the dismissal to dispose of
the action [rather than merely the complaint],” then the district court’s order “may
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be considered final and appealable.” Id. (citation omitted) (emphasis added).
Here, I believe that the district judge’s intent was clear. He took care to
dismiss the complaint without prejudice. Without prejudice to what? In my view,
the dismissal was “without prejudice” to filing a new complaint. He did not
dismiss the action. Instead, he clearly intended to give the plaintiff an opportunity
to amend the complaint. It would not have been impossible to amend the
complaint. As the majority suggests, all that would have been required would have
been for Raymond to “articulate a concrete plan” by “giving details” about his
“future speech.”
Rather than taking this approach, the majority determines that it has
jurisdiction over this appeal. It is true that the clerk entered a “judgment,” but in
my view, this was a mistake by the clerk of the district court. The “judgment”
itself does not indicate that it is dismissing the action as a whole, but merely states
that it is dismissing the complaint. We should interpret the clerk’s mistake as an
inadvertent filing, not a final judgment.
When it comes to jurisdictional matters, there can be no question of the
importance of bright-line rules. Lawyers and courts must know where jurisdiction
lies. Having bright-line rules in this area permits attorneys to know what action
they should take. Such rules also create greater judicial efficiency, as judges do
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not waste time on cases that are not properly before them.
In this case, counsel for Appellant should have understood the nature of the
order and “judgment” he received from the district court. This confusion could
have been avoided if he had simply filed a motion for clarification or a motion to
amend the “judgment” before the district court. It is also true that the clerk of the
district court should have caught this error. Finally, it would have been helpful if
the clerk of our court had noticed this error, as it would then have been possible for
our court to have filed an order at the outset to show cause why the appeal should
not be dismissed for lack of jurisdiction. Nonetheless, given the enormous volume
of appeals that our court has to deal with every year, it is understandable that a case
like this may slip through the cracks. It is less understandable how this could have
slipped past counsel for Appellant, who after all has final responsibility for his own
appeal.
Again, it is my view that we clearly lack jurisdiction. Our court, and the
litigants who appear before us, would be better served if we were to return to
bright-line jurisdictional rules, rather than putting ourselves to the task of making
excuses for those who have failed to follow our procedural mandates.
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