NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EUGENE EVAN BAKER, No. 11-55067
Plaintiff - Appellant, D.C. No. 2:10-cv-03996-SVW-
AJW
v.
ERIC H. HOLDER, Jr., in his official MEMORANDUM*
capacity as Attorney General of the United
States,
Defendant - Appellee.,
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted June 6, 2012
Pasadena, California
Before: B. FLETCHER, WARDLAW, and BYBEE, Circuit Judges.
Eugene Baker appeals from the district court’s order dismissing his
complaint under Federal Rules of Civil Procedure 12(b)(1) and (b)(6). We affirm
in part, reverse in part, and remand for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court dismissed the complaint without prejudice under Rule
12(b)(1), concluding that Baker’s complaint fails to state facts sufficient to present
a “case or controversy” under Article III, § 2 of the Constitution. At the outset, we
note a disparity between the complaint as filed on the district court’s electronic
docket and the complaint as it appears in Baker’s excerpts of record. The
complaint found in the electronic docket consists of only the first and last pages of
the complaint in Baker’s excerpts. It is not clear from the record whether the
district court had the opportunity to review the complaint in its entirety. The two
pages of the complaint available on the electronic docket clearly fail to assert facts
sufficient to satisfy the justiciability requirements of Article III, as they do not
allege that Baker has taken any steps to acquire a firearm. It is unclear whether the
full complaint is adequate.
It is apparent, however, that Baker is capable of amending his complaint to
include additional facts that would confer standing. In his opposition to the motion
to dismiss, Baker attached a letter from the California Department of Justice (“CA
DOJ”) informing him that his application to purchase a firearm had been denied
because his prior conviction for a misdemeanor crime of domestic violence barred
him from purchasing or possessing firearms under federal law. Baker also attached
a letter sent by the CA DOJ to a firearms dealer, ordering the dealer not to release
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firearms to Baker. These facts, if alleged in the complaint, are sufficient to confer
standing, as the government conceded at oral argument. Therefore, the district
court properly granted the 12(b)(1) motion without prejudice, and, upon remand,
Baker should be allowed to amend his complaint to allege the additional
jurisdictional facts. See Polich v. Burlington N., Inc., 942 F.2d 1467, 1472 (9th
Cir. 1991) (“Dismissal without leave to amend is improper unless it is clear, upon
de novo review, that the complaint could not be saved by any amendment.”).
The district court erred by dismissing the complaint with prejudice under
Rule 12(b)(6) for failure to state a claim. Baker’s complaint sets forth both a
statutory and a constitutional argument as to the invalidity of applying the
prohibition in 18 U.S.C. § 922(g)(9) to him. Although Jennings v. Mukasey, 511
F.3d 894, 898-99 (9th Cir. 2007), forecloses Baker’s statutory argument that his
state court order purporting to “set aside” his misdemeanor domestic violence
conviction renders § 922(g)(9) inapplicable, Jennings does not foreclose Baker’s
Second Amendment argument. Jennings was decided before the Supreme Court
announced that the Second Amendment “conferred an individual right to keep and
bear arms.” Dist. of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008). The
Jennings decision did not address the question of whether § 922(g)(9) violates the
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Second Amendment, and therefore does not control Baker’s Second Amendment
claim.
We therefore affirm the Rule 12(b)(1) dismissal without prejudice, reverse
the Rule 12(b)(6) dismissal, and remand with leave to amend the complaint.
Each party shall bear its own costs on appeal.
AFFIRMED in part; REVERSED in part; REMANDED.
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