Robert Raymond v. Gail Fenumiai

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NOT FOR PUBLICATION JUN 24 2014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,…

MEMORANDUM *

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 court also noted that the complaint was dismissed without prejudice), and we affirm.

*570 Raymond failed to allege sufficient injury in fact in his complaint, which challenged the residency requirement for cir-culators 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. -, 134 S.Ct. 2334, 2344, 2347 , 189 L.Ed.2d 246 (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…

dissenting:

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…