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NOT FOR PUBLICATION JUN 24 2014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

1 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

2 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.

3