                           NOT FOR PUBLICATION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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