Louis Francis v. FBI, et al, No. 09-16600 (9th Cir. 2010)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT NOV 23 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS LOUIS FRANCIS, No. 09-16600 Plaintiff - Appellant, D.C. No. 1:06-CV-00968-AWIDLB v. FEDERAL BUREAU OF INVESTIGATION, MEMORANDUM * Defendant - Appellee. Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, Chief Judge, Presiding Submitted November 16, 2010 ** Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges. Louis Francis appeals pro se from the district court s order dismissing his action seeking to compel an inquiry by the Federal Bureau of Investigation ( FBI ) into the Los Angeles Police Department s refusal to conduct a homicide * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). investigation after Francis s brother disappeared. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009), and we affirm. The district court properly dismissed the Administrative Procedure Act claim for lack of subject matter jurisdiction, because Francis failed to rebut the presumption that the FBI s decision not to conduct an investigation is immune from judicial review. See Heckler v. Chaney, 470 U.S. 821, 831-33 (1985). We do not consider Francis s contention concerning the consent decree, because it was raised for the first time on appeal and consideration is not necessary to prevent manifest injustice. Travelers Prop. Cas. Co. of Am. v. ConocoPhillips Co., 546 F.3d 1142, 1146 (9th Cir. 2008). AFFIRMED. 2 09-16600

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