Opinion
No. 07-15086.
Argued and Submitted April 15, 2008.
Filed April 18, 2008.
Robert R. Hager, Treva J. Hearne, Hager Hearne, Reno, NV, for Plaintiff-Appellant.
John A. Bryson, Sara E. Culley, Sambhav N, Sankar, DOJ-U.S. Department of Justice, Environment Natural Resources Division, Washington, DC, for Defendant-Appellee.
Appeal from the United States District Court for the District of Nevada, Larry R. Hicks, District Judge, Presiding. D.C. No. CV-05-00634-LRH/VPC.
Before: KOZlNSKI, Chief Judge, GOULD, and N.R. SMITH, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The district court properly dismissed plaintiff's action because he does not have a cause of action under the Administrative Procedure Act, as his complaint is based upon a congressional act, not agency action. See 5 U.S.C. §§ 551(1), 701(b)(1). Plaintiff waived his other jurisdiction claims, because either (1) he failed to argue the issues in his opening brief, see Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986), or (2) he raised them for the first time on appeal, see Rothman v. Hosp. Serv. of Southern California, 510 F.2d 956, 960 (9th Cir. 1975).