                             NOT FOR PUBLICATION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-AWI-
                                                 DLB
  v.

FEDERAL BUREAU OF                                MEMORANDUM *
INVESTIGATION,

               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.




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