MEMORANDUM **

The district court properly dismissed plaintiffs 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).

AFFIRMED.