Collette
Collette v. United States Department of the Interior
Opinion
Lead Opinion
MEMORANDUM **
John Collette appeals pro se the district court’s summary judgment in his action, which sought judicial review of the Department of the Interior Board of Land Appeals’ (“IBLA”) decision affirming the Bureau of Land Management order declaring his unpatented mining claim forfeited. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review de novo, Doe v. Dept’t of Educ., 111 F.3d 678 , 681 (9th Cir.1997), and we vacate and remand.
Collette contends that he was not required to exhaust the issue of whether the IBLA sent notice to his brother of the stay in the prior appeal to the IBLA. Because Collette failed to raise the issue before the IBLA, he is barred from raising it in this action. See Red Top Mercury Mines, Inc. v. United States, 887 F.2d 198, 206 (9th Cir.1989).
Collette’s contention that the IBLA should be estopped from requiring exhaustion is unpersuasive because Collette did not show, and the record does not reveal, that the IBLA engaged in affirmative misconduct. See Bolt v. United States, 944 F.2d 603, 609 (9th Cir.1991) (requiring affirmative misconduct to estop a government agency from enforcing legal requirements).