Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Bill Lewis, Defendant-appellant, 827 F.2d 770 (6th Cir. 1987)

ORDER

Before RALPH B. GUY, Jr. and BOGGS, Circuit Judges, and SUHRHEINRICH, District Judge.^* 

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not necessary. Rule 34(a), Federal Rules of Appellate Procedure.

The pro se defendant appeals from an order granting summary judgment on the plaintiff's complaint for collection of penalties for violations of the Surface Mining and Reclamation Act. On appeal, the defendant claims that his mine site is only two acres, and thus exempt from the Act, that he was denied a trial at which the office of Surface Mining would have to prove his site was in excess of two acres, and that the appeal procedures in 30 U.S.C. § 1268(c) are unconstitutional.

Upon rview, we conclude that the district court acted properly. The defendant unsuccessfully litigated the issue of the size of his mine site and OSM's jurisdiction at a formal hearing before an administrative law judge. Defendant did not appeal the ALJ's decision. Therefore, the ALJ's finding that the site was in excess of two acres is res judicata, and the defendant is precluded from relitigating this issue at the collection trial. University of Tennessee v. Elliot, 106 S. Ct. 3220, 3226 (1986); United States v. Utah Construction and Mining Co., 384 U.S. 394, 421-422 (1966).

Plaintiff's constitutional claim must also fail. It has been previously determined that the procedures for review provided in 30 U.S.C. § 1268(c) do not violate due process. Black Hawk Mining Co., Inc. v. Andrus, 711 F.2d 753 (6th Cir. 1983).

Accordingly, the district court's judgment is hereby affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.