Amos A. Hopkins, Plaintiff-appellant, v. Donnie R. Sparks, As the District Manager, Canon Citydistrict Office, U.S. Bureau of Land Management,canon City, Colorado, Defendant-appellee, 956 F.2d 278 (10th Cir. 1992)

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff Amos A. Hopkins, a Kiowa Indian, petitioned the Bureau of Land Management (BLM) of the U.S. Department of the Interior to classify and open public lands and simultaneously applied for an Indian land allotment. After the BLM denied plaintiff's petition and application because they included private as well as public lands, plaintiff amended and refiled the petition and application. When the BLM did not process his amended petition and application promptly plaintiff filed a pro se action in federal court seeking to compel the BLM to act. During the pendency of the case the BLM issued a decision on June 14, 1991, denying plaintiff relief for reasons stated therein. That decision informed plaintiff that he had forty-five days from its receipt to file a protest with the Canon City district office, and that "if no protests are filed within the time allowed, this Decision will become final." I R. tab 8 ex. A-1 at 5. In its order issued July 30, 1991, the district court construed the plaintiff's pro se complaint as seeking review of the BLM's decision to deny plaintiff an allotment, but dismissed the action for failure to exhaust administrative remedies.

Plaintiff thereafter filed this timely appeal from the district court decision; but he never filed for administrative review of the June 14, 1991 decision of the BLM.

We agree with the district court that it should not entertain a challenge to the BLM's decision until administrative remedies have been exhausted. See Kale v. United States, 489 F.2d 449, 454 (9th Cir. 1973), cert. denied, 417 U.S. 915 (1974); see also Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938). It is too late now for plaintiff to exhaust the administrative remedies; plaintiff bypassed his opportunity for administrative review under the time limits set out in the decision advising him that the BLM had rejected his claim. Furthermore, a failure to file an administrative appeal in time does not constitute "futility" within the contemplation of the law as necessary to permit us to review plaintiff's claim on its merits. See Kale, 489 F.2d at 454; see also Coalition for Preservation of Hispanic Broadcasting v. FCC, 931 F.2d 73, 77 (D.C. Cir.), cert. denied, --- U.S. ----, 112 S. Ct. 298 (1991).

Because plaintiff's complaint was filed before the BLM's decision on the amended application, the complaint did not contest any of the reasons given by the BLM for its denial of plaintiff's application. No arguments directed to the BLM decision are in the district court record that was certified to us on appeal. Therefore, it might have been more appropriate for the district court simply to have denied the plaintiff's petition to compel the BLM to act as moot because the Board had acted, albeit in a manner contrary to plaintiff's desires.¹  Cf. Gray v. Office of Personnel Management, 771 F.2d 1504, 1514 (D.C. Cir. 1985), cert. denied, 475 U.S. 1089 (1986) (mandamus claim moot because agency had performed statutory duty).

In either event, the court's dismissal was proper and it is AFFIRMED. The mandate shall issue forthwith.