                                                                            F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            AUG 3 2000
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    DANIEL DEAN BETTS,

                Plaintiff-Appellant,

    v.                                                    No. 99-1482
                                                       (D.C. No. 98-S-34)
    UNITED STATES OF AMERICA,                              (D. Colo.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT           *




Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.




         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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Plaintiff Daniel Dean Betts appeals the district court’s entry of summary

judgment in favor of the United States, on his claim brought pursuant to the


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (FTCA). He claimed

that a federal agency wrongfully refused to hire him because he would not

withdraw a pending claim for unemployment insurance benefits. Because the

United States has liability under the FTCA only when the applicable state law

would impose it, and plaintiff has not shown that Colorado recognizes a tort claim

for wrongful failure to hire, we affirm.

                                    Background

      Plaintiff worked as an unpaid volunteer in a Denver, Colorado, laboratory

of the United States Geological Survey (USGS) during the summer of 1993 and

1994. He then was awarded a contract to provide services to the USGS in August

1994 and again in June 1995. Plaintiff worked under contract for the USGS until

November 1995, when the federal government furloughed all non-essential

employees as a result of an impasse in negotiations for federal appropriations.

      Plaintiff was not called back when the furloughed federal employees

returned to work at the USGS. As a result, he filed a claim for federal

unemployment insurance benefits, which was initially denied on the basis that he

was not an employee of the USGS. On appeal, based on plaintiff’s testimony that

he worked under the direction and control of a supervisor at USGS, it was ruled

that he was a USGS employee and was entitled to unemployment benefits.




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       Shortly thereafter, plaintiff applied to the USGS for a graduate student

appointee position. The USGS did not hire him. Plaintiff alleges in his FTCA

complaint that a USGS regional director withheld approval to hire him unless he

withdrew his unemployment benefits claim. Plaintiff contends the USGS’ failure

to hire him was “in tortious retaliation for his having filed a claim for federal

unemployment insurance benefits . . . in violation of the public policy of

Colorado.” Complaint, Appellant’s App. at 5a. The district court granted

summary judgment in favor of the United States on this claim and two other

claims not raised on appeal.

                                         Analysis

       “We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.”    Charter Canyon

Treatment Ctr. v. Pool Co.   , 153 F.3d 1132, 1135 (10th Cir. 1998). Summary

judgment is proper if the movant shows that “there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c).

       The FTCA grants federal district courts jurisdiction over a specific category

of tort claims for which the United States has waived its sovereign immunity.

See FDIC v. Meyer , 510 U.S. 471, 477 (1994). Under the FTCA, the United

States is liable in tort “in the same manner and to the same extent as a private


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individual under like circumstances.” 28 U.S.C. § 2674. It is liable for certain

damages “caused by the negligent or wrongful act or omission of any employee of

the Government while acting within the scope of his office or employment, under

circumstances where the United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act or omission

occurred.” Id. § 1346(b). There is no jurisdiction to hear a claim under the

FTCA unless the applicable state law recognizes a comparable tort claim for

private persons.   See Meyer , 510 U.S. at 477-78; Ayala v. United States,   49 F.3d

607, 610 (10th Cir. 1995). Courts “look to the law of the state in which the

alleged tortious activity occurred to resolve questions of liability under the

FTCA.” Ayala, 49 F.3d at 611. “We review the district court’s determinations of

state law de novo.”   Id.

       Plaintiff concedes that Colorado does not recognize his asserted claim,

which he characterizes as a claim for “tortious retaliation by prospective

employers.” Appellant’s Br. at 8. He argues, however, that the district court

failed to consider whether his novel tort claim would be a reasonable extension of

Colorado law. He cites      Pedlow v. Stamp , 819 P.2d 1110, 1111 (Colo. Ct. App.

1991), which noted that Colorado does not impose tort liability on an employer

for attempting to coerce prospective employees to forego their statutory rights by




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denying them employment, but held that it was not frivolous to argue for such an

extension of Colorado law. We reject this argument.

      Whether a State should recognize a new tort cause of action is not an

appropriate inquiry under the FTCA. “[T]he relevant question under the FTCA is

whether a state-law duty exists, not whether a court can create or ‘recognize’

one.” Leleux v. United States , 178 F.3d 750, 759 (5th Cir. 1999). Because

plaintiff failed to state a claim under state tort law, a necessary prerequisite for

recovery under the FTCA, the district court correctly granted summary judgment

in favor of the United States.

      The judgment of the United States District Court for the District of

Colorado is AFFIRMED.



                                                      Entered for the Court



                                                      Stephen H. Anderson
                                                      Circuit Judge




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