Betts v. United States ( 2000 )


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  •                                                                             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    This order and judgment is not binding precedent, except under the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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