* This order and judgment is not binding precedent, except under the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

** Honorable G. Thomas Van Bebber, Chief Judge, United States District

Court for the District of Kansas, sitting by designation. 

UNITED STATES COURT OF APPEALS

Filed 9/20/96

FOR THE TENTH CIRCUIT

RUSSELL MCINTOSH and MARION

PARKER,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA;

HENRY G. CISNEROS, Secretary

Department of Housing and Urban

Development,

Defendants-Appellees.

No. 96-5005

(D.C. No. 95-C-652-B)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER,** District

Judge.
-2-

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.

Plaintiffs, two African-American real estate appraisers working in the

Tulsa, Oklahoma area, appeal from the district court’s dismissal of their claims

brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2674

(FTCA). We agree with the district court that, because plaintiffs can point to no

analogous Oklahoma tort law assessing liability upon a private individual under

like circumstances, and because, in any event, plaintiffs’ claims are barred by the

statute of limitations, their claims required dismissal.

Plaintiffs’ complaint, naming the United States and Henry G. Cisneros,

Secretary of the Department of Housing and Urban Development (HUD), as

defendants, alleged that defendants failed to enforce the anti-discrimination

provisions of the Fair Housing Act, 42 U.S.C. 3601-3631, resulting in their

exclusion from real estate appraisal opportunities because of their race. App. at

2. Plaintiffs have previously been before this court alleging that the same facts

constituted a violation of 42 U.S.C. § 1981 and the Fair Housing Act and naming

HUD as a defendant in addition to various mortgage companies. See Parker v.
1 Despite the obvious claim preclusion problems presented by plaintiffs’

second lawsuit, neither the district court nor counsel for the parties addressed this

issue. For the sake of simplicity, we choose to proceed on appeal along the same

analytical line as the district court.

-3-

Bancoklahoma Mortgage Co., No. 93-5253, 1994 WL 170789 (10th Cir. May 5,

1994)(Parker I).

In Parker I, this court affirmed the district court’s dismissal of claims

against HUD because the United States has not waived its sovereign immunity for

constitutional torts. See id. at **2 (citing Martinez v. Winner, 771 F.2d 424, 442

(10th Cir.), modified on other grounds, 778 F.2d 553 (1985), vacated on other

grounds, 475 U. S. 1138 (1986)). In an apparent effort to circumvent the

sovereign immunity problem, plaintiffs then filed this action under the Federal

Tort Claims Act.1

When a complaint is dismissed, we review the action of the district court de

novo. Roman v. Cessna Aircraft Co., 55 F.3d 542, 543 (10th Cir. 1995). Only if

a plaintiff can prove no set of facts justifying relief will a dismissal be upheld. 

Id. We accept all of the well-pleaded allegations in the complaint as true and

construe them in plaintiff’s favor. Id. 

Under the FTCA, “the United States is liable in tort claims ‘in the same

manner and to the same extent as a private individual under like circumstances,’

28 U.S.C. § 2674, ‘in accordance with the law of the place where the act or
2 Okla. Stat. tit. 25, § 1452(A)(5) makes it unlawful for any person to deny

any person access to, or membership or participation in, a multiple-listing service,

real estate brokers’ organization or other service, organization, or facility relating

to the business of selling or renting dwellings, or discriminate against a person in

the terms or conditions of access, membership, or participation in such an

organization, service, or facility because of race, color, religion, gender, national

origin, age, familial status, or handicap.

-4-

omission occurred,’ 28 U.S.C. § 1346(b).” Ayala v. United States, 49 F.3d 607,

610 (10th Cir. 1995)(emphasis added). Thus, to survive a motion to dismiss,

plaintiffs are required to identify Oklahoma tort law which establishes a duty

parallel to the one they allege defendants breached.

Plaintiffs’ complaint contains no reference whatsoever to Oklahoma law,

tort or otherwise. However, in their brief to this court, plaintiffs, pointing to

Okla. Stat. tit. 25, § 1452(A)(5), argue that a portion of the Oklahoma civil rights

statutes provides the comparable state law upon which they can base their federal

tort claim.2 We disagree.

The statute upon which plaintiffs rely is not part of Oklahoma tort law. At

most, the plaintiffs here have alleged some species of constitutional tort. As this

court held in Parker I, the United States has not waived sovereign immunity for

purposes of constitutional torts. See Martinez, 771 F.2d at 442. Further, without

state tort law recognition of a comparable liability for private persons, failure to

abide by or enforce a federal statute is insufficient to establish liability under the

FTCA. Ayala, 49 F.3d at 610. 
-5-

As an alternative ground for dismissal, the district court concluded that

plaintiffs’ claims were barred by the FTCA’s two-year statute of limitations. See

28 U.S.C. § 2401(b). This determination is also correct. Plaintiffs argue that

under the continuing violation doctrine their claim was timely because there have

been continuing unlawful acts, some of which occurred within the filing period. 

Plaintiffs, however, cannot rely on the continuing violation doctrine where, as

evidenced by their earlier lawsuit, their injury was “definite and discoverable, and

nothing prevented [them] from coming forward to seek redress.” Tiberi v. Cigna

Corp., 89 F.3d 1423, 1431 (10th Cir. 1996)(quotation omitted). 

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

of Oklahoma is AFFIRMED.

Entered for the Court

G. Thomas Van Bebber

District Judge