* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable G. Thomas Van Bebber, Chief Judge, UnitedStates District Court for the District of Kansas, sitting by design ation.

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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiffs, two African-American real estate apprai sers 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, bec ause plaintiffs can point to no analogous Oklahoma tort law assessing liability upo n a private individual under like circumstances, and because, in any event, plai ntiffs’ claims are barred by the statute of limitations, their claims required dismi ssal. Plaintiffs’ complaint, naming the United States andHenry G. Cisneros, Secretary of the Department of Housing and Urban De velopment (HUD), as defendants, alleged that defendants failed to enfor ce 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 cou rt 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 prese nted by plaintiffs’

second lawsuit, neither the district court nor coun sel for the parties addressed this issue. For the sake of simplicity, we choose to pr oceed 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 dismissa l of claims against HUD because the United States has not waive d 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 t his action under the Federal Tort Claims Act. 1 When a complaint is dismissed, we review the actionof 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 re lief 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 individu al under like circumstances,’ 28 U.S.C. § 2674, ‘in accordance with the law of th e place where the act or2 Okla. Stat. tit. 25, § 1452(A)(5) makes it unlawful for any person to deny

any person access to, or membership or participatio n in, a multiple-listing service, real estate brokers’ organization or other service, organization, or facility relating to the business of selling or renting dwellings, ordiscriminate against a person in the terms or conditions of access, membership, or p articipation 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 whatsoe ver 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 whi ch 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 immuni ty 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 insufficie nt to establish liability under the FTCA. Ayala , 49 F.3d at 610.-5-

As an alternative ground for dismissal, the distric t court concluded that plaintiffs’ claims were barred by the FTCA’s two-ye ar statute of limitations. See 28 U.S.C. § 2401(b). This determination is also co rrect. Plaintiffs argue that under the continuing violation doctrine their claim was timely because there have been continuing unlawful acts, some of which occurr ed within the filing period. Plaintiffs, however, cannot rely on the continuing violation doctrine where, as evidenced by their earlier lawsuit, their injury wa s “definite and discoverable, and nothing prevented [them] from coming forward to see k redress.” Tiberi v. Cigna Corp. , 89 F.3d 1423, 1431 (10th Cir. 1996)(quotation omi tted). The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

G. Thomas Van Bebber District Judge