* This order and judgment is not binding precedent, e xcept under the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

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 3 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
DANIEL DEAN BETTS,

Plaintiff-Appellant,
v. UNITED STATES OF AMERICA,

Defendant-Appellee. No. 99-1482 (D.C. No. 98-S-34) (D. Colo.)

ORDER AND JUDGMENT *
Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.

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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff Daniel Dean Betts appeals the district co urt’s entry of summary judgment in favor of the United States, on his clai m brought pursuant to the-2-

Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 -2680 (FTCA). He claimed that a federal agency wrongfully refused to hire hi m because he would not withdraw a pending claim for unemployment insurance benefits. Because the United States has liability under the FTCA only whe n the applicable state law would impose it, and plaintiff has not shown that C olorado 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) durin g the summer of 1993 and 1994. He then was awarded a contract to provide se rvices to the USGS in August 1994 and again in June 1995. Plaintiff worked unde r contract for the USGS until November 1995, when the federal government furlough ed all non-essential employees as a result of an impasse in negotiations for federal appropriations. Plaintiff was not called back when the furloughed f ederal employees returned to work at the USGS. As a result, he file d a claim for federal unemployment insurance benefits, which was initiall y 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 supe rvisor at USGS, it was ruled that he was a USGS employee and was entitled to une mployment benefits.-3-

Shortly thereafter, plaintiff applied to the USGS f or a graduate student appointee position. The USGS did not hire him. Pl aintiff alleges in his FTCA complaint that a USGS regional director withheld ap proval to hire him unless he withdrew his unemployment benefits claim. Plaintif f 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 ju dgment 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 entitledto a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The FTCA grants federal district courts jurisdictio n over a specific category of tort claims for which the United States has waiv ed its sovereign immunity. See FDIC v. Meyer , 510 U.S. 471, 477 (1994). Under the FTCA, the Un ited States is liable in tort “in the same manner and to the same extent as a private-4-

individual under like circumstances.” 28 U.S.C. § 2674. It is liable for certain damages “caused by the negligent or wrongful act oromission 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 wh ere the act or omission occurred.” Id . § 1346(b). There is no jurisdiction to hear a cl aim under the FTCA unless the applicable state law recognizes a c omparable 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 lawof the state in which the alleged tortious activity occurred to resolve quest ions of liability under the FTCA.” Ayala, 49 F.3d at 611. “We review the district court’s de terminations of state law de novo.” Id. Plaintiff concedes that Colorado does not recognize his asserted claim, which he characterizes as a claim for “tortious ret aliation by prospective employers.” Appellant’s Br. at 8. He argues, howe ver, that the district court failed to consider whether his novel tort claim wou ld 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 to rt liability on an employer for attempting to coerce prospective employees to f orego their statutory rights by-5-

denying them employment, but held that it was not f rivolous to argue for such an extension of Colorado law. We reject this argument
. Whether a State should recognize a new tort cause o f 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 correct ly granted summary judgment in favor of the United States. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED.

Entered for the Court
Stephen H. Anderson Circuit Judge