McIntyre v. United States Indian Health Service et al

Filing 39

OPINION AND ORDER by Judge John D Russell ; terminating party United States Indian Health Service ; granting 21 Motion to Dismiss for Lack of Jurisdiction (Re: 21 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim ) (Documents Terminated: 21 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim ) (clb, Dpty Clk)

United States District Court
for the Northern District of Oklahoma
Case No. 23-cv-421-JDR-CDL
Robert McIntyre, M.D.,
Plainti?,
versus
United States Indian Health Service; Vista Staf?ng
Solutions, Inc.,
Defendants.
OPINION AND ORDER

Plainti? Robert McIntyre, M.D., is a licensed psychiatrist who contracted with Vista Sta?ng Solutions, Inc. to provide medical services at a
clinic operated by the United States Indian Health Service. He argues that
the IHS breached the obligations it owed him as the third-party bene?ciary of
an unspeci?ed contract between Vista and the IHS; impermissibly retaliated
against him; and maintained a hostile work environment at the clinic where
he worked. Dkt. 1 at ¶¶ 33, 58-97. The IHS has moved to dismiss those claims,
arguing, among other things, that the doctrine of sovereign immunity bars
this action. Dkt. 21. The Court grants the motion.
The United States is immune from suit unless it expressly and unequivocally consents to be sued. See Merida Delgado v. Gonzales, 428 F.3d 916,
919 (10th Cir. 2005) (citing United States v. Mitchell, 445 U.S. 535, 538
(1980)). In general, this immunity extends to the government’s agencies. Id.
A party seeking to exert jurisdiction over the government has the burden of
establishing that sovereign immunity has been waived, and must “identify[ ]

Case No. 23-cv-421

an applicable statutory waiver of sovereign immunity when challenged to do
so.” Bork v. Carroll, 449 F. App’x 719, 721 (10th Cir. 2011); see James v. United
States, 970 F.2d 750, 753 (10th Cir. 1992).
Dr. McIntyre has not identi?ed a waiver that would permit him to proceed with his claims on the facts alleged. Although he might be able to pursue
a breach-of-contract claim in a di?erent court under the Tucker Act, 1 his
complaint does not speci?cally allege either an express or implied contract
with the IHS that would fall within the scope of that act. The only contract
identi?ed in the complaint is the contract between Dr. McIntyre and Vista.
There is no allegation that the IHS signed or was a party to that agreement,
and none of the allegations identify any other contract under which the IHS
owed a duty to Dr. McIntyre. See Dkt. 1 at ¶ 33 (referring to the “Vista Sta?ng
Solutions Contract,” but failing to allege the contract was signed by the IHS);
Dkt. 18-1 (setting forth a contract with language quoted in the complaint that
is signed by Vista and Dr. McIntyre). 2
The Federal Tort Claims Act provides a limited waiver of jurisdiction,
but the complaint does not allege facts that would fall within the scope of that
waiver. The complaint identi?es two individuals who allegedly retaliated
against Dr. McIntyre and contributed to a hostile work environment. See Dkt.
1. But the complaint does not specify whether those individuals were employees of the IHS, rather than contractors. Because the Federal Tort Claims Act
waives immunity only for the acts of federal employees, and not federal contractors, there is no clear waiver of immunity that would permit the government to be subject to suit in this case. See Ohlsen v. United States, 998 F.3d
See Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 1074, 1080 (10th Cir. 2006)
(recognizing that the Court of Federal Claims has been granted jurisdiction over express or
implied contracts with the United States).
1

The Court may refer to documents central to Dr. McIntrye’s claim that are referenced in the complaint provided there is no dispute as to the authenticity of those documents. See Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir.
2017). Dr. McIntyre has not disputed the authenticity of the agreement provided by Vista.
2

2

Case No. 23-cv-421

1143, 1154 (10th Cir. 2021) (recognizing that the FTCA carves out a limited
waiver for employees, which does not apply to independent contractors).
Dr. McIntyre cites to several federal statutes in the “jurisdiction and
venue” section of his complaint, but none of these provisions include an express waiver of sovereign immunity, and some of them do not apply to the
facts of this case. See 28 U.S.C. § 451 (de?ning terms utilized throughout Title 28); 28 U.S.C. §§ 1331, 1337, 1343 (granting district courts original jurisdiction over certain claims); 41 U.S.C. § 4712(c)(2) (permitting complainant
to bring a de novo action “against the contractor, subcontractor, grantee, subgrantee, or personal services contractor,” but not the agency); 5 U.S.C. § 2302
(identifying prohibited practices and internal remedies); 10 U.S.C. § 4701 (authorizing complainant to bring an action against “the contractor, subcontractor, grantee, subgrantee, or personal services contractor,” but not the agency).
Although it is possible that Dr. McIntyre could allege facts that would permit
this case to move forward, he has not yet “identif[ied] any waiver of sovereign immunity for the type of claims he asserted,” and dismissal of this action
is warranted. See Bonilla v. U.S. Bureau of Alcohol, Tobacco, & Firearms, No.
11-CV-779-GKF-PJC, 2012 WL 90093, at *2 (N.D. Okla. Jan. 11, 2012). Accordingly, the IHS’s motion to dismiss [Dkt. 21] is granted, and Dr. McIntyre’s claims against United States Indian Health Service are dismissed without prejudice to re?ling in this or another court.
DATED this 22d day of November 2024.

John D. Russell
United States District Judge

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