Appellate Case: 24-5148 Document: 50-1 Date Filed: 10/21/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 21, 2025 _________________________________ Christopher M. Wolpert Clerk of Court ROBERT McINTYRE, M.D.,
Plaintiff - Appellant,
v. No. 24-5148 (D.C. No. 4:23-CV-00421-JDR-CDL) UNITED STATES INDIAN HEALTH (N.D. Okla.) SERVICE; VISTA STAFFING SOLUTIONS, INC.,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before MATHESON, PHILLIPS, and ROSSMAN, Circuit Judges. _________________________________
Vista Staffing Solutions placed Dr. Robert McIntyre at the Chinle, Arizona clinic
run by the United States Indian Health Service (“IHS”). IHS fired him and then Vista
terminated its contract with him. Dr. McIntyre sued Vista and IHS. The district court
dismissed, holding that Dr. McIntyre failed to state a claim against Vista and that it
lacked subject matter jurisdiction over his claims against IHS. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-5148 Document: 50-1 Date Filed: 10/21/2025 Page: 2
I. BACKGROUND
A. Factual History 1
The Placement Agreement
Dr. McIntyre used Vista’s medical staffing placement services for 12 years. In
January 2021, he signed a contract with Vista to provide psychiatric services to Vista’s
clients. Vista placed Dr. McIntyre at the IHS clinic located on the Chinle Reservation in
Arizona. IHS, a Vista client, was not a party to the placement agreement.
The placement agreement’s paragraphs 4 and 23 are most relevant here. Under
paragraph 4:
[IHS] may cancel any scheduled placement without cost by giving [Vista] no less than thirty (30) days’ written notice. If [IHS] reasonably finds the performance of [Dr. McIntyre] to be unacceptable for reasons of professional competence or personal conduct, it shall give notice to [Vista] and may then remove [Dr. McIntyre] from the [Chinle Clinic] immediately. . . .
Aplee. Vista App. at 39 ¶ 4. Paragraph 23 states:
[Vista] may terminate this Agreement, and any or all placements of [Dr. McIntyre], immediately by oral or written notice in the event of Professional’s death, the denial or revocation of any hospital privileges for Professional, the revocation or suspension of Professional’s licensing as a Professional in any state, or the request by a Client that
1 This factual history derives from the allegations in Dr. McIntyre’s complaint and documents referenced in the complaint. See Commonwealth Prop. Advocs., LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d 1194, 1201 (10th Cir. 2011) (noting that we “accept[ ] as true all well-pleaded factual allegations in the complaint” on an appeal from a motion to dismiss and “may consider not only the complaint, but also . . . documents incorporated into the complaint by reference”).
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Professional be removed for any reason during the term of a placement.
Id. at 41 ¶ 23. Utah law governs the interpretation of the placement agreement. Id. at 41
¶ 24(f).
Dr. McIntyre and the Chinle Clinic
Dr. McIntyre was assigned to the Chinle Clinic in January 2021.
In August 2021, he requested a Covid-19 vaccine medical exemption from the
Chinle Clinical Medical Director, Dr. Eric Ritchie. In support, Dr. McIntyre provided
documentation from his personal physician. Dr. Ritchie denied the request without
explanation.
Sometime before September 2021, Dr. McIntyre learned of a Chinle Clinic
pharmacist’s alleged sexual misconduct. Dr. McIntyre alleged that Dr. Ritchie and
“leadership at Chinle” failed to take any “remedial” or “curative action.” Id. at 8-9, 17,
20-21.
On September 16, 2021, Dr. McIntyre “formally blew the whistle on Dr. Ritchie”
and the Chinle Clinic. Id. at 9. He emailed an investigator at the Department of Health
and Human Services’ Office of Inspector General (“OIG”) detailing his complaints,
including Dr. Ritchie’s denial of Dr. McIntyre’s Covid-19 vaccine exemption request and
his failure to address the pharmacist’s alleged misconduct.
In early October 2021, Dr. Ritchie denied Dr. McIntyre’s request to take a basic
life support class in Chinle rather than in Albuquerque or Flagstaff.
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Cancellation and Termination
In late October 2021, IHS cancelled Dr. McIntyre’s Chinle Clinic placement. IHS
notified Vista of its decision, citing Dr. McIntyre’s “lack of professionalism” and “failure
to maintain a positive work environment.” Id. at 30, 19 (quotations omitted). Shortly
thereafter, Vista terminated its placement agreement with Dr. McIntyre.
B. Procedural History
The Complaint
Dr. McIntyre sued Vista and IHS for breach of contract and IHS for unlawful
retaliation and creating a hostile work environment. He claimed the district court had
subject matter jurisdiction under “28 U.S.C. § 451, § 1331, § 1337,
§ 1343, 41 U.S.C. § 4712, 5 U.S.C. § 2302, and 10 U.S.C. § 2409.” Id. at 7.
a. Vista
Citing paragraph 4 of the placement agreement, Dr. McIntyre alleged that Vista
owed him a “duty under the [placement agreement] to inquire into any allegations of
professional competence or personal conduct transmitted by any client to see if there was
a bonafide reasonable basis for sudden ending of [his] placement.” Id. at 10-11. He
further alleged that Vista terminated the agreement without conducting any investigation
and thereby breached the placement agreement.
Dr. McIntyre did not explicitly allege that Vista breached the implied covenant of
good faith and fair dealing.
b. IHS
Dr. McIntyre alleged three claims against IHS.
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First, quoting paragraph 4 of the placement agreement, Dr. McIntyre alleged that
“IHS breached its contract with Vista . . . when it failed to contemporaneously
‘reasonably find the performance of [Dr. McIntyre] to be unacceptable for reasons of
professional competence or personal conduct.’” Id. at 12. He did not specify the terms
of the alleged contract between IHS and Vista and did not attach any such agreement to
the complaint. 2 He claimed to be a third-party beneficiary of the contract and sought
recovery for breach.
Second, Dr. McIntyre alleged that IHS unlawfully retaliated against him for his
email to the OIG. The alleged retaliation included (1) the denial of Dr. McIntyre’s
request for a Covid-19 vaccine medical exemption, 3 (2) the denial of his request to take
the basic life support class in Chinle, and (3) the cancellation of his placement. 4
Third, Dr. McIntyre alleged Dr. Ritchie’s actions and the Chinle Clinic’s failure to
address the pharmacist’s sexual misconduct created a hostile work environment. 5
Dr. McIntyre alleged he suffered more than $75,000 in damages.
2 At oral argument, Dr. McIntyre’s counsel conceded that a contract between IHS and Vista is not in the record. Oral Arg. at 1:00-56. 3 Dr. Ritchie denied this request before the OIG email. The complaint did not explain how the denial could have been in retaliation for the email. 4 Dr. McIntyre based his retaliation claim on 41 U.S.C. § 4712, 5 U.S.C. § 2302(b)(8), 10 U.S.C. § 4701, 42 U.S.C. § 1395, 42 U.S.C. § 18116, 18 U.S.C. § 242, and 25 C.F.R. § 11.448. In his complaint, he referred to 10 U.S.C. § 4701 by its former statute number, 10 U.S.C. § 2409. 5 The complaint did not cite a statute on which this claim was based.
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Motions to Dismiss
a. Vista’s motion
Vista moved to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). It argued that its failure to investigate IHS’s reasons for cancelling
Dr. McIntyre’s placement before exercising its termination rights did not breach the
placement agreement or the implied covenant of good faith and fair dealing.
In response, Dr. McIntyre argued that Vista violated the implied covenant of good
faith and fair dealing. He did not argue that Vista violated the placement agreement’s
express terms.
b. IHS’s motion
IHS moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1)
and for failure to state a claim under Rule 12(b)(6). It argued that it was immune from
suit under the sovereign immunity doctrine and that Dr. McIntyre had failed to establish
waiver of sovereign immunity.
In response, Dr. McIntyre asserted that IHS’s violation of various statutes and one
regulation waived sovereign immunity. He also said the Tucker Act waived sovereign
immunity and provided the district court with subject matter jurisdiction.
District Court Opinion
The district court granted both motions.
It held Vista’s failure to investigate IHS’s reasons for cancelling Dr. McIntyre’s
placement did not violate the placement agreement or the implied covenant of good faith
and fair dealing.
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It further held that IHS had sovereign immunity from suit and that neither the
Tucker Act, the Federal Tort Claims Act, nor Dr. McIntyre’s other cited statutes and
regulation granted the court subject matter jurisdiction.
Dr. McIntyre timely appealed.
II. DISCUSSION
A. Breach Claims Against Vista
“We review de novo a district court’s grant of a motion to dismiss for failure to
state a claim.” Young v. Colo. Dep’t of Corr., 94 F.4th 1242, 1249 (10th Cir. 2024). We
“accept a complaint’s well-pleaded allegations as true, viewing all reasonable inferences
in favor of the nonmoving party, and liberally construe the pleadings.” Lucas v.
Turn Key Health Clinics, LLC, 58 F.4th 1127, 1136 (10th Cir. 2023)). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678,
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Breach of the Placement Agreement
Dr. McIntyre has waived the issue of whether Vista breached the placement
agreement.
“We have held that a failure to raise an issue in an opening brief waives that issue,
and that we will not entertain issues raised for the first time on appeal in an appellant’s
reply brief.” Platt v. Winnebago Indus., Inc., 960 F.3d 1264, 1271 (10th Cir. 2020)
(quotations omitted).
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When an appellee fails to raise preservation in its response brief, we may find
waiver of the appellant’s waiver, but this decision is discretionary. United States v.
Rodebaugh, 798 F.3d 1281, 1314 (10th Cir. 2015) (citing United States v. McGehee,
672 F.3d 860, 873-74 n.5 (10th Cir. 2012)). Thus, we may excuse an appellee’s failure to
argue preservation and find the issue waived. Id. at 1314-17; see also McGehee,
672 F.3d at 873-74 n.5
In his complaint, Dr. McIntyre alleged that Vista owed him a duty “to inquire into
any allegations of professional competence or personal conduct transmitted by any client
to see if there was a bonafide reasonable basis for sudden ending of a placement.” Aplee.
Vista App. at 11; see also id. at 16. But in his opening brief, Dr. McIntyre does not argue
that Vista’s failure to investigate constituted a breach of the express terms of the
placement agreement. Vista addresses the complaint’s failure-to-investigate theory in its
response brief, but does not address preservation, Aplee. Vista Br. at 7-8, triggering
whether it has waived Dr. McIntyre’s waiver. We exercise our discretion to say no.
We do so in part because, in his reply brief, Dr. McIntyre abandons his theory that
Vista should have investigated IHS’s reasons for cancelling his placement. He instead
asserts, under paragraph 4 of the placement agreement, that IHS—not Vista—should
have produced evidence of Dr. McIntyre’s unacceptable performance, Aplt. Reply Br.
at 2-3, and that Vista’s failure to wait for IHS to produce this evidence constituted
breach, id. at 2-5.
Dr. McIntyre thus has not argued his complaint’s failure-to-investigate theory in
either his opening or reply briefs. Also, applying waiver of the waiver “would be
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manifestly unfair” to Vista, which, “under our rules, has no opportunity for a written
response” to Dr. McIntyre’s new theory of breach. United States v. Leffler, 942 F.3d
1192, 1197 (10th Cir. 2019) (quoting Hill v. Kemp, 478 F.3d 1236, 1251 (10th Cir.
2007)). And we would lack the “benefits of the adversarial process.” Id. at 1197-98. 6
For the foregoing reasons, we conclude that Dr. McIntyre has waived his
challenge to the dismissal of his claim that Vista breached the express terms of the
placement agreement.
Breach of the Implied Covenant of Good Faith and Fair Dealing
Dr. McIntyre argues that good faith required Vista, before exercising its
termination rights, to investigate IHS’s allegations that his professional performance was
unacceptable. Aplt. Br. at 21-25. He contends the district court erred by “strictly
reading” the placement agreement and failing to construe its terms in light of the implied
covenant of good faith and fair dealing. Id. at 20-21. 7 We disagree.
6 We may find waiver on yet another ground. Although Dr. McIntyre alleged in his complaint that Vista breached the placement agreement, he abandoned this argument in his opposition to Vista’s motion to dismiss in district court. See C1.G. ex rel. C.G. v. Siegfried, 38 F.4th 1270, 1282 (10th Cir. 2021) (finding the plaintiff’s constitutional claims abandoned when he failed to address them in his response to the defendant’s motion to dismiss). When parties attempt to “reassert an argument that [they] previously raised and abandoned below,” we typically find the issue waived. McGehee, 672 F.3d at 873 (quoting United States v. Zubia-Torres, 550 F.3d 1202, 1205 (10th Cir. 2008)). 7 In his opening brief, Dr. McIntyre briefly suggests that paragraph 23 of the placement agreement is itself contrary to the implied covenant. Aplt. Br. at 24-25. But he fails to cite any case law and has waived this argument as inadequately briefed. See United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (“The court will not consider such issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation.” (quotations omitted)); Pignanelli v. Pueblo Sch. Dist.
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a. Utah law on implied covenant
Under Utah law, a contract is subject to the implied covenant of good faith and fair
dealing. Brehany v. Nordstrom, Inc., 812 P.2d 49, 55 (Utah 1991). “The covenant
operates by ‘inferring as a term of every contract a duty to perform in the good faith
manner that the parties surely would have agreed to if they had foreseen and addressed
the circumstance giving rise to their dispute.’” Vander Veur v. Groove Ent. Techs.,
452 P.3d 1173, 1177 (Utah 2019) (quoting Young Living Essential Oils, LC v. Marin,
266 P.3d 814, 816 (Utah 2011)); Olympus Hills Shopping Ctr. v. Smith’s Food & Drug
Ctrs., 889 P.2d 445, 450 (Utah Ct. App. 1994) cert. denied, 899 P.2d 1231 (Utah 1995).
Good faith “requires a party in a contract to perform ‘consistent with the agreed
common purpose and the justified expectations of the other party,’” Cheney v. Hinton
Burdick Hall & Spilker, PLLC, 366 P.3d 1220, 1225 (Utah Ct. App. 2015) (quoting
Oakwood Vill. LLC v. Albertsons, Inc., 104 P.3d 1226, 1239 (Utah 2004)), and refrain
from intentionally “injur[ing] the other party’s right to receive the benefits of the
contract,” Eggett v. Wasatch Energy Corp., 94 P.3d 193, 197 (Utah 2004) (citing
St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 199 (Utah 1991)). Utah
courts determine “the purpose, intentions, and expectations [of the parties] by considering
the contract language and the course of dealings between and conduct of the parties.”
Oakwood Vill., 104 P.3d at 1240 (quotations omitted).
No. 60, 540 F.3d 1213, 1217 (10th Cir. 2008) (holding appellant waived her due process argument by failing to cite to any legal authority or record evidence in support).
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“Although ‘a covenant of good faith and fair dealing inheres in almost every
contract, some general principles limit the scope of the covenant.’” Vander Veur,
452 P.3d at 1177 (quoting Oakwood Vill., 104 P.3d at 1240). The implied covenant may
not be construed “to establish new, independent rights or duties to which the parties did
not agree at the outset.” Id. (quotations omitted). Nor may “it create rights and duties
inconsistent with express contractual terms.” Id. (quotations omitted); see also Brehany,
812 P.2d at 55 (the implied covenant cannot be invoked to “nullify a right granted by a
contract to one of the parties.”).
b. Analysis
In his complaint, Dr. McIntyre does not expressly allege that Vista breached the
implied covenant of good faith and fair dealing. Regardless of whether he should have
done so, 8 we conclude the district court correctly determined that Vista did not breach the
implied covenant.
8 In a recent case, judges on the Utah Court of Appeals, in separate writings, acknowledged that “[t]here exists some apparent tension between our statement that a claim for breach of the implied covenant ‘is an independent cause of action’ and our supreme court’s statement that ‘[a] violation of the [implied] covenant is a breach of the contract.’” Olé Mexican Foods Inc. v. J & W Distrib. LLC, 549 P.3d 663, 673 n.4 (Utah Ct. App. 2024) (alterations in original) (citations omitted), cert. denied 558 P.3d 88 (Utah 2024); see also id. at 678 (concurrence) (“I likewise acknowledge that there ‘exists some apparent tension’ in the caselaw.”) The judges expressed differing views about whether a complaint alleging breach of the express terms of a contract must also plead breach of the implied covenant of good faith and fair dealing. Compare id. at 673 n.4 (“I would encourage litigants to consider whether it is truly necessary to include in their complaints a separate cause of action, in addition to a general claim for breach of contract, for breach of the implied covenant of good faith and fair dealing.”), with id. at 678 (concurrence) (“I disagree with the suggestion that it would be ‘simpler and cleaner for litigants to abandon the practice of
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First, the placement agreement lacks language imposing a duty on Vista to
investigate IHS’s reasons for cancellation before exercising its own termination rights.
Under Utah law, we cannot read the placement agreement to “establish new, independent
rights or duties to which the parties did not agree at the outset.” Vander Veur, 452 P.3d
at 1177 (quotations omitted).
Second, implying a duty to investigate would be inconsistent with paragraph 23,
which permits Vista to “immediately” terminate the placement agreement upon a client’s
request that a physician be removed “for any reason.” Aplee. Vista. App at 41 ¶ 23;
Vander Veur, 452 P.3d at 1177. Requiring an investigation would “nullify” Vista’s right
to terminate the contract immediately and would constitute a “substantive limitation” on
Vista’s right to terminate when a client cancels a professional’s placement. Brehany, 812
P.2d at 55.
Third, Vista’s exercise of its termination rights did not undermine Dr. McIntyre’s
justified expectations under the placement agreement. Dr. McIntyre argues that,
considering his and Vista’s long professional history, good faith required Vista to
investigate “the factual basis for conclusions included in the [cancellation] notice.” Aplt.
Br. 21-22. But neither the placement agreement’s language nor the parties’ course of
dealing supports Dr. McIntyre’s argument. Oakwood Vill., 104 P.3d at 1240 (the parties’
justified expectations are determined by the contracts language and the parties’ course of
dealing).
pleading claims for breach of the implied covenant separately from claims for breach of . . . the same contract.’”) (quotations omitted). 12 Appellate Case: 24-5148 Document: 50-1 Date Filed: 10/21/2025 Page: 13
As discussed above, paragraph 23 granted Vista broad termination rights, Aplee.
Vista. App at 41 ¶ 23, precluding any claim that Dr. McIntyre had a justifiable
expectation that Vista would investigate IHS’s reasons for cancelling his placement.
Further, the complaint fails to allege facts about Dr. McIntyre and Vista’s course of
dealing. Oakwood Vill., 104 P.3d at 1240. In particular, the complaint fails to allege that
Vista’s practice was to investigate its clients’ complaints against Dr. McIntyre or the
other medical staff it placed.
Vista’s termination of the placement agreement thus did not violate the implied
covenant of good faith and fair dealing.
* * * *
Because Dr. McIntyre waived his argument that Vista breached the placement
agreement and because Vista did not violate the implied covenant of good faith and fair
dealing, we affirm the district court’s dismissal of Dr. McIntyre’s claim against Vista for
failure to state a claim.
B. Claims Against IHS
The district court dismissed Dr. McIntyre’s claims against IHS for lack of subject
matter jurisdiction, which we review de novo. Delgado v. Gonzales, 428 F.3d 916, 919
(10th Cir. 2005). “The burden of establishing a federal court’s subject matter jurisdiction
rests upon the party asserting jurisdiction.” Safe Sts. All. v. Hickenlooper, 859 F.3d 865,
878 (10th Cir. 2017) (quotations omitted); see also Kansas v. SourceAmerica, 874 F.3d
1226, 1240 (10th Cir. 2017)).
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Legal Background
“It is elementary that [the] United States, as sovereign, is immune from suit save
as it consents to be sued . . . , and the terms of its consent to be sued in any court define
that court’s jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535,
538 (1980) (quotations omitted). Sovereign immunity also shields federal agencies and
federal officers acting in their official capacities. Wyoming v. United States, 279 F.3d
1214, 1225 (10th Cir. 2002).
The party suing the federal government must show an “explicit waiver of
sovereign immunity.” Fostvedt v. United States, 978 F.2d 1201, 1203 (10th Cir. 1992)
(quoting Lonsdale v. United States, 919 F.2d 1440, 1444 (10th Cir. 1990)). “[A] waiver
of sovereign immunity must be unequivocally expressed in statutory text.” FAA v.
Cooper, 566 U.S. 284, 290 (2012) (quotations omitted). Statutes that confer general
jurisdiction on federal courts, such as 28 U.S.C. § 1331, are insufficient to waive
sovereign immunity. See Lonsdale, 919 F.2d at 1443-44.
Even when a statute waives the federal government’s sovereign immunity, it must
still grant the district court subject matter jurisdiction. See Union Pac. R.R. Co. v.
United States ex rel. U.S. Army Corps of Eng’rs, 591 F.3d 1311, 1320 (10th Cir. 2010)
(affirming the district court’s dismissal of plaintiff’s breach of contract claim against the
United States for lack of subject matter jurisdiction because the Tucker Act, though it
waived sovereign immunity, vested the Court of Federal Claims with exclusive
jurisdiction over such claims); see also Normandy Apartments, Ltd. v. U.S. Dep't of Hous.
& Urb. Dev., 554 F.3d 1290, 1298-99 (10th Cir. 2009).
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Analysis
Dr. McIntyre relied on multiple statutes to establish jurisdiction. For most of
them, he failed to show a waiver of sovereign immunity. For the ones that waive
sovereign immunity, he failed to show the district court otherwise had subject matter
jurisdiction over his IHS claims.
a. The Tucker Act
Dr. McIntyre argues the district court had subject matter jurisdiction under the
Tucker Act. Aplt. Br. at 11-12. 9 We disagree. 10
The Tucker Act, 28 U.S.C. § 1491, waives sovereign immunity for breach of
contract claims against the federal government. Union Pac., 591 F.3d at 1313-14.
Federal district courts and the Court of Federal Claims have concurrent jurisdiction over
such claims for damages equal to or less than $10,000. Id. at 1314; see also 28 U.S.C.
§ 1346(a)(2). But the Court of Federal Claims has exclusive jurisdiction over claims
exceeding $10,000. Union Pac., 591 F.3d at 1314.
9 The complaint did not allege a Tucker Act claim. See Oral Arg. 2:20-3:02 (Dr. McIntyre conceding he did not plead a Tucker Act claim). But Dr. McIntyre presented his Tucker Act argument in his opposition to IHS’s motion to dismiss and the district court addressed it. 10 The following discussion assumes there was a contract between IHS and Vista. In his complaint, Dr. McIntyre alleged that IHS breached a contract with Vista and that he was a third-party beneficiary. But, as noted above, the complaint did not specify the terms of the alleged contract, and no such agreement was attached to the complaint or included in the record.
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Dr. McIntyre’s breach of contract claim against IHS appears to fall within the
Tucker Act’s waiver of sovereign immunity, 28 U.S.C. § 1491(a), but the Court of
Federal Claims has exclusive jurisdiction because the alleged damages exceed $10,000.
Union Pac., 591 F.3d at 1314; 28 U.S.C. § 1346(a)(2). The district court therefore lacked
jurisdiction under 28 U.S.C. § 1491(a)(1). 11
Dr. McIntyre counters with § 1491(b)(1), which permits interested parties to
protest the solicitation of contract bids by the United States. See 28 U.S.C. § 1491(b)(1).
But he did not allege a bid protest claim. Even if he did, as of 2001, federal district
courts no longer have concurrent jurisdiction over bid protest claims. See Emery
Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1079 (Fed. Cir. 2001). Now,
“the Court of Federal Claims [has] exclusive jurisdiction to hear [bid protest] Tucker Act
claims.” SourceAmerica, 874 F.3d at 1241.
11 Under 28 U.S.C. § 1631 when a district court lacks jurisdiction over a case, it may transfer the case to a court with jurisdiction “if [transfer] is in the interest of justice.” In district court, IHS argued that Dr. McIntyre’s Tucker Act claim should not be transferred to the Court of Federal Claims. Aplt. Supp. App. at 12. Dr. McIntyre agreed, and the district court dismissed without prejudice. Id. at 27; Aplt. Br. at 41. On appeal, IHS again argues the claim should not be transferred. Aplee. IHS Br. at 6. Now, in his reply brief, Dr. McIntyre says it should (referring to his retaliation claim rather than his Tucker Act contract claim). Aplt. Reply Br. at 11-12. But he does not argue the district court erred in dismissing the claim without transferring it. Even if he did, any error would have been an invited one because Dr. McIntyre urged the district court not to transfer. See United States v. McBride, 94 F.4th 1036, 1041 (10th Cir. 2024) (“Generally, ‘the invited-error doctrine precludes a party from arguing that the district court erred in adopting a proposition that the party had urged the district court to adopt.’” (quoting United States v. Deberry, 430 F.3d 1294, 1302 (10th Cir. 2005)). We therefore see no reason to address the transfer issue on appeal. 16 Appellate Case: 24-5148 Document: 50-1 Date Filed: 10/21/2025 Page: 17
b. The Whistleblower Protection Act
Dr. McIntyre asserts the district court had jurisdiction under the Whistleblower
Protection Act. The Act prohibits certain federal agencies from retaliating against
employees for protected activities, 5 U.S.C. § 2302(b)(8), and waives the government’s
sovereign immunity. See Bohac v. Dep’t of Agric., 239 F.3d 1334, 1339 (Fed. Cir. 2001)
(the WPA includes a limited waiver of sovereign immunity). But the Act includes other
jurisdictional requirements.
“WPA claims generally may only be brought under the civil service procedures of
the Civil Service Reform Act.” McKinney v. United States, 724 F. App’x. 628, 630
(10th Cir. 2018) (unpublished); 12 see also Steele v. United States, 19 F.3d 531, 533
(10th Cir. 1994). The CSRA requires an aggrieved employee to seek corrective action
from “the [Office of] Special Counsel” and then “the [Merit Systems Protection] Board.”
5 U.S.C. § 1214(a)(3); 5 U.S.C. § 1221(a). “Congress . . . clearly indicated that the
exhaustion requirement outlined in § 1214(a)(3) is jurisdictional.” Acha v.
Dep’t of Agric., 841 F.3d 878, 883 n.3 (10th Cir. 2016); see also Eng. v. Merit Sys. Prot.
Bd., No. 23-9526, 2023 WL 8851292, at *4 (10th Cir. Dec. 21, 2023) (unpublished).
Dr. McIntyre failed to seek the required corrective action. Even if he had, the
district court still would have lacked subject matter jurisdiction because, petitions for
review of MSPB decisions generally may be filed only in federal circuit courts. See 5
U.S.C. § 7703(b)(1)(B); see also Teufel v. Dep't of the Army, 608 Fed. App’x. 705, 706
12 We cite unpublished opinions in this order and judgment for their persuasive value under Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 17 Appellate Case: 24-5148 Document: 50-1 Date Filed: 10/21/2025 Page: 18
(10th Cir. 2015) (unpublished) (exercising jurisdiction under 5 U.S.C. § 7703(b)(1)(B) to
review the MSPB’s final decision denying retaliation claims).
c. Various statutes
Dr. McIntyre argues that various other statutes and one regulation waived IHS’s
sovereign immunity. Aplt. Br. at 11-18; Aplt. Reply Br. at 13-20. 13 We disagree.
He relies on the antiretaliation provisions in the Defense Contractor Whistleblower
Protection Act, 10 U.S.C. § 4701, and the National Defense Authorization Act, 41 U.S.C.
§ 4712, which provide whistleblower protection for employees of various federal
contractors and subcontractors. But these statutes permit suit only against a government
contractor or subcontractor, 41 U.S.C. § 4712(c)(2); 10 U.S.C. § 4701(c)(3), not against
the government itself, so they do not waive the government’s sovereign immunity.
Dr. McIntyre also relies on 18 U.S.C. § 242 and 22 C.F.R. § 11.448, which
criminalize certain behavior by government officials. See 18 U.S.C. § 242 (prohibiting
government officials from depriving people of their constitutional rights and privileges);
25 C.F.R. § 11.448 (prohibiting government officials from committing certain acts on
Indian land). But neither waives the government’s sovereign immunity and both are
plainly inapplicable to the facts of this case.
13 In his complaint, Dr. McIntyre alleged that IHS also violated 42 U.S.C. §§ 1395, 18116. On appeal, Dr. McIntyre does not address these statutes until his reply, see Aplt. Reply Br. at 18, 20, and has waived reliance on them. See Leffler, 942 F.3d at 1197 (declining to consider issues raised for the first time in appellant’s reply brief).
18 Appellate Case: 24-5148 Document: 50-1 Date Filed: 10/21/2025 Page: 19
d. General and Supplemental Jurisdiction Statutes
Dr. McIntyre asserts that the district court had subject matter jurisdiction under
28 U.S.C. §§ 1331 and 1337(a). Aplt. Br. at 1. 14 Section 1331 grants district courts
subject matter jurisdiction over “all civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C.§ 1331. It does not waive the government’s
sovereign immunity. See Lonsdale, 919 F.2d at 1443-44. Section 1337(a) grants district
courts original jurisdiction over “any civil action or proceeding arising under any Act of
Congress regulating commerce or protecting trade and commerce against restraints and
monopolies.” 28 U.S.C. § 1337(a). Its grant of general jurisdiction is also insufficient to
waive the government’s sovereign immunity. Lonsdale, 919 F.2d at 1443-44; Cooper,
566 U.S. at 290.
Finally, Dr. McIntyre invokes 28 U.S.C. § 1367(a) for the first time in his reply
brief. Aplt. Reply Br. at 10. It grants federal courts “supplemental jurisdiction over all
other claims that are so related to claims in the action within [the court’s] original
jurisdiction that they form part of the same case or controversy under Article III of the
United States Constitution.” 28 U.S.C. § 1367(a). Dr. McIntyre asserts that because his
14 On Appeal Dr. McIntyre also asserts that the district court had subject matter jurisdiction under 28 U.S.C. § 1344. This statute was not cited as a basis for the district court’s jurisdiction in Dr. McIntyre’s complaint, nor argued during the motion to dismiss. And Dr. McIntyre does not argue plain error on appeal. Therefore, we find the issue waived. Leffler, 942 F.3d at 1196 (“When an appellant fails to preserve an issue and also fails to make a plain-error argument on appeal, we ordinarily deem the issue waived (rather than merely forfeited) and decline to review the issue at all—for plain error or otherwise.”).
19 Appellate Case: 24-5148 Document: 50-1 Date Filed: 10/21/2025 Page: 20
claims against IHS and Vista are “intertwined” and because the district court had
diversity jurisdiction over his claims against Vista, Ҥ 1367 grant[ed] the Court below
supplemental jurisdiction over Dr. McIntyre’s claim against IHS.” Aplt. Reply Br. at 10.
Again, we disagree.
Dr. McIntyre waived this argument by failing to raise it in his opening brief. See
Tompkins v. U.S. Dep't of Veterans Affs., 16 F.4th 733, 735 n.1 (10th Cir. 2021) (“Our
duty to consider unargued obstacles to subject matter jurisdiction does not affect our
discretion to decline to consider waived arguments that might have supported such
jurisdiction.” (quotations omitted)).
In any event, § 1367(a), as a general jurisdiction statute, cannot override sovereign
immunity. See Mitchell, 445 U.S. at 538 (a waiver of sovereign immunity must be
unequivocal); Lonsdale, 919 F.2d at 1443-44 (statutes conferring general jurisdiction are
insufficient to waive sovereign immunity). The district court’s diversity jurisdiction over
Dr. McIntyre’s claim against Vista did not authorize supplemental jurisdiction over
Dr. McIntyre’s claims against IHS.
In sum, Dr. McIntyre has failed to show a waiver of sovereign immunity or
otherwise establish the district court’s subject matter jurisdiction. We affirm the district
court’s dismissal of Dr. McIntyre’s claims against IHS.
20 Appellate Case: 24-5148 Document: 50-1 Date Filed: 10/21/2025 Page: 21
III. CONCLUSION
We affirm the district court’s judgment.
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge