[00:00:03] Speaker 05:
All right, our next case this morning is McIntyre versus United States Indian Health Service, number 245148.

[00:00:13] Speaker 05:
Counsel, you may proceed.

[00:00:14] Speaker 03:
Thank you, Governor.

[00:00:20] Speaker 03:
Daniel Gamano, my privilege to represent Dr. Robert McIntyre, who is present seated in the front row there.

[00:00:29] Speaker 03:
Dr. McIntyre is an allopathic physician.

[00:00:35] Speaker 03:
He was an independent contractor working at IHS.

[00:00:40] Speaker 03:
In retaliation for him reporting severe misconduct at IHS, he was removed from his position.

[00:00:49] Speaker 03:
He was placed there by a placement company called Vista Staffing.

[00:00:56] Speaker 03:
There was a contract, and the case involves two different contracts below.

[00:01:03] Speaker 03:
The first contract was between Dr. McIntyre and VISTA.

[00:01:10] Speaker 03:
And that was the contract that he had worked under for approximately 10 years.

[00:01:16] Speaker 03:
He served under that contract.

[00:01:18] Speaker 03:
And the contract has a couple of provisions there about cancellation of placement of the doctor.

[00:01:26] Speaker 05:
Could you just tell us what the other contract is?

[00:01:29] Speaker 03:
Yes.

[00:01:29] Speaker 03:
The other contract is the procurement contract between IHS and VISTA staffing.

[00:01:37] Speaker 05:
Where is that contract?

[00:01:39] Speaker 05:
Is it in the record?

[00:01:40] Speaker 03:
It is not in the record.

[00:01:42] Speaker 03:
The case below was dismissed before there was a pretrial discovery.

[00:01:49] Speaker 03:
So the procurement contract between IHS and VISTA is not in the record.

[00:01:57] Speaker 05:
Well, how are we supposed to consider arguments about that contract if we don't have the contract?

[00:02:02] Speaker 03:
Well, we don't have the contract, but the Council for the Defense

[00:02:10] Speaker 03:
has raised the defense of sovereign immunity.

[00:02:13] Speaker 03:
As the court is aware, there are congressional limitations on sovereign immunity.

[00:02:18] Speaker 03:
It is not an absolute doctrine.

[00:02:20] Speaker 03:
One of the limitations and exceptions to sovereign immunity is under what's called the Tucker Act.

[00:02:28] Speaker 03:
And the court below recognized the possible application of the Tucker Act.

[00:02:34] Speaker 01:
But you didn't plead a Tucker Act claim.

[00:02:36] Speaker 03:
It's in their opinion.

[00:02:37] Speaker 01:
Did you plead a Tucker Act claim?

[00:02:39] Speaker 01:
Did you attempt to plead a Tucker Act claim in your complaint?

[00:02:44] Speaker 03:
The Tucker Act was specifically not mentioned in the complaint.

[00:02:47] Speaker 03:
The complaint under Federal Rule 8 shortened plain statement of the case, and we put in facts that we think were sufficient to indicate that.

[00:02:57] Speaker 03:
The court below clearly recognized

[00:03:00] Speaker 03:
that the Tucker Act may be in play.

[00:03:03] Speaker 03:
It is a procurement contract.

[00:03:05] Speaker 03:
When you read the statutes on the Tucker Act, it talks about any procurement contract that may be reviewed, and it is an exception to sovereign immunity that's been raised by IHS.

[00:03:20] Speaker 03:
Even though it is not in the record, it has been referred to by the court below in their opinion.

[00:03:27] Speaker 03:
And if the case is remanded back to the court, then it can be produced and it can be reviewed.

[00:03:34] Speaker 04:
Are you in the right court for that?

[00:03:37] Speaker 03:
Excuse me?

[00:03:38] Speaker 04:
Tucker Act.

[00:03:40] Speaker 04:
I'm over here.

[00:03:41] Speaker 04:
The Tucker Act claim, are you in the right court to make that claim?

[00:03:47] Speaker 03:
We are in the right court, Your Honor, for this reason.

[00:03:51] Speaker 03:
The court below already has one contract dispute in front of it, and that's the contract that's in the record between Dr. McIntyre and VISTA.

[00:04:03] Speaker 03:
And that contract is in dispute.

[00:04:05] Speaker 03:
The lower court has jurisdiction over that.

[00:04:08] Speaker 03:
There is a statute, Title 28, Section 1367, which says if a lower court

[00:04:15] Speaker 03:
has jurisdiction over a case, then it has jurisdiction over the entire case and controversy over anything that might

[00:04:27] Speaker 03:
impact or be reflected in that.

[00:04:30] Speaker 03:
Under that statute, the lower court does have authority to review under the Tucker Act that contract and also the contract between IHS and VISTA.

[00:04:44] Speaker 05:
I would agree with... Do you have any case examples where a court has, other than the Federal Claims Court, has exercised jurisdiction with those

[00:04:54] Speaker 03:
I do not have a specific precedent, Your Honor.

[00:04:59] Speaker 03:
Most of the cases that come before the Federal Court of Claims and the Tucker Act are specifically on a federal procurement contract of some kind and some dispute.

[00:05:11] Speaker 03:
and typically there's no other parties involved.

[00:05:15] Speaker 03:
In this case, there is another party involved and another contract is involved, and that's the one between Dr. McIntyre and VISTA.

[00:05:26] Speaker 03:
And the contract that is in the record between them requires, when Dr. McIntyre was practicing medicine there, if IHS wanted to remove him,

[00:05:39] Speaker 03:
Under the VISTA contract, under paragraph four, IHS must provide a reasonable finding of either professional incompetence or personal conduct.

[00:05:54] Speaker 03:
That's in paragraph four of the contract.

[00:05:57] Speaker 03:
The evidence shows that in what I call the non-notice-notice that IHS sent to VISTA, it's one paragraph from a contracting specialist.

[00:06:11] Speaker 03:
It has only very general language about his basis for his removal.

[00:06:24] Speaker 03:
And it does not specify anything that gives a reasonable finding of professional incompetence or personal conduct.

[00:06:35] Speaker 05:
Now, Counsel, you're now back to talking about the first contract, the one between Dr. McIntyre and VISTA, correct?

[00:06:44] Speaker 05:
Yes.

[00:06:44] Speaker 05:
All right.

[00:06:47] Speaker 05:
I may have missed it, but it doesn't seem like, well, you're alleging breach of contract based on that contract and in the complaint, and you're alleging breach of the implied covenant of good faith and fair dealing based on that contract.

[00:07:03] Speaker 05:
You've got sort of two things going on there.

[00:07:06] Speaker 05:
In your opening brief, it doesn't seem like you're making your breach of contract argument there.

[00:07:15] Speaker 05:
You get to it in your reply brief, but am I not reading that correctly?

[00:07:22] Speaker 03:
Well, what we were attempting to argue was the failure of VISTA to honor their own contract and to point out that they breached their contract with Dr. McIntyre.

[00:07:35] Speaker 03:
VISTA is not able to remove Dr. McIntyre unless there is a reasonable finding by the client

[00:07:43] Speaker 03:
of some kind of professional incompetence or personal conduct, there was no evidence of that presented to VISTA.

[00:07:50] Speaker 03:
All VISTA received is the one paragraph non-notice-notice that said,

[00:07:58] Speaker 03:
He doesn't get along with staff or general language of that.

[00:08:02] Speaker 03:
There's not a single evidence presented to VISTA of any kind of professional incompetence.

[00:08:11] Speaker 03:
The notice came from a contracting specialist, not from a physician who could knowledgably address the practice of Dr. McIntyre and whether it was professional or not.

[00:08:25] Speaker 03:
It did not come from an executive who had some evidence of the staff unrest or personal conduct failings.

[00:08:33] Speaker 05:
Where in this agreement, the placement agreement between VISTA and Dr. McIntyre, where does that impose a duty on VISTA?

[00:08:42] Speaker 05:
I'm not talking about IHS.

[00:08:44] Speaker 05:
I'm talking about VISTA to investigate the reasons that the clinic let him go.

[00:08:50] Speaker 03:
Right.

[00:08:53] Speaker 03:
IHS.

[00:08:54] Speaker 03:
has the duty to provide... I asked about IHS.

[00:08:58] Speaker 05:
I asked about VISTA because paragraph 23 says that a company may terminate this agreement in any or all placements immediately by oral or written notice in the event of so forth and so on, or the request by a client that professional be removed for any reason during the term.

[00:09:19] Speaker 03:
That is what paragraph 23 says at the end.

[00:09:22] Speaker 03:
And the court needs to recall any basic rule of statutory construction or contract construction.

[00:09:31] Speaker 03:
The general is controlled by the specific.

[00:09:35] Speaker 03:
Paragraph 23 that Justice just referred to does have general language that a client may make a request for any reason

[00:09:49] Speaker 03:
It is governed by the specific language of paragraph four.

[00:09:54] Speaker 03:
That's the language that says what the client must report.

[00:10:00] Speaker 03:
And they cannot report a frivolous reason or any other reason.

[00:10:03] Speaker 03:
They have to report a reason of professional competence or personal conduct.

[00:10:09] Speaker 03:
and they utterly failed in their non-notice notice to bring any of those allegations regarding Dr. McIntyre or his practice.

[00:10:21] Speaker 03:
There's no allegation that he misdiagnosed

[00:10:25] Speaker 03:
He ordered the wrong drugs.

[00:10:27] Speaker 03:
He did not have proper follow-up.

[00:10:29] Speaker 03:
There's nothing about his medical practice that is alleged, and there's nothing in any detail at all that would lead anybody to believe that there's a reasonable finding of some kind of personal conduct issue.

[00:10:44] Speaker 01:
So is it your position that the any reason language in paragraph 23

[00:10:50] Speaker 01:
is just on its face contrary to the implied covenant of good faith?

[00:10:56] Speaker 03:
In addition to, yes, in Utah, of course, the court recognized Utah, any contract has an implied covenant, good faith, and fair dealing, just like you said.

[00:11:08] Speaker 03:
I think that impacts paragraph 23.

[00:11:11] Speaker 03:
And I think also what impacts paragraph 23 is the more specific language of paragraph 4.

[00:11:18] Speaker 03:
If IHS wants to remove someone under the VISTA contract, they must present a reasonable finding of some kind of professional incompetence or personal conduct issue.

[00:11:32] Speaker 03:
And they never did present that.

[00:11:35] Speaker 03:
Vista went ahead and acted without that information and that notice from IHS.

[00:11:43] Speaker 03:
Vista had a duty to Dr. McIntyre under paragraph 4 to not remove him.

[00:11:51] Speaker 03:
until a client comes along and gives reasonable finding that there's some kind of professional competence or personal conduct.

[00:12:01] Speaker 04:
They know that that's a covenant of good faith and fair dealing.

[00:12:04] Speaker 04:
Do you have any cases that say that includes a duty to investigate the reasons?

[00:12:09] Speaker 04:
I've not seen a case that says that.

[00:12:12] Speaker 03:
I don't know that there's a case that directly involves these facts.

[00:12:16] Speaker 04:
Now, the lower court agreed... I know there aren't any that directly involve these facts, but are there any that generally say in Utah, the covenant of good faith and fair dealing, the implied covenant, includes a duty to investigate the reasons for a firing?

[00:12:35] Speaker 03:
I don't know that any of them go as far as a duty to investigate.

[00:12:39] Speaker 04:
Isn't that what you're asking us to do?

[00:12:42] Speaker 03:
No.

[00:12:42] Speaker 03:
I think the only thing we're asking is for VISTA to follow their own contract and make an inquiry as to the reasonable finding.

[00:12:52] Speaker 03:
That can be done by a phone call to get more information.

[00:12:56] Speaker 03:
It can be done by an email to get down to the specifics of what is the problem.

[00:13:02] Speaker 03:
You don't have to have, in my opinion,

[00:13:05] Speaker 03:
investigation that goes on for months and months.

[00:13:08] Speaker 03:
But VISTA, under that contract, paragraph four, needs to receive a reasonable finding of some kind of professional competence or personal conduct.

[00:13:21] Speaker 03:
And VISTA never received that.

[00:13:23] Speaker 03:
There's none in the record.

[00:13:24] Speaker 03:
The only thing in the record is the one paragraph non-notice notice, and that is not sufficient to remove Dr. McIntyre.

[00:13:33] Speaker 03:
It may be sufficient to trigger VISTA to make some kind of inquiry.

[00:13:40] Speaker 03:
to see what was the reasonable finding that was not done by VISTA.

[00:13:46] Speaker 03:
That's the breach of the contract between VISTA and Dr. McIntyre.

[00:13:51] Speaker 04:
Dr. McIntyre was there a couple of weeks after the notice of firing, is that right?

[00:13:57] Speaker 04:
There was a short period of transition, yes.

[00:14:00] Speaker 04:
And how does that factor in with the contract language or anything else?

[00:14:05] Speaker 03:
I don't know, and there's no evidence of how IHS did the timing of when he would actually leave.

[00:14:15] Speaker 03:
But the breach happened when the decision was made that Dr. McIntyre was going to be removed by VISTA.

[00:14:23] Speaker 04:
Well, if it's a two-week interval from the time that he's notified and he's actually gone, does that plug into the contract, these different provisions on how people get fired?

[00:14:35] Speaker 04:
Does it help us to isolate to one or the other?

[00:14:39] Speaker 03:
In my opinion, no.

[00:14:41] Speaker 03:
I think the contract is specific on paragraph 4 and paragraph 23, and whether from the time they give notice of discharge or removal until you actually leave, I don't think is material, respectfully, and I think

[00:14:58] Speaker 03:
that the breach that happened here was VISTA's failure to follow through and to follow and enforce its own contract in paragraph 4 and 23.

[00:15:10] Speaker 03:
And I appreciate the Court's attention.

[00:15:15] Speaker 03:
I'd be glad to answer any other questions.

[00:15:16] Speaker 03:
Thank you.

[00:15:19] Speaker 05:
Thank you, counsel.

[00:15:27] Speaker 00:
May it please the court, I'm Rachel Parilli for the United States, representing the United States Indian Health Services.

[00:15:34] Speaker 00:
My co-defendants and I have agreed to split our time evenly before this court.

[00:15:38] Speaker 05:
Okay, hope it works out that way.

[00:15:41] Speaker 00:
Sovereign immunity protects the United States from suits such as the plaintiffs.

[00:15:46] Speaker 00:
The government may waive sovereign immunity, but such a waiver must be unequivocally expressed in statutory text and will not be implied.

[00:15:54] Speaker 01:
Counsel, can I ask you a threshold question about the defendant?

[00:15:57] Speaker 01:
So you make an observation that IHS is not the proper defendant.

[00:16:01] Speaker 00:
Yes.

[00:16:02] Speaker 01:
And it should have been the United States or the Secretary of Health and Human Services.

[00:16:06] Speaker 01:
Is it just your position that we should just plug in the United States as we proceed to adjudicate this case?

[00:16:10] Speaker 00:
Yes, the court can deem the United States as a defendant in this case as the United States Indian Health Service is an agency of the United States.

[00:16:19] Speaker 00:
And that agency is entitled to sovereign immunity, just as the United States is.

[00:16:25] Speaker 00:
The plaintiff has asserted a variety of claims against the United States to try to obtain jurisdiction on the United States.

[00:16:32] Speaker 00:
None of them are successful.

[00:16:33] Speaker 00:
First and foremost, he alleges in his complaint, this is an action in breach of contract.

[00:16:40] Speaker 00:
If you take the plaintiff's complaint at his word, the first words in his entire complaint are, this is an action in breach of contract.

[00:16:48] Speaker 00:
then the federal district court does not have jurisdiction.

[00:16:51] Speaker 00:
Jurisdiction would lie with the court of federal claims pursuant to the Tucker Act, as the court has discussed.

[00:16:58] Speaker 00:
Any?

[00:16:59] Speaker 05:
How do you respond to counsel's argument that because he has claims against VISTA and there's jurisdiction over those, that that brings the Tucker claim under our jurisdiction under

[00:17:14] Speaker 05:
How do you respond to that?

[00:17:17] Speaker 00:
Concurrent jurisdiction can be established, but it has to be established against the United States, not against a co-defendant.

[00:17:23] Speaker 00:
There's no claim against the United States that establishes that concurrent jurisdiction.

[00:17:29] Speaker 00:
Simply because there is a claim against a co-defendant doesn't mean that their jurisdiction is established against the United States and the United States sovereign immunity is waived, giving the court jurisdiction outside of the contract.

[00:17:39] Speaker 05:
So if I'm understanding what you're saying, there has to be a valid claim

[00:17:42] Speaker 05:
against the United States to loop in the Tucker Act claim.

[00:17:48] Speaker 00:
Yes, to establish the concurrent jurisdiction.

[00:17:51] Speaker 05:
It doesn't work if it's the claim against VISTA.

[00:17:53] Speaker 05:
That's correct, Your Honor.

[00:17:55] Speaker 05:
Okay, so why shouldn't we transfer the Tucker claim to the Federal Claims Court?

[00:18:00] Speaker 00:
You could, the claim can be transferred in the interest of justice.

[00:18:06] Speaker 00:
But in this case, there is no contract between the plaintiff, Dr. McIntyre, and the United States.

[00:18:11] Speaker 00:
So there is no contract claim.

[00:18:13] Speaker 00:
Just as there's been no contract even presented here for the court to consider.

[00:18:17] Speaker 00:
So there is no contract claim to consider between the United States and Dr. McIntyre.

[00:18:22] Speaker 00:
So transfer would be not in the interest of justice.

[00:18:28] Speaker 00:
Another way that he attempts to establish concurrent jurisdiction is through the National Defense Authorization Act.

[00:18:33] Speaker 05:
By the way, as long as we're talking about contracts, you referred to contract between Dr. McIntyre in the United States.

[00:18:41] Speaker 05:
What about this contract between IHS and VISTA?

[00:18:46] Speaker 05:
Was there a contract between?

[00:18:49] Speaker 00:
Yes, there is a contract between IHS and VISTA.

[00:18:52] Speaker 05:
But we don't have that either.

[00:18:53] Speaker 00:
We do not.

[00:18:55] Speaker 00:
It's not been placed at issue.

[00:18:57] Speaker 00:
There's no allege by either IHS or VISTA that either party to that contract has breached that contract.

[00:19:03] Speaker 00:
So it's really not at issue for the court to consider at this time.

[00:19:07] Speaker 05:
And then other than the Tucker Act arguments, as I understand it, you're saying that it's a sovereign immunity situation.

[00:19:15] Speaker 05:
The appellant has a list of various and sundry statutes.

[00:19:23] Speaker 05:
One thing I was curious about in your brief, though, is it seems like,

[00:19:27] Speaker 05:
You're saying that Dr. McIntyre under those statutes fails to state a claim under the various statutes and that we lack jurisdiction.

[00:19:36] Speaker 05:
Isn't it just that we lack jurisdiction?

[00:19:39] Speaker 05:
I didn't understand why you even needed to get into whether... It's both.

[00:19:45] Speaker 05:
...stated a claim or failed to state a claim.

[00:19:47] Speaker 00:
It's both if he had exhausted some of the administrative remedies that he alleged, then the court would have jurisdiction.

[00:19:54] Speaker 00:
But as he has failed to even allege that he exhausted administrative remedies for all but a supposed violation of the National Defense Authorization Act, there's a lack of jurisdiction, and he has failed to state a claim.

[00:20:06] Speaker 00:
So there are alternative arguments?

[00:20:07] Speaker 01:
Pardon?

[00:20:08] Speaker 01:
There are alternative arguments?

[00:20:10] Speaker 00:
Yeah, there are alternative arguments, yes, Your Honor.

[00:20:12] Speaker 01:
What's the sequencing of our analysis?

[00:20:13] Speaker 01:
If there's no jurisdiction, wouldn't we just stop at 12B1?

[00:20:17] Speaker 00:
Yes, you should.

[00:20:22] Speaker 00:
The National Defense Authorization Act only allows suit against the United States.

[00:20:28] Speaker 00:
It only allows suit against a contractor, subcontractor, grantee, subgrantee, or personal services contractor.

[00:20:37] Speaker 00:
It does not allow suit against the United States.

[00:20:39] Speaker 00:
It specifically limits a de novo suit in the federal district court against those types of entities, and it does not allow for a suit against the United States.

[00:20:49] Speaker 00:
He has attempted to exhaust his remedies under that provision as well under the National Defense Authorization Act and he has not been successful.

[00:20:57] Speaker 00:
There has been no exhaustion of remedies for that as well.

[00:21:01] Speaker 00:
Similarly, the Defense Contractor Whistleblower Protection Act has a similar requirement that a complaint be made and administrative remedies be exhausted.

[00:21:12] Speaker 00:
But then, once those administrative remedies are exhausted, a suit may be filed only against a contractor, subcontractor, grantee, subgrantee, or personal services contractor.

[00:21:22] Speaker 00:
Again, not the United States of America.

[00:21:27] Speaker 00:
The next basis for jurisdiction that he alleges is the Whistleblower Protection Act.

[00:21:31] Speaker 00:
The Whistleblower Protection Act does not apply because it only applies to those who are employees of the United States or applicants for employment.

[00:21:39] Speaker 00:
He alleges on page five, or he states on page five of his appeal that he is an independent contractor of VISTA Staffing Services, not an employee of the United States.

[00:21:49] Speaker 00:
So again, the Whistleblower Protection Act does not apply to give this court concurrent jurisdiction to allow the case to proceed in federal district court.

[00:21:58] Speaker 00:
Similarly, the Medicare Act.

[00:22:00] Speaker 00:
There are allegations of violations of the Medicare Act.

[00:22:03] Speaker 00:
There are administrative exhaustion requirements that must be met for the Medicare Act, as well as he alleged spaces for jurisdiction for violations of federal law.

[00:22:15] Speaker 00:
There's no right to

[00:22:19] Speaker 00:
for an individual to enforce federal criminal law against the federal government.

[00:22:24] Speaker 00:
Similar provisions of the Affordable Care Act and allegations of discrimination.

[00:22:28] Speaker 00:
There's no allegation in this case that he has provided any or there has been any discrimination or that the plaintiff is a member of a protected class.

[00:22:38] Speaker 00:
And finally, his basis is the final basis he alleges for jurisdiction is the Bid Procurement Act.

[00:22:45] Speaker 00:
And again, he is not a bidder in any case.

[00:22:48] Speaker 00:
And there are exhaustion requirements for that as well.

[00:22:52] Speaker 00:
And finally, of course, those remedies would also be only properly sought exclusively in the Court of Federal Claims.

[00:22:59] Speaker 00:
So from every angle, there's no basis for the district court to hear this case.

[00:23:06] Speaker 00:
There's no basis for jurisdiction against the United States.

[00:23:08] Speaker 00:
And unless the court has further questions, I'll yield the rest of my time to my co-defendant.

[00:23:14] Speaker 05:
Thank you, Kathy.

[00:23:29] Speaker 02:
Good morning, and may it please the court.

[00:23:31] Speaker 02:
My name is James Peacock, and I'm here today on behalf of VISTA Staffing Solutions.

[00:23:36] Speaker 02:
We're asking this court to affirm the decision of the district court and dismiss this claim.

[00:23:42] Speaker 02:
We've heard about different contracts, but the main contract, the only contract before this court, is the contract between Dr. McIntyre and VISTA.

[00:23:52] Speaker 02:
And from what we've heard today, what we've seen in the pleadings,

[00:23:57] Speaker 02:
Dr. McIntyre is misreading paragraph four of that contract.

[00:24:02] Speaker 02:
It does not impose a duty on VISTA to investigate.

[00:24:06] Speaker 02:
The plain language of that contract makes it clear that what paragraph four establishes, and as the district court pointed out in his opinion, paragraph four establishes the authority of the client, in this case IHS, to immediately terminate a placement.

[00:24:25] Speaker 02:
upon a finding of either professional misconduct or personal misconduct.

[00:24:31] Speaker 02:
And I'm paraphrasing there.

[00:24:33] Speaker 05:
But how would you, how does the word reasonably in paragraph four, it says that if the client reasonably finds the performance of professional to be unacceptable, how does that affect VISTA's termination rights under paragraph 23?

[00:24:54] Speaker 02:
It does not, Your Honor.

[00:24:55] Speaker 02:
Those are two separate questions.

[00:24:57] Speaker 02:
The paragraph four, in terms of what the client's rights are, is completely separate and a separate analysis from what paragraph 23, which is the operative paragraph of this contract, what paragraph 23 allows.

[00:25:12] Speaker 02:
And under paragraph 23, VISTA has the right to terminate a placement for any reason given by the client, upon receipt of any reason.

[00:25:23] Speaker 02:
from the client, which we did receive, and I know they refer to it as... The client is... IHS.

[00:25:31] Speaker 05:
And it refers to the client, not Dr. McIntyre, but the client has to reasonably find.

[00:25:40] Speaker 05:
Why would that even be in the contract if it doesn't have anything to do with whether VISTA can terminate the agreement with Dr. McIntyre?

[00:25:52] Speaker 02:
Sure.

[00:25:54] Speaker 05:
The language must be in there for some purpose.

[00:25:59] Speaker 02:
There is an expectation, according to that contract, that the client would act reasonably.

[00:26:04] Speaker 02:
But that doesn't give the impression that VISTA would have any ability to investigate the reasons behind the termination.

[00:26:12] Speaker 02:
In fact, it's the opposite.

[00:26:13] Speaker 02:
It says VISTA, if the client were to find

[00:26:16] Speaker 02:
that a separation was required, VISTA is only entitled to notice of that decision, not notice an opportunity to confirm, not notice an opportunity to investigate, just notice.

[00:26:33] Speaker 02:
And with that notice,

[00:26:35] Speaker 02:
the client, IHS, is entitled to remove Dr. McIntyre immediately, which, as this court pointed out, that is not actually what happened.

[00:26:44] Speaker 02:
This was not an immediate removal.

[00:26:47] Speaker 02:
And in its termination notice that IHS sent to VISTA, they don't reference paragraph four and call for an immediate removal.

[00:26:56] Speaker 02:
They reference the federal acquisition regulations and allow for a 15-day

[00:27:02] Speaker 02:
separation period, which is required under that regulation.

[00:27:07] Speaker 01:
What is your understanding of what the implied covenant requires your client to do under this contract?

[00:27:14] Speaker 02:
The implied covenant, Your Honor, requires my client to exercise its rights under the contract in good faith.

[00:27:21] Speaker 02:
And we look to the contract to find out exactly what those rights are.

[00:27:26] Speaker 02:
But the implied covenant doesn't create additional rights.

[00:27:29] Speaker 02:
It doesn't create extra contractual obligations.

[00:27:32] Speaker 02:
It only requires that, looking at the four corners of this agreement, what are the reasonable expectations of the parties?

[00:27:40] Speaker 02:
And in more than one paragraph, it's clear to Dr. McIntyre that he is subject to immediate removal

[00:27:48] Speaker 02:
given certain circumstances.

[00:27:50] Speaker 02:
And we would also submit that the notice that we received from IHS does give valid reasons for a separation.

[00:27:59] Speaker 02:
A lack of professionalism is a reason to separate from a locum tenens independent contractor.

[00:28:06] Speaker 02:
He's not fitting in.

[00:28:08] Speaker 02:
He's not behaving the way that IHS would expect a professional to behave.

[00:28:13] Speaker 02:
The failure to maintain positive working relationships with hospital staff is likewise a second reason.

[00:28:20] Speaker 02:
Those are valid, subjective reasons found by IHS that entitle them to end this placement.

[00:28:28] Speaker 05:
Well, wasn't there a little more to it than that?

[00:28:32] Speaker 05:
Wasn't VISTA aware of Dr. Ritchie's retaliatory motive against Dr. McIntyre when it terminated the agreement?

[00:28:41] Speaker 02:
No, Your Honor, there's nothing in the pleading to suggest that VISTA was aware.

[00:28:45] Speaker 02:
There is no pleading for that.

[00:28:47] Speaker 02:
In fact, in the briefing, it's the opposite.

[00:28:50] Speaker 02:
It's the suggestion that VISTA, with no notice, receives this termination letter.

[00:28:56] Speaker 02:
VISTA should have questioned, hey, what's going on here?

[00:28:59] Speaker 02:
So the opposite is true.

[00:29:00] Speaker 02:
VISTA is in the blind here.

[00:29:02] Speaker 02:
There's no allegation in the complaint that VISTA was made aware of all of the

[00:29:06] Speaker 02:
Things that are happening that we know now from what Dr. McIntyre produced with his complaint, those are after the fact revelations.

[00:29:13] Speaker 02:
There is no allegation that VISTA had real time information about what was going on.

[00:29:18] Speaker 02:
What VISTA knew was what was contained in the IHS notice, which was lack of professionalism, failure to maintain a positive working environment with hospital staff.

[00:29:34] Speaker 05:
Well, you've got a little time.

[00:29:35] Speaker 05:
I've got another question.

[00:29:36] Speaker 02:
Yes, sir.

[00:29:37] Speaker 05:
In your view, did Dr. McIntyre waive the breach of contract argument?

[00:29:45] Speaker 02:
Has he waived it?

[00:29:47] Speaker 02:
It's hard to tell from the pleading exactly what he's alleging.

[00:29:50] Speaker 05:
I'm not talking about the pleading.

[00:29:51] Speaker 05:
I'm talking about the opening brief.

[00:29:53] Speaker 02:
The opening brief does not clearly challenge the district court's findings for dismissal.

[00:30:02] Speaker 05:
I'm not talking about dismissal as a whole, because we've got breach of contract, we've got breach of implied covenant.

[00:30:10] Speaker 05:
I'm just talking about breach of contract.

[00:30:14] Speaker 02:
Yes.

[00:30:15] Speaker 02:
Certainly, in looking at his pleading, it doesn't directly address the breach of contract allegations.

[00:30:26] Speaker 05:
OK, follow up.

[00:30:27] Speaker 05:
Did you waive any waiver of that argument?

[00:30:34] Speaker 02:
No, Your Honor.

[00:30:35] Speaker 05:
Well, you address it in your response brief.

[00:30:37] Speaker 02:
We do address it out of an abundance of caution, just as out of an abundance of caution in the... But you don't say that they waived the argument in your response brief.

[00:30:46] Speaker 02:
We do not.

[00:30:47] Speaker 02:
We don't raise the waiver issue.

[00:30:48] Speaker 04:
That's correct.

[00:30:49] Speaker 04:
Thank you.

[00:30:49] Speaker 04:
You mentioned 15 days.

[00:30:51] Speaker 04:
that he was kept for 15 days and what was the reason?

[00:30:55] Speaker 04:
A regulation?

[00:30:55] Speaker 04:
Did you cite?

[00:30:56] Speaker 02:
Yes, sir.

[00:30:57] Speaker 02:
In the notice of termination, the Indian Health Services contracting officer references the federal acquisition regulations.

[00:31:05] Speaker 02:
It's 52.

[00:31:05] Speaker 02:
I don't have the exact size.

[00:31:06] Speaker 04:
And how does that relate to the contract provisions as far as immediately or 60 days and so forth?

[00:31:12] Speaker 02:
It doesn't.

[00:31:14] Speaker 02:
It's just an indication to the court and to the parties that Indian Health Services was not relying on the terms of Dr. McIntyre's contract with VISTA when it made its decision to end the relationship.

[00:31:27] Speaker 02:
IHS relied on federal acquisition regulations and gave the required regulatory 15-day notice.

[00:31:37] Speaker 05:
Thank you.

[00:31:43] Speaker 05:
Appreciate your arguments this morning.

[00:31:45] Speaker 05:
The case will be submitted and counsel are excused.