with the marshal service was in the th circuit so as a plea issue of in terms of whether or not the complaint states a plausible claim those lines is there anything that suggests that is ice meant in the position that this litigation is about is there anything to suggest that is poison it was condition business but he could work well walden but not in this position that the marshal service but have d any approval or is that correct also in other words he could be placed somewhere else in the employer  the contract suitability provisions and such an age point deluded gives mr davis the right to be told why and then to be given the opportunity to contest why those are valuable contractual rights and the reason permitted we would say that is not a novel case but if it is a novel case then we would say that given the complete absence of really alternative remedies mr davis  mr o'donnell assuming that i we agreed with you arguing that they were joint employers i'm not sure it gets you anywhere and the district court seem to think it didn't get anywhere  e i mean if this were a a retaliatory discharge claim under the toyman laws then certainly you could pursue that but that's not what this is so i'm trying to figure out how does the we should move on because the district court got hung up on the standing and they should go back and look at that they are just not sure where you get because you don't have a retaliatory discharge claim under  as a joint employer in they terminated his services we alleged because of his whistleblowing activities but he's no number of the civil service he's not a protected positions far as l and we will now hear from ms lopez may it please the court carolyn look as on behalf of the federal defendants i want to make sure that i'm addressing each of your honor's questions particularly with respect to the breach of contract  claims and the defense claims i think the fundamental defect here that plaintiffs can't get around is as your honour's pointed out this case is very different than some of the rehab act cases here the contract that he had directly with his employer said it was an  contract and what he tries to do is get get around that at will contract who truly gives people very little rights in any particular were it's further contingent on additional approval and when he tries to do is piggyback off of  federal contract for the procurement of services that's between walton and the marshals and he's just not a party to that contract and as we explained in our brief that's actually a fundamental subject matter jurisdiction problem because because it is a marshall's contracts with security service contractors or whether you think of it as the c d a says only a contractor has is able to sue and therefore the united states has waived its sovereign immunity with respect to claims brought by contractors employees and so that's is can you help us you know what if this causes some discomfort and sometimes the law does cause some discomfort so that's not always a winning argument that discomfort in itself but the fact what so what if the marshal service this is a hypothetical said we don't want to him because of his race and we get to make the final choice and so even though you've already hired him you can't hire him where is his remit he there so your honor of course that is far afield from the allegations here and here i just want to step back for one moment before i get to that to say that here our congress has specifically thought about whistleblower reprisal claims in two different statutes so there's the statute that plaintiff erroneous later relied reliant on here that's not available to him which is the one only for covered federal employees but congress did actually go back in this context and we discussed this in the brief it's forty one u s c four thousand seven hundred and twelve and that actually allows for suits directly against the contractor by contractors of employees assuming that he is actually an employee and not to have been in it in a contingent offer situation and that includes for actions taken by the contractor at the express direction of the executive subject to certain additional limitations i don't know why acted well within it's just a question here to say that when he had already been allowed to amend his complaint and that's after he or crucially the fed the federal government had already filed a motion to dismiss pointing out the various jurisdictional deficiencies with his contractor not against united states united states has made clear that it has not way it sort of waivers of sovereign immunity have to be clear and unequivocal and here it's just the opposite the united states congress has thought about this quite a bit and has provided a remedy and so  if they didn't tar if they took away his offer because the the marshal service said don't hire him because of his race or could the marshal service be liable as a joint employee or otherwise in that circumstance your honor any remedies that he may or may not have were this and said a racial discrimination case would be under title seven and the rehab act and for the reasons that we describe in distinguishing for example here today get out ahead of the united states and say in a hypothetical case and what you are in which there are accusations that the united states was liable for sort of somehow interfering with an employment react relationship in which the united states was not actually the person's  oyer i can't stand here today to tell you yes or no that the united states would think that had waived a sovereign immunity through title seven or the rehab act for for plaintiffs who are not the united states employees but and we have a lot of cases  cases there have been some cases in which they they did but most of those cases actually were just ended up being dismissed on other grounds for example i apologize i forget the name of the d c circuit case but the d c circuit case that talks about this for example actually doesn't reach the joint employer often courts don't actually reach the joint employer who is st is because you from our own southern district of texas most explicitly do yes your honor and i do want to turn into a stand for the proposition that even in the rehab act or the title seven context that somebody's standing and plaintiff's position which is a contingent offer to be a completely different type of employee so here and there are  there are a number of just record cases that we said in our brief that have concluded that where what we're talking about is a district supervisor position that's different than the c s o positions because the district supervisor position under the terms of the contract quite clearly walden's representative to the marshals regardless of what one district court thought about whether other types of employees who are not specifically identified as walden's point of contact and that same contract term personnel decisions on behalf of walton not the u s marshals those types of employees certainly are not are not the marshals employees for purposes of inferring liability and again just to bring us back to the context here congress has not only not unequivocally waived at sovereign immunity with respect to whistleblower retaliation claims but has in fact but quite hard about them and set up two different statutory schemes they create different types of liability so this court just need not reach that other question here but again we do think that there are multiple distinctions there just as we be concerned that the they that they could blackballed people that make whistleblower claims from future be tarmon employee went as c s so that is very valuable to many former employees of all kinds of but i'm not making enough even for sort of talking about no no no your honor of course not but even once we're sort of talking about the begins claims where he's making specific allegations i think they're actually really highlights exactly why is it just will court concluded there with respect to individual liability even the complaint doesn't satisfy what one has to do even if the allegations stage so here yes plaintiff identified one person chief deputy kelly at the u s marshal service and this is based on his own complaint one person at the u s marshal service who he says which carried it against him he then says he brought a number of complaints about that person to the u s marshals and that the u s marshals in fact concluded  sided with him in every one of those complaints after that not only was he not fired from the u s marshals but according to his own complaint he was actually promoted and after he retired from the marshals again according to the allegations of his own complaint other district court had lacked subject matter jurisdiction over the claims he actually brought and i just want to bring us back to that because regardless of whether or not the court might think in some other case there is some sort of lurking unfairness here that's not a reason to craft a new judicial remedy whether we're talking about crafting some sort of new breach of contract claim for which the united states have and hasn't waived its sovereign immunity whether we're talking about recognizing a new in a situation that is both markedly different from from circumstances that have been recognized before and would create and have as an conduit a legion of special factors counseling against recognizing that whether that's because it's actually a c d a contract and so contractors employees can actually sue under that contract he did i mean to the extent that he tries to raise a little talk or act claim now it's not even in his complaint again even if you had the opportunity to amend the complaint and the united states pointed out that jurisdictional defect he's a plaintiff has essentially conceded that he doesn't have a claim under the whistleblower statute under which he relied and so that leaves us with the defense claim and here we really think that that the court should a form from the dismissal against you know these two individuals who are being held under you know individual liability and and either under the ground that no new bid ends action should be recognized and their circumstance both because it's markedly different from davis v passman because here we're not talking about a federal employee we're talking about a contractor's employee and then also for the secondary reason which is something that seems to be arising in this court fairly frequently that the court has not yet will die because it's expressed at least in the st amendment context would probably be an appropriate for recognizing a new defense action which is that this involves claims of retaliation which has the supreme court recognized in crawford are easy to allege and hard to disprove and for precisely that reason it's you know also a special factor for wayne against finding a new business cause of action here and similarly you know the other factors as we've been discussing is that congress has thought long and hard about this and has repeatedly legislated in this area so just like the very fact that congress hasn't recognized a remedy against particular individuals is is yet another reason actually to not imply a new bit instrument here and then turning to the district court's rationale about these two individuals if the court were to like the district court  decide this on whether or not he's adequately pled a cause of action against the individuals he absolutely has not he's pled to facts against these particular individuals the st is that one individual didn't say terminate him one individual said please suspend his sort of current contingent litigate current contingent employment and the other person said he may not be the most qualified candidate now neither of those two statements come anywhere close to doing what it all he would have to do which is to plead that these individuals had some sort of mandatory constitutional duty to him that they didn't undergo and here that doesn't come close in particular you know for example comment that there may be a more qualified individual just looking at the record appears to be true the contract requires that district supervisors have at least five years of supervisory experience at that contract being attached to the complaint which is why i'm talking about it here and based on the allegations in his own complaint he actually had three years of supervisory experience so it certainly  any indication of some sort of incoherent animus by of those two individuals against plaintive and plaintive you know can't use a begins to try and get sort of far ranging discovery to say i have no that would turn  their head to say that i have no idea i just have a suspicion that somewhere out there somewhere in the marshal service doesn't like me despite the fact that you know the chronology would suggest exactly the opposite which is that all those claims  resolved against him according to his complaint he was also promoted he was approached by other marshals employees about this job and to and to say you know i get to go on a fishing expedition against the government to see whether somewhere some someone d and will employment and not intended as employment contracts it also says that it is contingent upon approval from the u s marshal service as well d and so those are another judging or two questions many times throughout this case what are we doing in this case because i've listened to the argument of course of the pro donal so we d don't take issue with walt and yet here we are as far as the contract these these jobs it's a great question there are primarily the security services business that's what date what they gave they provide security to several united states courts of appeals up i suppose theoretically there are some degas none whatsoever so all of that to say the waltons perspective we didn't gauge the full discovery we fully braced for the district court i've not heard anything in mr goggles argument to suggests that we should have to remain in this actually only half of the contraire but even if it did there we can we can construe there in an in a ball club leeway which i think is contrary to what the state or provides that there are other revisions in that section that clearly delineate the fact that the district supervisor acts under the direction provision in control of the contracting officer which is the marshall of so why is walden s opportunity to take a deposition written questions of an individual and it a position according to all motions services limitations or offering them on the deposition was limited to the communications that