Robertson v. Intratek Computer, Inc. et al

Filing 84

REPORT AND RECOMMENDATION re 68 Motion for Partial Substitution filed by United States of America. Signed by Judge Dustin M. Howell. (jv2)

Case 1:18-cv-00373-ADA Document 84 Filed 06/19/23 Page 1 of 16

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JAMES W. ROBERTSON SR. and
ROBERTSON TECHNOLOGIES,
INC.,
Plaintiffs
v.
INTRATEK COMPUTER, INC.,
ALLAN FAHAMI, ROGER HAYES
RININGER, UNITED STATES OF
AMERICA,
Defendants

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No. 1:18-CV-00373-ADA

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE ALAN D. ALBRIGHT
UNITED STATES DISTRICT JUDGE
Before the Court is the United States’ Motion for Partial Substitution, Dkt. 68,

and all related briefing. This case was referred to the undersigned for report and
recommendation.
I.

BACKGROUND

The following facts are gleaned from Plaintiffs James W. Robertson, Sr., and
Robertson Technologies, Inc.’s Second Amended Complaint. Dkt. 51. While Robertson
was employed at Intratek Computer, Inc., he alleges he observed illegal behavior,
including president and CEO of the company, Allan Fahami, bribing Department of
Veterans Affairs officials. He also asserts that he witnessed Fahami unlawfully
obtain and use non-public information to gain an advantage for Intratek and

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Intratek’s business partners in competing for contracts with the VA. Robertson
alleges that Fahami asked Robertson to violate non-disclosure and trade secret
agreements with Intratek competitors to get a competitive advantage, and when he
refused to violate the law and spoke up against Fahami’s behavior, Robertson was
fired. On October 7, 2015, Robertson reported what he witnessed and how he was
fired to the Office of the Inspector General for Veterans Affairs, who investigated his
claims. On September 26, 2019, the VA OIG investigation substantiated Robertson’s
claims.
Robertson alleges that after firing Robertson and after his report to the VA
OIG, Defendants Fahami, Intratek and VA Official Roger Rininger, tried to sabotage
Robertson’s livelihood and reputation, and his company, Robertson Technologies, Inc.
(Robertsontek). Robertson asserts that Defendants, including Rininger, told current
and potential business partners Robertson was unstable, incompetent, not to be
trusted, and that contracting with Robertsontek could jeopardize those companies’
business with the government. Robertson further asserts that Defendants, including
Rininger, caused contracts between Robertsontek and other companies to be
cancelled and Robertsontek’s business relationships to sour. Plaintiffs maintain that
the alleged interference with contracts and potential business relationships has cost
Robertson and Robertsontek millions of dollars.
The District Court entered an Order finding that the parties were subject to
an arbitration agreement and dismissed the case. On appeal, the Fifth Circuit
affirmed in part and reversed in part, finding that all parties except Rininger were

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subject to the arbitration agreement. Dkt. 40. The United States now moves to
substitute itself for Rininger for certain claims raised in the Second Amended
Complaint. Plaintiffs bring various claims against Rininger for: tortious interference
with prospective business relationships; and tortious interference with existing
contracts. Dkt. 51.
II.

DISCUSSION

The United States argues that pursuant to the Westfall Act, codified at 28
U.S.C. § 2679, the United States should be substituted for Defendant Rininger with
respect to the claims, or portions of claims, that concern Defendant Rininger’s conduct
within the VA. The United States clarifies that:
This proposed substitution does not cover the alleged conduct occurring
outside the Department of Veterans Affairs, to include the acceptance of
gifts and other items of value or statements made to individuals outside
the Department regarding Plaintiffs, as well as any conduct alleged to
have taken place after Rininger ceased employment with the
Department of Veterans Affairs.
Dkt. 68 at 2-3. The United States identifies these claims or portions of claims from
the Second Amended Complaint as:
●

Defendants Allan Fahami and Intratek “worked hard to wine and
dine VA employees,” including Defendant Rininger, to influence
contracts awarded by the National Service Desk. Dkt. 51, at
¶¶ 33-40.

●

As a Service Line Manager, Rininger was “important and could
influence the provision of contracts because he supplied the
language used in the bid contracts.” Id. at ¶ 40.

●

That as a result of Fahami and Intratek’s bribery campaign,
Rininger defamed Plaintiffs, misrepresented their competence,
interfered with Plaintiffs’ contracts and prospective contracts by
influencing contract bid requirements, and caused the National
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Service Desk to attempt to cancel general contracts affecting
Plaintiffs, the subcontractor. Id. at ¶¶ 58-60.
Based on these allegations, Plaintiffs assert claims against Defendant Rininger for
tortious interference with existing contracts and prospective contracts and business
relations. Id. at ¶¶ 72-95. The United States’ requested certification does not cover
conduct alleged in Paragraphs 42 and 60.
The Westfall Act provides that, “The Attorney General shall defend any civil
action or proceeding brought in any court against any employee of the Government
or his estate for any such damage or injury.” 28 U.S.C.A. § 2679(c). It further provides
that:
Upon certification by the Attorney General that the defendant employee
was acting within the scope of his office or employment at the time of
the incident out of which the claim arose, any civil action or proceeding
commenced upon such claim in a United States district court shall be
deemed an action against the United States under the provisions of this
title and all references thereto, and the United States shall be
substituted as the party defendant.
28 U.S.C.A. § 2679(d)(1). The Westfall Act also makes provisions for when, as here,
the Attorney General does not certify that the defendant employee was acting within
the scope of his office or employment at the time of the incident out of which the claim
arose stating:
[t]he employee may at any time before trial petition the court to find and
certify that the employee was acting within the scope of his office or
employment. Upon such certification by the court, such action or
proceeding shall be deemed to be an action or proceeding brought
against the United States under the provisions of this title and all
references thereto, and the United States shall be substituted as the
party defendant.

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28 U.S.C.A. § 2679(d)(3). Plaintiffs oppose this certification and substitution.
Rininger also opposes the substitution, arguing it should be for all claims against
him.
A.

Substitution of United States for Certified Claims

“[T]he Westfall Act accords federal employees absolute immunity from
common-law tort claims arising out of acts they undertake in the course of their
official duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007). “Upon the Attorney
General’s certification, the tort suit automatically converts to an FTCA ‘action
against the United States’ in federal court; the Government becomes the sole party
defendant; and the FTCA’s requirements, exceptions, and defenses apply to the suit.”
Harbury v. Hayden, 522 F.3d 413, 416 (D.C. Cir. 2008) (quoting 28 U.S.C.
§ 2679(d)(1)). Certification of scope of employment under the Westfall Act is subject
to judicial review, and whether a particular federal employee was or was not acting
within the scope of his employment is controlled by the law of the state in which the
negligent or wrongful conduct occurred. Garcia v. United States, 62 F.3d 126, 127 (5th
Cir. 1995).
All parties, other than Rininger, assert that Texas law applies. Rininger argues
that Michigan law applies as that was the place of his employment at the time of the
conduct in issue. No party to this cause of action has provided the undersigned with
Michigan law on the issue of “scope of employment” or any type of choice of law
analysis. As the United States and Plaintiffs apply Texas law, so does the
undersigned.

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In this case, the United States seeks to certify that, at the time of the incidents
giving rise to the claims outlined above, Rininger “was acting within the scope of his
employment with the United States at the time of the conduct alleged to have
occurred within the Department of Veteran Affairs.” Dkt. 68-1. This certification is
signed by Mary Kruger, Chief for the Civil Division of the Office of the United States
Attorney for the Western District of Texas. Id. (citing Dkt. 51 ¶¶ 40, 58, 59, 73, 8092, 85, 92-95). The Attorney General has delegated the authority to make this
Westfall Act certification to, among others, “[t]he United States Attorney for the
district where the civil action or proceeding is brought[.]” 28 C.F.R. § 15.4(a). Ms.
Kruger therefore is a proper individual to provide the Westfall Act certification.
Plaintiffs object to the certification and substitution of the United States for
Rininger as the proper defendant for any portions of Plaintiffs’ claims, arguing that
under Fifth Circuit and Texas law, peddling influence and advancing the interests of
certain contractors in exchange for bribes was not within the scope of Rininger’s
employment with the VA. Dkt. 77, at 2-7 (citing Gil Ramirez Grp., LLC v. Houston
Indep. Sch. Dist., 786 F.3d 400, 415-16 (5th Cir. 2015) (GRG 1); Gil Ramirez Grp.,
LLC v. Houston Indep. Sch. Dist., No. 4:10-cv-04872, 2017 WL 3236110 at *6-7 (S.D.
Tex. July 31, 2017) (GRG 2); Gil Ramirez Grp., LLC v. Marshall, 765 F. App’x 970,
976 (5th Cir. 2019) (GRG 3)). Plaintiffs also argue in a footnote that Rininger’s
conduct might be outside the scope of his employment as “ultra vires” acts and thus
not subject to sovereign immunity. Dkt. 77 at 5 n.1.

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The United States contends that the following is within the scope of Rininger’s
employment:
the portions of these claims that pertain to Defendant Rininger’s alleged
conduct within the Department of Veterans Affairs, including
contributing language used in bid contracts and internally commenting
on the competence of contractors…
Dkt. 68, at 4-5. Plaintiffs argue that because some of Rininger’s behavior includes
allegations of improperly accepting gifts, none of his behavior qualifies as within the
scope of his employment.
In GRG 1, the Fifth Circuit addressed whether a former elected Houston
Independent School District trustee could invoke state sovereign immunity principles
against state law claims of tortious interference with business relationships. The
trustee, an administrator at HISD until he was elected trustee:
masterminded questionable business arrangements in which he served
as a paid consultant for several organizations that did business with the
District. When the District explicitly prohibited that conduct, those
companies hired Marshall's business associate Joyce Moss Clay whose
company began paying Marshall a share of its consulting fees.
786 F.3d at 404-05.
In finding that the trustee was not entitled to immunity under the Texas Torts
Claims Act or the Education Code, the court found that the trustee was not an HISD
“employee” under the Texas Torts Claims Act. Id. at 416 (quoting Tex. Civ. Prac. &
Rem. Code § 101.001(2)). The court found that “an elected school board trustee, was
neither in HISD’s paid service nor did the District have any right to control him. He
is not an employee under the TTCA.” Id.

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The court then addressed the Texas Education Code provision limiting
personal liability “for any act that is incident to or within the scope of the duties of
the employee’s position of employment and that involves the exercise of judgment or
discretion on the part of the employee” and found that the trustee was not acting
“within the scope of his duties.” Tex. Educ. Code § 22.0511; GRG 1, 786 F.3d at 417.
The court found that “bribery and peddling influence are not within the scope of a
trustee’s duty. He was allegedly defiling his position and wholly outside the
legitimate scope of a trustee’s duties if he accepted bribes in exchange for advancing
the interests of certain contractors.” GRG 1, 786 F.3d at 417. The court dismissed the
trustee’s “rationalization that getting involved with contracting and procurement
decisions is ‘minimally’ within the scope of his duties, particularly when he served as
HISD Board President in 2009” in light of evidence of the “pay-to-play scheme.” Id.
Subsequent authority from the Texas Supreme Court and the Fifth Circuit
Court clarifies Texas law on this issue. The Texas Supreme Court has held that the
scope of employment analysis does not encompass allegations of an employee’s
subjective motivations; rather, the analysis looks only to whether the allegedly
tortious act falls within the employee’s duties. Laverie v. Wetherbe, 517 S.W.3d 748,
753

(Tex.

2017)

(“The

scope-of-employment

analysis,

therefore,

remains

fundamentally objective: Is there a connection between the employee’s job duties and
the alleged tortious conduct? The answer may be yes even if the employee performs
negligently or is motivated by ulterior motives on personal animus so long as the
conduct itself was pursuant to her job responsibilities.”); Univ. of Tex. Health Sci. Ctr.

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at Houston v. Rios, 542 S.W.3d 530, 535-36 (Tex. 2017) (applying Laverie to
defamation claim and reversing trial court’s denial of dismissal even though plaintiffs
alleged the employee acted with bad intentions). The Fifth Circuit has also applied
Laverie to a tortious interference claim and held that the TTCA requires dismissal
when the allegedly tortious conduct occurred in connection with the defendant’s job
duties. Wilkerson v. Univ. of N. Tex., 878 F.3d 147, 158-62 (5th Cir. 2017).
Plaintiffs assert that Laverie is distinguishable from this case and rely on the
District Court’s reasoning in Gil Ramirez Group on remand and after trial. GRG 2,
2017 WL 3236110, at *6-7. On remand, the defendant trustee argued that because
the jury found his vote on the award of the subject contracts an “official act” that
deemed all his behavior related to the scheme within the scope of his employment.
The court rejected his argument and distinguished Laverie, stating:
unlike in Laverie, Mr. Marshall’s conduct in question is not exclusively
his vote—one of the possible “official actions” found by the jury—but also
his other actions in the alleged pay-to-play scheme. In contrast, the
Laverie plaintiff based his defamation claim solely on Ms. Laverie’s
statements about him as a job applicant. The Texas Supreme Court held
that Ms. Laverie’s job duties as senior associate dean and member of
university job search committee included sharing her knowledge about
the plaintiff. Ms. Laverie’s personal motivations for providing
unfavorable information were irrelevant to the determination of
whether or not she performed her duties. Her statements, even if
defamatory, were made entirely as part of her role on the university’s
search committee. Even more importantly, Ms. Laverie was not on the
receiving end of a bribe, an act that would fall beyond the scope of her
duties.
Id., at *6-7.
The undersigned agrees with Plaintiffs that the reasoning laid out above is not
controlling of the outcome in this case. Gil Ramirez Group does not stand for the
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proposition that an illegal act, such as a bribe, can never be within the scope of
employment, and, moreover, the facts distinguish that case from this one. Unlike the
defendant trustee in Gil Ramirez Group, the United States does not assert that
Rininger is entitled to scope of employment immunity for all of the claims against
Rininger—just those that, as in Laverie, are within the scope of Rininger’s duties at
the VA, regardless of whether he carried out those duties in an improper manner.
See, e.g., McFadden v. Olesky, 517 S.W.3d 287, 297-98 (Tex. App.—Austin 2017, pet.
denied) (police officers acted within scope of employment when preparing arrest
affidavit, even if information supplied was false); Rosencrans v. Altschuler, 161
S.W.3d 517, 521 (Tex. App.—Eastland 2004) (holding tortious act of silencing
colleague by holding hand over mouth during meeting was incident to or within scope
of duties as a school district employee and immunity applied). No case cited by
Plaintiffs stands for the asserted proposition that if some claims are outside of the
scope of employment (such as allegations that Rininger improperly accepted trips
from contractors or defamed Robertson or Robertsontek), then all claims must be
found to be outside the scope.
Under Texas law, the critical inquiry is whether, when viewed objectively, “a
connection [exists] between the employee’s job duties and the alleged tortious
conduct.” Garza v. Harrison, 574 S.W.3d 389, 401 (Tex. 2019) (citing City of Lancaster
v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994)). “Simply stated, a governmental
employee is discharging generally assigned job duties if the employee was doing his
job at the time of the alleged tort.” Id. “The employee’s state of mind, motives, and

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competency are irrelevant so long as the conduct itself was pursuant to the employee’s
job responsibilities.” Id. The United States states, “the proposed substitution does not
cover alleged conduct occurring outside the Department of Veterans Affairs, to
include the acceptance of gifts and other items of value or statements made to
individuals outside the Department regarding Plaintiffs, as well as any conduct
alleged to have taken place after Rininger ceased employment with the Department
of Veterans Affairs.” Dkt. 68, at 3. Applying this inquiry, the undersigned finds that
Rininger’s actions certified by the United States are within the scope of his job duties,
while those outside the scope of his employment—as they could not be in furtherance
of VA business to go on vacations with contractors or to defame contractors to outside
contractors—are properly carved out.
Accordingly, the undersigned finds that substitution of the United States is
proper for the portion of Plaintiffs’ claims against Rininger identified by the United
States as within the scope of his employment. See Bolton v. United States, 946 F.3d
256, 262 (5th Cir. 2019) (citing Smith v. Clinton, 886 F.3d 122, 126 (D.C. Cir. 2018)
(per curiam)) (allowing for partial substitution of the United States and stating
“[e]xtensive precedent makes clear that alleging a federal employee violated policy or
even laws in the course of her employment—including specific allegations of
defamation or of potentially criminal activities—does not take that conduct outside
the scope of employment”).
Plaintiffs also argue that under the “ultra vires” doctrine, Rininger’s conduct
may be outside the scope of his employment. Dkt. 77, at 5 n.1. Even assuming this

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state-law doctrine—which permits official-capacity claims for injunctive and
declaratory relief to be brought against state officials who act in violation of state law,
in spite of the State’s sovereign immunity—is applicable in the context of a suit
against a federal employee, the argument fails. An ultra vires claim may not be
brought against a government official in his individual capacity, but “must be brought
against a government officer in his or her official capacity,” which is the equivalent
of directly suing the employing entity. State v. Hollins, 620 S.W.3d 400, 405 n.20 (Tex.
2020). Additionally, money damages, requested here, are not available in an ultra
vires action, only declaratory and injunctive relief. Id. The ultra vires doctrine is
inapplicable and fails to negate the substitution of the United States for the identified
portion of Plaintiffs’ claims.
Accordingly, the undersigned recommends that the District Court find that
Plaintiffs’ First, Second, Third, and Fourth causes of action for tortious interference
“shall be deemed [as] against the United States,” and “the United States shall be
substituted as the party defendant” for Defendant Rininger as to the portions of these
claims that pertain to Defendant Rininger’s alleged conduct within the Department
of Veterans Affairs, as covered by the certification. 28 U.S.C. § 2679(d)(1). This would
specifically include Plaintiffs’ claims involving Rininger contributing language used
in bid contracts and internally commenting on the competence of contractors.
B.

Rininger’s Motion for Complete Substitution of the United
States for All Claims Against Him

Rininger, in turn, asserts that the United States should be substituted as the
defendant in his place for all claims brought against him in this cause of action and
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that he should be terminated from this case. Dkt. 76. He argues that all Plaintiffs’
claims fall within the scope of his federal employment and are subject to the
substitution requirements of the Westfall Act. Id. at 2.
If the Attorney General refuses to certify an employee defendant under the
Westfall Act, “the employee may at any time before trial petition the court to find and
certify that the employee was acting within the scope of his office or employment.” 28
U.S.C. § 2679(d)(3). The Westfall Act’s certification process and mode of judicial
review when certification is refused is intended to spare federal employees from “‘the
burden of defending a suit ….’” Osborn, 549 U.S. at 239 (quoting Mitchell v. Carlson,
896 F.2d 128, 133 (5th Cir. 1990) (overruled on other grounds)).
The claims that the United States has identified as outside the scope of
Rininger’s employment are as follows:
42. On at least one occasion, Fahimi paid for Rininger to travel to Las
Vegas for fun. On at least one other occasion, Fahimi traveled with
Rininger to Chile. Based on information and belief, Fahimi paid all of
Rininger’s expenses for that trip to Chile.
60. Since at least May 7, 2016, Fahimi, Inatrek, and Rininger have also
interfered with Robertson and Robertsontek’s agreements and potential
teaming agreements with Lockheed Martin, Leidos, Systems Made
Simple, CSRA, ProSphere, and others by repeatedly misrepresenting
and defaming Robertson, Robertsontek, and Robertsontek’s abilities.
Their actions actively prevent Robertsontek from being able to make
contracts and business deals with these companies.
Dkt. 51.
Rininger makes various arguments as to why the United States should be
substituted for all claims against him. Dkt. 76, at 6. But again, the heart of the issue

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is whether Riniger was acting within the scope of his duties when engaging in the
behavior alleged above. The undersigned finds he was not.
As the Texas Supreme Court explained:
An employer is liable for its employee’s tort only when the tortious act
falls within the scope of the employee’s general authority in furtherance
of the employer’s business and for the accomplishment of the object for
which the employee was hired. The employee’s acts must be of the same
general nature as the conduct authorized or incidental to the conduct
authorized to be within the scope of employment. Accordingly, if an
employee deviates from the performance of his duties for his own
purposes, the employer is not responsible for what occurs during that
deviation.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007); see also Ifone
Neda Internet Serv. v. Army & Air Force Exch. Serv., No. 4:21-CV-330, 2022 WL
16577305, at *9 (S.D. Tex. Nov. 1, 2022) (citing same). Texas law recognizes that
employees may act within the scope of their employment even when their actions are
unauthorized or wrongful. Bank of Tex., N.A. v. Glenny, 405 S.W.3d 310, 317 (Tex.
App.—Dallas 2013, no pet.). But when “an employee deviates from the performance
of [their] duties for [their] own purposes, the employer is not responsible for what
occurs during the deviation.” Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573,
578 (Tex. 2002). 1
Taking the above law into account, the undersigned finds that Rininger’s
acceptance of paid trips from contractors could have in no way been for the VA’s
benefit as Rininger’s employer or in an effort to accomplish the VA’s objective and

To establish employer liability for defamation in Texas, “the defamatory statement must be
(1) referable to a duty owed by the employee to the employer and (2) made while the employee
is in the process of discharging that duty.” Rodriguez v. Sarabyn, 129 F.3d 760, 769 (5th Cir.
1997).
1

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therefore was not within the scope of his employment. He was not doing his job while
on those trips. Additionally, Rininger’s actions in allegedly misrepresenting and
defaming Robertson and Robertsontek to other outside contractors in retaliation for
Robertson’s complaints against Inatrek were also outside the scope of Rininger’s
employment within the VA, as this activity was not alleged to be in furtherance of his
actual job duties, nor was it any way carried out to benefit the VA. See Minyard, 80
S.W.3d at 577.
These incidents were properly outside the scope of Rininger’s employment and
therefore the decision not to certify them pursuant to 28 U.S.C. § 2679(d)(4) was
proper.

In

accordance

III.

RECOMMENDATION

with

the

foregoing

discussion,

the

undersigned

RECOMMENDS that the District Court GRANT the United States’ Motion for
Partial Substitution, Dkt. 68. The referral to the undersigned is CANCELED.
IV.

WARNINGS

The parties may file objections to this Report and Recommendation. A party
filing objections must specifically identify those findings or recommendations to
which objections are being made. The District Court need not consider frivolous,
conclusive, or general objections. See Battle v. United States Parole Comm’n, 834 F.2d
419, 421 (5th Cir. 1987). A party’s failure to file written objections to the proposed
findings and recommendations contained in this Report within fourteen days after
the party is served with a copy of the Report shall bar that party from de novo review

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by the District Court of the proposed findings and recommendations in the Report
and, except upon grounds of plain error, shall bar the party from appellate review of
unobjected-to proposed factual findings and legal conclusions accepted by the District
Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985);
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED June 19, 2023.

DUSTIN M. HOWELL
UNITED STATES MAGISTRATE JUDGE

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