Appellant's Brief

Case: 19-50792 Document: 00515189942 Page: 1 Date Filed: 11/06/2019
No. 19-50792
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
JAMES W. ROBERTSON, SR.,

Plaintiff-Appellant
ROBERTSON TECHNOLOGIES, INCORPORATED

Appellant
-v-
INTRATEK COMPUTER, INCORPORATED; ALLAN FAHAMI;

ROGER HAYES RININGER,
Defendants-Appellees
Appeal from the United States District Court

for the Western District of Texas, No. 1:18-cv-373
INITIAL BRIEF OF APPELLANT
Colin Walsh Austin Campbell

Texas Bar No. 24079538 Texas Bar No. 24103768
Board Certified in Labor and
Employment Law by the Texas
Board of Legal Specialization
WILEY WALSH, P.C. ROB WILEY, P.C.

1011 San Jacinto Blvd, Ste 401 2613 Thomas Ave.
Austin, TX 78701 Dallas, TX 75204
Telephone: (512) 271-5527 Telephone: (214) 528-6500
Facsimile: (512) 201-1263 Facsimile: (214) 528-6511
ATTORNEYS FOR APPELLANT

CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed
persons and entities as described in the fourth sentence of Rule 28.2.1
have an interest in the outcome of this case. These representations are
made in order that the judges of this Court may evaluate possible
disqualification or recusal:
James W. Robertson, Sr. – Plaintiff/Appellant
Robertson Technologies, Inc. – Appellant
Colin Walsh – Counsel for Plaintiff/Appellants
Austin Campbell – Counsel for Plaintiff/Appellants
Robert J. Wiley – Counsel for Plaintiff/Appellants
Wiley Walsh, P.C. – Counsel for Plaintiff/Appellants
Rob Wiley, P.C. – Counsel for Plaintiff/Appellants
Intratek Computer, Inc. – Defendant/Appellee
Allan Fahami – Defendant/Appellee
Roger Hayes Rininger – Defendant/Appellee
Jason Crow– Counsel for Defendant/Appellee Rininger
Laura De Santos – Counsel for Defendants/Appellees Intratek &

Fahami
Lessie Gilstrap – Counsel for Defendants/Appellees Rininger
ii
Heidi Gumienny - Counsel for Defendants/Appellees Intratek &

Fahami
Stephen Van Stempvoort – Counsel for Defendant/Appellee

Rininger
Miller Johnson – Counsel for Defendant/Appellee Rininger
Gordon & Rees, LLP – Counsel for Defendants/Appellees Intratek

& Fahami
Fritz, Byrne, Head & Gilstrap, PLLC – Counsel for

Defendant/Appellee Rininger
/s/ Colin Walsh

Colin Walsh
Texas Bar No. 24079538
iii
REQUEST FOR ORAL ARGUMENT
Appellant requests oral argument on a matter of first impression in
the Courts of Appeal of any Circuit:
Does 41 U.S.C. § 4712(c)(7) prohibit enforcement of

employee arbitration agreements that are required as
a condition of employment?
That section states, “[t]he rights and remedies provided for in this section
may not be waived by any agreement, policy, form, or condition of employment.”
41 U.S.C. § 4712(c)(7). The rights and remedies listed explicitly include
a federal jury trial for a whistleblower claim under that statute. Id. at
(c)(2). The legislative history confirms Congress intended subsection
(c)(7)’s prohibition to include mandatory arbitration agreements. See
e.g., Engrossed Amendment Senate Text, § 844A, Dec. 12, 2012, available
at https://www.congress.gov/bill/112th-congress/house-bill/4310/text/eas.
Intratek required Robertson to sign an arbitration agreement as a
condition of employment. Despite the statute, the District Court
compelled arbitration of Robertson’s 41 U.S.C. § 4712 claim because of a
policy favoring arbitration. ROA.230. However, “courts aren’t free to
rewrite clear statutes under the banner of our own policy concerns,” Azar
v. Allina Health Servs., 139 S. Ct. 1804, 1815 (2019) (Gorsuch, J.).
iv
TABLE OF CONTENTS
Certificate of Interested Persons ............................................................... ii
Request for Oral Argument....................................................................... iv
Table of Authorities ................................................................................... ix
Jurisdictional Statement............................................................................ 1
Issues Presented ......................................................................................... 2
Statement of the Case ................................................................................ 5
A. Robertson started working for Intratek Computer in 2011. ........ 5
B. The plain language of the Intratek Arbitration Agreement does

not cover claims regarding termination of employment. ............. 6
C. Intratek’s CEO obtained early non-public information relating to

VA contracts. .................................................................................. 7
D. Fahami and Intratek bribed officials at the VA in order to receive

favorable consideration for contracts. ........................................... 7
E. Fahami and Intratek asked Robertson to engage in unlawful

conduct and he refused. ................................................................. 9
F. Intratek terminated Robertson for telling Fahami that the bribes

were illegal and refusing to engage in illegal behavior himself. 10
G. Robertson reported the bribes and unlawful conduct to the Office

of the Inspector General............................................................... 11
H. After Intratek fired Robertson, Intratek, Fahami, and Rininger, a

VA employee, engaged in a campaign of tortious interference with
Robertson and Robertson Technologies’ contracts and potential
contracts........................................................................................ 11
v
I. On May 3, 2018, Robertson filed suit under seal. ...................... 12
J. In September 2018, Intratek and Fahami moved to stay the case

and compel arbitration. ................................................................ 12
K. This appeal was timely filed after the District Court compelled
arbitration and dismissed all claims against all defendants,
including Rininger, who was not a party to any arbitration
agreement. .................................................................................... 14
Summary of the Argument ...................................................................... 15
Standard of Review .................................................................................. 19
I. The standard of review for an order compelling arbitration is de

novo. ................................................................................................. 19
II. The standard of review for denial of a motion to amend is abuse of

discretion. ........................................................................................ 20
Argument .................................................................................................. 21
I. Under Supreme Court and Fifth Circuit precedent, the District

Court erred by compelling arbitration because it rewrote the plain
text of the federal whistleblower statute and the statute’s
legislative history, which both clearly prohibit enforcement of
arbitration agreements that required as conditions of employment.
.......................................................................................................... 21
A. The whistleblower retaliation statute at 41 U.S.C. § 4712(c)

expressly prohibits employers from requiring employees to waive
any rights and remedies under the statute as a condition of
employment. ................................................................................. 22
vi
B. The District Court erred by rejecting the plain text of the statute
and finding Robertson waived the right and remedy of a federal
jury trial. Defendants admit that the agreement at issue was a
mandatory condition of employment, which makes any purported
waiver invalid under 41 U.S.C. § 4712(c)(7). .............................. 23
C. The legislative history conclusively shows that Congress intends

§ 4712(c)(7) to prohibit arbitration agreements that are
mandatory conditions of employment. ........................................ 24
D. The cases cited by the District Court and Magistrate Court are
distinguishable and inapposite because they involve statutes
where Congress has expressly encouraged arbitration, lack
nonwaiver language, or contain other indicia that mandatory
arbitration is permissible, which is not the case with § 4712. ... 28
II. The District Court erred by ignoring the plain language of the
arbitration agreement and compelling arbitration for wrongful
discharge claims and post-employment independent torts. Neither
cause of action is covered by the plain text of the arbitration
agreement. ....................................................................................... 34
A. Under the plain language of the Intratek arbitration agreement,

wrongful termination claims are not covered and a court may not
rewrite the contract to include them. .......................................... 35
B. The plain text of Intratek’s arbitration agreement also does not

cover former employees or their lawsuits regarding independent,
non-employment related torts. .................................................... 39
C. The conduct constituting tortious interference occurred after the

employment relationship ended and has nothing to do with
Robertson’s prior employment. .................................................... 40
vii
D. The cases cited by Appellees and the Magistrate Court, which

were adopted by the District Court are distinguishable and
inapposite because they all involve tortious interference claims
that directly and clearly relate to the plaintiff’s employment,
which is not the case here. ........................................................... 42
III. The District Court’s order compelling Robertson to arbitrate his

individual claims against a party who admits he is not subject to or
bound by any arbitration agreement must be reversed. ............... 46
IV. The District Court’s order to dismiss Robertson’s claims is contrary

to Fifth Circuit and Western District case law because not all of
Plaintiff’s claims are subject to arbitration and dismissal could
result in them being time-barred. .................................................. 49
A. Because not all claims are arbitrable, if arbitration is compelled,

dismissal is inappropriate under Fifth Circuit and Western
District case law. .......................................................................... 50
B. If arbitration is compelled, a stay rather than dismissal is

appropriate because an arbitrator could find some claims not
arbitrable, or Appellees may not fully participate in arbitration,
which would return the case to the District Court. .................... 52
C. If arbitration is compelled, dismissal is inappropriate because it

would serve to time-bar all of Robertson’s claims. ..................... 53
V. Finally, the District Court abused its discretion by refusing to allow

Robertson to amend his complaint to add a necessary party. ...... 54
Conclusion ................................................................................................. 59
Certificate of Service ................................................................................ 61
Certificate of Compliance ......................................................................... 61
viii
TABLE OF AUTHORITIES
Cases
14 Penn Plaza, LLC v. Pyett,
556 U.S. 247 (2009) ............................................................................... 32
Alford v. Dean Witter Reynolds, Inc.,

975 F.2d 1161 (5th Cir. 1992) ......................................................... 50, 51
Archer and White Sales, Inc. v. Henry Schein, Inc.,

935 F.3d 274 (5th Cir. 2019) ............................. 35, 36, 38, 39, 41, 42, 46
Azar v. Allina Health Servs.,

139 S. Ct. 1804 (2019) .................................................... iv, 21, 27, 29, 33
Bayoil, S.A. v. Polembros Ship. Ltd.,

196 F.R.D. 479 (S.D. Tex. 2000)............................................................ 48
Boeing Co. v. Shipman,

411 F.2d 365 (5th Cir. 1969) ................................................................. 22
Boeve v. Insuraprise, Inc.,

No. 16-1248-C26 (26th Dist. Williamson Cnty) ................................... 53
Bridas S.A.P.I.C. v. Govt. of Turkmenistan,

345 F.3d 347 (5th Cir. 2003) ................................................................. 47
Colt Unconventional Res., LLC v. Resolute Energy Corp.,

3:13-cv-1324-K, 2013 WL 3789896 (N.D. Tex. July 19, 2013)............. 45
CompuCredit Corp. v. Greenwood,

565 U.S. 95 (2012) ........................................................................... 28, 29
Crawford Prof. Drugs, Inc. v. CVS Caremark Corp.,

748 F.3d 249 (5th Cir. 2014) ................................................................. 19
Dussouy v. Gulf Coast Inv. Corp.,

660 F.3d 594 (5th Cir. 1981) ............................................... 20, 21, 56, 58
ix
E.E.O.C. v. Waffle House, Inc.,

534 U.S. 279 (2002) ............................................................. 34, 36, 46, 52
Foman v. Davis,
371 U.S. 178 (1962) ............................................................................... 20
Gautreaux v. Scurlock Marine,

107 F.3d 331 (5th Cir.1997) .................................................................. 22
Gilmer v. Interstate/Johnson Lane Corp.,

500 U.S. 20 (1991) ................................................................................. 31
Goldstein v. MCI WorldCom,

340 F.3d 238 (5th Cir. 2003) ................................................................. 58
Harmon v. CB Squared Srvcs Inc.,

624 F.Supp.2d 459 (E.D. Va. 2009)....................................................... 33
Hawthorne Land Co. v. Occidental Chem. Corp.,

431 F.3d 221 (5th Cir. 2005) ................................................................. 54
Hays v. HCA Holdings, Inc.,

838 F.3d 605 (5th Cir. 2016) ........................................................... 42, 43
Helms v. Speartex Grain Co.,

983 F.2d 232 (5th Cir. 1993) ................................................................. 54
Hensgens v. Deere & Co.,

833 F.2d 1179 (5th Cir. 1987) ............................................................... 54
Howard v. Canadian National/Illinois Cent. R.R.,

233 Fed. Appx. 356 (5th Cir. 2007) ....................................................... 22
Lowrey v. Texas A & M Univ. Sys.,

117 F.3d 242 (5th Cir. 1997) ................................................................. 20
Mayeux v. La. Health Serv. & Indem. Co.,

376 F.3d 420 (5th Cir.2004) .................................................................. 57
x
P&P Indus., Inc. v. Sutter Corp., 179 F.3d 861 (10th Cir. 1999) ........... 44
Paper, Allied-Indus., Chem. and Energy Workers Intern. Union Loc. No.
4-2001 v. ExxonMobil Refining & Supply Co.,
449 F.3d 616 (5th Cir. 2006) ........................................................... 19, 20
Prima Paint Corp. v. Flood & Conklin Mfg. Co.,

388 U.S. 395 (1967) ............................................................................... 34
Saari v. Smith Barney, Harris Upham & Co., Inc.,

968 F.2d 877 (9th Cir. 1992) ........................................................... 32, 33
Sam Reisfeld & Son Import Co. v. S. A. Eteco,

530 F.2d 679 (5th Cir. 1976) ................................................................. 48
Strong v. Univ. Healthcare Sys., LLC,

482 F.3d 802 (5th Cir. 2007) ................................................................. 41
Stross v. ZipRealty, Inc.,

No. A-13-CA-419-SS, 2013 WL 12080194
(W.D. Tex. Sept. 11, 2013) ............................................................... 51, 52
United Steelworkers of Am. v. Am. Mfg. Co.,

363 U.S. 564 (1960) ............................................................................... 20
United Steelworkers of Am. v. Warrior & Gulf Nav. Co.,

363 U.S. 574 (1960) ............................................................................... 34
Volt Info. Sci., Inc. v. Bd. Of Trustees of Leland Stanford Junior Univ.,
489 U.S. 468 (1989) ............................................................................... 34
Watkins v. Lujan,
922 F.3d 261 (5th Cir. 1991) ........................................................... 21, 55
Yates v. Manale,
341 F.3d 294 (5th Cir. 1965) ................................................................. 55
xi
Statutes
28 U.S.C. § 1291 ......................................................................................... 1
28 U.S.C. § 1331 ......................................................................................... 1
28 U.S.C. § 1332 ......................................................................................... 1
29 U.S.C. § 626 ......................................................................................... 30
41 U.S.C. § 4712 .............................. iv, 1, 15, 22, 23, 25, 28, 29, 31, 32, 33
9 U.S.C. § 3 ............................................................................................... 50
Other Authorities
Congresional Record, 158 Cong. Rec. S7834 (daily ed. Dec. 12, 2012) .. 15
Engrossed Amendment Senate Text, § 844A, Dec. 12, 2012 ............. iv, 25
Pub. L. 102–166, title I, § 118, Nov. 21, 1991, 105 Stat. 1081 ......... 27, 30
Rules
Fed. R. Civ. P. 15 ...................................................................................... 55
Fed. R. Civ. P. 19 ...................................................................................... 56

Regulations
48 C.F.R. § 3.908-6 ................................................................................... 22
xii
JURISDICTIONAL STATEMENT
The District Court had original subject matter jurisdiction over this
case under 28 U.S.C. § 1331 because Robertson brought claims under 41
U.S.C. § 4712. The District Court had original jurisdiction over the
tortious interference claims under 28 U.S.C. § 1332 because the parties
have complete diversity and the amount in controversy exceeds $75,000.
This Court has jurisdiction under 28 U.S.C. § 1291, being an appeal
from the District Court’s final dismissal of all claims. Final judgment
was entered on July 30, 2019. ROA.233. Notice of Appeal was timely
filed on August 21, 2019. ROA.234.
1
ISSUES PRESENTED
ISSUE ONE: 41 U.S.C. § 4712(c)(2) expressly provides whistleblowers
the right and remedy of a federal jury trial. 41 U.S.C. §
4712(c)(7) prohibits the waiver of that right and remedy
by any agreement required as a condition of
employment.
Under the plain language of the 41 U.S.C. § 4712(c)(7),
did the District Court err by compelling arbitration and
enforcing an arbitration agreement that expressly
waived Robertson’s right and remedy of a federal jury
trial as a condition of employment?
ISSUE TWO: Under Fifth Circuit precedent, a court may not add or
imply additional terms outside the text of an arbitration
agreement. The plain language of the arbitration
agreement Intratek required Robertson to sign as a
condition of employment does not include claims
involving termination of employment or post-
employment tortious interference claims.
2
Did the District err by adding or implying additional
terms not found in the plain language of the arbitration
agreement and then compelling arbitration of those
added or implied claims?
ISSUE THREE: Under Fifth Circuit and Supreme Court precedent,
arbitration is a matter of consent, not coercion. Parties
who have not agreed to arbitration of their claims may
not be compelled to arbitration. Here, Roger Rininger
admits that he cannot be bound by any arbitration
agreement that Robertson signed. Further, Roger
Rininger has neither answered the complaint in this
case nor moved to compel arbitration.
Did the District Court err by compelling two parties to
arbitration even though they never agreed to
arbitration?
ISSUE FOUR: Under Fifth Circuit precedent, a court may not compel
arbitration and dismiss a lawsuit unless all claims are
arbitrable. Here, because the claims between Rininger
3
and Robertson are not subject to any arbitration
agreement, not all claims are arbitrable.
Did the District Court err by compelling arbitration and
dismissing all claims against all parties when not all
claims and all parties have arbitrable causes of action?
ISSUE FIVE: Under Federal Rule of Civil Procedure 19 and caselaw
in this Circuit, a Court must grant leave to add a
necessary party unless it determines that the party is
not necessary, or that adding the party would destroy
jurisdiction. Here, the District Court did not make any
such finding, but denied the motion because the
proposed amendments would establish jurisdiction.
Did the District Court abuse its discretion by refusing to
grant leave to add a necessary party because that
necessary party would create jurisdiction?
4
STATEMENT OF THE CASE
This is an appeal of a District Court order compelling James W.
Robertson, Sr., to arbitration on all of his claims against all defendants
and dismissing his lawsuit. ROA.234. The facts detailed below are
largely taken from Robertson’s initial complaint and his proposed
amended complaint.
A. Robertson started working for Intratek Computer in

2011.
On July 11, 2011, Robertson began employment at Intratek
Computer, Inc., as a SharePoint Administrator/Developer and InfoPath
Developer/SME. ROA.10. Intratek provides IT services and staffing to
state, federal, and county governmental agencies, including the
Department of Veterans’ Affairs. ROA.9.
In fact, VA contracts were the reason Intratek hired Robertson.
Prior to joining Intratek, Robertson had extensive experience with the
VA contracting process through his work for Kforce, a competitor of
Intratek. ROA.9.
5
B. The plain language of the Intratek Arbitration

Agreement does not cover claims regarding termination
of employment.
At the time, Robertson was hired, Intratek required, as a
mandatory condition of employment, that he sign an arbitration
agreement. ROA.58 at ¶¶ 3-4. The agreement expressly attempted to
waive the right and remedy of a federal jury trial as a condition of
employment. ROA.58 at ¶¶ 3-4. Further, the arbitration agreement was
limited only to employees, and only those employees’ disputes that
related to employment. ROA.68 (limiting applicability to “any employee
and the Company . . . related to employment.”).
Under the plain language of the agreement, disputes “related to
employment” did not include termination of employment, retaliation, or
wrongful discharge claims. ROA.68. Specifically, the second paragraph
of the agreement details which disputes are covered, but conspicuously
does not list wrongful discharge, separation, or termination as covered
claims. ROA.68.
Similarly, the employee acknowledgment of the arbitration
agreement is limited only to “employment related controversies,” but, by
its own plain language, not discharge or termination. See ROA.65.
6
C. Intratek’s CEO obtained early non-public information

relating to VA contracts.
On at least one occasion, Intratek CEO Allan Fahami obtained a
draft Performance Work Statement for a VA contract. ROA.13. A PWS
details the work or services sought, the requirements for providing those
services, and how successful performance of the contract will be
measured. ROA.10. The issuance of a PWS by the government is usually
how the bidding process for a government contracts begins. ROA.10.
In addition to the PWS, Fahami also obtained pricing information
for that contract. ROA.13. Fahami then used this information to secure
a better deal with Lockheed Martin, who was going to be prime on the
particular contract that the VA was going to seek bids on. ROA.13. In
fact, Fahami informed Robertson that Lockheed Martin opened an entire
office in Los Angeles, CA, with the main purpose of providing Fahami a
place to pass on this non-public information to other sub-contractors of
Lockheed Martin. ROA.14.
D. Fahami and Intratek bribed officials at the VA in order to

receive favorable consideration for contracts.
The non-public information Fahami obtained for Intratek came
through unlawful efforts to curry favor with VA officials who worked for
7
the Enterprise Service Desk (ESD), which used to be called the National
Service Desk (NSD). ROA.158.
These efforts included bribes. ROA.158.
For example, Fahami would routinely host big, expensive dinners
at Fleming’s Steakhouse in Austin that would be attended by VA officials.
ROA.158. The attending officials included Andrea Kucharski, the
Information Technology Manager for the NSD, and Wendy Owens, Chief
of Operations at the NSD. ROA.158. Fahami would always pay for these
dinners. ROA.158. Additionally, Roger Rininger, Service Line Manager
at the NSD, routinely attended happy hours that were paid for by Fahami
and Intratek. ROA.158.
Ms. Kucharski influenced contracts awarded by the NSD. She was
on—and may even have been the lead—on the proposal evaluation team
that scores all of the submitted proposals and then recommends which
proposal the VA should accept. ROA.159. Most of the time, the team’s
proposal recommendation led to that proposal being awarded the actual
contract. ROA.159. Therefore, Ms. Kucharski could torpedo contracts
for companies she did not like and promote contracts for companies she
did like. ROA.159.
8
Ms. Owens was important because, as Chief of Operations, she had
input into who would be awarded VA contracts. ROA.159. Rininger was
important and could influence the provision of contracts since he supplied
the language used in the bid contracts. ROA.159.
In February 2015, Fahami gave Rininger his credit card to pay for
a happy hour at Red’s Porch in Austin, Texas. ROA.159. Many VA
officials attended the happy hour, including the three mentioned above.
ROA.159. On at least one occasion, Fahami paid for Rininger to travel to
Las Vegas for fun. ROA.159. On at least one other occasion, Fahami
traveled with Rininger to Chile. ROA.159.
Fahami and Intratek also attempted to obtain insider information
from Wendy Owens by hiring her son Jeremiah Owens, and taking her
on an all-expenses paid trip to Las Vegas. ROA.160.
E. Fahami and Intratek asked Robertson to engage in

unlawful conduct and he refused.
When Robertson was hired, he had revealed that he had non-
disclosure agreements with several firms that compete for contracts with
the federal government and the VA. ROA.12. Those agreements
prohibited him from disclosing confidential information to competitors
such as Intratek. ROA.12. At the time of his hiring, Robertson also
9
indicated that he was not willing to breach those agreements and provide
inside information to Intratek. ROA.12.
Yet, in Spring 2012, that is exactly what Fahami asked Robertson
to do: give Intratek and its partners inside information to insure they had
a clear and decisive edge in competing for VA contracts. ROA.13. When
Robertson protested, Fahami told him everything would be okay as long
no government resources were used and things were not done through
texts or emails. ROA.13. In other words, Robertson was not supposed to
create a paper trail. ROA.13.
Even more concerningly, not only did Intratek and Fahami
repeatedly ask Robertson to violate non-disclosure agreements with
competitors, but Intratek and Fahami also repeatedly asked Robertson
to get insider, non-public, government information regarding contract
pricing and project size through his SharePoint administrator status.
ROA.13. Robertson refused this unlawful request every time. ROA.13.
F. Intratek terminated Robertson for telling Fahami that

the bribes were illegal and refusing to engage in illegal
behavior himself.
Intratek asked Robertson for insider information as described
above approximately every three months until September 2015. ROA.13.
10
In September 2015, Robertson refused yet another advance. ROA.15. He
told Fahami that he believed what he was being asked to do was illegal
and that it needed to stop. ROA.15. Within a week, Intratek fired
Robertson. ROA.15.
G. Robertson reported the bribes and unlawful conduct to

the Office of the Inspector General.
On October 7, 2015, Robertson reported what he had witnessed at
Intratek and how he was fired to the Office of the Inspector General for
Veterans Affairs. ROA.164. An investigation was opened. ROA.164. At
the time of his lawsuit, the investigation was still open, active, and
ongoing. ROA.164. To date, no final determination has been issued by
the VA regarding Robertson’s report. ROA.164.
H. After Intratek fired Robertson, Intratek, Fahami, and

Rininger, a VA employee, engaged in a campaign of
tortious interference with Robertson and Robertson
Technologies’ contracts and potential contracts.
After firing Robertson, Fahami, Intratek and Roger Rininger, a VA
official, went after Robertson’s livelihood and reputation. ROA.161.
They told current and potential business partners that Robertson was
unstable, incompetent, not to be trusted, and that contracting with him
or his company, Robertson Technologies, Inc., could jeopardize their own
11
business with the government. ROA.161-62. Their actions caused
contracts to be cancelled and business relationships to sour. ROA.161-
62.
This campaign is ongoing and has currently cost Robertson and his
company millions of dollars. ROA.161-62.
I. On May 3, 2018, Robertson filed suit under seal.
Because the OIG investigation was ongoing at the time the statute
of limitations was about to expire, Robertson filed suit under seal.
ROA.25. On May 7, the Court granted his motion to seal. ROA.25. After
consultation with the OIG investigator, Robertson moved to unseal the
complaint and serve the Defendants on July 20, 2018. ROA 25-32.
There were three named Defendants: (1) Intratek Computer, Inc.,
(2) Allan Fahami, and (3) Roger Rininger. ROA.8.
J. In September 2018, Intratek and Fahami moved to stay

the case and compel arbitration.
On September 28, 2018, Intratek and Fahami moved to stay the
case and compel arbitration. ROA.57. To date, Rininger has not moved
to compel arbitration or even answered the complaint.
12
On October 9, 2018, the motion to compel arbitration was referred
to the Magistrate Court, who recommended granting the motion.
ROA.104-05.
Sua sponte, the Magistrate Court also recommended dismissing all
claims against all parties instead of staying the case. ROA.104-05. While
not explicitly stated, the all-encompassing recommendation appeared to
include dismissing all claims against Rininger, who, again, had not
answered or moved for arbitration. See ROA.104-05.
On January 29, 2019, Robertson filed a timely motion to add a
necessary party under Rule 19 and to provide some additional facts.
ROA.147. At the time the motion was filed, there were no pleading
deadlines, discovery deadlines, or motion deadlines.
In adopting the Magistrate Court’s recommendation and denying
the motion to amend, the District Court went even further than the
recommendation, ordering that all claims against all Defendants be
arbitrated. ROA.233. At that time, Rininger had still not even answered
the lawsuit, let alone moved to compel arbitration. Indeed, Rininger
unequivocally told the District Court prior to its ruling that he “cannot
be bound by the arbitration agreement.” ROA.203. Despite that
13
unequivocal and undisputed statement, the District Court dismissed all
claims, including against Rininger and compelled arbitration of all
claims, including against Rininger. ROA.233. Further, the District
Court denied leave to amend because the proposed amendments and
additional necessary party would have prevented the District Court from
sending all claims to arbitration, and dismissing the case. ROA.231-32.
K. This appeal was timely filed after the District Court

compelled arbitration and dismissed all claims against all
defendants, including Rininger, who was not a party to
any arbitration agreement.
On July 30, 2019, the District Court entered final judgment
compelling all claims against all parties to arbitration and dismissing all
claims against all parties. ROA.233. Within thirty days, Robertson
timely appealed this final judgment. ROA.234.
14
SUMMARY OF THE ARGUMENT
In this case of first impression,1 the District Court’s order
compelling arbitration of Robertson’s federal whistleblower claim under
41 U.S.C. § 4712 must be reversed because:
• The plain language of the statute prohibits enforcement of an
arbitration agreement signed as a condition of employment when
the statute states explicitly that “[t]he rights and remedies
provided for in this section may not be waived by any agreement,
policy, form, or condition of employment.” 41 U.S.C. § 4712(c)(7).
• The statute’s legislative history conclusively shows mandatory
arbitration is prohibited by 41 U.S.C. § 4712(c)(7). See 158 Cong.
Rec. S7834 (daily ed. Dec. 12, 2012) (proposed amendment
clarifying that subsection (c)(7) includes pre-dispute arbitration
agreements).
• The plain text of the arbitration agreement the parties signed
does not cover wrongful termination claims.
1As the Magistrate Court’s recommendation acknowledges, there is no case law

“addressing whether the waiver provision in § 4712(c)(7) precludes arbitration of a
claim thereunder.” ROA.97. Indeed, there are very few cases interpreting any part
of § 4712 within the Fifth Circuit. However, the plain language of the statute is quite
clear that “[t]he rights and remedies provided for in this section may not be waived
by any agreement, policy, form, or condition of employment.” 41 U.S.C. § 4712(c)(7).
15
Under Supreme Court and Fifth Circuit precedent, a court may not
rewrite or ignore the plain text of a statute, nor may a court add terms to
an arbitration agreement that do not exist in its plain language. Here,
the District Court, by compelling arbitration of the whistleblower claims,
did both. Moreover, every case relied on by the District Court is
inapposite and distinguishable because none of them involve statutes
that explicitly prohibit requiring a waiver of rights and remedies as a
condition of employment.
Second, the District Court’s order compelling arbitration of the
independent post-employment tortious interference claims must be
reversed because:
• The plain language of the agreement limits arbitration only to
current employees concerning employment matters, which
Robertson’s tortious interference claims do not involve.
• Robertson’s tortious interference claims arose independently of
and after the end of his employment and are not related to and
do not touch upon Robertson’s prior employment.
Under Fifth Circuit precedent, a court may not add claims to an
arbitration agreement that are not present in the plain language of the
16
agreement. Here, the District Court ignored the plain language and
meaning of the arbitration agreement by rewriting the contract to cover
claims arising solely after the employment relationship ended, and to
include claims that do not in any way rely on the employment
relationship. Moreover, as with the District Court’s departure from the
plain language of the whistleblower statute, not a single case cited
supports the ruling.
Third, even if case law or the plain language of the statute or
agreement supported compelling arbitration—which is not the case—the
District Court’s order dismissing Robertson’s claims in lieu of staying the
case is error. Dismissal is improper under Fifth Circuit precedent
because, even putting that aside, not all of Robertson’s claims are subject
to arbitration. Even if this Court compels arbitration of Intratek and
Fahami’s claims, the claims against Roger Rininger must still remain
since he is not a party to any arbitration agreement. Moreover, the
arbitrator could determine that it lacks jurisdiction or Defendants could
fail to participate in arbitration, either of which would necessitate
returning to the District Court. Finally, even dismissal without prejudice
17
would function as dismissal with prejudice because the statute of
limitations for both claims has run. Dismissal is improper.
Fourth, the District Court’s order compelling arbitration of
Robertson’s tortious interference claims against Roger Rininger is in
error because, as Rininger admitted in a filing, he “cannot be bound by
the arbitration agreement.” Indeed, Rininger has never been an
employee of Intratek, did not sign any arbitration agreement with any
party in this case, and did not even work for any employer who is a party
to any arbitration agreement at issue in this case. Moreover, Rininger
himself has never moved to compel arbitration. Therefore, not only is
there no arbitration agreement on which the District Court could base its
order, but because Rininger never moved for arbitration, the District
Court lacked the power to compel arbitration even if such an agreement
existed—which it does not. The order compelling arbitration of
Rininger’s claims must be reversed.
Fifth, the District Court erred when it denied Robertson’s motion to
amend expressly because the proposed amendments would confer
jurisdiction on the District Court. Undersigned counsel has not been able
to find a single case in this Circuit permitting a district court to deny a
18
motion to amend to add a necessary party for the express reason that
such an amendment would prevent the district court from dismissing the
case and shutting the courthouse doors. Indeed, such a ruling would
irreconcilably conflict with the Rules of Civil Procedure’s command that
leave to amend be “freely given.” Such a ruling also conflicts with this
Court’s command that lower courts freely allow leave to amend to
establish jurisdiction.
Based on the above, the District Court’s order should be reversed in
full and this case remanded for further proceedings.
STANDARD OF REVIEW
I. The standard of review for an order compelling arbitration

is de novo.
An order compelling arbitration is subject to de novo review.
Crawford Prof. Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249, 256
(5th Cir. 2014). This is not an examination of the merits of the claims.
Paper, Allied-Indus., Chem. and Energy Workers Intern. Union Loc. No.
4-2001 v. ExxonMobil Refining & Supply Co., 449 F.3d 616, 619 (5th Cir.
2006). “Rather, the court ‘is confined to ascertaining whether the party
seeking arbitration is making a claim which on its face is governed by the
19
contract.’” Id. at 620 (quoting United Steelworkers of Am. v. Am. Mfg.
Co., 363 U.S. 564, 568 (1960))(emphasis added).
II. The standard of review for denial of a motion to amend is

abuse of discretion.
This Court reviews the denial of leave to amend under the abuse of
discretion standard. Dussouy v. Gulf Coast Inv. Corp., 660 F.3d 594, 597
(5th Cir. 1981). “[T]he Supreme Court has explicitly disapproved of
denying leave to amend without adequate justification . . . .” Lowrey v.
Texas A & M Univ. Sys., 117 F.3d 242, 245 (5th Cir. 1997) (citing Foman
v. Davis, 371 U.S. 178, 182 (1962)). These adequate justifications include
“undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.” Foman, 371 U.S. at 182. As
this Court pointed out in Dussouy:
Discretion may be a misleading term, for rule 15(a) severely

restricts the judge’s freedom, directing that leave ‘shall be
freely given when justice so requires.’ It evinces a bias in
favor of granting leave to amend . . . . Thus unless there is a
substantial reason to deny leave to amend, the discretion of
the district court is not broad enough to permit denial.
20
Dussouy, 660 F.3d at 597-98. Moreover, leave to amend to cure
jurisdictional defects or properly invoke jurisdiction must be freely
granted. Watkins v. Lujan, 922 F.3d 261, 264 (5th Cir. 1991) (“[L]eave to
amend defective allegations of subject matter jurisdiction should be
freely given.”).
ARGUMENT
I. Under Supreme Court and Fifth Circuit precedent, the

District Court erred by compelling arbitration because it
rewrote the plain text of the federal whistleblower statute
and the statute’s legislative history, which both clearly
prohibit enforcement of arbitration agreements that
required as conditions of employment.
“[C]ourts aren’t free to rewrite clear statutes under the banner of
our own policy concerns.” Azar v. Allina Health Servs., 139 S. Ct. 1804,
1815 (2019) (Gorsuch, J.).
The District Court’s Order to compel arbitration of Robertson’s
federal whistleblower claim must be reversed on statutory grounds for
two reasons: (1) the plain text of 41 U.S.C. § 4712(c) prohibits waiver of
rights and remedies as a condition of employment; and (2) the legislative
history of the statute confirms that arbitration agreements as a condition
of employment cannot cover claims under that statute.
21
A. The whistleblower retaliation statute at 41 U.S.C. §

4712(c) expressly prohibits employers from requiring
employees to waive any rights and remedies under the
statute as a condition of employment.
The text of the whistleblower statute itself prohibits arbitration
agreements like the one in this case that waive rights and remedies as a
condition of employment. The “exhaustion of remedies” subsection, 41
U.S.C. § 4712(c)(2), expressly provides complainants the right and
remedy of a de novo federal jury trial:
[T]he complainant may bring a de novo action at law or equity

against the contractor or grantee to seek compensatory
damages and other relief available under this section in the
appropriate district court of the United States, which shall
have jurisdiction over such an action without regard to the
amount in controversy. Such an action shall, at the request of
either party to the action, be tried by the court with a jury.
41 U.S.C. § 4712(c)(2). Under subsection (c)(7), that right and remedy of
a federal jury trial2 is not waivable by any kind of mandatory employment
2The plain text of the statute establishes that trial by jury is both a right and remedy
because it is expressly included in the “Remedies” section. See 48 C.F.R. § 3.908-6
Remedies (listing “Complainants right to go to court”). Further, this Court holds that
where the burden of proof is less stringent than in other similar cases, Congress
intends that “trial by jury [be] part of the remedy.” See Howard v. Canadian
National/Illinois Cent. R.R., 233 Fed. Appx. 356, 357 (5th Cir. 2007) (citing Boeing
Co. v. Shipman, 411 F.2d 365, 372 (5th Cir. 1969), overruled in other respects,
Gautreaux v. Scurlock Marine, 107 F.3d 331, 336 (5th Cir.1997) (en banc). Here, the
burden of proof is contributing factor, a much lower standard of proof than in the
great majority of retaliation cases, which generally requires but-for causation. See
41 U.S.C. § 4712(c)(6) compare with 42 U.S.C. § 2000e-3 (Title VII retaliation statute
22
agreement, employment policy, form of employment, or condition of
employment:
RIGHTS AND REMEDIES NOT WAIVABLE. – The rights and

remedies provided for in this section may not be waived by
any agreement, policy, form, or condition of employment.
41 U.S.C. § 4712(c)(7). In other words, the plain text of the statute
prohibits any agreement, including an arbitration agreement that
requires waiver of any rights as a mandatory condition of employment.
Id.3
B. The District Court erred by rejecting the plain text of the

statute and finding Robertson waived the right and
remedy of a federal jury trial. Defendants admit that the
agreement at issue was a mandatory condition of
employment, which makes any purported waiver invalid
under 41 U.S.C. § 4712(c)(7).
Here, § 4712(c)(7) prohibits the agreement because Defendants
admit “Robertson was required to sign an arbitration agreement
requiring but-for cause). Therefore, under Howard, Congress intends a trial by jury
to be part of the remedy provided by this whistleblower statute.
3 Section 4712(c)(7) does not categorically prohibit all arbitration agreements or other
agreements, policies, and forms of employment that would require disputes to be

submitted to non-judicial forums. Rather, the narrowly-tailored, plain language of §
4712(c)(7) only prohibits such agreements if the employee’s acceptance of the
agreement is a mandatory condition of employment. Id. For example, an optional
arbitration agreement signed at the time an employee is hired or a post-dispute
arbitration agreement does not appear to be prohibited by the plain language of §
4712(c)(7). But here, the arbitration agreement is expressly a condition of
Robertson’s employment, and so falls squarely under the statute’s prohibition.
ROA.58 at ¶¶ 3-4
23
as a condition of employment” that “waiv[es] the right to a trial
by jury.” ROA.58 at ¶¶ 3-4 (emphasis added). Therefore, under the
plain text of the statute, because the “agreement” was both a “condition
of employment” and purports to “waiv[e]the right to a trial by jury,” it is
not enforceable as to Robertson’s § 4712 whistleblower claim. Any other
interpretation directly conflicts with the plain language of the statute
and would require this Court to do Congress’s job by rewriting the plain
text of the statute.
By rejecting the plain language and compelling arbitration based
on an agreement that was required as a condition of employment, the
District Court erred. Its order compelling arbitration must be reversed.
C. The legislative history conclusively shows that Congress

intends § 4712(c)(7) to prohibit arbitration agreements
that are mandatory conditions of employment.
The legislative history of § 4712(c)(7) conclusively shows that the
nonwaiver language is meant to prohibit arbitration agreements that
purport to waive any rights and remedies under § 4712 as a mandatory
condition of employment. During the legislative process, a draft version
of § 4712(c)(7) stated:
The rights and remedies provided for in this section may not
be waived by any agreement, policy, form, or condition of
24
employment, including any predispute arbitration agreement,

other than an arbitration provision in a collective bargaining
agreement.
See e.g., Engrossed Amendment Senate Text, § 844A, Dec. 12, 2012,
available at https://www.congress.gov/bill/112th-congress/house-
bill/4310/text/eas. While the final bill removes the two clauses
referencing arbitration, it does not substantively change the meaning of
the non-waiver provision except to make it broader, since the final
language contains no exclusions from the nonwaiver provision:
RIGHTS AND REMEDIES NOT WAIVABLE. – The rights and

remedies provided for in this section may not be waived by
any agreement, policy, form, or condition of employment.
41 U.S.C. § 4712(c)(7). Counterintuitively, the lower courts and
Appellees argue that the removal of those last two clauses actually
narrows the nonwaiver language to permit employers to have predispute
arbitration agreements required as a condition of employment that waive
the statute’s rights and remedies. That is not a reasonable reading under
both the rules of grammar and common sense.
This point is best illustrated by the following example:
A lawyer engaging in discovery drafts a request for production
stating, “Please produce all communications between A and B from May
25
2018 relating to Z, including the May 4th email.” However, before the
lawyer sends the request to opposing counsel, the lawyer deletes the
clause referencing the May 4th email. Under the lower court’s and
Appellees’ reasoning, that revision means as a matter of law that the
lawyer is seeking all May 2018 communications regarding Z except the
May 4th email. Of course, the rules of grammar and common-sense show
that is not what the lawyer intends. Indeed, if opposing counsel made
that argument in refusing to produce the May 4th email, any judge would
quickly overrule it and compel the email’s production. If the lawyer
intended to exclude the May 4th email from the revised production
request, the lawyer would have said, “Please produce all communications
between A and B from May 2018 relating to Z, except the email from May
4th.” That is so because the initial draft shows that the lawyer knows a
May 4th email exists and is one of the communications from May 2018.
Therefore, failing to explicitly exclude it in the later request necessarily
means that it is included in the request.
The same logic applies here. The legislative history shows Congress
explicitly intended the nonwaiver of rights and remedies to include a
prohibition on arbitration agreements as a condition of employment.
26
Under the rules of grammar, by using the word “including,” Congress
shows its belief that the nonwaiver language as written already includes
a prohibition on arbitration as a condition of employment.4 As with the
discovery example above, removing that language does not change what
the nonwaiver provision says, includes, or what Congress intends the
language to include—except to maybe make it broader by now covering
CBA arbitration agreements. Indeed, like the discovery example, it
proves that Congress necessarily intends the provision to cover
arbitration agreements required as a condition of employment. If
Congress meant to exclude all arbitration agreements in the final
version, it would have said so as it did in the draft—which specifically
excludes CBA arbitration—and as it has with several other retaliation
statutes, including Title VII, the ADA, the ADEA, and § 1981. See e.g.,
Pub. L. 102–166, title I, § 118, Nov. 21, 1991, 105 Stat. 1081.5
4 Use of a different word would render a different result. For example, if the draft
amendment said “and predispute arbitration agreements,” the lower courts and
Appellees’ argument would be correct, but that is not the word Congress used, and a
court may not change it because it prefers a certain result. Azar, 139 S. Ct. at 1815.
5 “Where appropriate and to the extent authorized by law, the use of
alternative means of dispute resolution, including settlement negotiations,

conciliation, facilitation, mediation, factfinding, minitrials, and arbitration, is
encouraged to resolve disputes arising under the Acts or provisions of Federal law
amended by this title [enacting section 1981a of this title and amending this section,
sections 1988, 2000e, 2000e–1, 2000e–2, 2000e–4, 2000e–5, 2000e–16, 12111,
and 12112 of this title, and section 626 of Title 29, Labor].”(emphasis added)
27
D. The cases cited by the District Court and Magistrate

Court are distinguishable and inapposite because they
involve statutes where Congress has expressly
encouraged arbitration, lack nonwaiver language, or
contain other indicia that mandatory arbitration is
permissible, which is not the case with § 4712.
None of the cases cited by the lower courts or Appellees require a
different reading of the plain language of the agreement, the plain text
of the statute, or the legislative history than what is detailed above.
First, the arbitration cases cited involve extremely different
statutory schemes. Second, unlike in § 4712, none of them have an
explicit nonwaiver provision prohibiting waiver of rights and remedies by
mandatory agreement as a condition of employment. See 41 U.S.C. §
4712(c)(7).
For example, the Magistrate Court relies heavily on CompuCredit
Corp. v. Greenwood, a Credit Reporting Organization Act case. See
ROA.92, 93, 96, 97, 98. CompuCredit does not apply here because the
“right to sue” language in the CROA does not specify a right to sue in
federal court or to request a jury. CompuCredit Corp. v. Greenwood, 565
U.S. 95, 99 (2012). While the Ninth Circuit and respondents inferred
that the “right to sue” meant the right to sue in court, that statement is
nowhere in the text of the statute. Id. Further, the Supreme Court held
28
that the CROA section at issue did not create the right to sue under the
CROA. Id. That right was created in a different section that did not have
a nonwaiver provision. Id. at 99-10 and n.2. Therefore, the Supreme
Court was required to apply the text of the statute as written and could
not read exceptions into the plain language.
Here, though, the statute at issue expressly creates the right and
remedy of a federal jury trial for violations of the statute. 41 U.S.C. §
4712(c). The statute expressly creates federal question jurisdiction for a
lawsuit, creates deadlines for filing the lawsuit, administrative remedies
that must be engaged in prior to the right and remedy of a federal jury
trial, and sets the burden of proof as contributing factor. Id. Then after
doing all of that, the statute explicitly says, “rights or remedies provided
for in this section may not be waived by any agreement . . . or condition
of employment.” Id. at (c)(7). Because none of those things are present
in the CROA section examined by CompuCredit, that case does not apply.
Instead, this Court, like the Court in CompuCredit, should enforce the
plain language of the statute that prohibits waiver of rights and remedies
as a mandatory condition of employment. See Azar, 139 S. Ct. at 1815
29
(“[C]ourts aren’t free to rewrite clear statutes under the banner of our
own policy concerns.”).
The Magistrate Court also relies on Gilmer v. Interstate/Johnson
Lane Corp, 14 Penn Plaza LLC v. Pyett, McLeod v. General Mills, Inc.,
and Williams v. Cigna Financial Advisors, Inc., which are all ADEA
cases. ROA.96-100. All of the ADEA arbitration cases are inapposite
because Congress has explicitly encouraged the use of arbitration to
resolve disputes under the ADEA. Public Law 102-166, title I, § 118 from
November 21, 1991 states:
Where appropriate and to the extent authorized by law, the

use of alternative means of dispute resolution, including . . .
arbitration, is encouraged to resolve disputes arising under
the Acts or provisions of Federal law amended by this title.
Pub. L. 102–166, title I, § 118, Nov. 21, 1991, 105 Stat. 1081 (emphasis
added). One of the provisions amended was 29 U.S.C. § 626, which
contains the enforcement provisions of the ADEA. See 29 U.S.C. § 626.
Quite unlike the ADEA, there is no such congressional encouragement
for arbitration in the notes for § 4712. Indeed, as detailed above, the
legislative history actually shows the opposite. Therefore, there is no
textual basis to find congressional encouragement of arbitration in § 4712
and a court may not insert it.
30
Moreover, even if that explicit congressional encouragement of
arbitration did not exist for the ADEA, the wording of the ADEA as
explained by Justice Scalia in Gilmer would still render that case
inapplicable to the statute at issue in this case. According to the Supreme
Court in Gilmer, “the ADEA’s flexible approach to resolution of claims”
including directives to the EEOC to pursue “informal methods of
conciliation, conference, and persuasion” and establishment of
concurrent jurisdiction in “any court of competent jurisdiction” show that
“out-of-court dispute resolution is consistent with the ADEA.” Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 29 (1991).
Here, none of the factors that would encourage a “flexible” approach
to resolution are present. Section 4712 does not mention informal
dispute resolution methods or establish concurrent jurisdiction. See 41
U.S.C. § 4712. Instead, the statute lays out a very specific scheme of
rights and remedies that includes federal question jurisdiction,
deadlines for filing the federal lawsuit, administrative remedies, the
right and remedy of a federal jury trial, and setting the burden of proof
as contributing factor, a much lower standard of proof than most
retaliation statutes. Id. Unlike the ADEA, nothing in § 4712 shows any
31
preference for informal or out-of-court resolution, and nothing indicates
flexibility of rights or remedies. Id.6 In fact the plain text conclusively
shows that Congress did not intend flexibility of rights or remedies
because the plain language explicitly prohibits waiver of any of those
rights or remedies. See 41 U.S.C. § 4712(c)(7).
Only one of the other cases directly cited by the Magistrate Court
contains a nonwaiver provision: Saari v. Smith Barney, Harris Upham &
Co., Inc., 968 F.2d 877 (9th Cir. 1992). But even that Ninth Circuit case
is readily distinguishable. Saari was brought under the Employee
Polygraph Protection Act. Saari, 968 F.2d at 877. The Ninth Circuit held
that under the factors described in Gilmer, the EPPA did not prohibit
arbitration. The Ninth Circuit noted that the enforcement provisions
provided flexibility in remedies and procedures as well as concurrent
jurisdiction. Id. at 881.
As detailed above, neither this flexibility nor concurrent
jurisdiction exist under § 4712. Moreover, the nonwaiver language under
§ 4712(c)(7) is much more specific than the nonwaiver provision under
6The 14 Penn Plaza, LLC case is further inapplicable because it deals with an ADEA
arbitration provision in a collective bargaining agreement, which is not similar to an
arbitration agreement required as a condition of employment, as is the case here. See
14 Penn Plaza, LLC v. Pyett, 556 U.S. 247, 251 (2009).
32
the EPPA. Saari, 968 F.2d at 880. Here, after creating the right to a
federal jury trial as part of the statutory remedies provided, the
nonwaiver provision states explicitly that the rights and remedies may
not be waived by an agreement or condition of employment. 41 U.S.C. §
4712(c)(7). The nonwaiver provision in Saari, on the other hand, is not
as specific, stating only that it may not be waived by “any contract or
otherwise.” Saari, 968 F.2d at 880. Finally, no other Courts of Appeals
have adopted the Ninth Circuit’s view of the EPPA nonwaiver language.
See Harmon v. CB Squared Srvcs Inc., 624 F.Supp.2d 459, 467 n.5 (E.D.
Va. 2009) (“The Court is unaware of any other federal circuit that has
adopted the Ninth Circuit’s holding . . . .”).
The plain language of the statute and its legislative history show
that Robertson’s whistleblower claim is not arbitrable. Thus, he cannot
be compelled to arbitrate it. See Azar, 139 S. Ct. at 1815 (“[C]ourts aren’t
free to rewrite clear statutes under the banner of our own policy
concerns.”).
33
II. The District Court erred by ignoring the plain language of

the arbitration agreement and compelling arbitration for
wrongful discharge claims and post-employment
independent torts. Neither cause of action is covered by the
plain text of the arbitration agreement.
Arbitration agreements are treated the same and interpreted in the
same way as any other contract. See E.E.O.C. v. Waffle House, Inc., 534
U.S. 279, 764 (2002) (citing among others, Prima Paint Corp. v. Flood &
Conklin Mfg. Co., 388 U.S. 395, 404, n.12 (1967)) (“The purpose of
Congress in 1925 was to make arbitration agreements as enforceable as
other contracts, but not more so.”). If the arbitration agreement does not
include the specific claims being asserted, then the FAA “does not require
parties to arbitrate when they have not agreed to do so.” See Volt Info.
Sci., Inc. v. Bd. Of Trustees of Leland Stanford Junior Univ., 489 U.S.
468, 478 (1989). After all, “[a]rbitration under the FAA is a matter of
consent, not coercion.” Waffle House, 534 U.S. 294. Therefore, “a party
cannot be required to submit to arbitration any dispute which he has not
agreed so to submit.” United Steelworkers of Am. v. Warrior & Gulf Nav.
Co., 363 U.S. 574, 582 (1960).
In Archer and White, this Court refused to add the single word
“only” to the plain language of an arbitration agreement because it would
34
expand and change the claims covered by the arbitration clause. See
Archer and White Sales, Inc. v. Henry Schein, Inc., 935 F.3d 274, 283 (5th
Cir. 2019). In Archer and White, the appellant asked this Court to find
that an arbitration agreement stating that “actions seeking injunctive
relief” were not subject to arbitration solely excluded actions seeking
“only seeking injunctive relief” or actions only seeking injunctive relief in
aid of arbitration. Id. at 282 n.39. In refusing to add or imply this single
additional term, even if the requested addition was plausible, this Court
explained:
When the language of a contract is clear and unambiguous,

effect must be given to its terms, and the court, under the
guise of construction cannot reject what the parties inserted
or insert what the parties elected to omit. . . . . While
ambiguities in the language of the agreement should be
resolved in favor of arbitration, we do not override the clear
intent of the parties, or reach a result inconsistent with the
plain text of the contract, simply because the policy favoring
arbitration is implicated.
Id. at 283 (emphasis in original, quotations and citations omitted).
A. Under the plain language of the Intratek arbitration

agreement, wrongful termination claims are not covered,
and a court may not rewrite the contract to include them.
Here, the plain language of the arbitration agreement does not
expressly cover wrongful discharge claims. ROA.68. In fact, no party or
35
lower court claims the plain language does.7 Under Supreme Court and
Fifth CircuitCase
precedent, that isDocument
1:18-cv-00373-LY the issue:
13-2 the
Filedparties
09/28/18 simply
Page 3 ofdid
5 not agree
1.2 INTRODUCTION
to arbitrate wrongful discharge claims. The parties could have agreed to
This handbook has been prepared to provide employees an overview of Intratek Computer, Inc.,
(“Intratek” or the “Company”) policies, benefits and rules. It is intended to familiarize
arbitrate such
employees claims,
with butinformation
the important the parties about thedid not, asand
Company, well because
as informationthey did not,
regarding
their own privileges and responsibilities. It is important that all employees read, understand, and
follow the provisions of the handbook. This handbook supersedes all previously issued
they cannot be compelled to do so. See Waffle House, 534 U.S. 294;
handbooks, agreements, and any inconsistent policy statements or memoranda.
ArcherIthandbook
may
andbecome
White necessary
Sales,fromInc.,
time to935
time to updateat
F.3d this283.
handbook. Any written changes to this
will be posted on the Company intranet so that employees will be aware of the new or
revised policies and procedures. No oral statements or representations can in any way change or
Here, as in Archer
alter the provisions and White,
of this handbook. the
Nothing in thislanguage of the
employee handbook contract
creates is “clear
or is intended
to create a promise or representation of continued employment for any employee, and should not
be considered as conveying contractual rights or promises to employees for continual
and unambiguous.”
employment of a specific or The very
indefinite term. first line of the agreement limits
Not all of the Company’s policies and procedures are set forth in this handbook. We have
applicability
summarizedto “between
only anyimportant
some of the more employee and
ones. If you the
have any Company . . . related
questions or concerns about to
this handbook or any other policy or procedure, please contact the Human Resources
Department.
employment.” ROA.68 (emphasis added):
2. GENERAL EMPLOYMENT INFORMATION
2.1 ARBITRATION
Any controversy, dispute or claim between any employee and the Company, or its officers,
agents or other employees related to employment, shall be settled by binding arbitration, at the
request of either party. Arbitration shall be the exclusive method for resolving any dispute;
provided, however, that either party may request provisional relief from a court of competent
jurisdiction, as provided in California Code of Civil Procedure section 1281.8. The arbitrability
of anyand
7 Intratek controversy,
Fahami dispute or claim
argued underlower
to the this Policy shall that
courts be determined by application
they should infer ofthat
the those
substantive provisions of the Federal Arbitration Act (9 U.S.C. sections 1 and 2) and by
claims application
are covered, and judicially rewrite the contract to include them because
of the procedural provisions of the California Arbitration Act.
“Plaintiff’s claims would not exist but for the fact of his employment” and “the
arbitration agreement
The Claims which are to isbenot limited
arbitrated underin thisanyPolicyway to but
include, exclude termination
are not limited to claims foror post-
wages and
termination other compensation,
claims.” ROA.88. claims for breach
Of course, that of is
contract (express under
not correct or implied), claims for
standard rules of
violation of public policy, tort claims, and claims for discrimination and/or harassment
contract interpretation. Since termination is not one of the claims listed as arbitrable
(including, but not limited to, race, religious creed, color, national origin, ancestry, physical
in the arbitration
disability, mentalagreement, standard
disability, medical contract
condition, maritalinterpretation means
status, age, pregnancy, sexthat such claim
or sexual
is not arbitrable.
orientation) to theSeeextent
Archer and
allowed byWhite
law, andSales, Inc.,
claims for 935 F.3d
violation of anyat 283.state,
federal, TheorMagistrate
other
Court does not address whether the plain language includes wrongful termination
government law, statute, regulation, or ordinance, except for claims for workers' compensation
claims,and unemployment insurance benefits.
instead sidestepping the issue by ruling that employment claims can be
arbitrated even after
The employee an employee
and the Company will selectis terminated,
an arbitrator by mutual anagreement.
entirelyIf thedifferent
employee issue.
ROA.103-02. The District
and the Company are unable Court
to agree similarly does not
on a neutral arbitrator, claim
either thatelect
party may theto plain
obtain a language
list
expressly covers wrongful discharge. ROA.230. Instead, directly in conflict with this
of arbitrators from the Judicial Arbitration and Mediation Service, the American Arbitration
Court’s1ntratek
ruling in Archer & White,
Computer, Inc.
the District Court implies
©2000-2011 Intratek Computer, Inc.
such coverage and
Employee Handbook 2011
rewrites the agreement to include it duplication

Unauthorized specificallyor copyingbecause
by other than “broad arbitration language
Intratek Computer, Inc. employees is prohibited
is capable of expansive reach.” Id.
-5-
36
Case: 19-50792as conveying
be considered Document: 00515189942
contractual Page: to49employees
rights or promises Date Filed: 11/06/2019
for continual
employment of a specific or indefinite term.
Not all of the Company’s policies and procedures are set forth in this handbook. We have
summarized only some of the more important ones. If you have any questions or concerns about
this handbook or any other policy or procedure, please contact the Human Resources
Department.
Plainly, a terminated individual is not an employee. Thus, on its
2. GENERAL EMPLOYMENT INFORMATION
face, 2.1
the ARBITRATION
agreement does not apply. The next paragraph is also
Any controversy, dispute or claim between any employee and the Company, or its officers,
unambiguous.
agents or other That paragraph
employees detailsshall
related to employment, covered disputes,
be settled but does
by binding arbitration, not list
at the
request of either party. Arbitration shall be the exclusive method for resolving any dispute;
provided, however, that either party may request provisional relief from a court of competent
wrongful discharge,
jurisdiction, as provided inseparation,
California Code of or
Civil termination as covered
Procedure section 1281.8. claims.
The arbitrability
of any controversy, dispute or claim under this Policy shall be determined by application of the
substantive provisions of the Federal Arbitration Act (9 U.S.C. sections 1 and 2) and by
ROA.68:
application of the procedural provisions of the California Arbitration Act.
The Claims which are to be arbitrated under this Policy include, but are not limited to claims for
wages and other compensation, claims for breach of contract (express or implied), claims for
violation of public policy, tort claims, and claims for discrimination and/or harassment
(including, but not limited to, race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status, age, pregnancy, sex or sexual
orientation) to the extent allowed by law, and claims for violation of any federal, state, or other
government law, statute, regulation, or ordinance, except for claims for workers' compensation
and unemployment insurance benefits.
The employee and the Company will select an arbitrator by mutual agreement. If the employee
Asthethe
and plain
Company language
are unable makes
to agree on a neutral clear,
arbitrator,the
either only claims
party may covered
elect to obtain a list are
of arbitrators from the Judicial Arbitration and Mediation Service, the American Arbitration
1ntratek Computer, Inc. Employee Handbook 2011
those that occur while the individual
©2000-2011 is an
Intratek Computer, Inc. employee.
Unauthorized duplication or copying by other than
ROA.68. The
Intratek Computer, Inc. employees is prohibited
agreement does not cover disputes- that

5- arise during the hiring process
before the individual becomes an employee nor claims that arise after the
employment relationship ends such as a wrongful discharge claim.
ROA.68. In fact, the only cause of action listed that deals with separation
of employment is the claim for unemployment benefits, which are
specifically excluded from coverage. ROA.68.
Similarly, the employee acknowledgment of the arbitration
agreement is limited only to “employment related controversies,” but not
discharge or termination. See ROA.65:
37
Again, the only post-employment or former employee claim listed is the
specifically excluded claim of unemployment benefits. ROA.65.
Therefore, any employee reading that plain language would understand
that the contract only covers claims arising during employment and
concerning employment, but not claims regarding separation of
employment. See ROA.65. As in Archer and White, the District Court
erred by inserting a wrongful discharge claim that “the parties elected to
omit” and thereby interpreting the agreement in a manner that is
“inconsistent with the plain text of the contract.” See Archer and White
Sales, Inc., 935 F.3d at 283.
Because the plain language of the agreement itself shows that
Robertson’s wrongful discharge claim is not subject to arbitration, the
order compelling arbitration must be reversed.
38
B. The plain text of Intratek’s arbitration agreement also

does not cover former employees or their lawsuits
regarding independent, non-employment related torts.
As stated above, the plain text of the arbitration agreement says it
only applies to disputes between “any employee and the Company, or
its officers, agents or other employees related to employment.”
ROA.68. That the agreement is limited to employees’ claims regarding
employment is confirmed by the bolded paragraph on the second page,
which expressly states that employees are giving up the right to “have a
judge or jury trial with regard to all issues concerning
employment.” ROA.69 (underline added, bold in original). Nowhere
does it state that the agreement applies to former employees or any
independent post-employment disputes with the company. ROA.69; see
also ROA.65. By its own plain language, the arbitration agreement
simply does not apply to the tort claims of former employees involving
matters outside of employment. Therefore, the District Court’s order
compelling arbitration of those claims directly conflicts with the plain
text of the agreement and is contrary to the binding precedent of this
Court. See Archer and White Sales, Inc., 935 F.3d at 283.
39
C. The conduct constituting tortious interference occurred

after the employment relationship ended and has nothing
to do with Robertson’s prior employment.
Robertson alleges that after he left employment with Intratek,
Intratek, Fahami and Rininger tortiously interfered in his independently
held contracts or potential contracts with ASMR Lockheed Martin,
Leidos, Systems Made Simple, CSRA, Prosphere, and others. See
ROA.16-17 at ¶¶ 50-58. None of those contracts relate to or concern his
prior employment with Intratek, and nothing in his complaint says they
do. See ROA.16-17 at ¶¶ 50-58.
Nor do the lower courts say they do. In fact, neither the Magistrate
Court nor the District Court finds that tortious interference with the
above contracts is related to or concerns Robertson’s prior employment,
which is a necessary prerequisite for the arbitration agreement to apply.
Instead, the Magistrate Court finds that, in general, employee
arbitration agreements can cover tortious interference and breach of
contract claims if they are related to employment. ROA.101-02. The
Magistrate Court then reasons that doubts should be resolved in favor of
arbitration and holds “that Robertson’s tort claims are within the scope
40
of the broad Arbitration policy in this case.”8 ROA.102. The District
Court adopts that reasoning, declaring, “any doubts . . . should be
resolved in favor of arbitration.” ROA.230.
That type of analysis is directly proscribed by this Court in Archer
and White Sales, Inc. In that case, this Court explained, “we do not
override the clear intent of the parties, or reach a result inconsistent with
the plain text of the contract, simply because the policy favoring
arbitration is implicated.” Archer and White Sales, Inc., 935 F.3d at 283
(emphasis in original). Yet here, the District Court did exactly that by
holding that an employment agreement limited by its plain language to
employees and their disputes concerning employment nonetheless covers
tortious interference claims involving former employees and independent
post-employment, non-employment-related contracts. In other words, the
District Court rewrote from the bench the terms of the contract to include
8 Appellees likewise do not explain how their tortious interference with Robertson’s
independent post-employment contracts was caused by or connected to his
employment. Instead, their argument is philosophical: “Plaintiff’s claims would not
exist but for the fact of his employment with Intratek and therefore his claims are
related to his employment.” ROA.88. None of the cases Appellees cite in their motion
actually support that position. Indeed, this Court routinely rejects the argument that
temporal proximity is sufficient to prove legal causation for claims brought by
plaintiffs. See, e.g., Strong v. Univ. Healthcare Sys., LLC, 482 F.3d 802, 808 (5th Cir.
2007) (“[T]emporal proximity alone is insufficient to prove but for causation.”).
41
additional categories of coverage—former employees—and additional
causes of action—post-termination, non-employment related torts—
without any support from the plain text of the agreement. See ROA.230.
This Court’s own recent precedent does not permit such judicial activism.
See Archer and White Sales, Inc., 935 F.3d at 283
Therefore, the District Court’s order compelling arbitration must be
denied.
D. The cases cited by Appellees and the Magistrate Court,

which were adopted by the District Court are
distinguishable and inapposite because they all involve
tortious interference claims that directly and clearly
relate to the plaintiff’s employment, which is not the case
here.
All of the cases cited by Appellees’ and the Magistrate Court on this
issue are inapplicable because they all concern claims that obviously
relate to the employment relationship. For example, the Magistrate
Court cites Hays v. HCA Holdings, Inc., for the proposition that tortious
interference claims are arbitrable. ROA.102. The Hays case is
inapplicable because it deals with tortious interference by the defendant
in the very at-will employment relationship that was expressly covered
by an arbitration clause. Hays v. HCA Holdings, Inc., 838 F.3d 605, 608
(5th Cir. 2016). Indeed, the arbitration clause in Hays stated that all
42
disputes relating to the employment agreement must be arbitrated. Id.
““Hays essentially alleges that HCA tortiously interfered with his at-will
employment relationship with Austin Heart and CAC. The viability of
this claim, however, depends on reference to the Agreement.” Id. at 609.
Therefore, that claim was covered by the arbitration agreement. Id. at
609.
Here, that is plainly not the case. The contracts Robertson alleges
were tortiously interfered with do not include his employment agreement
with Intratek. See ROA.16-17 at ¶¶ 50-58. Moreover, success on the
merits of his tortious interference claims do not even require reference to
his employment agreement. As such, unlike in Hays, Robertson’s claims
are not related to his employment, do not concern his employment, and
are not subject to any employment-related arbitration agreement.
The Magistrate Court also cites a 10th Circuit case, P&P
Industries, Inc. v. Sutter Corp. for the proposition that tortious
interference with third party contracts can arise from a different contract
covered by an arbitration agreement. ROA.102. Sutter is also
inapplicable. In Sutter, the plaintiff had an agreement with the
defendant that contained an arbitration clause. 179 F.3d 861, 871 (10th
43
Cir. 1999). The plaintiff alleged that the defendant breached the
agreement covered by an arbitration clause by tortiously interfering with
the plaintiff’s third-party contracts. Id. at 871-72. The court held that
the tortious interference with these third-party contracts “is the manner
in which that termination occurred.” Id. at 872. Therefore, since
termination of the contract with the arbitration clause in it was expressly
covered by the arbitration clause in the contract that was terminated,
those tortious interference claims were arbitrable. Id.
Here, again, that is not the case. Robertson does not allege that
Appellees fired him by tortiously interfering in the contracts made after
his employment had already ended. Nor do Appellees argue that they
fired Robertson in order to tortiously interfere with his post-employment,
post-termination contracts and his potential post-employment, post-
termination contracts. There is no rational connection between
Robertson’s employment and his claims that Intratek’s interfered in the
contracts he entered into after he was no longer an Intratek employee.
Therefore, on its face, Robertson’s tortious interference claims are
unrelated to the employment agreement and not subject to arbitration.
Further, unlike in Sutter, the arbitration agreement here does not even
44
cover termination of the employment relationship. See ROA.68.
Therefore, unlike in Sutter, Robertson’s claims are not subject to
arbitration.
Finally, the Magistrate Court cites the district court case of Colt
Unconventional Res., LLC v. Resolute Energy Corp. ROA.102. In Colt,
the Northern District held intentional tort claims that hinge on the
interpretation of an agreement subject to arbitration are themselves
subject to arbitration under the agreement because they necessarily arise
from it. Colt Unconventional Res., LLC v. Resolute Energy Corp., 3:13-
cv-1324-K, 2013 WL 3789896, at *6 (N.D. Tex. July 19, 2013).
Once again, that is not the case here. Based on the facts alleged in
the complaint, had Robertson never worked for Intratek, he could still
bring the exact same claims as he does now. In other words, Robertson’s
tortious interference claims do not require interpretation of his Intratek
employment agreement. This fact alone proves that his tortious
interreference claims are not related to his employment and thus not
subject any arbitration agreement. As such, unlike in Colt, Robertson’s
claims are not subject to arbitration.
45
Because none of the cases cited by the lower courts or Appellees
alter this Court’s command “not [to] override the clear intent of the
parties, or reach a result inconsistent with the plain text of the contract,
simply because the policy favoring arbitration is implicated,” arbitration
cannot be compelled on Robertson’s post-employment tort claims. See
Archer and White Sales, Inc., 935 F.3d at 283 (emphasis in original).
III. The District Court’s order compelling Robertson to

arbitrate his individual claims against a party who admits
he is not subject to or bound by any arbitration agreement
must be reversed.
The District Court’s order compelling arbitration of all of
Robertson’s claims erroneously compelled arbitration of claims against a
nonparty to the arbitration agreement. Even if this Court compels
arbitration of some claims, the District Court’s order compelling
arbitration of Robertson’s claims against Roger Rininger must be
reversed. As Rininger himself has already admitted, he “cannot be bound
by the arbitration agreement.” ROA.203.
“It goes without saying that a contract cannot bind a nonparty.”
Waffle House, Inc., 534 U.S. at 294 (holding that the EEOC cannot be
bound to arbitrate claims because “[n]o one asserts that the EEOC is a
party to the contract, or that it agreed to arbitrate its claims.”).
46
Therefore, an arbitration agreement can be enforced regarding a non-
signatory only if that party is otherwise bound by that agreement under
recognized contract or agency law principles. Bridas S.A.P.I.C. v. Govt.
of Turkmenistan, 345 F.3d 347, 355 (5th Cir. 2003). There are six
recognized theories under which a non-signatory could be bound by an
arbitration agreement. Id. at 356. These are: “(a) incorporation by
reference; (b) assumption; (c) agency; (d) veil-piercing/alter ego; (e)
estoppel; and (f) third-party beneficiary.” Id.
Here, the lower courts provided no legal analysis or reasoning based
on any of the above theories—or any other theory—concerning how
Robertson could be compelled to arbitrate his tortious interference claim
against Rininger specifically, who admits he is not bound by the
arbitration agreement at issue in this case. ROA.203. Rininger is a VA
official at the National Service Desk. He is not an employee of Intratek
Computer, Inc. He is not a signatory of the arbitration agreement, and
neither is his employer, the federal government. Nonetheless, the
District Court compelled Robertson to arbitrate all of his tortious
interference claims, including those against Rininger. Neither Judge
even addressed the fact that Rininger is not a signatory to the arbitration
47
agreement, although Robertson specifically argued in his Objections to
the Magistrate’s Report that the claims against Rininger were not
arbitrable for that very reason. ROA.128.
Indeed, none of the Defendants—including Rininger—have raised
any reasons why Plaintiff’s claims against Rininger are arbitrable.
Intratek’s Response to Plaintiff’s Motion for Leave to Amend barely
mentions Rininger. ROA.169-76.
And if any bases for forcing the claims against him into arbitration
existed, presumably Rininger would have asserted them. Instead,
Rininger expressly stated in his Response to Plaintiff’s Motion for Leave
to amend that “Mr. Rininger cannot be bound by the arbitration
agreement . . . .” ROA.203 (emphasis added). Rininger only asked that
the claims against him be stayed pending the arbitration of the other
claims that would be referred to arbitration.9 ROA.203. The Court
9In doing so, Rininger cited Sam Reisfeld & Son Import Co. v. S. A. Eteco, 530 F.2d
679, 681 (5th Cir. 1976) for premise that the tortious interference claims against him
are “inherently inseparable” from those against the other Defendants. Later cases
have pointed out that S.A. Eteco specifically involved a parent company and successor
corporations, and have declined to apply that doctrine in situations (such as this one)
where the supposedly inseparable claims were against a defendant that was “not
related to [the other] Defendants as parent or subsidiary, or in any other formal way.”
Bayoil, S.A. v. Polembros Ship. Ltd., 196 F.R.D. 479, 484 (S.D. Tex. 2000).
48
cannot bind Robertson and Rininger to arbitrate claims that they both
agree are not arbitrable.
Since there is no arbitration agreement between Robertson and
Rininger, Rininger does not seek arbitration, and there is no legal
justification for compelling arbitration of claims between two parties who
do not have an arbitration agreement, the District Court’s order must be
reversed.
IV. The District Court’s order to dismiss Robertson’s claims is

contrary to Fifth Circuit and Western District case law
because not all of Plaintiff’s claims are subject to arbitration
and dismissal could result in them being time-barred.
Sua sponte, without notice, and contrary to Appellees’ own motion
to stay, the Magistrate Court recommended, and the District Court
adopted the recommendation that all of Robertson’s claims be dismissed
in favor of arbitration. ROA.104. If this Court compels arbitration
despite the plain text of the whistleblower statute, its legislative history,
the plain language of the arbitration agreement, and Fifth Circuit case
law, these proceedings should still be stayed instead of dismissed.
If a court determines that a claim is subject to arbitration, the court
“shall . . . stay the trial of the action until such arbitration has been had
in accordance with the terms of the agreement.” 9 U.S.C. § 3 (emphasis
49
added). Under Alford v. Dean Witter Reynolds, the Fifth Circuit has held
there is a narrow exception that permits a district court to dismiss a case
only if it determines that all claims are subject to arbitration,
maintaining a stay would serve no purpose, any post-arbitration
remedies would not require consideration or adjudication of the merits,
and the district court deems it appropriate. Alford v. Dean Witter
Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992). Here, even if
arbitration is compelled, all of those factors favor a stay rather than
dismissal.
A. Because not all claims are arbitrable, if arbitration is

compelled, dismissal is inappropriate under Fifth Circuit
and Western District case law.
The order dismissing the case is based on the demonstrably
incorrect assertion that “each of Plaintiff’s claims is subject to
arbitration.” ROA.104. Even disregarding the foregoing sections
showing that Robertson’s claims against Intratek and Fahami are
outside the scope of the agreement or not arbitrable as a matter of law,
not all of Robertson’s claims are arbitrable for the simple fact that he has
claims against Roger Rininger, who has admitted that he is not subject
50
to any arbitration agreement. ROA.203 (“Mr. Rininger cannot be bound
by the arbitration agreement . . . .”). Therefore, dismissal is improper.
In Alford, the Fifth Circuit held that dismissal is only within the
Court’s discretion “when all of the issues raised in the district court must
be submitted to arbitration.” Alford, 975 F.2d at 1164 (emphasis in
original). In Stross v. ZipRealty, Inc., the Western District of Texas
clarified that if it is not “clearly demonstrated [by the party seeking
arbitration] that all of the issues must be submitted to arbitration,” a stay
is the appropriate procedural mechanism. Stross v. ZipRealty, Inc., No.
A-13-CA-419-SS, 2013 WL 12080194 at *7 (W.D. Tex. Sept. 11, 2013)
(emphasis added).
Here, even if the Intratek and Fahami claims go to arbitration,
Robertson has asserted tortious interference claims against Rininger for
interference in Robertson’s post-employment contracts and prospective
business relations. See ROA.18-19. As detailed above, these contracts
and prospective contracts have nothing to do with Robertson’s
employment. These tortious interreference claims do not require any
analysis of Robertson’s employment with Intratek. In other words, these
tortious interreference claims exist regardless of where Robertson
51
worked and separated from before the tortious interference occurred.
Further, even if that were not the case, Roger Rininger did not sign the
arbitration agreement and may not coerce Robertson to arbitrate against
him. Waffle House, 534 U.S. 294 (“Arbitration . . . is a matter of consent,
not coercion.”). Actually, Rininger admits that he “cannot be bound by
the arbitration agreement,” and has not even asked for arbitration.
ROA.203.
Therefore, under Stross and Alford, if arbitration is compelled, a
stay is the more appropriate relief.
B. If arbitration is compelled, a stay rather than dismissal is

appropriate because an arbitrator could find some claims
not arbitrable, or Appellees may not fully participate in
arbitration, which would return the case to the District
Court.
In Stross v. ZipRealty, the Western District held a stay was more
appropriate than dismissal if the possibility existed that the parties could
return to court for adjudication of some claims. Stross, 2013 WL
12080194, at *7.
Here, the same reasoning applies. Even if this Court compels
arbitration, Robertson can challenge whether or not the arbitrator has
the power to decide Robertson’s federal whistleblower claim and his
52
tortious interference claims. If the arbitrator declines to hear either or
both claims, Robertson will have to return to the District Court. Further,
should Appellees refuse to engage in arbitration either by not
participating or by failing to pay the arbitrator, Robertson’s only remedy
will be to return to this Court.10 Therefore, under Stross, dismissal would
be inappropriate.
C. If arbitration is compelled, dismissal is inappropriate

because it would serve to time-bar all of Robertson’s
claims.
If this Court affirms dismissal Robertson’s claims, even if it is
nominally without prejudice, in actuality this will unjustly result in his
claims being time-barred because the statute of limitations will have run
on all of them.
Thereafter, Appellees could simply refuse to engage in arbitration,
which would cause dismissal of the arbitration and leave Robertson
without any recourse, since the courthouse doors would be closed to him.
10This is not a mere hypothetical. That very situation recently arose in one of
undersigned counsel’s other cases that was sent to arbitration. In that case, the
defendant refused to pay the arbitrator’s fee, which caused the arbitrator to dismiss
the case and necessitated going back to state district court. See Boeve v. Insuraprise,
Inc., No. 16-1248-C26 (26th Dist. Ct. Williamson County, Nov. 8, 2016).
53
Because such a result would be unjust, dismissal is inappropriate if
arbitration is compelled.
V. Finally, the District Court abused its discretion by refusing

to allow Robertson to amend his complaint to add a
necessary party.
The District Court abused its discretion when it denied Robertson’s
motion to amend his complaint to add a necessary party because the
proposed amendments would confer jurisdiction on the District Court.
ROA.232 (“Robertson’s proposal . . . amounts to a tactical maneuver to
avert the real possibility that this action will be compelled to
arbitration.”). There is not a single case in this Circuit holding that such
a basis for denying leave to amend or to add a necessary party is proper.11
Indeed, this Court’s own precedent establishes the opposite. For
example, in Yates v. Manale, this Court actually mandated that a district
11 The only cases that counsel for Plaintiff has found in which this Court upheld a
district court’s decision to deny leave to add a required party under Rule 19 have been
where (1) the district court determined that the party was not, in fact, required, see,
e.g., Hawthorne Land Co. v. Occidental Chem. Corp., 431 F.3d 221, 226 (5th Cir. 2005)
(“The court held that Nire was not a necessary party under Rule 19 . . . .”); or (2) if
the amendment would destroy diversity jurisdiction, and thus would be futile. See
Helms v. Speartex Grain Co., 983 F.2d 232 (5th Cir. 1993); Hensgens v. Deere & Co.,
833 F.2d 1179, 1182 (5th Cir. 1987). The District Court’s conclusion here does not
fall into either camp. Indeed, it concluded that this amendment would create
jurisdiction, precisely the opposite of cases such as Hensgens. ROA.232.
54
court grant leave to add an indispensable party even after the case was
dismissed if the plaintiff moved to do so:
The Commissioners are indispensable parties and the

judgment [dismissing the case] will be affirmed. However, if
the appellant shall, promptly upon the coming down of the
mandate herein, apply to the district court for leave to amend
her complaint by joining as parties defendant the several
Commissioners of the United States Civil Service
Commission, the district court is directed, in the interest of
justice, to grant such leave and allow such amendment.
Yates v. Manale, 341 F.3d 294, 294 (5th Cir. 1965) (per curiam). Further,
the mandate in the Rules of Civil Procedure and this Court’s own prior
precedent both require “freely” giving leave, especially if the proposed
amendments would confer jurisdiction. See Fed. R. Civ. P. 15(a)(2); see
also Watkins v. Lujan, 922 F.3d 261, 264 (5th Cir. 1991) (“[L]eave to
amend defective allegations of subject matter jurisdiction should be
freely given.”).
As this Court pointed out in Dussouy:
Discretion may be a misleading term, for rule 15(a) severely

restricts the judge’s freedom, directing that leave ‘shall be
freely given when justice so requires.’ It evinces a bias in
favor of granting leave to amend . . . . Thus unless there is a
substantial reason to deny leave to amend, the discretion of
the district court is not broad enough to permit denial.
55
Dussouy , 660 F.3d 594, 597-98 (5th Cir. 1981). The District Court
lacks discretion to deny leave to add a necessary party unless the party
is not necessary, or it would destroy jurisdiction. See Fed. R. Civ. P.
19(a)(1)(B)(i); n.11, supra. Put another way, failure to grant leave to add
a necessary party that would create jurisdiction is an abuse of discretion.
See id. That is exactly what happened here.
Here, the District Court did not provide a substantial or even
proper reason not to grant leave. In denying Robertson’s motion to
amend, the District Court refused to address any of the reasons
Robertson asked for leave to amend. More significantly, and improperly,
the District Court failed to make a determination one way or the other
whether Robertson Technologies was a required party. Without a
determination finding that Robertson Technologies is not, in fact, a
necessary party, the District Court lacks discretion to deny Robertson’s
motion to amend.
The District Court’s reliance on Mayeaux v. La. Health Serv. &
Indem. Co. and Goldstein v. MCI Worldcom is misplaced. In Mayeaux
the Fifth Circuit upheld the denial of a motion for leave to amend where
the plaintiffs were trying to drop their central claim, add a defendant,
56
and were “effectively reconstructing the case anew, after it had been
pending in the district court for years and was nearing the close of
extensive discovery.” Mayeux v. La. Health Serv. & Indem. Co., 376 F.3d
420, 427 (5th Cir.2004).
The procedural posture here is fundamentally different from that
in Mayeaux. Here, unlike in Mayeaux, no discovery has taken place and
the District Court has not even entered a scheduling order. In addition,
Robertson is seeking to add another plaintiff, not another defendant.
Further, Plaintiff is not dropping claims or “effectively reconstructing the
case anew.” Instead, Robertson merely seeks to add Robertson
Technologies to the exact same tortious interference claims he has
already brought against the same parties that Robertson is already suing
for tortious interference. Neither Mayeaux nor Rule 19 allows the
District Court to deny Robertson’s motion to amend under such
circumstances.
In Goldstein, the Fifth Circuit upheld a denial because in seeking
to amend the complaint a second time:
[The] plaintiffs did not demonstrate to the court how they

would replead scienter more specifically if given the
opportunity, did not proffer a proposed second amended
complaint to the district court, and did not suggest in their
57
responsive pleading any additional facts . . . that could, if

necessary cure the pleading defects raised by defendants.
Goldstein v. MCI WorldCom, 340 F.3d 238, 255 (5th Cir. 2003). Literally
none of the issues raised by this Court in Goldstein exist here. Indeed,
this was Robertson’s first request for leave to amend, he provided a
proposed amended complaint, and explained in his motion the specific
amendments sought and why they were necessary. ROA.147-68.
Finally, the District Court’s other alleged justification for denying
Robertson’s right to add a necessary party under Rule 19 is that the
amendment is untimely. ROA.231. The District Court cites Mayeux to
support this denial of leave. However, as described above, Mayeaux is
fundamentally different from this case. In Mayeaux, discovery was
almost over. Mayeux, 376 F.3d at 427 Here, not all Appellees have even
filed an answer, the court has not entered a scheduling order, no
deadlines have passed, and not a single page of discovery has been
produced.
Further, this Court has held that even a request to amend is not
untimely even after judgment has been entered. In Dussouy, this Court
held that moving to amend 41 days after dismissal of its claim did not
constitute undue delay. See Dussouy, 660 F.3d at 598. There, this Court
58
specifically stated that “mere passage of time need not result in refusal
of leave to amend; on the contrary, it is only undue delay that forecloses
amendment.” Id.
Here there has been no finding of undue delay. The District Court
abused its discretion in denying Robertson’s proper and valid motion for
leave to add a necessary party.
CONCLUSION
Because the plain text and legislative history of the federal
whistleblower statute establish that arbitration agreements required as
a condition of employment are not enforceable, arbitration may not be
compelled. Because the plain language of the arbitration agreement does
not cover either Robertson’s whistleblower claim or any of his tortious
interference claims, arbitration may not be compelled. Neither the
Magistrate Court nor Defendants have cited any persuasive cases
contradicting the above facts and legal analysis. Therefore, arbitration
may not be compelled. Finally, if arbitration is compelled, this case
should be stayed because not all claims are arbitrable, there is the
possibility that the parties will have to return to the District Court to
adjudicate some or all of these claims, and because dismissal would time-
59
bar all of Robertson’s claims. The District Court’s denial of leave to
amend is an abuse of discretion because it ignored the basis of
Robertson’s motion and merely denied his amendment because it would
establish jurisdiction.
For the foregoing reasons, Robertson requests that the District
Court’s July 30, 2019, order adopting the Magistrate’s Report and
dismissing this case be reversed in full, and for such other relief to which
he may be entitled.
Respectfully Submitted,
/s/ Colin Walsh

Colin Walsh
Board Certified in Labor and
Employment Law by the Texas Board
of Legal Specialization
WILEY WALSH, P.C.

1011 San Jacinto Blvd, Ste 401
Austin, TX 78701
Telephone: (512) 271-5527
Facsimile: (512) 201-1263
colin@wileywalsh.com
Austin Campbell
ROB WILEY, P.C.

2613 Thomas Ave.
Dallas, TX 75204
60
Telephone: (214) 528-6500

acampbell@robwiley.com
ATTORNEYS FOR APPELLANT
CERTIFICATE OF SERVICE
I, Colin Walsh, certify that today, November 11, 2019, a copy of the
Initial Brief of Appellant was served upon the following individuals at
the following email addresses for the Appellees via the Court’s ECF
system:
Laura E. De Santos, ldesantos@grsm.com;
Lessie C. Gilstrap, lgilstrap@fbhg.law;
Heidi J. Gumienny, hgumienny@grsm.com;
Stephen J. Van Stempvoort
vanstempvoorts@millerjohnson.com.
/s/ Colin Walsh

Colin Walsh
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(g), undersigned counsel certifies
that this brief complies with the type-volume limitations of Fed. R. App.
P. 32(a)(7)(B)(i).
61
1. Exclusive of the portions exempted by Fed. R. App. P. 32(f), this
brief contains 11,798 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using
Century Schoolbook 14-point font in text and Century Schoolbook 12-
point font in footnotes produced by Microsoft Word.
3. Upon request, undersigned counsel will provide an electronic
version of this brief and/or a copy of the word printout to the Court.
4. Undersigned counsel understands that a material
misrepresentation in completing this certificate, or circumvention of the
type-volume limits in Fed. R. App. P. 32(a)(7)(B)(i), may result in the
Court’s striking this brief and imposing sanctions against the person who
signed it.
/s/ Colin Walsh

Colin Walsh
62

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Case: 19-50792 Document: 00515189942 Page: 1 Date Filed: 11/06/2019

IN THE UNITED STATES COURT OF APPEALS

JAMES W. ROBERTSON, SR.,

ROBERTSON TECHNOLOGIES, INCORPORATED

INTRATEK COMPUTER, INCORPORATED; ALLAN FAHAMI;

Appeal from the United States District Court

INITIAL BRIEF OF APPELLANT

Colin Walsh Austin Campbell

WILEY WALSH, P.C. ROB WILEY, P.C.

ATTORNEYS FOR APPELLANT

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed

persons and entities as described in the fourth sentence of Rule 28.2.1

have an interest in the outcome of this case. These representations are

James W. Robertson, Sr. – Plaintiff/Appellant

Robertson Technologies, Inc. – Appellant

Colin Walsh – Counsel for Plaintiff/Appellants

Austin Campbell – Counsel for Plaintiff/Appellants

Robert J. Wiley – Counsel for Plaintiff/Appellants

Wiley Walsh, P.C. – Counsel for Plaintiff/Appellants

Rob Wiley, P.C. – Counsel for Plaintiff/Appellants

Intratek Computer, Inc. – Defendant/Appellee

Allan Fahami – Defendant/Appellee

Roger Hayes Rininger – Defendant/Appellee

Jason Crow– Counsel for Defendant/Appellee Rininger

Laura De Santos – Counsel for Defendants/Appellees Intratek &

Lessie Gilstrap – Counsel for Defendants/Appellees Rininger

Heidi Gumienny - Counsel for Defendants/Appellees Intratek &

Stephen Van Stempvoort – Counsel for Defendant/Appellee

Miller Johnson – Counsel for Defendant/Appellee Rininger

Gordon & Rees, LLP – Counsel for Defendants/Appellees Intratek

Fritz, Byrne, Head & Gilstrap, PLLC – Counsel for

/s/ Colin Walsh

REQUEST FOR ORAL ARGUMENT

Appellant requests oral argument on a matter of first impression in

the Courts of Appeal of any Circuit:

Does 41 U.S.C. § 4712(c)(7) prohibit enforcement of

may not be waived by any agreement, policy, form, or condition of employment.”

41 U.S.C. § 4712(c)(7). The rights and remedies listed explicitly include

(c)(2). The legislative history confirms Congress intended subsection

(c)(7)’s prohibition to include mandatory arbitration agreements. See

Intratek required Robertson to sign an arbitration agreement as a

condition of employment. Despite the statute, the District Court

compelled arbitration of Robertson’s 41 U.S.C. § 4712 claim because of a

policy favoring arbitration. ROA.230. However, “courts aren’t free to

Certificate of Interested Persons ............................................................... ii

Request for Oral Argument....................................................................... iv

Table of Authorities ................................................................................... ix

Issues Presented ......................................................................................... 2

Statement of the Case ................................................................................ 5

A. Robertson started working for Intratek Computer in 2011. ........ 5

B. The plain language of the Intratek Arbitration Agreement does

C. Intratek’s CEO obtained early non-public information relating to

D. Fahami and Intratek bribed officials at the VA in order to receive

E. Fahami and Intratek asked Robertson to engage in unlawful

F. Intratek terminated Robertson for telling Fahami that the bribes

G. Robertson reported the bribes and unlawful conduct to the Office

H. After Intratek fired Robertson, Intratek, Fahami, and Rininger, a

I. On May 3, 2018, Robertson filed suit under seal. ...................... 12

J. In September 2018, Intratek and Fahami moved to stay the case

Summary of the Argument ...................................................................... 15

Standard of Review .................................................................................. 19

I. The standard of review for an order compelling arbitration is de

II. The standard of review for denial of a motion to amend is abuse of

Appellant's Brief

Appellant's Brief