FILED
NOT FOR PUBLICATION FEB 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
AARON TRIBBLE, No. 09-56669
Plaintiff - Appellant, D.C. No. 2:07-cv-03058-JFW-SH
v.
MEMORANDUM *
RAYTHEON COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted February 9, 2011 **
Pasadena, California
Before: PREGERSON and WARDLAW, Circuit Judges, and ZOUHARY, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jack Zouhary, District Judge for the U.S. District
Court for Northern Ohio, Toledo, sitting by designation.
Plaintiff-Appellant Aaron Tribble (“Tribble”) filed a complaint against his
former employer Defendant-Appellee Raytheon Company (“Raytheon”), asserting
two claims for relief: (1) retaliation in violation of the False Claims Act, 31 U.S.C.
§ 3730(h), and (2) wrongful termination in violation of public policy, a California
state law tort. The district court granted Raytheon’s motion for summary judgment
on both claims. We affirm.
a. Tribble’s False Claims Act Retaliation Claim
“A plaintiff alleging a [False Claims Act] retaliation claim must show three
elements: (1) that he or she engaged in activity protected under the statute; (2) that
the employer knew the plaintiff engaged in protected activity; and (3) that the
employer discriminated against the plaintiff because he or she engaged in protected
activity.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir.
2008).
The district court correctly concluded that Tribble was not engaged in
protected activity under the False Claims Act because there is no evidence to
suggest that Tribble had a good faith belief that Raytheon was “possibly
committing fraud against the government.” Moore v. Cal. Inst. of Tech. Jet
Propulsion Lab., 275 F.3d 838, 845 (9th Cir. 2002). Tribble’s evidence merely
shows that in the course of doing his job, he stated in a PowerPoint presentation
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that a failed night vision unit returned by a South Korean customer may have had a
latent defect and that further testing was necessary to determine the cause of the
unit’s failure. There is no evidence that Tribble took any additional steps to pursue
the alleged latent defect after the submission of his PowerPoint presentation, nor
that he believed Raytheon’s failure to investigate the latent defect constituted fraud
against the U.S. government.
Further, even if Tribble was engaged in protected conduct, Raytheon had no
notice that Tribble was engaged in such conduct because Tribble never indicated to
anyone at Raytheon that he was concerned about fraud or false claims against the
U.S. government. Thus, the district court did not err in granting summary
judgment in favor of Raytheon on Tribble’s federal False Claims Act claim.
b. Wrongful Termination in Violation of Public Policy
Tribble’s state law tort claim alleged in his First Amended Complaint
focuses entirely on the theory that Tribble was wrongfully terminated in violation
of the policies underlying the False Claims Act. Tribble’s attempt to argue at the
summary judgment stage, and to this court, that he was wrongfully terminated in
violation of the policies underlying Title 48 of the Code of Federal Regulations is
impermissible under Federal Rule of Civil Procedure 8. See Kearns v. Ford Motor
Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (“[T]he Federal Rules of Civil Procedure
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apply in federal court, irrespective of the source of the subject matter jurisdiction,
and irrespective of whether the substantive law at issue is state or federal.”
(internal quotation marks and citation omitted)); see also Pickern v. Pier 1 Imports
(U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006) (“Rule 8’s liberal notice pleading
standard . . . requires that the allegations in the complaint ‘give the defendant fair
notice of what the plaintiff’s claim is and the grounds upon which it rests.’”
(citation omitted)).
Because Tribble’s claim of wrongful termination in violation of public
policy is a California state law claim, we apply California substantive law. Bass v.
First Pac. Networks, Inc., 219 F.3d 1052, 1055 n.2 (9th Cir. 2000) (“[A] federal
court exercising supplemental jurisdiction over state law claims is bound to apply
the law of the forum state . . . .”). Under California law, “when the . . . statute
articulating a public policy also includes certain substantive limitations in scope or
remedy, these limitations also circumscribe the common law wrongful discharge
cause of action.
Stated another way, “the common law cause of action cannot be broader
than the . . . statute on which it depends . . . .” City of Moorpark v. Superior Court,
18 Cal. 4th 1143, 1159 (1998). The district court correctly concluded that
Tribble’s “state law claim for wrongful termination in violation of public policy
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[under the False Claims Act] fails for the same reasons as his [federal False Claim
Act] claim fails.”
AFFIRMED.
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