                                                                            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                            NOT FOR PUBLICATION                              FEB 14 2011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


                                            2
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


                                           3
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




                                            4
[under the False Claims Act] fails for the same reasons as his [federal False Claim

Act] claim fails.”

      AFFIRMED.




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