                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                              JUN 25 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

RICHARD YOCUM, M.D., an individual,             No. 13-55919

             Plaintiff - Appellant,             D.C. No. 3:12-cv-00568-GPC-
                                                MDD
       v.

ROCKWELL MEDICAL                                MEMORANDUM*
TECHNOLOGIES, INC., a Michigan
corporation,

             Defendant - Appellee.

                   Appeal from the United States District Court
                     for the Southern District of California
                   Gonzalo P. Curiel, District Judge, Presiding

                        Argued and Submitted June 2, 2015
                              Pasadena, California

Before: FERNANDEZ, FISHER and BEA, Circuit Judges.

      Richard Yocum appeals the summary judgment entered in favor of Rockwell

Medical Technologies on his claim under California law for wrongful termination

in violation of public policy. We have jurisdiction under 28 U.S.C. § 1291, we

review de novo, and we affirm.


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. Under California law, wrongful termination of employment in violation

of public policy may be based on a claim that the employer retaliated against the

employee for engaging in conduct protected by a public policy embodied in a

legislative source. The California Supreme Court has observed that retaliatory

termination cases generally fall into four categories, only the fourth of which is

relevant here: reporting an alleged violation of a law of public importance. See

Gantt v. Sentry Ins., 824 P.2d 680, 684 (Cal. 1992), overruled on other grounds by

Green v. Ralee Eng’g Co., 960 P.2d 1046 (Cal. 1998). To satisfy this requirement,

an employee must either “prove an actual violation of law” or show that “the

employer fired him for reporting his ‘reasonably based suspicions’ of illegal

activity.” Green, 960 P.2d at 1059.

      Yocum has not met this standard with respect to either the U.S. Food and

Drug Administration’s (FDA) regulation governing the promotion of

investigational drugs, 21 C.F.R. § 312.7, or the U.S. Securities and Exchange

Commission’s regulation regarding the selective disclosure of material information

to investors, Regulation FD, 17 C.F.R. § 243.100. Yocum has not argued that

Rockwell engaged in an actual violation of these regulations. Additionally,

although he argues in his briefs that he reasonably believed Rockwell had violated

these regulations, he has not presented any evidence that he held those beliefs


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during the time he worked for Rockwell. At argument, Yocum’s counsel asked us

to review pages 776-79 and 784-85 of the excerpts of record. We have done so.

Nothing in those excerpts creates a triable issue that Yocum believed at the time of

his employment that Rockwell’s actions were illegal, or that he ever informed his

superiors at Rockwell that he believed their conduct might violate § 312.7 or

Regulation FD. In short, because he has not presented any evidence that he

reported an alleged violation of § 312.7 or Regulation FD during his tenure at

Rockwell, the district court properly granted summary judgment to Rockwell on

Yocum’s wrongful termination claims relying on these two regulations.

      2. Yocum’s wrongful termination claim premised on Rockwell’s alleged

violations of FDA label requirements and International Conference on

Harmonisation (ICH) Principle 2.3 fails as well. For a policy to support a

wrongful discharge claim, it must be delineated in a constitutional, statutory or

regulatory provision. See Stevenson v. Superior Court, 941 P.2d 1157, 1161 (Cal.

1997); Green, 960 P.2d at 1054; Scott v. Phoenix Sch., Inc., 96 Cal. Rptr. 3d 159,

165 (Ct. App. 2009). Here, as Yocum’s attorney conceded at oral argument,

neither the FDA label requirements nor the ICH principles are delineated in

constitutional, statutory or regulatory provisions. The district court therefore




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properly granted summary judgment to Rockwell on Yocum’s wrongful

termination claim relying on these authorities.

      3. Both the appellant and this court have been prejudiced in this matter by

the unprofessional conduct of Scott E. Combs, counsel for Rockwell. Combs’

answering brief failed to provide record citations, as Circuit Rule 28-2.8 requires.

See 9th Cir. R. 28-2.8 (“Every assertion in briefs regarding matters in the record

shall be supported by a reference to the location in the excerpts of record where the

matter is to be found.”); Circuit Advisory Committee Note to Rule 28-2

(“Sanctions may be imposed for failure to comply with this rule, particularly with

respect to record references.”); Mitchel v. Gen. Elec. Co., 689 F.2d 877, 879 (9th

Cir. 1982) (imposing sanctions for failing to provide record citations). In addition,

Combs failed to appear for oral argument and, although he later stated he had

misfiled a motion to appear by telephone, he was not in his office when the Deputy

Clerk called to inquire about his absence, causing significant inconvenience to the

court and appellant’s counsel, and he failed to confirm that his motion was granted

before disregarding his obligation to appear for argument. See Fed. R. App. P.

46(c) (“A court of appeals may discipline an attorney who practices before it for

conduct unbecoming a member of the bar or for failure to comply with any court

rule.”); McGinnis v. Anchorage Sch. Dist., 166 F.3d 343 (9th Cir. 1998) (mem.).


                                          4
Although we refrain from imposing sanctions, we admonish Combs that his

conduct in this matter does not satisfy the professional standards of this court. See

Latch v. United States, 842 F.2d 1031, 1032 n.1 (9th Cir. 1988).

      Exercising our discretion under Rule 39, we deny costs to appellee. See Fed.

R. App. P. 39(a); Charles Alan Wright et al., 16AA Federal Practice and Procedure

§ 3985 (4th ed. 2015); cf. Ass’n of Mexican-Am. Educators v. State of California,

231 F.3d 572, 592 (9th Cir. 2000) (en banc) (noting that, under Federal Rule of

Civil Procedure 54, a district court has discretion to deny costs to a prevailing party

to account for that party’s misconduct).

      Each party shall bear its own costs on appeal.

      AFFIRMED.




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