NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 30 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
Mr. DONALD TIMM; Mr. REED No. 25-4778 WIMAN; PERIPHERY D.C. No. NEUROPHYSIOLOGY, LLC, a foreign 2:24-cv-01570-BJR limited liability company,
Plaintiffs - Appellants, MEMORANDUM*
v.
JEFFREY G. OJEMANN, MD; SEATTLE CHILDREN’S HOSPITAL, a Washington non-profit corporation; PETER C. ESSELMAN, MD; GREGORY KINNEY, PhD; ASSOCIATION OF CHRMC AND UNIVERSITY PHYSICIANS, a Washington non-profit Corporation doing business as Children’s University Medical Group; ASSOCIATION OF UNIVERSITY PHYSICIANS, a Washington non-profit corporation doing business as UW Physicians; STATE OF WASHINGTON, agent of University of Washington School of Medicine agent of University of Washington Medicine agent of UW Medicine; JONATHAN PERKINS, DO; SAMUEL BROWD, MD,
Defendants - Appellees.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Western District of Washington Barbara Jacobs Rothstein, District Judge, Presiding
Argued and Submitted June 11, 2026 Seattle, Washington
Before: M. SMITH and TUNG, Circuit Judges, and HINDERAKER, District Judge.** Partial Concurrence and Partial Dissent by Judge Tung.
Plaintiff-Appellant Donald Timm, joined by Plaintiffs-Appellants Reed
Wiman and Periphery Neurophysiology, LLC (Periphery), appeal the district
court’s decision to dismiss with prejudice their claim for retaliation under the False
Claims Act (FCA), 31 U.S.C. § 3730(h), for failure to state a claim, and also
appeal the district court’s denial of their motion to alter or amend the judgment
pursuant to Federal Rule of Civil Procedure 59(e). We have jurisdiction pursuant
to 28 U.S.C. § 1291, and we affirm in part and reverse and remand in part. We
recount the facts of this case only as necessary to our disposition.
1. We review de novo a district court’s dismissal for failure to state a
claim. See Benavidez v. County of San Diego, 993 F.3d 1134, 1141 (9th Cir.
2021). To state a claim for retaliation under the FCA, a plaintiff must plausibly
allege that: (i) the plaintiff engaged in FCA-protected conduct; (ii) the defendant
knew that the plaintiff engaged in protected conduct; and (iii) the defendant
** The Honorable John Charles Hinderaker, United States District Judge for the District of Arizona, sitting by designation.
2 25-4778 discriminated against the plaintiff because they engaged in protected conduct. See
Mooney v. Fife, 118 F.4th 1081, 1089 (9th Cir. 2024). We affirm the district
court’s dismissal of Plaintiffs’ retaliation claim against Seattle Children’s Hospital
(SCH) for failure to state a claim. Even assuming that Plaintiffs engaged in
protected activity when they reported their concerns about SCH’s use of University
of Washington (UW) professionals with Ph.D.s to provide oversight services
during intraoperative neurophysiological monitoring (IONM) procedures, Plaintiffs
have failed to plausibly allege that SCH took retaliatory action against them
because they did so.
First, Plaintiffs alleged that SCH retaliated against them by replacing them
with another provider, Specialty Care, on scheduled procedures “involving the UW
Ph.D.s.” However, Plaintiffs do not direct us to any plausible, non-conclusory
allegation in their second amended complaint (SAC) that SCH replaced Periphery
technologists with Specialty Care providers because Plaintiffs reported their
concern about the UW oversight professionals. Instead, SCH allowed its surgeons
to continue using the UW oversight professionals if the surgeons preferred, which
necessarily meant that Plaintiffs would not work on all scheduled procedures
because Plaintiffs were unwilling to work with UW oversight professionals.
Plaintiffs’ allegation that SCH harassed them in retaliation for their
protected activity fares no better. As the district court concluded, Plaintiffs did not
3 25-4778 raise any allegation of harassment in opposition to the Defendants’ motion to
dismiss. On appeal, Plaintiffs highlight their allegation that Defendant Dr.
Gregory Kinney emailed Timm and “accused” Plaintiffs of “getting [the UW
oversight professionals] removed from SCH.” But Kinney is a University of
Washington employee, not an SCH employee. Plaintiffs bring their FCA
retaliation claim against SCH alone.1
Plaintiffs also highlight on appeal their allegation that Defendant Dr.
Jonathan Perkins, an SCH surgeon, was once “visibly angry” toward them in an
operating room, but we are not persuaded that this allegation plausibly alleges that
SCH harassed them because of their alleged protected conduct. Regardless, the
allegation is insufficient to state a claim for actionable harassment under the FCA.
See Moore v. Cal. Inst. of Tech. Jet Propulsion Lab’y, 275 F.3d 838, 847–48 (9th
Cir. 2002).
Last, we reject Plaintiffs’ “constructive non-renewal” theory as a matter of
law. While non-renewal of an employment contract may constitute retaliation, see
MacIntyre v. Carroll Coll., 48 F.4th 950, 955–56 (9th Cir. 2022), Plaintiffs’
constructive non-renewal theory is not cognizable on the facts alleged. See Poland
v. Chertoff, 494 F.3d 1174, 1184–86 (9th Cir. 2007); Brooks v. City of San Mateo,
1 Plaintiffs also initially asserted this claim against Children’s University Medical Group (CUMG), but they voluntarily withdrew the claim with respect to CUMG.
4 25-4778 229 F.3d 917, 930 (9th Cir. 2000). A claim for constructive discharge requires that
a “reasonable person in [the plaintiff’s] position” would have “felt that he was
forced to quit because of intolerable and discriminatory working conditions.”
Moore, 275 F.3d at 847 (citation modified). But Plaintiffs continued to provide
IONM services for over 15 months after reporting their compliance concerns.
Such conduct is inconsistent with their argument that a reasonable person in their
position would have “felt . . . forced” to discontinue working with SCH “because
of intolerable and discriminatory working conditions.” Id. (citation modified).
Instead, Plaintiffs tolerated their working conditions until the term of their initial
agreement ended and chose to cut off discussions with SCH related to renewal of
that agreement. Thus, the district court correctly concluded that “Plaintiffs’
attempt to characterize their decision to abandon contract negotiations as a
retaliatory act by SCH is unsubstantiated and implausible.”
Accordingly, we affirm the district court’s dismissal of Plaintiffs’ claim for
retaliation under the FCA.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 30 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
Mr. DONALD TIMM; Mr. REED No. 25-4778 WIMAN; PERIPHERY D.C. No. NEUROPHYSIOLOGY, LLC, a foreign 2:24-cv-01570-BJR limited liability company,
Plaintiffs - Appellants, MEMORANDUM*
v.
JEFFREY G. OJEMANN, MD; SEATTLE CHILDREN’S HOSPITAL, a Washington non-profit corporation; PETER C. ESSELMAN, MD; GREGORY KINNEY, PhD; ASSOCIATION OF CHRMC AND UNIVERSITY PHYSICIANS, a Washington non-profit Corporation doing business as Children’s University Medical Group; ASSOCIATION OF UNIVERSITY PHYSICIANS, a Washington non-profit corporation doing business as UW Physicians; STATE OF WASHINGTON, agent of University of Washington School of Medicine agent of University of Washington Medicine agent of UW Medicine; JONATHAN PERKINS, DO; SAMUEL BROWD, MD,
Defendants - Appellees.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Western District of Washington Barbara Jacobs Rothstein, District Judge, Presiding
Argued and Submitted June 11, 2026 Seattle, Washington
Before: M. SMITH and TUNG, Circuit Judges, and HINDERAKER, District Judge.** Partial Concurrence and Partial Dissent by Judge Tung.
Plaintiff-Appellant Donald Timm, joined by Plaintiffs-Appellants Reed
Wiman and Periphery Neurophysiology, LLC (Periphery), appeal the district
court’s decision to dismiss with prejudice their claim for retaliation under the False
Claims Act (FCA), 31 U.S.C. § 3730(h), for failure to state a claim, and also
appeal the district court’s denial of their motion to alter or amend the judgment
pursuant to Federal Rule of Civil Procedure 59(e). We have jurisdiction pursuant
to 28 U.S.C. § 1291, and we affirm in part and reverse and remand in part. We
recount the facts of this case only as necessary to our disposition.
1. We review de novo a district court’s dismissal for failure to state a
claim. See Benavidez v. County of San Diego, 993 F.3d 1134, 1141 (9th Cir.
2021). To state a claim for retaliation under the FCA, a plaintiff must plausibly
allege that: (i) the plaintiff engaged in FCA-protected conduct; (ii) the defendant
knew that the plaintiff engaged in protected conduct; and (iii) the defendant
** The Honorable John Charles Hinderaker, United States District Judge for the District of Arizona, sitting by designation.
2 25-4778 discriminated against the plaintiff because they engaged in protected conduct. See
Mooney v. Fife, 118 F.4th 1081, 1089 (9th Cir. 2024). We affirm the district
court’s dismissal of Plaintiffs’ retaliation claim against Seattle Children’s Hospital
(SCH) for failure to state a claim. Even assuming that Plaintiffs engaged in
protected activity when they reported their concerns about SCH’s use of University
of Washington (UW) professionals with Ph.D.s to provide oversight services
during intraoperative neurophysiological monitoring (IONM) procedures, Plaintiffs
have failed to plausibly allege that SCH took retaliatory action against them
because they did so.
First, Plaintiffs alleged that SCH retaliated against them by replacing them
with another provider, Specialty Care, on scheduled procedures “involving the UW
Ph.D.s.” However, Plaintiffs do not direct us to any plausible, non-conclusory
allegation in their second amended complaint (SAC) that SCH replaced Periphery
technologists with Specialty Care providers because Plaintiffs reported their
concern about the UW oversight professionals. Instead, SCH allowed its surgeons
to continue using the UW oversight professionals if the surgeons preferred, which
necessarily meant that Plaintiffs would not work on all scheduled procedures
because Plaintiffs were unwilling to work with UW oversight professionals.
Plaintiffs’ allegation that SCH harassed them in retaliation for their
protected activity fares no better. As the district court concluded, Plaintiffs did not
3 25-4778 raise any allegation of harassment in opposition to the Defendants’ motion to
dismiss. On appeal, Plaintiffs highlight their allegation that Defendant Dr.
Gregory Kinney emailed Timm and “accused” Plaintiffs of “getting [the UW
oversight professionals] removed from SCH.” But Kinney is a University of
Washington employee, not an SCH employee. Plaintiffs bring their FCA
retaliation claim against SCH alone.1
Plaintiffs also highlight on appeal their allegation that Defendant Dr.
Jonathan Perkins, an SCH surgeon, was once “visibly angry” toward them in an
operating room, but we are not persuaded that this allegation plausibly alleges that
SCH harassed them because of their alleged protected conduct. Regardless, the
allegation is insufficient to state a claim for actionable harassment under the FCA.
See Moore v. Cal. Inst. of Tech. Jet Propulsion Lab’y, 275 F.3d 838, 847–48 (9th
Cir. 2002).
Last, we reject Plaintiffs’ “constructive non-renewal” theory as a matter of
law. While non-renewal of an employment contract may constitute retaliation, see
MacIntyre v. Carroll Coll., 48 F.4th 950, 955–56 (9th Cir. 2022), Plaintiffs’
constructive non-renewal theory is not cognizable on the facts alleged. See Poland
v. Chertoff, 494 F.3d 1174, 1184–86 (9th Cir. 2007); Brooks v. City of San Mateo,
1 Plaintiffs also initially asserted this claim against Children’s University Medical Group (CUMG), but they voluntarily withdrew the claim with respect to CUMG.
4 25-4778 229 F.3d 917, 930 (9th Cir. 2000). A claim for constructive discharge requires that
a “reasonable person in [the plaintiff’s] position” would have “felt that he was
forced to quit because of intolerable and discriminatory working conditions.”
Moore, 275 F.3d at 847 (citation modified). But Plaintiffs continued to provide
IONM services for over 15 months after reporting their compliance concerns.
Such conduct is inconsistent with their argument that a reasonable person in their
position would have “felt . . . forced” to discontinue working with SCH “because
of intolerable and discriminatory working conditions.” Id. (citation modified).
Instead, Plaintiffs tolerated their working conditions until the term of their initial
agreement ended and chose to cut off discussions with SCH related to renewal of
that agreement. Thus, the district court correctly concluded that “Plaintiffs’
attempt to characterize their decision to abandon contract negotiations as a
retaliatory act by SCH is unsubstantiated and implausible.”
Accordingly, we affirm the district court’s dismissal of Plaintiffs’ claim for
retaliation under the FCA. Plaintiffs’ other claims were brought pursuant to state
law, and the district court did not abuse its discretion by declining to exercise
supplemental jurisdiction over them. See 28 U.S.C. § 1367(c)(3).
2. We review a district court’s dismissal with prejudice for abuse of
discretion. Benavidez, 993 F.3d at 1141–42. Here, we conclude that the district
court abused its discretion by dismissing the SAC with prejudice without
5 25-4778 explanation. “A simple denial of leave to amend without any explanation by the
district court is subject to reversal” because “[s]uch a judgment is ‘not an exercise
of discretion’” at all. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052
(9th Cir. 2003) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Federal
courts consider various factors when deciding whether leave to amend is
appropriate, Foman, 371 U.S. at 182, but the district court failed to explain which,
if any, justified its denial. “Because the district court did not determine, nor can
we conclude, that the allegation of other facts could not possibly cure the
deficiencies in [Plaintiffs’] complaint,” Doe v. United States, 58 F.3d 494, 496 (9th
Cir. 1995) (citation modified), we reverse and remand to the district court for
further consideration. See United States v. Webb, 655 F.2d 977, 980 (9th Cir.
1981).
3. Reviewing for abuse of discretion, see Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 877, 883, 890 (9th Cir. 2000), we affirm the district court’s
denial of Plaintiffs’ motion to amend or alter the district court’s judgment pursuant
to Federal Rule of Civil Procedure 59(e). Even assuming that the evidence
referenced in Plaintiffs’ motion could be considered “new,” we are not persuaded
that the district court applied the wrong legal standard, nor are we left with a
“definite and firm conviction” that the district court erred by concluding that
Plaintiffs failed to demonstrate that their proffered exhibits would have been
6 25-4778 material or reviewable at this stage. United States v. Hinkson, 585 F.3d 1247,
1261–63 (9th Cir. 2009).
AFFIRMED in part and REVERSED & REMANDED in part.2 The
pending motion to vacate the district court’s order staying its remand order, Dkt.
17, is DENIED as moot.3
2 Each party shall bear their own costs on appeal. See Fed. R. App. P. 39(a)(4). 3 To the extent that Plaintiffs challenge the district court’s order staying its own remand order in their opening brief, we deny that request as moot.
7 25-4778 FILED JUN 30 2026 Timm, et al. v. Ojemann, et al., Case No. 25-4778 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS TUNG, Circuit Judge, concurring in part and dissenting in part: I concur in all parts of the panel’s order, except for its reversal of the district
court’s dismissal of Plaintiffs’ complaint with prejudice. In my view, the district
court properly dismissed the complaint with prejudice. I would affirm in full.
Plaintiffs contracted with Seattle Children’s Hospital to provide intraoperative
neurophysiological monitoring services. That relationship soured. Plaintiffs sued
the Hospital and other defendants under the False Claims Act and state causes of
action, alleging that Defendants retaliated against Plaintiffs (by replacing Plaintiffs
with other providers and denying contract renewal) after Plaintiffs complained about
purported substandard licensing requirements for other Hospital contractors.
The district court dismissed Plaintiffs’ complaint with prejudice after the
Plaintiffs had already amended their complaint twice. We review a district court’s
denial of leave to amend for abuse of discretion. Dougherty v. City of Covina, 654
F.3d 892, 897 (9th Cir. 2011). “While it may be preferable that reasons [for dismissal
with prejudice] be stated on the record,” we have excused a district court’s failure to
do so when “it seems fairly obvious that denial was based on the futility of
amendment.” Roth v. Garcia Marquez, 942 F.2d 617, 629 (9th Cir. 1991).
Amendment would have been futile here. We know this, because none of the
additional evidence that Plaintiffs proffered in their motion to amend or alter the
1 judgment under Federal Rule of Civil Procedure 59(e)—which the district court
denied—would have salvaged his dismissed complaint. The evidence consisted of
communications related to the licensure requirements for oversight professionals (1–
SER–66–71); communications at the Hospital about Plaintiffs’ concern over the
conduct of certain professionals working for the Hospital (1–SER–72–73); and
communications between the Hospital and the University of Washington regarding
Plaintiffs’ replacement (1–SER–80). None of this was material to Plaintiffs’
retaliation claim, as the district court concluded. 1–SER–10. And today, the panel
does not disturb that conclusion in affirming the district court’s denial of Plaintiffs’
motion to amend or alter the judgment. Op. at 6. Following that logic, the panel
should have likewise affirmed the district court’s dismissal with prejudice.
The panel’s order reversing and remanding thus serves only to add pointless
work atop a district court’s already full plate. Our job is not to force district court
judges to carry coals to Newcastle. We should be affirming when the judgment is
obviously supported by the record. I respectfully dissent.