UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT THOMAS MOONEY, Nos. 22-16328 23-15158 Plaintiff-Appellant, D.C. No. v. 2:17-cv-02191- JCM-EJY DOUGLAS FIFE, M.D.; HEATHER FIFE; FIFE DERMATOLOGY, PC, DBA Surgical Dermatology & Laser OPINION Center, DBA Vivida Dermatology,

Defendants-Appellees, and ALAN ARNOLD, M.D.; VICTORIA FARLEY, M.D.; ELIZABETH LANGFORD, D.O.; MAC MACHAN, M.D.,

Defendants.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding 2 MOONEY V. FIFE

Argued and Submitted March 5, 2024 Las Vegas, Nevada

Filed September 30, 2024

Before: Milan D. Smith, Jr., Mark J. Bennett, and Daniel P. Collins, Circuit Judges.

Opinion by Judge Bennett; Partial Concurrence by Judge Collins

SUMMARY*

False Claims Act

The panel reversed the district court’s summary judgment in favor of the defendants in a qui tam action under the False Claims Act and remanded for further proceedings. Plaintiff Thomas Mooney was employed as chief operating officer for Dr. Douglas Fife, his wife Heather Fife, and Fife Dermatology, PC, d/b/a Vivida Dermatology. Mooney alleged concerns about improper billing practices at Vivida. Following a conversation between Mooney and a dermatologist belonging to another practice, Vivida terminated his employment, citing unauthorized disclosure of confidential information in violation of Mooney’s employment agreement.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MOONEY V. FIFE 3

The panel held that a False Claims Act retaliation claim requires proof of three elements: (1) protected conduct; (2) notice; and (3) causation. Following most of the other circuits that had considered the issue, the panel clarified that in analyzing a retaliation claim, a court must use the McDonnell Douglas burden-shifting framework, rather than the Mt. Healthy framework commonly applied to First Amendment retaliation claims. Under the McDonnell Douglas framework, once an employee has established a prima facie case of retaliation, the burden shifts to the employer to produce a legitimate, non-retaliatory reason for the employee’s termination. Then, if the employer produces such a reason, the burden shifts to the employee to show that the proffered explanation was pretextual. In 2009, Congress amended 31 U.S.C. § 3730(h) to provide that, in addition to protecting lawful acts done by the employee, the False Claims Act also protects employees from being discharged because of efforts to stop violations of the Act. Prior to this amendment, this court held that, under the Moore test, protected conduct had both a subjective and an objective component. Thus, an employee engaged in protected activity where (1) the employee in good faith believed, and (2) a reasonable employee in the same or similar circumstances might believe, that the employer was possibly committing fraud against the government. In U.S. ex rel. Hopper v. Anton, 91 F.3d 1261 (9th Cir. 1996), this court also held that the employee must be investigating matters that were calculated, or reasonably could lead, to a viable action under the False Claims Act. Agreeing with the Eleventh Circuit, the panel held that Hopper’s “investigating” requirement does not apply when the employee alleges that he was discharged because of efforts to stop violations of the Act. The panel further held 4 MOONEY V.