FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIE BERNADETTE MENDIONDO, 

a/k/a Seal 3,

Plaintiff-Appellant, No. 06-55981

v. D.C. No.

CENTINELA HOSPITAL MEDICAL  CV-03-05757-TJH

CENTER, a/k/a Seal A; TENET OPINION HEALTHCARE CORPORATION, aka

Seal 3

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

Terry J. Hatter, District Judge, Presiding

Argued and Submitted

February 15, 2008—Pasadena, California

Filed April 1, 2008

Before: Stephen S. Trott, Richard R. Clifton, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

3343
COUNSEL

Gerald M. Serlin (briefed and argued), Douglas G. Benedon

(briefed); Marcus A. Mancini (briefed), Sherman Oaks and

Woodland Hills, California, for the appellant.

Jennifer Blair (briefed); Susan S. Azad (briefed and argued),

Los Angeles, California, for the appellees.

OPINION

CALLAHAN, Circuit Judge: 

Marie Bernadette Mendiondo appeals from the district

court’s order dismissing her complaint. Mendiondo worked as

3346 MENDIONDO v. CENTINELA HOSPITAL
a nurse at Centinela Hospital Medical Center (“CHMC”) and

alleged that, following her complaints regarding false billing

and reimbursement practices and substandard patient care, she

was wrongfully terminated in violation of the Federal False

Claims Act (“FCA”) (31 U.S.C. § 3730(h)), the California

False Claims Act (“CFCA”) (California Government Code

§ 12653(b)), California Health and Safety Code § 1278.5, and

the public policies embodied by these laws. 

This appeal requires that we decide whether a claim for

wrongful termination under the FCA and CFCA, brought in

federal court, must meet the notice pleading standard in Federal Rule of Civil Procedure 8(a) or the heightened pleading

standard in Rule 9(b). We hold that the Rule 8(a) standard

applies. Because Mendiondo’s complaint, though inartfully

drafted, meets the Rule 8(a) notice pleading standard with

respect to all of her claims, we reverse and remand. 

I. BACKGROUND 

A. Factual History1

Mendiondo began her nursing career in 1975 and specialized in critical care. In 2000, she accepted a nursing position

in the cardiovascular department at CHMC. Mendiondo

detected certain practices at CHMC that were intended to

inflate Medicare reimbursements and alleges that she was

investigating these practices. She alleges, for example, that

one of the doctors at CHMC ordered and performed numerous

unnecessary cardiac catheterizations, including repeat catheterizations on the same patients. Additionally, Mendiondo

claims that the hospital insisted on implanting single ventricular pacemakers, even when patients needed biventricular

pacemakers, because the single pacemakers resulted in higher

1The following facts are taken from Mendiondo’s complaint. In reviewing a motion to dismiss, we accept the alleged facts as true. Kutasi v. Las

Virgenes Unified Sch. Dist., 494 F.3d 1162, 1164 n.1 (9th Cir. 2007). 

MENDIONDO v. CENTINELA HOSPITAL 3347
Medicare reimbursements. Mendiondo asserts that CHMC

also obtained reimbursement for more catheterization and

radiologic procedures than were actually performed by having

billing personnel manually change the billing records. Further, Mendiondo alleges the hospital manipulated the length

of time it kept patients on observation status or as inpatients

in order to maximize Medicare reimbursements, without

regard to the medical necessities and in violation of Medicare

reimbursement guidelines. 

Mendiondo further alleges that from the time she started

working there, CHMC pressured her to cut costs and reduce

services. For example, she asserts that CHMC refused to use

the safest drug for heart attacks because of cost reasons and

used outdated cardiac equipment. 

In 2001, Mendiondo informed the Chief Executive Officer

(“CEO”) of CHMC, Harry Koening, that her supervisors

expected her to engage in actions that were below the standard of care, would put her nursing license in jeopardy, and

could lead to civil and criminal violations. In November 2001,

Mendiondo started reporting to a new supervisor, Ziporah

Frankel, who demanded that Mendiondo cut costs or be fired.

When Mendiondo objected that the cost-cutting measures

would jeopardize patient care, Frankel instructed her to follow

the measures regardless. 

On August 19, 2002, CHMC terminated Mendiondo.

CHMC explained that the termination was the result of Mendiondo’s inadequate job performance. Mendiondo believes

CHMC terminated her because she demanded that minimum

state and federal standards of health care be maintained, and

because of her investigation into facts relating to CHMC’s

submission of false claims and false records to the government. 

3348 MENDIONDO v. CENTINELA HOSPITAL
B. Procedural History

On August 13, 2003, Mendiondo and two colleagues filed

this action against CHMC, Tenet Healthcare Corporation

(“Tenet”), and three other associated health care groups.2 The

complaint alleged causes of action for (1) violations of the

FCA and CFCA; (2) retaliation in violation of the whistleblower provisions in the FCA and CFCA; (3) retaliation in

violation of the California Health and Safety Code Section

1278.5; and (4) wrongful termination in violation of the public policies embodied in these laws. 

Pursuant to 31 U.S.C. § 3730(b), which governs private

actions under the FCA, plaintiffs filed the complaint under

seal and served a copy on the federal government. The government declined to intervene, the court unsealed the complaint, and plaintiffs served CHMC and Tenet.

Plaintiffs stipulated to dismiss with prejudice the FCA and

CFCA violation claims, leaving their retaliation and wrongful

termination claims. CHMC then moved to dismiss the action

under Federal Rules of Civil Procedure 8(e), 9(b), and/or

12(b)(6). In their opposition, plaintiffs argued that they had

properly pleaded all of their remaining claims, and, in the

alternative, requested leave to amend any pleading deficiencies. The district court granted the motion to dismiss without

discussion and without indicating whether Mendiondo had

leave to amend. Mendiondo filed a timely notice of appeal

from the order. A judgment, however, was never entered. 

II. STANDARD OF REVIEW

We review de novo a dismissal for failure to state a claim

pursuant to Rule 12(b)(6) and for failure to allege fraud with

particularity pursuant to Rule 9(b). United States ex rel. Lee

2Mendiondo’s colleagues do not join in this appeal. 

MENDIONDO v. CENTINELA HOSPITAL 3349
v. Smithkline Beecham, Inc., 245 F.3d 1048, 1051 (9th Cir.

2001).

III. JURISDICTION 

[1] We have jurisdiction over appeals from “all final decisions” of the district court. 28 U.S.C. § 1291. The district

court granted defendants’ motion to dismiss, disposing of all

the claims in plaintiffs’ complaint, and did not address plaintiffs’ request for leave to amend. The court, however, did not

enter final judgment. An order dismissing all of the claims in

a complaint, but not the action itself, is not a final, appealable

order. Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d

979, 983 (9th Cir. 2000). “However, if it appears that the district court intended the dismissal to dispose of the action, it

may be considered final and appealable.” Id. (internal citations and quotation marks omitted). We must decide whether

the court intended its order to be final. 

[2] By not addressing plaintiffs’ request for leave to amend,

the district court’s order “necessarily entailed a denial of the

[request] and a determination . . . that the pleading could not

possibly be cured by the allegation of other facts.” Id. (internal citation and quotation marks omitted). Accordingly, we

infer that the district court intended to make the dismissal

final for purposes of § 1291. Id. 

The district court entered the order of dismissal on June 28,

2006, and Mendiondo filed a notice of appeal on July 13,

2006, within the 30-day period for filing as prescribed by

Federal Rule of Appellate Procedure 4(a)(1)(A). Accordingly,

Mendiondo filed a timely notice of appeal. 

Thus, we conclude that this Court has jurisdiction over the

appeal. 

3350 MENDIONDO v. CENTINELA HOSPITAL
IV. DISCUSSION

A. Rule 8(a) Notice Pleading Applies to FCA Retaliation

Claims3

[3] The parties dispute whether a FCA retaliation claim

must meet the notice pleading standard in Rule 8(a) or the

heightened pleading standard in Rule 9(b). Rule 8(a) requires

that a pleading contain “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2). Rule 8(a) applies to all civil claims except

those containing averments of “fraud or mistake,” which must

be pleaded with particularity under Rule 9(b). Fed. R. Civ. P.

8, 9. The Supreme Court has narrowly construed Rule 9(b) to

apply only to the types of actions enumerated in the rule—

those alleging fraud or mistake—and has not extended the

heightened pleading standard to other legal theories. See

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002)

(declining to apply Rule 9(b) to claims for violations of 42

U.S.C. § 1983 or employment discrimination claims). 

[4] Because the FCA is an anti-fraud statute and requires

fraud allegations, complaints alleging a FCA violation must

3We assume for purposes of this appeal that the same analysis applies

to the FCA and CFCA claims. The parties argued below and on appeal

that the same analysis applies to both claims because the CFCA is patterned after the FCA. See, e.g., California v. Altus Fin., S.A., 116 P.3d

1175, 1184 (Cal. 2005). We note, however, that the CFCA appears limited

to false claims submitted to the State of California and might not include

the types of federal Medicare claims alleged by Mendiondo. See Cal.

Gov’t. Code § 12653(b) (prohibiting retaliation against an employee

investigating or disclosing a false claim); id. § 12650(b)(1) (defining false

“claim” as a demand for money from the state or a political subdivision).

Because the parties have not raised this issue, we do not address it here.

See Harik v. Cal. Teachers Ass’n., 326 F.3d 1042, 1052 (9th Cir. 2003)

(noting that “we do not ordinarily consider on appeal issues not raised

below”); Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We

review only issues which are argued specifically and distinctly in a party’s

opening brief.”) (citation omitted). 

MENDIONDO v. CENTINELA HOSPITAL 3351
fulfill the requirements of Rule 9(b). Bly-Magee v. California,

236 F.3d 1014, 1018 (9th Cir. 2001). In this case, however,

we are presented only with Mendiondo’s FCA retaliation

claim, not a FCA violation claim. In the only federal appellate

decision addressing the pleading standard for a FCA retaliation claim, the First Circuit concluded that, unlike a FCA violation claim, a FCA retaliation claim “does not require a

showing of fraud and therefore need not meet the heightened

pleading requirements of Rule 9(b).” United States ex rel.

Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 238 n.23

(1st Cir. 2004). We agree. 

The elements differ for a FCA violation claim and a FCA

retaliation claim. To state a claim for a FCA violation, a

plaintiff must allege that the defendant actually violated the

FCA by knowingly submitting a false claim or providing

faulty goods to the government. See 31 U.S.C. § 3729(a)

(describing acts that constitute violations of the FCA). In contrast, to state a FCA retaliation claim, a plaintiff must show

that he or she suspected that the defendant submitted a false

claim—not that the defendant actually submitted one. See

Graham County Soil & Water Conservation Dist. v. United

States ex rel. Wilson, 545 U.S. 409, 416-17 (2005). 

A plaintiff alleging a FCA 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. Moore v. Cal. Inst. of Tech. Jet Propulsion

Lab., 275 F.3d 838, 845 (9th Cir. 2002); United States ex rel.

Hopper v. Anton, 91 F.3d 1261, 1269 (9th Cir. 1996). As is

clear from the elements of the claim, an employer does not

face liability for the suspected or actual fraud; it faces liability

for a retaliatory act against the investigating employee. The

emphasis of the claim is on the employee’s protected action

and whether the employer retaliated against the employee

because of that action. The fact that the claim arises from an

3352 MENDIONDO v. CENTINELA HOSPITAL
investigation of potential fraud does not alter its nature as a

retaliation claim. 

[5] Accordingly, we hold that the heightened pleading

requirements of Rule 9(b) do not apply to FCA retaliation

claims. Instead, a FCA retaliation claim must meet the Rule

8(a) notice pleading standard. 

B. Mendiondo Has Stated Claims for Retaliation

Under the FCA and CFCA, Retaliation in Violation

of California Health and Safety Code Section

1278.5, and Wrongful Termination in Violation of

Public Policy

Where, as here, the heightened pleading standard of Rule

9(b) does not apply, the complaint “need only satisfy the Rule

8(a) notice pleading standard . . . to survive a Rule 12(b)(6)

dismissal.” Edwards v. Marin Park, Inc., 356 F.3d 1058, 1062

(9th Cir. 2004). The complaint need not contain detailed factual allegations, but it must provide more than “a formulaic

recitation of the elements of a cause of action.” Bell Atl. Corp.

v. Twombly, 127 S. Ct. 1955, 1965 (2007). Under Rule 8(a),

the plaintiff must “give the defendant fair notice of what the

. . . claim is and the grounds upon which it rests.” Id. at 1964

(internal citation and quotation marks omitted). Dismissal

under Rule 12(b)(6) is appropriate only where the complaint

lacks a cognizable legal theory or sufficient facts to support

a cognizable legal theory. Balistreri v. Pacifica Police Dep’t.,

901 F.2d 696, 699 (9th Cir. 1990). 

1. FCA and CFCA Retaliation Claims

[6] As noted, Mendiondo’s claims for retaliation under the

FCA and CFCA must allege that (1) she was engaged in protected conduct; (2) CHMC knew she engaged in such conduct; and (3) CHMC retaliated against her because of the

conduct. See Moore, 275 F.3d at 845; Hopper, 91 F.3d at

1269. 

MENDIONDO v. CENTINELA HOSPITAL 3353
[7] For purposes of the first element, Mendiondo engaged

in protected activity if she reasonably believed that CHMC

was possibly committing fraud against the government, and

she investigated the possible fraud. See Moore, 275 F.3d at

845; Hopper, 91 F.3d at 1269. Mendiondo alleges that she

investigated “facts relating to Tenet and CHMC’s submission

of false claims and false records to the government.” The

complaint contains examples of practices at CHMC that Mendiondo and her co-plaintiffs suspected to be fraudulent

attempts to inflate Medicare reimbursements: one doctor

allegedly performed numerous unnecessary catheterizations;

CHMC implanted single ventricular pacemakers, even when

patients needed biventricular pacemakers; and CHMC kept

patients on observation status or as inpatients, without regard

to medical need and in violation of Medicare reimbursement

guidelines. Mendiondo also alleges that CHMC obtained

reimbursement for more radiologic and catheterization procedures than were actually performed by having billing personnel manually change the billing records. Although far from a

model of clarity, Mendiondo’s allegations provide CHMC

with notice of the potentially fraudulent practices that Mendiondo believes led to false claims. 

[8] For the second element of her FCA and CFCA retaliation claims, Mendiondo alleges she complained to CHMC’s

CEO, Harry Koening, about possible “civil and criminal violations.” Although vague, the reference to “civil violations”

can be construed to include the suspected Medicare fraud

described above. Because Mendiondo complained to Koening

about the suspected civil violations, CHMC was informed of

Mendiondo’s protected activity. 

[9] Finally, for the third element of her FCA and CFCA

retaliation claims, Mendiondo alleges that CHMC terminated

her “because of her investigation into facts relating to Tenet

and CHMC’s submission of false claims and false records to

the government.” It suffices at this pleading stage for Mendiondo to simply give notice that she believes CHMC termi3354 MENDIONDO v. CENTINELA HOSPITAL
nated her because of her investigation into the practices she

specified in the complaint. See Edwards, 356 F.3d at 1061

(noting that discovery is “often necessary to uncover a trail of

evidence regarding the defendants’ intent in undertaking

allegedly discriminatory action”). 

[10] Although the complaint may be inartfully drawn, it

nonetheless contains sufficient facts under the applicable

notice pleading standards of 8(a) to survive dismissal under

Rule 12(b)(6). 

2. Claim for Retaliation in Violation of California

Health and Safety Code Section 1278.5

Section 1278.5 of the California Health and Safety Code is

intended to encourage medical staff and patients to notify

government entities of “suspected unsafe patient care and

conditions.” Cal. Health & Safety Code § 1278.5(a). The statute prohibits retaliation against any employee who complains

to an employer or a government agency about unsafe patient

care or conditions. Id. § 1278.5(b)(1)(A), (g). 

[11] In the complaint, Mendiondo identifies practices that

allegedly compromised patient care, including unnecessary

catheterizations, implanting single instead of biventricular

pacemakers, refusing to use the safest drug for heart attacks

because of cost reasons, and using outdated cardiac equipment. Mendiondo alleges she complained to CHMC’s CEO

and her supervisor about substandard patient care. Finally,

Mendiondo alleges that CHMC terminated her “because she

demanded that minimum state and federal standards of health

care be maintained.” The allegations contain sufficient facts

under Rule 8(a) to survive dismissal under Rule 12(b)(6). 

MENDIONDO v. CENTINELA HOSPITAL 3355
3. Wrongful Termination in Violation of Public

Policy

[12] To establish her claim for wrongful termination in violation of the public policies embodied in the FCA, CFCA, and

California Health and Safety Code Section 1278.5, Mendiondo must allege facts similar to her retaliation claims: that

she was terminated based on her complaints about potentially

false billing practices and/or substandard patient care. See

Haney v. Aramark Unif. Serv., Inc., 17 Cal. Rptr. 3d 336, 348-

49 (Cal. Ct. App. 2004). As detailed above, Mendiondo

alleged sufficient facts to support her retaliation claims. The

same allegations support her claim for wrongful termination

in violation of public policy. Accordingly, her claim should

not have been dismissed.4

V. CONCLUSION

We hold that the notice pleading standard in Federal Rule

of Civil Procedure 8(a) applies to claims for wrongful termination under the FCA and CFCA. Mendiondo’s complaint

meets the Rule 8(a) standard because it contains examples of

potentially false billing and reimbursement practices and substandard patient care; it indicates that Mendiondo complained

to CHMC’s CEO and her supervisor about these issues; and

it explains that CHMC terminated her because of these complaints. These allegations sufficiently notify defendants of the

4

In its motion to dismiss, CHMC argued the entire complaint is subject

to dismissal because the allegations are not “simple, concise, and direct,”

as required by Rule 8(e) (amended 2007). Dismissal for failure to meet the

standards in Rule 8(e) is appropriate only in limited circumstances where

a complaint proves patently verbose, confusing, and rambling. See Nevijel

v. N. Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981); McHenry v.

Renne, 84 F.3d 1172, 1180 (9th Cir. 1996). Here, despite the inclusion of

extraneous details, the complaint provides fair notice of the wrongs allegedly committed by defendants and does not qualify as overly verbose, confusing, or rambling. Thus, to the extent that the district court relied on

Rule 8(e), dismissal was also in error. 

3356 MENDIONDO v. CENTINELA HOSPITAL
factual basis for each of Mendiondo’s retaliation and wrongful termination claims. 

REVERSED AND REMANDED.

MENDIONDO v. CENTINELA HOSPITAL 3357