NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 20 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEREMY CONKLIN, D.O., an individual, No. 19-35181

Plaintiff-Appellant, D.C. No. 2:18-cv-00090-RSL

v.

MEMORANDUM*

UNIVERSITY OF WASHINGTON

MEDICINE, a Washington public health system; UW MEDICINE NW, a Washington public benefit corporation; UNIVERSITY

OF WASHINGTON MEDICAL CENTER,

a Washington public hospital;

UNIVERSITY OF WASHINGTON

SCHOOL OF MEDICINE, a Washington public educational institution; SEATTLE CHILDREN'S HOSPITAL, a Washington non-profit corporation; CHILDREN'S UNIVERSITY MEDICAL GROUP, a Washington pediatric group,

Defendants-Appellees,

and

PAUL RAMSEY, M.D.; LESTER

PERMUT, M.D.; MARY BRIDGE

CHILDREN'S FOUNDATION, a Washington public benefit corporation;

AMERICAN BOARD OF THORACIC

SURGERY, INC.; THORACIC SURGERY

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

DIRECTORS ASSOCIATION, INC.;

ACCREDITATION COUNCIL FOR

GRADUATE MEDICAL EDUCATION,

Defendants.

Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding

Argued and Submitted March 4, 2020 Seattle, Washington

Before: IKUTA, R. NELSON, and HUNSAKER, Circuit Judges.

Appellant Dr. Jeremy Conklin alleges that Appellee-Defendants conspired to

exclude him from a pediatric cardiothoracic surgery fellowship because he is an

osteopathic, rather than allopathic, physician. Conklin brought federal and state

antitrust law claims, along with a claim under Revised Code of Washington

(“RCW”) § 70.41.235, which bars hospitals from discriminating against

osteopathic physicians. The district court dismissed Conklin’s complaint, holding

that he failed to allege antitrust injury and did not have a cause of action under

RCW § 70.41.235. We review dismissal of Conklin’s complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6) de novo. Kendall v. Visa U.S.A., Inc.,

518 F.3d 1042, 1046 (9th Cir. 2008). We affirm.

We begin with Conklin’s federal and state antitrust claims. We express no

opinion whether the district court correctly dismissed for failure to adequately

2 plead antitrust injury. But we affirm the dismissal on the alternative ground that

Conklin has not plausibly alleged an overlapping element of his antitrust claims:

harm to competition. See Syed v. M-I, LLC, 853 F.3d 492, 506 (9th Cir. 2017)

(allowing a court to affirm a motion to dismiss “on any basis fairly supported by

the record”). Conklin concedes in his complaint that at least one osteopathic

physician has obtained certification and may perform pediatric cardiothoracic

surgery. Additionally, Conklin acknowledges in his complaint that someone else

was chosen to fill the pediatric cardiothoracic surgery fellowship that he lost out

on. Thus, there has been no increase in price or decrease in the quality of care for

patients seeking pediatric cardiothoracic surgery. Moreover, even if the agreement

to grant these fellowships only to persons who satisfy the ACGME certification

requirement discriminates against doctors of osteopathy and thus lessens consumer

choice between such osteopathic doctors and medical doctors in the market for

pediatric thoracic surgery, the complaint does not allege any resulting difference in

thoracic surgery services, quality, or availability, so this reduced choice does not

give rise to an injury to competition. See Brantley v. NBC Universal, Inc., 675

F.3d 1192, 1202 (9th Cir. 2012) (“[A]llegations that an agreement has the effect of

reducing consumers’ choices or increasing prices to consumers does not

sufficiently allege an injury to competition.”). Accordingly, Conklin has failed to

plausibly allege harm to competition. See Rutman Wine Co. v. E. & J. Gallo

3 Winery, 829 F.2d 729, 736 (9th Cir. 1987) (affirming dismissal of Sherman Act

Section 1 claim for failure to plead harm to competition); cf. Bhan v. NME Hosps.,

Inc., 929 F.2d 1404, 1414 (9th Cir. 1991) (affirming grant of summary judgment

where a hospital’s policy, which favored physician over non-physician anesthetists,

did not harm competition).

We also affirm the dismissal of Conklin’s RCW § 70.41.235 claim.

Notwithstanding Conklin’s correspondence with the Washington Department of

Health, enforcement of the statute is expressly vested in the Washington

Department of Health. RCW § 70.41.010. We will not read a cause of action into

the statute where the Washington legislature did not provide one. State ex rel.

Evergreen Freedom Found. v. Wash. Educ. Ass’n, 999 P.2d 602, 611 (Wash. 2000)

(en banc) (“When words in a statute are plain and unambiguous, this Court is

required to assume the Legislature meant what it said and apply the statute as

written.”).

AFFIRMED.

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