Fifth Circuit Urges Planned Parenthood to Explain Immunity Claim

A federal appeals court panel questioned Wednesday whether Planned Parenthood Federation of America Inc. could be immune from a whistleblower’s suit alleging that the organization defrauded Medicaid.

Planned Parenthood told the US Court of Appeals for the Fifth Circuit that it has attorney immunity from the False Claims Act suit—filed by an unnamed whistleblower referred to as Alex Doe who recorded conversations with Planned Parenthood affiliate staff—because the alleged misconduct occurred in the organization’s litigation and law department.

The panel, during oral argument, asked about the status the L&L attorneys and their relationship to the organization, and wanted to know if these issues are best left for a jury. A Texas federal district court denied the organization immunity, and set a trial date, before this appeal.

Counsel for Planned Parenthood, Anton Metlitsky of O’Melveny & Myers LLP, said that L&L attorneys are independent from Planned Parenthood. Judge Rhesa H. Barksdale pressed him on this, asking whether the attorneys are paid by the organization.

Metlitsky said they are, but he also urged the court to consider several examples of how L&L is accused of leading a legal strategy that is the subject of the suit, such as helping a Planned Parenthood affiliate file a lawsuit in Texas.

Heather Gebelin Hacker of Hacker Stephens LLP, who represents Doe, said the issue of whether “purely attorney conduct” bars the whistleblower’s claims should go to trial, but that evidence shows that L&L engaged in conduct to directly help Planned Parenthood and “protect the brand.”

Judge Leslie H. Southwick wondered whether these issues are “intertwined” such that the court shouldn’t have jurisdiction over the appeal.

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Doe initiated the case in 2021 after conducting an undercover investigation to determine whether Planned Parenthood and its affiliates were providing fetal tissue to researchers and tissue procurement companies.

The affiliates are Planned Parenthood Gulf Coast, Planned Parenthood of Greater Texas, and Planned Parenthood South Texas.

Doe says that Louisiana and Texas terminated Planned Parenthood’s Medicaid eligibility because of video footage he posted about the organization online, but that the organization continued to bill the federal health-care program in violation of the FCA.

Judge Matthew J. Kacsmaryk of the US District Court for the Northern District of Texas denied Planned Parenthood’s motion for summary judgment in part. That opinion is under seal and isn’t viewable on the public docket.

A trial date had been set before the appeal.

Planned Parenthood said in its brief that the organization is being sued for attorneys’ conduct under a theory that it’s responsible for the conduct of its affiliates. Therefore, it follows that the attorneys’ immunity also protects Planned Parenthood, the organization said.

Doe said this argument, if adopted, “would blow a hole” in the FCA. The organization isn’t entitled to the “broad immunity” it seeks, which would allow any corporation that involves attorney-employees in misconduct to avoid accountability, Doe said in its brief.

Judge James E. Graves Jr. also participated on the panel.

The case is United States ex rel. Doe v. Planned Parenthood Fed. of Am. Inc., 5th Cir., No. 23-11184, oral argument 3/13/24.