A federal appeals court panel raised doubts on Wednesday about whether Planned Parenthood Federation of America Inc. could claim immunity in a whistleblower lawsuit accusing the organization of defrauding Medicaid.
Planned Parenthood argued before the US Court of Appeals for the Fifth Circuit that it is shielded by attorney immunity in the False Claims Act suit brought by an anonymous whistleblower, identified as Alex Doe, who secretly recorded conversations with staff from a Planned Parenthood affiliate. The organization claimed that the alleged misconduct took place within its litigation and law department.
During the oral argument, the panel inquired about the status of the L&L attorneys and their connection to Planned Parenthood, questioning whether these matters should be determined by a jury. A federal district court in Texas denied Planned Parenthood’s immunity and scheduled a trial before the appeal.
Planned Parenthood’s counsel, Anton Metlitsky from O’Melveny & Myers LLP, contended that the L&L attorneys are independent of Planned Parenthood. However, Judge Rhesa H. Barksdale pressed him on whether the organization pays these attorneys.
Metlitsky confirmed that they are paid by Planned Parenthood but also presented examples of how L&L allegedly led a legal strategy that is central to the lawsuit, such as assisting a Planned Parenthood affiliate in filing a lawsuit in Texas.
Heather Gebelin Hacker of Hacker Stephens LLP, representing Doe, argued that the question of whether the alleged attorney conduct excuses the whistleblower’s claims should be decided at trial, highlighting evidence that L&L actively supported Planned Parenthood and worked to safeguard its reputation.
Judge Leslie H. Southwick pondered whether these issues are so interconnected that the court may lack jurisdiction over the appeal.
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In 2021, Doe initiated the case after conducting an undercover investigation into whether Planned Parenthood and its affiliates were involved in providing fetal tissue to researchers and tissue procurement companies.
The implicated affiliates include Planned Parenthood Gulf Coast, Planned Parenthood of Greater Texas, and Planned Parenthood South Texas.
Doe claimed that Louisiana and Texas terminated Planned Parenthood’s Medicaid eligibility based on video evidence posted online, yet the organization continued to bill Medicaid, violating the FCA.
Judge Matthew J. Kacsmaryk of the US District Court for the Northern District of Texas partially denied Planned Parenthood’s motion for summary judgment. The detailed opinion remains sealed and unavailable on the public docket.
A trial date was set before the appeal.
According to Planned Parenthood’s brief, the organization asserted that it is being sued for its attorneys’ actions under the theory that it is accountable for its affiliates’ conduct. Therefore, Planned Parenthood argued that the attorneys’ immunity extends to protect the organization.
Doe countered this argument in its brief, stating that granting such broad immunity to corporations with attorney-employees involved in misconduct would undermine the FCA and allow accountability to be evaded.
Judge James E. Graves Jr. also took part in the panel discussion.
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.