IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20206

UNITED STATES OF AMERICA; THE STATE OF TEXAS, ex rel, ABBY 

KRISTEN JOHNSON, 

Plaintiff - Appellant

v.

PLANNED PARENTHOOD OF HOUSTON AND SOUTHEAST TEXAS, 

INCORPORATED,

Defendant - Appellee

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:10-CV-3496

Before KING, HAYNES, and GRAVES, Circuit Judges.

PER CURIAM:*

Abby Kristen Johnson (“Johnson”), acting as relator on behalf of the 

United States and the State of Texas, brought suit against Planned 

Parenthood Gulf Coast, a.k.a. Planned Parenthood of Houston and Southeast 

Texas, Inc. (“Planned Parenthood”), alleging that it engaged in fraudulent 

billing practices in violation of the False Claims Act (“FCA”), 31 U.S.C. § 3729, 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 4, 2014

Lyle W. Cayce

Clerk

 

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et seq., and the Texas Medicaid Fraud Prevention Act (“TMFPA”), TEX. HUM.

RES. CODE § 36.001, et seq. Planned Parenthood filed a Federal Rule of Civil 

Procedure 12(b)(1) motion to dismiss, arguing that the district court lacked 

subject matter jurisdiction because of a previously-filed qui tam suit that 

alleged the same fraudulent scheme. The district court granted the motion

and denied Johnson’s Federal Rule of Civil Procedure 60(b)(6) motion filed 

after the court had dismissed the case. Johnson timely appealed. We AFFIRM.

I. Factual and Procedural Background

Johnson, a former Planned Parenthood employee, sued Planned 

Parenthood, alleging that it repeatedly filed various false, fraudulent, and/or

ineligible claims for Medicaid reimbursements with both state and federal 

billing agencies. Specifically, she alleged that Planned Parenthood: (a) falsely 

billed the Texas Women’s Health Program1 (“TWHP”) for non-reimbursable 

procedures and services performed during a client visit when the primary 

purpose of the visit was not for contraceptive management as required by the 

TWHP; (b) falsely billed the TWHP for unperformed laboratory tests, and 

supported such false billings with false notations in client charts; (c) falsely 

billed non-contraceptive management-related procedures and services by 

making false notations in client charts and not referring those clients to 

another physician or clinic for treatment; (d) filed more than 87,000 false 

claims with the TWHP, from which it wrongfully received and retained 

reimbursements totaling at least $5,701,055; and (e) acknowledged to Johnson 

and other employees that it would conceal from the TWHP that it had received 

improper reimbursements from it and would retain such reimbursements. 

1 The TWHP is a Title XIX Medicaid waiver program jointly funded by the federal and 

state governments. Planned Parenthood Ass’n of Hidalgo Cnty. Tex., Inc. v. Suehs, 692 F.3d 

343, 346 (5th Cir. 2012). At the time Johnson filed this complaint, the TWHP was largely 

federally funded. Id. 

2

 

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Prior to Johnson’s action, Karen Reynolds (“Reynolds”), acting as relator 

on behalf of the United States and the State of Texas, filed a qui tam suit in 

the Eastern District of Texas against Planned Parenthood for treble damages

and civil penalties also arising from alleged fraudulent billing activity in 

violation of the FCA and TMFPA. Reynolds alleged the following conduct: (a) 

billing for medical services not rendered; (b) billing for unnecessary medical 

services; (c) creating false information relative to billing in medical records; (d) 

creating false documentation in an attempt to demonstrate compliance with 

various governmental program requirements; and (e) conspiring to violate the 

FCA and TMFPA. See United States ex rel. Karen Reynolds v. Planned 

Parenthood of Hous. & Se. Tex., Inc., et al., Case No. 9:09-cv-00124-RC. After 

Johnson’s Original Complaint and Second Amended Complaint were unsealed,

Planned Parenthood moved to dismiss Johnson’s action, alleging that the 

district court lacked subject matter jurisdiction over the case because the 

action is barred under the FCA’s and TMFPA’s “first-to-file” bar. The district 

court granted Planned Parenthood’s motion to dismiss, and Johnson timely 

appealed.

Following the district court’s order dismissing Johnson’s Second 

Amended Complaint, the Reynolds case settled (hereinafter, “Reynolds 

settlement”). Johnson then filed a Rule 60(b)(6) motion, claiming that the 

Reynolds settlement originally was going to include language acknowledging

that the fraud scheme alleged in Reynolds’ complaint was distinct from the 

scheme alleged in Johnson’s complaint. Such language was never included in 

the settlement. The district court denied her motion, and Johnson amended 

her notice of appeal to include the district court’s denial of her Rule 60(b)(6) 

motion. 

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II. Discussion

A. Motion to Dismiss

We review the district court’s dismissal for lack of subject matter 

jurisdiction de novo as to the application of the law and for clear error as to any 

disputed factual findings. United States ex rel. Branch Consultants v. Allstate 

Ins. Co., 560 F.3d 371, 376 (5th Cir. 2009). Subject matter jurisdiction is 

determined at the time the action is brought. Home Capital Collateral, Inc. v. 

FDIC, 96 F.3d 760, 762 (5th Cir. 1996). The plaintiff has the burden of 

establishing subject matter jurisdiction. Arena v. Graybar Elec. Co., 669 F.3d 

214, 223 (5th Cir. 2012). 

Under certain circumstances, the FCA permits “suits by private parties 

on behalf of the United States against anyone submitting a false claim to the 

government[.]” Branch, 560 F.3d at 376 (citation and internal quotation marks 

omitted). The FCA’s qui tam provisions seek to encourage suits from

whistleblowers with “genuinely valuable information,” while also discouraging 

“opportunistic plaintiffs from filing parasitic lawsuits2 that merely feed off 

previous disclosures of fraud.” Id. To achieve these goals, there are a number 

of jurisdictional limits on the FCA’s qui tam provisions, including its first-tofile bar, which provides that the district court lacks subject matter jurisdiction 

to hear the claim if a previously-filed suit contains the same “material 

elements” or “essential facts” as the later-filed suit. See id. at 377–78. The 

focus is on whether an investigation into the first claim would uncover the 

same fraudulent activity alleged in the second claim. See id. at 378. The firstto-file bar is a relatively broad bar to later-filed actions. See, e.g., Branch, 560 

2 Nothing in this record suggests that Johnson’s lawsuit was “parasitic.” Indeed, 

there is no indication that Johnson was aware of Reynolds’s lawsuit when Johnson filed her 

suit, and it appears Johnson’s suit was based upon her own knowledge. However, the firstto-file bar still applies. See Branch, 560 F.3d at 377-78. Any resulting unfairness is a matter 

for Congress, not this court.

4

 

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F.3d at 377 (noting that “a ‘broader bar’ furthers the purpose of the FCA’s qui 

tam provisions by ensuring a ‘race to the courthouse among eligible relators, 

which may spur the prompt reporting of fraud’”) (citation omitted). The 

TMFPA has a similar first-to-file bar.3 

Reynolds’ complaint alleged that Planned Parenthood fraudulently 

billed Title XIX Medicaid as well as other federal and state programs, but did 

not specifically mention any particular Medicaid programs. The Johnson 

complaint, on the other hand, specifically alleged that Planned Parenthood 

falsely billed the TWHP. However, because both the Johnson and Reynolds 

complaints allege that Planned Parenthood’s billing practices caused them to 

fraudulently receive funding from United States and Texas Medicaid 

programs, it is likely that an investigation into the allegations contained in

Reynolds’ complaint would have uncovered the same fraudulent activity 

alleged by Johnson’s complaint, especially given that the TWHP is a federallyfunded Texas Medicaid program. See Suehs, 692 F.3d at 346. Considering that 

this court has previously held that fraudulent filings occurring in different 

states would be discovered through a thorough investigation into the filing 

system of an insurance company, it is likely that an investigation into 

fraudulent Medicaid filings would uncover fraudulent filings for related 

programs, as the alleged fraudulent activity occurred within the same offices. 

See Branch, 560 F.3d at 378.4 

3 The FCA’s first-to-file bar states that “[w]hen a person brings an action under this 

subsection, no person other than the Government may intervene or bring a related action 

based on the facts underlying the pending action.” 31 U.S.C. § 3730(b)(5). The TMFPA’s 

first-to-file bar operates the same way as the FCA’s first-to-file bar. See TEX. HUM. RES.

CODE § 36.106 (“A person other than the state may not intervene or bring a related action 

based on the facts underlying a pending action brought under this subchapter.”). Neither 

side argues that the two statutes should be applied differently in this case.

4 Branch concerned a first-filed claim alleging insurance fraud arising out of wind 

damage and flood damage claims for Mississippi properties. 560 F.3d at 374. The second 

5

 

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Johnson’s second argument is that her allegations of fraud were different 

in kind because Reynolds alleged that fraud involved billing for medical 

services not performed whereas Johnson alleged that the services were

performed but improperly coded. However, both complaints essentially allege

that fraud was committed by altering patient records and billing Medicaid 

programs for services other than those rendered, and the additional, specific 

facts added by Johnson are not sufficient to make the alleged fraudulent 

activity sufficiently distinct to avoid the first-to-file bar. See Branch, 560 F.3d 

at 378 (holding that the relator cannot avoid the first-to-file bar “by simply 

adding factual details . . . to the essential or material elements of a fraud claim 

against the same defendant”).5 

B. Denial of Rule 60(b)(6) Motion

To prevail in a Rule 60(b)(6) motion, the plaintiff must show that 

“extraordinary circumstances” apply. Adams v. Thaler, 679 F.3d 312, 319 (5th 

Cir. 2012). Johnson’s Rule 60(b)(6) motion purports to make the district court 

“aware of developments in the Reynolds case,” specifically that Johnson’s 

counsel participated in settlement discussions in which the parties agreed to 

state that the Reynolds settlement did not apply to Johnson’s complaint. 

complaint contained identical allegations, except that it also alleged facts concerning ten 

additional properties in Louisiana. Id. at 378. Branch was precluded from bringing these 

claims under the first-to-file bar even though they alleged different geographic locations 

because an investigation into the fraudulent scheme alleged in the first complaint would 

result in finding identical fraudulent behavior, even across geographic locations. Id. 

5 In passing, Johnson argues that because Planned Parenthood had moved to dismiss 

Reynolds’ complaint for failure to state a claim under Rule 12(b)(6), that complaint could not 

have sufficiently placed the government on notice of any fraudulent scheme, much less the 

one she alleged. Whatever the merits of such an argument in a hypothetical case of a “bare 

bones” complaint, we conclude it lacks merit as to the particular complaint filed by Reynolds.

See Branch, 560 F.3d at 378 n.10.

6

 

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We have previously held that a settlement is irrelevant to the first-tofile analysis because the first-to-file analysis requires comparison of the two 

original complaints. See United States ex rel. Smart v. Health, No. 13-40785, 

2014 WL 1474282, at *1 (5th Cir. April 16, 2014) (unpublished);6 see also 

United States ex rel. Jamison v. McKesson Corp., 649 F.3d 322, 328 (5th Cir. 

2011) (holding that the original complaint is the appropriate complaint for 

determining whether the FCA’s public disclosure jurisdictional bar applies). 

Therefore, the fact of the settlement negotiations does not rise to the level of 

an extraordinary circumstance because it would not alter the analysis 

performed by the district court. See Adams, 679 F.3d at 319. Accordingly, the 

district court did not abuse its discretion in denying the Rule 60(b)(6) motion. 

See Pease v. Pakhoed Corp., 980 F.2d 995, 998 (5th Cir. 1993). 

AFFIRMED.

6 Although Smart is not controlling precedent, we cite it for its persuasive authority. 

See Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).

7

 

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