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Bloedow v. Planned Parenthood of Great Northwest Inc.

United States District Court, Ninth Circuit

December 16, 2013

JONATHAN BLOEDOW, Plaintiff-Relator,


MARSHA J. PECHMAN, Chief District Judge.

THIS MATTER comes before the Court on Defendant's Motion to Dismiss for Lack of Jurisdiction under 12(b)(1). (Dkt. No. 38, 48-1.) Having reviewed the motion, Plaintiff-Relator's amended Response (Dkt. No. 61), and Defendant's Reply (Dkt. No. 40); Defendant's Request for Judicial Notice (Dkt. No. 40), Plaintiff-Relator's Response (Dkt. No. 46), and Defendant's Reply (Dkt. No. 55); Defendant's Notice of Supplemental Authorities (Dkt. No. 63); and all related filings; and having heard oral argument on December 4, 2013; the Court hereby GRANTS Defendant's motion and DISMISSES the case for lack of subject-matter jurisdiction.


On July 18, 2011, Plaintiff-Relator Jonathan Bloedow filed a complaint in this qui tam action (Dkt. No. 1) under seal in accordance with the False Claims Act's requirements for private citizens suing on behalf of the United States Government. See 31 U.S.C. 3730(b)(2). The Government declined to intervene and the case was unsealed on March 19, 2013. (Dkt. No. 16.)

In his complaint, Plaintiff-Relator alleges that from 2003 to 2009 Defendant Planned Parenthood of the Great Northwest fraudulently billed the Washington state agency that administers Washington's Medicaid program. (Dkt. No. 1 at 11, 14-15.) Defendant allegedly submitted claims for emergency contraceptives and oral contraceptives at its "usual and customary" rates when it was required to bill at its "actual acquisition costs" (for emergency contraceptives) or a maximum allowable fee (for oral contraceptives). (Dkt. No. 1 at ¶¶ 36-37; id. at ¶¶ 45-49.) Plaintiff-Relator also alleges Defendant falsely certified its compliance with such requirements (Dkt. No. 1 at ¶ 29), conspired to conceal its fraudulent claims (Dkt. No. 1 at ¶ 50), and improperly retained the excess reimbursements. (Dkt. No. 1 at ¶¶ 47, 49, 52, 60.)

Prior to the filing of Plaintiff-Relator's complaint, a former employee of Planned Parenthood brought a qui tam action alleging similar contraceptive overbilling practices against Planned Parenthood affiliates located throughout California. See generally United States ex rel. Gonzalez v. Planned Parenthood of Los Angeles, Case No. 2:05-cv-08818-AHM-FMO (C.D. Cal. 2005-present); id., Case No. 09-55010, 392 F.App'x. 524, 527-28 (9th Cir. 2010). The allegations in the suit attracted critical attention from Congress and the press and resulted in a report by the Office of the Inspector General for the Department of Health and Human Services about entities nationwide billing above cost for drugs (including contraceptives) under the 340B Drug Discount Program. (See Dkt. No. 39-1 at Ex. 5.)

Defendant now moves to dismiss Plaintiff-Relator's action, arguing the "public disclosure bar" of the False Claims Act, 31 U.S.C. § 3730(e)(4)(A), deprives this Court of subject-matter jurisdiction over the case. (See Dkt. No. 38.) Defendant proposes five categories of prior disclosures: the Gonzalez suit, the OIG report, an internet-published report by Americans United for Life, other articles published by newspapers and on the internet, and the response to Plaintiff-Relator's own Washington State public records request. (Id.) As an initial matter, the parties dispute whether the whistleblower-friendly 2010 amendments to the public disclosure bar apply. (Dkt. No. 61 at 7-8; Dkt. No. 38 at 27-28.) See Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, § 10104(j)(2), 124 Stat. 119 (2010). Plaintiff-Relator contends none of the alleged disclosures triggers either version of the public disclosure bar, and even if there was a disclosure, Mr. Bloedow qualifies as an original source. (Dkt. No. 61 at 14-26.)


I. Relevance of 2010 Amendments

Plaintiff-Relator asks the Court to apply the version of the public disclosure bar in effect at the time the complaint was filed. (Dkt. No. 61 at 12.) Defendant argues the version in effect at the time of the alleged billing violations applies. (Dkt. No. 38 at 27.) Defendant is correct. With respect to earlier 1986 amendments to the same provision, the Supreme Court held that where the conduct at issue preceded the effective date of the amendments, the version in effect at the time the suit was commenced did not control because of the presumption against retroactivity. Hughes Aircraft Co. v. United States ex rel. Schumer , 520 U.S. 939, 946 (1997). The presumption applied in part because the 1986 amendments eliminated potential defenses to the False Claims Act. Id . As Plaintiff-Relator concedes, the 2010 amendments also "eliminate defenses based on disclosures from state and local government sources unless the information has also been disclosed in the news media or otherwise publicly disclosed." (Dkt No. 61 at 7.) The Hughes rationale applies here, and Plaintiff must proceed under the statute in effect at the time of Defendant's alleged false claims. While there are vague references to continuing retention of funds in Plaintiff-Relator's complaint, the central billing violations alleged by Plaintiff-Relator took place from 2003 to 2009. (Dkt. No. 1 at 11, 14-15.) Thus, the pre-2010 version of the public disclosure bar is the framework for determining this Court's subject-matter jurisdiction.

The version of the public disclosure bar that was effective until 2010 provides:

No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government [sic] Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.

31 U.S.C. § 3730(e)(4)(A) ...

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