It’s collateral-order-doctrine week in the U.S. Courts of Appeals, with two courts issuing opinions that dismiss interlocutory appeals of orders ruling on claims of immunity from civil litigation. Both appeals are dismissed on the ground that the immunity at issue in each case is, if anything, a mere defense against liability rather than a true immunity from suit, thus not subject to the strictures of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).
The route to Doe v. Planned Parenthood, No. 23-11184 (5th Cir. Aug. 12, 2026) took some twists. In the underlying action, a whistleblower (“Alex Doe”) alleged that Planned Parenthood affiliates in Texas and Louisiana improperly billed Medicaid after the states moved to terminate their eligibility.
Plaintiff filed the case in 2021 under the False Claims Act, 31 U.S.C. §§ 3729–32, plus Texas and Louisiana state-law qui tam statutes. The defendant moved for summary judgment, which was denied in 2023. Defendant appealed the part of the order denying the organization immunity for actions taken by its lawyers in court (commonly called “attorney immunity” or litigation privilege”), which is generally regarded as falling into the category of absolute immunity.
Originally, a Fifth Circuit panel (in an non-precedential opinion) granted interlocutory review and held that “Planned Parenthood is entitled to immunity for the acts of its attorneys,” reversing the decision below. United States ex rel. Doe v. Planned Parenthood Fed’n of Am., 2025 WL 618102, at *4 (5th Cir. Feb. 26, 2025). But that decision was vacated by order on June 26, 2025 and reset for en banc rehearing. (Sidenote: some Fifth Circuit judges have gotten restive about the recent surge of en banc rehearings.)
Over a year later, the en banc court – in a unanimous, five-page opinion – holds that there is no appellate jurisdiction over the appeal of the immunity order.
First, it finds no basis in state law for an immunity from suit. “In Troice v. Proskauer Rose, LLP, 816 F.3d 341, 345–48 (5th Cir. 2016), we made the Erie guess that the Supreme Court of Texas would treat attorney immunity as a true immunity from suit.” But noting subsequent “conflicting statements” by the state’s high court about this defense, “[w]e [now] therefore lack confidence in Troice and cannot now make the Erie guess that Texas law provides attorneys the broadest possible protection from suit.”
It also finds no jurisdictional foothold in federal law. Even if litigation privilege covered some of the actions alleged in the False Claims Act counts of the complaint, “the Federation must still stand trial on these claims to the extent they are premised on its own actions.” And while “a rejection of immunity as to only part of a lawsuit can support interlocutory review in some instances . . . this appeal does not fit within the collateral-order doctrine because resolving the immunity question would not conclusively determine a separable legal issue in a way that meaningfully advances the litigation.”
In the Ninth Circuit, meanwhile, a panel reviewed an order denying tech giants Meta and ByteDance immunity from a MDL suit under the Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230. State of Colorado v. Meta Platforms, Inc., No. 24-7265 (9th Cir. Aug. 10, 2026).
“The multidistrict litigation in the district court involves thousands of lawsuits alleging that Meta’s social media platforms Facebook and Instagram ‘encourage addictive behavior, fail to verify users’ ages, encourage adolescents to bypass parental controls, and inadequately safeguard against harmful content and/or intentionally amplify harmful and exploitive content.’” (Similar claims are brought against TikTok provider ByteDance.)
Meta moved to dismiss, in part on the ground that Section 230 provides the company immunity as a publisher of third-party content. The district court “found that the design and deployment of many platform features implicated Meta’s status as the publisher of third-party content and that section 230 thus bars some claims regarding those features.”
Yet the district court kept some claims alive, and as to those, Meta took an interlocutory appeal. “Meta . . . asserts that rulings denying section 230 immunity are ‘collateral’ orders it can immediately appeal as of right under 28 U.S.C. § 1291. The various groups of plaintiffs protectively cross-appealed the partial grant of section 230 immunity, though they dispute our jurisdiction and ask us to dismiss all the appeals.”
The Ninth Circuit dismisses the appeal.
Section 230, the panel notes, contains no express immunity from suit but insteade declares that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This does not “does not provide immunity to internet service providers per se.”
“Meta argues that this court ‘has repeatedly held that Section 230 confers immunity from suit.’ It is true that we have used the phrase ‘immunity’ somewhat loosely in our section 230 jurisprudence; although we generally describe it as ‘immunity from liability,’ we sometimes describe it as ‘immunity from suit.’ But none of this usage is binding, because we have never addressed whether the denial of a section 230 defense is a collateral order.”
The panel adopts the reasoning of the Tenth Circuit in Gen. Steel Domestic Sales, LLC v. Chumley, 840 F.3d 1178, 1179–80 (10th Cir. 2016), holding “that section 230 provides [only] a defense to liability, not immunity from suit, and an order denying this defense can be effectively reviewed on appeal from a final judgment.” Thus, the district court decision was not a collateral order. (For completeness’ sake, the panel also notes that district court order also fails to meet the other conditions of Cohen, i.e., that the order “conclusively determine” the disputed question and be “completely separate” from the merits of the action.
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