State of Texas loses appeal on abortion provider case in 5th Circuit Court

NEW ORLEANS–  The U.S. 5th Circuit Court of Appeals denied the state’s appeal on a motion to recover attorneys’ fees from abortion providers that sued the state previously. Texas Medical Providers Performing Abortion Services, a class represented by Metropolitan OBGYN P.A., on behalf of itself and its patients seeking abortions and Alan Braid, on behalf of himself and his patients seeking abortions filed suit against David Lakey, the Commissioner of the Texas Department of State Health Services and Mari Robinson, Executive Director of the Texas Medical Board as a reaction to Texas House Bill 15, an act “relating to informed consent to an abortion.” In that case,Tex. Med. Prov. Performing Abortion Servs. v. Lakey, 667 F.3d 570, 572 (5th Cir.2012), the court upheld against the plaintiffs the critical features of the State’s new regulatory laws for abortion clinics. The State of Texas then filed a motion to recover about $60,000 in attorneys’ fees from the abortion providers. A district court denied this motion. About  $2,500 is sought citing a rule that allows the winning defendant in a civil rights case to recover attorneys’ fees if the claims against them were “frivolous, unreasonable, or without foundation.” The state claims that the plaintiffs vagueness challenges to the new law meet this criteria because the trial court found that such claims lack “arguable merit.” The remainder of the attorneys’ fees are sought based on the courts’ ability to sanction “willful abuses of the judicial process.” Circuit Judge Edith H. Jones, writing on behalf of the panel that includes herself and Circuit Judges Stephen A. Higginson and Edwin Smith, states that in the case of the smaller amount the court does not equate frivolity, unreasonableness or lack of foundation with lack of merit. The larger amount of attorneys’ fees is sought because statements by the plaintiffs counsel that allegedly constituted abuse of the judicial process. During the original appeal, the panel ordered that all subsequent appeals be referred to them. Counsel for the plaintiffs then stated that “they dismissed several remaining challenges” to the law based on the identity of the panel that would hear future appeals. The state alleged that this means the plaintiffs could engage in “panel shopping” by refiling a case. In the opinion Jones responds that: “The short answer to this charge is that if courts treated as a willful abuse of process every self-serving statement of counsel at the expense of a judge or judges, there would be no end to sanctions motions. The voluntary dismissal of appellees’ additional weak claims was allowed by the Federal Rules and was not appealed by the State in an effort to seek conditions.” The panel affirmed the district courts ruling denying the state attorneys’ fees. Case No. 12-50291.

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