     Case: 12-50291       Document: 00512156482         Page: 1     Date Filed: 02/26/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 26, 2013
                                     No. 12-50291
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

TEXAS MEDICAL PROVIDERS PERFORMING ABORTION SERVICES, doing
business as Reproductive Services of San Antonio, a class represented by
Metropolitan OBGYN, P.A.; on behalf of itself and its patients seeking abortions;
ALAN BRAID, on behalf of himself and his patients seeking abortions,

                                                  Plaintiffs-Appellees

v.

DAVID LAKEY, Commissioner of the Texas Department of State Health
Services, in his official capacity; MARI ROBINSON, Executive Director of the
Texas Medical Board, in her official capacity,

                                                  Defendants-Appellants


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:11-CV-486


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
       Pursuant to this panel’s order that all subsequent appeals in this litigation
be referred to us, the State of Texas here challenges the district court’s denial of
its motion to recover about $60,000 in attorneys’ fees from the appellee abortion


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                       No. 12-50291

providers. This panel has already upheld against the appellees the critical
features of the State’s new regulatory efforts concerning abortion clinics. Tex.
Med. Prov. Performing Abortion Servs. v. Lakey, 667 F.3d 570, 572 (5th Cir.
2012). Finding no abuse of discretion, we affirm.
       About $2,500 of this amount is sought only on the basis of 42 U.S.C.
§ 1988(b), which allows a prevailing defendant in a civil rights case to recover
attorneys’ fees if the plaintiffs’ claims were “frivolous, unreasonable, or without
foundation.” Fox v Vice, 131 S. Ct. 2205, 2213 (2011) (quoting Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 700 (1978)). The State
tries to demonstrate that most of the appellees’ vagueness challenges to the new
regulations met this test, and indeed, the trial court earlier explained that many
of these claims did not have “arguable merit or otherwise warrant discussion.”
In its opinion on the motion for attorneys’ fees, however, the court did not find
these claims frivolous, unreasonable, or without foundation. The court is correct.
Lack of merit does not equate to frivolity, etc., according to the admittedly
asymmetrical reasoning that underlies courts’ reluctance to shift fees against
civil rights plaintiffs.1
       As we read the State’s briefs, the bulk of the attorneys’ fee request (about
$58,000) is sought principally pursuant to the courts’ inherent power to sanction
willful abuses of the judicial process. See Roadway Exp., Inc. v. Piper, 447 U.S.
752, 766-67, 100 S. Ct. 2455, 2464 (1980). The abuse here alleged consists of
counsel’s statements that they dismissed several remaining challenges to the
Texas regulations following the decision by this court precisely because of the
identity of the panel that would hear future appeals. Thus, appellees could
allegedly refile a case to raise the same claims and engage in “panel shopping.”
Yet the State accuses counsel of no bad faith, and the district court found their


       1
         The State also asserts that because appellees had no right to raise third-party
constitutional claims, the withdrawn claims were groundless and frivolous according to § 1988,
but this argument was not raised in the trial court and is waived.

                                              2
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                                  No. 12-50291

strategy realistic and in good faith. 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. See Fed R. Civ. P. 41(a)(2). The State cites no similar precedent
to justify the relief it seeks.
      The district court’s judgment denying attorneys’ fees from appellees is
therefore AFFIRMED.




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