### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-50291 Summary Calendar

T E X A S M E D I C AL P R O V I D E R S P E R F O R M I N G A B O R T ION SERVICES, d o i n g busin e s s a s Reproductive Services of San Antonio, a class represented by Metropolitan OBGYN, P .A.; on behalf of itself a nd its patients s eeking abortions; ALAN BRAID, on behalf of himself and his patients seeking abortions, Plaintiffs-Appellees

v. DAVID LAKEY, Commissioner of t he Texas D epartment of State H e alth Services, in h is o fficial capacity; MA R I R O B I NSON, 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 s ub s e q u e nt appeals i n this l itigation be referred t o us, the State o f T exas here challenges t he district court’s denial of its motion to recover about $60,000 in attorneys’ fees from the appellee abortion U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D February26, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-50291 Document: 00512156482 Page: 1 Date Filed: 02/26/2013No. 12-50291

providers. This pane l h a s already upheld a gainst the appellees the critical features of the State’s new regulatory efforts concerning a b o rtion c linics. Tex. Med. Prov. Performing Abortion Servs. v. Lakey , 66 7 F

. 3 d 570, 572 (5th Cir. 2012). Finding no abuse of discretion, we affirm. About $2,500 of this amount is s ou g h t only on the basis of 42 U.S.C. § 1988(b), which allows a p revailing d efendant i n a c i v i l rights case to recover attorneys’ fees if t he plaintiffs’ claims were “ frivolous, unreasonable, or without foundation.” F

ox v V ic e , 1 3 1 S. Ct. 2205, 2 213 (2011) (quoting Christiansburg Garment Co. v. EEOC , 434 U .S. 412, 421, 98 S. Ct. 694, 700 (1978)). T he State tries to demonstrate that most of the a ppellees’ v agueness challenges to the new regulations m et this test, and indeed, t he trial court earlier explained that many of these claims did not have “arguable merit or otherwise warrant discussion.” In its o pinion on the motion for attorneys’ fees, however, the court did not find these claims frivolous, unreas o n ab l e , o r w i t h o u t f oundation. The court is correct. Lack o f merit does not equ a te to frivolity, e tc., according to the admittedly asymmetrical r e a s o n i ng that underlies courts’ reluctance to shift f ees against civil rights plaintiffs. 1 As we read t he State’s briefs, the bulk of the attorneys’ fee request (about $58,000) is sought principally pursuant to the courts’ i n herent power to s anction willful abuses of the judicial process. See Roadway Exp., Inc. v. Piper , 4 47 U.S. 752, 7 66-67, 100 S. Ct. 2455, 2464 (1980). Th e a b u s e h ere alleged c onsists of counsel’s statements that t hey dismissed several remaining chall e n g e s to the Texas regulations following the decision by this cour t p r ecisely because of the identity of the panel that would hear f uture appeals. Thus, a ppellees c ould allegedly refile a case to raise the same claims and engage in “ panel shopping.” Yet the State accuses counsel of n o b ad faith, and t he d i strict court found their

1 T h e State als o as s erts that becaus e ap p ellees had no right to rais e thir d

- p a r t y cons titutional cl a i ms, t h e w i t hd raw n claim s w ere ground les s and frivolous accord ing to § 1988, but this argum ent was not rais edin the trial court and is w aived

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strategy realistic a nd in g o o d faith. The short a nswer to this charge is that if courts treated as a willful a buse of process every self-servin g s t a t ement of counsel at the expense of a judge or judges, there would be no end to sanctions motions. The voluntary dismissal of ap p e l lees’ additional w e ak claims was allowed by the Federal Rules and was not appealed by the State in an effort to seek conditions. See Fed R. C iv. P. 41(a)(2). The State cites no similar precedent to justify the relief it seeks. The district court’s judgment de n y ing attorneys’ fees from appellees is therefore AFFIRMED

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3 Case: 12-50291 Document: 00512156482 Page: 3 Date Filed: 02/26/2013