June Medical Services, LLC d/b/a Hope Medical Group for Women v. Louisiana Department of Health and Rebekah Gee, M.D., in her official capacity as Secretary of the Louisiana Department of Health

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0192

JUNE MEDICAL SERVICES, LLC D/ B/ A HOPE MEDICAL GROUP FOR WOMEN

VERSUS

LOUISIANA DEPARTMENT OF HEALTH & REBEKAH GEE, M. D., IN HER
OFFICIAL CAPACITY AS SECRETARY OF THE LOUISIANA DEPARTMENT OF
HEALTH

Judgment Rendered:
MAR 0 4 20?0

On Appeal from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket No. C657201

Honorable Janice Clark, Judge Presiding

Ellie T. Schilling Counsel for Plaintiff/Appellee
Mandie Landry June Medical Services, LLC d/ b/ a
Megan E. Snider Hope Medical Group for Women
New Orleans, Louisiana

Neal R. Elliott, Jr. Counsel for Defendants/ Appellants
Kimberly L. Humbles Louisiana Department of Health and
Brandon J. Babineaux Rebekah Gee, M. D., in her Official
Christina Legros Robertson Capacity as Secretary of the
Lavon Raymond Johnson Louisiana Department of Health
Baton Rouge, Louisiana

BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.

McCLENDON, J.

In this related appeal to the challenge of a declaratory judgment regarding the

validity of Louisiana' s Abortion Facilities Licensing Standards, the defendants appeal the

district court's award of litigation expenses in favor of the plaintiff. For the following

reasons, we vacate the judgment.

June Medical Services, LLC d/ b/ a Hope Medical Group for Women ( June Medical)

is a reproductive health clinic in Shreveport, Louisiana. June Medical filed a Petition for

Declaratory Judgment pursuant to LSA- R. S. 49: 963, alleging that the Department of

Health ( the Department) did not substantially comply with the Louisiana Administrative

Procedure Act and exceeded its statutory authority when the Department promulgated

new regulations for Louisiana' s Outpatient Abortion Facility Licensing Law. See June

Medical Services, LLC d/ b/ a Hope Medical Group for Women v. Louisiana

Department of Health, et all, 2019 CA 0191, also decided this date.

Shortly after the district court granted June Medical' s motion for summary
judgment, denied the Department's cross- motion for summary judgment, and declared

Louisiana' s Abortion Facilities Licensing Standards invalid and unenforceable, June

Medical filed an ex parte Motion and Incorporated Memorandum for Litigation

Expenses.
The order was signed by the district court on December 27, 2018, ordering
the Department to pay June Medical $ 7, 500. 00 for reasonable litigation expenses

incurred in the underlying litigation. In this appeal, the Department challenges the

award of litigation expenses.

Louisiana Revised Statutes 49: 965. 1A provides:

When a small business files a petition seeking: ( 1)
relief from the
application or enforcement of an agency rule or regulation, ( 2) judicial
review of the validity or applicability of an agency rule, ( 3) judicial review
of an adverse declaratory order or ruling, or ( 4) judicial review of a final
decision or order in an adjudication proceeding, the petition may include a
claim against the agency for the recovery of reasonable litigation
expenses. If the small business prevails and the court determines that the
agency acted without substantial justification, the court may award such
expenses, in addition to granting any other appropriate relief.

Reasonable litigation expenses" are defined as " any expenses, not exceeding seven

thousand five hundred dollars in connection with any one claim, reasonably incurred in

opposing or contesting the agency action, including costs and expenses incurred in both
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the administrative proceeding and the judicial proceeding, fees and expenses of expert
or other witn sses, and attorney fees." LSA- R. S. 49: 965. 1D. In its petition for

declaratory judgment, June Medical prayed for " all costs of its suit" as well as " any and
all other and further relief that the Court deems just and proper."

In its appeal, the Department first argues that the district court erred in

awarding June Medical $ 7, 500. 00 in reasonable litigation expenses because there was

no contradictory hearing. The Department also asserts that the district court erred in

finding that the Department acted without substantial justification. Because we are

reversing the summary judgment of the district court in the underlying matter, 2019 CA
0191, we must vacate the award of $ 7, 500. 00 in litigation expenses. As there is no

longer a prevailing party, an award of litigation expenses is inappropriate at this time.

For these reasons, we vacate and set aside the December 27, 2018 judgment of

the district court ordering the Department to pay June Medical $ 7, 500. 00 for reasonable

litigation expenses. Costs of this appeal are assessed to June Medical Services, LLC

d/ b/ a Hope Medical Group for Women. We issue this memorandum opinion pursuant to

Uniform Rules -Courts of Appeal, Rule 2- 16. I( B).

JUDGMENT VACATED.

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