Joseph Lowery, et al v. Governor of Georgia

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11600
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D.C. Docket No. 1:11-cv-00974-TCB
JOSEPH LOWERY,
BRENDA PACE,
LEOLA GORDON,
LISA BARNES,
SHEILA GARVIN,
PORTIA CODJOE,
JOYCE CARLISLE,
GEORGIA LEGISLATIVE BLACK CAUCUS, INC.,
Plaintiffs - Appellants,
versus
GOVERNOR OF GEORGIA,
Defendant - Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(February 4, 2013)
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Before BARKETT and JORDAN, and RIPPLE,* Circuit Judges.
PER CURIAM:
This appeal arises out of the creation of several municipalities1 from 2005 to
2008 in Fulton and DeKalb counties.
The Georgia Legislative Black Caucus, along with seven individual black
voters registered in Fulton and DeKalb counties, filed suit against Nathan Deal in
his official capacity as the Governor of Georgia alleging that the creation of the
municipalities diluted their voting rights in violation of the Voting Rights Act of
1965 (“VRA”), as amended, 42 U.S.C. § 1973(a), the Fourteenth Amendment’s
Equal Protection Clause, and the Fifteenth Amendment. 2 In response, and
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Governor
filed a motion to dismiss the complaint arguing that plaintiffs failed to state a claim
upon which relief could be granted. 3 The district court granted the motion to
dismiss, finding that plaintiffs failed to state a claim for vote dilution under the
* Honorable Kenneth F. Ripple, United States Circuit Judge for Seventh Circuit, sitting
by designation.
1 The municipalities at issue and their years of incorporation are the City of Sandy
Springs (2005), the City of Milton (2006), the City of Johns Creek (2006), the City of
Chattahoochee Hills (2007), and the City of Dunwoody (2008).
2 They requested (1) a declaration deeming the municipal charters null and void and (2)
an injunction prohibiting further implementation of the municipalities and any legislation that
would dilute their voting rights.
3 The motion to dismiss also argued that the Governor was not the proper defendant and
that Appellants’ claims were barred by the equitable defense of laches. The district court did not
reach these arguments.
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VRA, the Fourteenth Amendment’s Equal Protection Clause, or the Fifteenth
Amendment.
We affirm the dismissal, but on different grounds than the district court. See
Ochran v. United States, 273 F.3d 1315, 1318 (11th Cir. 2001). We dismiss
because, after additional briefing, we conclude that the Governor of Georgia has no
power to provide any of the relief requested in this case. Therefore, the Governor
is not the proper party defendant. We express no opinion on the district court’s
basis for the dismissal or regarding any other issue raised in this case.
AFFIRMED.
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