          Case: 12-11600   Date Filed: 02/04/2013   Page: 1 of 3

                                                    [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 12-11600
                     ________________________

                  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.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Georgia
                    ________________________
                          (February 4, 2013)
                Case: 12-11600        Date Filed: 02/04/2013       Page: 2 of 3

Before BARKETT and JORDAN, and RIPPLE, * Circuit Judges.

PER CURIAM:

       This appeal arises out of the creation of several municipalities 1 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.

                                            2
              Case: 12-11600      Date Filed: 02/04/2013   Page: 3 of 3

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.




                                       3
