                               PUBLISHED

                UNITED STATES COURT OF APPEALS
                    FOR THE FOURTH CIRCUIT


                                No. 18-1123


LEWIS A. BRANDON III; JOYCE JOHNSON; NELSON JOHNSON;
RICHARD ALAN KORITZ; SANDRA SELF KORITZ; CHARLI MAE SYKES;
MAURICE WARREN II; GEORGEANNA BUTLER WOMACK,

              Plaintiffs - Appellants,

and

THE CITY OF GREENSBORO,

              Plaintiff,

         v.

GUILFORD COUNTY BOARD OF ELECTIONS,

              Defendant - Appellee,

and

MELVIN ALSTON; JEAN BROWN; HURLEY DERRICKSON; STEPHEN
GOLIMOWSKI; WAYNE GOODSON; SHARON KASICA; JIM KEE;
WILLIAM CLARK PORTER; EARL JONES,

              Defendants,

and

ROBERT A. RUCHO; WADE TRUDY; JOHN FAIRCLOTH; JON
HARDISTER; CHARLES E. JETER; TIM MOORE; DAVID LEWIS; ERIKA
CHURCHILL,

              Respondents.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:15-cv-00559-CCE-JLW)


Argued: October 30, 2018                                         Decided: April 15, 2019


Before NIEMEYER, THACKER, and RICHARDSON, Circuit Judges.


Reversed and remanded by published opinion. Judge Niemeyer wrote the majority
opinion, in which Judge Thacker joined. Judge Richardson wrote a dissenting opinion.


ARGUED: Allison J. Riggs, SOUTHERN COALITION FOR SOCIAL JUSTICE,
Durham, North Carolina, for Appellants. J. Mark Payne, GUILFORD COUNTY
ATTORNEY’S OFFICE, Greensboro, North Carolina, for Appellee. ON BRIEF:
Jaclyn A. Maffetore, SOUTHERN COALITION FOR SOCIAL JUSTICE, Durham,
North Carolina, for Appellants.        Taniya D. Reaves, GUILFORD COUNTY
ATTORNEY’S OFFICE, Greensboro, North Carolina, for Appellee. Alan W. Duncan,
Stephen M. Russell, Jr., MULLINS DUNCAN HARRELL & RUSSELL, PLLC,
Greensboro, North Carolina, for Appellee.




                                            2
NIEMEYER, Circuit Judge:

       After eight voting citizens of Greensboro, North Carolina, (“Citizens”) prevailed

in an action under 42 U.S.C. § 1983 against the Guilford County Board of Elections,

successfully challenging as unconstitutional a 2015 state law that redrew Greensboro City

Council districts and obtaining a permanent injunction against the County Board’s

enforcement of the law, they filed a motion for attorney’s fees, expert fees, and costs

under 42 U.S.C. § 1988 and 52 U.S.C. § 10310(e). The district court denied their motion,

however, concluding that “special circumstances” justified the denial of fees because the

County Board, even though responsible for enforcing the unconstitutional law, had no

hand in enacting the law and did not defend it during the litigation. The court reasoned

that because the County Board was an “innocent” or “non-responsible” party and the

Citizens should have sued the State of North Carolina, any award assessed against the

County Board would be “unjust.”

       The Citizens filed this appeal, arguing that the district court erred in denying their

motion based on the County Board’s “innocence” or “non-responsibility.” The Citizens

point out that they were the prevailing party, having succeeded in demonstrating that the

redistricting law was unconstitutional and in obtaining full relief with the entry of a

permanent injunction prohibiting the County Board’s enforcement of the law. They

argue that under established precedent, a party enjoined from enforcing an

unconstitutional law, even if it did not enact or defend the law, is legally responsible for

attorney’s fees under § 1988 and § 10310(e). See Indep. Fed’n of Flight Attendants v.

Zipes, 491 U.S. 754, 763 (1989) (noting that “the party legally responsible for relief on

                                             3
the merits” is “clearly the party who should . . . bear fee liability under § 1988” (emphasis

added) (quoting Kentucky v. Graham, 473 U.S. 159, 164 (1985))).

       We agree with the Citizens. Civil rights fee-shifting statutes, such as those at issue

here, are not meant to punish defendants for a lack of innocence or good faith but rather

to “compensate civil rights attorneys who bring civil rights cases and win them.”

Lefemine v. Wideman, 758 F.3d 551, 557 (4th Cir. 2014). “Innocence” or a “lack of

responsibility” for the enactment of an unconstitutional law is therefore not an

appropriate criterion to justify denying a fee award against the party responsible for and

enjoined from enforcing the unconstitutional law. Accordingly, we reverse the district

court’s order denying the Citizens’ motion for attorney’s fees, expert fees, and costs and

remand for the determination of an appropriate fee award.


                                              I

       The City of Greensboro and eight of its voting Citizens * commenced this action

under 42 U.S.C. § 1983, challenging the constitutionality of a state-enacted local law —

2015 N.C. Session Law 138 (“the Redistricting Act”) — that (1) changed Greensboro’s

City Council from three at-large and five single-district members to eight single-district

members; (2) drew the boundaries of the eight new districts; and (3) prohibited City

Council or citizen-led referendums or initiatives from altering the structure of the City’s

government.    The plaintiffs named the Guilford County Board of Elections as the

       *
        The individual plaintiffs are Lewis A. Brandon III, Joyce Johnson, Nelson
Johnson, Richard Alan Koritz, Sandra Self Koritz, Charli Mae Sykes, Maurice Warren II,
and Georgeanna Butler Womack.

                                             4
defendant, as the County Board was responsible for conducting municipal elections in

Greensboro and had the duty of enforcing the Redistricting Act, making it a necessary

party to any action challenging enforcement of the Act. See Wright v. North Carolina,

787 F.3d 256, 262–63 (4th Cir. 2015). In their complaint, the plaintiffs alleged that the

Redistricting Act violated the Equal Protection Clause and sought a permanent injunction

against its enforcement.     They did not, however, name the North Carolina General

Assembly and the North Carolina Attorney General as defendants, believing them to be

immune under the Eleventh Amendment, but those state representatives had notice of the

action and chose not to intervene.

       A month after this action was commenced, several Greensboro residents filed a

motion to intervene as defendants to support the Redistricting Act, and the district court

granted their motion. Several months later, these defendant-intervenors filed a motion to

dismiss the action for failure to join necessary parties or, in the alternative, to require that

those parties be joined, contending that the State of North Carolina, the North Carolina

State Board of Elections, the State Board’s Executive Director, and the Governor were all

necessary parties. Both the City of Greensboro and the Citizens opposed the motion,

arguing that all of the parties sought to be joined were immune from suit under the

Eleventh Amendment and that none were necessary for the relief sought. The County

Board took no position on the motion. The district court denied the motion, concluding

that “while some of these persons and entities might well be proper parties . . . none

[were] necessary parties.” The defendant-intervenors subsequently filed a motion to

withdraw from the litigation, and the court granted their motion.

                                               5
       Following a bench trial, during which the County Board took no position on the

constitutionality of the Redistricting Act, the district court found that the Act violated the

Equal Protection Clause and, by order dated April 13, 2017, permanently enjoined the

County Board from enforcing it.

       As prevailing parties, the eight Citizens, but not the City of Greensboro, then filed

a motion under 42 U.S.C. § 1988 and 52 U.S.C. § 10310(e) for an award of attorney’s

fees, expert fees, and costs. Following briefing, the district court denied the motion. The

court, recognizing that prevailing parties “should ordinarily recover an attorney’s fee

unless special circumstances would render such an award unjust,” quoting Hensley v.

Eckerhart, 461 U.S. 424, 429 (1983), concluded that this case presented “special

circumstances” because the County Board neither enacted nor defended the

unconstitutional law and was thus, in the court’s view, “an innocent party” in “key

ways.” The court also noted that the Citizens did not sue the State of North Carolina,

which the court considered “the responsible entity here.” Faced with the “dilemma” of

having to “choose between two bad options — assessing attorney’s fees against a litigant

who neither enacted nor defended the unconstitutional Act, or denying a fee award to the

individual plaintiffs and their lawyers who prevailed on the merits of two equal

protection claims, vindicating important constitutional rights” — the court elected to

favor the County Board, concluding that “it would be unjust to require the County Board

to pay the individual plaintiffs’ attorney’s fees.” The court reasoned that “[a]n award of

attorney’s fees against a defendant who was not responsible and did not defend the Act

would, in these circumstances, provide a perverse incentive to plaintiffs to avoid suing

                                              6
responsible entities in favor of a non-responsible entity, especially if that entity is

unlikely to contest relief.”

       From the district court’s order dated January 3, 2018, denying the Citizens’ motion

for fees, the Citizens filed this appeal.


                                              II

       In enacting the Civil Rights Attorney’s Fees Award Act of 1976, Congress created

an exception to the “American Rule” that each party to a lawsuit bear its own attorney’s

fees, doing so in furtherance of the policy of facilitating access to judicial process for the

redress of civil rights grievances. See H.R. Rep. No. 94-1558, at 1 (1976); S. Rep. No.

94-1011, at 2 (1976). The Act provides accordingly that in any proceeding under 42

U.S.C. § 1983, “the court, in its discretion, may allow the prevailing party . . . a

reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988. Similarly, in 52 U.S.C.

§ 10310(e), Congress provided that, for actions enforcing the voting guarantees of the

Fourteenth and Fifteenth Amendments, a court “may allow the prevailing party . . . a

reasonable attorney’s fee, reasonable expert fees, and other reasonable litigation expenses

as part of the costs.” Because the language of § 1988 and § 10310(e) are “phrased in

identical terms,” we apply “the same rule of decision under both of them.” Bly v.

Mcleod, 605 F.2d 134, 138–39 (4th Cir. 1979).

       While both statutes include in the authorization for fees the permissive “may

allow,” the Supreme Court has held that a prevailing party should “ordinarily recover an

attorney’s fee unless special circumstances would render such an award unjust.”


                                              7
Hensley, 461 U.S. at 429 (emphasis added). Moreover, the Court has concluded that a

“court’s discretion to deny a fee award to a prevailing plaintiff is narrow.” N.Y. Gaslight

Club, Inc. v. Carey, 447 U.S. 54, 68 (1980); see also Doe v. Bd. of Educ. of Balt. Cnty.,

165 F.3d 260, 264 (4th Cir. 1998) (noting that “[o]nly on rare occasions does a case

present [special] circumstances” warranting a denial of fees to a prevailing party

(emphasis added)); Consumers Union, Inc. v. Va. State Bar, 688 F.2d 218, 222 (4th Cir.

1982) (noting that the “special circumstances” exception is “narrowly limited” (emphasis

added)). Consequently, we have not hesitated to reverse district courts that have found

“special circumstances” where none existed.        See Lefemine, 758 F.3d at 556–59

(concluding that no “special circumstances” existed and reversing a denial of a § 1988 fee

motion on that ground); Consumers Union, 688 F.2d at 221–22 (same); Bills v. Hodges,

628 F.2d 844, 847 (4th Cir. 1980) (same, holding that neither a “plaintiff[’s] ability to

pay attorneys’ fees” nor “a defendant’s good faith” qualify as “a special circumstance

that would render an award of fees unjust”).

       The Citizens contend that the reasons the district court gave are legally irrelevant

to the denial of fee awards under § 1988 and § 10310(e) and that the court failed to

recognize the narrowness of the “special circumstances” exception. They note that the

district court found as its reasons for the denial of fees (1) that the County Board was an

“innocent party” and was “not responsible” for enacting the Redistricting Act, did not

defend it, and participated minimally in the litigation and (2) that the Citizens chose to

sue only the County Board and not the State or its representatives. The Citizens argue

that these reasons are insufficient:

                                               8
       [T]he consensus among the federal courts is that a defendant’s good faith
       does not justify a denial of fees. Fee awards against neutral enforcement
       entities — who are often simply nominal defendants in civil rights lawsuits
       challenging the constitutionality of state laws that the entities did not pass
       — are “run-of-the-mill occurrences,” Consumers Union, 688 F.2d at 222
       (quoting Supreme Court of Va. v. Consumers Union, Inc., 446 U.S. 719,
       739 (1980)).

Indeed, they maintain that such fee awards are “the norm” in redistricting cases, where

officials and entities — even though not responsible for enacting the challenged law —

are nonetheless charged with conducting elections under it and therefore are sued over its

constitutionality. See Hastert v. Ill. State Bd. of Election Comm’rs, 28 F.3d 1430 (7th

Cir. 1993); Raleigh Wake Citizens Ass’n v. Wake Cnty. Bd. of Elections, No. 5:15-cv-

156-D), 2017 WL 4400754 (E.D.N.C. Sept. 29, 2017). The Citizens also contend that the

fact that they sued only the County Board and not the State has no “bearing on whether

they are entitled to fees.” For these reasons, they argue that the district court’s opinion is

an outlier decision, standing apart from the “near-unanimous precedent[s]” on the

subject, and therefore should be reversed for abuse of discretion.

       In its Memorandum Opinion and Order denying the Citizens a fee award, the

district court observed that the North Carolina General Assembly, not the County Board,

enacted the unconstitutional Redistricting Act. It reasoned therefore that because the

blame for the Act’s unconstitutionality lay with the State, the Citizens’ fees should be

paid by the State, not the County Board. Although the court recognized that the state

defendants would possibly enjoy sovereign immunity, it noted that such immunity is “an

affirmative defense that [could] be waived.” The court ultimately concluded that “an

award of attorney’s fees against a defendant who was not responsible and did not defend

                                              9
the act would, in these circumstances, provide a perverse incentive to plaintiffs to avoid

suing responsible entities in favor of a non-responsible entity, especially if that entity is

unlikely to contest relief.”

       In reaching this conclusion, however, the district court seemed to have doubts

about denying the Citizens their fees, suggesting that both parties were entitled to win on

the motion and that the court was therefore presented with “a dilemma” on how to rule.

While it recognized that if it denied the Citizens’ motion, their counsel would “not

receive compensation ordinarily authorized by federal law, despite vindicating

constitutional rights,” it nonetheless decided to “leav[e] the individual [Citizens] to bear

their own costs” as the “lesser of these two unjust results.”

       As an initial matter, it is of little or no import that the County Board was not

involved in enacting the Redistricting Act. The relevant facts are that the County Board

was charged with enforcing the Act and that the Citizens obtained full relief against the

County Board. Suits seeking injunctions against enforcement entities are the standard

means by which laws are challenged on constitutional grounds. As the Supreme Court

has noted, “[f]ee awards against enforcement officials are run-of-the-mill occurrences,

even though, on occasion, had a state legislature acted or reacted in a different or more

timely manner, there would have been no need for a lawsuit or for an injunction.”

Supreme Court of Va. v. Consumers Union, Inc., 446 U.S. 719, 739 (1980) (emphasis

added). The purpose of fee shifting is not to punish those responsible for promulgating

unconstitutional laws, but rather to “enable potential plaintiffs to obtain the assistance of

competent counsel in vindicating their rights.” Kay v. Ehrler, 499 U.S. 432, 436 (1991);

                                             10
see also Pruett v. Harris Cnty. Bail Bond Bd., 499 F.3d 403, 417 (5th Cir. 2007) (“That a

defendant does not promulgate a policy does not eliminate the costs the plaintiff had to

bear in securing his rights, hence even defendants lacking culpability and acting in good

faith should pay attorneys’ fees”); Hastert, 28 F.3d at 1439, 1444 (holding that the

Illinois State Board of Election Commissioners could be liable for attorney’s fees in a

redistricting case, notwithstanding the fact that the State Board was “truly a nominal

defendant” that had “no interest in the eventual outcome except that there be an outcome

which it [could] implement”). Enabling civil rights plaintiffs to have access to courts to

enjoin enforcement of unconstitutional laws furthers the national policy of facilitating the

redress of civil rights grievances — irrespective of whether the party enjoined was

responsible for enacting the law at issue. See Zipes, 491 U.S. at 759.

       In addition, the County Board’s refusal to defend the Redistricting Act in court

should have been of little moment on the issue of whether to award fees to the Citizens.

See Hastert, 28 F.3d at 1444 n.16 (noting that, for purposes of attorney’s fees, it was “of

no consequence” that the defendant “played no active role in the proceedings and agreed

to enforce whatever plan the district court adopted”). It is true that the County Board’s

refusal to defend the law streamlined the litigation and thereby reduced the fees incurred.

But the Board’s actions did “not eliminate the costs [that] the plaintiff[s] had to bear in

securing [their] rights,” Pruett, 499 F.3d at 417, which, given that the clear goal of

§ 1988 and § 10310(e) is to eliminate or reduce such costs in order to provide “effective

access to the judicial process,” see City of Riverside v. Rivera, 477 U.S. 561, 576 (1986),

means that the Citizens should be awarded the fees that they incurred in vindicating their

                                            11
civil rights. Thus, while the County Board’s conduct during litigation may have limited

its fee liability, it did not immunize the Board from fee liability.

        Moreover, contrary to the County Board’s argument, there is no injustice in

requiring a county entity to pay fees in a lawsuit challenging the constitutionality of a

state law. The First Circuit, in affirming a § 1988 fee award against a city government

for a lawsuit successfully challenging the constitutionality of a state law, explained this

well:

        The facts that the city did not itself enact the law at issue and that some
        other entity may be more ‘culpable’ or ‘causally responsible’ than the city
        do not, in our view, make it ‘unjust’ as a matter of law to assess these costs.
        Indeed, civil rights action costs (including attorney’s fees) are often
        assessed against defendants who enforce the laws instead of those who
        enact them. The legislature is rarely sued. School districts and counties
        have paid costs when they sought to enforce state statutes. We see nothing
        in the city/state relationship that would warrant carving out a special legal
        rule excepting cities from cost liability when they seek to enforce state
        statutes. Cities are legal instruments of the state. In any event, the practical
        difficulties that would accompany any requirement that courts trace the cost
        dollar back to the most appropriate ‘tax pot’ suggest that Congress had no
        such legal rule in mind. The state can more easily provide for appropriate
        shifting of financial burdens when it enacts indemnification statutes.

Venuti v. Riordan, 702 F.2d 6, 8 (1st Cir. 1983) (Breyer, J.) (emphasis added) (citations

omitted); see also Pruett, 499 F.3d at 416–17 (concluding that no “special circumstances”

existed where the defendant — a county entity in a lawsuit challenging the

constitutionality of a state law — was “not a policy making body” but rather “merely

enforce[d] the laws and policies of the state”). At bottom, because the County Board was

the “department of the State” charged with enforcement of the Redistricting Act,

see Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 362 (2009), the County Board’s


                                              12
concerns are ultimately about how North Carolina has chosen to structure its enforcement

apparatus. Those concerns, however, cannot justify denying fees to prevailing civil rights

plaintiffs. And to the extent the County Board suggests that the burden on county

taxpayers supports denying fees, we have already expressly recognized that such a

burden is “an improper ground for denying or reducing an attorney’s fee to the prevailing

party under 42 U.S.C. § 1988.” Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169,

180 (4th Cir. 1994).

       Finally, the Citizens’ choice to sue only the County Board and not any

unnecessary defendants cannot support denying fees.           The County Board, as the

instrumentality charged with the enforcement of the Redistricting Act, was the only

necessary defendant, see Wright, 787 F.3d at 262–63, and the Citizens prevailed against

it, obtaining full relief.   The County Board therefore was the only entity “legally

responsible for relief on the merits.” Zipes, 491 U.S. at 763 (citation omitted).

       Seeking to avoid an award of fees against it, the County Board points to our

decision in Chastang v. Flynn & Emrich Co., 541 F.2d 1040 (4th Cir. 1976). But that

decision cannot sustain the weight that the County Board seeks to place on it.         In

Chastang, the plaintiffs filed suit under Title VII, alleging that their employer’s

retirement plan discriminated on the basis of sex and naming as defendants their

employer, the committee administering the plan, and the plan’s corporate trustee. After

the plaintiffs prevailed, the district court declined to award attorney’s fees, and we

affirmed. Recognizing that “good faith alone would not insulate [the defendants] from

making [the] plaintiffs whole,” we concluded that circumstances in that case presented

                                             13
“more.” Chastang, 541 F.2d at 1045. Of key importance, we noted that “[s]hould

attorneys’ fees be awarded . . . the net effect would be to penalize innocent participants in

the plan,” who, “[b]ecause the plan was amended to eliminate its illegally discriminatory

aspects before plaintiffs’ suits were filed,” could not “be said to have derived any benefit,

direct or indirect, from the litigation.” Id. (emphasis added); see also id. (noting that the

company “redressed its unintentional violation” of Title VII and that “from the

chronology of events [it could not be] infer[red] that plaintiffs’ law suits were a

contributing factor”). The circumstances in Chastang are thus materially different from

those in this case, where the Citizens obtained a permanent injunction barring

enforcement of a redistricting law found to be unconstitutional.

       At bottom, we conclude that the district court abused its narrowly circumscribed

discretion in holding that “special circumstances” existed in this case. We therefore

reverse the district court’s order and remand for a determination of a reasonable fee

award. In making that determination, however, the Citizens will not be entitled to

recover fees attributable to the intervenors’ involvement. See Brat v. Personhuballah,

883 F.3d 475, 484–85 (4th Cir. 2018).

                                                          REVERSED AND REMANDED




                                             14
RICHARDSON, Circuit Judge, dissenting:

       Congress authorized district courts to award attorney’s fees to prevailing civil

rights plaintiffs under 42 U.S.C. § 1988. But in doing so, Congress did not mandate fee

awards in every case. Rather, Section 1988(b) provides that “the court, in its discretion,

may allow the prevailing party … a reasonable attorney’s fee as part of the costs.”

(emphasis added). This unambiguous delegation of authority requires us to give the

district judge—the person most closely attuned to the facts—at least a modicum of

discretion to decide whether to award fees.

       Here, the district court scrutinized the conduct of the parties and determined that

awarding attorney’s fees would be unjust. My good colleagues disagree. But because the

judge thoughtfully exercised the discretion granted to her, I respectfully dissent.

       One could be excused for thinking that the statutory language—“the court, in its

discretion, may”—bestows broad discretion on the district court to decide whether to

award attorney’s fees. Such a conclusion would be even more understandable after

contrasting this text with that of other fee-shifting provisions that limit a judge’s

discretion. See, e.g., 22 U.S.C. § 9007(b)(3) (the court “shall order the respondent to pay

necessary expenses … unless the respondent establishes that such order would be clearly

inappropriate” (emphasis added)).       Despite the statute’s text, courts have narrowly

construed district courts’ discretion under Section 1988(b) to further a “policy of

facilitating access to judicial process for the redress of civil rights grievances.” Majority

Op. at 7. But neither the Supreme Court nor this Court has stripped the district courts of

all discretion. Indeed, courts have repeatedly acknowledged that some discretion remains

                                              15
to deny fees to prevailing parties based on “special circumstances.” See, e.g., Hensley v.

Eckerhart, 461 U.S. 424, 429 (1983) (noting that a plaintiff “should ordinarily recover an

attorney’s fee unless special circumstances would render such an award unjust” (quoting

legislative history)). 1

       In determining whether “special circumstances” warranted denying attorney’s

fees, the court below considered the actions of both sides, looking to the relevant

behavior of the defendant as well as the plaintiffs. If “special circumstances” are to mean

anything, they must include the conduct of the parties involved in the litigation. The

district court was best positioned to evaluate that conduct, which it had witnessed

firsthand. We should not quickly discard her insightful analysis.

       First, the district judge examined the defendant’s conduct leading up to and during

the litigation. And here the County Board of Elections neither enacted nor took any

positions to defend the offending law.        What is more, the County Board actively

cooperated with plaintiffs to simplify their case by stipulating to various facts. In making

those decisions, the County Board reasoned that, as a ministerial entity, “taking a position

on the constitutional issues raised would be inconsistent with its duty to administer

elections in an impartial and nonpartisan manner.” City of Greensboro v. Guilford Cty.

Bd. of Elections, 248 F. Supp. 3d 692, 697 (M.D.N.C. 2017).




       1
         Plaintiffs stress that as a factual matter judges rarely deny attorney’s fees in these
cases. But rarity does nothing to show whether this judge abused her discretion in
finding these special circumstances supported denying fees.

                                              16
       As the district court acknowledged, a defendant’s good faith is not enough,

standing alone, to warrant denying fees. But this does not make good faith irrelevant

when combined with something “more.” Chastang v. Flynn & Emrich Co., 541 F.2d

1040, 1045 (4th Cir. 1976). To the contrary, we have held that a defendant’s good faith

is a “virtual prerequisite” to a denial of fees. Teague v. Bakker, 35 F.3d 978, 996 (4th

Cir. 1994).

       More broadly, our precedent makes clear that the defendant’s conduct can be

relevant to deciding whether to award fees. See Chastang, 541 F.2d at 1045 (holding the

denial of fees justified in part by the blamelessness and behavior of the defendant); see

also Consumers Union of U.S., Inc. v. Virginia State Bar, 688 F.2d 218, 222 (4th Cir.

1982) (holding the fee award justified in part because the defendant helped enact the

unconstitutional rule and sought to repeal it only after the plaintiffs sued). A district

court may thus consider that a defendant, with no choice but to carry out the challenged

action, affirmatively chose not to defend the law and instead assisted the plaintiffs. 2


       2
          The Majority attempts to distinguish Chastang based on the timing of the
defendant company’s amendment of the retirement plan at issue. Majority Op. at 14. But
our holding there did not turn on that one fact. While Chastang certainly acknowledged
the relevance of the timing of the plan’s amendment to comply with the law going
forward, the amendment did nothing to eliminate the need for the lawsuit to recover past
damages. Along with the defendant’s good faith and prompt amendment to the
unconstitutional plan, we found something “more” that justified denying fees. We noted
that the defendant company (1) did not violate the law when it first established the
retirement plan, (2) had no “unrestricted right” to amend the plan, (3) acted “with
reasonable dispatch as soon as a murky area of the law was clarified,” (4)
“unintentional[ly]” violated the law, (5) “had no pecuniary interest in the fund,” meaning
it “had no economic incentive” to violate the law, and (6) “more importantly, it had no
right unilaterally to alter the schedule of benefits for participants in the plan.” Chastang,
(Continued)
                                              17
       Along with considering the defendant’s actions, the district court also considered

the plaintiffs’ litigation conduct. The plaintiffs initially sued only the County Board.

Then they actively resisted intervenors’ attempts to join any party with policymaking

responsibility for the Act (e.g., a member of the State Board of Elections). Now, the

plaintiffs’ attorneys seek to excuse those choices based on flimsy reasoning. 3 Nothing

precluded them from suing responsible state actors. Yet they focused on a defendant who

would not defend the suit.

       That strategic focus on this defendant made their case easier to win. But it also

meant that the County Board—a local government entity with no meaningful

responsibility for the practices at issue, and whose budget is far smaller than the state’s—

would be left holding the bag when it came time to pay attorney’s fees. Since district

judges are in the best position to identify stratagem, we should respect this district




541 F.2d at 1045. Similarly, we noted that (7) the committee administering the plan
should not pay fees because “it did not originate the discrimination which subsequently
became illegal,” but merely “participated in a passive act of discrimination.” Id. Finally,
we noted that (8) awarding fees would only “penalize innocent participants in the plan.”
Id.
       3
          The attorneys for the plaintiffs claim that they “potentially risked sanctions by
willfully disregarding this Court’s very recent ruling [in Wright v. North Carolina] that
naming only the County Board (and not a state defendant) was the appropriate course.”
Appellants’ Brief at 29. This overstates our holding. Nowhere in our opinion did we
state that plaintiffs can only sue an elections board. Instead, we merely found that
plaintiffs must sue the county board of elections and that suing individual legislators
“would be futile” since such individuals lack enforcement authority. Wright v. North
Carolina, 787 F.3d 256, 263 (4th Cir. 2015). We offered no decision on the efficacy of
suing other state officials who possess some authority.

                                            18
judge’s determination that this conduct contributed to the special circumstances

warranting the denial of fees.

       In exercising its discretion not to award attorney’s fees, the district court

recognized the competing concerns and considered the actions of both the County Board

and the plaintiffs.     Having done so, the court decided that under “the peculiar

circumstances of this case, it would be unjust to require the County Board to pay the

individual plaintiffs’ attorney’s fees.”     City of Greensboro v. Guilford Cty. Bd. of

Elections, No. 1:15-CV-559, 2018 WL 276688, at *1 (M.D.N.C. Jan. 3, 2018). This was

a reasonable exercise of its discretion. To conclude otherwise reads that discretion out of

Section 1988, allowing the statute’s purpose to swallow its text. Cf. Kloeckner v. Solis,

568 U.S. 41, 55 n.4 (2012) (“[E]ven the most formidable argument concerning the

statute’s purposes could not overcome the clarity we find in the statute’s text.”).

       When a statute grants a district court discretion to make hard decisions, it is

inevitable that we will face cases in which we disagree with the outcome but still must

affirm. This district court, acting in line with the text of this statute as well as precedent,

concluded that awarding fees would work a greater injustice than not awarding fees under

these special circumstances. Though I may not have reached the same conclusion, I must

still respect the district judge’s finding. For that reason, I respectfully dissent.




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