             Case: 14-15474   Date Filed: 09/02/2015   Page: 1 of 4


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-15474
                        ________________________

                  D.C. Docket No. 1:14-cv-00097-JRH-BKE



HENRY D. HOWARD,
EARNEST G. SMITH,
GLORIA FRAZIER,
THOMAS WALKER,
KENNETH MARTIN,
MELVIN IVEY,
ALBERT ROBINSON, JR.,

                                               Plaintiffs - Appellants,

versus

AUGUSTA-RICHMOND COUNTY, GEORGIA, COMMISSION,
DEKE S. COPENHAVER,
in his official capacity as Mayor of Augusta-Richmond County,
LYNN BAILEY,
in her official capacity as Executive Director of the Richmond
County Board of Elections,

                                               Defendants - Appellees.
                Case: 14-15474      Date Filed: 09/02/2015      Page: 2 of 4


                              ________________________

                     Appeal from the United States District Court
                        for the Southern District of Georgia
                           ________________________

                                   (September 2, 2015)

Before JORDAN and JULIE CARNES, Circuit Judges, and ROBREÑO, * District
Judge.

PER CURIAM:

       Following oral argument, and for the reasons which follow, we conclude that

the district court abused its discretion in awarding attorneys’ fees to Augusta-

Richmond County.

       A prevailing defendant in a civil rights case brought pursuant to 42 U.S.C. §

1983 can recover attorneys’ fees under 42 U.S.C. § 1988(b) if the action was

“frivolous, unreasonable, or without foundation.” Sullivan v. Sch. Bd. of Pinellas

Cty., 773 F.2d 1182, 1188 (11th Cir. 1985). The same standard applies under 52

U.S.C. § 10310(e), a provision of the Voting Rights Act. See Dillard v. City of

Greensboro, 213 F.3d 1347, 1353 (11th Cir. 2000).

       To be frivolous, a complaint must be “so lacking in arguable merit as to be

groundless or without foundation.” Sullivan, 773 F.2d at 1189 (internal quotation

marks and citation omitted). The plaintiffs’ complaint here, though ultimately

unsuccessful, was not frivolous.
       *
        Honorable Eduardo C. Robreño, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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      First, at the time the complaint was filed, there was no binding precedent

clearly establishing that the Supreme Court’s decision in Shelby County v. Holder,

133 S. Ct. 2612 (2013), was retroactive. The County had a good argument—

indeed, what turned out to be a winning argument—that Shelby County was

retroactive under the rule set forth in Harper v. Virginia Department of Taxation,

509 U.S. 86, 96 (1993), but we explained, in an en banc opinion, that Harper

“clearly retained the possibility of pure prospectivity and . . . also retained the . . .

test [from Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)], albeit in a modified

form, as the governing analysis for such determinations in civil cases.” Glazner v.

Glazner, 347 F.3d 1212, 1216-17 (11th Cir. 2003) (en banc). So the plaintiffs had

a non-frivolous argument under Glazner that Shelby County should be given only

prospective effect. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422

(1978) (“Even when the law or the facts appear questionable or unfavorable at the

outset, a party may have an entirely reasonable ground for bringing suit.”).

      Second, in response to queries from legislators, attorneys working for the

State of Georgia disagreed on the effect of Shelby County given the DOJ’s

previous objection. Deputy Legislative Counsel H. Jeff Lanier wrote that, despite

Shelby County, the DOJ objection “[wa]s still valid.” Deputy Attorney General

Dennis Dunn took a different view, opining that Shelby County was retroactive,

and it therefore “appear[ed]” that the new Georgia legislation concerning voting


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dates could be implemented. He cautioned, however, that “there is no settled law

in Georgia that definitively adopts these conclusions in relation to the

implementation of a practice or procedure to which the DOJ had previously

objected.” These conflicting views further indicate that the scope of Shelby County

was not clear at the time the plaintiffs filed suit.     Cf. Harris v. Ariz. Indep.

Redistricting Comm’n, 993 F.Supp.2d 1042, 1076 (D. Ariz. 2014) (three-judge

court) (“Nothing in Shelby County suggests that all those [previously drawn

redistricting] maps are now invalid, and we are aware of no court that has reached

such a conclusion.”).

      “[T]he showing required to support a finding of frivolity is a ‘stringent’

one[.]” Johnson v. Florida, 348 F.3d 1334, 1354 (11th Cir. 2003). Because that

showing was not made, we reverse the district court’s award of attorneys’ fees to

Augusta-Richmond County.

      REVERSED AND REMANDED.




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