[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 06-12406 ELEVENTH CIRCUIT
SEPTEMBER 19, 2007
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 01-08837-CV-KLR
CHARLES VAVRUS,
Plaintiff-Appellant,
versus
JOSEPH RUSSO,
ERIC JABLIN,
CARL SABATELLO,
LAUREN FURTADO,
DAVID CLARK et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 19, 2007)
Before EDMONDSON, Chief Judge, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Charles Vavrus (“Vavrus”) appeals from the district
court’s award of attorney’s fees in the amount of $137,171.50 to Defendants-
Appellees Joseph Russo, Mark Hendrickson, Roxanne Manning, and Bobbie
Berakovich (“Defendants”),1 pursuant to 42 U.S.C. § 1988. No reversible error
has been shown; we affirm.
In this civil rights action, Vavrus alleged violations of his equal protection
and substantive due process rights arising out of Defendants' "campaign of
harassment against Plaintiff through the use of code enforcement proceedings and
ex parte injunction actions" taken "in an effort to coerce Plaintiff to sell his ranch .
. . at less than its fair market value and to stymie his efforts to deannex the
property from the City." The district court granted summary judgment to
Defendants, and we affirmed. Vavrus v. Russo, No. 04-14790 (11th Cir. May 10,
2005) (unpublished) (“Vavrus I”). We also denied Defendants’ motion for
attorney’s fees and costs on appeal.
After the mandate issued, Defendants notified the district court of their
intent to proceed with their previously-filed motion to tax attorney’s fees to
Vavrus, which the district court had stayed pending Vavrus’ appeal. After briefing
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These persons are current and former officials of the City of Palm Beach Gardens, Florida
(“City”). The City was also named as a defendant, but is not a party to the order at issue in this
appeal.
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by both parties, the district court granted Defendants’ motion and awarded
attorney’s fees. Vavrus now appeals from this order, contending that the district
court erred in awarding Defendants attorney’s fees because (1) the law of the case
doctrine barred the district court from granting Defendants’ motion because we
denied Defendants’ motion for attorney’s fees on appeal; and (2) Vavrus’ suit was
not “frivolous, unreasonable, or without foundation” as required for an award of
fees to prevailing defendants under Christianburg Garment Co. v. EEOC, 434 U.S.
412, 421 (1978).
We review the district court’s award of attorney’s fees for abuse of
discretion. ACLU v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999). “An abuse of
discretion occurs if the judge fails to apply the proper legal standard or to follow
proper procedures in making the determination, or bases an award upon findings
of fact that are clearly erroneous.” Id. (citation and quotation marks omitted).
Section 1988 states that a “court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney's fee as part of the costs. .
. .” Although a prevailing plaintiff “[o]rdinarily . . . ‘is to be awarded attorney's
fees in all but special circumstances,’ ” a prevailing defendant may recover
attorney’s fees “only when the court finds that the plaintiff's claim was ‘frivolous,
unreasonable, or without foundation, even though not brought in subjective bad
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faith.’ ” Head v. Medford, 62 F.3d 351, 355 (11th Cir. 1995) (quoting
Christianburg, 434 U.S. at 418, 421). The Supreme Court has cautioned that, in
making such determinations,
it is important that a district court resist the understandable temptation to
engage in post hoc reasoning by concluding that, because a plaintiff did
not ultimately prevail, his action must have been unreasonable or without
foundation. This kind of hindsight logic could discourage all but the most
airtight claims . . . . 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.
Christianburg, 434 U.S. at 421-22.
We have noted that frivolity determinations must be made on a case-by-case
basis, taking into account various factors, including (1) whether the plaintiff
established a prima facie case, (2) whether the defendant offered to settle; and (3)
whether the suit was dismissed before trial. See Head, 62 F.3d at 355-56. Here,
the district court concluded that Vavrus’ claims were “legally meritless” because
he failed to establish a prima facie case for his equal protection or substantive due
process claims and because the suit was decided on summary judgment. We
conclude that no error exists in this determination.
First, the law of the case doctrine did not preclude the district court from
independently exercising its discretion to award Defendants attorney’s fees under
section 1988. This doctrine provides that “findings of fact and conclusions of law
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by an appellate court are generally binding in all subsequent proceedings in the
same case . . . .” Burger King Corp. v. Pilgrim’s Pride Corp., 15 F.3d 166, 169
(11th Cir. 1994) (citation and quotation marks omitted). But, the doctrine only
applies to those things decided explicitly or by necessary implication. Id.
Contrary to Vavrus’ contention, our denial of Defendants’ motion for attorney’s
fees on Vavrus’ earlier appeal did not explicitly or by necessary implication
determine that Vavrus’ suit was not “frivolous, unreasonable, or without
foundation.” Our order simply stated that Defendants’ motion was “DENIED.”
We did not explain the denial. And, the denial could not necessarily imply that we
had concluded that Vavrus’ suit was nonfrivolous; whether or not we actually
regarded Vavrus’ underlying claims as without foundation, we might have simply
exercised our discretion to deny attorney’s fees. Cf. Thomas v. Bible, 983 F.2d
152, 154 n. 2 (9th Cir. 1993) (“[I]f an appeal is non-frivolous we cannot award
appellate fees . . ., but if an appeal is frivolous [we have] discretion to grant or
deny fees. . . . [F]or purposes of the law of the case doctrine the consequences of
relying on one ground rather than the other are entirely different.”); Price v. State
of Hawaii, 939 F.2d 702, 710 n. 10 (9th Cir. 1991) (noting that appellate court
“must exercise [its] own discretion when fees are requested on appeal,” even when
the lower court’s fee award is affirmed on appeal).
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Second, the district court did not abuse its discretion by concluding that
Vavrus’ claims were “legally meritless.” We see no error in the district court’s
determination that Vavrus failed to establish a prima facie case on both his equal
protection and substantive due process claims because he failed to introduce
evidence supporting his allegations. In Vavrus’ earlier appeal, we concluded that
Vavrus’ equal protection claims “lack merit because the Plaintiff produced no
evidence that he was treated differently from similarly situated persons.” Vavrus I
(emphasis added). We also affirmed the district court’s determination that Vavrus’
substantive due process claims were “meritless.” Thus, we do not accept Vavrus’
contention that the district court misconstrued the nature of Vavrus’ claims in
determining that his suit was frivolous.
That we determined that Vavrus’ claims were properly dismissed on
summary judgment does not automatically entitle Defendants’ to attorneys’ fees,
see Head, 62 F.3d at 356; but that Vavrus’ suit was unsuccessful because he failed
to introduce evidence supporting his allegations does suggest that his suit was
groundless. See id. at 355 (noting that findings of frivolity have generally been
sustained when plaintiffs failed to introduce evidence supporting their claims);
Munson v. Milwaukee Bd. of Sch. Directors, 969 F.2d 266, 270 (7th Cir. 1992)
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(upholding fee award to defendant where plaintiff offered no evidence to support
his allegations of wrongful discharge).
That Vavrus’ claims survived Defendants’ motion to dismiss does not
indicate that the suit was not frivolous. At that early stage, the district court must
accept as true the plaintiff’s well-pleaded factual allegations. Vavrus’ claims
failed because he did not introduce evidence supporting his allegations, not
because the district court “simply changed its mind.” See Hutchinson v. Staton,
994 F.2d 1076, 1080-81 (4th Cir. 1993) (affirming fee award to defendants where
plaintiffs’ claim survived motions for dismissal and summary judgment, but was
ultimately determined to be factually frivolous). Contrary to Vavrus’ assertion,
the legal standards and theories applicable to Vavrus’ claims were not novel. The
district court consistently set forth the standards at both the motion to dismiss and
summary judgment stages and compared Vavrus’ allegations and evidence,
respectively, to the standards. In granting summary judgment to Defendants, the
district court repeatedly stated that Vavrus had introduced no evidence
demonstrating that Defendants had treated Vavrus differently than other similar
landowners or had acted with an improper motive.
We conclude that the court acted within its discretion in awarding
Defendants’ attorney’s fees under 42 U.S.C. § 1988. Vavrus does not challenge
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the amount of fees awarded. We therefore affirm the district court’s judgment of
attorney’s fees in favor of Defendants.
AFFIRMED.
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