                                                                   [DO NOT PUBLISH]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.

            ----------------------------------------------------------------
                 Appeal from the United States District Court
                       for the Southern District of Florida
            ----------------------------------------------------------------

                              (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2005) (unpublished) (“Vavrus I”).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


    1
     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.

                                                2
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

                                           3
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

                                           4
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).

                                            5
      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)




                                           6
(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

                                           7
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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