*

Honorable Charles A. Moye, Jr., Senior U.S. District Judge

for the Northern District of Georgia, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 93-9403.

Gail HEAD, Plaintiff-Counter-Defendant-Appellee,

v.

Larry MEDFORD, individually and as Mayor of the City of Rutledge,

Ga., Dewey H. Richardson, individually and as City Manager for the

City of Rutledge, Ga., Hazel Conner, individually and as Member of

the City Council for the City of Rutledge, Ga., Virginia Davis,

individually and as Member of the City Council for the City of

Rutledge, Ga., Jimmy Thompson, individually and as Member of the

City Council for the City of Rutledge, Ga., Brad Overstreet,

Defendants-Appellants,

The City of Rutledge, Ga., Defendant-Cross-Defendant, CounterClaimant, Cross-Claimant, Appellant,

The Cincinnati Insurance Company, Intervenor-Defendant, CrossClaimant, Counter-Defendant, Cross-Defendant.

Aug. 25, 1995.

Appeal from the United States District Court for the Middle

District of Georgia. (No. CA-91-128-ATH), Duross Fitzpatrick, Chief

Judge.

Before EDMONDSON and CARNES, Circuit Judges, and MOYE*

, Senior

District Judge.

PER CURIAM:

BACKGROUND

This litigation began as an action for damages in connection

with the termination of plaintiff's employment, in the Superior

Court of Morgan County, Georgia, against appellants, Larry Medford,

Dewey H. Richardson, Hazel Conner, Virginia Davis, Jimmy Thompson,

Brad Overstreet, and the City of Rutledge, Georgia (hereinafter

"defendants"). Appellee, Gail Head (hereinafter "plaintiff"),
 1

"[N]or shall any State deprive any person of life, liberty,

or property, without due process of law...." U.S. Const.Amend.

XIV, § 1. 

filed a five-count complaint containing four state law claims and

claims based on federal law. Plaintiff's federal claims charged

that defendants had deprived her of a property interest in her

employment with the City of Rutledge (the "City") in violation of

the state and federal constitutional rights to due process of law.1

Defendants removed this case to the United States District

Court for the Middle District of Georgia on the basis of the

federal question presented by the due process claim brought by

plaintiff under the Fourteenth Amendment of the United States

Constitution. Plaintiff thereafter moved to amend her complaint to

delete any reference to a federal constitutional claim asserting

that such language was surplusage and to remand the case to state

court. Plaintiff conceded that she "cannot and has not stated a

cognizable claim for relief in a Federal forum," referring at that

time to her 14th amendment due process claims. [App. Rec. 16 at

2.] The district court denied plaintiff's motion for remand, as

well as her motion to amend the complaint, noting that since

federal question jurisdiction existed at the time of removal

amending the complaint would not divest the court of jurisdiction.

The Cincinnati Insurance Company ("Cincinnati"), the insurer

which issued a position fidelity bond covering plaintiff for

$25,000 and naming the City as the insured, sought to intervene in

this matter. The district court granted the motion to intervene.

Cincinnati filed a counterclaim against plaintiff and a cross-claim

against the City. The City then filed a cross-claim against
 2

The district court determined that plaintiff alleged three

federal constitutional violations: 1) violation of due process

for failing to follow established municipal procedures for firing

employees, 2) violation of due process by the taking of her

property right in employment, and 3) violation of the takings

clause of the Fifth Amendment [incorporated in the XIV Amendment]

by unlawfully discharging plaintiff. [App.Rec. 128 at 2-3.] 

intervenor Cincinnati.

Following approximately one year of discovery, on all claims,

state and federal, defendants sought summary judgment on all

claims, including the federal constitutional claims, which

plaintiff opposed. The district court granted defendants' motion

for summary judgment on plaintiff's federal constitutional claims

only.2 The district court declined to exercise supplemental

jurisdiction over the remaining state law claims, and dismissed

them without prejudice pursuant to 28 U.S.C. § 1367(c), a dismissal

contested by defendants.

Defendants sought reconsideration of the district court's

dismissal of plaintiff's state law claims on the ground that the

court retained jurisdiction, and equitable considerations warranted

retention of jurisdiction. Defendants also filed a motion for

attorneys fees and a bill of costs. Similarly, plaintiff filed a

motion for attorneys' fees, costs and expenses.

The district court denied defendants' motion for

reconsideration. This appeal followed.

This case presents two issues only. First, did the district

court err in denying without explanation the bill of costs sought

by appellants pursuant to Rule 54(d) of the Federal Rules of Civil

Procedure? Second, did the district court err in denying without

explanation appellants' motion for attorneys' fees brought under 42
U.S.C. § 1988 or Rule 11 of the Federal Rules of Civil Procedure?

There is no claim here that the district court abused its

discretion in dismissing all state law claims. We conclude that

the answer to both questions is "yes," and thus, remand this case

to the district court to award costs and attorneys' fees in an

appropriate amount or to explain its decision to award no costs or

fees.

STANDARD OF REVIEW

 We review the factual findings underlying a district court's

determination regarding prevailing party status for clear error.

Church of Scientology Flag Serv., Org., Inc. v. City of Clearwater,

2 F.3d 1509, 1512-13 (11th Cir.1993), cert. denied, --- U.S. ----,

115 S.Ct. 54, 130 L.Ed.2d 13 (1994). "Whether the facts as found

suffice to render the plaintiff a "prevailing party' is a legal

question reviewed de novo." Church of Scientology, 2 F.3d at 1513.

Finally, a district court's determination that a party has

prevailed for purposes of awarding attorneys' fees is reviewed for

abuse of discretion. Id.

I. Bill of Costs

The district court's order denying attorneys' fees and costs

in this case stated: "[a]fter careful consideration Plaintiff's

and Defendant's motions for attorney's fees, costs and expenses are

hereby DENIED." [App. Rec. 151.] The district court made no

finding whether defendants were prevailing parties for purposes of

determining costs under Rule 54(d), Fed.R.Civ.P., or attorney's

fees under 42 U.S.C. § 1988. Neither did the district court

explain its decision to deny attorney's fees and costs to both
parties.

 Rule 54(d) of the Federal Rules of Civil Procedure provides

that "costs other than attorneys' fees shall be allowed as of

course to the prevailing party unless the court otherwise directs."

Fed.R.Civ.P. 54(d). This Court has held that "where the trial

court denies the prevailing party its costs, the court must give a

reason for its denial of costs so that the appellate court may have

some basis upon which to determine if the trial court acted within

its discretionary power." Gilchrist v. Bolger, 733 F.2d 1551, 1557

(11th Cir.1984) (citation omitted) (emphasis added). Thus,

although the district court has discretion to deny a prevailing

party costs, such discretion is not unfettered.

 In the case sub judice, the district court did not determine

whether defendants were prevailing parties and gave no reason for

denying defendants' bill of costs. This was an abuse of the

court's discretion. Gilchrist v. Bolger, 733 F.2d at 1557.

 We have determined previously, in connection with 42 U.S.C.

§ 1988, that "we may decide, rather than remanding the issue to the

district court, whether the ... [party] is now a prevailing party

entitled to an ... award of attorneys' fees and costs. See Jones

v. Diamond, 636 F.2d 1364, 1381-83 (5th Cir. Jan. 29, 1981) (en

banc)." Ensley Branch, NAACP v. Siebels, 31 F.3d 1548, 1582 (11th

Cir.1994). We see no principled reason not to extend this rule to

allow us to decide as a matter of law whether a party has prevailed

in connection with assessing costs under Federal Rule of Civil

Procedure Rule 54(d).

 To be a prevailing party
 3

In Bonner v. City of Prichard, 661 F.2d 1206 (11th

Cir.1981) (en banc ), the Eleventh Circuit Court of Appeals

adopted as precedent the decisions of the former Fifth Circuit

issued before October 1, 1981. 

 442 U.S.C. § 1988 provides:

[a] party need not prevail on all issues to justify a full

award of costs, however. Usually the litigant in whose favor

judgment is rendered is the prevailing party for purposes of

rule 54(d).... A party who has obtained some relief usually

will be regarded as the prevailing party even though he has

not sustained all his claims.... 10 Wright & Miller, supra,

§ 2667, p. 129-130. Cases from this and other circuits

consistently support shifting costs if the prevailing party

obtains judgment on even a fraction of the claims advanced.

United States v. Mitchell, 580 F.2d 789, 793-94 (5th Cir.1978)

(citations omitted).3

 There is no question but that the district court rendered a

judgment in defendants' favor by granting their motion for summary

judgment on plaintiff's federal claims although practically that

apparently constituted only a small part of plaintiff's claims.

That the district court declined to exercise its supplemental

jurisdiction under 28 U.S.C. § 1367 and dismissed all of

plaintiff's remaining state law claims, does not impair the fact

that, as far as the federal case was concerned, defendants

prevailed. Thus, defendants were the prevailing party in the

district court for purposes of Rule 54(d) and are entitled to their

costs unless the district court has some special reason to deny the

costs.

II. Attorneys' Fees

The district court's order denying plaintiff's and defendants'

motions for attorneys' fees did not determine which party had

prevailed for purposes of 42 U.S.C. § 1988,4

 or whether plaintiff's
In any action or proceeding to enforce a provision

of sections 1981, 1981a, 1982, 1983, 1985, 1986 of this

title, title IX of Public Law 92-318, the Religious

Freedom Restoration Act of 1993, or title VI of the

Civil Rights Act of 1964, the court, in its discretion,

may allow the prevailing party, other than the United

States, a reasonable attorney's fee as part of the

costs.

(Emphasis added). 

federal claims were frivolous. Again, we properly may determine

which party has prevailed so as to be entitled to an award of

attorneys' fees pursuant to 42 U.S.C. § 1988. Ensley Branch, NAACP

v. Siebels, 31 F.2d at 1582. See Jones v. Diamond, 636 F.2d at

1381-83.

Defendants assert that plaintiff admitted that her federal

claim was frivolous, thus entitling them to attorneys' fees under

both 42 U.S.C. § 1988 and Rule 11, Fed.R.Civ.P. Plaintiff contends

that the district court did not abuse its discretion by denying

defendants attorneys' fees.

 Ordinarily, a prevailing plaintiff "is to be awarded

attorney's fees in all but special circumstances." Christiansburg

Garment Co. v. EEOC, 434 U.S. 412, 417, 98 S.Ct. 694, 698, 54 L.Ed.

648, 654 (1978) (Title VII). By contrast, a more stringent

standard applies to prevailing defendants who may be awarded

attorney's fees only when a court finds that the plaintiff's claim

was "frivolous, unreasonable, or without foundation, even though

not brought in subjective bad faith." Christiansburg Garment Co.,

434 U.S. at 421, 98 S.Ct. at 700, 54 L.Ed.2d at 657. This standard

applies equally to awards of attorneys' fees sought under 42 U.S.C.

§ 1988 by prevailing civil rights defendants. Hughes v. Rowe, 449
U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163, 172 (1980).

But, the Supreme Court has cautioned that

[i]n applying these criteria, 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.

Christiansburg, 434 U.S. at 421-22, 98 S.Ct. at 700, 54 L.Ed.2d at

657.

 In Sullivan v. School Bd., 773 F.2d 1182, 1188-90 (11th

Cir.1985), this Court stated that frivolity determinations are not

subject to immutable rules but rather must be made on a

case-by-case basis. In reviewing the cases, the Court explained

that findings of frivolity have been sustained when either a motion

for summary judgment or a motion for involuntary dismissal,

Fed.R.Civ.P. 41(b), has been granted in instances where plaintiffs

did not introduce any evidence to support their claim. Sullivan,

773 F.2d at 1189 (citations omitted) (emphasis added). See EEOC v.

Reichhold Chems., Inc., 988 F.2d 1564, 1568-69 (11th Cir.1993).

Where plaintiffs introduced evidence sufficient to support their

claim, findings of frivolity generally do not stand. Sullivan, 773

F.2d at 1189. In addition, courts consider several other factors

in determining whether a claim is frivolous: 1) did plaintiff

establish a prima facie case; 2) whether defendant offered to

settle; and 3) whether the trial court dismissed the case prior to

trial or held a full-blown trial on the merits. Id.

 In the case sub judice, plaintiff did not survive summary
judgment on her federal constitutional claims. The district court

determined that plaintiff, in accordance with long and firmly

settled Georgia state law, was an at-will employee and, thus, had

no cognizable federal constitutional right to due process or a

claim for a taking. Although the district court did not

specifically determine that plaintiff failed to establish a prima

facie case for her federal constitutional claims, this concept was

the necessary import of the district court's order.

There is no evidence of record to suggest that defendants

offered to settle this case. On the contrary, shortly after

removal of this case to federal court, plaintiff offered to amend

the complaint to eliminate her federal claim and obtain a remand to

state court. Plaintiff, however, never offered voluntarily to

dismiss her federal claims with prejudice. There thus would have

remained a possibility of refiling in the federal court as well as

full litigation of the same issues as applied to the Georgia

constitutional claims, a possibility not even obviated by the

district court's ruling. In obtaining summary judgment, defendants

thus obtained more than the voluntary dismissal without prejudice

offered by plaintiff.

Defendants successfully defeated plaintiff's federal

constitutional claims on the merits. Merely because plaintiff did

not ultimately prevail on her federal claims does not determine

that her claims were groundless. But the assertion of a

constitutional claim based knowingly on a nonexistent property

interest was legally groundless. Accordingly, we find that

plaintiff's federal due process claims were legally frivolous as a
 5

The award of fees and costs involves judicial discretion. 

Thus, a remand is appropriate. See Macklin v. Singletary, 24

F.3d 1307, 1311-12 (11th Cir.1994). 

matter of law, Sullivan, 773 F.2d at 1189, and defendants are

entitled to attorneys' fees in accordance with 42 U.S.C. § 1988,

unless the district court points out special circumstances that

justify making no award of fees.

Although appellants contend that they are also entitled to

attorneys' fees under Rule 11 of the Federal Rules of Civil

Procedure, we do not find it necessary to reach that issue.

Thus, we remand this case to the district court for a

determination of the attorneys' fees to which defendants are

entitled, confident that court will be able properly to weigh and

assess the amount of attorneys' fees realistically attributable

solely and exclusively to the plaintiff's federal due process

claims and not to the defendants' attempt to litigate state law

claims in federal court. If there are special circumstances that

justify an award of no costs or no fees the district court must

make these circumstances clear in its order.

 The district court's order denying attorneys' fees and costs

is therefore REVERSED. This case is REMANDED to the district court

for further proceedings in accordance with this opinion.5

REVERSED and REMANDED.