[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                       ________________________           U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                March 6, 2007
                              No. 06-15351
                                                             THOMAS K. KAHN
                          Non-Argument Calendar                   CLERK
                        ________________________

                 D.C. Docket No. 03-00269-CV-OC-10-GRJ


CHRISTOPHER ANDERSON,

                                                       Plaintiff-Appellee,

     versus


CITY OF CRYSTAL RIVER, FLORIDA,

                                                       Defendant-Appellant.



                       __________________________

              Appeal from the United States District Court for the
                          Middle District of Florida
                        _________________________

                               (March 6, 2007)

Before ANDERSON, BARKETT and HILL, Circuit Judges

PER CURIAM:
      Plaintiff, Christopher Anderson, brought this action against The City of

Crystal River (the “City”) seeking damages under 42 U.S.C. § 1983 and the

Florida Whistleblower Act, Florida Statutes § 112.3187, and for recision of his

prior settlement agreement resulting in his resignation from his employment with

the City. In 2004, the district court abated this action upon the parties’ stipulation

that the facts and issues herein were the same or almost identical to those in

Ballard v. City of Crystal River, Case No. 5:02-cv-240-OC-10-GRJ, in which the

district court had granted summary judgment to the City and which was then on

appeal to this court. After we affirmed that judgment, Anderson sought to re-open

this case and the district court agreed, holding that Anderson’s claims for recision

and for damages under the Whistleblower Act were not barred by the judgment

affirmed in Ballard. This case was re-opened and discovery commenced.

      Following discovery, the City moved for summary judgment on both counts

of Anderson’s complaint. After due consideration, the district court agreed and

entered summary judgment for the City.

      The City then moved the district court to award of costs and fees against

Anderson, under the frivolous litigation provisions of both the 42 U.S.C. § 1988

and the Whistleblower Act, as well as for the award of attorneys’ fees against

Anderson’s counsel under 28 U.S.C. § 1927 for the allegedly vexatious and


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unreasonable multiplication of these proceedings. The City argued that

Anderson’s claims were frivolous and filed in bad faith as to the validity of their

allegations. The City contended that Anderson knew that his claims were barred

by his previous settlement agreement with the City as well as by the

Whistleblower Act’s statute of limitations. As to Anderson’s counsel, the City

argued that the prosecution of this case “after pursuing to the appellate level a

virtually identical claim,” unnecessarily prolonged these proceedings.

       The district court denied the City’s motion for costs and fees as to both

Anderson and his counsel. The district court held that as to the allegation of

frivolity, it must determine whether this case was so lacking in arguable merit as to

be groundless or without foundation, rather than whether the action was ultimately

unsuccessful. Under this standard, the court said, the City was not entitled to costs

and fees because Anderson’s claims were not so frivolous, unreasonable or

without foundation as to justify such an award.

      The district court noted that Anderson’s claim for recision was based upon

an allegation of duress that raised factual issues not resolved prior to this

litigation. Furthermore, his claim under the Whistleblower Act would not have

been barred by the statute of limitations had the settlement agreement been

rescinded. Thus, the district court concluded, it cannot be said that Anderson’s


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present claims were without arguable merit, groundless, or without foundation.

Additionally, in considering Anderson’s motion to reopen this case, the district

court noted that it had carefully considered whether Ballard controlled Anderson’s

present claims and had determined that it did not. Therefore, the district court

concluded, Anderson’s counsel did not unnecessarily prolong this litigation by re-

opening this case.

       Our review of the district court’s decision not to award costs or fees against

Anderson and his counsel is for an abuse of discretion. Amlong & Amlong v.

Denny’s, Inc., 

, 1188 (11th Cir. 2006). Under this standard, we must

affirm the district court unless we find that it has applied the wrong legal standard

or made a clear error of judgment. Our review of this case reveals no such error of

law or judgment. Accordingly, the district court did not abuse its discretion and

its denial of the City’s motion for costs and fees is due to be

      AFFIRMED.




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