                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-5-2001

Barnes Foundation v. Lower Merion Twp
Precedential or Non-Precedential:

Docket 99-2055




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation
"Barnes Foundation v. Lower Merion Twp" (2001). 2001 Decisions. Paper 41.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/41


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed March 5, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-2055

THE BARNES FOUNDATION

v.

THE TOWNSHIP OF LOWER MERION; THE LOWER
MERION BOARD OF COMMISSIONERS; GLORIA P.
WOLEK, individually and in her capacity as Pr esident of
the Township Board of Commissioners; FRANK LUTZ,
individually and in his capacity as Commissioner;
KENNETH E. DAVIS, individually and in his capacity as
Commissioner; PHYLLIS L. ZEMBLE, individually and in
her capacity as Commissioner; ORA R. PIERCE,
individually and in her capacity as Commissioner; JAMES
J. PRENDERGAST, individually and in his capacity as
Commissioner; ALAN C. KESSLER, individually and in his
capacity as Commissioner; BRIAN D. ROSENTHAL,
individually and in his capacity as Commissioner;
JOSEPH M. MANKO, individually and in his capacity as
Commissioner; HOWARD L. WEST, individually and in his
capacity as Commissioner; W. BRUCE MCCONNEL, III,
individually and in his capacity as Commissioner; JAMES
S. ETTELSON, individually and in his capacity as
Commissioner; DAVID A. SONENSHEIN, individually and
in his capacity as Commissioner; REGENE H. SIL VER,
individually and in her capacity as Commissioner;
STEVEN ASHER; INA ASHER, h/w; ROBERT MARMON;
TOBY MARMON, h/w; WALTER HERMAN; NANCY
HERMAN, h/w; ARTHUR GERSHKOFF; LEONARD H.
GINSBERG; BETH R. GINSBERG, h/w; MARK MOSTER;
MARLENE MOSTER, h/w; JAMES NEALON; LESTER
SCHAEVITZ; DIANE SCHAEVITZ, h/w; MICHAEL TOAFF;
ANNA LEV-TOAFF, h/w; BRUCE SCHAINKER
Ina Asher, Steven Asher, Nancy Herman
       Walter Herman, Robert Marmon and
       Toby Marmon

       Appellants

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 96-cv-00372)
District Judge: The Honorable Ronald L. Buckwalter

Argued October 5, 2000

BEFORE: NYGAARD, GREENBERG, and COWEN,
Circuit Judges.

(Filed: March 5, 2001)

       David H. Weinstein (argued)
       Kellie A. Allen
       Weinstein, Kitchenoff, Scarlato &
        Goldman
       1608 Walnut Street
       Suite 1400
       Philadelphia, PA 19103

        Attorneys for Appellants

       Sheryl L. Auerbach
       Maura E. Fay (argued)
       Dilworth, Paxson, Kalish &
        Kauffman
       1735 Market Street
       3200 The Mellon Bank Center
       Philadelphia, PA 19103

        Attorneys for Appellee

                                 2
OPINION OF THE COURT

GREENBERG, Circuit Judge:

I. FACTUAL & PROCEDURAL HISTORY

A. Factual History

This matter comes on before this court on appeal from an
order entered on November 24, 1999, denying an
application seeking attorney's fees filed by certain
successful defendants in the aftermath of the entry of an
order dismissing the complaint against them in this civil
rights action. The Barnes Foundation (the"Barnes"), which
brought the action, is a Pennsylvania corporation that
operates an art gallery on North Latches Lane in Lower
Merion Township, Pennsylvania, in the Philadelphia
suburbs. Dr. Albert C. Barnes established the Barnes in
1922 by Indenture and Agreement conveying the real estate
that the Barnes currently occupies, as well as his art
collection. The Indenture provides that the Foundation's
purpose is "to promote the advancement of education and
the appreciation of the fine arts." App. at 178. The Barnes
is governed by a board of trustees that during the time
relevant to this action consisted of Shirley A. Jackson,
Niara Sudarkasa, Charles A. Frank III and Richar d H.
Glanton, the board's president. Lincoln University, which
the Barnes describes as "a predominately and historically
African-American university," see br . at 4, located in
Chester County, Pennsylvania, appoints all but one of the
trustees and the Mellon Bank appoints the other . At the
times relevant to this opinion, the trustees except for
Frank, who is or was a Senior Vice Pr esident of Mellon,
were African-American.

The six appellants-defendants, Ina Asher, Steven Asher,
Nancy Herman, Walter Herman, Robert Marmon and Toby
Marmon, are residents of the neighborhood in which the
Barnes is located. Even though the Bar nes brought this
action against 17 neighbors as well as Lower Merion
Township (the "Township"), the Lower Merion Board of

                                  3
Commissioners (the "Board"), and each of the township
commissioners (the "Commissioners") in their individual
and official capacities, the six appellants ar e the only
defendants who are parties to this appeal.

The events giving rise to this case originate fr om the
Barnes' operation and use of its gallery. For many years
access to the gallery was limited, see Bar nes Found. v.
Keely, 171 A. 267, 268 (Pa. 1934), but in 1960, pursuant
to the entry of a consent decree between the Barnes and
the Commonwealth of Pennsylvania, the Barnes opened the
gallery to the public two days per week, except during July
and August of each year. Subsequently, the Barnes opened
the gallery to the public for an additional half-day per week.
In 1990, Glanton became president of the Bar nes' board of
trustees and in that capacity, beginning in 1993, initiated
a major renovation of its facilities and art gallery. By reason
of the renovation, the Barnes was closed until November
1995. To fund the renovations, the Bar nes sent certain
selected works of art from its collection on a world tour
which generated a great deal of publicity for the Barnes.

Around August or September of 1995, prior to the
Barnes' reopening, it sought permission from the Township
to construct a parking lot on its property. This application
prompted the neighbors and other individuals to voice
concerns over the facility's scheduled r eopening as they
believed that the reopening would cause parking, noise and
pollution problems. Contemperaneously, individuals living
in the area of the Barnes, including the appellants, formed
The Latches Lane Neighborhood Association to oppose the
Barnes' reopening, as well as to challenge certain of its
other activities that they believed violated the 1922
Indenture and Agreement as well as local zoning laws. The
Barnes alleges that this opposition included supporting
litigation in the Montgomery County Orphan's Court
concerning its request to change the ter ms and conditions
for the operation of the gallery, in particular opposing its
attempt to expand its operations from two and one-half to
six days per week.

The complaint in this action alleges that the Bar nes'
neighbors and township officials conspired to deprive it of
its constitutional rights on the basis of the race of three of

                               4
the four Barnes trustees and that the neighbors and
officials agreed that the Township would discriminate
against the Barnes by requiring "strict compliance" with
township rules and regulations and by "closely
monitor[ing]" the Barnes, while not tr eating its institutional
neighbors in this way. See app. at 185. According to the
Barnes, the conspiracy's ultimate goal was to prevent its
reopening.

The Barnes set forth particularized allegations in its
complaint. Thus, it charged that in the months preceding
its scheduled reopening, the Township and neighbors
engaged in several activities with the intention of preventing
its reopening. The Barnes said that to further this goal
during the last two months of construction at the Barnes,
a township inspector made six unannounced visits to the
site and that during the final inspection of the premises on
October 30, 1995, approximately two weeks prior to the
scheduled reopening, the deputy fire marshal announced
prior to beginning an inspection that the facility would not
pass. The Barnes alleges that he imposed several arbitrary
and unreasonable requirements on it as requirements for
obtaining a certificate of occupancy.

On November 9, 1995, two days before the Bar nes'
scheduled opening gala events, David Latshaw, the
Township Manager, sent Glanton a letter criticizing, among
other things, the Barnes' lack of a traffic plan for the
reopening. Glanton responded by letter indicating his belief
that Latshaw's letter was overly hostile and that the
Township was treating the Barnes differently from other
entitites because of racial animus. The Barnes asserts that
when the parties met the day of the opening gala, the
Township treated it in an overtly hostile manner.

The complaint further alleges that on November 10 and
11, 1995, during the opening gala events, certain persons,
including appellants Ina Asher, Walter Herman, Robert
Marmon, and Toby Marmon, congr egated and picketed at
the Barnes' main gate to protest its r eopening. Moreover, it
asserted that unspecified individuals carried placards that
read, among other things, "From LA to P A, Money Buys
Justice" and "Lincoln University - Go Home." In addition,

                               5
Robert Marmon and Toby Marmon videotaped gallery
visitors entering and exiting the Barnes.

Four days after the gala events, the Commissioners held
a meeting to discuss the Barnes situation. At the hearing,
several neighbors, including Robert Marmon and Steven
Asher, spoke out against the official r eopening scheduled
for the following day, November 16, 1995. Specifically,
Robert Marmon stated, in relevant part:

       For sixteen years we hardly knew the Bar nes
       Foundation was across the street. They wer e good
       neighbors. Then, something changed. We didn't
       change. We did nothing wrong. Outsiders have taken
       over the Barnes, people who have no attachment to the
       neighborhood, to the life we have quietly enjoyed. We
       have been citizens here for decades. Mr . Glanton and
       his people have not been. We have been voters here for
       decades. Mr. Glanton and his people have not. And
       most importantly, we have been taxpayers her e for
       decades and Mr. Glanton and his people have not. I
       now finally understand what a carpetbagger is and how
       one operates.

Id. at 94. The Barnes contends that Marmon's use of the
words "outsiders," "Mr. Glanton and his people," and
"carpetbagger" indicates a racially hostile attitude both on
his part and on that of his fellow neighbors.

At the end of the meeting, the Commissioners adopted a
resolution requesting that the Bar nes delay its reopening
until it developed plans to manage the parking and crowd
problems effectively, or, if the opening proceeded, to "take
any and all appropriate actions necessary to maintain the
peace, safety, and quality of life of the surr ounding
neighborhood and its residents and assur e that the
operation of the facility by the Barnes Foundation complies
with the Township of Lower Merion zoning code." Id. at 100.
The Commissioners adopted the resolution pursuant to
their findings that the Barnes estimated that it would have
significantly more visitors in the first year following the
reopening than in previous years, and that the parking and
crowd control arrangements to accommodate the visitors
were inadequate. Moreover, the Commissioners were

                                6
concerned that the proposed use did not comply with the
Township's zoning laws which apparently zoned the Latches
Lane area for residential and educational use, but not for
an art gallery. The Commissioners therefor e believed that
the Barnes might violate the local zoning or dinances if the
primary focus of its operations was the operation of the
gallery, as opposed to conducting its educational pr ograms.

Notwithstanding the objections, the Barnes r eopened,
though it did not attract as many people as anticipated.
The neighbors still had complaints, however, about traffic
and parking, and the concerns about potential zoning
violations persisted. The Township addr essed these issues
in a letter dated November 29, 1995, from the President of
the Township Commissioners to the neighbors informing
them that the Commissioners had heard their concerns and
had been moved to act in response.

On December 13, 1995, the Township issued a violation
notice against the Barnes because it was open more than
two and one-half days per week and received mor e than
500 visitors per week, thus violating the operating
restrictions imposed on it since 1961. The Bar nes contends
that the Township zoning officer admitted that he had no
rational basis for ordering the Barnes to comply with the
1961 attendance levels restrictions, particularly inasmuch
as the Township had not been doing so immediately prior
to its closure for renovations.1

B. Procedural History

Following the issuance of the December 13, 1995 notice
of violation the Barnes filed a district court complaint on
January 18, 1996, alleging that the Township, the Board,
the Commissioners and 17 of the Barnes' r esidential
neighbors deprived and conspired to deprive it of its rights
under the Due Process and Equal Protection Clauses of the
United States Constitution contrary to 42 U.S.C.SS 1983
and 1985 by treating it differently from its institutional
neighbors as a result of a racially-motivated conspiracy
between the Township and the neighbors.2 On March 18,
_________________________________________________________________

1. The notice of violation was withdrawn, butfiled again on the same
grounds on August 6, 1996.
2. The complaint included an immaterial allegation that Glanton is a
Republican. See app. at 179. In this r egard, we point out that a party to

                                7
1996, the Township, the Board and the Commissioners
filed motions to dismiss the Barnes' complaint, but the
district court denied the motions by Memorandum and
Order dated June 3, 1996. See Barnes Found. v. Township
of Lower Merion, 927 F. Supp. 874, 875 (E.D. Pa. 1996).3
Between March 18, 1996, and April 1, 1996, all of the
neighbor defendants also filed motions to dismiss the
complaint, contending that they enjoyed First Amendment
immunity from liability for petitioning the government. Id.
at 875-76. The district court agreed with the neighbors and
thus, in its June 3, 1996 Memorandum and Order , granted
their motions to dismiss. See id. at 878.

Subsequently the Township and the Commissioners filed
a joint counterclaim asserting that by bringing this action
the Barnes abused the judicial process. The Barnes
responded to the counterclaim with a motion to dismiss
which the district court denied. Thereafter , the Barnes
unsuccessfully sought permission to amend the complaint
further, adding new claims against the neighbor defendants
and asserting claims on behalf of Glanton individually.

Following the close of discovery, the Township, the Board
and the Commissioners filed motions for summary
judgment on all of the Barnes' claims, which the district
court granted on September 26, 1997. See Bar nes Found.
v. Township of Lower Merion, 982 F . Supp. 970, 1005 (E.D.
Pa. 1997). The Township's and Commissioners'
counterclaim was dismissed thereafter pursuant to a
settlement, and a final order was enter ed on October 2,
1998, and then amended on October 28, 1998. The Bar nes
appealed from the district court's final or der but then
voluntarily dismissed the appeal. Glanton also filed an
appeal which we dismissed on March 12, 1999.
_________________________________________________________________

litigation should not gratuitously set forth in its pleadings the
political
affiliation of its president lest the court believe that the party is
making
an appeal for favorable treatment on account of that affiliation.

3. The Commissioners and other Township officials also filed a
defamation action against the trustees of the Bar nes on March 3, 1996,
in state court.

                               8
Upon resolution of the summary judgment motions, the
appellants filed a motion for attorney's fees and expenses
pursuant to 42 U.S.C. S 1988 which the district court
denied on November 24, 1999. See Barnes Found. v.
Township of Lower Merion, No. CIV. A. 96-372, 1999 WL
1065213 (E.D. Pa. Nov. 24, 1999). The appellants then
appealed from the district court's November 24, 1999 order.4

II. DISCUSSION

A. Standard of Review

We review the district court's or der denying the
appellants' motion for attorney's fees on an abuse of
discretion basis. See EEOC v. L.B. Foster Co., 123 F.3d 746,
750 (3d Cir. 1997); Brown v. Bor ough of Chambersburg, 903
F.2d 274, 277 (3d Cir. 1990). In this case, the appellants
challenge the district court's conclusions both as to the
legal and factual sufficiency of the Barnes' claims. We
exercise plenary review over sufficiency of evidence issues
and legal issues but use the clearly erroneous standard
when reviewing factual findings. See Quir oga v. Hasbro,
Inc., 934 F.2d 497, 502 (3d Cir. 1991); Rode v. Dellarciprete,
892 F.2d 1177, 1182-83 (3d Cir. 1990). 5
_________________________________________________________________

4. Defendants Leonard H. Ginsburg and Beth Ginsburg joined in the
motion but are not parties to the appeal. Other defendants also
submitted motions seeking fees but as those motions are not implicated
on this appeal we need not discuss their disposition.

5. We note that in his dissenting opinion Judge Nygaard recites that we
have vested the trial court with "discretionary authority [with respect to
fee applications] for good reason [as it] has the distinct advantage of
hearing and seeing evidence and testimony first-hand and has viewed
the parties and the cause over a longer time period." Dissent at 27.
While we do use an abuse of discretion standar d on this appeal, we
point out that Judge Nygaard's reasoning is not applicable in this case
inasmuch as Judge Brody granted the motions to dismiss and for
summary judgment and thereafter, on May 26, 1998, the case was
reassigned to Judge Buckwalter who denied appellants' application for
fees. Furthermore, Judge Buckwalter did so on the basis of the record
without conducting a trial-type hearing. Consequently, he did not have
an opportunity to see the parties testify first-hand and, in reality, even
though we are adjudicating this appeal on an abuse of discretion basis,
we doubt that Judge Buckwalter had any advantage over us in
considering the appellants' fee application.

                               9
B. Availability of Attorney's Fees Pursuant to Section 1988

The appellants contend that the district court err ed in
concluding that the Barnes' claims wer e neither legally nor
factually frivolous and that it should have awar ded them
attorney's fees on both of those bases pursuant to section
1988. Section 1988 provides, in relevant part: "In any
action or proceeding to enforce a pr ovision of sections . . .
1983 [and] 1985 . . . of this title, . . . 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 . . . ." 42 U.S.C. S 1988(b). The"prevailing party" can
be either the plaintiff or the defendant but the standard for
awarding attorney's fees to prevailing defendants is more
stringent than that for awarding fees to pr evailing plaintiffs.
See Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
421, 98 S.Ct. 694, 700 (1978); L.B. Foster, 123 F.3d at 750-
51.6 As the Supreme Court held in Christiansburg, while
prevailing plaintiffs "should or dinarily recover an attorney's
fee unless special circumstances would r ender such an
award unjust," a prevailing defendant is entitled to
attorney's fees only "upon a finding that the plaintiff 's
action was frivolous, unreasonable or without foundation
. . . ." Christianburg, 434 U.S. at 416-17, 421, 98 S.Ct. at
698, 700. Nevertheless, it is not necessary that the
prevailing defendant establish that the plaintiff had
subjective bad faith in bringing the action in or der to
recover attorney's fees. Rather, the relevant standard is
objective. See Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct.
173, 178 (1980). Furthermore, the Supr eme Court has
indicated that "it is important that a . . . 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
_________________________________________________________________

6. The standards for assessing claims for attorney's fees pursuant to
section 1988 and under the Civil Rights Act of 1964, 42 U.S.C. S 2000e-
5(k), are identical. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 433
n.7,
103 S.Ct. 1933, 1939 n.7 (1983); Hughes v. Rowe , 449 U.S. 5, 14, 101
S.Ct. 173, 178 (1980). Accordingly, cases used to interpret one statute
may be used to interpret the other. See Brown, 903 F.2d at 277 n.1;
Sullivan v. Pennsylvania Dep't of Labor & Indus., 663 F.2d 443, 447 n.5
(3d Cir. 1981).

                               10
foundation." Christiansburg, 434 U.S. at 421-22, 98 S.Ct. at
700.

We have relied on several factors in determining whether
a plaintiff 's unsuccessful civil rights claim was frivolous
including whether the plaintiff established a prima facie
case, the defendant offered to settle, the trial court
dismissed the case prior to trial or the case continued until
a trial on the merits. See L.B. Foster, 123 F.3d at 751.
Other factors that courts have considered in determining if
an action was frivolous include whether the question in
issue was one of first impression requiring judicial
resolution, the controversy is based sufficiently upon a real
threat of injury to the plaintiff, the trial court has made a
finding that the suit was frivolous under the Christiansburg
guidelines, and the record supports such afinding. See
Unity Ventures v. County of Lake, 894 F.2d 250, 253-54
(7th Cir. 1995). These considerations, however, are merely
guidelines, not strict rules; thus "[d]eter minations regarding
frivolity are to be made on a case-by-case basis." Sullivan v.
School Bd., 773 F.2d 1182, 1189 (11th Cir . 1983).

C. Legal Sufficiency of the Barnes' Claims

The appellants first argue that the Bar nes knew or
should have known that they enjoyed First Amendment
immunity for their conduct pursuant to the Noerr -
Pennington doctrine. The Barnes contends that an
individual's immunity under that doctrine for alleged
violations of civil rights was not established in this circuit
at the time it filed suit, particularly in cases in which it was
alleged that a racially discriminatory animus motivated a
defendant's actions. Therefore, it ar gues that its case
against the neighbors, including the appellants, was not
legally frivolous.

Unquestionably, given the outstanding case law at the
time the Barnes filed suit against the neighbors, the district
court properly dismissed its case against them by reason of
their First Amendment immunity and, indeed, the Bar nes
on this appeal does not challenge that disposition. But, as
we shall explain, prior to the institution of this action
neither the Supreme Court nor this court had held
expressly that the Noerr-Pennington doctrine provides an

                               11
immunity for First Amendment activity allegedly
constituting a civil rights abuse, especially when a racially
discriminatory animus allegedly motivated the activity.

1. Status of the Law in the Supreme Court and this
       Circuit

The Noerr-Pennington doctrine originated more than 30
years prior to the Barnes filing the complaint in this action
when the Supreme Court held in Easter n Railroad
Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S.
127, 81 S.Ct. 523 (1961) ("Noerr"), and United Mine Workers
v. Pennington, 381 U.S. 657, 85 S.Ct. 1585 (1965)
("Pennington"), that an individual is immune from liability
for exercising his or her First Amendment right to petition
the government. See Pennington, 381 U.S. at 669-70, 85
S.Ct. at 1593; Noerr, 365 U.S. at 137-38, 81 S.Ct. at 529-
30; see also City of Columbia v. Omni Outdoor Advertising,
Inc., 499 U.S. 365, 379-80, 111 S.Ct. 1344, 1353-54
(1991). The Court made these rulings in an antitrust
context where the defendants engaged in campaigns
directed towards obtaining governmental action for the
purpose of eliminating competition in their r espective
industries. See Pennington, 381 U.S. at 660, 85 S.Ct. at
1588; Noerr, 365 U.S. at 129, 81 S.Ct. at 525. In those
situations, the plaintiffs alleged that the defendants'
conduct violated the Sherman Antitrust Act. See
Pennington, 381 U.S. at 659, 85 S.Ct. at 1588; Noerr, 365
U.S. at 129, 81 S.Ct. at 525. The Supreme Court disagreed
with the plaintiffs, holding that the Sher man Act did not
proscribe the campaign. See Pennington, 381 U.S. at 671,
85 S.Ct. at 1594; Noerr, 365 U.S. at 145, 81 S.Ct. at 533.
The Court recognized that the "right of petition is one of the
freedoms protected by the Bill of Rights, and we cannot, of
course, lightly impute to Congress an intent to invade these
freedoms." Noerr, 365 U.S. at 138, 81 S.Ct. at 530. The
Court held that there was immunity regar dless of the
defendants' motivations in waging their campaigns, as it
recognized that the right of individuals to petition the
government "cannot properly be made to depend on their
intent in doing so." Id. at 139, 81 S.Ct. at 530.

The Supreme Court and this court have extended the
scope of the Noerr-Pennington doctrine beyond the antitrust

                               12
context. Thus, in NAACP v. Claiborne Har dware Co., 458
U.S. 886, 102 S.Ct. 3409 (1982), the Court applied the
Noerr-Pennington doctrine to a civil conspiracy claim by
white merchants whose businesses were boycotted by the
NAACP. See id. at 912-14, 102 S.Ct. at 3425-26. The
boycott was intended to force compliance with a list of
demands for racial equality and integration that had been
presented to white elected officials. See id. at 889-90, 102
S.Ct. at 3413. The boycott was supported by speeches,
meetings and picketing, although there wer e threats of
actual violence as well. Applying the principles set forth in
Noerr-Pennington, the Court unanimously held that the
First Amendment protected the nonviolent aspects of the
boycott. See id. at 907-08, 102 S.Ct. at 3422 (reaffirming
principle that " `the practice of persons sharing common
views banding together to achieve a common end is deeply
embedded in the American political process' " (quoting
Citizens Against Rent Control Coalition for Fair Housing v.
City of Berkeley, 454 U.S. 290, 294, 102 S.Ct. 434, 436
(1981))). The Court reached its conclusion even though
some members of the group may have engaged in
unprotected conduct.

We extended the principles of the Noerr -Pennington
doctrine in Pfizer Inc. v. Giles (In r e Asbestos School
Litigation), 46 F.3d 1284 (3d Cir . 1994), and Brownsville
Golden Age Nursing Home, Inc. v. Wells, 839 F.2d 155 (3d
Cir. 1988), in which we held that the r espective defendants
were immune from liability for civil conspiracy pursuant to
the First Amendment. See Pfizer, 46 F .3d at 1289-90;
Brownsville, 839 F.2d at 160. In Brownsville, the plaintiff,
a nursing home, alleged that the defendants engaged in a
civil conspiracy designed to lead to the state r evoking its
nursing home license. See Brownsville, 839 F.2d at 156.
Two defendants, private citizens who visited the nursing
home, communicated their concern over what they viewed
as appalling conditions to federal and state officials. See id.
at 157-58. They engaged the efforts of Senator Heinz, and
together sought to have the home decertified. See id. at
158. The district court granted the defendants' summary
judgment motions, and we affirmed. See id. Relying on the
Noerr-Pennington doctrine we held that the defendants were

                               13
immune from conspiracy liability for damages r esulting
from inducing official action. See id. at 160.

Likewise, in Pfizer the plaintiff alleged that the
defendants, several manufacturers of asbestos-containing
building products ("ACBPs"), conspir ed with each other and
acted in concert to produce and sell ACBPs without
warnings and with knowledge of the danger they presented.
See Pfizer, 46 F.3d at 1286. One of the defendants, Pfizer,
moved for summary judgment on the civil conspiracy and
concert of action claims, claiming that the evidence
supporting the plaintiffs' claims consisted entirely of the
fact that Pfizer had manufactured an ACBP fr om 1964 until
1972 and that in 1984, Pfizer became associated with the
Safe Buildings Alliance ("SBA"), a lobbying or ganization
that, among other things, represented its members'
interests before federal, state and local government officials
and agencies. See id. at 1287. The district court denied
Pfizer's motion on the ground that a jury r easonably could
conclude there was a conspiracy based on Pfizer's
involvement with and financial support for the SBA. See id.
Pfizer unsuccessfully moved for reconsideration and,
following the denial of its request for certification of an
interlocutory appeal, it petitioned us seeking a writ of
mandamus that effectively would overtur n the district
court's decision. See id. at 1288.

We granted Pfizer's petition. See id. at 1290. Relying on
Claiborne Hardware, we found that the First Amendment
right to petition government protected Pfizer's association
with the SBA and that to the extent that the First
Amendment did not protect the SBA's activities, Pfizer
could not be held liable absent evidence that its actions
with regard to the SBA were intended specifically to further
that wrongful conduct.

Therefore, at the time the Barnesfiled its complaint, we
already had applied the Noerr-Pennington doctrine in varied
contexts. Nevertheless, while in Pfizer we stated that we
saw no reason why this principle of First Amendment
immunity was not meant to have general applicability, we
had not determined in an actual case involving a claim of
an infringement of civil rights that a Noerr -Pennington
defense was available when the Barnes filed its complaint

                               14
in this action. While not determinative, this circumstance
mitigates against a finding that the Barnes' suit against the
neighbors was legally frivolous. See Tarter v. Raybuck, 742
F.2d 977, 987 (6th Cir. 1984) (r eversing award of attorney's
fees to prevailing defendant in part because legal issue was
not well-settled in circuit or country).

2. Status of the Law in Other Circuits

We recognize that by the time the Bar nes filed its
complaint, several other courts of appeals had made the
Noerr-Pennington doctrine and First Amendment immunity
expressly applicable as defenses to causes of action arising
under federal civil rights laws. See Eaton v. Newport Bd. of
Educ., 975 F.2d 292, 299 (6th Cir . 1992) (holding teachers'
union and individual immune under Noerr-Pennington for
lobbying that led to school principal's dischar ge); Video Int'l
Prod., Inc. v. Warner Amex Cable Communications, Inc., 858
F.2d 1075, 1084 (5th Cir. 1988) (finding Noerr-Pennington
precluded defendant's liability as conspirator with city in
violation of civil rights under 42 U.S.C. S 1983); Stevens v.
Tillman, 855 F.2d 394, 404-05 (7th Cir. 1988) (noting
applicability of Noerr-Pennington as defense to plaintiff 's
civil rights action, but finding for defendants on other
grounds); Evers v. County of Custer, 745 F.2d 1196, 1204
(9th Cir. 1984) (upholding award of attorney's fees to
defendants immunized from liability by Noerr-Pennington for
petitioning government to declare r oad spanning plaintiff 's
land public); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d
607, 614-15 (8th Cir. 1980) (holding private citizen immune
from section 1983 liability in zoning dispute). We think that
this point is important because, even in the absence of
binding precedent in this court, the pr esence of well-
established case law in other circuits when an action is
filed could demonstrate that the action was frivolous.

Only one of the foregoing cases, however , arose in the
context of allegedly racially-motivated petitioning activity.
Stevens involved a federal civil rights claimfiled by a school
principal against members of the local parent-teacher
association. See Stevens, 855 F.2d at 395. The plaintiff
alleged that certain members of the association conspired
to influence the board of education to transfer her to

                               15
another school because of her race.7 See id. But the court
of appeals did not reach the immunity issue because it
determined that the plaintiff had not suffered an injury at
official hands. See id. at 405. The court remarked in dicta,
however, that it "very much doubt[ed] that S 1985(3)
properly may be used to penalize racially-motivated political
campaigns, any more than the antitrust laws may be used
to penalize deceitful campaigns to obtain pr otection from
competition." Id. at 404. While we r ecognize that this
statement certainly should have been an indication to the
Barnes that its claims against the neighbors likely would
not succeed, still inasmuch as it was made in a dif ferent
circuit it does not carry such weight as to make the Barnes'
claim legally frivolous.

Moreover, we are encouraged to r each the conclusion that
the Barnes' action was not legally frivolous by the
circumstance that courts addressing that doctrine in a civil
rights context have not adopted the Stevens position
universally. In LeBlanc-Sternberg v. Fletcher, 781 F. Supp.
261 (S.D.N.Y. 1991), the district court denied the
defendants' motion to dismiss in a situation in which they
were accused of petitioning for the incorporation of a village
to impose strict zoning rules which would discourage and
prevent Orthodox Jewish residential neighborhoods from
developing in the community. See id. at 267. The court
stated:

       Taking the plaintiffs' allegations of defendants' motives
       as true, we are not prepared to conclude that
       defendants' conduct is protected by the first
       amendment. The `first amendment . . . may not be
       used as the means or the pretext for achieving
       "substantial evils" which the legislatur e has the power
       to control.' . . . To allow individuals to avail themselves
       of first amendment protections when it is alleged that
       their conduct will lead to official misconduct in
       violation of the United States Constitution would defeat
       the purpose of the civil rights laws.
_________________________________________________________________

7. The plaintiff was white while the defendants, as well as the majority
of the population of the plaintiff 's school, were African-American. See
Stevens, 855 F.2d at 395.

                               16
Id. (quoting California Motor T ransp. Co. v. Trucking
Unlimited, 404 U.S. 508, 515, 92 S.Ct. 609, 614 (1972)). In
California Motor Transport, the Court held that the plaintiff,
a trucking company, stated a cause of action under the
Clayton Act against its competitors where the competitors
engaged in concerted activities to institute state and federal
proceedings designed to interfere with the plaintiff 's
business. See California Motor Transp., 404 U.S. at 509, 92
S.Ct. at 611. The Court relied on the "sham" exception to
the Noerr-Pennington doctrine which denies immunity for
petitioning activity where the purpose is solely to interfere
with the business relationships of a competitor rather than
to effectuate governmental action aimed at accomplishing
the same result. Noerr, 365 U.S. at 144, 81 S.Ct. at 533.

Obviously LeBlanc-Sternberg was not binding authority in
this circuit when the Barnes initiated this case but the
sham exception to Noerr-Pennington immunity as set forth
in Noerr and California Motor T ransport certainly was. While
there is a legitimate argument that the sham exception to
the Noerr-Pennington doctrine could not have been
applicable here and that the Barnes should have so
recognized, nevertheless LeBlanc-Ster nberg demonstrates
that when the Barnes instituted this action there was some
question as to the applicability of the Noerr -Pennington
doctrine as a defense to its claim.

Overall, we are satisfied that the availability of the Noerr-
Pennington doctrine as a defense to a federal civil rights
claim where a defendant's conduct allegedly was racially
motivated was not completely established in this court at
the time the Barnes filed suit in this matter. Moreover, we
are satisfied that notwithstanding the tr end of the cases at
that time, other courts had not come to a unifor m
conclusion on the point. Accordingly, taking into account
the standards set forth in Christiansbur g and L.B. Foster,
we conclude, though the issue is close, that the district
court did not err in determining that the Bar nes' claim was
not legally frivolous.

Before we close our discussion of the Noerr -Pennington
doctrine we hasten to add that persons contemplating
bringing suits to stifle First Amendment activity should
draw no comfort from this opinion because the uncertainty

                               17
of the availability of a First Amendment defense when a
plaintiff brings a civil rights case now has been dispelled.
This point is of particular importance in land-use cases in
which a developer seeks to eliminate community opposition
to its plans as this opinion should make it clear that it will
do so at its own peril.

D. Factual Sufficiency of Barnes' Claims

Notwithstanding our conclusion with respect to the legal
question of the applicability of the Noerr -Pennington
doctrine, the factual sufficiency vel non of the Barnes'
claims is quite another matter which we must consider
separately. In considering this issue, we start by setting
forth the elements of a cause of action under 42 U.S.C.
S 1985(3), as Barnes sued the neighbors and thus the
appellants under that statute. Section 1985(3) pr ovides a
cause of action if: (1) two or more persons conspire to
deprive any person of the equal protection of the law; (2)
one or more of the conspirators perfor ms or causes to be
performed any overt act in furtherance of the conspiracy;
and (3) that overt act injures the plaintif f in his person or
property or deprives the plaintiff of any right or privilege of
a citizen of the United States. See Griffin v. Breckenridge,
403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99 (1971);
Bougher v. University of Pittsburgh, 882 F .2d 74, 79 (3d Cir.
1989). Section 1985(3), however, does not include a
requirement that the conspirators act"under color of state
law," as is the case in an action under 42 U.S.C.S 1983, as
section 1985(3) makes actionable private conspiracies to
deprive a citizen of the equal enjoyment of rights secured to
all. See Griffin, 403 U.S. at 95-102, 91 S.Ct. at 1794-98;
Phillips v. Trello, 502 F.2d 1000, 1004-05 (3d Cir. 1974).
Here, the Barnes predicated its claim of an equal protection
violation on racial discrimination. While the Bar nes also
brought its action against the appellants under 42 U.S.C.
S 1983, we see no need to discuss the possible applicability
of that section to the appellants who are private parties as
our conclusion with respect to the Barnes' section 1985
claim applies to its section 1983 claim as well.

In analyzing the sufficiency of the factual basis for the
Barnes' claims, the district court first r ecognized that the
Barnes never proffered any dir ect evidence of racial

                               18
hostility. See Barnes Found., 1999 WL 1065213, at *3. The
court found that instead the Barnes based the suit on
conduct that, while subtle, could be consider ed no less
discriminatory. See id. Therefor e, the court characterized
the issue as follows:

       Thus, in deciding the groundless issue, the key
       questions are: Can this complaint be said to have a
       factual foundation for its allegations of discriminatory
       treatment based on race when those allegations are
       based upon a theory that defendants' conduct, though
       not found by direct evidence to be racially motivated,
       was actually a sophisticated cover-up for racial
       discrimination. That is, can a reasonable factual
       foundation be established to support plaintif f 's theory
       by drawing inferences from certain objective facts
       which are generally not in dispute?

Id. at *4. The district court answer ed its question
affirmatively, though it qualified the answer by requiring
that the inference be reasonable. See id. The court held
that to base a complaint on circumstantial evidence, the
"plaintiff must be able to point to a factual pattern which
fairly implies racial discrimination, going beyond a mere
suggestion that in today's world, subtle conduct masks
racism." Id. The court found that the inferences supporting
the Barnes' complaint were reasonable and thus it denied
the appellants' motion for attorney's fees.

In so holding, however, the district court completely
ignored the opinions of the Supreme Court in Claiborne
Hardware and of this court in Pfizer which held that the
First Amendment requires more than evidence of
association to impose liability for conspiracy and, in fact,
prohibits liability on that basis alone. See Claiborne
Hardware, 458 U.S. at 918-19, 102 S.Ct. at 3428-29;
Pfizer, 46 F.3d at 1289. Thus, the Supr eme Court in
Claiborne Hardware explained that "[f]or liability to be
imposed by reason of association alone, it is necessary to
establish that the group itself possessed unlawful goals and
that the individual held a specific intent to further those
illegal aims." Claiborne Hardwar e, 458 U.S. at 920, 102
S.Ct. at 3429; see Pfizer, 46 F.3d at 1289. Furthermore, the
court must judge this intent "according to the strictest law."

                               19
Claiborne Hardware, 458 U.S. at 919, 102 S.Ct. at 3429.
Therefore, while it is clear that Claiborne Hardware and
Pfizer were the controlling legal authorities when the
district court denied the appellants' applications, and
continue to be so, the district court did not follow or even
cite either of those cases when it made its ruling.

How, then, did the district court reach its r esult
inasmuch as it acknowledged that there was no direct
evidence of racial hostility on the appellants' part? See
Barnes, 1999 WL 1065213, at *3. It did so by concluding
that on the record before it, one r easonably could draw an
inference of racial animus by the appellants sufficient to
support a claim against all of them. Id. at *4. It based this
conclusion on what it deemed a representative example of
the Barnes' evidence of discriminatory tr eatment including:
(1) an affidavit from Thomas Massaro, a land use
consultant, who opined that the neighbors wer e so firmly
and irrationally opposed to the Barnes' pr oposal that it
suggested their concerns were a pr etext for racial prejudice;
(2) Massaro's opinion that the neighbors' concerns about
traffic problems caused by the Barnes were inconsistent
with the realities of the neighborhood given the close
proximity of St. Joseph's University and the Episcopal
Academy; (3) an affidavit from Peter Kelsen, the attorney
retained by the Barnes to secure a parking lot building
permit, stating the Township should have allowed the
parking lot without zoning board approval, Township
representatives and neighbors expr essed a high level of
animosity towards Glanton, their meetings wer e becoming
increasingly confrontational and that comments by the
neighbors were of an overly discriminatory nature; (4) an
affidavit from Ann B. Laupheimer, an attorney for the
Barnes, stating that she discussed the possibility of a
lawsuit with other lawyers and, following an investigation
into the law and facts, determined ther e was sufficient
evidence to warrant proceeding; (5) an affidavit from
Jordana Cooper, an attorney for the Barnes, acknowledging
that while she did not anticipate the Noerr -
Pennington defense, there was little r eason to do so because
it was a novel one in this court at the time; (6) examples of
unequal treatment by the Township with r egard to traffic
and parking between the Barnes and its institutional

                               20
neighbors; (7) a Township Commissioner's alleged
statement that the Commissioners were outraged and were
going to help; and (8) Robert Marmon's statements at the
November 15, 1995 meeting where he used "code words"
such as "Mr. Glanton and his people,""carpetbaggers" and
"outsiders" in discussing the situation at the Barnes. See
id. at *2-3. This evidence, in addition to the historical
background of the Barnes which involved overt racial
hostility from the surrounding community, led the district
court to conclude that it was reasonable to infer that each
of the neighbors and thus each of the appellants was
motivated by racial hostility. Id. at *4.

We hold that the district court erred in its conclusion as
obviously the items it cited were a totally inadequate
foundation on which to predicate an infer ence that racial
animus motivated the appellants, except possibly Robert
Marmon. Indeed, it is not acceptable to pr edicate inferences
of racial animus against the neighbors and thus the
appellants because of the legal views of the Bar nes'
professional representatives supporting its cause or
because of the actions of Township officials. In particular,
we point out that the Barnes' repr esentatives and the
Barnes itself should have recognized that persons may
controvert their views without being racists.

Furthermore, with the exception of the last example
considered by the district court, which mentions only
Robert Marmon, none of the evidence that does refer to the
Barnes' neighbors specifies which neighbors were involved
in the actions. There are merely allegations that certain
unnamed and unidentified "neighbors" wer e involved in
allegedly discriminatory treatment. The same is true for the
evidence the Barnes has highlighted on this appeal, see
Barnes' Br. at 22-24, namely that: (1) the neighbors
expressed concerns over increased traffic and parking
problems associated with the use of the Bar nes' facility, but
did not complain about the traffic generated by St. Joseph's
University and the Episcopal Academy; (2) Robert Mar mon
and Toby Marmon, Ina Asher and W alter Herman were seen
in front of the Barnes among picketers holding signs
reading "From LA to PA, Money Buys Justice" and "Lincoln
University -- Go Home;" and (3) the neighbors founded,

                               21
were members of, and contributed money to the Latches
Lane Neighborhood Association for the purpose of acting in
concert against the Barnes.8

There was, therefore, no evidence indicating racial
animus on the part of five of the six defendants: Ina Asher,
Steven Asher, Nancy Herman, Walter Herman or Toby
Marmon. Nevertheless, in the absence of that evidence the
district court relied on generalized assertions of
discriminatory treatment to permit an inference to be
drawn of racial animus on the part of all of the neighbors
and thus of the appellants. This reliance plainly was
contrary to the Supreme Court's ruling in Claiborne
Hardware that in order to hold an individual liable by
reason of association with a group ther e must be evidence,
judged according "to the strictest law," that the individual
held a specific intent to further those illegal aims.
Accordingly, as to appellants Ina Asher , Steven Asher,
Nancy Herman, Walter Herman and T oby Marmon, the
district court erred in concluding that the Bar nes'
complaint was not factually groundless and we thus will
reverse the district court's order denying their motion for
attorney's fees.

In reaching our result, we feel constrained to point out
that surely it is outrageous that the Bar nes, while
purportedly securing its own civil rights, br ought a
groundless action against the appellants ther eby trampling
_________________________________________________________________

8. We are aware that the Bar nes alleged that appellant Steven Asher
stated that we would prefer to live across the street from a "Kravco mall"
than across the street from the Barnes. In this regard the Barnespoints
out that Kravco owns or operates the King of Prussia mall which it
asserts is "the largest mall in Pennsylvania." App. at 20-21. Obviously
there was nothing racial in this statement as it merely demonstrated the
strength of his opposition to the Barnes' reopening. We also point out
that there is some question as to whether anyone, let alone any of the
appellants, picketed with the signs that the Bar nes mentions. Indeed,
the district court in its opinion granting summary judgment said "[t]he
Barnes offers only a newspaper article published in the Philadelphia
Inquirer reporting that such picketers and signs had been seen. The
newspaper article is hearsay and cannot be consider ed on a motion for
summary judgment." Barnes Found., 982 F. Supp. at 988 n.14.
Nevertheless we will assume that the signs wer e present.

                                22
their First Amendment rights. To justify its conduct, the
Barnes in the conclusion of its brief quotes our opinion in
Aman v. Cost Furniture Rental Corp. , 85 F.3d 1074, 1082
(3d Cir. 1996), to the effect that discrimination "continues
to pollute the social and economic mainstream of American
life" and that the courts should "ensur e that prohibited
discrimination is not approved under the auspices of
legitimate conduct." But in Aman we did not suggest that a
minority-led organization was free tofile a baseless suit
against persons challenging its activities and then be able
to seek shelter behind its minority status when the
wrongfully charged defendants seek r edress against it for
having been put to the expense of defending against the
action. In short, a minority-led organization is not
exempted from facing the consequences of its wr ongful
actions merely because of the race of its leadership. But the
fact is that unless we discredit the deposition testimony of
Charles A. Frank, III, which we discuss below, we must
conclude that the Barnes cynically brought this frivolous
action to capitalize on its minority status to achieve its goal
of alleviating its parking problems.

Notwithstanding our result with respect to the other five
appellants, we are satisfied that the Bar nes did proffer
evidence that racial animus may have motivated Robert
Marmon's conduct. While his comments during the
Commissioners' meeting were arguably racially ambiguous,
we cannot say that it is unreasonable to infer that they
communicated racial hostility and discriminatory
motivation. Accordingly, although the evidence is thin,
given the deferential standard of r eview on this appeal we
cannot conclude that the district court abused its
discretion in determining that the Bar nes' claim against
Robert Marmon was not factually groundless.9
_________________________________________________________________

9. The appellants recognize that ther e was evidence that Robert Marmon
acted for racial reasons, see br . at 33, though they deny that he did so.
Of course, the absence of evidence to support a conclusion that the other
appellants acted out of that motivation would not mean that the section
1985 conspiracy claim against Robert Marmon therefore was necessarily
groundless as there were other defendants in this action with whom he
could have conspired.

                               23
The appellants also contend that the district court erred
by failing to consider their evidence that Glanton and thus
the Barnes had a wrongful ulterior motive in filing suit
against them, namely to expedite the Township's approval
for an on-site parking lot in part by stifling public
opposition to its plans. The appellants argue that if left
undisturbed, the district court's denial of their motion for
attorney's fees will have a chilling ef fect on First
Amendment activity by private individuals as they will face
the possibility of being burdened with substantial legal
expenses for engaging in constitutionally-pr otected
conduct. In considering this argument we point out that the
appellants' evidence of the Barnes' wr ongful motive in
bringing this action obviously was compelling because they
elicited the information from Franks at his deposition. After
all, inasmuch as Franks was a Barnes trustee he would
have been in a position to understand what the Bar nes was
doing and the motivations for its actions. Franks testified
that Glanton "has all along represented his interest in
resolving the parking issues, and [Glanton] felt that the
filing of [the] complaint [in this action] would accelerate the
settlement of that issue. [Glanton] was only after his
parking and nothing else." App. at 276. Further more,
Franks stated his position that this action was of doubtful
validity contemperaneously with the events as they
unfolded for on January 18, 1996, the day the Bar nes filed
this suit, he wrote Glanton and indicated that he was
opposed to filing the complaint because he had"serious
concerns whether the allegations in the draft complaint are
appropriate or accurate." App. at 279.

In denying the appellants' motion for attorney's fees, the
district court did not mention their claim that the Barnes
had brought this action in bad faith. The Bar nes seems to
suggest that from this omission we should infer that the
court considered and rejected the bad faith claim. See
Barnes' Br. at 27-30. We, however, recently have held that
"it is incumbent upon a district court to make its reasoning
and application of the fee-awards jurisprudence clear, so
that we, as a reviewing court, have a sufficient basis to
review for abuse of discretion." Gunter v. Ridgewood Energy
Corp., 223 F.3d 190, 196-97 (3d Cir . 2000). Without any
statement from the district court explaining its reason for

                               24
not allowing the appellants attorney's fees on the basis of
this claim, we are not able to say the district court rejected
their argument. We recognize that a reversal on this bad
faith point may have no practical consequences to the
appellants other than Robert Marmon as they ar e entitled
to reasonable attorney's fees for the r easons we already
have set forth. Nevertheless, we will reverse on the bad
faith claim and will remand the case to the district court for
a determination of the appellants' claim that the Barnes
brought this action in bad faith because Robert Marmon is
entitled to receive the benefit of a r econsideration of his
claim on this basis.

III. CONCLUSION

For the foregoing reasons we will r everse the order of the
district court of November 24, 1999, and will r emand the
case to that court for calculation of the attor ney's fees that
should be allowed to the appellants other than Robert
Marmon and to reconsider the claim that the Barnes
brought this action in bad faith. In the event that the court
determines that the Barnes brought this action in bad faith
it shall allow him reasonable attorney's fees as well.

                               25
NYGAARD, Circuit Judge, dissenting.

Although I agree with the Majority's holding that the
Barnes Foundation's claims against the neighbors were not
frivolous, I disagree that the Foundation's claims were
factually groundless. I would affirm the District Court
because its factual findings support its conclusion that the
Foundation had a reasonable factual basis for bringing its
S1985 claims. The decision made by the District Court was
discretionary and mere disagreement with the lower court's
decision is insufficient to overcome the substantial
discretion the District Court has traditionally enjoyed. I fear
the Majority elides our deferential postur e when reviewing
for an abuse of discretion and crosses the line that limits
our interference with a District Court's decision under an
abuse of discretion standard. Accor dingly, I dissent.

Before focusing on the District Court's factualfindings
and why I find them sufficient to defeat the neighbors'
argument that the Foundation's claims wer e not
groundless, a review of our abuse of discr etion standard for
reviewing attorney's fees is instructive. We have a long and
well-established history of deferring to a District Court's
award of attorney's fees. As we have often said, "the award
of a reasonable attorney's fee is within the District Court's
discretion." Silberman v. Bogle , 683 F.2d 62, 64-65 (3d Cir.
1982); Lindy Bros. Builders, Inc. v. American Radiator &
Standard Sanitary Corp., 540 F.2d 102, 115 (3d Cir. 1976).
Thus, as with any issue reviewed for abuse of discretion,
our standard of review is narrow. See Silberman, 683 F.2d
at 65. We will reverse only when the"judicial action is
arbitrary, fanciful, or unreasonable, or when improper
standards, criteria, or procedures ar e used." Evans v.
Buchanan, 555 F.2d 373, 378-79 (3d Cir . 1977). Stated
differently, discretion is abused only where "no reasonable
[person] would take the view adopted by the trial court."
Lindy, 540 F.2d at 115. If, however , reasonable persons
could differ as to the propriety of the challenged action,
then it cannot be said that the trial court abused its
discretion. See id.

Moreover, our task on review "is not to substitute the
remedy [we] would have imposed had [we] been the district
court; rather it is to determine whether the district court

                               26
observed the promulgated guidelines." Evans, 555 F.2d at
379. An abuse of discretion does not exist simply because
we disagree with the District Court's decision. See Lindy,
540 F.2d at 116.

We have vested the District Courts with discr etionary
authority for good reason. The District Court has the
distinct advantage of hearing and seeing evidence and
testimony first-hand and has viewed the parties and the
cause over a longer time period. As one commentator
remarked,

       [i]t is not that [the trial judge] knows more than his
       loftier brothers; rather, he sees mor e and senses more.
       In the dialogue between the appellate judges and the
       trial judge, the former often seem to be saying: `You
       were there. We do not think we would have done what
       you did, but we were not present and we may be
       unaware of significant matters, for the r ecord does not
       adequately convey to us all that went on at the trial.
       Therefore, we defer to you.'

Maurice Rosenberg, Judicial Discretion of the Trial Court,
Viewed From Above, 22 SYRACUSE L. REV. 635, 663 (1971).
Given the trial court's proximity to the issues, it is
eminently appropriate that "[o]ne seeking to establish [ ] an
abuse of discretion bears a heavy burden." Lindy, 540 F.2d
at 116.

I heartily agree with our esteemed colleague, Judge
Aldisert, who, in an earlier fee case, said:

       At bottom, this case is about whether an appellate
       court appreciates the allocation of competence between
       trial courts and reviewing courts. To be sure,
       statements of deference by appellate courts to district
       courts appear in this court's dispositions . . . . But
       quoting a standard of review and r especting it are
       different matters . . . . We must be vigilant of this
       court's increasing proclivity to deny substituting its
       judgment for that of the district court, but then to
       proceed with the tack that it expressly r enounces.

Washington v. Philadelphia County Court of Common Pleas,
89 F.3d 1031, 1044 (3d Cir. 1996). Mor eover, I identify fully

                                27
with what he referred to as "a personal expression of what
troubles me":

       Appellate courts seem to have lost respect for the
       narrow review encompassed in reviewing an exercise of
       discretion.

       . . . .

       . . . Instead of playing a limited role in the
       determination of attorney's fees in limited review of
       discretion, the appellate courts, like the pr overbial
       camel, have not only stuck their noses under the
       district court's tent, but they are fully inside ranging
       around in the turf that properly belongs to the district
       courts.

Id. at 1048. Judge Aldisert was dissenting from an opinion
I had joined. But, I was as wrong then as I believe the
majority is now. "Abuse" itself is a serious accusation and
in using the term "abuse" to define our standard of review,
our jurisprudence has recognized the institutional
superiority of the District Court. Therefor e, we should not
readily discard its findings and conclusions.

A prevailing defendant seeking an award of attorney's
fees carries an even heavier burden than a typical litigant
trying to prove an abuse of discretion in another context. It
is imperative that we use the utmost restraint in awarding
attorney's fees to prevailing defendants, lest the award
discourage novel or unpopular litigation, stifle attorneys'
enthusiasm and creativity, and chill citizens' constitutional
right to meaningful access to the courts. See, e.g., Thomas
v. Capital Sec. Serv., Inc., 836 F.2d 866, 885 (5th Cir. 1988)
(warning that overuse of Rule 11 sanctions may"chill
attorney's enthusiasm and stifle the cr eativity of litigants in
pursuing novel factual or legal theories"); Thomas D. Rowe,
The Legal Theory of Attorney Fee Shifting: A Critical
Overview, 1982 Duke L.J. 651, 661 (1982) (ar guing that fee
shifting should not "deter good-faith pressing of tenable but
not clear-cut claims and defenses, especially those turning
on unresolved points of law or, in many instances,
genuinely controverted factual disputes"); Eric Y.
Yamamoto, Efficiency's Threat to the Value of Accessible
Courts for Minorities, 25 HARV. C.R.-C.L. L. REV. 341, 429

                                28
n.180 (1990) (arguing that the Supreme Court "curbed the
[Civil Rights Attorney's Fees Awar ds] Act's impact on access
[to the courts] by authorizing payment of fees to prevailing
defendants where the plaintiff 's claim is `unreasonable'
even though not made in bad faith"). Because of these
concerns, awards of attorney's fees to prevailing defendants
should be made sparingly and in only the most egr egious
cases. In my view, the present case does not meet this
stringent standard.

In contrast to the Majority, I believe that the District
Court's factual findings are sufficient to meet the legal
threshold for allegations of racial animus on the part of the
neighborhood association and the six neighbors (Ina Asher,
Steven Asher, Nancy Herman, Walter Herman, Robert
Marmon and Toby Marmon), all of whom are Caucasian.
See Appellee's Br. at 4, 6. With r espect to the association,
the District Court noted that during a Commissioner's
meeting, Robert Marmon, one of the association's creators,
coordinators, and spokespersons, made racially disparaging
remarks about the Barnes Foundation. Specifically, Mr.
Marmon repeatedly referred to the Foundation's members
as "Mr. Glanton and his people," a paradigmatic reference
to African-Americans, and then called them "carpetbaggers"
and "outsiders." Given Mr. Marmon's leadership role, it was
reasonable to believe that his racial animus r epresented the
views of the association. Additionally, the neighbor hood
association's lack of opposition to other institutions with
parking and traffic needs similar to the Bar nes Foundation
further evidences a racially discriminatory motive.

Other facts in evidence also support the Foundation's
allegations. For example, the District Court noted the
affidavit of Thomas Massaro, a land use consultant, who
opined that the neighbors were so irrationally and firmly
opposed to the Foundation's proposal that it suggested
their concerns were a pretext for racial prejudice. These
attitudes could also suggest the same to the Foundation
and the District Court. The Foundation also noted in its
complaint that, along with other persons, appellants Ina
Asher, Walter Herman, Robert Mar mon, and Toby Marmon
congregated and picketed outside the Foundation during its
opening gala event. Several of the picketers wer e observed

                               29
holding signs that read, "From LA to P A, Money Buys
Justice" and "Lincoln University--Go Home." Mr. and Mrs.
Marmon stood in the midst of traffic flow with their video
cameras, shining the camera's lights into the cars pulling
in for the opening event. Even if the defendants wer e not
personally holding the racially derogatory signs, they
protested alongside others who were. This provided the
Foundation with a reasonable inference that the defendants
sought to promote a message charged with racial overtones.
Far from arbitrary or fanciful, these facts, which are
undisputed, suggest the District Court had a r easonable
basis for holding that the Foundation's allegations of racial
animus were not factually groundless.

I fear that the Majority affords too little attention to our
long-standing principles governing the abuse of discretion
standard and too easily discounts the findings of racial
hostility. Today, racially motivated conduct is rarely blatant
and easily discernible. Persons acting with racial animus
have become more sophisticated in disguising their
motivations. Although discrimination cases rar ely contain
an evidentiary "smoking gun," this does not mean that
racial animosity does not exist. As we earlier explained,

       [a]nti-discrimination laws and lawsuits have`educated'
       would-be violators such that extreme manifestations of
       discrimination are thankfully rare. The sophisticated
       would-be violator has made our job a little mor e
       difficult. Courts today must be increasingly vigilant in
       their efforts to ensure that prohibited discrimination is
       not approved under the auspices of legitimate conduct,
       and `a plaintiff 's ability to pr ove discrimination
       indirectly, circumstantially, must not be crippled . . .
       because of crabbed notions of relevance or excessive
       mistrust of juries.'

Aman v. Cort Furniture Rental Corp. , 85 F.3d 1074, 1081-82
(3d Cir. 1996) (citing Riordan v. Kempiners, 831 F.2d 690,
697 (7th Cir. 1987)). In light of this r eality, I believe the
District Court's reliance on circumstantial evidence and its
conclusion that the Barnes's claims had at least the
threshold quantum of factual support was r easonable and
well within its discretion.

                               30
Finally, I also disagree with the Majority's r eversal of the
neighbors' bad faith claim. The Majority reverses the bad
faith claim because the District Court made no mention of
this argument. Thus, the Majority concluded that it "was
not able to say that the district court rejected [it]." Maj. Op.
at 25. In reversing the bad faith claim, the Majority cites
Gunter v. Ridgewood Energy Corp., 223 F .3d 190, 196-97
(3d Cir. 2000), wherein we stated that a District Court must
explain its reasoning and application of the fee-awards
jurisprudence to allow adequate review by an appellate
court. However, we have also assumed that a District Court
has considered or weighed an argument, even when it has
failed to discuss the argument in its decision. See Acosta v.
Honda Motor Co., Ltd., 717 F.2d 828, 844 (3d Cir. 1987)
(assuming that the District Court weighed the amount of
plaintiff 's recovery as a factor in a fee award even though
the District Court did not state that it was doing so).
Therefore, the District Court's failur e to discuss the bad
faith claim does not necessarily imply that it overlooked or
ignored it.

In summation, jurisprudence has reposed in the District
Court great discretionary power in fee cases. We must
respect it. For these reasons, I str enuously dissent.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               31
