Smith v. Borough of Dunmore

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 07-4534

_____________

EDWARD G. SMITH,

Appellant

v.

BOROUGH OF DUNMORE; BOROUGH OF DUNMORE

COUNCIL; JOSEPH LOFTUS; THOMAS HENNIGAN;

JOSEPH TALUTTO; FRANK PADULA; LEONARD

VERRASTRO; MICHAEL CUMMINGS,

individually and as a Councilman

_______________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 05-cv-1343)

District Judge: Hon. A. Richard Caputo

_______________

Submitted Under Third Circuit LAR 34.1(a)

December 16, 2010

Before: JORDAN, HARDIMAN and VAN ANTWERPEN,

Circuit Judges.

(Filed: January 5, 2011)

_______________

Cynthia L. Pollick

363 Laurel Street

Pittston, PA 18640

Counsel for Appellant

Karoline Mehalchick

Oliver, Price & Rhodes

P.O. Box 240

1212 S. Abington Rd.

Clarks Summit, PA 18411

Counsel for Appellees

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Edward Smith appeals the order of the United States

District Court for the Middle District of Pennsylvania

granting summary judgment against him on his due process

claims under 42 U.S.C. § 1983 and on his state law

defamation and right of privacy claims. Smith also appeals

the District Court’s judgment as a matter of law on his claim

for punitive damages arising from a § 1983 retaliation claim

that Smith prevailed on at trial. Finally, Smith appeals the

District Court’s partial denial of his motion for attorney’s fees

and costs. For the following reasons, we will vacate and

remand in part and affirm in part.

I. Background

2

A. Factual History 1

On May 20, 2005, Joseph Loftus, borough manager for

the Borough of Dunmore in Pennsylvania (“Dunmore” or the

“Borough”), asked Chief Vince Arnone of the Dunmore Fire

Department to provide a list of required qualifications for

full-time firefighters and to verify whether each Dunmore

firefighter met those qualifications. Upon review of the

information provided by Chief Arnone, Loftus concluded that

Smith, who was a fire captain at the time, had not completed

a required two-week Fire Academy training course. Loftus

reported that conclusion to Dunmore’s Borough Council,

which made the decision to suspend Smith with pay until it

could hold a hearing to address the apparent deficiency. 2

On June 28, 2005, Loftus sent Chief Arnone a letter

notifying him that Smith was suspended with pay pending a

1

Because we are reviewing the District Court’s grants

of summary judgment and judgment as a matter of law, we

set forth the facts in the light most favorable to Smith.

2

The Council also made the decision to suspend

Robert Dee, another Dunmore firefighter who, like Smith,

had not completed the Fire Academy training course.

Councilman Joseph Talutto explained the decision to suspend

the firefighters immediately (rather than waiting until after

the hearing), stating that they “ha[d] a duty to protect the

town” and “didn’t want it to go out there that we had firemen

that weren’t qualified” and “d[id]n’t want to get blasted in the

paper.” (App. at 608, 612.)

3

July 6, 2005 hearing. Two days later, a local newspaper

published an article stating that Smith had been suspended for

failing to complete the Fire Academy training. As the source

of its information, the article cited Loftus’s letter to Chief

Arnone, which had been provided to the paper by a

confidential source whose identity remains unknown. 3

On July 6, 2005, a hearing was held before the

Borough Council in which it was determined that, pursuant to

the firefighter union’s collective bargaining agreement

(“CBA”), Smith, who had been a full-time firefighter since

1988, was not required to complete the Fire Academy training

because his training and experience were treated as sufficient.

Smith was reinstated after having been suspended for eight

days but without having suffered any loss of pay or seniority.

As a result of his suspension and the publicizing of

that suspension in the local paper, Smith filed suit against

Dunmore on July 5, 2005, claiming defamation, due process

violations, right of privacy violations, and retaliation. After

filing suit, Smith had a conversation with Leonard Verrastro,

a member of the Borough Council, in which Verrastro stated

that, because of Smith’s suit, he would vote against

permitting Smith to retire early, despite a pension board

recommendation that early retirement should be allowed. As

3

While the precise identity of the source remains in

question, the District Court’s opinion appears to assume that

the pool of possible sources is limited to the members of the

Borough Council. Neither party contests that view and, in

fact, both seem to share it. We will likewise accept that

conclusion for purposes of our analysis.

4

a result, Smith amended his complaint to include a second

claim for retaliation. 4

B. Procedural History

As amended, Smith’s complaint named Dunmore, the

Borough Council, Loftus, and five individual council

members as defendants. It contained six claims: (1) a due

process claim based on his pre-hearing suspension; (2) a

defamation claim based on the false statement, published in

the local paper, that he had not completed required training;

(3) a right of privacy claim alleging that Defendants’ acts

placed him in a false light; (4) a right of privacy claim

alleging that Defendants’ acts brought publicity to his private

life; (5) a retaliation claim based on the refusal to vote for his

early retirement; and (6) another retaliation claim alleging

that his suspension was in response to comments he had made

regarding pension distributions. The Defendants moved for

summary judgment on all claims.

On March 7, 2007, the District Court issued an order

denying in part and granting in part the motion for summary

judgment. The Court denied summary judgment for

Defendants on Smith’s claim that he was deprived of early

4

The amended complaint initially stated that it was

councilman Talutto, rather than Verrastro, who stated he

would not vote to permit Smith’s early retirement. In

depositions, however, Smith testified that it was in fact

Verrastro who made the statement, and the District Court

allowed Smith to further amend the complaint to name

Verrastro instead of Talutto.

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retirement as retaliation for his filing suit, holding that there

was a genuine issue of material fact as to whether the denial

was in retaliation for Smith’s lawsuit. The Court granted

summary judgment in favor of Defendants on all other

claims, holding that Smith’s retaliation claim based on his

pension comments failed because the record was devoid of

any support for the claim; that the due process claim failed

because Smith’s eight-day paid suspension did not give rise to

deprivation of either a property or liberty interest; that the

defamation claim failed because Pennsylvania provides high

public officials with an absolute immunity from defamation

suits; and that both privacy claims failed because the

information which was made public – that Smith had been

suspended for lacking required training – concerned a public

safety matter and was, therefore, a matter of public concern.

The remaining retaliation claim was allowed to proceed to

trial with only Verrastro and Dunmore as defendants.

On October 24, 2007, before trial commenced,

Defendants made Smith a settlement offer of $1000 and early

retirement. Smith declined the offer and trial began on

October 29, 2007. At the close of Smith’s case, the Court

granted judgment as a matter of law to Defendants on the

claim against Verrastro and on the claim for punitive

damages. While the Court acknowledged evidence that the

Dunmore Borough Council’s refusal to vote on the pension

board’s recommendation for Smith’s retirement could be

retaliation for Smith’s lawsuit, 5 the Court explained that the

5

In addition to Verrastro’s threat, deposition testimony

disclosed alleged statements by Loftus and Councilmen Hart

and Cummings stating that Smith would be denied early

retirement because of his lawsuit. There was also evidence

6

Council was the decision maker and that Verrastro could not

be individually liable for the Council’s decision not to bring

the recommendation to a vote. Likewise, Verrastro’s

individual threat to vote against Smith’s early retirement

could not constitute adverse employment action when no vote

was ever taken. The Court also held that there was no

evidence of evil, malicious, or reckless conduct that would

justify punitive damages. On October 31, 2007, the

retaliation claim against the lone remaining Defendant,

Dunmore, was submitted to the jury, which returned a verdict

in favor of Smith and awarded nominal damages of $1. After

trial, pursuant to Smith’s motion for equitable relief, the

District Court ordered Dunmore to grant Smith early

retirement.

On November 8, 2007, pursuant to 42 U.S.C.

§1988(b), Smith filed a motion for attorney’s fees and costs.

Smith sought payment for attorney time of 404.8 hours at

$300 per hour. The District Court found both numbers to be

unreasonable, and reduced the hours to 268.9 and the hourly

rate to $215.00, arriving at a total amount of $57,831.50 for

attorney’s fees. To that, the Court added additional amounts

for legal assistant fees and fees associated with the fee action

itself and arrived at a total lodestar amount of $72,261.

Relying on Hensley v. Eckerhart, 461 U.S. 424, 434-36

(1983), which instructs that district courts may need “to

adjust the fee upward or downward” based on considerations

such as “the degree of success obtained,” the District Court

further reduced Smith’s requested fees because Smith

that the Borough would have saved money by allowing Smith

to retire early.

7

succeeded on only one of his six initial claims and ultimately

obtained only $1 and early retirement – less than the $1000

and early retirement offered in settlement. Consequently, the

Court reduced the award from the lodestar amount of $72,261

to $20,000. The Court also awarded $2,728.16 in total costs.

Smith’s timely appeal followed.

II. Discussion 6

On appeal Smith argues that the District Court erred by

granting judgment in favor of Defendants on his due process,

defamation, privacy, and punitive damages claims, and he

asks that each be remanded for trial. Smith also argues that

the District Court erred by reducing his attorney’s hourly rate

to $215 and reducing the lodestar amount by more than 70

percent, and he asks us to award attorney’s fees without those

reductions. We will address each of Smith’s arguments in

turn.

A. The District Court’s Grant of Summary

Judgment

We review a district court’s grant of summary

judgment under a plenary standard, applying “the same test

employed by the District Court.” Kautz v. Met-Pro Corp.,

412 F.3d 463, 466 (3d Cir. 2005). The non-moving party “is

entitled to every favorable inference that can be drawn from

the record,” and we will affirm only if there is no genuine

6

The District Court had jurisdiction over Smith’s

claims pursuant to 28 U.S.C. §§ 1331 and 1367(a), and we

have jurisdiction pursuant to 28 U.S.C. § 1291.

8

issue for trial. Id. (citing Carrasca v. Pomeroy, 313 F.3d 828,

833 (3d Cir. 2002)).

(1) Smith’s Due Process Claims

The District Court granted summary judgment on

Smith’s due process claims because the Court found that an

eight-day paid suspension did not qualify either as

deprivation of a property interest or as the “plus” prong of the

“stigma-plus” test for establishing deprivation of a liberty

interest in reputation. See Hill v. Borough of Kutztown, 455

F.3d 225, 236 (2006) (“[T]o make out a due process claim for

deprivation of a liberty interest in reputation, a plaintiff must

show a stigma to his reputation plus deprivation of some

additional right or interest.” (emphasis in original)). Because

Smith had not established the required “plus” prong of the

“stigma-plus” test, the Court declined to consider whether the

“stigma” prong had been satisfied.

Smith argues that the Court’s conclusions were in error

and that remand is mandated by our decision in Dee v.

Borough of Dunmore, 549 F.3d 225 (3d Cir. 2008). In Dee,

we reviewed the due process claims of Robert Dee, another

Dunmore firefighter who had been suspended along with

Smith as a result of the same assertion that he had not

completed required Fire Academy training. Id. at 228. Dee’s

due process claims had been disposed of on summary

judgment for the same reasons Smith’s had. Id. On appeal,

we held that, because both 53 PA. STAT. ANN. § 46190 and

the CBA allowed firefighters to be suspended only “for

cause,” Dee had a property interest in not being suspended

without cause. Id. at 230-32. Dunmore had argued, however,

that its interest in ensuring that the Borough’s firefighters

9

were qualified was a public-safety interest that justified an

eight-day paid suspension prior to any hearing. Id. at 233.

We acknowledged that under Matthews v. Eldridge, 424 U.S.

319 (1976), a strong government interest can justify the pre-

hearing deprivation of a property right, but found that there

were “issues of disputed fact regarding the Borough’s

justification for suspending Dee without first affording him

notice and a hearing.” Dee, 549 F.3d at 233. Particularly, we

noted that Dee had been a fireman for eighteen years, during

which time he had been promoted numerous times by the

Borough Council, and that Councilman Talutto stated that the

Council acted so quickly because they “d[id]n’t want to get

blasted in the press.” Id. We viewed those facts as

undercutting Dunmore’s argument that the pre-hearing

suspension was based on concerns over public safety and,

consequently, we remanded for consideration of the

Borough’s motives for the pre-hearing suspension. Id. Then,

based on our holding that Dee had a property interest in not

being suspended, we also concluded that Dee had satisfied the

“plus” prong of the “stigma-plus” test, and remanded the

liberty interest claim for consideration of the “stigma” prong.

Id. at 233-235.

The facts here are indistinguishable from the facts in

Dee: Both Dee and Smith were suspended at the same time

under precisely the same circumstances; the same statute and

CBA apply, mandating that Smith can be suspended only “for

cause”; Talutto’s deposition testimony in both cases suggests

that press coverage, rather than public safety, may have

motivated the suspension; and, like Dee, Smith had been a

firefighter for almost eighteen years and had been promoted

numerous times by the Borough Council. Thus, we are

compelled to follow our precedent in Dee and hold that “there

10

exist issues of disputed fact regarding the Borough’s

justification for suspending [Smith] without first affording

him notice and a hearing.” Id. at 233.

We emphasize, however, that we are not suggesting

that concerns over public safety cannot justify a paid eight-

day pre-hearing suspension. To the contrary, we recognize

that the strong government interest in public safety would

almost certainly justify the comparatively minor deprivation

inherent in an eight-day paid suspension. Instead, we

conclude only that Dee requires us to say that there are

legitimate factual questions as to whether public safety

concerns were, in fact, what motivated the Borough Council.

Accordingly, because genuine issues of material fact remain,

we will remand Smith’s due process claims to the District

Court.

(2) Smith’s Defamation Claim

Although the District Court found that Smith had made

a prima facie case for defamation, it nonetheless granted

summary judgment on the claim because Pennsylvania grants

absolute immunity from defamation suits to high public

officials, including borough council members. Smith argues

that the grant of summary judgment to the Dunmore Borough

Council members was improper because the disclosure of

Loftus’s letter to the newspaper fell outside the scope of their

duties and, therefore, the immunity does not apply. We

disagree.

Pennsylvania “‘exempts a high public official from all

civil suits for damages arising out of false defamatory

statements and even from statements or actions motivated by

11

malice, provided the statements are made or the actions are

taken in the course of the official’s duties or powers.’” 7

Lindner v. Mollan, 677 A.2d 1194, 1995 (Pa. 1996) (quoting

Matson v. Margiotti, 88 A.2d 892, 895 (Pa. 1952)). Smith

argues that, while the letter itself might have been prepared

within the scope of the Council member’s official duties, “the

public disclosure of such a letter, which contains, in the

district court’s words, an ‘untrue communication’ resulting

from a ‘failure to exercise reasonable care and diligence,’” is

not within those duties. (Appellant’s Brief at 18-19.) That

argument takes too narrow a view of the immunity. The fact

that a statement is untrue cannot be a basis for exempting it

from an immunity for defamation, as such an exception

would swallow the immunity whole. Likewise, the fact that

the untruth may have resulted from a “failure to exercise

reasonable care and diligence,” – i.e., from negligence – is

immaterial to the invocation of an immunity that is intended

to encompass even maliciously motivated comments. Thus,

Smith’s argument that the high public official immunity

cannot apply under the circumstances of this case draws too

narrow a boundary and is mistaken.

The proper bounds of the immunity are illustrated by

the Pennsylvania Supreme Court’s decision in McKibben v.

Schmotzer, 700 A.2d 484 (Pa. 1997). There, a borough

7

Borough council members qualify as high public

officials for purposes of this immunity. See, e.g., Osiris

Enters. v. Borough of Whitehall, 877 A.2d 560, 567 (Pa.

Commw. Ct. 2005) (holding that borough council members

qualify as high public officials); Hall v. Kiger, 795 A.2d 497,

500 (Pa. Commw. Ct. 2002) (same).

12

mayor accused a borough police chief of assaulting her and,

as a result, she suspended the chief and filed a private

criminal complaint against him. Id. at 487. Following the

suspension, the mayor issued a news release explaining the

chief’s suspension and describing the “brutal and unprovoked

assault” on her. Id. Shortly thereafter, a preliminary hearing

was held on the assault charges and the criminal complaint

was dismissed. Id. Immediately after that hearing, the mayor

made a statement to reporters accusing the chief of lying. Id.

After the chief filed a defamation suit, the Pennsylvania

Supreme Court held that the high public official immunity

applied to the news release because the mayor “was

empowered to suspend [the chief], and her comments in the

‘News Release,’ although harsh and, as the jury found,

untrue, were ‘closely related’ to her duties of supervising the

borough police force.” Id. at 491. By contrast, the Court held

that the immunity did not apply to her statement that the chief

was lying because there, the mayor “was no more than a

private citizen seeking to enforce her private criminal

complaint.” Id. at 492 (emphasis in original).

Here, the disclosure of Loftus’s letter to the newspaper

is akin to the news release in McKibben. The information

disclosed to the local paper regarding the basis for Smith’s

suspension was “‘closely related’ to [the] duties of

supervising the borough [fire department].” Id. at 491.

Consequently, the District Court correctly concluded that

Pennsylvania’s high public official immunity shields the

Council members from any claim for defamation, and we will

affirm the Court’s grant of summary judgment.

(3) Smith’s Right of Privacy Claims

13

The District Court granted summary judgment on

Smith’s false light claim and his claim for publicity given to

private life because the Court found that the information

which was made public – that Smith had allegedly failed to

complete required training – involves public safety and,

therefore, is a matter of public concern. Smith argues that

this was error because his confidential employment

information is not a matter of public concern. He also argues

that whether the information is of “public concern” is relevant

only to his publicity claim and is not an element of a false

light claim. He is wrong on both points.

First, we have little difficulty concluding, as the

District Court did, that the qualifications of firefighters are a

public safety matter and, therefore, a matter of public

concern. See Chappel v. Montgomery Cnty. Fire Protection

Dist., 131 F.3d 564, 578 (6th Cir. 1997) (holding that speech

regarding the need for firefighters to receive improved

training is a matter of public concern); Beckwith v. City of

Daytona Beach Shores, 58 F.3d 1554, 1564 (11th Cir. 1995)

(“Few subjects are of more public concern to the average

citizen than the provision of basic fire and rescue services.”).

The information’s existence in a personnel file does not affect

the public’s interest in it, and we do not accept the premise

that employment information is not of public concern when it

pertains to a firefighter’s qualifications to be employed in the

first place.

Second, Smith’s claim that the public’s interest in the

information is not relevant to his false light claim has no

grounding in Pennsylvania law, a fact demonstrated

elsewhere in his own brief by his citation of Strickland v.

Univ. of Scranton, 700 A.2d 979 (Pa. Super. 1997), for the

14

elements of a false light claim: “(1) publicity, (2) given to

private facts, (3) which could be highly offensive to a

reasonable person, and (4) which are not of legitimate

concern to the public.” (Appellant’s Brief at 20 (citing

Strickland, 700 A.2d at 987.)); see also Rush v. Philadelphia

Newspapers, Inc., 732 A.2d 648, 654 (Pa. Super. 1999)

(listing “not of legitimate concern to the public” as an

element of a false light claim). Because both of Smith’s

privacy claims require that the information not be of public

concern and because there is no genuine dispute as to the

public’s interest in firefighter qualifications, Smith’s privacy

claims must fail as a matter of law. We will thus affirm the

District Court’s summary judgment on those claims.

B. The District Court’s Judgment as a Matter of

Law on Smith’s Claim for Punitive Damages

“We exercise plenary review over a district court’s

decision to grant judgment as a matter of law” and affirm

“only if, viewing the evidence in the light most favorable to

the nonmovant and giving it the advantage of every fair and

reasonable inference, a verdict in favor of the nonmovant

cannot be supported by legally sufficient evidence.” Toledo

Mack Sales and Serv., Inc. v. Mack Trucks, Inc., 530 F.3d

204, 209 (3d Cir. 2008) (internal quotation marks and

citations omitted).

Smith argues that the District Court erred by granting

judgment as a matter of law on Smith’s punitive damages

claim against Verrastro because the record established that

Verrastro intentionally disregarded Smith’s federally

protected rights. Smith has not appealed the judgment in

favor of Verrastro himself, however. Even if we read Smith’s

15

appeal on punitive damages as implicitly appealing the

judgment in favor of Verrastro, Smith has made no argument

on that point and we find no fault in the District Court’s

conclusion that Verrastro cannot be individually liable for the

Council’s decision not to vote on Smith’s retirement.

Consequently, because Dunmore remains the only defendant

for the retaliation claim, and because “a municipality is

immune from punitive damages under 42 U.S.C. § 1983,”

City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271

(1981), there is no proper defendant from which Smith can

claim punitive damages. Accordingly, we need not consider

Smith’s argument that Verrastro intentionally disregarded

Smith’s rights, and we will affirm the District Court’s

judgment as a matter of law.

C. The District Court’s Denial in Part of Smith’s

Motion for Attorney’s Fees

“We review the reasonableness of an award of

attorney’s fees for an abuse of discretion.” Washington v.

Philadelphia Cnty. Court of Common Pleas, 89 F.3d 1031,

1034 (3d Cir. 1996).

(1) The Reduction of Smith’s Attorney’s

Hourly Rate

The District Court, finding that the requested rate of

$300 per hour for Smith’s attorney was excessive in light of

her skill, reputation, and experience, reduced Smith’s

attorney’s rate to $215 per hour. The Court supported that

reduction by adopting its reasoning from Lohman v. Duryea

Borough, No. 3:05-CV-1423, 2008 WL 2951070 (M.D. Pa.

July 30, 2008), where it had recently considered a fee petition

16

involving the same attorneys and substantially similar issues.

In Lohman (as well as here), Smith’s attorney supported her

claimed $300 per hour rate by submitting affidavits from two

local plaintiffs’ attorneys who charged $300 and $330. Id. at

*6-7. The Court determined, however, that her experience

and skill were not comparable to those attorneys. Id. Instead,

the Court found her experience to be comparable to one of the

defense attorneys in Lohman and here, who charged between

$125 and $170 per hour. Id. at *7-8. Based on that

comparison, the District Court concluded that $215 was a

reasonable hourly rate for Smith’s attorney. Id. at *8. The

Court adopted that same reasoning to settle on the $215 per

hour rate in this case.

Smith argues that the reduction was an abuse of

discretion because the Court inappropriately looked at the

rates of defense attorneys. In support of that argument, he

cites our decision in Washington, where we found a District

Court’s reduction of an hourly rate to be an abuse of

discretion because it “focused on the market rates for defense

attorneys.” 89 F.3d at 1036. Here, however, the District

Court did not focus on the market rates for only defense

attorneys, but looked at the rates for both defense attorneys

with similar skill and experience and plaintiffs’ attorneys with

more skill and experience. The $215 per hour rate the Court

then settled on fell between the $170 upper-end rate for a

similarly experienced defense attorney and the $300 lower-

end rate for the more experienced plaintiffs’ attorneys. We

cannot say that was an abuse of discretion. Consequently, we

will affirm. 8

8

Smith also seems to suggest that the reduction in his

female attorney’s rate may have had a discriminatory motive,

17

(2) The Reduction of the Lodestar Amount

The District Court reduced Smith’s attorney’s fees

award from the lodestar amount of $72,261 to $20,000

because Smith had succeeded on only one of his six initial

claims and ultimately received only $1 and early retirement,

which was less than the $1000 and early retirement offered in

settlement. While Smith objects to the District Court’s

consideration of settlement negotiations, we held in Lohman

v. Duryea, 574 F.3d 163, 167-68 (2009), that settlement

negotiations can be used to consider the degree of success

obtained by a party. Furthermore, the reduction is

independently justified by Smith’s failure to succeed on five

of his initial six claims. The Supreme Court has stated that a

court “should award only that amount of fees that is

reasonable in relation to the result obtained” and has

emphasized that there should be no recovery for unsuccessful

“claim[s] that [are] distinct in all respects from … successful

claims.” Hensley, 461 U.S. at 440. Here, Smith prevailed

only on the claim that he was denied early retirement because

of the filing of his lawsuit. His other unsuccessful retaliation

claim as well as his unsuccessful due process, defamation,

and privacy right claims were entirely distinct, requiring

citing a case in which the same district court awarded a male

attorney an hourly rate in excess of the $215 awarded here

and stating that “there is no reason why Smith’s lawyer

should not get the rate that male plaintiff civil rights’ lawyers

receive.” (Appellant’s Brief at 35.) The bald suggestion of

discrimination is devoid of any support in the record and

unworthy of further comment.

18

proof only of facts that predated any fact relevant to his

successful retaliation claim. Consequently, under Hensley,

Smith was not entitled to recover fees for those claims, and

the District Court did not abuse its discretion when it reduced

the award to appropriately reflect that limited success. We

will therefore affirm. 9

III. Conclusion

For the foregoing reasons, we will vacate the District

Court’s order to the extent it grants summary judgment on

Smith’s due process claims and will remand for consideration

of whether the pre-hearing suspension was supported by an

interest in public safety and, in addition, for consideration of

whether Smith has satisfied the “stigma-plus” test,

establishing deprivation of a liberty interest. We will affirm

the order to the extent it grants summary judgment on Smith’s

defamation and privacy claims, the judgment as a matter of

law on Smith’s punitive damages claim, and the partial denial

of Smith’s motion for attorney’s fees and costs.

9

Should Smith ultimately prevail on his remanded due

process claims, he is of course free to make a new motion

seeking attorney’s fees for that success.

19