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# S mith v . Dunmor e

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D ock e t N o . 07-4534

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. e du/thir dc ir c uit_2011/1875AMENDED 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 LOFT US; THOMAS HENNIGAN;

JOSEPH TALUTTO; FRAN K PADULA; LEONARD VERRASTRO; MICHAEL CUMMINGS, individually and as a Councilman

_______________

On Appeal from the United States District Court
for the Middle Distri ct 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 25, 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 ag ainst 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 fro m a § 1983 retaliation claim that Smith prevailed on at tria l. 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.

2I. Background

A. Factual History 1

On May 20, 2005, Joseph Loftus, borough manager for the Borough of Dunmore in Pe nnsylvania (“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 qualificat ions. Upon review of the information provided by Chief Ar none, Loftus concluded that Smith, who was a fire captain at the time, had not completed a required two-week Fire Acad emy training course. Loftus reported that conclusion to Dunmore’s Borough Council,
which made the decision to su spend Smith with pay until it could hold a hearing to addr ess the apparent deficiency. 2

1 Because we are reviewing the District Court’s grants of summary judgment and judgme nt as a matter of law, we
set forth the facts in the li ght 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.)

3On June 28, 2005, Loftus sent Chief Arnone a letter notifying him that Smith was suspended with pay pending a 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 Acad emy training. As the source of its information, the article cited Loftus’s letter to Chief Arnone, which had been pr ovided to the paper by a confidential source whose identity remains unknown. 3

On July 6, 2005, a hear ing was held before the Borough Council in which it was determined that, pursuant to the firefighter union’s coll ective bargaining agreement (“CBA”), Smith, who ha d been a full-time firefighter since 1988, was not required to comp lete 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, clai ming defamation, due process violations, right of privacy violations, an d retaliation. After filing suit, Smith had a conversa tion with Leonard Verrastro,
a member of the Boro ugh Council, in whic h Verrastro stated that, because of Smith’s su it, he would vote against

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.

4permitting Smith to retire earl y, despite a pension board recommendation that early retiremen t should be allowed. As a result, Smith amended his co mplaint 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 pr e-hearing suspension; (2) a
defamation claim based on the fa lse 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 br ought 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 res ponse to comments he had made regarding pension distributions . The Defendants moved for summary judgment on all claims.

On March 7, 2007, the Distri ct Court issued an order denying in part and granting in part the motion for summary

4 The amended complaint in itially stated that it was councilman Talutto, rather th an 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 statem ent, and the District Court allowed Smith to further amend the complaint to name
Verrastro instead of Talutto.

5judgment. The Court denied summary judgment for
Defendants on Smith’s claim that he was deprived of early
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 su spension 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 abso lute immunity from defamation suits; and that both privacy claims failed because the information which was made pu blic – that Smith had been suspended for lacking required tr aining – concerned a public safety matter and was, therefore, a matter of public concern. The remaining retaliation clai m was allowed to proceed to trial with only Verrastro an d Dunmore as defendants.

On October 24, 2007, before trial commenced,
Defendants made Smith a settleme nt 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 ac knowledged evidence that the Dunmore Borough Council’s re fusal 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

6Council 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 ag ainst 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 ju ry, which return ed a verdict
in favor of Smith and awarded nominal damages of $1. After trial, pursuant to Smith’s mo tion 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 C ourt found both numbers to be unreasonable, and reduced the h ours 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 l odestar amount of $72,261. Relying on Hensley v. Eckerhart , 461 U.S. 424, 434-36 (1983), which instructs that di strict courts may need “to adjust the fee upward or downw ard” based on considerations

and Cummings stating that Sm ith would be denied early
retirement because of his lawsu it. There was also evidence that the Borough would have sa ved money by allowing Smith to retire early.

7such as “the degree of succe ss obtained,” the District Court further reduced Smith’s requested fees because Smith succeeded on only one of his six initial claims and ultimately obtained only $1 and early re tirement – less than the $1000 and early retirement offered in settlement. Consequently, the
Court reduced the award from th e 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 pun itive damages claims, and he
asks that each be remanded for tr ial. Smith also argues that the District Court erred by reduci ng his attorney’s hourly rate to $215 and reducing the lode star amount by more than 70 percent, and he asks us to awar d 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

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.

8entitled to every favorable infe rence that can be drawn from the record,” and we will affirm only if there is no genuine
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 di d not qualify either as deprivation of a property interest or as the “plus” prong of the “stigma-plus” test for establis hing deprivation of a liberty interest in reputation. See Hill v. Borough of Kutztown , 455 F.3d 225, 236 (3d Cir. 2006) (“ [T]o make out a due process claim for deprivation of a liber ty interest in reputation, a plaintiff must show a s tigma 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 manda ted by our decision in Dee v. Borough of Dunmore , 549 F.3d 225 (3d Cir. 2008). In Dee

, we reviewed the due process cl aims 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 P A

. S TAT

. A NN . § 46190 and the CBA allowed firefighters to be suspended only “for cause,” Dee had a property inte rest in not being suspended

9without cause. Id. at 230-32. Dunmore had argued, however, that its interest in ensuring that the Borough’s firefighters were qualified was a public-safet y 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 prehearing deprivation of a propert y right, but found that there were “issues of disputed fact regarding the Borough’s justification for suspending De e without first affording him notice and a hearing.” Dee , 549 F.3d at 233. Particularly, we
noted that Dee had been a fire man for eighteen years, during which time he had been promot ed numerous times by the Borough Council, and that Councilman Talu tto stated that the Council acted so quickly becaus e they “d[id]n’t want to get blasted in the press.” Id. We viewed those facts as undercutting Dunmore’s argum ent 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 ha d a property interest in not being suspended, we also conclu ded that Dee had satisfied the “plus” prong of the “stigma-p lus” test, and remanded the liberty interest claim for consid eration 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 circum stances; 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 th an public safety, may have motivated the suspension; and, like Dee, Smith had been a firefighter for almost eighteen years and had been promoted

10numerous times by the Borough Council. Thus, we are compelled to follow our precedent in Dee and hold that “there exist issues of disputed fact regarding the Borough’s justification for suspending [S mith] 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 eightday pre-hearing suspension. To the contrary, we recognize that the strong government inte rest in public safety would almost certainly justify the co mparatively 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 issu es of material fact remain, we will remand Smith’s due pro cess 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 clai m because Pennsylvania grants absolute immunity from defama tion suits to high public officials, including borough co uncil members. Smith argues that the grant of summary ju dgment 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 i mmunity does not apply. We disagree.

11Pennsylvania “‘exempts a high public official from all civil suits for damages arisi ng out of false defamatory
statements and even from statem ents or actions motivated by 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 1 194, 1995 (Pa. 1996) (quoting Matson v. Margiotti , 88 A.2d 892, 895 (Pa. 1952)). Smith argues that, while the letter itsel f might have been prepared within the scope of the Council me mber’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 exer cise reasonable care and diligence,’” is not within those duties. (Appe llant’s Brief at 18-19.) That argument takes too narrow a view of the immunity. The fact
that a statement is untrue cann ot be a basis for exempting it from an immunity for defamati on, as such an exception would swallow the immunity whol e. 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 circumstan ces of this case draws too narrow a boundary and is mistaken.

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 th at borough council members qualify as high public officials); Hall v. Kiger , 795 A.2d 497, 500 (Pa. Commw. Ct. 2002) (same).

12The proper bounds of the immu nity are illustrated by the Pennsylvania Superior Court’s decision in McKibben v. Schmotzer , 700 A.2d 484 (Pa. Su per. 1997). There, a borough mayor accused a borou gh police chief of assaulting her and, as a result, she suspended the chief and filed a private criminal comp laint 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 prevailed in a defamation suit, the Superior Court on a ppeal held that high public official immunity applied to the mayor with respect 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 with resp ect 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). Although not binding on us, the reasoning of McKibben persuasively illustrates the boundary between those actions that are taken
in the course of an official’s duties and those that are not.

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 re garding the basis for Smith’s suspension was “‘closely rela ted’ to [the] duties of supervising the borough [fire department].” Id. at 491.

13Consequently, the District Court correctly concluded that Pennsylvania’s high public o fficial immunity shields the
Council members from any claim for defamation, and we will affirm the Court’s gran t of summary judgment.

(3) Smith’s Right of Privacy Claims

The District Court granted summary judgment on Smith’s false light claim and hi s claim for publicity given to private life because the Court found that th e 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 pub lic 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 diffi culty concluding, as the District Court did, that the qua lifications of firefighters are a public safety matter and, th erefore, a matter of public

concern. See Chappel v. Montgomery Cnty. Fire Protection

Dist. , 131 F.3d 564, 578 (6th Ci r. 1997) (holding that speech regarding the need for firefi ghters to receive improved training is a matter of public concern); Beckwith v. City of Daytona Beach Shores , 58 F.3d 1554, 156 4 (11th Cir. 1995) (“Few subjects are of more public concern to the average citizen than the provision of basi c fire and rescue services.”). The information’s existence in a personnel file does not affect the public’s interest in it, a nd we do not accept the premise that employment information is not of public concern when it

14pertains to a firefighter’s qualif ications to be employed in the first place.

Second, Smith’s claim that th e 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 elements of a false light claim: “(1) publicity, (2) given to private facts, (3) which coul d be highly offensive to a reasonable person, and (4) wh ich are not of legitimate concern to the public.” (A ppellant’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 clai m). 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 verdic t in favor of the nonmovant cannot be supported by lega lly sufficient evidence.” Toledo Mack Sales and Serv., Inc. v. Mack Trucks, Inc. , 530 F.3d

15204, 209 (3d Cir. 2008) (int ernal quotation marks and citations omitted).

Smith argues that the District Court erred by granting judgment as a matter of la w on Smith’s p unitive damages claim against Verrastro because the record established that Verrastro intentionally disr egarded Smith’s federally protected rights. Smith has no t appealed the judgment in favor of Verrastro himself, howeve r. Even if we read Smith’s 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 no t to vote on Smith’s retirement. Consequently, because Dunmor e 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 defe ndant from which Smith can claim punitive damages. Accord ingly, we need not consider Smith’s argument that Verrastro intentionally disregarded Smith’s rights, and we will a ffirm 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 reasonabl eness 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).

16(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 attorn ey 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 recen tly considered a fee petition involving the same at torneys and substantia lly 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 reas oning to settle on the $215 per
hour rate in this case.

Smith argues that the re duction was an abuse of
discretion because the Court in appropriately l ooked 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 ra tes for both defense attorneys

17with 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 lowerend rate for the more experience d plaintiffs’ attorneys. We cannot say that was an abuse of discretion. Consequently, we
will affirm. 8

(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 an d early retirement offered in settlement. While Smith object s to the District Court’s consideration of settlement negotiations, we held in Lohman v. Duryea , 574 F.3d 163, 167-68 (3d Cir. 2009), that settlement negotiations can be used to consider the degree of success obtained by a party. Fu rthermore, the reduction is independently justified by Smith’s failure to succeed on five
of his initial six claims. The Su preme Court has stated that a

8 Smith also seems to suggest that the reduction in his female attorney’s rate may have had a discriminatory motive, citing a case in which the same district court awarded a male attorney an hourly rate in ex cess 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 a ny support in the record and unworthy of further comment.

18court “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 de nied early retirement because of the filing of his lawsuit. His other unsuccessful retaliation
claim as well as his unsuccessf ul due process, defamation, and privacy right claims were entirely distinct, requiring proof only of facts that predat ed 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 abus e its discretion when it reduced the award to appropriately reflec t 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 a nd will remand for consideration of whether the pre-hearing su spension was supported by an interest in public safety and, in addition, for consideration of
whether Smith has satisfie d the “stigma-plus” test, establishing deprivati on of a liberty interest. We will affirm the order to the extent it grants summary judgment on Smith’s defamation and privacy claims, th e judgment as a matter of

9 Should Smith ultimately pr evail on his remanded due process claims, he is of course free to make a new motion seeking attorney’s fees for that success.

1920 law on Smith’s punitive damages cl aim, and the partial denial
of Smith’s motion for atto rney’s fees and costs.