2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-25-2011

Smith v. Dunmore

Precedential or Non-Precedential: Precedential

Docket No. 07-4534

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Recommended Citation

"Smith v. Dunmore" (2011). 2011 Decisions. Paper 1875.

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AMENDED 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 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 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. 

2 
I. Background 

 A. Factual History1

 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

 

 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 
 On 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 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 

 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 
permitting Smith to retire early, despite a pension board 

recommendation that early retirement should be allowed. As 

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 

 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. 

5 
judgment. 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 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 

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 

 

and Cummings stating that Smith would be denied early 

retirement because of his lawsuit. There was also evidence 

that the Borough would have saved money by allowing Smith 

to retire early. 

7 
such as “the degree of success 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 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. Discussion6

 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 

 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 
entitled to every favorable inference 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 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 (3d Cir. 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 

9 
without cause. Id. at 230-32. Dunmore had argued, however, 

that its interest in ensuring that the Borough’s firefighters 

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 prehearing 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 

10 
numerous 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 [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 eightday 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. 

11 
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 

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. 

 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 
The proper bounds of the immunity are illustrated by 

the Pennsylvania Superior Court’s decision in McKibben v. 

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

borough 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 prevailed in a defamation 

suit, the Superior Court on appeal 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 respect 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 regarding the basis for Smith’s 

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

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

13 
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 

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 

14 
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 

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 

15 
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 

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). 

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 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 

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 

17 
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 lowerend rate for the more experienced 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 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 (3d Cir. 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 

 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 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 
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 

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 

 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 
20 

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

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