                                                         NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                               ______

                                 No. 11-3843
                                   ______

                             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 Councilman
                             ______

                On Appeal from the United States District Court
                    for the Middle District of Pennsylvania
                        (D.C. Civil No. 3:05-cv-01343)
                 District Judge: Honorable A. Richard Caputo
                                    ______

               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                               March 19, 2013

   Before: SMITH, GREENAWAY, JR., and VAN ANTWERPEN, Circuit Judges.

                       (Opinion Filed: March 19, 2013)
                                   ______

                          OPINION OF THE COURT
                                  ______

VAN ANTWERPEN, Circuit Judge.
       Appellant Edward G. Smith (―Smith‖) appeals from three orders below: (1) an

order denying Smith’s motion in limine for the release of a confidential source by a

newspaper reporter; (2) an order denying Smith’s motion for application of collateral

estoppel; and (3) an order granting summary judgment in favor of Defendants1. For the

reasons that follow, we will affirm the orders of the District Court.

                                          I. Facts

       Because we write for the parties, we review only the essential facts necessary for

resolution.2 This case has been before us once already. Smith v. Borough of Dunmore

(Smith I), 633 F.3d 176 (3d Cir. 2011).3 Smith became a firefighter for the Borough of

Dunmore, Pennsylvania in 1988. On May 20, 2005, Joseph Loftus, the borough

manager, demanded the Chief of the Dunmore Fire Department, Vince Arnone, provide

him a memo outlining the necessary qualifications for full-time work and documentation

on current staff members who met or did not meet those criteria. Smith, a fire captain at

1
 The Defendants referred to herein are the Borough of Dunmore, Pennsylvania, the
Borough of Dunmore Council, and Michael Cummings, Joseph Loftus, Thomas
Hennigan, Joseph Talutto, Frank Padula, and Leonard Verrastro, all individually and as
councilmen.
2
 Additionally, because we are tasked with reviewing a grant of summary judgment, we
set forth the facts in the light most favorable to Smith. See Pastore v. Bell Tel. Co. of
Pa., 24 F.3d 508, 511–12 (3d Cir. 1994) (factual inferences ―should be drawn in the light
most favorable to the non-moving party, and where the non-moving party’s evidence
contradicts the movant’s, then the non-movant’s must be taken as true‖ (quoting Big
Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992))).
3
  We have also issued two decisions in a companion case involving another firefighter
from Dunmore. See Dee v. Borough of Dunmore (Dee II), 474 F. App’x 85 (3d Cir.
2012) (unpublished); Dee v. Borough of Dunmore (Dee I), 549 F.3d 225 (3d Cir. 2008).
We have recognized these two cases are factually indistinguishable. Smith I, 633 F.3d at
180.
                                              2
that time, had not completed a required two-week training course at the Fire Academy.

The Borough Council thereafter decided to suspend Smith with pay pending a formal

hearing on the matter. Smith’s suspension took effect on June 28, 2005.

         The Borough Council explained that the immediate suspension was based on its

concern for the safety of the firefighters, taxpayers, and citizens. One Council member,

Joseph Talutto, stated the Council had a duty ―to protect the town,‖ and that he did not

want the Council ―to get blasted in the paper.‖ (Appendix (―App.‖) at A723–24.)

         Two days after Smith’s suspension, a local newspaper published an article

detailing the incident. The article stated Smith was suspended for not completing the Fire

Academy training and not having EMT certification.4 The article’s primary source was

the internal Borough Council letter sent from Loftus to Chief Arnone, which was

obtained from a confidential source. The article quoted Chief Arnone, who stated Smith

was not necessarily required to have the Fire Academy training, as he was

―grandfathered‖ because of his many years with the department. The article also quoted

a Borough Council member who voted against the suspension. That member stated he

―d[id]n’t think [the matter] was looked at and researched enough‖ and that he ―d[id]n’t

believe there’s anything there that warrant[ed] a suspension.‖ (App. at A719.) How

exactly the newspaper received the Borough Council letter remains unknown.

         On July 6, 2005, a hearing was held before the Borough Council. The hearing

determined that pursuant to the Collective Bargaining Agreement governing the

relationship between the Borough and the firefighters’ union, Smith, since he had been an

4
    The allegation that Smith did not have EMT Certification is not supported by the record.
                                              3
active firefighter since 1988, was not required to complete the Fire Academy training.

His experience with the department and his other training were deemed satisfactory.

Smith was then fully reinstated with the department, suffering a suspension for eight days

without any loss of pay, seniority, or any other benefit. The next day, the same

newspaper published another article detailing the events at the hearing and Smith’s

reinstatement.

       On July 5, 2005, the day before the hearing, Smith filed suit against the Borough,

claiming defamation, constitutional due process violations, right of privacy violations,

and retaliation.5 On March 7, 2007, the District Court granted summary judgment in

favor of Defendants on all of Smith’s claims, save his amended retaliation claim. That

claim went to trial, and on October 31, 2007, the jury returned a verdict in favor of Smith,

granting him nominal damages. Smith also was awarded attorneys’ fees. Smith appealed

the summary judgment order, and we affirmed on all grounds, but reversed the District

Court’s grant of summary judgment on Smith’s due process claims. In light of our earlier

decision in Dee v. Borough of Dunmore (Dee I), 549 F.3d 225 (3d Cir. 2008), we found

that Smith had a property interest in not being suspended without cause and that issues of

disputed material fact existed as to the Borough’s motivation for suspending Smith.

Smith I, 633 F.3d at 180–81. We therefore remanded Smith’s due process claims to the

District Court.


5
  After Smith filed his original complaint, a Borough Councilman made the statement
that, because of Smith’s suit, he would vote against Smith’s early retirement despite a
favorable pension board recommendation. As a result, Smith amended his complaint to
include a second retaliation claim.
                                             4
         On remand, the District Court ordered on April 22, 2011 that the case would be

presented to the jury only if genuine issues of material fact existed, and directed the

parties to produce all evidence and respond to its concerns within twenty-one days. On

May 27, 2011, the District Court denied Smith’s motion in limine to have reporter

Matthew Kemeny, the man who wrote both newspaper articles covering Smith’s

suspension and reinstatement, disclose the confidential source from whom he received

the internal Borough Council letter. On September 21, 2011, the District Court denied

Smith’s motion that collateral estoppel should apply to preclude litigation on his due

process claims. After the parties presented additional evidence and briefed the matter,

the District Court granted summary judgment in favor of Defendants on September 23,

2011. Smith now appeals the orders denying his pretrial motions and the order granting

summary judgment.6

                                       II. Discussion

         We review de novo both whether the District Court should have compelled

discovery of the confidential source and whether summary judgment was appropriate.

Titan Sports, Inc. v. Turner Broad. Sys., Inc. (In re Madden), 151 F.3d 125, 128 (3d Cir.

1998); Kautz v. Met-Pro Corp., 412 F.3d 463, 466 (3d Cir. 2005). Because Smith’s

request for issue preclusion involves nonmutual offensive collateral estoppel,7 we review


6
    We exercise jurisdiction here under 28 U.S.C. § 1291.
7
 Nonmutual offensive collateral estoppel occurs where a ―plaintiff seeks to foreclose the
defendant from litigating an issue the defendant has previously litigated unsuccessfully in
an action with another party.‖ Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.4
(1979).
                                              5
it for abuse of discretion. Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d

244, 248–49 (3d Cir. 2006).

         Smith brings two due process claims under 42 U.S.C. § 1983, so he bears the

burden to establish (1) a violation of a right secured by the Constitution or the laws of the

United States, and (2) that the deprivation of that right was committed by a person acting

under color of state law. See Anderson v. Davila, 125 F.3d 148, 159 (3d Cir. 1997).

Smith complains of a deprivation of both a property and a liberty interest. We have

already held he has a property interest in not being suspended without cause. Smith I,

633 F.3d at 180. So the remaining issue is whether, under the Mathews test,8 Smith was

entitled to a hearing before his suspension. As for his liberty interest, Smith alleges

Defendants damaged his reputation by leaking the Borough Council letter to the press. In

order to succeed on that claim, Smith must establish Defendants caused ―a stigma to his

reputation plus deprivation of some additional right or interest.‖ Hill v. Borough of

Kutztown, 455 F.3d 225, 236 (3d Cir. 2006). This is known as the stigma-plus test. Id.

                             A. Confidential Reporter’s Source

         We agree that Smith’s motion in limine to order disclosure of reporter Kemeny’s

confidential source was properly denied. Smith desired disclosure of Kemeny’s source to

support his liberty interest due process claim by establishing a link between the

newspaper article and Defendants.




8
    See Mathews v. Eldridge, 424 U.S. 319, 332 (1976).

                                              6
       Pennsylvania state law and federal common law grant journalists a qualified

privilege to refuse to disclose their sources of information. 42 PA. CONS. STAT. § 5942;

Riley v. City of Chester, 612 F.2d 708, 715 (3d Cir. 1979).9 Those desiring to overcome

this privilege must show (1) that the information sought is material, relevant, and

necessary to the case; (2) that ―there is no other source for the information requested‖;

and (3) that the information sought is ―crucial‖ to the very heart of their claim. Riley, 612

F.2d at 716–17.

       It is undisputed that the identity of the person who leaked the Borough Council

letter to the press is material, relevant, and necessary to Smith’s liberty interest due

process claim. Indeed, the identity of that person can be considered ―crucial‖ to Smith’s

satisfying the stigma-plus test.10 But Smith has failed to establish that the information

cannot be obtained by other means. The two Borough Council members not named as

Defendants11 were not questioned as to whether they leaked the letter. Additionally,

Smith has not shown that all those with access to the letter (e.g., Borough office

employees, etc.) were questioned as to the leak.



9
  During Kemeny’s testimony, he mistakenly invoked Pennsylvania’s Shield Law, 42 PA.
CONS. STAT. § 5942, believing it to be the grounds of his reporter’s privilege. Because
state law does not govern the rule of decision here, the District Court correctly analyzed
his privilege under the Riley framework. See FED. R. EVID. 501.
10
  As discussed, supra, to satisfy the stigma-plus test, Smith must establish Defendants
caused ―a stigma to his reputation plus deprivation of some additional right or interest.‖
Hill, 455 F.3d at 236.
11
  Paul Nardozzi and Tim Burke, Council Members during the time in question, were not
named in Smith’s complaint.
                                              7
       For those reasons, Smith has not met his burden under the Riley test. We will

affirm the District Court.

                                  B. Collateral Estoppel

       We agree that the District Court did not abuse its discretion in refusing to apply

collateral estoppel to Smith’s due process claims. Smith argues that nonmutual offensive

collateral estoppel12 should apply to prevent Defendants from litigating Smith’s due

process claims.

       In Dee v. Borough of Dunmore, the district court tasked the jury with the

application of the due process balancing test articulated in Mathews v. Eldridge, 424 U.S.

319, 332 (1976). The district court later admitted it was error to have done so. See Dee

v. Borough of Dunmore (Dee II), 474 F. App’x 85, 89–90 (3d Cir. 2012) (unpublished);

Memorandum, Smith v. Borough of Dunmore, No. 3:05-CV-01343 (M.D. Pa. Sept. 21,

2011). Notwithstanding the error, the jury returned a verdict in the plaintiff’s favor.

Smith now wishes to have that finding apply against Defendants here.

       Generally, collateral estoppel precludes parties from litigating issues at trial where

―(1) the identical issue was previously adjudicated; (2) the issue was actually litigated;

(3) the previous determination was necessary to the decision; and (4) the party being

precluded from relitigating the issue was fully represented in the prior action.‖ Jean

Alexander Cosmetics, Inc., 458 F.3d at 249. Moreover, where, as here, a plaintiff


12
   As discussed, supra, nonmutual offensive collateral estoppel occurs where a ―plaintiff
seeks to foreclose the defendant from litigating an issue the defendant has previously
litigated unsuccessfully in an action with another party.‖ Parklane Hosiery Co., 439 U.S.
at 326 n.4.
                                              8
attempts to assert nonmutual offensive collateral estoppel, the procedural posture presents

―a unique potential for unfairness.‖ Id. at 248–49. As a result, district courts ―have broad

discretion to determine when to apply non-mutual offensive collateral estoppel.‖ Id. at

249 (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979)).

       We agree with the District Court that all four technical requirements for

application of collateral estoppel exist. Nonetheless, it was not an abuse of discretion for

the District Court to refuse to apply nonmutual offensive collateral estoppel in these

circumstances. Generally, the ultimate issue of whether due process was afforded to

Smith was a question of law for the court to determine. See Rodgers v. Norfolk Sch. Bd.,

755 F.2d 59, 62 (4th Cir. 1985). Submission of the due process issue to a jury may not

always be reversible error. See id. But it was not an abuse of discretion in the instant

case for the District Court to decline application of collateral estoppel after

acknowledging its previous error.

       Because it was not an abuse of discretion for the District Court to have concluded

that application of nonmutual offensive collateral estoppel ―would be unfair‖ to

Defendants, Parklane Hosiery, 439 U.S. at 331, we will affirm.

                                   C. Summary Judgment

       We agree that summary judgment was appropriate here, as the evidence presented

established that, as a matter of law, Smith received due process, including

constitutionally adequate postdeprivation remedies, and cannot satisfy the stigma-plus

standard.



                                              9
       Smith argues that summary judgment was inappropriate for two reasons. First,

Smith claims that our decision in Smith I established that genuine issues of material fact

existed in the case, and that our remand order implied a demand that the case go to trial.

Second, Smith argues that it was error for the District Court to summarily adjudge his

liberty interest due process claim because the July 6, 2005 hearing was not a sufficient

―name-clearing‖ hearing, and, alternatively, other legal damages were available.

       A party is entitled to summary judgment only if ―there is no genuine dispute as to

any material fact and the [moving party] is entitled to judgment as a matter of law.‖ FED.

R. CIV. P. 56(a). A court may order summary judgment sua sponte, but only after

identifying the issue for the parties and allowing them time to respond. See Fed. R. Civ.

P. 56(f)(3). Hence, the District Court had authority to issue the April 22, 2011 Order

alerting the parties to its concern and directing evidence production and briefing on the

due process claims.

       Our decision in Smith I did not prevent the District Court’s from exercising its

authority under Rule 56(f)(3). In Smith I, we remanded for two reasons. First, we

reversed the District Court’s finding that Smith did not have a property interest in not

being suspended without cause. Smith I, 633 F.3d at 180. Second, we found that the

factual record was not yet fully developed. Id. at 180–81. Although we recognized that

―genuine issues of material fact remain[ed],‖ like the remand order in the Dee companion

case, our order of remand was concerned not with mandating that Smith receive a trial

but with ensuring the District Court properly performed the Mathews test with the benefit

of a fully developed factual record. Cf. Dee I, 549 F.3d at 233, 235 n.12 (discussing the

                                             10
further proceedings intended upon remand as involving a more fully informed Mathews

analysis). As a result, Smith’s first argument fails.

       We agree that the District Court properly granted summary judgment to

Defendants on the property interest due process claim. Under the Mathews test, the

proper procedural process due a plaintiff is determined by consideration of (1) the private

interest affected, (2) the risk of an erroneous deprivation of that interest under the process

given and the probable value of additional process, and (3) the government interest at

issue. Mathews, 424 U.S. at 335.

       The District Court found that the dispute as to what, exactly, were the motivations

behind Smith’s suspension created a genuine issue of material fact. Nonetheless, the

District Court found summary judgment was still appropriate because Smith’s

deprivation was so small that the absence of a predeprivation hearing was justified by a

government interest in either proffered Borough Council motivation—i.e., public safety

or avoiding negative press, which could undermine the Council’s leadership.

       We agree with the District Court that because, overall, the deprivation of Smith’s

property interest was incidental at best, the absence of a predeprivation hearing is

justified under either alleged government interest. Smith was suspended for only eight

days, during which he received no cut in pay, benefits, or seniority. He also received a

speedy and adequate postdeprivation hearing. See Tillman v. Lebanon Cnty. Corr.

Facility, 221 F.3d 410, 421 (3d Cir. 2000). Both government interests are sufficient to

justify this minimal intrusion upon Smith’s property interest. Moreover, the District

Court mischaracterized the factual dispute here as ―material.‖ A fact is material only if it

                                             11
―could affect the outcome of the proceeding.‖ Roth v. Norfalco LLC, 651 F.3d 367, 373

(3d Cir. 2011) (quoting Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011))

(internal quotation mark omitted). Therefore, because no issues of material fact exist and

we find adequate process was provided Smith, we will affirm the District Court’s grant of

summary judgment as to Smith’s property interest due process claim.

       Finally, we agree that the District Court properly entered summary judgment in

favor of Defendants on Smith’s liberty interest due process claim. The stigma-plus test is

met where a plaintiff-employee proves ―creation and dissemination of a false and

defamatory impression,‖ i.e., the ―stigma,‖ and that an adverse employment action was

taken against the employee. Hill, 455 F.3d at 236. The ―stigma‖ must be made public

and the adverse employment action satisfies the ―plus‖ prong if the employee suffered an

injury to a property interest. Id. at 236–38. Smith had a property interest in not being

suspended without cause.

       The District Court did not determine if Smith could establish ―stigma,‖ because it

found that the July 6, 2005 hearing was a constitutionally sufficient ―name-clearing‖

hearing and that no further procedural protection was necessary. We agree. Although we

have not held that legal damages are not available for violations under the stigma-plus

doctrine, see Hill, 455 F.3d at 236 n.15, under the Mathews test, the July 6, 2005 hearing

and the newspaper article published the following day sufficed to provide Smith with a

remedy for any harm done to his reputation.

       Even so, we also find that the facts, even taken in a light most favorable to Smith,

do not establish that the ―stigma‖ prong is met here. Smith’s alleged ―stigma‖ is the June

                                            12
30, 2005 newspaper article discussing his suspension. The only false statement in the

article is that Smith lacked necessary EMT training. But the letter goes on to include

quotes from Chief Arnone, who explicitly stated that Smith was not subject to those

requirements, and Councilman Nardozzi, who stated that he didn’t think a suspension

was warranted. As a result, any damage done to Smith’s reputation by this article was

minimal, and did not put his ―good name, reputation, honor, or integrity . . . at stake.‖ Id.

at 235 (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)). Additionally,

although the article was based on a letter leaked from the Borough Council, Smith has

presented no facts linking the Borough or any of the Defendants with the dissemination

of the source to the newspaper. As a result, even assuming Smith would be entitled to a

remedy in addition to, or other than, a ―name-clearing‖ hearing, he has not presented

facts enough to support his liberty interest due process claim, and the District Court was

correct to grant judgment as a matter of law to Defendants. We will affirm.

                                             IV.

         For the reasons set forth, we will affirm the Orders and Judgment of the District

Court.




                                              13
