Jeffrey Heffernan v. City of Paterson , 668 F. App'x 435 ( 2016 )

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-1610
___________
JEFFREY J. HEFFERNAN,
Appellant
v.
CITY OF PATERSON;
MAYOR JOSE TERRES;
POLICE CHIEF JAMES WITTIG;
POLICE DIRECTOR MICHAEL WALKER
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-06-cv-03882)
District Judge: Honorable Kevin McNulty
Before: VANASKIE, GREENBERG, and COWEN, Circuit Judges.
ORDER
AND NOW, upon issuance of the mandate of the United States Supreme Court in
the case of Heffernan v. City of Paterson, N.J., 136 S. Ct. 1412 (2016), reversing the
judgment entered by this Court, and remanding for further proceedings;
IT IS HEREBY ORDERED AND ADJUDGED that the order of the District
Court entered on March 5, 2014 is vacated insofar as it granted the motions for summary
judgment filed by Defendants, and this matter is remanded for further proceedings. This
Court holds that the waiver doctrine does not apply to the issues identified by the United
States Supreme Court. We further hold that, if, at the time Plaintiff was disciplined, the
City of Paterson had in effect (whether written or unwritten) a neutral policy prohibiting
police officers assigned to the Office of the Chief of Police from overt involvement in
political campaigns, such a policy meets constitutional standards.
We direct the District Court following discovery to conduct a trial (1) to determine
whether there was in fact such a neutral policy prohibiting police officers assigned to the
Office of the Chief of Police from overt involvement in any political campaign of which
Plaintiff was aware or reasonably should have been aware; and, if the answer to Question
(1) is yes, (2) to determine whether Plaintiff was disciplined for what reasonably
appeared to be a violation of that policy. If both Questions (1) and (2) are answered in
the affirmative, a judgment should be entered in favor of Defendants. If either Question
(1) or Question (2) is answered in the negative, Defendants are liable for any resulting
damages.
We recommend, but do not hold, that the District Court first try the liability phase
of this matter. Thereafter, a bifurcated determination should be made as to damages if
that be necessary. We leave the bifurcation decision to the sound discretion of the
District Court.
Pursuant to Local Appellate Rule 33.4, the Court refers this matter to Mr. Joseph
A. Torregrossa, Chief Appellate Mediator, for mediation. To allow for appellate
mediation, issuance of the mandate is stayed pending further order by this Court.
BY THE COURT,
s/ Thomas I. Vanaskie
Circuit Judge
Dated: August 25, 2016