                       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
