Heffernan v. City of Paterson (2016): A New Element in Constitutional Tort Law—It’s Not Necessarily What the Public Employer Did,but What It Intended to Do That Counts

Introduction

The U.S. federal courts began to develop constitutional tort law in the 1960s and 1970s as a means of holding public officials and employees personally accountable for violations of the constitutional rights of those over whom they exercise job-related authority (Harvard Law Review, 1977; Rosenbloom, 1988; Rosenbloom & Rene, 2016; Ziglar v. Abbasi, 2017). Such accountability takes the form of civil suits in federal court brought by those seeking compensatory and punitive money damages from the officials and employees they believe are responsible for breaches of their constitutional rights (Nahmod, Wells, Eaton, & Smith, 2015; Wells, 2012). The defendant public sector officials and employees have “qualified immunity” from such suits insofar as they have not violated “clearly established . . . constitutional rights of which a reasonable person would have known” (Harlow v. Fitzgerald, 1982, p. 818). Cities potentially face constitutional tort suits for compensatory damages when their policies directly cause violations of individual constitutional rights (Monell v. Department of Social Services of the City of New York, 1978; Pembaur v. City of Cincinnati, 1986). ¹ During the past five decades, these basic elements of constitutional tort law have been elaborated on in several cases as briefly reviewed below (see Nahmod et al., 2015; Rosenbloom & Rene, 2016; Wells, 2012 for a fuller discussion).

Heffernan v. City of Paterson is important for reinjecting an element of motive into constitutional tort law regarding public employees’ freedom of speech and makes it possible for aggrieved employees to recover damages even when there has been no violation of the First Amendment. Since the Supreme Court’s decision in Harlow, qualified immunity has been based on “the objective reasonableness of an official’s conduct, as measured by reference to clearly established law” alone, without regard to whether the defendant acted in “good faith” or with “malicious intention” (Harlow v. Fitzgerald, 1982, pp. 814-818). This makes it possible for qualified immunity to be granted on summary judgment and thereby to avoid trials that are costly to public employees and society by “distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service” (Harlow v. Fitzgerald, 1982, p. 816).

Heffernan, by contrast, permits an inquiry into whether individual officials or employees acting on their own behalf and/or as policymakers for a municipality intended to violate a constitutional right. Specifically, by focusing on motive, Heffernan authorizes constitutional tort suits against public officials, employees, and cities for being motivated to retaliate against an individual who they mistakenly believe has exercised First Amendment rights. Heffernan also makes it possible for an employee to pursue a constitutional tort suit even though he or she denies actually having engaged in activity protected by the First Amendment. In other words, although no constitutional rights have actually been exercised, liability can nevertheless be attached if there was an intent to curtail such rights by retaliating against the individual mistakenly believed to have exercised them. This expands the scope of both public employees’ First Amendment protection against retaliation for exercising their freedom of speech and constitutional tort law by making public personnel potentially liable for their unconstitutional motives in adverse actions taken against employees for their political activity.

Public Employees’ Freedom of Speech

To appreciate fully the importance of Heffernan, it is helpful to review briefly the broad outlines of public employees’ constitutional right to freedom of speech. In Pickering v. Board of Education (1968, pp. 568-574), the Supreme Court held that as a general principle, public employees have a First and Fourteenth Amendment right to speak publicly on “matters of public concern” (i.e., public interest). However, the employees’ interest in exercising freedom of speech must be balanced against the “interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees” (Pickering v. Board of Education, 1968, p. 568). In striking this balance today, the following factors must be considered:

(1) the need for harmony in the office or work place;  (2) whether the government’s responsibilities require a close working relationship to exist between the plaintiff and co-workers when the speech in question has caused or would cause the relationship to deteriorate;  (3) the time, manner, and place of the speech;  (4) the context in which the dispute arose;  (5) the degree of public interest in the speech;  and (6) whether the speech impeded the employee’s ability to perform his or her duties. (Belk v. City of Eldon, 2000, pp. 880-881; see also Rankin v. McPherson, 1987)

Two common types of speech by public employees on matters of public concern are excluded from constitutional protection and, therefore, Pickering balancing. First, political neutrality regulations can constitutionally prohibit public employees from taking an active part in political party management and partisan political campaigns (United Public Workers v. Mitchell, 1947; U.S. Civil Service Commission v. National Association of Letter Carriers, 1973). In Heffernan, the Supreme Court did not address the question of whether Heffernan may have violated such regulations applicable in the City of Paterson.

Second, in Garcetti v. Ceballos (2006, p. 421), the Supreme Court held that “work product” speech by public employees, regardless whether it is on matters of public concern, may subject them to adverse personnel actions. In the Court’s words, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline” (Garcetti v. Ceballos, 2006, p. 421; see also Roberts, 2007). ²

These general principles do not resolve a matter of particular pertinence to Heffernan: What steps must the public employer take to determine what the employee said or otherwise expressed? In Waters v. Churchill (1994), the Supreme Court plurality opinion reasoned that “If an employment action is based on what an employee supposedly said, and a reasonable supervisor would recognize that there is a substantial likelihood that what was actually said was [constitutionally] protected, the manager must tread with a certain amount of care. . . . It should . . . be the care that a reasonable manager would use before making an employment decision—discharge, suspension, reprimand, or whatever else” (pp. 667-668). As to what is reasonable, though, the plurality went no further than explaining, “Only procedures outside the range of what a reasonable manager would use may be condemned as unreasonable” (Waters v. Churchill, 1994, p. 678). With this general overview in mind, I now turn briefly to an overview of constitutional tort law and then to how both public employees’ freedom of speech and such tort law link together to make Heffernan both novel and important for public personnel administration.

Constitutional Tort Law

Prior to the Supreme Court’s decision in Monroe v. Pape (1961), there was a strong presumption that public officials and employees at all levels of government had absolute immunity from civil suits in federal court brought by individuals seeking money damages for violations of their constitutional rights (see Harvard Law Review, 1977 for the foundational analysis; Rosenbloom & Rene, 2016 for a substantial update; and Ziglar v. Abbasi, 2017 for a review of jurisprudential reasoning). The rationale for absolute immunity was multifold: constitutional tort suits would (a) deter talented candidates from taking government jobs, (b) motivate public employees to act with “unwarranted timidity” by discouraging “fearless decisionmaking,” (c) curtail the “vigorous exercise of authority,” and (d) “‘dampen the ardour [sic] of all but the most resolute, or the most irresponsible’ public officials” (Richardson v. McKnight, 1997, p. 408).

In the 1960s and 1970s, the Supreme Court changed the presumption of absolute immunity to the weaker protection of qualified immunity for most public officials and employees. This change making constitutional tort suits much more feasible took two paths. First, in Monroe, the Court held that under the Civil Rights Act of 1871, city police officers could be sued in federal court for violations of individuals’ constitutional rights. Previously, the presumption of absolute immunity made the 1871 act, now codified as 42 U.S. Code section 1983, a virtual dead letter (Harvard Law Review, 1977). Section 1983 makes “every person who” violates another’s constitutional rights while acting under the “color” of state or local law potentially liable in a constitutional tort suit for money damages. The Supreme Court has not read “every person” literally and public officials and employees retain absolute immunity while engaged in judicial or legislative functions (Butz v. Economou, 1978; Bogdan v. Scott-Harris, 1998). The Court has interpreted “color” of law more expansively to mean under the pretense or guise of law rather than strictly pursuant to it (Harvard Law Review, 1977; Rosenbloom & Rene, 2016).

Second, in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971), the Supreme Court extended similar liability for constitutional torts to federal officials and employees as a matter of constitutional law (there being no statutory equivalent to section 1983 applying at the federal level). Bivens involved the Fourth Amendment protection against unreasonable searches and seizures, and subsequently, the Court authorized constitutional tort suits for violations of Fifth and Eighth Amendment rights as well (Davis v. Passman, 1979; Carlson v. Green, 1980); see Ziglar v. Abbasi, 2017 for a discussion of Bivens and subsequent cases based on it). ³

Monroe and Bivens removed the broad presumption of absolute immunity, but neither decision established the bounds of the qualified immunity that would replace it. In Wood v. Strickland (1975), the Supreme Court held that “a school board member is not immune from liability for damages under [section] 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student” (p. 322).

As noted earlier, the second element—“malicious intention”—proved problematic because intent or motive is considered a factual issue that can be subject to determination by a jury or judge in a bench trial. By eliminating malicious intention as a factor in determining the scope of qualified immunity, Harlow enabled it to be granted or denied in summary judgments by a judge’s determination whether the facts “taken in the light most favorable of the party asserting the injury” violated a constitutional right, and if so, whether that right was so clearly established that a reasonable person in the defendant’s position would have known of the violation when the action at issue occurred (Saucier v. Katz, 2001, p. 201). ⁴ The Court explicitly discarded the question of motive because “claims frequently run against the innocent as well as the guilty—at a cost not only to the defendant officials but also to the society as a whole” (Harlow v. Fitzgerald, 1982, p. 814). ⁵

In Hope v. Pelzer (2002), the Court defined “clearly established” as court cases, policies, and official directives or reports having provided “fair warning” that an action by a public official or employee would violate someone’s constitutional rights. Fair warning meant that a right could be “clearly established” by the overall tenor and direction of the law rather than through only legal precedents with identical or materially similar facts (Rosenbloom, 2003).

Later in the 2000s and 2010s, the Supreme Court’s rephrasing of “clearly established” was more favorable to public officials and employees in grammatical nuance, if not technical substance. In Reichle v. Howards (2012), the Court wrote, “To be clearly established, a right must be sufficiently clear that every reasonable official would [have understood] that what he is doing violates that right” (brackets in original) because “existing precedent must have placed the . . . constitutional question beyond debate” (Reichle v. Howards, 2012, p. 2093; emphasis added). Two years later, the Court explained, “a defendant [public official or employee] cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it” (Plumhoff v. Rickard, 2014, p. 2023; emphasis added). Thus, the grammatical progression goes from “a reasonable person” in Harlow to “every reasonable official” in Reichle to “any reasonable official” in Plumhoff. These wording changes suggest that a public official or employee will currently be entitled to qualified immunity if he or she can produce putatively reasonable public officials or employees who will assert or testify that what the defendant did was not universally understood to be unreasonable at the time.

Taken alone, the restatements of what constitutes “clearly established” in Reichle and Plumhoff might be dismissed as stylistic and inconsequential. However, these decisions were part of a larger trend in which the Supreme Court has declined to extend Bivens (Ziglar v. Abbasi, 2017), while also making it impossible or more difficult to bring constitutional tort suits against federal contractors (Correctional Services Corporation v. Malesko, 2001) and their employees (Minneci v. Pollard, 2012) as well as individuals working on contract for cities (Filarsky v. Delia, 2012). For public personnel administration, Heffernan is a limited but important departure from this trend because it expands rather than shrinks or reinforces the status quo in contemporary constitutional tort law (see Rosenbloom & Rene, 2016 regarding the trend).

Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker (2016)

As the full title of Heffernan indicates the suit was brought against both the city and its employees whose actions were challenged as unconstitutional. Briefly, Jeffrey Heffernan, a police officer, picked up a political campaign sign for his bedridden mother at her request. The sign was for a mayoral candidate running against incumbent mayor Jose Torres, who had appointed Police Chief Wittig and Director Walker. ⁶ Other police officers observed Heffernan holding the sign while talking with the challenger’s staff and word of his actions soon got around the Police Department. The following day, Heffernan was demoted for “overt involvement” in the challenger’s campaign (Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker, 2016, p. 1416).

Thus far, these events look like the basis of a fairly typical public employee freedom of speech case as outlined earlier. However, there was a significant twist. Heffernan claimed that he had not engaged in protected speech or any speech at all but had merely gotten the sign for his mother. His suit under section 1983 was accordingly framed not as a violation of his right to freedom of speech (which he had not exercised) but rather as a breach of a constitutional right against retaliation for activity that Torres and Wittig mistakenly believed was a protected constitutional right (Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker, 2016, p. 1416). In other words, the alleged constitutional violation was Torres’ and Wittig’s motivation to punish Heffernan for exercising what they incorrectly thought were his constitutional rights to support the mayoral challenger and their decision to demote him for so doing. On the assumption that the mayor and police chief made official municipal policy regarding the claimed unconstitutional retaliation against him, Heffernan named the city as well as Torres and Wittig in the suit.

Heffernan’s suit began in 2006 and followed a “tortuous procedural history” before reaching an initial decision in which a jury absolved the city of liability while awarding Heffernan US$37,000 in compensatory damages and US$15,000 in punitive damages each from Torres and Wittig (Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker, Brief for Respondents in Opposition, 2015, pp. 2, 4-5). The trial was somewhat inexplicably held on the question of whether Heffernan’s freedom of association rather than his free speech had been violated, which was reflected in the judge’s instructions to the jury. ⁷

Unhappy with the result, Heffernan moved for a new trial based on his retaliation for freedom of speech claim. Also dissatisfied, the defendants appealed on the basis that the case never should have gone to trial on a freedom of association claim. Subsequently, the original judge ruled that the earlier verdict should be set aside and a new trial should be held before another district court judge. Based on pretrial motions, the new judge granted summary judgment in favor of the defendants on the basis that Heffernan had not exercised a constitutional right and consequently there was no violation of section 1983.

Next, the court of appeals reversed the district court on technicalities involving pretrial motions. The case then went to a third district court judge who granted summary judgment for the defendants on Heffernan’s freedom of speech and freedom of association claims. That judge rejected Heffernan’s argument that although he had not actually engaged in free speech or association, the defendants’ intent to retaliate against him for exercising these rights made his demotion unconstitutional.

Specifically, the court of appeals upheld the district court’s decision in favor of summary judgment for the defendants on the basis that the “a free-speech retaliation claim is actionable under § 1983 only where the adverse action at issue was prompted by an employee’s actual, rather than perceived, exercise of constitutional rights” (Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker, 2015, p. 153; Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker, Brief for Respondents in Opposition, 2015, p. 10). Heffernan then successfully filed a writ of certiorari seeking review by the Supreme Court of the lower courts’ “bizarre rule now in force” under which “government employers are free to make baseless accusations of political disloyalty, and they are rewarded for being wrong” (Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker Reply Brief for the Petitioner, 2015, p. 1). Moreover, Heffernan contended, this “bizarre rule rewards the worst supervisors and chills an enormous amount of political association” (Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker Reply Brief for the Petitioner, 2015, p. 8).

The Supreme Court reversed the lower courts by a 6-2 margin. Justice Stephen Breyer’s majority opinion was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Justice Clarence Thomas dissented in an opinion joined by Justice Samuel Alito. Breyer’s opinion of the Court began with the premise that “With a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate” (Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker, 2016, p. 1417). The exceptions are based on “practical realities” and “the need for ‘efficiency’; and ‘effective[ness]’ in government service” (Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker, 2016, p. 1417; brackets in original). “But,” Breyer asked, “what precisely is [the] right” protected by Section 1983? “Is it a right that primarily focuses upon (the employee’s) actual activity or a right that primarily focuses upon (the supervisor’s) motive, insofar as that motive turns on what the supervisor believes that activity to be?” (Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker, 2016, p. 1417; emphasis added).

Observing that this question is neither specifically answered by the text of section 1983 nor precedent, Breyer analogized the case to Waters v. Churchill and rejected the contention that the fact that Heffernan had not actually exercised his First Amendment rights was dispositive:

In Waters, the employer reasonably but mistakenly thought that the employee had not engaged in protected speech. Here the employer mistakenly thought that the employee had engaged in protected speech. If the employer’s motive (and in particular the facts as the employer reasonably understood them) is what mattered in Waters, why is the same not true here? After all, in the law, what is sauce for the goose is normally sauce for the gander.

We conclude that, as in Waters, the government’s reason for demoting Heffernan is what counts here. When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. § 1983—even if, as here, the employer makes a factual mistake about the employee’s behavior. (Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker, 2016, p. 1418; emphasis added)

In extending Waters to the different circumstances of Heffernan, Breyer noted that “the Government acted upon a constitutionally harmful policy” regardless of “whether Heffernan did or did not in fact engage in political activity” (Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker, 2016, p. 1419). “The upshot” for Breyer “is that a discharge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest on a factual mistake” because either way it “unquestionably inhibits” constitutionally protected activity “of all employees” (Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker, 2016, p. 1419). Importantly, because Breyer was writing for the Court, his reading of Waters’ plurality opinion became part of the precedent Heffernan sets.

An employee in Heffernan’s circumstances is protected by section 1983 and can “win” his or her constitutional tort suit if he or she can “prove an improper employer motive” by demonstrating “the employer’s intent to discharge or to demote him for engaging in what the employer (mistakenly) believes to have been different (and protected) activities” (Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker, 2016, p. 1419; emphasis added).

In sum, a decade after Heffernan first filed his suit, the Supreme Court endorsed his claims that public employees have constitutional protection against adverse actions when their employer is motivated to retaliate against them by the mistaken belief that they exercised protected First Amendment rights and that this protection can be asserted in a section 1983 constitutional tort suit. From the perspectives of defendants and employers, it is not necessarily what they did but rather what they intended to do that can trigger potential liability.

The novelty of the majority’s decision was not lost on Justice Thomas. The logic of his dissent is precise: (a) “Nothing in the text of § 1983 provides a remedy against public officials who attempt but fail to violate someone’s constitutional rights” because “[a] plaintiff may maintain a suit only for a completed tort” as “[t]here are no attempted torts”; (b) “A city’s policy, even if unconstitutional, cannot be the basis of a § 1983 suit when that policy does not result in the infringement of the plaintiff’s constitutional rights”; and therefore (c) “If the facts are as Heffernan has alleged, the City’s demotion of him may be misguided or wrong. But, because Heffernan concedes that he did not exercise his First Amendment rights, he has no cause of action under § 1983” (Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker, 2016, pp. 1420-1423). Rejecting the Court’s application of Waters to Heffernan, Thomas wrote, “‘[W]hat is sauce for the goose’ is not ‘sauce for the gander,’ . . . when the goose speaks and the gander does not” (Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker, 2016, p. 1423).

Implications for Public Personnel Administration

Breyer’s opinion claimed that “a rule of law that imposes liability despite the employer’s factual mistake will not normally impose significant extra costs on the employer” (Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker, 2016, p. 1415). However, there is reason to think Heffernan may add complications and costs to public personnel administration.

First, as noted previously, Harlow eliminated Wood’s concern with motive precisely because claims based on malicious intent could lead to expensive jury or bench trials, and perhaps, more costly settlements. Authorizing employees such as Heffernan to try to “prove an improper motive” may have a similar result, because as it stands now, based on experience with Wood, an allegation of improper motive may frequently defeat a defendant’s motion for summary judgment.

Second, Heffernan makes public personnelists and managers potentially liable for a new type of constitutional tort. As Breyer acknowledged, Heffernan is the first (and only) Supreme Court decision allowing an aggrieved public employee, who admits that he or she exercised no constitutional right, to bring a potentially successful constitutional tort suit under section 1983 (Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker, 2016, pp. 1417-1419). Now, if supervisors or city policymakers are motivated to retaliate against an employee for an activity that they mistakenly believe involves the exercise of a First Amendment right, they can be sued under section 1983.

Heffernan concerned what was perceived to be political activity, which is often lawfully banned by political neutrality regulations. However, Heffernan opens the door to other kinds of free-speech cases, including whistleblowing, where the parameters of constitutionally protected public employee speech are often uncertain (e.g., Garcetti v. Ceballos, 2006; Rankin v. McPherson, 1987; Roberts, 2007; Waters v. Churchill, 1994 Souter dissent; Connick v. Myers, 1983). Justice Antonin Scalia once referred to this general area of the law as “uncertain, case-by-case, balance-all-the-factors-and-who-knows-who-will-win litigation” (Board of County Commissioners, Wabaunsee County v. Umbehr, 1996, p. 711; O’Hare Truck Service v. City of Northlake, 1996). ⁸ Such uncertain balancing provides little doctrinal guidance to personnelists and managers. Therefore, to steer clear of potential constitutional tort suits, they would be well advised to follow closely court decisions in their federal judicial districts and circuits dealing with public employees’ freedom of speech.

Third, although it is unlikely at present (Rosenbloom & Rene, 2016; Ziglar v. Abbasi, 2017), over time, Heffernan may presage greater judicial intrusion into public managerial decision making. Personnelists may not agree with Thomas’ bright line—Were protected rights violated or not? However, Supreme Court majorities have recognized the desirability of limiting judicial second-guessing of public managers’ exercise of discretion (see Bishop v. Wood, 1976 and Garcetti v. Ceballos, 2006). Heffernan does not settle the question of what happens if an adverse public personnel action involving freedom of speech is based on a reasonable mistake. The Court wrestled with this issue in Waters. The Waters’ plurality concluded that reasonable mistakes were permissible. Its problem lay in defining “reasonable.”

In a concurring opinion in Waters, Scalia argued that “This recognition of a broad new First Amendment procedural right” would be “unpredictable in its application and consequences” (Waters v. Churchill, 1994, p. 686). If Heffernan’s progeny require courts to determine the reasonableness of the steps that a supervisor took before repeating the kind of mistake Torres and Wittig made, judges will perforce have to review managerial discretion. Moreover, they would sometimes do so with the benefit of hindsight indicating that the premise for the adverse action was in fact incorrect, as in Heffernan.

In conclusion, in Heffernan, the Supreme Court put its imprimatur on an expansion of constitutional tort law that has the potential to affect adverse public personnel actions based on perceived political speech. It is likely to take time for the judiciary to establish the full boundaries of “Heffernan torts.” In the interim, public personnelists and managers as well as municipal policymakers can protect rights and avoid related constitutional tort suits by adjusting their behavior and procedures to comport with Heffernan and related subsequent cases in their judicial districts and circuits.