* Of the Ninth Circuit, sitting by designation.

United States Court of Appeals

For the First Circuit

Nos. 02-1404

02-1458

02-1459

WINIFRED COTTER, ET AL.,

Appellants/Cross-Appellees,

v.

THE CITY OF BOSTON; DENNIS A. WHITE; HAROLD WHITE;

MASSACHUSETTS ASSOCIATION OF MINORITY LAW

ENFORCEMENT OFFICERS,

Appellees/Cross-Appellants,

COMMONWEALTH OF MASSACHUSETTS, Executive Office for

Administration and Finance Human Resources Division, et al.,

Defendants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Boudin, Chief Judge,

Farris,* Senior Circuit Judge,

and Torruella, Circuit Judge.

Michael C. McLaughlin, for appellants.

Rory FitzPatrick, with whom Irene C. Freidel, Andrew C. Glass,

Kirkpatrick & Lockhart, LLP, William V. Hoch, Office of the Legal

Advisor, Boston Police Department, were on brief, for appellee The

City of Boston.
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Rheba Rutkowski, with whom Jonathan M. Albano, Bingham

McCutchen LLP, and Nadine M. Cohen, Lawyers Committee for Civil

Rights Under Law of the Boston Bar Association, were on brief, for

appellees Dennis A. White, Harold White and Massachusetts

Association of Minority Law Enforcement Officers.

March 25, 2003
1 The officers are Winifred N. Cotter, Vincent J. DiFazio, John P.

Doris, William J. Dwan, William G. Knecht, Patrick L. Murphy, and

Thomas L. Sexton.

2 Plaintiffs originally filed suit against the City of Boston and

James J. Hartnett, Jr., in his official capacity as Personnel

Administrator of the Commonwealth of Massachusetts Human Resources

Division. Hartnett settled with plaintiffs and was dropped from

the suit. We permitted the Massachusetts Association of Minority

Law Enforcement Officers ("MAMLEO"), and Dennis A. White and Harold

White, two of the African-American officers who were promoted to

sergeant, to intervene as defendants. Cotter v. Mass. Ass'n of

Minority Law Enforcement Officers, 219 F.3d 31, 37 (1st Cir. 2000).

Except where their interests diverge, we refer to all defendantsappellees collectively as the "City."

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TORRUELLA, Circuit Judge. Plaintiffs-appellants, seven

Caucasian officers of the Boston Police Department ("BPD" or the

"Department"),1 allege that their constitutional rights to equal

protection were violated when the Department promoted three

African-American police officers to sergeant instead of the

appellants, who had the same ranking on the list of officers

eligible for promotion.2 The district court found that the raceconscious action of the City was narrowly tailored to the

compelling state interests of remedying past discrimination and

avoiding litigation, and therefore, passed strict scrutiny. Cotter

v. City of Boston, 193 F. Supp. 2d 323, 357 (D. Mass. 2002). The

district court also retained jurisdiction to consider future

racially motivated decisions by the Department. Id. at 356-57. 

Appellants appeal the district court's decision, and the City

cross-appeals on the issues of standing and retained jurisdiction.

First, we find that appellants have standing to seek immediate
3 The four-fifths rule provides that

[a] selection rate for any race . . . which is less than

four-fifths (or eighty percent) of the rate for the group

with the highest rate will generally be regarded by the

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promotion only. Next, we affirm the district court's decision that

the City's action was constitutional, finding that the City has

demonstrated the compelling state interest of remedying past

discrimination. Finally, we reverse the district court's retention

of jurisdiction.

I. Background

A. Facts

In December, 1997, the BPD sought to promote thirty

police officers to sergeant. A score was computed for each

candidate who took a 1996 sergeant promotion examination given by

the Human Resources Division ("HRD"). The score was based on a

state examination, a Boston examination, education, and training.

Following standard hiring procedure, the Department obtained a list

ranking the top sixty-nine performers.

If promotions had been made in strict rank order, twentynine non-African-American officers and one African-American officer

would have been promoted, all of whom had a score of eighty-five or

higher. The Department determined that this promotional decision

would violate the "four-fifths rule" in the EEOC's Uniform

Guidelines on Employee Selection Procedures, indicating possible

adverse impact on minority candidates.3 See 29 C.F.R. § 1607.4(D)
Federal enforcement agencies as evidence of adverse

impact, while a greater than four-fifths rate will

generally not be regarded by Federal enforcement agencies

as evidence of adverse impact.

29 C.F.R. § 1607.4(D). Had the BPD promoted in strict rank order,

the selection rate for African-Americans would have been three

percent (one African-American officer selected out of thirty-three

who passed the examination) and the selection rate for non-AfricanAmericans would have been fifteen percent (twenty-nine promoted out

of 192 who passed the examination), for a selection ratio of twenty

percent (three percent divided by fifteen percent). This result is

well below the eighty percent guideline established by the EEOC.

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(2003). Such adverse impact may signify that the testing or past

hiring was discriminatory. For this reason, and others that we

will discuss below, the BPD sought greater African-American

representation among sergeants. Therefore, the Department promoted

the top twenty-six officers in strict rank order; this included all

officers scoring eighty-six and above, with the exception of one

officer who was bypassed for cause. Seven non-African-American

officers had scored eighty-five; two of them were promoted.

Finally, the Department promoted the three African-American

officers who had scored 84 (the "African-American Officers"), while

choosing not to promote ten Caucasion officers who also scored

eighty-four.

Because it had elected to promote officers scoring

eighty-four before officers scoring eighty-five, the BPD was

required by Massachusetts law to provide a statement to the HRD

explaining the reasons for its departure from strict rank order.

See Mass. Gen. Laws ch. 31, § 27 (2002). The BPD sent a letter to
4 A consent decree governing sergeant promotions at the BPD was

allowed to lapse in 1995.

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the HRD stating that the departure from strict rank order to

promote the African-American Officers was done to "ensure

compliance with current EEOC guidelines, and applicable federal and

state discrimination laws." The HRD rejected this explanation,

contending that the BPD was erroneously acting under a terminated

consent decree.4

In response to the HRD’s rejection, the Department

promoted six additional officers (one formerly bypassed for cause

and five with a score of eighty-five). Thus, the end result was

that all thirty-three officers scoring eighty-five and higher were

promoted, the three African-American Officers scoring eighty-four

were promoted, and ten non-African-American officers scoring

eighty-four, including the seven Caucasian plaintiffs, were not

promoted. Of the thirty-six officers promoted to sergeant, four

were African-American and thirty-two were not African-American.

B. History of the Case

On May 21, 1999, plaintiffs filed suit against the City

alleging that the Department violated plaintiffs’ civil rights

under 42 U.S.C § 1983 (2003) by failing to promote plaintiffs to

sergeant because of their race.

After full discovery, the City moved for summary

judgment, alleging that the plaintiffs lacked standing, and that
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the promotions of the African-American Officers were a narrowlytailored means of meeting several compelling governmental

interests. Specifically, the City claimed that the promotions

furthered compelling governmental interests by (a) remedying past

discrimination in the Department’s promotions of minority officers

to sergeant; (b) avoiding the reasonable likelihood of Title VII

litigation if the Department made strict rank order promotions; and

(c) meeting the Department’s operational needs.

On March 22, 2002, the district court dismissed

plaintiffs’ claims and entered judgment in favor of the City. The

district court found that the City’s actions were a narrowlytailored means of remedying the continuing effects of past

discrimination and avoiding litigation. See Cotter, 193 F. Supp.

2d at 350. The district court retained jurisdiction post-judgment

to oversee all of the Department’s future hiring and promotional

decisions involving race. Id. at 356-57. This appeal and crossappeal timely followed.

II. Discussion

Summary judgment is appropriate upon a showing "that

there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law." Fed. R.

Civ. P. 56(c) (2003). We review the district court’s entry of

summary judgment de novo, in the light most favorable to the losing

party. Houlton Citizen’s Coalition v. Town of Houlton, 175 F.3d
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178, 184 (1st Cir. 1999). We may affirm the district court's

decision on "any independent ground that is apparent in the

record." United States v. Puerto Rico, 287 F.3d 212, 218 (1st Cir.

2002).

A. Standing

Article III of the Constitution confines the federal

courts to deciding actual cases or controversies. Allen v. Wright,

468 U.S. 737, 750 (1984). Inherent in this limitation is the

notion that "federal courts may exercise power only as a last

resort, and as a necessity, and only when adjudication is

consistent with a system of separated powers and the dispute is one

traditionally thought to be capable of resolution through the

judicial process." Id. at 752 (internal quotations and citations

omitted). The most important Article III doctrine is that of

standing, which ensures that plaintiffs have alleged a personal

stake in the outcome of the controversy. Requiring a plaintiff to

have standing sharpens the presentation of issues and illuminates

difficult constitutional questions. Baker v. Carr, 369 U.S. 186,

204 (1962).

At an irreducible constitutional minimum, a party

attempting to invoke federal jurisdiction must establish that (1)

he has suffered an injury in fact, (2) the injury was caused by the

challenged action of the defendant, and (3) a favorable ruling

would likely redress his injury. Lujan v. Defenders of Wildlife,
5 The district court decision preceded our decision in Donahue,

and the court found that plaintiffs had standing to pursue damages

and injunctive relief. Cotter, 193 F. Supp. 2d at 337.

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504 U.S. 555, 560-61 (1992). The standing inquiry requires careful

judicial examination of a complaint's allegations to ascertain

whether the particular plaintiff is entitled to an adjudication of

the particular claims asserted. Allen v. Wright, 468 U.S. at 752.

We review the district court's standing decision de novo. Donahue

v. City of Boston, 304 F.3d 110, 116 (1st Cir. 2002).

The plaintiffs sue under 42 U.S.C. § 1983, seeking

damages, immediate promotion, and an order prohibiting the

Department from considering race in future promotions. Since a

plaintiff must establish standing for each type of relief sought,

id. at 116, we consider appellants' standing to seek damages and

injunctive relief separately.5

The appellants first argue that they have standing to

obtain damages. Prior precedent bars this effort. In Texas v.

Lesage, 528 U.S. 18 (1999), the Supreme Court held that "where a

plaintiff challenges a discrete governmental decision as being

based on an impermissible criterion and it is undisputed that the

government would have made the same decision regardless, there is

no cognizable injury warranting relief under § 1983." Id. at 21.

It is uncontested that had the Department not used race-conscious

criteria, it would have only promoted candidates with a score of
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eighty-five or higher. Because appellants only scored eighty-four,

they cannot show standing for damages.

Lesage could be distinguished on the ground that the

plaintiff in that case received a lower score than all of the

applicants who were admitted to the university program at issue

there. By contrast, the appellants here earned the same score as

the African-American Officers. However, this court in Donahue v.

City of Boston, 304 F.3d at 114, read Lesage to encompass a

situation similar to this one. In Donahue, the plaintiff police

candidate had received a higher score on the relevant exam than did

a minority officer who was hired. We applied Lesage, noting that

the plaintiff had no chance of being hired regardless of the

Department's affirmative action program. Id. at 119. This

interpretation of Lesage controls here as law of the circuit.

Several of our sister circuits have also found that plaintiffs lack

standing to sue for damages if they cannot show that they would

have benefitted had the government not considered race. See Aiken

v. Hackett, 281 F.3d 516 (6th Cir.), cert. denied sub nom. Ashton

v. City of Memphis, 2002 U.S. LEXIS 5550 (Oct. 7, 2002); McNamara

v. City of Chicago, 138 F.3d 1219, 1221 (7th Cir.), cert. denied,

525 U.S. 981 (1998) ("A plaintiff who would have been no better off

had the defendant refrained from the unlawful acts of which the

plaintiff is complaining does not have standing under Article III

of the Constitution to challenge those acts in a suit in federal
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court."); Grahek v. City of St. Paul, 84 F.3d 296, 298 (8th Cir.

1996) (finding Caucasian male candidates for police officer

positions lacked standing because they could not show that they

would have been promoted, even if the police department had not

made use of a list of "protected class applicants").

Appellants next argue that they have standing to seek

immediate promotion. While one could imagine that this issue could

similarly be resolved against the appellants under Donahue and

Lesage, neither of those cases addressed standing for this type of

immediate injunctive relief. Instead, both of those cases focused

only on standing to seek an injunction to prevent future

violations. Thus, neither of those cases, nor any other binding

precedent, mandates a certain result here.

Two of the appellants have been promoted to sergeant

since this lawsuit was filed, and therefore lack standing to seek

immediate promotion. We think that the remaining appellants have

made a colorable claim of standing to seek immediate promotion.

The Department has promoted African-American officers who obtained

the same score as the appellants and there is no indication that

the Department would consider demoting the promoted AfricanAmerican Officers. If we assume arguendo that the Equal Protection

Clause prohibits racial discrimination on these facts and permits

the injunctive relief sought by the appellants, then it is
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sufficiently clear that the appellants would have suffered a

cognizable injury for standing purposes.

There is a different form of injunctive relief not

explicitly mentioned in the plaintiffs' complaint but arguably

embraced by their briefs, namely, that if unlawful discrimination

occurred in this case, such discrimination should be barred in

future promotion contests involving these plaintiffs. A plaintiff

challenging an ongoing race-conscious program satisfies the injury

requirement if he shows (1) a likelihood that he will compete for

the governmental benefit in question in the future, and (2) that he

will be prevented from competing on equal footing because of the

government's discriminatory practice. Donahue, 304 F.3d at 119;

accord N.E. Fla. Chapter of the Associated Gen. Contractors v. City

of Jacksonville, 508 U.S. 656, 666 (1993). The difficulty here is

that the circumstances are so peculiar that it is at least

debatable whether a likelihood of recurrence is sufficient to

justify standing on a future repetition theory. See, e.g., Yeager

v. Gen. Motors Corp., 265 F.3d 389, 395 (6th Cir. 2001) (finding

plaintiff's possible future injury too speculative to grant him

standing). Since on the merits we find that there was no unlawful

discrimination, the question of whether there would be standing for

this form of relief need not be resolved here.
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B. Affirmative Actions and Strict Scrutiny

There is rich public debate about the issue of

affirmative action. Some argue it is racial discrimination and is

inconsistent with a color-blind constitution, while others believe

that it is necessary to put long-oppressed groups on equal footing

with the majority. Our job is not to endorse one view over the

other, but to simply evaluate the constitutionality of any

racially-motivated governmental program.

The Equal Protection Clause of the Fourteenth Amendment

provides, in part, that "no State shall make or enforce any law

which shall . . . deny to any person within its jurisdiction the

equal protection of the laws." U.S. Const. amend. XIV. The Clause

does not mandate that every citizen be treated identically, rather,

it requires an adequate explanation for treating groups

differently. Race-based distinctions are inherently suspect and

are therefore subject to the most searching examination. Wygant v.

Jackson Bd. of Educ., 476 U.S. 267, 273 (1986). The BPD's

racially-based promotional decision must withstand strict scrutiny

-- the government must show that the classification is narrowly
6 The district court stated that "the burden of persuasion rests

upon the Plaintiffs to show that the promotion decisions were

unconstitutional." Cotter, 193 F. Supp. 2d at 338 (citing Wygant,

476 U.S. at 277-78 (O'Connor, J., concurring)). While it is true

that the ultimate burden of proof in a civil trial lies with the

plaintiffs, the Supreme Court has made clear that the government

has a burden of production to justify a racial preference. See

Adarand, 515 U.S. at 224; cf. United States v. Virginia, 518 U.S.

515, 533 (1996) (placing the burden on the state to justify a

gender classification).

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tailored to further a compelling governmental interest.6 Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).

Whether each proffered reason satisfies strict scrutiny

is a question of law or a question of how the law applies to the

facts; therefore, our review is plenary. Wessmann v. Gittens, 160

F.3d 790, 795 (1st Cir. 1998).

In order to be a "compelling interest," the government

must show that the alleged objective was its actual purpose for the

discriminatory classification and must have a "strong basis in

evidence to support that justification before it implements the

classification." Shaw v. Hunt, 577 U.S. 899, 908 n.4 (1996).

Appellants argue that the Department only presented one

justification for its decision to the HRD, and is therefore barred

from asserting any other motivations. We disagree. Commissioner

Evans testified that there were several reasons for his decision to

depart from strict rank order in awarding promotions, including

remedying past discrimination, avoiding lawsuits, and the

operational needs of the Department. It is plausible that the
7 Appellants also argue that the government is prohibited from

asserting alternative "compelling interests" because if one

interest fails it demonstrates that the action taken by the

government cannot be narrowly tailored, and the entire action

therefore fails. We disagree with this argument. A governmental

actor may have several reasons for racially-motivated action; if

any legitimate reason satisfies strict scrutiny, the action is

constitutional.

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Department did not feel the need to identify the multiple factors

influencing its decision. If any of the justifications is a

compelling state interest, and the City's actions were narrowly

tailored to that end, the City's actions are constitutional.7

C. Remedying Past Discrimination

The City asserts that the race-conscious action was

necessary to ameliorate "vestiges" of past discrimination by the

Department against African-American applicants and officers. The

remedying of past discrimination is a compelling state interest, so

long as there is a "strong basis in evidence for the conclusion

that the [government action] serves a remedial purpose with respect

to past discrimination." Stuart v. Roache, 951 F.2d 446, 450 (1st

Cir. 1991) (citation omitted); Boston Police Superior Officers

Federation v. City of Boston, 147 F.3d 13, 20 (1st Cir. 1998)

(hereinafter "Boston Superior Officers"). There must be evidence

of discrimination specific to the governmental agency seeking to

use racial preference; "societal" discrimination, on its own, will

not support affirmative action. Wygant, 476 U.S. at 276.

"[W]hether past discrimination necessitates current action is a
8 Commissioner Evans stated:

When I came on the Department there [were] very small

numbers of minority officers, and I think there [were]

none in my class of 66, and pretty much my class and

classes before me are running the organization right now,

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fact-sensitive inquiry." Wessmann, 160 F.3d at 802. The "strong

basis in evidence" may consist of "either a contemporaneous or

antecedent finding of past discrimination by a court or other

competent body, or evidence approaching a prima facie case of a

constitutional or statutory violation." Boston Superior Officers,

147 F.3d at 20 (citation omitted).

The Department's history of discrimination is welldocumented by past litigation and records. We outlined the history

of past discrimination at the Department a few years ago in Boston

Superior Officers, where we found:

In 1972, we affirmed a district court's

finding that the BPD discriminated against

black applicants through the use of entrylevel testing procedures that favored whites.

. . . [T]hat discrimination resulted in a

gross racial disparity among the BPD's ranks .

. . .

[Nineteen years later we found] . . . that

racial discrimination in entry-level hiring

had adversely affected blacks' representation

at the rank of sergeant. "Remedial action

takes time," we reasoned, "and discrimination

may linger for many years in an organization

that had excluded blacks from its ranks."

Boston Superior Officers, 147 F.3d at 20 (quoting Stuart, 951 F.2d

at 452). In his deposition, Commissioner Evans also expressed the

concern that remedying past discrimination takes time.

8 The
. . . and I think it takes a while within any

organization, that there has to be role models and other

people in position so that other people will move up and

I think it takes a while for that type of historic

discrimination that was found in Castro v. Beecher to

work itself out. It doesn't happen overnight.

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Department has been working for many years to address racial

disparity and bias within its ranks. In 1965, only two percent of

police officers in the City were not Caucasian, and only one

minority held a position of sergeant or above. In 1978, only fiveand-a-half percent of officers were African-American, and only

three officers held a position of sergeant or above. While the

numbers are more representative today, we are not prepared to rule

that all effects of past discrimination have been eliminated. See

Boston Superior Officers, 147 F.3d at 23 ("Given the BPD's halting

and, at time, quite modest progress in remedying its earlier

discrimination, we are reluctant to infer that the vestiges of that

discrimination had substantially disappeared when the BPD [made the

affirmative action promotion at issue.]").

At the time of the promotions at issue here, the

disparity between the number of African-American officers eligible

for promotion and the number of non-African-American officers

eligible for promotion was statistically significant. One

explanation for this discrepancy is the fact that the rankings were

based, in part, on experience. Because of the well-documented

history of discrimination within the Department, fewer African-
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Americans are in position to be promoted to sergeant. See United

States v. Paradise, 480 U.S. 149, 168 (1987) ("Discrimination at

the entry level necessarily precluded blacks from competing for

promotions, and resulted in a departmental hierarchy dominated

exclusively by nonminorities.").

The Department was faced with facts that its efforts at

remedying past discrimination had not been successful. A public

employer has the requisite firm basis for believing that remedial

action is necessary if there is a statistical disparity between the

racial composition of the workforce and the relevant, qualified

employment pool. Wygant, 476 U.S. at 292 (O'Connor, J.,

concurring); see also Wessmann, 160 F.3d at 803 ("The greater the

disparity [between the number of qualified minority applicants with

those who gain entrance], the stronger the inference that

discrimination is the cause of non-entry.").

In October, 1996 (the latest date before the AfricanAmerican Officers were promoted for which data is available),

African-Americans comprised 25.02% of the BPD's 1,547 officers, but

only 16.49% of the BPD's sergeants. This difference is

statistically significant, and not reasonably attributed to chance.

This disparity is not just a simple assurance of good intention

from the City, but concrete evidence that discrimination existed at

the time the African-American Officers were promoted.
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In addition, as noted above, had the Department promoted

in strict rank order, the selection rate for African-Americans

would have been only three percent, while the selection rate for

Caucasians would have been fifteen percent. This would have

yielded a selection ratio of twenty percent, well below the eighty

percent guideline established by the EEOC, and therefore suggested

adverse impact on minorities. While not "conclusive evidence of

discrimination," this discrepancy in selection rate does serve as

a "'benchmark against which . . . to gauge [the City's] efforts to

remedy past discrimination.'" Boston Superior Officers, 147 F.3d

at 21 (quoting Local 28, Sheet Metal Workers' Int'l Ass'n v. EEOC,

478 U.S. 421, 478 (1986) (plurality opinion)). In this case, the

selection ratio would have been only twenty percent, indicating

that the City had not yet remedied past discrimination.

Commissioner Evans, who made the decision to promote the

African-American Officers, was aware of racial tensions within the

Department. Officers had complained to him about disparate

treatment, including racially-based punishment and job assignment.

Officers had also complained to him that they felt racially

targeted following an incident where a noose was placed on an

officer’s motorcycle.

The City’s evidence of disparity in the promotion of

officers to sergeant, current racial tensions within the

Department, and the documented history of past discrimination
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within the BPD created the strong basis in evidence required for

the Department to conclude that race-conscious action was

necessary. Past discrimination in the hiring of minorities has

limited the opportunity for minorities to move up through the

ranks, and recent statistics show that these effects remain. We

hold that the City has therefore demonstrated that it acted in

response to a compelling state interest -- that of remedying past

discrimination. See Majeske v. City of Chicago, 218 F.3d 816, 823

(7th Cir. 2000), cert. denied, 531 U.S. 1079 (2001) (holding that

statistical evidence of disparity within a police department

coupled with anecdotal evidence of discrimination sufficiently

establishes a compelling state interest that justifies an

affirmative action plan). At this point in time, we find that the

City has presented sufficient evidence that past discrimination

within the Department justified its race-conscious decision.

Next, we determine whether the action taken by the City

in its effort to remedy past discrimination was narrowly tailored

to rectify the specific harm in question. Wessmann, 160 F.3d at

807. We consider several factors in determining whether an

affirmative action order was narrowly tailored, including

the extent to which (i) the beneficiaries of

the order are specially advantaged; (ii) the

legitimate expectancies of others are

frustrated or encumbered; (iii) the order

interferes with other valid state or local

policies; and (iv) the order contains (or

fails to contain) built-in mechanisms which
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will, if time and events warrant, shrink its

scope and limit its duration.

Boston Superior Officers, 147 F.3d at 23 (quoting Mackin v. Boston,

969 F.2d 1273, 1278 (1st Cir. 1992)).

The City departed from strict rank order to promote three

African-American officers out of thirty-six promotions. The

Department would have had to promote twenty African-American

officers to create a situation whereby the percentage of AfricanAmerican officers and African-American sergeants was approximately

equal. The necessity for relief was great, but the means chosen by

the Department were modest -- only three African-American officers

were promoted out of rank -- indicating narrow tailoring. See

McNamara, 138 F.3d at 1224 ("The [narrow tailoring] test is . . .

whether the increase is a plausible lowerbound estimate of a

shortfall in minority representation among [sergeants] that is due

to the [Department's] intentional discrimination in the past.").

Only qualified minorities were promoted; they were

therefore not "specially," or unfairly advantaged by their

promotions. See Boston Superior Officers, 147 F.3d at 24. All

officers were competing for a limited number of spots. Because of

this competition, the City's promotion of the African-American

Officers did not disturb any legitimate, firmly rooted expectations

of the appellants. See id.; accord Mackin, 969 F.2d at 1278. Had

the City not departed from strict rank order, no additional
9 Had the City not considered race in the promotions, only thirty

promotions would have been made -- twenty-nine Caucasian officers

and one African-American officer. As a result of the affirmative

action plan, those same twenty-nine Caucasian officers were

promoted.

10 We need not reach the issues of whether avoiding litigation or

meeting the operational needs of the Department are compelling

state interests. We are skeptical of the first justification,

however: the City's claim that it promoted the African-American

Officers in order to avoid litigation rings hollow, as litigation

nevertheless ensued. We are much more sympathetic to the argument

that communities place more trust in a diverse police force and

that the resulting trust reduces crime rates and improves policing.

This operational needs justification has been cited as a compelling

state interest by other Circuits. See Patrolmen's Benevolent Ass'n

of N.Y., Inc. v. City of N.Y., 310 F.3d 43, 52 (2d Cir. 2002) ("[A]

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Caucasian officers would have been hired.9 See McNamara, 138 F.3d

at 1222 (defining narrow tailoring as that which "discriminates

against Caucasians as little as possible consistent with effective

remediation").

No valid policies have been disturbed by hiring three

qualified African-American sergeants. While Massachusetts law

requires an explanation for promotions made outside of strict rank

order, there is no prohibition on such out-of-rank decisions. See

Mass. Gen. Laws ch. 31, § 27.

Finally, there were no quotas or long-term guidelines

established, and there is nothing in the decision requiring

affirmative action in future decisions. The decision is therefore

limited in scope and duration. We therefore agree with the

district court that the City’s actions were a narrowly-tailored

means of addressing demonstrated past discrimination.10
law enforcement body's need to carry out its mission effectively,

with a workforce that appears unbiased, is able to communicate with

the public and is respected by the community it serves, may

constitute a compelling state interest.") (quotation and citation

omitted); Reynolds v. City of Chicago, 296 F.3d 524, 530 (7th Cir.

2002); McNamara, 138 F.3d at 1222; Wittmer v. Peters, 87 F.3d 916

(7th Cir. 1996); cf. United States v. Paradise, 480 U.S. 149, 167

n.18 (1987) (not deciding whether operational needs could be a

compelling state interest).

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D. Retained Jurisdiction

At the conclusion of its analysis, the district court

sought to eliminate future litigation regarding race-based

decisions by the City. Analogizing to the cy pres doctrine of

trusts and estates, whereby parties may petition the court to

modify the purpose of a gift because the original purpose has

become impractical or impossible, the court retained jurisdiction

to review future race-conscious decisions by the City. The court

held:

Accordingly, this Court will retain

jurisdiction post judgment, and directs the

City, whenever the Department seeks to use

racial factors in hiring or promotion

decisions, to formulate its personnel decision

and then petition the Court for instructions

concerning whether such a racially motivated

decision passes constitutional muster. The

Department shall so petition this Court both

when it "reaches down" to hire or promote a

lower scoring individual on the basis of race,

and when it picks among candidates who are

tied on a civil service exam on the basis of

race. On its part, the Court will give notice

to all affected parties, including MAMLEO, and

promptly will hold a hearing, entertain

argument, and render a decision. Done

properly, such a procedure ought further

predictability, hold down the burgeoning legal
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costs of this sort of litigation, and, most

important, further the general societal

acceptance of the required nuanced balancing.

Cotter, 193 F. Supp. 2d at 356-57.

Whether the district court has the authority to retain

jurisdiction is a question of law that we review de novo. See

David C. v. Leavitt, 242 F.3d 1206, 1209-10 (10th Cir. 2001). If

the court has such discretion, we review its decision for an abuse

of discretion. See id. at 1210.

A federal court may exercise ancillary jurisdiction to

enforce its judgments. Peacock v. Thomas, 516 U.S. 349, 354

(1996); see also 28 U.S.C. § 1367 ("in any civil action over which

the district courts have original jurisdiction, the district courts

shall have supplemental jurisdiction over all other claims that are

so related to claims in the action . . . that they form part of the

same case and controversy."). While a federal court has the power

to retain jurisdiction to enforce its decision, the Supreme Court

has cautioned against the exercise of ancillary jurisdiction "over

proceedings that are entirely new and original." Peacock, 516 U.S.

at 358 (internal quotation omitted).

With respect to the district court’s attempt to retain

jurisdiction over future hiring decisions, neither party addressed

hiring at any point in the litigation. The hiring policies of the

BPD were not before the court, and it therefore lacks authority to

retain jurisdiction over those absent claims. Cf. Rodríguez v.
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Doral Mort. Co., 57 F.3d 1168, 1174 (1st Cir. 1995) ("A federal

district court may not, of its own volition, after the parties have

rested, recast the complaint and, without notice, predicate its

decision on a theory that was neither pleaded nor tried.").

In addition to the standing requirement discussed in Part

IIA, supra, Article III's cases and controversies language

prohibits federal courts from issuing advisory opinions. Preiser

v. Newkirk, 422 U.S. 395, 401 (1975). A court may not "decide

questions that cannot affect the rights of litigants in the case"

before it. Id. (quotation and citation omitted). The issue of

racial preference in hiring by the BPD was never a live, on-going

case or controversy in this litigation, and any future decision by

the district court regarding hiring would simply be an advisory

opinion. The district court therefore lacked subject matter

jurisdiction to retain jurisdiction over hiring decisions of the

Department.

We further conclude that the retention of jurisdiction

over future promotional decisions was an abuse of discretion.

"Ancillary enforcement jurisdiction is, at its core, a creature of

necessity. When a party has obtained a valid federal judgment,

only extraordinary circumstances, if any, can justify ancillary

jurisdiction over a subsequent" action. Peacock, 516 U.S. at 359.

There are simply no extraordinary circumstances in this case

necessitating the retention of jurisdiction.
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First, the district court found in favor of the City, and

upheld the racially-motivated promotional decision. There was no

order by the district court that required enforcement and there is

no longer a live issue in this case. Second, this case is not

analogous to the situations where the Supreme Court has found

continued jurisdiction necessary. Such measures were taken in

school desegregation cases, where retention of jurisdiction was

necessary because of the continued refusal of school districts to

rectify their unconstitutional segregation, and prison reform

cases, where continued jurisdiction was necessary because states

refused to follow court orders. See Regensburger v. City of

Bowling Green, 278 F.3d 588, 598 (6th Cir. 2002) (Batchelder, J.,

concurring) (finding that a case was not analogous to school

desegregation or prison reform cases, and that the district court

therefore abused its discretion in retaining jurisdiction); Sierra

Club v. Lynn, 502 F.2d 43, 66-67 (5th Cir. 1974) (finding no

constitutional basis to support continued exercise of federal

judicial power where no analogy could be made to desegregation

cases). In the present case, the City has done nothing to violate

appellants' constitutional rights, and has never demonstrated

unwillingness to comply with a court order. Further, there is no

evidence that the City will make future unjustified race-based

decisions simply because it has prevailed in this case. The City
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has not behaved in such a way that would require ongoing

supervision of its decisions.

The district court was frustrated in being faced with a

lawsuit challenging affirmative action after what the court

perceived as the City's promise, in a prior lawsuit, that it would

no longer use affirmative action. See Cotter, 193 F. Supp. 2d at

355. We believe that the district court misreads Boston Superior

Officers, which did not include a promise by the City to refrain

from race-conscious decisionmaking. Rather, the fact that the

Department promoted one sergeant, rather than establishing a quota

or some other long-term program, demonstrated that the action was

narrowly tailored. Boston Superior Officers, 147 F.3d at 25.

Furthermore, we explicitly left open the question of whether the

Department could make future race-based decisions. We stated:

Our conclusion that the BPD was justified in

taking race-based remedial action is based

strictly on these unique circumstances, and

does not give the BPD a license to depart from

strict rank order in future promotions.

Whether any similar factors are left that

might warrant future remedial action is a

question that we need not now address . . . .

Id. (emphasis added). So long as the City's actions are

constitutional (as the promotion of the African-American Officers

was in this case), the City is permitted to consider race in its

decisions.

We have no doubt that a lawsuit will be filed should

appellants or anyone else believe that a future racially-motivated
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decision of the Department violates their constitutional rights.

Subject to the standing requirements discussed above, this will

create an actual case or controversy for the federal courts to

adjudicate. Until that time, the court lacks the power and

necessity to decide constitutional issues regarding the City's

promotional decisions.

In short, the district court lacked the subject matter

jurisdiction to retain jurisdiction over future hiring decisions,

and lacked the necessity required to retain jurisdiction over

future promotional decisions. We therefore vacate the district

court's retention of jurisdiction over future race-based decisions

of the Department. "This solution relegates the federal judiciary

to its proper limited position, allows the legislative branch full

sway within constitutional boundaries, and prevents continuing

friction between the federal judiciary and a state entity."

Regensburger, 278 F.3d at 598-99 (Batchelder, J., concurring).

III. Conclusion

"The unhappy persistence of both the practice and the

lingering effects of racial discrimination against minority groups

in this country is an unfortunate reality, and government is not

disqualified from acting in response to it." Adarand, 515 U.S. at

237. The City has sought to remedy its past discrimination within

the Department through the selective promotion of three AfricanAmerican officers. The City's action was constitutional. There is
-29-

no reason for the district court to retain sweeping jurisdiction

over all hiring and promotional race-conscious decisions of the

Department.

We therefore affirm the district court’s decision that

the City’s actions did not violate appellants’ constitutional

rights and reverse the district court’s retention of jurisdiction.

Affirmed in part and reversed in part.