
USCA1 Opinion

	




          July 20, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 91-2207                               LAWRENCE MACKIN, ET AL.,                               Plaintiffs, Appellants,                                          v.                               CITY OF BOSTON, ET AL.,                                Defendants, Appellees                              _________________________                                     ERRATA SHEET                                     ERRATA SHEET               The  opinion of  the  Court  issued  on  July  6,  1992,  is          corrected as follows:               On page 10, line 6, insert "no" between "by" and "means"          July 6, 1992                              _________________________          No. 91-2207                               LAWRENCE MACKIN, ET AL.,                               Plaintiffs, Appellants,                                          v.                               CITY OF BOSTON, ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Walter Jay Skinner, U.S. District Judge]                                              ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                             and Fuste,* District Judge.                                         ______________                              _________________________               Michael D. Powers, with whom Nicholas Foundas was  on brief,               _________________            ________________          for appellants.               Lisa  J. Stark,  Attorney, United  States Dept.  of Justice,               ______________          with whom  John R.  Dunne, Assistant  Attorney General,  David O.                     ______________                                ________          Simon,  Acting Deputy  Assistant Attorney  General, and  David K.          _____                                                    ________          Flynn, Attorney,  United States Dept. of Justice,  were on brief,          _____          for the federal appellee.               Albert W. Wallis, Corporation Counsel, and Stephen C. Pfaff,               ________________                           ________________          Assistant  Corporation  Counsel,  on  brief   for  the  municipal          appellees.               Scott Harshbarger, Attorney General, and William  W. Porter,               _________________                        __________________          Assistant Attorney General, on brief for the state appellee.               Toni G.  Wolfman, Richard M.  Brunell, Foley, Hoag  & Eliot,               ________________  ___________________  ____________________          Alan Jay Rom, and  Lawyers Committee for Civil Rights  Under Law,          ____________       _____________________________________________          on brief for appellee Boston Chapter, N.A.A.C.P., Inc.                              _________________________                              _________________________          _______________          *Of the District of Puerto Rico, sitting by designation.                    SELYA,   Circuit   Judge.     Thirty-five   white  male                    SELYA,   Circuit   Judge.                             _______________          applicants  for  positions in  the  Boston  Fire Department  (the          Department) filed  suit in the  district court  on September  14,          1989.   The plaintiffs alleged  that a bevy  of named defendants,          including the  City of  Boston, various municipal  officials, and          the  state personnel administrator, discriminated against them on          the basis of race both in constituting an eligibility list and in          making appointments  to positions within the  Department by means          of  the list.1  The  district court granted  summary judgment for          the defendants.  We affirm.          I.  BACKGROUND          I.  BACKGROUND                    The  two original  suits  described in  note 1,  supra,                                                                     _____          resulted  in  the entry  of the  so-called  Beecher decree.   See                                                      _______           ___          Boston Chapter, NAACP, Inc., v. Beecher, 371 F. Supp. 507, 520-23          ___________________________     _______          (D. Mass.), aff'd, 504  F.2d 1017 (1st Cir. 1974),  cert. denied,                      _____                                   _____ ______          421 U.S. 910  (1975).  Since 1974, the hiring  of firefighters in          much  of Massachusetts  has  been circumscribed  by this  decree.          Over time,  the decree has  been supplemented by  several consent          decrees  designed  to  implement  administrative  procedures  for          offering examinations, establishing eligibility  lists, releasing                                        ____________________               1The  United  States  joined  the  defendants   in  opposing          plaintiffs' requests for relief.  The government's standing stems          from  the district  court's grant  of its  motion to  consolidate          plaintiffs' suit with two suits filed in the early 1970s, one  of          which was  initiated by the United States,  concerning the entry-          level  exam then  used by  the state and  various municipalities,          including   Boston,  to   screen  applicants   for  firefighters'          positions.    In addition,  the  Boston Chapter  of  the National          Association  for  the  Advancement   of  Colored  People  (NAACP)          intervened  as a  defendant.   It,  too, opposed  the plaintiffs'          requests.                                            3          municipalities from continuing judicial  oversight, and the like.          We understand the  plaintiffs to be challenging  both the Beecher                                                                    _______          decree  and the  consent decrees  entered to  effectuate it.   In          general,  however, we will refer  to the decree  in the singular,          since  it is  the  Beecher decree  that is  the  cynosure of  the                             _______          parties' arguments.                     Unlike   some  30-odd  other  fire  departments  which          heretofore  met the goals of  the decree and  gained release from          its constraints, the City of Boston remains under its aegis.   In          1987, the state personnel administrator, acting on behalf of  the          Department, conducted  a written examination for  the position of          firefighter.    The  personnel  administrator  then  compiled  an          eligibility list  which gave preferential standing  to blacks and          Spanish-surnamed  individuals.2   Despite  the fact  that all  35          appellants earned  perfect scores  on the 1987  examination, they          were ranked  below several  minority candidates who  earned lower          scores.   As a result, appellants were disadvantaged with respect          to vacant firefighter positions.                                        ____________________               2The  eligibility  list  was  assembled   according  to  the          procedures specified in the decree.  See Beecher, 371 F. Supp. at                                               ___ _______          522-23.   Briefly  stated, those  procedures stipulated  that the          candidates  placed  on the  list  must  have  passed  a  properly          validated  qualifying  examination  and  otherwise  have  met all          eligibility requirements  for the  position.  Beyond  that point,          the list was to consist of one minority candidate (i.e., black or          Spanish-surnamed)  for  each   white  candidate.     The   decree          contemplated the  continued use  of statutory preferences  ceding          pride of place to  veterans, children of deceased  or permanently          disabled  firefighters, and the like, see,  e.g., Mass. Gen. Laws                                                ___   ____          Ann. ch.  31,    26,  40 (1992), even  if those persons  achieved          lower test scores than other qualified white candidates.                                          4                    In the  district court, appellants sought  a salmagundi          of  relief, including an order placing their  names at the top of          the  certified  eligibility list  and  an  injunction prohibiting          continued  preferential treatment  of black  and Spanish-surnamed          persons  in connection  with available  firefighting jobs.   They          contended that Boston had met the decree's objectives because, in          1989,  the  Department had  achieved  a percentage  of  black and          Spanish-surnamed  members  higher  than the  percentage  of  such          minorities in Boston's general population  at the time the decree          was  originally entered.   Appellants also  claimed that,  to the          extent anything  remained to  be done, the  decree's ameliorative          purposes  could   be  satisfactorily  accommodated   without  any          affirmative  action  because the  1987  entrance examination  for          firefighters was  race-neutral.  Finally, appellants charged that          the  decree  swept  too broadly  and,  therefore,  should  not be          enforced.                    In due  course, both sides moved  for summary judgment.          The district court denied the  plaintiffs' motion and granted the          defendants' motion.   At  that point, plaintiffs  switched gears,          moving for reconsideration on  completely different grounds.  The          district court denied the motion.  On appeal,  plaintiffs protest          both the entry  of summary  judgment and the  ensuing refusal  to          reconsider.          II.  THE LEGAL LANDSCAPE          II.  THE LEGAL LANDSCAPE                    It  is clear  that,  when a  judicial decree  affording          race-conscious relief is challenged, the decree must be subjected                                          5          to strict scrutiny.  See City of Richmond v. J.A. Croson Co., 488                               ___ ________________    _______________          U.S. 469, 494  (1989) (plurality opinion); Wygant  v. Jackson Bd.                                                     ______     ___________          of Educ., 476  U.S. 267,  273 (1986) (plurality  opinion).   Such          ________          scrutiny requires a  reviewing court to vouchsafe that the relief          is  both  warranted  by  a  strong  state interest  and  narrowly          tailored to further  that interest.   See Stuart  v. Roache,  951                                                ___ ______     ______          F.2d 446, 449  (1st Cir.  1991), cert. denied,  60 U.S.L.W.  3689                                           _____ ______          (1992).    It cannot  be  gainsaid  that,  when a  race-conscious          employment  initiative  is  reasonably necessary  to  remedy  the          effects of past discrimination practiced by a public employer,  a          compelling state interest exists.  See United States v. Paradise,                                             ___ _____________    ________          480 U.S. 149, 167 (1987) (plurality opinion); Stuart, 951 F.2d at                                                        ______          449.  In  this case,  appellants do not  argue that the  original          finding  of discrimination was flawed.  Rather, their focus is on          the continuing need for affirmative action, and particularly, the          need for the type and kind  of affirmative action required by the          Beecher decree.          _______                    Along those  lines,  we believe  that  district  courts          should be flexible in considering requests for relaxation of,  or          release from,  decrees which were initially  established to bring          about  needed institutional  reforms.   See  Rufo  v. Inmates  of                                                  ___  ____     ___________          Suffolk  County Jail,  112 S.  Ct. 748,  760  (1992) (considering          ____________________          motion to  modify a  consent decree).   In the  context of  civil          rights litigation, a central consideration in determining whether          to dissolve structural remedies is whether the agency in question          has come  into compliance with constitutional  requirements.  Put                                          6          another way, an inquiring  court should ask whether the  goals of          the litigation,  as incorporated in the  outstanding decree, have          been completely achieved.  Board  of Educ. v. Dowell, 111 S.  Ct.                                     _______________    ______          630, 636-37 (1991).  Moreover, federal courts, in mulling whether          to relax or abandon their supervision over the operation of local          governmental units, should take federalism concerns into account,          ever mindful  that the  "legal justification for  displacement of          local authority . . .  is a violation of the Constitution  by the          local authorities."  Id. at 637.  An intrusion by a federal court                               ___          into the  affairs of  local government should  be kept to  a bare          minimum  and not be allowed  to continue after  the violation has          abated and its pernicious effects have been cured.                      To  the extent  that  the plaintiffs  here are  seeking          relaxation of one or more consent decrees, see  supra pp. 2-3, it                                                     ___  _____          must  be  remembered  that "a  party  seeking  modification  of a          consent  decree   bears  the   burden  of  establishing   that  a          significant change  in circumstances  warrants a revision  of the          decree."   Rufo, 112 S.  Ct. at 760.   That  party "may meet  its                     ____          initial burden by showing either a significant change in  factual          conditions or  in law."    Id.   Dissolution or  relaxation of  a                                     ___          consent decree  may be justified  in a variety  of circumstances,          for  example, when  "changed factual  conditions make  compliance          with the decree substantially  more onerous."  Id.; see  also id.                                                         ___  ___  ____ ___          at 760-63  (listing other  bases for  modifying  or dissolving  a          consent decree in the context of an institutional reform case).          III.  ANALYSIS          III.  ANALYSIS                                          7                    It is against this backdrop that we turn to appellants'          asseverational array.   We treat serially  with appellants' three          main  arguments.    We  then deal  in  one  fell  swoop  with the          exhortations contained in the motion for reconsideration.                                          A.                                          A.                                          __                    Positing that the decree  contemplates no more than the          achievement   of  minority   representation  in   the  Department          commensurate with the percentage of minorities resident in Boston          at  the time the decree  was entered, appellants  assert that the          Department  has  already  reached  this modest  pinnacle.    Even          assuming that the factual  premise anent the Department's present          composition is true, this postulate tortures the language  of the          decree,  disregards  the   parties'  consistent  practice   while          operating under the decree, and defies common sense.                    First,  the relevant  language  of the  decree is  most          naturally  read  as   referring  to  contemporaneous   population          figures:  "As a city or town achieves a  complement of minorities          commensurate  with  the  percentage  of  minorities   within  the          community,  certification  will  be  made  according  to existing          Massachusetts law."   Beecher,  371  F. Supp.  at 523.   Had  the                                _______          district court and the existing parties intended to embody in the          decree  a stipulation that a community would be released from the          prescribed procedures  upon reaching  a complement  of minorities          commensurate  with  the  percentage  of   minorities  within  the          community in 1974, we  feel confident that the decree  would have          said so.                                          8                    Second,  the  undisputed  evidence concerning  practice          under  the decree  indicates  beyond hope  of contradiction  that          applications for the release  of municipalities from the decree's          burdens   have   universally   been   guided   by  reference   to          contemporaneous  population statistics.    Few things  evidence a          decree's  meaning more persuasively than an immutable, decade-old          pattern of  past practice under the  decree, consensually engaged          in  by all sides in  the underlying litigation  that produced the          decree.                    Third, common sense suggests that it would be whimsical          to  peg parity ratios to obsolete population figures in this sort          of context.   The logical  extension of  appellants' argument  is          that a locality could not be freed from the decree's requirements          even  if its  minority population  dropped precipitously,  to the          point where  the percentage  of minority firefighters  in service          far exceeded the current percentage of minorities in the relevant          population, as  long as  the percentage of  minority firefighters          remained  lower than  the  1974  percentage.    We  think  it  is          farfetched  to  assume that  the  district court  or  the parties          intended the decree to work in so quirky a fashion.                      In  addition  to  the obvious  practical  problems with          using outdated statistics, there are also sound legal reasons for          reading  the terms of the  decree to refer  to current population          levels.   One  implication  of the  recent  Supreme Court  school          desegregation decisions is that  federal courts, at least  in the          minerun of civil  rights and institutional reform cases,  have no                                          9          choice but to make decisions about the maintenance, modification,          or dissolution of structural remedial  orders by referring to the          most current population statistics readily available.  After all,          knowledge of  demographic  shifts is  essential  for  determining          whether patterns of minority representation in state institutions          and  organizations reflect state action, which has constitutional          implications, or private preferences,  which, generally, do  not.          See,  e.g., Freeman v. Pitts,  112 S. Ct.  1430, 1437-38, 1447-48          ___   ____  _______    _____          (1992).  We  think that the  plaintiffs' effort to cling  to 1974          statistics,  notwithstanding  the  availability   of  supervening          census data, contradicts Freeman's teachings.                                   _______                    In sum,  achieving parity in 1974  terms, without more,          was  not a particularly significant datum.   In any event, it did          not   serve,  in  1989,   as  a  legally   sufficient  basis  for          defenestrating the Beecher decree.                             _______                                          B.                                          B.                                          __                    Next, appellants contend that the  decree was satisfied          because the qualifying examination that they passed was validated          under  EEOC guidelines  and  was,  therefore,  nondiscriminatory.          This  argument overlooks the language of the decree itself.  Even          a  cursory   reading  makes  it  crystal   clear  that  validated          examinations  are not  an end  in themselves  but merely  a means          toward achieving the decree's actual objective:  rough parity (to          remedy the  effects of past discrimination).  See, e.g., Beecher,                                                        ___  ____  _______          371  F. Supp. at  522 ("Subsequent to obtaining  the results of a          valid  examination, the defendant  . . .  shall promptly commence                                          10          certifying  applicants as  eligible   for   appointment   [in the          manner  directed  by  the decree]  .  .  .  .");  id.  at  522-23                                                            ___          (specifying that the "hiring procedure shall apply to  all future          eligibility  lists established subsequent  to a valid firefighter          entrance examination").  The  argument to the contrary is  a mere          heuristic.3                                           C.                                          C.                                          __                    The appellants  also hawk  the idea that,  even if  the          goals of the Beecher  decree have not yet been  accomplished, the                       _______          decree is constitutionally infirm  because it sweeps too broadly.          This argument is by no  means a new one.   Over 15 years ago,  we          found  the decree to be narrowly  tailored toward the achievement          of  its legitimate  objectives.   See Beecher,  504 F.2d  at 1027                                            ___ _______          (judging  the  decree  to  be "carefully  limited  in  extent and          duration").  To be  sure, in the intervening years  the tests for          determining whether  remedial race-conscious relief is,  in fact,          narrowly  tailored have been  refined and clarified.   See, e.g.,                                                                 ___  ____                                        ____________________               3The  district court,  noting that  the test's  validity was          disputed,  correctly ruled that the issue was not material.  Even          if the examination was  nondiscriminatory, as appellants alleged,          the  paucity  of   minority  representation  in   the  Department          betokened  a failure to achieve  the central goal  of the decree,          thus  negating any argument that  the purposes of  the decree had          been achieved.    Summary judgment  was, therefore,  appropriate.          See,  e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48          ___   ____  ________    ___________________          (1986) (stating that "the mere  existence of some alleged factual                                                       ____          dispute between the parties will not defeat an otherwise properly          supported motion for summary judgment" absent the existence of  a          genuine issue  of material fact);  Mesnick v. General  Elec. Co.,                                             _______    __________________          950 F.2d 816, 822 (1st Cir.  1991) ("Not every discrepancy in the          proof  is  enough to  forestall a  properly supported  motion for          summary judgment;  the disagreement  must relate to  some genuine          issue  of material fact."), petition for cert. filed, 60 U.S.L.W.                                      ________________________          3689 (U.S. March 9, 1992).                                          11          Paradise,  480 U.S.  at 177-79  (plurality opinion);  Stuart, 951          ________                                              ______          F.2d  at   453-55.     But,  that   process  of   refinement  and          clarification does  nothing to call  the adequacy of  the instant          decree into serious question.                     We will  not wax longiloquent.   In determining whether          or  not an order is  narrowly tailored, a  significant measure of          deference  is  owed  to  the  trial  court's  conclusion  that  a          particular kind of  relief is essential to heal  a constitutional          wound.   See Paradise, 480 U.S. at  183 (plurality opinion).  The                   ___ ________          district  court,  unlike the  court  of  appeals, "has  firsthand          experience  with the parties and  is best qualified  to deal with          the 'flinty,  intractable realities of  day-to-day implementation          of  constitutional commands.'"   Id.  at 184  (citation omitted).                                           ___          While a district court's discretion is not unbridled, a reviewing          court, in assessing whether  a remedy is narrowly tailored,  must          bear in mind that the fashioning of a structural decree, like the          decision as  to whether to modify or dissolve it, is at bottom an          exercise of  equitable power.  See  Freeman, 112 S.  Ct. at 1444.                                         ___  _______          Given  this  deferential  standard  of  review,  appellants   are          whistling past the  graveyard   albeit whistling  rather loudly            in  inveighing  against  the   reach  of  the  decree's  remedial          provisions.                      In  assessing  an  overbreadth challenge  to  an  order          directing  race-conscious  relief   in  the  context  of   public          employment, a court  should consider, inter  alia, the extent  to                                                _____  ____          which  (i)   the  beneficiaries   of  the  order   are  specially                                          12          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  will, if time  and          events warrant, shrink  its scope  and limit its  duration.   The          Beecher decree passes this test with flying colors.          _______                    In this  case, only  qualified minority  candidates are                                         _________          specially  advantaged; no  minority  candidate is  placed on  the          eligibility list unless he or she has attained a passing score on          the  entrance examination.    This is  an  important indicium  of          narrow tailoring.   See Stuart, 951 F.2d at  454.  Relatedly, the                              ___ ______          decree does not require that minority aspirants be appointed, nor          does it dispense with the statutory preferences mandated by state          law.   Thus,  the decree  gives only a  limited advantage,  not a          guarantee of employment, to minority applicants.  This, too, is a          significant factor.   See  Johnson v. Transportation  Agency, 480                                ___  _______    ______________________          U.S. 616, 638 (1987)  (approving affirmative action plan because,          among  other  things,  rather  than mandating  quota  hiring,  it          "merely authorize[d] that  consideration be given  to affirmative          action  concerns when  evaluating qualified  applicants").   As a          result of these features,  it can appropriately be said  that the          Beecher  decree "is not being used simply to achieve and maintain          _______          racial balance, but rather as a benchmark against which the court          could gauge . . . efforts to remedy  past discrimination."  Local                                                                      _____          28,  Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 477-          _____________________________________    ____                                          13          78 (1986) (plurality opinion).                    Moreover,  the  failure  to  appoint  more high-scoring          white applicants under the  decree disturbs no legitimate, firmly          rooted  expectations on the part of those applicants.  The record          shows that, when appellants sought appointment to the Department,          there were  many white candidates with  statutory preferences and          perfect tests  scores, and  few firefighters' vacancies.   Hence,          irrespective of the decree,  appellants could not reasonably have          felt assured that  they would  be appointed.   This factor,  too,          counsels in favor  of upholding the decree.  See Stuart, 951 F.2d                                                       ___ ______          at 454.                      Finally,  the decree's  life  is limited,  remaining in          force  only until its requirements  have been met.   See Beecher,                                                               ___ _______          371 F.  Supp.  at 523  (providing  for release  from  appointment          process  mandated by the decree  "[a]s a city  or town achieves a          complement  of minorities  commensurate  with  the percentage  of          minorities  within the community").  Limitations of this sort are          crucial  factors  in  deflecting  overbreadth  challenges.    See                                                                        ___          Stuart,  951 F.2d  at  454.   Indeed, the  proof  of the  present          ______          pudding  is  that, since  1974, more  than  fifty percent  of the          communities originally  affected by the decree  have already been          freed from further oversight.                     Mindful  of  these  realities,  we  conclude  that  the          Beecher decree is tailored with sufficient precision to withstand          _______          the appellants' imprecations.                                          D.                                          D.                                          __                                          14                    On   the   motion   for   reconsideration,   appellants          unsuccessfully attempted to raise two additional arguments.  They          claimed,  first,  that the  Department's  achievements  under the          decree  should be measured not by reference to the census figures          for  black  and  Spanish-surnamed  individuals  in  the   general          population, but by reference to the census of such persons age 18          or older, thus  dovetailing more snugly  with the relevant  labor          pool.    They also  suggested  that  blacks and  Spanish-surnamed          individuals should be considered separately; and that, therefore,          black aspirants should not be entitled to a continuing preference          as Boston had exceeded  the decree's goals with respect  to black          firefighters.                     We need not  dwell on the substance of these arguments.          It is settled law  that, once a motion to dismiss or a motion for          summary  judgment  has  been  granted,  the  district  court  has          substantial  discretion   in  deciding  whether  to   reopen  the          proceedings in order to allow the unsuccessful party to introduce          new  material  or  argue a  new  theory.    See Mariani-Giron  v.                                                      ___ _____________          Acevedo-Ruiz, 945 F.2d  1, 3 (1st Cir. 1991); United  States v. 5          ____________                                  ______________    _          Bell Rock  Road, 896 F.2d 605, 611 (1st Cir. 1990); Appeal of Sun          _______________                                     _____________          Pipe Line Co., 831 F.2d 22, 25 (1st Cir. 1987), cert. denied, 486          _____________                                   _____ ______          U.S.  1055 (1988);  Polyplastics, Inc.  v. Transconex,  Inc., 827                              __________________     _________________          F.2d  859, 864 n.4 (1st  Cir. 1987); Pagan  v. American Airlines,                                               _____     __________________          Inc., 534 F.2d  990, 992-93  (1st Cir. 1976).   Consequently,  we          ____          will overturn the trial court's decision on such a matter only if          an  appellant can persuade us that the refusal to grant favorable                                          15          reconsideration  was a clear abuse of discretion.  Sun Pipe Line,                                                             _____________          831 F.2d at 25; Pagan, 534 F.2d at 993.                          _____                    Here, there is not so much as a whisper of a hint of an          intimation  of an abuse of discretion.  The statistics upon which          appellants  belatedly sought  to rely  (in order  to show  a more          precisely defined labor pool)  were available to them all  along.          Moreover, those statistics, fairly  read, likely tell a different          story than  appellants  intend to  convey.   The  most  pertinent          "labor pool" information that can be gleaned from the 1980 census          figures  is   the  head  count  of   black  and  Spanish-surnamed          individuals who  were ten years  of age,  or older, in  1980    a          number which would give some approximate indication of the number          of black and  Spanish-surnamed individuals who, in 1989, were old          enough to be considered for  firefighters' positions.4  Based  on          those figures, a continuing  lack of parity in the  Department is          statistically evident.                    Appellants' other "new" argument    that the percentage          figures for  black  and Spanish-surnamed  individuals  should  be          dismembered, so that once parity with the percentage of blacks in          the  labor  force  is   achieved,  the  decree's  guidelines  for          certifying  blacks to  the  eligibility list  should be  lifted            fares  no better.  Once again, the argument relied on information          that  was  available  well  before  the  time suit  was  started.          Moreover, such  an approach clearly contradicts the format of the                                        ____________________               4Under  state law,  see Mass. Gen.  Laws Ann.  ch. 31,    58                                   ___          (1992),  firefighters must be at least 19 years of age to qualify          for appointment.                                          16          original litigation, which constituted  combined classes of black          and  Spanish-surnamed persons,  not separate  black and  Spanish-          surnamed  classes.  It also  contradicts the clear  intent of the          decree and an  unbroken skein of  preexisting practice under  the          decree's terms.                    When the  losing  party  seeks  reconsideration  of  an          adverse  judgment  on  a neoteric  theory,  factors  such as  due          diligence and  likelihood of  success must weigh  heavily in  the          balance.  Where,  as here, the movants'  newly emergent arguments          seem weak and the movants have  offered no viable excuse for  not          advancing those  arguments in a  timely fashion when  the parties          cross-moved for  summary judgment, we  are unable to  discern any          principled  basis on  which the  district court's  denial  of the          motion for reconsideration might be overturned.  In this case, as          in most similarly postured cases, the district court's refusal to          allow appellants the  opportunity to revisit  the barn after  the          horse has departed cannot be considered an abuse of discretion.          Affirmed.          Affirmed.          ________                                          17
