Donahue v. Boston, City Of

United States Court of Appeals
For the First Circuit

No. 02-1027
BRADLEY J. DONAHUE,
Plaintiff, Appellant,

v.
CITY OF BOSTON, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]

Before
Torruella and Lipez, Circuit Judges,
and Schwarzer,* Senior District Judge.

Michael C. McLaughlin, for appellant.
Rory FitzPatrick, with whom Irene C. Freidel, Charles J. Dyer,
Kirkpatrick & Lockhart LLP, and William V. Hoch were on brief, for
the City of Boston appellees.
William E. Reynolds, Assistant Attorney General, Government
Bureau, with whom Thomas F. Reilly, Attorney General, were on
brief, for the state appellees.
Toni G. Wolfman, with whom Foley, Hoag & Eliot LLP, Nadine M.
Cohen, and Maricia Woodham of the Lawyer's Committee for Civil
Rights, were on brief, for appellees The Massachusetts Association
of Minority Law Enforcement Officers and the Boston Chapter of the
National Association for the Advancement of Colored People, Inc.

September 5, 2002

*
Of the Northern District of California, sitting by designation.
 TORRUELLA, Circuit Judge. Appellant Bradley Donahue

brought suit in the district court challenging, on equal protection

grounds, an affirmative action program for the hiring of Boston

police officers. The program is the product of a consent decree

entered in 1973. See Castro v. Beecher, 365 F. Supp. 655 (D. Mass.

1973). After concluding that Donahue failed to establish standing

to assert his claims, the district court entered judgment adverse

to Donahue on all claims. For the reasons stated below, we affirm

in part and reverse in part.

I. FACTS AND PROCEDURAL HISTORY

A. The selection process

To be eligible for appointment to the Boston Police

Academy ("the Academy"), a candidate must take a statewide civil

service examination.1 The examination is administered by the

Commonwealth of Massachusetts Human Resources Division ("HRD").

After HRD administers the exam, it compiles an "eligible list"

setting forth those people who received a passing score on the

examination (a score of at least seventy is considered passing).

In accordance with the terms of the consent decree, HRD assembles

the eligible list by alternating minority and non-minority

candidates. All individuals on the eligible list are considered
qualified for appointment to a civil service position.

1
In accordance with the terms of the consent decree, the civil
service exam has been validated under the testing guidelines of the
Equal Employment Opportunity Commission, see 29 C.F.R. pt. 1607
(1978).

-2-
 The candidates on the eligible list are then divided into

residents and non-residents of Boston. Residents, regardless of

score, are ranked higher than non-residents. Within the group of
residents, candidates with so-called "statutory preference" receive

an additional boost on the eligible list. The categories of

statutory preferences include: (1) the children of firefighters or
police officers who were killed or sustained injuries that resulted

in death; (2) disabled veterans; (3) veterans; and (4) widows or

widowed mothers of veterans who were killed in action or died from

a service-connected disability incurred in wartime service. The

candidates with a statutory preference are all ranked higher than

those without a statutory preference. Candidates without a

statutory preference or the requisite language skills are ranked
according to their scores on the civil service examination, subject

to the alternation requirement of the consent decree.

When the time comes to hire a new class of student
officers, the Boston Police Department ("BPD") requisitions a

"certification list" from HRD to fill the positions. HRD then

certifies sufficient names from the eligible list available for

appointment. Starting from the top of the eligible list, and

moving down in strict rank order, HRD creates the certification

list by certifying roughly twice the number of persons requested by

BPD. Subject to background checks on all candidates on the

certification list, BPD must select candidates for appointment in

order of their position on the list, starting with the

highest-ranking person, unless it supplies a reason for bypassing

-3-
someone. Special certification lists are also created for those

candidates who qualify for a hiring preference based on their

ability to speak Spanish, Vietnamese, and French-Creole.
Typically, BPD hires one person for every three persons listed on

the general certification list.

In addition to this hiring procedure, BPD can hire new
officers in three other ways. The first such mechanism is the

appointment of police officers from a statutorily-created police

cadets program.2 Second, former members of BPD who retired because

of a disability may seek reinstatement to their former positions.

See Mass. Gen. Laws ch. 32, § 8. And finally, the Massachusetts

Criminal Justice Training Council has promulgated regulations that

allow an appointing authority to recycle former recruit officers
into a subsequent Academy class. See 550 Code Mass. Regs.

§ 3.04(1)(e).

B. The April 1997 exam

Donahue, a white male, took the statewide civil service

examination administered by HRD on April 26, 1997. He received a
passing score of ninety-two and was thus placed on the eligible

2
The cadet program is authorized by state statute, see 1984 Mass.
Acts ch. 277, which permits the Boston Police Department to hire up
to 33 percent of its new officers each year from the program, see
1979 Mass. Acts ch. 560. The program enables the BPD to recruit
prospective candidates for entry-level police officer positions
from all areas of Boston by employing police cadets to perform
administrative duties while obtaining some basic experience and
training. Once a person is a cadet for two years, passes the
statewide civil service examination, and successfully completes the
same screening procedures used to evaluate applicants from the
certification list, that person can be appointed to the Academy.

-4-
list. Donahue does not qualify for a statutory preference, nor

does he possess the language skills that would place him on a

special certification list. Donahue's name appears at page twenty-
seven of the eligible list.

In response to BPD's requisition, HRD provided a

certification list containing the names of the top 157 candidates
who were eligible for appointment. In addition, HRD provided three

special certification lists of persons who qualified for a hiring

preference based on their ability to speak Spanish, Vietnamese, or

French-Creole, respectively. On June 10, 1998, BPD appointed

eighty-three people to the Academy, comprised of: (1) thirty-seven

officers from the general certification list; (2) ten from the

special language certification lists; (3) one disability retiree;
(4) thirty-one cadets; and (5) four officers from a previous

Academy class. All thirty-seven officers appointed from the

general certification list qualified for a statutory preference.
The last non-minority hired was a veteran whose name appears on

page three of the eligible list.

Later, BPD decided that it was necessary to appoint

another class of officers from the same eligible list that was

created from the results of the April 1997 exam. In response to

BPD's requisition, HRD issued a certification list containing 163

names. Additional special certification lists were created with

the names of those candidates with the requisite language skills.

On May 12, 1999, BPD appointed fifty-six people to the Academy,

comprised of: (1) thirty-one officers from the general

-5-
certification list; (2) four from the language certification lists;

(3) one disability retiree; (4) seventeen cadets; and (5) three

officers recycled from a previous class. Of the thirty-one
officers appointed from the general certification list, eighteen

had statutory preferences. The thirteen officers without statutory

preference, all minority candidates, scored higher on the exam than
Donahue.

The lowest-ranking non-minority applicant who was

appointed to the May 1999 class was an individual whose name

appeared on page four of the eligible list, while Donahue's name

appeared on page twenty-seven. Since the names on the eligible

list alternate between minority and non-minority, there were more

than 580 non-minority names between the lowest-ranking non-minority
appointee and Donahue.

C. The May 1999 Exam

On May 8, 1999, HRD administered another statewide civil
service entrance examination. Donahue passed this examination with

a score of ninety-six. On March 5, 2001, consistent with the
procedure we have already described, BPD appointed forty-nine new
police officers, comprised of thirty-three candidates from the

general certification list and sixteen from the cadet program.
Twenty-six officers appointed from the general certification list
qualified for a statutory preference. The seven without statutory

preferences were all minority candidates certified to the list
pursuant to the alternation requirement of the consent decree.

-6-
Although six of these candidates had exam scores greater than

Donahue's, one minority appointee had a lower exam score.

The lowest-ranking non-minority applicant appointed was
an individual whose name appears on page two of the eligible list,

at number ninety-one. Meanwhile, Donahue's name appears on page

seven of the eligible list, at number 326. Thus, there were 117
non-minority candidates between the last non-minority appointee and

Donahue.

D. Proceedings in the district court and the April 2001 exam

Donahue filed his complaint on May 10, 2000, asserting
claims of discrimination under the Fourteenth Amendment to the

United States Constitution and 42 U.S.C. §§ 1981 and 1983. The
complaint names as defendants the City of Boston, the BPD, and the
Commissioner of the BPD (collectively, "appellees"). Donahue also

asserted claims under 42 U.S.C. §§ 1985 and 1986 against several
state officials (collectively, "state appellees") based on their
failure to comply with certain public record requests. Donahue's

complaint prayed for injunctive, monetary, and declaratory relief.
After filing his complaint, Donahue took the civil
service examination again on April 26, 2001, receiving a passing

score of 100. BPD requisitioned a certification list in order to
hire police officers from the class of individuals that took that
exam. In response, HRD forwarded a certification list dated

September 14, 2001. Donahue's name does not appear on that
certification list. Appellees contend that, because Donahue had

reached the age of thirty-two when he took the April 2001 exam, he

-7-
was ineligible for appointment to the Academy under a recent state

statute which provides that, in any municipality that adopts the

statute, no person who has reached his thirty-second birthday on
the date of the entrance examination shall be eligible to have his

name certified for "original appointment" to a municipal police

officer position.3 2000 Mass. Acts ch. 242 ("Chapter 242")
(codified at Mass. Gen. Laws ch. 31, § 58A).

On May 30, 2001, appellees moved for summary judgment on

the ground that Donahue lacks constitutional standing to assert the

claims set forth in his complaint. On September 13, 2001, Donahue

cross-moved for summary judgment, claiming that the undisputed

facts demonstrate that the consent decree is unconstitutional. On

October 30, 2001, Donahue also moved for leave to amend his first
amended complaint to add a claim based on the results of the April

2001 exam and to assert a challenge to the constitutionality of

Chapter 242.

3
The entire text of the statute reads:

Notwithstanding the provisions of any general
or special law to the contrary, in any city,
town or district that accepts this section, no
person shall be eligible to have his name
certified for original appointment to the
position of firefighter or police officer if
such person has reached his thirty-second
birthday on the date of the entrance
examination. Any veteran shall be allowed to
exceed the maximum age provision of this
section by the number of years served on
active military duty, but in no case shall
said candidate for appointment be credited
more than four years of active military duty.

Mass. Gen. Laws ch. 31, § 58A.

-8-
 In a memorandum and order dated December 13, 2001, the

district court granted appellees' motion for summary judgment.

Donahue v. City of Boston, 183 F. Supp. 2d 202 (D. Mass. 2001). By
orders entered December 14, 2001, the district court denied as moot

Donahue's motion for summary judgment and his motion to amend the

first amended complaint. Donahue's timely appeal followed.

II. ANALYSIS

Donahue makes numerous assertions of error on the part of

the district court. Distilled to their essence, however, Donahue's

arguments fall into three basic categories. First, Donahue argues
that the district court erred in concluding that he lacked standing

to assert an equal protection claim seeking both prospective and
retrospective relief. Second, he argues that the court below
abused its discretion in denying his motion to amend. Finally, he

claims error in the district court's entry of judgment on his
claims against the state appellees. We address these issues
separately.

A. Standing

The standing doctrine is grounded in the
case-or-controversy requirement of Article III. Allen v. Wright,

468 U.S. 737, 750 (1984). "In essence the question of standing is

whether the litigant is entitled to have the court decide the

merits of the dispute or of particular issues." Warth v. Seldin,

422 U.S. 490, 498 (1975). The "irreducible constitutional minimum

-9-
of standing" contains three requirements.4 Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992). First, a plaintiff seeking to

invoke a federal court's jurisdiction must show that he has
"suffered or is threatened by injury in fact to a cognizable

interest." Save Our Heritage, Inc. v. Fed. Aviation Admin., 269

F.3d 49, 55 (1st Cir. 2001); see also Defenders of Wildlife, 504
U.S. at 560. The asserted injury must be "(a) concrete and

particularized; and (b) actual or imminent, not conjectural or

hypothetical." Defenders of Wildlife, 504 U.S. at 560 (citations

and internal quotation marks omitted). Second, the plaintiff must

show a causal connection between the asserted injury and the

challenged action of the defendant; this causal connection cannot

be overly attenuated. Id. And third, the plaintiff must show that
it is likely -- rather than merely speculative -- that "the injury

will be redressed by a favorable decision." Id. at 561.

"[S]tanding is gauged by the specific common-law,
statutory or constitutional claims that a party presents." Int'l

Primate Prot. League v. Adm'rs of Tulane Educ. Fund, 500 U.S. 72,

77 (1991). That is, "the standing inquiry requires careful

judicial examination of . . . whether the particular plaintiff is

entitled to an adjudication of the particular claims asserted."

Allen, 468 U.S. at 752 (emphasis added). Thus, a plaintiff must

ensure that he establishes standing for each claim and for each

4
Only the constitutional requirements of standing are at issue
here; the elements of prudential standing are not implicated by
this case. See generally William A. Fletcher, The Structure of
Standing, 98 Yale L.J. 221, 251-53 (1988).

-10-
form of relief sought. See Adarand Constructors, Inc. v. Peña, 515

U.S. 200, 210-11 (1995).

In reaching its determination with respect to standing,
the district court did not differentiate between Donahue's claim

for retrospective relief in the form of damages and his claim for

prospective relief in the form of an injunction and declaratory
judgment. Because we perceive crucial analytical differences

between the two claims, we scrutinize them independently of one

another. Our review of the district court's ruling on standing is

plenary. Nyer v. Winterthur Int'l, 290 F.3d 456, 459 (1st Cir.

2002).

1. Damages claim

Donahue argues that he is entitled to pursue his damages
claim because he was denied appointment to the BPD under a facially

race-conscious hiring policy. In contrast, appellees argue that
Donahue lacks standing to assert his claim for damages because he
cannot demonstrate that he would have been hired under race-neutral

criteria. We agree with appellees that Donahue cannot establish
standing to claim damages.
The Supreme Court addressed a similar issue in Texas v.

Lesage, 528 U.S. 18 (1999) (per curiam). In Lesage, a white
plaintiff brought an equal protection action under 42 U.S.C. § 1983
for monetary damages after unsuccessfully applying to a doctoral

program at the University of Texas. Id. at 19. Although the
university did not dispute that race was a factor considered at

some stages of the admissions process, id., the district court

-11-
granted summary judgment to the university, reasoning that the

plaintiff would have been denied admission even if race had not

been a factor in the admissions process, id. at 20. Reversing the
district court, the Fifth Circuit held that the plaintiff's chances

under a color-blind admissions scheme were irrelevant if he could

prove that his application was treated differently because of race.
Id. The Supreme Court then reversed the Fifth Circuit, holding

that the government was entitled to summary judgment on the damages

claims. The Court stated, "[s]imply put, 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.
In this case, Donahue's complaint alleged three instances

in which he was passed over for appointment to the Academy. The

first two instances stemmed from hiring decisions based on the
results of the April 1997 exam. On that exam, roughly 580 non-

minority applicants scored higher than Donahue but were not

considered for appointment. Thus, in order for Donahue to have

been appointed based on his April 1997 exam scores under an

otherwise race-neutral policy, all of these applicants would have

to be considered and rejected. The situation was similar when

Donahue was passed over for a third time, based on the results of

the May 1999 exam. There, roughly 120 non-minority applicants

scored higher than Donahue but were also denied appointment. Under

a race-neutral policy, the BPD would have had to consider and

-12-
reject all of these candidates before Donahue was offered a

position.

It is plain from the undisputed evidence that,
notwithstanding the race-conscious elements of the consent decree,

Donahue was too far down the list to be even remotely considered

for hiring in any of the three instances of which he complains. It
follows unavoidably from Lesage that Donahue's damages claim is

therefore doomed to fail.5
This would ordinarily be the end of our inquiry on this

claim. However, the fact that this question comes to us as one

framed in terms of Article III standing -- which is, of course,

jurisdictional in nature -- adds one significant consideration.

That is, this Court must resolve questions pertaining to its
subject-matter jurisdiction before it may address the merits of a

case. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,

101-02 (1998); see generally Scott C. Idleman, The Demise of

5
Donahue attempts to avoid this conclusion by arguing that, since
he is the only BPD applicant to have filed a lawsuit and other
unsuccessful non-minority applicants have now forfeited their
rights, he is essentially the "next in line" for an appointment to
the BPD. While this argument demonstrates admirable creativity, it
is not persuasive. A litigant cannot use the fact that he filed
his lawsuit to bootstrap an argument against potential standing and
causation deficiencies in the very same lawsuit.

Donahue also argues at some length that appellees are
implementing the terms of the consent decree incorrectly by hiring
new officers from the cadet program. It is unclear how this
allegation bears on Donahue's claim that he was discriminated
against based on his race. To the extent he intimates that the
cadet program is being operated based on a racial quota system, he
offers little more than speculation as to the program's supposedly
discriminatory operation. Nor does he contend that he applied for
the cadet program but was denied entrance due to unlawful racial
considerations.

-13-
Hypothetical Jurisdiction in the Federal Courts, 52 Vand. L. Rev.

235 (1999) (examining the effects of Steel Co.'s prohibition on

exercising "hypothetical jurisdiction"). We must therefore
determine whether Donahue's inability to establish that he would

have received the benefit he sought under a race-neutral policy

warrants dismissal based on standing, or, alternatively, whether
this deficiency in his case goes only to the ultimate merits of the

claim. We hold that, in this case, dismissal for want of standing

was appropriate.

By its own terms, the Court's decision in Lesage does not

specifically address standing. Nevertheless, we read Lesage as

clarifying the "injury in fact to a cognizable interest" that is

required to support standing for Donahue's damages claim.6 Save

Our Heritage, 269 F.3d at 55; see also 1 Ronald D. Rotunda & John

E. Nowak, Treatise on Constitutional Law § 2.13, at 29 (2002 Supp.)

(suggesting that Lesage is pertinent to evaluating standing for
damages claims). Injury-in-fact is a touchstone of the standing

6
It is noteworthy that Donahue did not assert a claim of race
discrimination under Title VII, which makes it unlawful for an
employer to consider race as "a motivating factor for any
employment practice, even though other factors also motivated the
practice." 42 U.S.C. § 2000e-2(m). An employer who violates this
provision may still be held liable for declaratory relief, certain
limited injunctive relief, and attorney's fees, even though the
employer would have taken the same action in the absence of the
impermissible motivating factor. Id. § 2000e-5(g)(2)(B). Congress
is empowered to create substantive rights and to authorize suit for
their enforcement. Consequently, Congress may define an injury, as
it did in Title VII, in a way that provides the basis for standing
even in the absence of other injury to the plaintiff. See
Defenders of Wildlife, 504 U.S. at 580 (Kennedy, J., concurring in
part and concurring in the judgment). But as Donahue made no claim
under Title VII, we need not consider its implications for his
standing to sue.

-14-
inquiry, and the Lesage decision states in no uncertain terms that,

unless the plaintiff can demonstrate that he would have received

the sought-after benefit under race-neutral criteria, "there is no
cognizable injury warranting relief under § 1983." 528 U.S. at 21.

Without the ability to establish a cognizable injury that would

warrant the type of relief sought, a plaintiff cannot demonstrate
the requisite injury, the causal link between the injury and the

defendant's conduct, or redressability for the injury.

A recent decision from one of our sister circuits

underscores the point. In Aiken v. Hackett, 281 F.3d 516 (6th Cir.

2002), petition for cert. filed, 70 U.S.L.W. 3742 (May 20, 2002)

(No. 01-1707), the Sixth Circuit addressed an equal protection

claim by several white police officers who sought and were denied
promotions to the position of sergeant. The promotion system was

governed by a consent decree that required a certain number of

minority candidates to be promoted. Id. at 518. Although some
white officers would have received the promotion in the absence of

a racial preference, the Aiken plaintiffs were not among them. As

the court stated, it was "beyond debate that . . . [the plaintiffs]

still would not have been promoted to sergeant," as it was their

"composite [test] scores (not the City's affirmative action

program) [that] kept them from being promoted." Id. at 519.

Accordingly, the court held that the plaintiffs lacked standing to

seek retrospective relief, reasoning as follows:

If the plaintiffs allege that a racial
preference cost them some benefit under a
government program, those plaintiffs may have
alleged an injury in fact. But if those same

-15-
 plaintiffs cannot also allege and show that
"under a race-neutral policy" they would have
received the benefit, those plaintiffs have
not alleged an injury in fact because they
have not alleged an invasion of some interest
that the law protects.

Id.

At least one circuit, however, has concluded that an

equal protection plaintiff who seeks damages in a challenge to an

affirmative action plan need not demonstrate, for purposes of

standing, that he would have received the sought-after benefit in

the absence of considerations of race. See Wooden v. Bd. of

Regents of the Univ. Sys. of Ga., 247 F.3d 1262, 1279 (11th Cir.

2001). The Wooden court reasoned that "the injury in these kinds
of cases is not the denial of the sought-after benefit, but rather

the direct exposure to unequal treatment." Id. at 1280. The court

reasoned further that the plaintiff's inability to show that he
would have ultimately obtained the benefit under race-neutral

criteria under Lesage "goes less to standing than it does to [his]

ability to succeed on the merits of his claim." Id.

Our analysis hews closer to Aiken than Wooden. We think

that Lesage is a clear cue from the Supreme Court that we cannot

apply identical standing analyses to claims for damages and claims

for prospective relief. It is equally apparent, in light of

Lesage, that the "equal footing" analysis is applied only in claims

for the former type of relief.7 Our standing inquiry on the claim

7
Although a plaintiff might be able to demonstrate that he was
prevented from competing on equal footing, it is unclear how such
a plaintiff would satisfy the element of redressability necessary
to assert a claim for damages. Lesage plainly dictates that

-16-
for damages therefore asks whether Donahue can demonstrate that,

under a race-neutral policy, he would have received the benefit for

which he now seeks compensation.
To be sure, cases will arise where, because the issues of

causation and injury are disputed and fact-intensive, the

plaintiff's inability to demonstrate damages should be treated as
a merit-based question. See, e.g., Mt. Healthy Bd. of Educ. v.

Doyle, 429 U.S. 274, 287 (1977) (holding that, even if the

government has considered an impermissible criterion in making a

decision adverse to the plaintiff, it can defeat liability by

proving as an affirmative defense that it would have made the same

decision absent the forbidden consideration). But in Donahue's

case, his inability to qualify for hiring on race-neutral grounds
is so overwhelmingly established that any claim to the contrary

would be "wholly insubstantial and frivolous." Bell v. Hood, 327

U.S. 678, 682-83 (1946). Where the absence of causation and a
relevant injury-in-fact are presented with such clarity, dismissal

for lack of subject-matter is justified. See Steel Co., 523 U.S.

at 89 (holding that dismissal for lack of subject-matter

jurisdiction is proper when "the claim is 'so insubstantial,

implausible, foreclosed by prior decisions . . . , or otherwise

completely devoid of merit as not to involve a federal

controversy.'") (quoting Oneida Indian Nation v. County of Oneida,

414 U.S. 661, 666 (1974)); accord Verizon Md., Inc. v. Pub. Serv.

damages may only be awarded based on a showing that the plaintiff
would have received the benefit absent the unlawful discrimination.

-17-
Comm'n, 122 S. Ct. 1753, 1759 (2002); Owasso Indep. Sch. Dist. No.

I-011 v. Falvo, 122 S. Ct. 934, 938 (2002). We therefore affirm

the ruling of the district court with respect to Donahue's claim
for damages.

2. Claim for prospective relief

As we have already noted, standing to assert an equal

protection claim for prospective relief is viewed through a

different prism. The crucial difference between claims for damages

and claims for prospective relief was summarized by the Lesage

Court in this manner:
[A] plaintiff who challenges an ongoing
race-conscious program and seeks
forward-looking relief need not affirmatively
establish that he would receive the benefit in
question if race were not considered. The
relevant injury in such cases is "the
inability to compete on an equal footing."

528 U.S. at 21 (quoting Northeastern Fla. Chapter of Assoc. Gen.

Contractors v. Jacksonville, 508 U.S. 656, 666 (1993)); accord

Adarand, 515 U.S. at 211; Richmond v. J. A. Croson Co., 488 U.S.

469, 493 (1989) (plurality opinion). In other words, a plaintiff
may establish standing for prospective relief if he has or is
likely to be "expos[ed] to unequal treatment." Wooden, 247 F.3d at

1279. However, because the relief sought is forward-looking, the
plaintiff must also be able to show that he is "able and ready" to
apply for the benefit and that the challenged "discriminatory

policy prevents [him] from doing so." Jacksonville, 508 U.S. at

666; see also O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)

("Past exposure to illegal conduct does not in itself show a

-18-
present case or controversy regarding injunctive relief . . . if

unaccompanied by any continuing, present adverse effects.").

Notwithstanding the appellees' various arguments to the
contrary, we think it is plain that Donahue was denied the

opportunity to compete on equal footing in the BPD's hiring process

on account of his race. It is not disputed that at least one
minority candidate -- one with no statutory preference or language

skills -- was appointed to the Academy despite having scored lower

than Donahue on the May 1999 exam. Such evidence makes the

conclusion inescapable: Donahue would likely have been hired based

on his May 1999 exam score if he were a minority applicant.

Although this is not the same as evidence demonstrating that

Donahue would have received an appointment under race-neutral
criteria, it is enough to satisfy a key element of standing to seek

forward-looking relief.

Appellees assert, however, that Donahue lacks standing
for his prospective-relief claims for the additional reason that he

is not "able and ready" to apply for future appointment to the BPD.

They note that Chapter 242 prevents individuals, such as Donahue,

who are over the age of thirty-two from applying for a position in

the police or fire department of any city that adopts the law. See

Mass. Gen. Laws ch. 31, § 58A. Since Donahue can no longer apply

to be a Boston police officer, appellees argue, he would not be

subject to a future violation of his right to compete for the job

on equal footing with all other applicants, regardless of race.

-19-
 Donahue responds by arguing first that Chapter 242, by

its own terms, does not apply to him. The statute states that

those aged thirty-two or older are not eligible for an "original
appointment." Id. Donahue contends that, because he has worked as

a police officer in another city (Yarmouth, Massachusetts), his

appointment to a position in the BPD would not be "original" within
the meaning of the statute. Appellees dispute Donahue's

interpretation of Chapter 242 and argue that an "original

appointment" is the appointment of any person who has not been

previously appointed to the same position (i.e., a Boston police

officer).

Donahue argues further that, while Boston initially

accepted Chapter 242, it has since repealed it. Appellees assert
that this is simply not so. But, unfortunately, the record does

not disclose what action, if any, the Boston City Council has taken

with respect to Chapter 242.
Because it is a relatively new statute, we find no

Massachusetts cases that give a definitive interpretation of the

reach of Chapter 242. And it is difficult to determine on the

record and briefs before us whether the statute would pose an

obstacle to Donahue's standing to seek prospective relief. As a

general matter, "original appointment" appears to be a term of art

in the state civil service statutes that denotes any position that

is filled from an eligible list established as the result of a

competitive civil service examination. See Mass. Gen. Laws ch. 31,

§ 6; see generally City of Somerville v. Somerville Mun. Employees

-20-
Ass'n, 481 N.E.2d 1176, 1180-81 (Mass. App. Ct. 1985) (noting the

differences between "original" and "promotional" appointments under

the Massachusetts civil service laws). Such a definition appears
to have been applied to an earlier statute, since repealed, that is

analogous to Chapter 242. See Joseph v. Adm'r of the Div. of Pers.

Admin., 416 N.E.2d 990, 991-92 (Mass. App. Ct. 1981) (rescript
opinion).

While these considerations would seem to point in favor

of appellees' interpretation of Chapter 242, the answer is not

pellucid. The parties have not provided us with the factual and

legal support for a reasoned conclusion, particularly in regards to

the question of whether Chapter 242 continues to be observed by the

City of Boston.8 In all events, Donahue's standing to pursue
prospective relief in the form of an injunction against the

operation of the consent decree requires greater development. We

therefore reverse the district court's ruling insofar as it applies
to Donahue's prospective-relief claims.

B. Motion to amend

Donahue sought to add a handful of claims to his
complaint by way of a motion to amend, which the district court

denied as moot following the entry of judgment on all of Donahue's
claims. We review the district court's denial of Donahue's motion

8
Donahue's claim that the Boston City Council has rescinded its
approval of Chapter 242 is one that we expect will be backed with
evidentiary support. Cf. Fed. R. Civ. 11(b)(3).

-21-
for an abuse of discretion. Grant v. News Group Boston, Inc., 55

F.3d 1, 5 (1st Cir. 1995).

First, Donahue attempted to augment his complaint with a
claim for damages and injunctive relief based on his failure to be

hired in light of his performance on the April 2001 civil service

exam. As we have already discussed, Donahue scored 100 on the exam
but was not considered for employment because of Chapter 242.

Appellees argue that, because Donahue was ineligible to seek future

appointment to the BPD based on his age, the addition of any claim

based on the April 2001 test results would be futile. Donahue

argues that the amendment would not be futile because the terms of

Chapter 242 do not apply to him and because the Boston City Council

rescinded Chapter 242.
This leads to the second amendment Donahue sought to

include in his complaint: a claim that Chapter 242 is

unconstitutional because its age restriction does not pass scrutiny
under the Equal Protection Clause of the Fourteenth Amendment. See

Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000) ("States may

discriminate on the basis of age without offending the Fourteenth

Amendment if the age classification in question is rationally

related to a legitimate state interest."). Appellees argue that

such an amendment would be futile because age is not a

constitutionally protected class and, as a consequence, similar

restrictions for police officers have been upheld by other courts.

See Thomas v. U.S. Postal Inspection Serv., 647 F.2d 1035 (10th

Cir. 1981) (upholding an age limit of thirty-four for hiring postal

-22-
inspectors); Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1977)

(upholding an age limit of thirty-five for hiring new police

officers); Sobieralski v. City of South Bend, 479 N.E.2d 98 (Ind.
Ct. App. 1985) (same); Figueroa v. Bronstein, 344 N.E.2d 402 (N.Y.

1976) (per curiam) (same with regard to an age limit of thirty-

two); Ridaught v. Div. of Fla. Hwy. Patrol, 314 So. 2d 140 (Fla.
1975) (same with regard to an age limit of thirty-five); cf. Mass.

Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) (holding that a

Massachusetts statute mandating the retirement of uniformed police

officers at age fifty survives rational-basis scrutiny).

Because we remand part of Donahue's case for further

consideration, we view the motion to amend as no longer moot.

However, there may be other reasons, well within the district
court's discretion, for denying Donahue's motion. Thus, we leave

it to the district court upon remand to determine in the first

instance whether Donahue's proposed amendments are appropriate.

C. Claims against state appellees

Finally, Donahue complains that the district court erred
in granting summary judgment on his remaining claims. The gravamen
of these claims is that the state defendants violated 42 U.S.C.

§§ 1985 and 1986 by withholding certain documents (including copies
of the original consent decree) from Donahue in a manner
inconsistent with the Massachusetts Public Records Law, Mass. Gen.

Laws ch. 66, § 10. The district court's order does not mention
these claims, nor is it apparent that the court even considered the

claims before entering judgment on the entire case. Nonetheless,

-23-
we may affirm the district court's judgment on any ground squarely

presented below. Pure Distribs., Inc. v. Baker, 285 F.3d 150, 156

(1st Cir. 2002).
As an initial matter, Donahue makes only the most half-

hearted attempt to challenge the entry of judgment. Donahue's main

brief devotes only three sentences to the issue, arguing in essence
that the absence of a reason given by the district court for

entering judgment alone warrants reversal. Our general rule with

regard to such poorly developed arguments is to treat them as

forfeited. See Beatty v. Michael Bus. Mach. Corp., 172 F.3d 117,

120-21 n.2 (1st Cir. 1999); Mass. Sch. of Law v. Am. Bar Ass'n, 142

F.3d 26, 43 (1st Cir. 1998).

Moreover, Donahue has not adduced the sort of evidence
that would support a claim under 42 U.S.C. §§ 1985(3) and 1986.9

A claim under § 1985(3) requires the plaintiff to show that (1)

some class-based animus (usually racial) lay behind the
conspirators' action, and (2) that the conspiracy was aimed at

interfering with protected rights. See Bray v. Alexandria Women's

Health Clinic, 506 U.S. 263, 267-68 (1993). In this case, Donahue

9
Section 1985 has three subsections, each of which sets forth a
distinct cause of action. However, Donahue makes no effort to
specify the subsection under which his claim arises. We think the
first two subsections are plainly inapplicable: § 1985(1) protects
federal officers from those conspiring to prevent (by force,
intimidation, or threat) the officer from discharging his or her
duties; and § 1985(2) protects parties and witnesses in federal
court from conspiracies to deter them from appearing or testifying.
Section 1985(3) is broader in its reach and prohibits, in general
terms, conspiracies to violate civil rights. We therefore assume,
for the sake of argument, that Donahue intends to assert a claim
under §§ 1985(3) and 1986 (the latter extends liability to persons
who knowingly fail to prevent conspiracies under the former).

-24-
points to no evidence -- direct or indirect -- of class-based

animus. Instead, Donahue's claim appears to be nothing more than

a thinly disguised attempt to repackage a state-law public records
action as a claim arising under federal law. We therefore affirm

the district court's entry of judgment in favor of the state

appellees.

III. CONCLUSION

For the reasons stated above, we reverse the district

court's judgment with respect to Donahue's claim under the Equal

Protection Clause for prospective equitable relief. Because the
case remains active, the district court should also reevaluate the

propriety of Donahue's motion to amend. In all other respects, the
district court's judgment is affirmed. We remand the case for
further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

-25-