In the
United States Court of Appeals
For the Seventh Circuit

Nos. 96-1708 & 97-1661

PEGGY L. ADAMS, JOHN P. AGUINAGA,
PERCY ALLEN, JR., et al.,

Plaintiffs-Appellants,

v.

CITY OF CHICAGO,

Defendant-Appellee.


Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 94 C 5727--John A. Nordberg, Judge.


ARGUED OCTOBER 30, 1997--DECIDED FEBRUARY 4, 1998



 Before CUDAHY, COFFEY, and MANION, Circuit Judges.

 MANION, Circuit Judge.  Approximately 280 minority
Chicago police officers claim that a test
administered to determine promotions to sergeant is
racially biased. They appeal the district court's
denial of their request for a preliminary
injunction which would have prohibited the City
from making sergeant promotions pending the outcome
of their suit. Because the plaintiffs cannot
demonstrate irreparable harm, we affirm.

I.

 The Chicago Police Department (Department)
employs close to 10,000 police officers from entry-
level to the highest ranks. This huge Department is
structured with a typical chain of command where
higher-ranking officers supervise those in the
ranks below. This case is about sergeants and how
they are promoted. The issue is not new. The
Department's hiring and promotion practices have
been challenged in federal court several times.
See, e.g., Deveraux v. City of Chicago, 14 F.3d 328
(7th Cir. 1994) (challenging lieutenant and
sergeant promotions); Auriemma v. Rice, 957 F.2d
397 (7th Cir. 1992) (demotions alleged to be
racially motivated); United States v. City of
Chicago, 870 F.2d 1256 (1989) (challenging
lieutenant promotions); and Bigby v. City of
Chicago, 766 F.2d 1053 (7th Cir. 1985) (same).

 The Department is structured to employ over a
thousand sergeants. When the plaintiffs sought a
preliminary injunction in the district court to
prevent further promotions, the Department had
approximately 230 sergeant positions to fill. Also,
the Department expected to promote 42 sergeants to
lieutenant, which would create additional vacancies
in the sergeant rank. In any given month
retirement, attrition, and death typically caused
several additional vacancies. Thus many sergeant
slots were vacant. In fact, during the last three
weeks of December 1995 and the first week of
January 1996, the Department should have staffed
3,444 tours, or shifts of duty, with sergeants, but
due to the vacancies 1,600 tours went without
sergeants. Even with all of these slots available,
the Department has been unable to fill them without
a fight over who gets promoted.

 In 1993, in an attempt to arrive at a fairer
system, the City of Chicago designed and
administered a three-part test to determine who
gets promoted to sergeant. Part I contained
multiple-choice questions covering the law,
department procedures, and other regulations
sergeants needed to know. Part II (also multiple-
choice) tested the administrative functions
performed by sergeants, including reviewing reports
and determining crime patterns. Candidates who did
well on Parts I and II were presumed to know the
fundamentals and were then given the opportunity to
take the third part of the test, an oral
examination based on a written briefing. 

 Before administering the test, the Department
announced that promotions would be based
exclusively on the test, and would be made in "rank
order," i.e., the highest scorer on the test would
be promoted first, the tenth highest tenth, and so
on. Parts I and II were administered to 4700
sergeant candidates, and of that number 1,900
candidates qualified for and were given oral
examinations. Of the original 4,700 who took the
exam, 31.8% were black, 10.8% were Hispanic, and
56.4% were white. But after all three parts were
graded, about 88% of those designated to be
promoted to sergeant were white and 12% were
minority.
 The Department administered the test in the first
three months of 1994. In August 1994, the
Department promoted 114 police officers to
sergeant. On September 21, 1994, the plaintiffs
sued the Department, claiming violations of the
Fourteenth Amendment and 42 U.S.C. sec.sec. 1981
and 1983. They subsequently amended their complaint
to allege a violation of Title VII, 42 U.S.C. sec.
2000e. The plaintiffs subsequently withdrew all of
their claims but the Title VII claim. On February
6, 1996, they sought a preliminary injunction
against the Department, enjoining it from making
permanent promotions during the pendency of this
litigation.

 The district court held a two-week hearing on the
motion for preliminary injunction, and in a written
opinion issued on March 25, 1996, the district
court refused to enter a preliminary injunction.
The plaintiffs filed an interlocutory appeal.
However, during the pendency of this appeal, the
City of Chicago initiated a Blue Ribbon Task Force
to review the Department's promotion practices. By
consent of the parties, argument on this appeal was
delayed until the Task Force issued its report. In
May 1997, the Task Force issued its report
recommending that up to 30% of the Department's
promotions to sergeant be made on the basis of
"merit." This meant that current sergeants and
lieutenants would pick 30% of the police officers
that would be promoted to sergeant. However, the
report also recommends that the current test
continue to be used to assure that sergeants given
"merit" promotions meet a minimum level of
competence. Perhaps that would mean that merit
selections would come from the 1,900 that qualified
under parts I and II of the current test. In any
event, the recommended procedure would be
significantly different than the one challenged
here.

 As the caption indicates, there are two appeals
now before this court. Based on the Task Force
report, the plaintiffs sought a remand of appeal
No. 96-1708 to the district court, to allow the
district court to consider the report. We directed
the plaintiffs to follow the procedure set forth in
Circuit Rule 57./1 The plaintiffs asked the
district court to state whether it was inclined to
change its ruling, and the district court, in a
written order, explained that it was not.
Consequently that order is the subject matter of
appeal No. 97-1611; the defendants have filed a
motion to dismiss appeal No. 97-1611 on the grounds
that it was not an appealable order.

II.

 Initially, we note that because the plaintiffs'
original appeal was an appeal from an interlocutory
order, Circuit Rule 57 is inapplicable. Circuit
Rule 57 applies to motions filed pursuant to "Fed.
R. Civ. P. 60(a) or 60(b), Fed. R. Crim. P. 35(b),
or any other rule that permits the modification of
a final judgment." A denial of a preliminary
injunction is not a "final judgment;" appellate
jurisdiction is appropriate under 28 U.S.C. sec.
1292(a)(1), not 28 U.S.C. sec. 1291. The correct
procedure, as recognized by the district court,
would be to file a new motion for preliminary
injunction. The plaintiffs would be collaterally
estopped from challenging the district court's
earlier findings, Avitia v. Metropolitan Club of
Chicago, Inc., 924 F.2d 689, 690 (7th Cir. 1991),
but they would be allowed to present new evidence.
Red Star Yeast & Products Co. v. La Budde, 83 F.2d
394, 396 (7th Cir. 1936) ("Denial of an application
for a temporary injunction does not prevent another
application by the same party in the same suit, if
new facts warrant it.")./2 

 Thus, when a preliminary injunction has been
appealed and a new motion for preliminary
injunction is filed, there is no jurisdictional bar
to the district court resolving that motion, or an
appeal of the district court's resolution. As a
practical matter, the subsequent ruling on the
preliminary injunction may moot the earlier ruling
on the preliminary injunction. Therefore, staying
proceedings before the Court of Appeals, or
remanding the earlier decision to the district
court, may further the interest of judicial
economy. This is the spirit of Circuit Rule 57,
which aims at ensuring that the Court of Appeals
reviews the last decision of district courts.
Unlike under Rule 57, however, a remand is not
mandatory. While the plaintiffs failed to file a
new motion for preliminary injunction, it probably
makes sense in the interest of judicial economy to
construe the Circuit Rule 57 procedure followed as
the equivalent of the initiation of a new motion
for preliminary injunction. Cf. United States v.
Bonansinga, 855 F.2d 476, 478 (7th Cir. 1988).
Although we deny defendant's motion to dismiss
Appeal No. 97-1611, this should not be construed as
a way to re-route injunctions via a Rule 57 motion.
As noted above, we directed the parties to follow
the Rule 57 procedure, so we share the
responsibility for any confusion resulting from
this patchwork process. Henceforth, the Circuit
Rule 57 procedure should be used exclusively for
final judgments./3 

 Now to the merits: Plaintiffs sought a
preliminary injunction prohibiting the Department
from making rank order promotions during the
pendency of their case. To obtain a preliminary
injunction, the movant must establish irreparable
harm if the injunction fails to issue, and
demonstrate some likelihood of success on the
merits. Abbott Lab. v. Mead Johnson & Co., 971 F.2d
6, 11 (7th Cir. 1992). If the district court finds
either fact is not present, then the district
court's analysis ends and the preliminary
injunction should not be issued. Id. When reviewing
a denial of a preliminary injunction, "we review
the court's findings of facts for clear error, its
balancing factors for an abuse of discretion, and
its legal conclusions de novo." Meridian Mut. Ins.
Co. v. Meridian Ins. Group Inc., 128 F.3d 1111,
1114 (7th Cir. 1997)./4

 After a detailed analysis the district court
concluded that the plaintiffs had not demonstrated
some likelihood of success on the merits. But given
the political volatility on the question of "merit"
promotions, this is a close question. The district
court also found that the plaintiffs would not be
irreparably injured by allowing the Department to
make promotions while this litigation is pending.
Because we agree with this conclusion, and because
this alone precludes the issuing of the preliminary
injunction, we need not reach the question of the
plaintiffs' likelihood of success on the merits.

 In most public employment disputes, the district
court, after a final hearing, has the authority to
order retroactive promotions with back pay, pension
benefits, and full seniority rights. Lasco v.
Northern, 733 F.2d 477, 481 (7th Cir. 1984) ("In
the context of public employment, the loss of
wages, employee benefits, and opportunities for
promotion during a period of suspension do not
constitute irreparable injury and do not warrant
the granting of a preliminary injunction");
Rosamata v. United Air Lines, Inc., 717 F.2d 1140,
1148 (7th Cir. 1983) (district court may fashion
order with presumption of restoring "rightful place
seniority rights"); Brown v. City of Chicago, 917
F. Supp. 577, 584 (N.D. Ill. 1996). In challenges
by police officers regarding promotions, "the court
can order their promotion, back pay, pension
benefits, and seniority in title." Id. The district
court can even order those who have been promoted
due to discrimination demoted. Doll v. Brown, 75
F.3d 1200, 1205 (7th Cir. 1997). While the district
court acknowledged that use of this power can be
disruptive, it also found that given the number of
current vacancies and the expected attrition of
sergeants, no demotions of current sergeants would
be needed in order to promote all minorities who
should have been made sergeant. In short, "some
delay in promotion does not constitute irreparable
injury." Cox v. City of Chicago, 868 F.2d 217, 223
(7th Cir. 1989); see also Ceichon v. City of
Chicago, 634 F.2d 1055, 1057 (7th Cir. 1980) (loss
of opportunity for promotion does not constitute
irreparable injury).

 This case is properly distinguishable from United
States v. City of Chicago, 870 F.2d 1256 (7th Cir.
1989), where we stated that "damages may not be an
adequate remedy for persons seeking a career in the
Chicago police force who have seen their chances
impaired, perhaps permanently, by the
discriminatory promotion of minority sergeants. .
. ." Id. at 1262. United States v. City of Chicago
addressed a conflict between a federal consent
decree and another federal case, which arguably
prevented the district court from ordering the
plaintiffs be promoted, even though prevailing on
the merits. This case involves no limiting consent
decree, and the district court will be able to make
the plaintiffs whole through use of the district
court's remedial power, assuming that the
plaintiffs prevail after a final hearing. The
district court's finding of no irreparable injury
is not clearly erroneous. While finding that the
plaintiffs would not suffer irreparable harm, the
court also concluded that the City, on the other
hand, "demonstrated a great degree of irreparable
harm to the Chicago Police Department and the
public" in the event he granted a preliminary
injunction. There is no need to discuss the obvious
imbalance between no harm and great harm, but
suffice it to say that the district court did not
abuse its discretion by denying the preliminary
injunction.

III.

 This case is one of a series of judicial
challenges to the promotion policies and procedures
in the huge police department of the City of
Chicago. Each new case demonstrates that judicial
"solutions" are by no means final. At oral argument
attorneys for both sides indicated that the City is
indeed giving serious consideration to a merit
promotion procedure recommended by the appointed
Task Force. Any such resolution achieved in a forum
that does not resort to federal court is most
welcome. For now we conclude that the district
court correctly denied the plaintiffs' motion for
preliminary injunction.

AFFIRMED.

FOOTNOTES

/1 Circuit Rule 57 states:

Remands for Revision of Judgment

 A party who during the pendency of an appeal has
filed a motion under Fed. R. Civ. P. 60(a) or
60(b), Fed. R. Crim. P. 35(b), or any other rule
that permits the modification of a final judgment,
should request the district court to indicate
whether it is inclined to grant the motion. If the
district court so indicates, this court will remand
the case for the purpose of modifying the judgment.
Any party dissatisfied with the judgment as
modified must file a fresh notice of appeal.

/2 Because the findings made in the first denial of
the motion for preliminary injunction cannot be
collaterally attacked, the first appeal is not
mooted by the second appeal, and is in fact the
sole vehicle for challenging these findings. See
F.W. Kerr Chemical Co. v. Crandall Assoc., Inc.,
815 F.2d 426, 428-29 (6th Cir. 1987). The findings
on the preliminary injunction, however, do not
collaterally estop either party from relitigating
these issues for purposes of the final judgment.
Gjertsen v. Bd. of Election, 751 F.2d 199, 202 (7th
Cir. 1984) ("A preliminary injunction has no
preclusive effect--no formal effect at all--on the
judge's decision whether to issue a permanent
injunction.").

/3 We do not reach the issue of whether the district
court's disinclination to alter its final judgment,
pursuant to Circuit Rule 57, is appealable.

/4 These appeals would be mooted by either a final
decision on the merits by the district court, or
the Department's decision not to use the list
produced by the test for rank order promotions. The
Department has informed us by letter that it is
uncertain whether it will make any further
promotions off the 1994 promotion list. Thus, at
this time the controversy would appear to be live.