___________ No. 95-3782

___________ St. Louis Fire Fighters * Association International * Association of Fire Fighters * Local 73; William Rudden; Edwin * F. Libby; John F. Welch; Ralph * E. Break; Michael T. Donovan; * William O. Hill; William O. * Smith; Irvin M. Sprous; Timothy * V. Tyebo; Dwight C. Cross; * Cecil E. Morris; Charles J. * Zoeller; Timothy J. May; Ronald * Gronemeyer; Mark R. Duffy, * * Plaintiffs - Appellants, * * Appeal and Cross-Appeal v. * from the United States * District Court for the City of St. Louis, Missouri, * Eastern District of Missouri. * Defendant - Appellee, * * Firefighters' Institute for * Racial Equality; Charles Bates; * Nathanial Sutherland; Joseph * Jones; Gilbert Vaughn; Eugene * Stanton; Roland Logan; Leroy * Harris, * * Intervenors-Defendants - * Appellees. *

___________ No. 95-4011

___________ St. Louis Fire Fighters * Association International * Association of Fire Fighters * Local 73; William Rudden; Edwin * F. Libby; John F. Welch; Ralph * E. Break; Michael T. Donovan; * William O. Hill; William O. * Smith; Irvin M. Sprous; Timothy *

### -2-

V. Tyebo; Dwight C. Cross; * Cecil E. Morris; Charles J. * Zoeller; Timothy J. May; Ronald * Gronemeyer; Mark R. Duffy, * * Plaintiffs - Appellees, * * v. * * City of St. Louis, Missouri, * * Defendant - Appellee, * * Firefighters' Institute for * Racial Equality; Charles Bates; * Nathanial Sutherland; Joseph * Jones; Gilbert Vaughn; Eugene * Stanton; Roland Logan; Leroy * Harris, * * Intervenors-Defendants - * Appellants. * *

------------------ * * Firefighters' Institute for * Racial Equality; Charles Bates; * Nathanial Sutherland; Joseph * Jones; Gilbert Vaughn; Eugene * Stanton; Roland Logan; Leroy * Harris, * * Cross Claimants - * Appellants, * * v. * * City of St. Louis, Missouri, * * Cross Defendant - * Appellee. *

__________ Submitted: April 11, 1996 Filed: September 19, 1996

__________

### *THE HONORABLE RICHARD W. GOLD BERG, Judge, United States

Court of International Trade, sitting by designation. Individual plaintiffs are fifteen white St. Louis fir e 1 

### captains who have taken the battalion chief promotion test b attery. Individual intervenors are seven African-American St. Loui s 2 

### fire captains who took the bat talion chief promotion test battery.
-3- Before MAGILL and LOKEN, Circuit Judges, and GOLDBERG, Judge. *

___________ MAGILL, Circuit Judge.
The St. Louis Fire Fighters Associat ion International Association of Fire Fight ers Local 73 and individual plaintiffs (Local 73) brought suit 1 against the city of S t. Louis (the City) under 42 U.S.C. § 1981 and Title VII of th e Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1-2000e-17 , alleging that the test results from a multiphased testing procedure for th e promo tion of fire captains to battalion chiefs in the City's fir e depart ment was illegally reweighted in favor of African-Americans. Th e Fi refighters' Institute for Racial Equality and individual intervenors 2 (FIRE) intervened as intervenor-defendants/cross-claim plaintiffs in th e suit, challenging dif ferent aspects of the testing procedure as having an advers e impact on African-Americans. The district court granted a preliminary injunction to Local 73, enjoining th e City from promoting fire captains to battalion chiefs on the basis of the promotion test batter y results. The City subsequently announced that it would abandon th e beleaguered testing procedures entirely, and wou ld develop a new procedure for promotions. The district court dismissed Local 73's claim and FIRE's cross-cla imas moot, denied Local 73's motion for leave to file a thir d amended complaint requesting additional relief, and denied Local 73's and FIRE's motions for attorney's fees and costs.Local 73 appeals the district court' s (1) dismissal of its complaint

moot; (2) denial of its motion to file a third amended complaint; and orney's fees and costs. FIRE cross-appeals only the dist court's denial of attorney's fees and costs. We affirm th e issal of Local 73's complaint as moot and its denial of l 73's motion to file a third amended complaint. We reverse th e al of attorney's fees and costs to Local 73 and FIRE
as e attorney's fees for both Local 73 and FIRE.

I.
In 1991, the City promote fire captains to battalion chiefs. The City communicated with bot Local a fire fighter labor organization, and FIRE, a civil right organization pursuing create y

a three-part test battery, consisting of a written test, a fir
scene test, and an assessment center test. The test battery was structure so that candidates ha The written test was administered in February 19 whom were African-Ame 1993 whom were African-American. The assessment
e

In e phased o the written and fire scene

### African-American candidates tended to perform better tha n 3 

### white candidates in the fire scene test, while white candidate s tended to perform better in the assessment center test. Bec ause of this, lowering the score to pass on the fire scene test tended to benefit white candidates more than African-American candidates

. Will iamDuffe, the City's personnel director, testified that h e consid ered the possibility of litigation by adversely affecte d whites if a high passing score for the fire scene test was s et, see II Preli m. Inj. Hr'g Tr. at 56, and testified that "[w]e lowere d the passing point to a level where the adverse impact against the white candidates was minimized." Id. at 54.

Eight white candidates dropped in ranking due to th e 4 

### reweighting of the test scores, while three improved. The r ankings of four white candidates were not affected by the reweighting o f the test scores.
-5- candidates solely according to their assessment center scores. Of the 23 3 candidates who took the assessment center test, African-Americans ranked eighth, eleventh, twelfth, seventeenth, eighteenth, twenty-second, an d twenty-third. Upon c onsidering these results, and contemplating possible litigation on the basis of an adverse impact against African-Americans, th e City reweighted the t est battery results. While keeping the written test pas s/fail, the City made the fire scene test worth 30% of the rankin g score, and made the assessment center worth 70% of the ranking score

. Follow ing this reweighting, white candidates tended to drop in th e rank ing, and African-American candidates, who now ranked third, fifth ,

4 eighth, eleventh, twelfth, eighteenth, and twent y-third, tended to improve in ranking.

Local 73 filed suit against the City on August 17, 1994, claiming a violation of employment discrimination laws on t he basis of the reweighted
scores. In its initial, first amended, and second amended complaints , Local 73 sought a temporary restraining order, a temporary injunction, and
a p ermanent injunction barring the City from promoting fire captains t o battalion chiefs on the basis of the disputed test procedure. FIR E interv ened in the lawsuit, generally defending the City's decision t o reweight the test results. See, e.g. , Interveno rs' Answer To Pls.' Second Am.

### -6-

Compl. at ¶ 9, reprinted inII Appellant's App. at 355 (denying Local 73's allega tion that City's decision to reweight scores was arbitrary an d capricious, and designed only to change the rankings of the candidate s based on their race). In a cross-complaint, however, FIRE alleged that th e written test and assessment center test had an adverse impact agains t African-Americans, and sought permanent injuncti ve relief barring the City from making promotions based on the disputed test procedures.

The district court granted a temporary restraining order on Augus t 17, 1994, and a preli minary injunction on September 15, 1994, barring the City from making prom otions on the basis of the disputed test procedures. On February 14, 1995, prior to trial for permanent injunctive relief, the Citycancelled the entire promotion test procedure, and declared that it would not base any pr omotions on the disputed test battery. Instead, the Cityannounced its intention to establish a new testing procedure. Se e Def.'s Motion for Summ. J. at ¶ 3, reprinted inII Appellant's App. at 330

.

Co nstruing the City's motion for summary judgment as a motion t o dismiss for mootness, the district court on March 13, 1995, held that Loca l 73's c omplaint and FIRE's cross-complaint were moot, and dismissed th e actions. See Mem. Op. at 6. In reaching this decision, the district cour t found that, in light of the City's explicit promise to abandon the dispute d test procedures and not to base any promotions on the test battery results ,

the Court is persuaded that there exists no likelihood o f rec urrence of the use of the tests of which intervenors ' ple ading complains. . . . The injunctive relief sought i s mooted by the City's cancellation of the challenged rankings. Pla intiffs' belated invocation of a number of other types o f relief which might have been sought, but were not, fails t o undermine the conclusion that the relief actually p rayed for is rendered meaningless by the City's actions.

### -7-

Id. at 4-5. The dist rict court also found that "there exist no lingering effec ts of any alleged violations which are capable of redress by thi s Court." Id. at 6. Noting that no promotions had been made based on the disputed procedures, the district court concluded that

[t]he Court has never been asked to determine whic h firefighters are entitle d to promotion based on some lawfullydete rmined application of the test results which have bee n attacke d by all the candidates; the cancellation of thos e res ults thus clears and levels the field on which al l cand idates will now compete, based on whatever new testin g pro cedures are developed by the City. Regardless of th e determination of the par ties' claims, the Court has never been in a position to prescribe the use of particular tests by the City, and the Court cannot pass on the legality of tests yet to be devised and implemented.

Id. In a separate order filed on October 3, 1995, the district cour t summarily denied a motion by Local 73 to alter or amend the order an d judgment and for leave to file a third amended complaint. Local 73 filed a motion seeking $68,090.00 in attorney's fees an d $8,613.89 in costs, while FIRE filed a motion seeking $66,181.25 i n attorney's fees and $22,397.57 in costs. On Oct ober 5, 1995, the district court d enied these motions. Initially, the district court found tha t "whether plaintiffs and intervenors qualify as p revailing parties . . . is ques tionable at best," Order at 3, because neither Local 73 nor FIR E "succe eded in preserving other aspects of the procedure which the y defended," id. at 2; because "neither group benefitted uniformly or [was] disadvantaged uniformly by any given change in the testing or scoring ; [because it cannot] be said that the various individual plaintiffs an d intervenors are unifo rmly benefitted or disadvantaged by the cancellation of th e previous results and the administration of a new promotio n procedure," id. ; and because "intervenors failed to

### The district court also noted that the fe e requests failed to 5 

### specifywhich adverse party should be assessed fees and costs : "given the fact that plaintiffs and intervenors were adversa ries in the liti gation, it is conceivable that any fee award in favor o f one group should be assessed, at least in part, against the other." Order at 2.
-8- obtain the injunctive relief which they sought." Id. at 2-3. 5

Altern atively, assuming that Local 73 and FIRE were prevailin g partie s, the district court exercised its discretion and denied al l attorney's fees to both Local 73 and FIRE. The district court stated that :
Movants have failed entirely to take into account t heir minimal success in their requests for substantial fees and costs, and hav e failed to reflect their limited degree of success b y req uesting only partial fees or by making any attempt t o distinguishfees and expenses incurred with respect to claims upo n which the Court's mootness determination does no t con stitute success. . . . [B]oth intervenors and plaintiff s see k total awards which, in the Court's view, are grossl y excessive for this seven-month litigation.

Id. at 3 (note omitted). Local 73 and FIRE now appeal.

II.

We review

the district court's dismissal for mootness de novo. See Sto p H-3 Ass'n v. Dole , 870 F.2d 1419, 1423 (9th Cir. 1989). A case i s properly dismissed as moot if it "has lost its character as a present, liv e controver syof the kind that must exist if we are to avoid advisor y opinions on abstract questions of law." Princeton Univ. v. Schmid , 45 5 U.S. 1 00, 103 (1982) (per curiam) (quotations and citation omitted ) (holding that university's amendment of regulation made moot a challenge to regulations).

### -9- Generally, the "voluntary cessation of allegedly illegal conduc t does not depri ve the tribunal of power to hear and determine the case, i.e. , does not make the case moot." United States v. W.T. Grant Co. , 345 U.S. 629, 632 (1953). Where, however,

(1) it can be said with assurance that there is no reasonable expe ctation that the alleged violation will recur, and (2 ) inter imrelief or events have completely and irrevocabl y eradicated the effects of the alleged violation . . . it may be said that the case is mo ot because neither party has a legally co gnizable interest in the final determination of th e underlying questions of fact and law.

Countyof Los Angeles v. Davis , 440 U.S. 625, 631 (1979) (quotations and citations omitted). "The burden of demonstrating mootness 'is a heavy one.'" Id. (quoting W.T. Grant Co. , 345 U.S. at 633).

We agree with the district court that both prongs of the Davis test have been met by the City in this case, and that the case was properl y dismissed as moot. The disputed testing procedu res have been abandoned by the City, and the district court found "that the re exists no likelihood of recurrence of the use of the tests." Mem. Op. at 4. While not disputing this fi nding, Local 73 argues that the City might possibly improperl y
man ipulate the results of future tests. We decline to accept thi s attenu ated possibility of future misdeeds as sufficient to warrant ou r contin ued jurisdiction, and conclude that this argument is simply to o speculative to keep an otherwise moot controversy alive.

We also fa il to see any persistent ill effects of the allege d wrongd oing in this case. Both Local 73 and FIRE were concerned tha t pro motions would be made based on the results of the disputed tes t procedures, and the only relief requested by the parties was an injunction barring such promotions. No promotions were ever

### Local 73 argues that despite its failure to reques t 6 

### injunctive relief promoting individual plaintiffs, compensator y dama ges, or other additional relief, the district court wa s obligated under Federal Rule of Civil Procedure 56(c) to awa rd such appropriate relief. We disagree. As noted by the Supreme C ourt in Albemarl e Paper Co. v. Moody , 422 U.S. 405, 424 (1975), "a part y maynot be 'entitled' to relief if its conduct of the cause ha s improperly and substantially prejudiced the other party. . . . To deny back pay because a partic ular cause has been prosecuted in an eccentric fashion, prejudicial to the other party, does not offend the broad purposes of Title V II." (emphasis in original). In its own Title VII action, Local 73 waited until after the City h ad made substantial changes in its hir ing practices and after the case had been dismissed as moot before requesting a broad range of ne w remedies, the source of which was not obvious in its origina l pleadings and prosecution of its cause. In these circumstan ces, we do not believe that the mere potential of unrequested remedie s could have allowed the district court to maintain jurisdiction in this matter.
-10- made based on the disputed testing procedures and, with the testin g procedures abandoned, the requested relief is obviously unnecessary. In light of this, we conclude that the district court properly dismissed Loca l 73's complaint and FIRE's cross-complaint as moot. 6

III.

After its complaint was dismissed as moot, Local 73 moved for leave to file a third amended complaint, which was den ied by the district court. We review this decisi on for abuse of discretion. See Egerdahl v. Hibbing Community College , 72 F.3d 615, 620 (8th Cir. 1995).
"A district court may refuse to grant leave to amend if the pla intiff had an earlier opportunity to cure a defect in h er complaint but failed to do so." Id. In this case, the district court afforded Local 73 tw o opport unities to amend its pleadings during the course of proceedings

. Bot htimes Local 73 failed to add a request for damages or additiona l inj unctive relief. Further, while a pretrial motion to amend pleading s should be

### In determining that neither FIRE nor Loca l 73 were prevailing 7 

### parties, the district court relied, in part, on the definition of "pr evailing party" provided by the Supreme Court in Farrar v
. Hobby , 506 U.S. 103 (1992). See Order at 3. In Little RockSchool District v. Special School District 1 , 17 F.3d 260, 263 n.2 (8t h Ci r. 1994), we specifically declined to extend this definitio n "beyond its context of determi ning prevailing party status after a final determination on the merits of litigation."
-11- liberally granted, "d ifferent considerations apply to motions filed after dismissal." Humphreys v. Roche Biomedical Lab., Inc. , 990 F.2d 1078, 1082 (8th Cir. 1993). The Humphreys court stated that

a district court does not abuse its discretion in refusing to allow amendment of plead ings to change the theory of a case if th e amendment is offered after summary judgment has bee n granted against the party, and no valid reason is s hown for the failure to present the new theory at an earlier time.

Id. (quotations and citations omitted). Here, L ocal 73 waited until after the case was dismissed as moot before seeking leave to file a third amende d complaint, and proffered no adequate reason explaining this delay. I n these circumstances, we conclude that the distri ct court did not abuse its discretion in denying Local 73's motion to file a third amended complaint.

IV.

A.

Under 42 U.S.C. §§ 1988 and 2000e-5( k), prevailing parties in § 1981 and Title VII actions are entitled, at the distr ict court's discretion, to attorney's fees. We review the district court's determination of whether
a litigant is a prevailing party de novo. See Oxford House-A v. City of Univ. City , 87 F.3d 1 022, 1024 (8th Cir. 1996); cf. Marquart v. Lodge , 26 F.3d 842, 844 (8th Cir. 1994). 7

### -12- This Court has recognized the "catalyst" theory of prevailin g parties:

Where a defendant voluntarily complies with a plaintiff' s req uested relief, thereby rendering the plaintiff's lawsui t moot, the plaintiff is a"prevailing party" under section 1988 if his suit is a catalyst for the defendant's voluntar y compliance and the defendant's compliance was not gratuitous, mea ning the plaintiff's suit was neither frivolous , unreasonable nor groundless.
Little Rock Sch. Dist. v. Special Sch. Dist. 1 , 17 F.3d 260, 262 (8th Cir. 1994) (quotations and citations omitted); see al so A.J. by L.B. v. Kierst , 56 F.3d 849, 865 (8th Cir. 1995) ("Plaintiffs, thus, may 'prevail' under section 1988 if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit, despite the absence of a formal judgment in their favor." (quotations and citation s omitted)).

In thi s case, both Local 73 and FIRE succeeded in preventing an y promotions from fire captain to battalion chief from being made based on the te st procedures which they disputed. We believe that this was a significant issue in the case; indeed, this was all that either party had specifically requested. Nor is there any disagr eement that the litigation by Loca l 73 and FIRE was the catalyst for the City's abandonment of th e disputed test procedures; at oral argument, the City acknowledged that the litigation, referred to as "pressure on both sides," caused the City' s abandonment of the test procedures.
Finally, we cannot say that the City 's action was gratuitous. While
we have no opinion on what the merits of the case might have been had it proceeded to trial an d judgment, we do not believe that either Local 73's
co mplaint or FIRE's cross-complaint were frivolous, unreasonable, o r groundless

. 42 U.S.C. § 2000e-2(l) provides that an employer may no t "adjust the scores of . . . or

### In addition, the district court found that plaintiffs ha d 8 

### demonstrated a likelihood of success sufficient to grant pla intiffs firs t a temporary restraining order and later a preliminar y injunction against the City to prevent it from promoting can didates based on the disputed test procedures. See Order Granting T.R.O. at 2, reprinted in Appellant's App. at 47; Order Granting Prelim. Inj. at 5, reprinted in II Appellant's App. at 261. We cannot , consistent with these findings, conclude that the plaintiffs ' complaint was frivolous.
-13- otherwise alter the results of, employment related tests on the basis of race . . . ." FIRE presented evidence that the City set the passing score for the fire scene test to avoid disadvantaging white candidates, whil e Local 73 presented evidence that the City reweighted the scores of the fir e
scene test and assessment center test components to avoid disadvantaging Afric an-American candidates. Whether this evidence would have bee n accepted as correct by a finder of fact and whether, if accepted, thes e facts would have constituted a violation of § 20 00e-2(l) are questions not before us; clearly, however, they raise reasonable issues of law whic h could have been decided against the City. 8

B.
While we review a district court's award of attorney's fees for abuse of discretion, see Bass v. Southwestern Bell Tel., Inc. , 817 F.2d 44, 46 (8th Cir. 1987), a di strict court's discretion to deny attorney's fees to a prevailing party is narrow. See Little Rock S ch. Dist. , 17 F.3d at 262. Rather, "[p]revailingparties ordinarily should recover section 1988 fees unless special circumstances would make such an award unjust." Id. at 262

- 63. See also Hatfield v. Hayes , 877 F.2d 717, 719 (8th Cir. 1989) ("Absen t special circumstances, a prevailing party should be awarded section 1988 fees as a matter of course ." (quotations and cit ation omitted, emphasis in original)).

### The district court expressed concern that: 9 

### Apparentlyunmindful of the Supreme Court's admonitio n that fee awards are not intended to "'produce windfalls to attorneys,'" Riverside v. Rivera , 477 U.S. 561, 580 (1986 ) (citation omitted), plaintiffs seek fees at an hourly rate greater than that reflected in their agreement with counsel . . . .
Order at 3. We do not believe that the hourly rate previousl y agreed upon by a party with its counsel is dispositive fo r -14- Al thoughthe factors cited by the district court are relevant t o determining a reasonable attorney's fees award, we hold that they do not
con stitute sufficiently "special circumstances" to justify a complet e denial of any award. See, e.g. , Hatfield , 877 F .2d at 720 (citing cases). While "§ 1 988 contemplates the denial of fees to de minimis victors, " Farrar v. Hobby , 506 U.S. 103, 117 (1992) (O'Con nor, J., concurring), this is not a fair assessment of Local 73's and FIRE's success in this case

. Although neither Loca l 73 nor FIRE were able to secure promotions for the individual plaintiffs and intervenors, the parties never requested thi s relief. While certain individual plaintiffs andintervenors, who now must await future opportunities for promotion, might have been promoted t o battalion chief had the City been allowed to pro ceed based on the disputed test proc edures, we do not see this as a pyrrhic victory justifying th e denial of attorney's fees. See id. Rather, we presume that all parties
we re sincere in their efforts to secure nondiscriminatory employmen t practices for all promotion candidates.

We th erefore must remand this case to the district court for a determination of reas onable attorney's fees awards to both FIRE and Local 73. In doing so, however, we note that the district court retain s discre tion in determining what constitutes a reasonable award in th e circumstances of this case, and that we share ma ny of the district court's
concerns regarding the parties' original fee requests. As found by th e district court, the sums originally requested by the parties are grossly excessive, and should be adjusted to reflect the success achieved by the parties. See Farrar , 506 U.S. at 114 ("the most critical factor i n deter mining the reasonableness of a fee award is the degree of succes s obtained" (quotations and citation omitted)). 9

### determining a reasonable award of attorney's fees. Cf. Blanchard

v. Ber geron , 489 U.S. 87, 93 (1989) ("a contingent-fee contrac t does not impose an automatic ceiling on an award of attorney' s fees"). We note, however, that such a previously agreed upon fee may well be strongly indicativ e of what constitutes a "reasonable" fee, see, e.g. , Winter v. Cerr o Gordo County Conservation Bd. , 925 F.2d 1069, 1074 (8th Cir. 1991 ) (award of attorney's fees based on fee agreement), and may properly be considered by the distric t court in its analysis.

In determining a reasonable attorney's fee, the distric t 10 

### court should consider: (1) the time and labor required; (2) the novelty an d difficulty of the questions; (3) the skill requisite to perform

the legal service properly; (4) the preclusion o f employment by the attorney due to acceptance of the case ; (5) the customary fee; (6) whether the fee is fixed o r contingent; (7) time limitations imposed by the client o r the circumstances; (8) the amount involved and th e results obtained; (9) the experience, reputation, and abi lityof the attorneys; (10) the "undesirability" of the case ; (11 ) the nature and length of the professional relationship wit h the client; and (12) awards in similar cases. Winter , 925 F.2d at 1074 n.8.
-15- We also note that it would be unjust to make the City accountab le for costs incurred by Loc al 73 and FIRE in supporting the City's position and defending various asp ects of the test procedures against the other party. See, e.g. , Bigby v. City of Chicago , 927 F.2d 1426, 1428 (7th Cir. 1991) ("a Title VII defendant's fee liability would not extend to fees associate d withthe defense of third party interests"); Reeves v. Harrell , 791 F.2d 1481, 1484 (11th Cir. 1986) (defendant not liable for prevailing party's defense against third party), cert. denied , 479 U.S. 1033 (1987). If, upo n rehe aring, the district court determines that Local 73 and FIRE too k conflicting, nonfrivolous positions in this case , we believe that it would be proper for the district court to determine one reasonable fee for the litigation to date, and to split that fee among the two opposing side s according to their relative success. 10

### -16- For the f oregoing reasons, we affirm the district court's dismissal

nt and FIRE's cross-complaint as moot, and we affirm the district court's denial of Local 73's motion amende d t Local prevailing parties, and we reverse and remand the fees and costs to Local 73 and FIRE.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.