___________

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. GOLDBERG, Judge, United States

Court of International Trade, sitting by designation.

 Individual plaintiffs are fifteen white St. Louis fire

1

captains who have taken the battalion chief promotion test battery.

 Individual intervenors are seven African-American St. Louis

2

fire captains who took the battalion chief promotion test battery.

-3-

Before MAGILL and LOKEN, Circuit Judges, and GOLDBERG, Judge. *

___________

MAGILL, Circuit Judge.

The St. Louis Fire Fighters Association International Association of

Fire Fighters Local 73 and individual plaintiffs (Local 73) brought suit 1

against the city of St. Louis (the City) under 42 U.S.C. § 1981 and Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1-2000e-17,

alleging that the test results from a multiphased testing procedure for the

promotion of fire captains to battalion chiefs in the City's fire

department was illegally reweighted in favor of African-Americans. The

Firefighters' Institute for Racial Equality and individual intervenors2

(FIRE) intervened as intervenor-defendants/cross-claim plaintiffs in the

suit, challenging different aspects of the testing procedure as having an

adverse impact on African-Americans. The district court granted a

preliminary injunction to Local 73, enjoining the City from promoting fire

captains to battalion chiefs on the basis of the promotion test battery

results. The City subsequently announced that it would abandon the

beleaguered testing procedures entirely, and would develop a new procedure

for promotions. The district court dismissed Local 73's claim and FIRE's

cross-claim as moot, denied Local 73's motion for leave to file a third

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 the

issal of Local 73's complaint as moot and its denial

of l 73's motion to file a third amended complaint. We reverse the

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 than

3

white candidates in the fire scene test, while white candidates

tended to perform better in the assessment center test. Because of

this, lowering the score to pass on the fire scene test tended to

benefit white candidates more than African-American candidates.

William Duffe, the City's personnel director, testified that he

considered the possibility of litigation by adversely affected

whites if a high passing score for the fire scene test was set, see

II Prelim. Inj. Hr'g Tr. at 56, and testified that "[w]e lowered

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 the

4

reweighting of the test scores, while three improved. The rankings

of four white candidates were not affected by the reweighting of

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, and

twenty-third. Upon considering these results, and contemplating possible

litigation on the basis of an adverse impact against African-Americans, the

City reweighted the test battery results. While keeping the written test

pass/fail, the City made the fire scene test worth 30% of the ranking

score, and made the assessment center worth 70% of the ranking score.

Following this reweighting, white candidates tended to drop in the

ranking, and African-American candidates, who now ranked third, fifth,

4

eighth, eleventh, twelfth, eighteenth, and twenty-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 the 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 permanent injunction barring the City from promoting fire captains to

battalion chiefs on the basis of the disputed test procedure. FIRE

intervened in the lawsuit, generally defending the City's decision to

reweight the test results. See, e.g., Intervenors' Answer To Pls.' Second

Am.
-6-

Compl. at ¶ 9, reprinted in II Appellant's App. at 355 (denying Local 73's

allegation that City's decision to reweight scores was arbitrary and

capricious, and designed only to change the rankings of the candidates

based on their race). In a cross-complaint, however, FIRE alleged that the

written test and assessment center test had an adverse impact against

African-Americans, and sought permanent injunctive relief barring the City

from making promotions based on the disputed test procedures.

The district court granted a temporary restraining order on August

17, 1994, and a preliminary injunction on September 15, 1994, barring the

City from making promotions on the basis of the disputed test procedures.

On February 14, 1995, prior to trial for permanent injunctive relief, the

City cancelled the entire promotion test procedure, and declared that it

would not base any promotions on the disputed test battery. Instead, the

City announced its intention to establish a new testing procedure. See

Def.'s Motion for Summ. J. at ¶ 3, reprinted in II Appellant's App. at 330.

Construing the City's motion for summary judgment as a motion to

dismiss for mootness, the district court on March 13, 1995, held that Local

73's complaint and FIRE's cross-complaint were moot, and dismissed the

actions. See Mem. Op. at 6. In reaching this decision, the district court

found that, in light of the City's explicit promise to abandon the disputed

test procedures and not to base any promotions on the test battery results,

the Court is persuaded that there exists no likelihood of

recurrence of the use of the tests of which intervenors'

pleading complains. . . . The injunctive relief sought is

mooted by the City's cancellation of the challenged rankings.

Plaintiffs' belated invocation of a number of other types of

relief which might have been sought, but were not, fails to

undermine the conclusion that the relief actually prayed for is

rendered meaningless by the City's actions.
-7-

Id. at 4-5. The district court also found that "there exist no lingering

effects of any alleged violations which are capable of redress by this

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 which

firefighters are entitled to promotion based on some lawfullydetermined application of the test results which have been

attacked by all the candidates; the cancellation of those

results thus clears and levels the field on which all

candidates will now compete, based on whatever new testing

procedures are developed by the City. Regardless of the

determination of the parties' 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 court

summarily denied a motion by Local 73 to alter or amend the order and

judgment and for leave to file a third amended complaint. 

Local 73 filed a motion seeking $68,090.00 in attorney's fees and

$8,613.89 in costs, while FIRE filed a motion seeking $66,181.25 in

attorney's fees and $22,397.57 in costs. On October 5, 1995, the district

court denied these motions. Initially, the district court found that

"whether plaintiffs and intervenors qualify as prevailing parties . . . is

questionable at best," Order at 3, because neither Local 73 nor FIRE

"succeeded in preserving other aspects of the procedure which they

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 and

intervenors are uniformly benefitted or disadvantaged by the cancellation

of the previous results and the administration of a new promotion

procedure," id.; and because "intervenors failed to
 The district court also noted that the fee requests failed to 5

specify which adverse party should be assessed fees and costs:

"given the fact that plaintiffs and intervenors were adversaries in

the litigation, it is conceivable that any fee award in favor of

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

Alternatively, assuming that Local 73 and FIRE were prevailing

parties, the district court exercised its discretion and denied all

attorney's fees to both Local 73 and FIRE. The district court stated that:

Movants have failed entirely to take into account their minimal

success in their requests for substantial fees and costs, and

have failed to reflect their limited degree of success by

requesting only partial fees or by making any attempt to

distinguish fees and expenses incurred with respect to claims

upon which the Court's mootness determination does not

constitute success. . . . [B]oth intervenors and plaintiffs

seek total awards which, in the Court's view, are grossly

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

Stop H-3 Ass'n v. Dole, 870 F.2d 1419, 1423 (9th Cir. 1989). A case is

properly dismissed as moot if it "has lost its character as a present, live

controversy of the kind that must exist if we are to avoid advisory

opinions on abstract questions of law." Princeton Univ. v. Schmid, 455

U.S. 100, 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 conduct does

not deprive 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

expectation that the alleged violation will recur, and (2)

interim relief or events have completely and irrevocably

eradicated the effects of the alleged violation . . . it may be

said that the case is moot because neither party has a legally

cognizable interest in the final determination of the

underlying questions of fact and law.

County of 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 properly

dismissed as moot. The disputed testing procedures have been abandoned by

the City, and the district court found "that there exists no likelihood of

recurrence of the use of the tests." Mem. Op. at 4. While not disputing

this finding, Local 73 argues that the City might possibly improperly

manipulate the results of future tests. We decline to accept this

attenuated possibility of future misdeeds as sufficient to warrant our

continued jurisdiction, and conclude that this argument is simply too

speculative to keep an otherwise moot controversy alive.

We also fail to see any persistent ill effects of the alleged

wrongdoing in this case. Both Local 73 and FIRE were concerned that

promotions would be made based on the results of the disputed test

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 request

6

injunctive relief promoting individual plaintiffs, compensatory

damages, or other additional relief, the district court was

obligated under Federal Rule of Civil Procedure 56(c) to award such

appropriate relief. We disagree. As noted by the Supreme Court in

Albemarle Paper Co. v. Moody, 422 U.S. 405, 424 (1975), "a party

may not be 'entitled' to relief if its conduct of the cause has

improperly and substantially prejudiced the other party. . . . To

deny back pay because a particular cause has been prosecuted in an

eccentric fashion, prejudicial to the other party, does not offend

the broad purposes of Title VII." (emphasis in original). In its

own Title VII action, Local 73 waited until after the City had made

substantial changes in its hiring practices and after the case had

been dismissed as moot before requesting a broad range of new

remedies, the source of which was not obvious in its original

pleadings and prosecution of its cause. In these circumstances, we

do not believe that the mere potential of unrequested remedies

could have allowed the district court to maintain jurisdiction in

this matter.

-10-

made based on the disputed testing procedures and, with the testing

procedures abandoned, the requested relief is obviously unnecessary. In

light of this, we conclude that the district court properly dismissed Local

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 denied by the district court.

We review this decision 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 plaintiff

had an earlier opportunity to cure a defect in her complaint but failed to

do so." Id. In this case, the district court afforded Local 73 two

opportunities to amend its pleadings during the course of proceedings.

Both times Local 73 failed to add a request for damages or additional

injunctive relief. Further, while a pretrial motion to amend pleadings

should be
 In determining that neither FIRE nor Local 73 were prevailing 7

parties, the district court relied, in part, on the definition of

"prevailing party" provided by the Supreme Court in Farrar v.

Hobby, 506 U.S. 103 (1992). See Order at 3. In Little Rock School

District v. Special School District 1, 17 F.3d 260, 263 n.2 (8th

Cir. 1994), we specifically declined to extend this definition

"beyond its context of determining prevailing party status after a

final determination on the merits of litigation."

-11-

liberally granted, "different 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 pleadings to change the theory of a case if

the amendment is offered after summary judgment has been

granted against the party, and no valid reason is shown for the

failure to present the new theory at an earlier time.

Id. (quotations and citations omitted). Here, Local 73 waited until after

the case was dismissed as moot before seeking leave to file a third amended

complaint, and proffered no adequate reason explaining this delay. In

these circumstances, we conclude that the district 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 district 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 1022, 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 prevailing

parties:

Where a defendant voluntarily complies with a plaintiff's

requested relief, thereby rendering the plaintiff's lawsuit

moot, the plaintiff is a "prevailing party" under section 1988

if his suit is a catalyst for the defendant's voluntary

compliance and the defendant's compliance was not gratuitous,

meaning 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 also 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 citations

omitted)).

In this case, both Local 73 and FIRE succeeded in preventing any

promotions from fire captain to battalion chief from being made based on

the test 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 disagreement that the litigation

by Local 73 and FIRE was the catalyst for the City's abandonment of the

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 and judgment, we do not believe that either Local 73's

complaint or FIRE's cross-complaint were frivolous, unreasonable, or

groundless. 42 U.S.C. § 2000e-2(l) provides that an employer may not

"adjust the scores of . . . or
 In addition, the district court found that plaintiffs had

8

demonstrated a likelihood of success sufficient to grant plaintiffs

first a temporary restraining order and later a preliminary

injunction against the City to prevent it from promoting candidates

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, while

Local 73 presented evidence that the City reweighted the scores of the fire

scene test and assessment center test components to avoid disadvantaging

African-American candidates. Whether this evidence would have been

accepted as correct by a finder of fact and whether, if accepted, these

facts would have constituted a violation of § 2000e-2(l) are questions not

before us; clearly, however, they raise reasonable issues of law which

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 district court's discretion to deny attorney's fees to

a prevailing party is narrow. See Little Rock Sch. Dist., 17 F.3d at 262.

Rather, "[p]revailing parties 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) ("Absent

special circumstances, a prevailing party should be awarded section 1988

fees as a matter of course." (quotations and citation omitted, emphasis in

original)).
 The district court expressed concern that: 9

Apparently unmindful of the Supreme Court's admonition

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 previously

agreed upon by a party with its counsel is dispositive for

-14-

Although the factors cited by the district court are relevant to

determining a reasonable attorney's fees award, we hold that they do not

constitute sufficiently "special circumstances" to justify a complete

denial of any award. See, e.g., Hatfield, 877 F.2d at 720 (citing cases).

While "§ 1988 contemplates the denial of fees to de minimis victors,"

Farrar v. Hobby, 506 U.S. 103, 117 (1992) (O'Connor, J., concurring), this

is not a fair assessment of Local 73's and FIRE's success in this case.

Although neither Local 73 nor FIRE were able to secure promotions for the

individual plaintiffs and intervenors, the parties never requested this

relief. While certain individual plaintiffs and intervenors, who now must

await future opportunities for promotion, might have been promoted to

battalion chief had the City been allowed to proceed based on the disputed

test procedures, we do not see this as a pyrrhic victory justifying the

denial of attorney's fees. See id. Rather, we presume that all parties

were sincere in their efforts to secure nondiscriminatory employment

practices for all promotion candidates.

We therefore must remand this case to the district court for a

determination of reasonable attorney's fees awards to both FIRE and Local

73. In doing so, however, we note that the district court retains

discretion in determining what constitutes a reasonable award in the

circumstances of this case, and that we share many of the district court's

concerns regarding the parties' original fee requests. As found by the

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 in

determining the reasonableness of a fee award is the degree of success

obtained" (quotations and citation omitted)). 

9
determining a reasonable award of attorney's fees. Cf. Blanchard

v. Bergeron, 489 U.S. 87, 93 (1989) ("a contingent-fee contract

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 indicative of what constitutes a "reasonable"

fee, see, e.g., Winter v. Cerro 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 district

court in its analysis. 

 In determining a reasonable attorney's fee, the district

10

court should consider: 

(1) the time and labor required; (2) the novelty and

difficulty of the questions; (3) the skill requisite to

perform the legal service properly; (4) the preclusion of

employment by the attorney due to acceptance of the case;

(5) the customary fee; (6) whether the fee is fixed or

contingent; (7) time limitations imposed by the client or

the circumstances; (8) the amount involved and the

results obtained; (9) the experience, reputation, and

ability of the attorneys; (10) the "undesirability" of the case;

(11) the nature and length of the professional relationship with

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 accountable for

costs incurred by Local 73 and FIRE in supporting the City's position and

defending various aspects 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 associated

with the 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, upon

rehearing, the district court determines that Local 73 and FIRE took

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 sides

according to their relative success.10
-16-

For the foregoing 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

amended 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.