St. Louis Fire Fighters Ass'n International Ass'n of Fire Fighters Local 73 v. City of St. Louis

___________

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 *
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
__________

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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 plaintiffs1 (Local 73) brought suit
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.

*THE HONORABLE RICHARD W. GOLDBERG, Judge, United States
Court of International Trade, sitting by designation.
1
Individual plaintiffs are fifteen white St. Louis fire
captains who have taken the battalion chief promotion test battery.
2
Individual intervenors are seven African-American St. Louis
fire captains who took the battalion chief promotion test battery.

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 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
candidates solely according to their assessment center scores.3 Of the 23
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,4 and African-American candidates, who now ranked third, fifth,
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.

3
African-American candidates tended to perform better than
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.
4
Eight white candidates dropped in ranking due to the
reweighting of the test scores, while three improved. The rankings
of four white candidates were not affected by the reweighting of
the test scores.

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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.

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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 lawfully-
determined 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

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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).

5
The district court also noted that the fee requests failed to
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.

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 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

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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

6
Local 73 argues that despite its failure to request
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.

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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

7
In determining that neither FIRE nor Local 73 were prevailing
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."

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 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

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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)).

8
In addition, the district court found that plaintiffs had
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.

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 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

9
The district court expressed concern that:

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

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 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

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.
10
In determining a reasonable attorney's fee, the district
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.

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 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.

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