“The general rule in our legal system is that each party must pay its own attorney's fees and expenses.”
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010). However, Congress enacted
42 U.S.C. § 1988 to ensure that “federal rights are adequately enforced.”
Id. Under
42 U.S.C. § 1988(b), a district court, “[i]n any action or proceeding to enforce a provision of [
section 1983] ..., in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.” To qualify as a prevailing party, a litigant must have “receive[d] at least some relief on the merits of his claim” amounting to “a court-ordered change in the
legal relationship between the plaintiff and the defendant.”
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 603, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (emphasis added). As a corollary, if a defendant voluntarily changes its behavior, the plaintiff will not be considered a prevailing party even if the plaintiff received the relief sought.
Id. at 605, 121 S.Ct. 1835. These principles still apply “when a court of appeals reverses a district court's judgment that rendered one of the litigants a prevailing party.”
Green Party II, 767 F.3d at 552. If the court of appeals reverses on the
merits, the formerly prevailing party is no longer entitled to fees.
Id. However, if the reversal is not on the merits, “it does not necessarily upset the prevailing party's status.”
Id.