In Swietlowich v. Bucks County, 620 F.2d 33 (3rd Cir. 1980), after the Third Circuit vacated a merits judgment in favor of a plaintiff in a civil rights suit, due to an erroneous jury instruction, and remanded the case to the district court for further proceedings, the plaintiff filed a petition in the Third Circuit seeking attorneys' fees on appeal.
The Third Circuit held that, at that point in time, the plaintiff was not a prevailing party and therefore was not eligible to recover attorneys' fees.
It explained that in light of the vacation of the merits judgment in her favor, the plaintiff was "no closer to a verdict in her favor than she was before the first trial began." Id. at 34.