What is the test for "prevailing" under Section 1988 of the Civil Rights Act?

16 For purposes of 1988, a civil rights plaintiff "prevails" "when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992).

17 In its discretion, the district court calculated the attorney fee award using an hourly rate higher than that actually charged by intervenor. See Blanchard v. Bergeron, 489 U.S. 87, 92, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989) ("Whether or not [a litigant] agreed to pay a fee and in what amount is not decisive [to determining a fee award].... Such arrangements should not determine the court's decision. The criterion for the court is not what the parties agree but what is reasonable.") (citation and internal quotation marks omitted). Defendants have not challenged the district court's use of a higher hourly rate except insofar as they make the "special circumstances" argument. That is, they never have argued that the hourly rate is unreasonable.