Cedric Johnson v. George M. Daley, and United States of America, Intervenor-Appellant

JOHNSON, Plaintiff-Appellee, Cedric DALEY,

George M. Defendant-

Appellant, America,

United States

Intervenor-Appellant. 00-3981,

No. 00-4115. Appeals,

United States Court of

Seventh Circuit.

Argued April 2001.

Reargued April En Banc 2003. Aug.

Decided Heller,

David (argued), J. Harth Ehr- man, McAulifee, WI, Madison, White & Plaintiff-Appellee. Hunter,

Robert M. Office the Attor- ney Department General Wisconsin Justice, Madison, WI, Levy Jonathan H. (argued), Department of Justice Civil Divi- sion, Section, Appellate Washington, D.C. Defendant-Appellant. Jr., Randall C. Berg, Florida Justice Inc., Institute, for Amicus Curiae. FLAUM, Before Judge, Chief POSNER, COFFEY, EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, WOOD, EVANS, DIANE P. WILLIAMS, Judges. Circuit pursuant to EASTERBROOK, by ed a statute Judge. Circuit ...; may fee be awarded 803(d) Litigation of the Prison Section (B)(i) 42 Act, propor- U.S.C. the amount of the fee is codified Reform 1997e(d), and relative both absolute related the court tionately § sets ordered (ii) shifting. violation; The dis- attorneys’ fee limits on relief the or the fee limits unconstitution- these directly reasonably trict court held incurred was disadvantage prisoners al because the the enforcing relief ordered for whose re- plaintiffs, other compared with violation. 1988(b) § in con- 42 under U.S.C. coveries (2) monetary judgment is Whenever subject not litigation are stitutional-tort para- in an action described awarded Da- maximum. Johnson v. statutory any (not (1), portion judgment of the graph (W.D.Wis.2000). F.Supp.2d 117 889 ley, percent) applied to exceed 25 shall appeals that has considered Every of court satisfy amount fees attorney’s the of held, contrary, to the has question

this If the against awarded defendant. 1997e(d) Congress’ author- § within is attorney’s of fees is not greater award (1st Black, v. 225 F.3d 36 ity. See Boivin judgment, 150 of the percent than Johnson, Cir.2000); v. 230 F.3d 840 Hadix paid by excess shall be defendant. Bain, (6th Cir.2000); v. 257 F.3d Walker Charrier, (6th Cir.2001); 262 (3) v. Foulk attorney’s of fees in an No award Gomez, (8th Cir.2001); (1) Madrid v. F.3d in paragraph' action shall described (9th Cir.1999); v. Jackson F.3d 990 greater than hourly be based on an rate Paroles, & Board Pardons State percent hourly rate estab- (11th Cir.2003). Accord, Collins F.3d [18 3006A] lished under U.S.C. (E.D.Pa. Jan. Algarin, 1998 WL 10234 v. payment court-appointed counsel. 1998) Lexis affirmed Dist. (4) pro- in this Nothing subsection shall court under equally an divided by entering an prisoner from into hibit County Montgomery name Collins attorney’s pay an fee in an agreement Inspectors, 176 F.3d Board Prison than the amount autho- greater amount Cir.1999) (en banc). (3d these Like subsection, if the fee is rized under 1997e(d) circuits, is we hold other by individual rather than paid objectives and rationally to valid related pursuant 1988]. to [§ defendant legislative power, is hence within (1) (2) or it is relative whether not wise. establish Subsections relat- “proportionately fees must be limits: and, relief’ when to the court ordered ed I awarded, the attrib- monetary is fees relief 1997e(d) provides: Section exceed 150% of utable to that relief cannot (1)In brought action (3). damages. Subsection establishes prison, any jail, who is confined hourly limit at 150% the аn absolute facility, which at- other correctional counsel under the Crimi- rate for defense torney’s [42 are authorized under Act, hours times the number of nal Justice 1988], shall not be such fees U.S.C. Be- reasonably litigation. to the devoted awarded, extent that— except to the (set rate Judicial cause CJA States) currently the United

(A) Conference directly was and reason- the fee hour, per the maximum that an vio- is ably proving actual $90 incurred may be directed underwrite plaintiffs rights protect- defendant lation hour.† $30,000 per in punitive Attorneys is total amount that damages. $135 receive, however, great Foley attorney & Lardner and Heller Ehrman er, attorney represented because the is enti White & McAuliffe Johnson judgment judge’s request; to 25% of the under subsec district Johnson did tled agreement not enter into an tion but also because client free with counsel (4) 1997e(d)(4), compensation § agree by to contract under so de- under subsection pends entirely application of the or out on the of pay recovery to more—out of subsec- (1) (3). through tions the other assets. Counsel asked $92,997.20 judge Daley pay to direct to the This case shows how statute works. attorneys’ request fees. This both exceeds George Daley, sued Cedric Johnson the and relative absolute máximums: the rela- of Bureau medical director the of Correc- (2) $60,000 cap tive under subsection is tional Health Services for the Wisconsin (150% of judgment), applica- the and Corrections, Department under 42 (3) tion cap absolute in subsection 1983, § contending Daley U.S.C. sub- produces $36,451.50. award of lower jected punish- him to cruel and unusual (This figure comes from law- Johnson’s waiting by years certify- ment three before yers. Daley and the United have States Johnson, ing whose had alcoholism questioned not accuracy, its nor have we liver, damaged eligible his was for trans- calculation.) plumbed the details of its plant expense. public at Johnson contend- sought compensation Counsel for 525.1 deliberately ed that had Daley been indif- hours of work—much of paralegals it ferent to his serious medical need. See hour, with per rates under $135 but some Brennan, 825, 511 Farmer v. 114 U.S. partners time who contended that their (1994); 1970, 128 811 S.Ct. L.Ed.2d Estelle market rate high per is as as hour. $325 Gamble, 97, 285, v. 429 97 U.S. S.Ct. 50 Daley deny legal did not that this time had (1976). put L.Ed.2d 251 Johnson was case, been reasonably to devoted list in eligibility appears June 1999 and dispute he though hourly did rates. long-term to have no injury suffered from Nonetheless, 1997e(d) delay. § a jury agreed Under counsel receive with $46,451.50 Johnson that he should have been maximum legal fоr ser- eligible $10,000 and made sooner awarded him plus from the award vices— $10,000 $36,451.50 compensatory damages, plus Daley. extra from As we read 3006A, Act, † Section the Criminal Justice au- sated at that level. case Johnson’s came to payment per increase, $60 thorizes hour for work in trial district court before this per $75, $40 court and hour other work. It so CJA maximum the time was permits the Judicial Conference raise and the PLRA maximum therefore was cap greater per $75 per to the possible $112.50 hour It hour. is that some of respect amount calculated performed with to cost-of-liv- work on Johnson’s behalf ing employees. increases awarded to federal is affected $60 $40 the earlier and máxi- September mums, 2000 the Judicial Conference which remained in effect in scattered $75 authorized use of the rate all work exposition, districts. To facilitate we use nationwide and determined that throughout opinion the inflation- $90 CJA funded hour, adjusted rate, per $113 rate would be implies per $135 maximum of appropriated permit did funds com- By employing fig hour under the PLRA. this pensation ure, $75. at more than The 2002 imply any we do not question view on the one, appropriations judiciary right acts for the whether it is the or whether instead provide (150% $113) pay appointed funds today's $169.50 sufficient cap. Com hour, per policy pare 829, $90 counsel County, is the Webbv. Ada F.3d 838- (9th per- Cir.2002), the Judicial Conference that all work with v. Kalinow Hernandez 1, 2002, ski, May (3d compen- Cir.1998). formed after should be 146 F.3d II (2), attorneys’ compensation subsection in ordi damages, comes first A of the 25% nary litigation, tort court held compensate counsel district inadequate award (3) 1997e(d)(2) incompatible pay ordered fully may defendant be process due clause fifth amend- v. 1988. Cf. Gisbrecht more under ment, Sharpe, Bolling which since v. 1817, 152 Barnhart, 789, 122 S.Ct. (1954), L.Ed. 884 U.S. (using approach L.Ed.2d 996 equal-pro- has been deemed include an cases, Security where excess Social See, principle. e.g., tection Brad- Vance Equal Access provided by would be ley, 440 59 L.Ed.2d 2412(d), Act, rather 28 U.S.C. Justice (1979). Litigation 171 Yet the Re- Prison 1988). proceed- § court than district (PLRA on) form Act from not now does calculating way, in a first ed different any powers granted by of the rest determining and then counsel’s entitlement Constitution; genesis I of Article the its is this be satisfied how much of should the, amendment, § 5 of fourteenth which notifying After the United damages. the power that says “Congress shall have to States, the to defend which intervened enforce, by appropriate legislation, the statute, constitutionality of the the district provisions Legislation of this аrticle.” un- (2) to enforce subsections court declined § power granted by the 5 is not neces- der (3). (l)(B)(i), pro- which Subsection subject sarily on the original to limitations “proportionately vides that fees must be power; of is grants why national this Fitz- violation, in the the district related” to Bitzer, 445, v. 427 patrick U.S. 96 S.Ct. cap appropriate court’s view —because 2666, (1976), 49 614 that L.Ed.2d holds a high to gets the determine how judge § power subject to Congress may use its 5 “proportion” to use. The court concluded court, despite states suit federal attorneys’ fees should be set contrary amendment. text of eleventh $80,000, under judgment, 200% of the or to ask is whether question So 1988, level not dis- writing § this 1997e(d) “enforces” fourteenth damages. Next the proportionate to the amendment, points equal us to the judge that Johnson should contribute held §in 1 protection clause of amendment judgment, of out $200 through without need detour $89,800 has leaving Daley while him with law at odds with fifth amendment —for a $128,578.81: pay of ordered to a total been substantive the fourteenth amendment’s $30,000 $10,000 compensatory damages, be to “enforce” provisions cannot one $79,800 in damages, attorneys’ punitive Flores, v. See, City Boerne e.g., them. of fees, $8,778.81 record in costs. The 2157, 507, 117 138 L.Ed.2d 521 U.S. S.Ct. much, if of this any, does not disclose how (1997); University Alabama v. Gar 624 of of picked up by will State tab 356, 955, rett, 148 531 121 S.Ct. U.S. Da- Daley’s employer. Both Wisconsin (2001). L.Ed.2d 866 appealed; have ley the United States appeal to the amount not is limited that does burden Legislation attorneys’ exceed the maxi- or affect fundamental suspect which the class 1997e(d)(2) (3). re by § equal-protection mum allowed satisfies think the cross-appealed legislature if the quirement to seek Counsel have any legitimate rationally related to damages of awarded rule greater portion are not government. of Prisoners goal Johnson. 586 class;

suspect justifies Legislation conviction of crime singling out ac- See, imposition many e.g., of burdens. analysed cordingly is under the rational- Doe, Safety Connecticut Dep’t Public v. plaintiffs concede, basis standard —as the (2003) (public 1 identification as a U.S. Supreme and as the Court held Mc- felon); States, Hudson v. United 522 U.S. Donald Board Election Commission- 488, 93, S.Ct. 139 L.Ed.2d ers, 394 U.S. debarment). Nor is (occupational there (1969). L.Ed.2d 739 also Zehner v. See right adversary, fundamental have one’s Cir.1997) (7th Trigg, (apply- 133 F.3d 459 treasury, defray all public part or the ing the rational-basis standard to 42 litigation. why That is held the cost we 1997e(e), part U.S.C. PLRA, provision in the three-strikes requires physical injury show 1915(g), compatible with the U.S.C. as a to recovery, condition and holding Sullivan, Lewis v. Constitution. See that the statute is valid under that stan- (7th Cir.2002). Although prison F.3d 526 dard). States, Cf. Marshall v. United enjoy right ers a fundamental access 417, 94 S.Ct. 38 L.Ed.2d 618 courts, Casey, see Lewis v. (1974). explained Chief Justice Warren McDonald how rational-basis standard (1996), right there no of subsidized ac works: Kras, cess. See United States v. 409 U.S. The distinctions a challenged drawn 434, 631, (1973). 93 S.Ct. 34 L.Ed.2d 626 statute must bear some rational relation publish to a right newspaper not does ship to a legitimate state end and will be imply right governmental a to funding, nor set aside as of Equal violative Pro right does to read imply a books entitle- tection only Clause if based on reasons public ment a library to that circulates totally pursuit unrelated to the of that charge. A books without woman’s to right goal. Legislatures presumed to whether choose to have an abortion does have constitutionally acted even if imply not a to right government have the source materials normally resorted to cover the medical costs. See Maher v. ascertaining grounds for their action for Roe, 464, 432 2376, U.S. 97 S.Ct. 53 silent, are otherwise and their (1977). statutory L.Ed.2d 484 A right to education will classifications be aside set no imply right does not a to free transporta- grounds be can conceived justify to tion school. Kadrmas v. See Dickinson them. See v. Maryland, McGowan Schools, 366 450, Public 487 U.S. 108 S.Ct. 420, 1101, U.S. 81 S.Ct. 6 2481, (1988). L.Ed.2d 393 101 399 A right L.Ed.2d (1961); v. petition Kotch Board River for Port grievances of redress not does Commissioners, 552, Pilot 330 U.S. imply right a 67 writing paper to free 910, (1947); S.Ct. 91 L.Ed. stamps. 1093 Linds right And a to seek redress ley Co., v. Natural court does Carbonic Gas 220 imply not to have entitlement 61, 337, U.S. 31 S.Ct. someone else 55 L.Ed. 369 pay your lawyer. for (1911). Supreme discretion, With this much pellucid, Court made a this legislature traditionally in particular, when has been al holding Giarratano, Murray 1, step v. lowed to take 109 reform “one at 492 U.S. a 2765, time, S.Ct. (1989), addressing 106 1 phase L.Ed.2d that a itself to the right wage problem collateral attack on one’s seems most acute to right mind,” conviction does legislative not entail a to coun- v. Williamson Lee sel public expense, Oklahoma, Inc., even in a capital Optical 483, 348 U.S. case. 489, 461, (1955); 75 S.Ct. 99 L.Ed. 563

587 attorneys’ run risk cases to recover reasonable not need legislature sim- scheme fees. Section 1988 been treated as losing an entire remedial has is, failed, through inadver- prevailing plaintiffs ply asymmetric because —that otherwise, evil every cover expenses prevailing or their legal tence recover at- have conceivably been might Christiansburg do not. See defendants Co. v. Union EEOC, tacked. Ozan Lumber 412, See Garment Co. v. 434 U.S. 98 251, Bank, 207 28 County National U.S. (1978) (defen- 694, 54 L.Ed.2d 648 S.Ct. (1907). 89, L.Ed. 52 195 S.Ct. legal expenses only rеcover if the dants event suit is frivolous—in which 809, 89 1404. Under 394 U.S. at S.Ct. recompense standard, “is would be entitled even not sub- legislative decision statute). regard A fact-finding plaintiff be without ject to courtroom speculation unsupported “prevailing party” achieves status re- based rational v. empirical or data.” FCC covering judgment, evidence even nominal Inc., Communications, U.S. 508 Compare Beach 506 damages. Hobby, Farrar v. 315, 211 307, 2096, 124 103, 113 S.Ct. L.Ed.2d 566, 121 U.S. 113 S.Ct. L.Ed.2d Hahn, (1993). also, Nordlinger e.g., See v. (1992), with Board Buckhannon & Care 15, 2326, 1, L.Ed.2d 505 U.S. S.Ct. Home, Virginia Dep’t Inc. v. West (1992); Minnesota v. Clover Resources, Health & Human Leaf 456, 463-65, Co., 449 Creamery U.S. (2001). (1981); L.Ed.2d Vance S.Ct. “reasonable”, Although must so 111, 99 Bradley, 440 or do Pyrrhic that de minimis victories protection equal review “[R]ational-basis support fee-shifting, Maul see v. Con judge for courts to analysis ‘is not license (7th stan, Cir.1994), 23 F.3d fairness, wisdom, logic legislative per the flexible reasonableness standard 312, Doe, v. 509 Heller U.S. choices.’” legal mits a court to award fees that sub 319, 2637, 125 113 L.Ed.2d 257 S.Ct. stantially ‍​‌‌‌​‌​‌​​‌​​‌​‌​​‌​‌‌​‌‌‌​‌​​‌​​​​​‌‌‌‌​​​​​​‌​‍damages, see River exceed omitted). (citations also, e.g., New See Rivera, 561, 477 v. 106 S.Ct. side U.S. Dukes, 297, v. 427 U.S. 96 S.Ct. Orleans 2686, (1986), though 91 L.Ed.2d 466 even (1976); 2513, 49 511 Massachu L.Ed.2d litigant in tort private solvent or con no Murgia, v. 427 setts Board Retirement pay litigation agree would counsel tract 307, 2562, 520 96 S.Ct. 49 L.Ed.2d U.S. (or recovery anticipated than more Garrett, (1976); University Alabama v. relief). § So 1988 equitable value 366-67, (holding 121 955 531 U.S. at S.Ct. pro-plaintiff. district exceptionally Center, Living v. that Cleburne Cleburne strong if this judge why, asked medicine 432, 3249, 105 87 L.Ed.2d 473 U.S. S.Ct. by promote claims needed constitutional (1985), re on which the district court 313 actors, prisoners persons state against free case, establish a slid lied does not least as much assistance. do not need at ing-scale approach). assumes, however, that approach This B persons have free similar prisoners and case claims. As Johnson’s constitutional drawn in the Whether line shows, Free altogether true. that is prisoners’ suits and free PLRA between constitutionally entitled persons are not may on persons’ depend suits is rational costly medical transplants liver other question: “equal with re answering the extra public expense. States have ”? com care The district court spect what 1997e(d) 1988, pro- and must obligations toward § §with which enti pared serious med- to their parties appropriate vide care prevailing tles constitutional imprisonment seeking ical needs because takes treated as a veteran medical care ability away hospital. their to fend themselves. in a Veterans Administration A DeShaney Winnebago County See De- by hospital’s deferring decision staff Services, 189, partment Social U.S. transplant for a eligibility his liver (1989). A 109 S.Ct. 103 L.Ed.2d subject have been to review an adminis- Johnson’s, if complaint along the lines trative tribunal but not the Article III usually person, made free would take Compare § courts. 7252 with 38 U.S.C. a physician the form a contention that 7292(d)(2). And, § until recently, U.S.C. malpractice. committed the tort of And prohibited veterans from at- paying were prevailing party in tort must torneys more than out of own their $10 fees; attorneys’ bear 100% of his own seek resources to a favorable result that’s the Rule. See Alyeska American process. Supreme administrative Pipeline Society, Co. v. Service Wilderness Court held in Walters v. National Ass’n of L.Ed.2d Survivors, Radiation (1975). person Now it is true that free (1985), that this may negligence, prison- recover for while a cap was constitutional because er must show intentional misconduct (and rely was entitled on the bar veter- (where “deliberate indifference” to his organizations) legal ans’ to donate free ser- intentional); per- counts needs the free again prisoners decidedly vices. Once likely prevail son therefore is more better off the PLRA. under any given person situation. But the free If a veteran suffers account of sub- costs, still must his own legal cover even at a hospital, standard medical care VA gross negligence he shows or wilful mis- legal remedy is under the Federal Tort proof physician. conduct Such (as punitive Act. This Claims statute punitive forbids damages lead to awards of ¶ case) damages. caps 28 U.S.C. 2674 1. It require Johnson’s but will not attorneys’ any judgment defendant to reimburse 25% of plaintiff (20% settled). legal If representation. cost of we com- if the case is 28 U.S.C. 1997e(d) pare under with free 2678. Those fees are deducted care, persons who received bad medical plaintiffs recovery; the United perhaps question why pris- should any part prevail- States does not cover of a oners receive legal services defendants’ plaintiffs legal ing expenses. A expense, persons and free do not. lawyer can offer expense his at defendant’s (plus as much as 150% recovery of the a

Ordinary litigation tort is not the itself, quarter recovery any option. Suppose had Johnson been free contract), additional provided by amount for pay transplant. and unable to a liver while a veteran can no offer counsel more might requested He have medical un- care than 25% of a recovery that never includes responsible der if agen- Medicaid—but Moreover, punitive damages. plaintiff cy delayed making eligible, hаd him there supplement is forbidden to by these fees any option would not have been to litigate. private lawyer. contract with his agency’s applications decision about Act, 2679(d), § for end Westfall individual benefits is the of the line U.S.C. makes remedy against program. under the Medicaid See the United ex- Heckler States clusive; Ringer, any cap v. effort by to evade the (1984). suing person employees L.Ed.2d 622 Such free federal will a be defeated decidedly prisoner. than replacing worse off a Or them with the United States how consider Johnson would have been generally as sole defendant. See Gu- (unless Lamagno, yers applies the EAJA because de Martinez tierrez position government’s litigating was unrea- sonable); any and it is unlawful for claim- (1995). can show that the litigant A who pay ant to to agree counsel more than 25% litigation took in the itself United States past-due as compensation of benefits substantially justified not position was legal obtaining services rendered in those attorneys’ fees under may some recover 406(b) (discussed § benefits. 42 U.S.C. in Act, Access to 28 U.S.C. Equal Justice Gisbrecht, supra). School children and 2412(d), egregious even the most parents, seeking a their better education agents federal or pre-litigation conduct under the Individuals with Disabilities Ed- not permit does an award employees Act, may ucation not recover more than Litigants qualify fees. who attorneys’ (at $1,300 fees attorneys’ in rates of more under the EAJA encounter award hour) in per than within suits $50 shall cap: “attorney fees not be statutory District 11- of Columbia. D.C.Code. per in hour unless awarded excess $125 (which limit 2604. That has since been that an increase in the court determines raised) rational, even was sustained as factor, living special or the cost of such though Congress greater allows awards availability qualified as limited attor- Calloway outside the District. See v. Dis- involved, justifies neys proceedings for the Columbia, trict 216 F.3d 4-5 (§ 2412(d)(2)(A)(ii)). By con- higher fee” (D.C.Cir.2000). In a veter- world where trast, the court to permits ans, paid employment who have employees hour, paid to up per award fees $135 century, half chil- taxes for a and school defendant, without need to pay lawyers, dren must for their own prove the defendant’s conduct in the rates, accept reimbursement low justified.” “substantially was difficult treat as irrational statute readily represent vet- agree Counsel hour, limiting per or 150% the $135 injured persons and other suits erans recovery, amount of legal FTCA, though these under the even suits pay may require courts defendants caps stringent subject more than prisoners’ cases. confronting under those hour per Prisoners think of $135 Congress rationally PLRA. conclude munificent, compared compensa- with the experience prisoners, light of this lawyers pretrial tion of their trial veterans, enjoy like will be able to pay must proceedings. Solvent defendants counsel, have good benefit of when expenses and are not all their (a qualifier). claims vital they prevail. For insolvent reimbursed caps to ascribe the in the It is difficult Act, defendants, Criminal Justice antipathy, pris- irrational when PLRA to 3006A, conjunction with deci- U.S.C. PLRA better under the than do oners fare Conference, caps sions of the Judicial at persons who must veterans and other free per public how much fisc will hour $90 legal expenses bear their own under the pay yet criminal defendants counsel— Caps Rule and the FTCA. on stronger American have a counsel than right to far fees, far being unique in civil attorneys’ any fee-shifting entitlement (as supposed), judge Wainwright, the district suits. Gideon See govern- L.Ed.2d litigation against are common 83 S.Ct. (1963). hourly the CJA example, cap their For under employees. ments and $5,200 in cap a claiming per-case under the a persons benefits Social combines with felony Although courts are prosecution. program pay must their own law- Security approve compensation insolvent, authorized to ex- the defendant is under the $125 $5,200 cases, ceeding exceptional capital few EAJA and collateral attacks cases, exceptional PLRA, criminal trials are so that de- under the and 25% of $135 $36,000, fense counsel take home back benefits under the Security Social cap system, for Johnson. If this had might been a we be give unable to prosecution, criminal and Johnson convincing Caps had answer. have arbi- plaintiff, trary quality; been a defendant rather than the majorities different in the lawyers paid his legislature have been consider- at different times have different $86,000. $5,200 ably (or less than If enough willingness expend public funds competent to secure a criminal defense— write paid by checks that must be state and it cap is—how can the PLRA Daley, actors such as Dr. or the states $36,000 indemnitors). unconstitutionally be low for civil themselves as Some of plaintiff? The pros- stakes of criminal caps depend these on an interaction be- ecution for considerably the defendant are legislation tween and decisions of the Judi- greater Conference, than the post-im- stakes most cial and these different bodies prisonment civil suits. may objectives. have different Some Con- gresses litigation favor more adjust post-imprisonment The kind of litigation it; fee promote schedules to other Con- important most to inmates is the collateral gresses pay more attention to the costs of attack —on the conviction itself or on deci- adding cases to the (including docket (and affecting sions good-time credits thus costs to defendants and to the sys- federal date). computation Yet, of the release tem when adopting rules for release, seeking when is entitled actors) state adjust rules to make to no legal prison- assistance at all. If the litigation less attractive. There is no one er legal prevails, obtains assistance and right answer to question how much with the court declaring that the incarcera- be, there should and who should tion outset, was unconstitutional from the pay for that litigation. government state required will pay single penny of counsel’s fees. We are conscious that the numbers we Courts rely and defendants alike on—and given have directly are not comparable. by services donated the bar receive— Criminal defense counsel per receives $90 supplied by legal or assistance bureaus lose; hour win prisoner’s lawyer re- (defender programs, legal aid clinics law hour, ceives as much per or a $135 schools, programs underwritten the Le- Security Social lawyer claimant’s 25% of gal Corporation, Services or programs benefits, back in the event of proceeds, funded IOLTA see Brown v. victory, as with a lawyer tort on contingent — Legal Foundation Washington, fee; an per award at hour under $125 U.S. -, depends EAJA prevailing both in the (2003)). Only capital cases does litigation and showing that the govern- federal provide post-conviction statute position ment’s substantially justi- was not counsel, and even then capped the rate is fied. So the actuarial value of an hour per hour, see 21 $125 U.S.C. devoted to the case criminal defense § 848(q)(10)(A), or less than the cur $10 counsel exceed the value an hour rent maximum under the PLRA. under the PLRA. But the value of an hour

If why asked for most collateral at- $0 under the PLRA exceeds that of an hour prosecutions tacks and persons, of solvent under the any EAJA —and fee-shifting for criminal defense under $90 the CJA if system more offers to counsel than does

591 permits Congress post-conviction rational-basis standard no-shifting approach the 'distinguish persons to the fact of incarceration. challenges prisoners from free deciding when how much the defendant imple- and its States Code The United must The prevаiling plaintiff. subsidize of thousands of rules are the work menting many PLRA draws distinctions between years; actors over scores of con- different prisoners persons and other covered possible. But what this sistency is civil statutes. We held in Zehner systems that all these different means is rationally distinguish that Congress thought rational solutions to the could be plaintiffs prisoners persons pur- much al- question “how be from free for the services, spend for how lowed to pose seeking compensation suits for paid by the much of that must be for mental distress. We held in Lewis that side, the and much of cost of losing how rationally applied the three- the public litigation will covered prisoners per strikes rule to but not free (and Litigation produces benefits fisc?” DeTella, sons. Lucien 141 See also v. costs) parties; for third it is to sometimes (7th Cir.1998) (PLRA’s F.3d 773 fee-collec public determining good, extent a prepayment system tion and is constitu- (and supply public good much of a how tional). Supreme in- Court has twice cost) problem. is an whose intractable rule, terpreted enforced the PLRA’s approach; Rule a rational The American is (and 1997e(a), 42 § U.S.C. thát rule is a loser-pays British rational only prisoners) must exhaust administra asymmetric fee-shifting in approach; 42 filing tive remedies before suit under asymmetric § approach; is a rational 1988 Nussle, § Porter v. U.S.C. 534 U.S. risk shifting plus compensation fee 516, 983, (2002); 12 S.Ct. L.Ed.2d in order to induce counsel to be loss Churner, 731, Booth v. 121 S.Ct. U.S. paying clients and indifferent between (2001). 1819, 149 L.Ed.2d 958 Neither chancy claims would be ra- constitutional pro- there anything decision hints that is (and cases, used is in common-fund tional treating prisoners blematic about differ- 1988, § under such as though not statutes ently. After held unconstitutional we 557, 112 Burlington Dague, v. 505 U.S. see re- portion making equitable of the PLRA (1992)); 120 L.Ed.2d 449 (and keep) in get lief harder to harder to FTCA, EAJA, caps such as the fee prison-reform than in about suits represent ap- PLRA also rational institutions, v. Duck other see French proaches. observation (7th worth, Cir.1999), the 178 F.3d under PLRA than under less receive that the Supreme reversed and held Court § no more that the PLRA is shows applied PLRA Miller must be written. irrational, than the fact that defendants French, v. 120 S.Ct. § under 1988 than under the pay more (2000). the Jus None of (or EAJA, FTCA, or any that there constitu suggested tices is Rule) 1988 is itself American shows problem distinguishing prisoners’ tional simply leg- These different irrational. persons’ from free And suits suits. problem; enduring solutions islative Hadix, Martin options democracy, these in a each of (1999), Supreme 144 L.Ed.2d open people’s representatives. to the scope considered one issue about

Court C 1997e(d) itself, again without the statute suggesting its members right benchmark Even what?”, has a flaw. “compared constitutional question (cid:127) prisoners prisoners, litigation conclude For some is recre- persons ways Although persons differ from free relevant ation. free most litigation. A legislature litigation, they rational would shun because have following: many ways be entitled to believe the better amuse them- selves, prisoners may trip see (cid:127) Prisoners have time on their hands. court as a vacation. persons, skip free Unlike who must (cid:127) circumstances, family work or shun to visit a law These other includ- documents, library and legal ing draft defendants’ desire not to attract suits, prisoners ample have prison- leisure. Persons additional nuisance make opportunity settle, time unusually low cost of sub- ers’ suits hard to so purchased stitute their own they impose judicial sys- efforts for on the (and commodities, services, legal such as tem thus on litigants) other things and demand more of those burden disproportionate to their num- (such (Profes- litigation) that can be had for difficulty. bers and intrinsic the investment of time alone. As a Schlanger prison- sor found that 6% of result, prisoners settled, many file more feder- ers’ compared civil suits are person al per per- suits than do free civil-rights with 28% of noninmates’ (Prisoners, sons. who account for litigation ordinary less and 50% of liti- tort than population, 1% of the file more gation. 116 Harv. L.Rev. at 1598. than 20% of all civil actions in the She also determined that the costs fed- federal courts. prisons See Administrative Of- eral courts and incur in han- Courts, Judicial Busi- fice of the dling prisoners’ U.S. top suits million $175 ness the United States Courts 2002 annually, prisoners’ far exceeding 1622-26.) Table Id. year preceding C-2. damages recoveries. enactment, prisoners PLRA’s filed (cid:127) Prisoners are less honest than free federal suits about 35 times as fre- persons and likely thus more to tell quently as Margo noninmates. See tall tales of victimization. The convic- Inmate Litigation, Schlanger, put tions that them in prison establish 1555,1575 (2003).) Harv. L.Rev. proclivity their to violate the law when (cid:127) paper Prisoners receive postage; they personal advantage see a in doing materials, (This have access to see so. premise is a of Fed.R.Evid. Smith,

Bounds v. permits prior use of convic- (1977); in- impeach veracity tions to of testi- provide mate writ-writers pot assistance mony.) gold o’ at the end of that, persons, free ais lure that induces dishon- practice deemed unauthorized est claims.

law. These materials and services (cid:127) time, however, At the same make it easier for litigate. are less amenable to sanctions for (cid:127) Many prisoners have a burning making desire false Many claims. are desti-

to turn tute; the tables on the guards and wages subject none earns gar- prison personnel, other discomfiting prosecution nishment. The threat of hurting or humiliating them. perjury This holds little terror for a non-economic litigate pro- person incentive to already prison, as a perjury suits, duces additional grudge which as sentence would be deferred until the matches particularly terms; hard expiration to re- of existing for those solve. serving prospect life sentences without

593 penal is also file of claims profusion no further sanction a small-stakes parole, of losses, hobby over such as kit in possible. the $10 Parratt Taylor, v. 451 U.S. 101 S.Ct. part determine which of not our to It is (1981), 68 any L.Ed.2d 420 free true; enough say is it is things to these person let slide pay would rather than think them true legislature a the filing costly fee and time devote $150 taking They of its senses. without leave litigation. to Schlanger Professor found prisoners apt why, to ask file so make prisoners lose some 93% of all civil they legal even receive many though suits time, they suits file. 6% are only re- About settled: assistance 4% (or deserve) subsidy provide only to these are quire numerically significant victories, legal more assistance at defendants’ ex- win as defendants of the 3% 9/10 prisoners pense. figure The 4% who of cases it to that make trial. 116 Harv. counsel comes from the Bureau of have L.Rev. recovery at 1598. The median reported is Roger Justice Statistics and $1,000. prevails when trial is Daley, Challeng- Henry A. Hanson & W.K. judge Id. 1602-03. But the district was ing the Conditions Prisons and Jails: pestiferous sure that suits could be de- of Litigation 21-22 Report A Section by limiting attorneys’ terred to what fees (1995). prisoners have Some counsel from light of “reasonable” in the ends view outset; others, Johnson, including ben- of (including petty deterrence similar mis- court’s assistance in efit from district conduct by guards), without need recruiting counsel. Even after curtail awards of fees in more sub- adoption, prisoners’ of PLRA’s about 4.4% litigation. stantial prosecuted are with the suits benefit Let us start with second of these Harv. Schlanger, counsel. See L.Rev. propositions re- reasonableness —that Many lawyers at 1609. these —who quirement coupled §in deci- conscripted appointed otherwise but and, supra, sions such Farrar v. Hobby, as voluntarily, v. serve see Mallard United Wodziak, (7th e.g., Cole v. F.3d 486 Court, District 490 U.S. States Cir.1999), provisions in the PLRA 1814, 104 L.Ed.2d 318 —are making prisoners litigate it harder for willing slight compensation, to assist for fee, filing paying without suffice legislature rationаlly may think that but (or at suits over trivial harms discourage supply lawyers prepared serve on likely least .to no more make judicial request compen- is affected free This persons). file such suits than are prevails. plaintiff sation available if the assumes that entitled to use J. Schwab & Theodore Eisen- See Stewart objective. one only given tool to achieve berg, Explaining Constitutional Tort Liti- often, Why Legislatures that be? gation: Attorney Fees Influence of Defendant, and the legitimately, multiple Statute Government select devices. (1988). varies, L.Rev. 719 requirement Cornell A “reasonableness” foot, length like chancellor’s matters, perceived the district judge As judge. gen- Some are more judge respects which differ from money, erous than others with defendants’ persons free affect frivolous and small judge’s and the substantial discre- district litigation. supera- stakes Prisoners file Eckerhart, tion, see Hensley suits, al- judge bundance frivolous 424, 437-38, 76 L.Ed.2d lowed, none in an of these ends award (1983), appellate implies deferential attorneys’ under so 1997e(d). awards, review of inconsisten- by § is affected Prisoners fee ensures none cy. Congress rationally could filing conclude— suits also affects the of weak claims. ground equitable on the treatment An example point. the makes (such alone—that a rule quantitative Suppose prisoner’s a complaint alleges judgment”) “fees can’t exceed 150% of the guard upon that a him set and beat with- (such supplement qualitative a one should provocation, prisoner out and the files reasonable”). as “fees can’t exceed what is guard affidavit to that effect. The re- 1997e(d) As for the contention that sponds supposed battery the never (because does not affect frivolous suits occurred prisoner’s inju- and adds that the 1988): eligible none is for fees under ry was gam- inflicted his cellmate that, legislature rationally may conclude bling dispute. Is suit frivolous or prisoners litigate because even frivolous prisoner meritorious? If lying, is it is excess, they claims to do not need any frivolous; if guard lying, is the suit is litigate extra incentive to meritorious cannot judge be sure meritorious. claims. telling who is the truth and is not autho- rized resolve the case short of trial. The district court’s view that the PLRA lawyer Nor could a representing pris- prisoners’ does not affect decisions de- honest; oner be sure who pris- is deceitful pends on assumptions, two neither of (which oners have no reason to be candid with justified. which it The first counsel may be able to recruit dissenting opinion fellow indulges) likewise is (for inmates as prisoners that each witnesses other suit is known from the outset to may be want to make life miserable for either frivolous or meritorious. guard, and like prisoner plaintiff second is that no are hard to makes rational sanction for gains perjury). calculations of and losses from suit.

Yet is not bound to use these Suppose prisoners that 9 out of 10 mak- assumptions. ing lying, such claims are while of 10 (or (This Take the first: that a suit’s merit guards lying. assumption is tracks thereof) lack is known to court and coun- Professor Schlanger’s finding prison- Why necessarily trial.) sel. is this true? Some ers go lose 90% suits that legal uncertainty, that, suits entail Suppose others factu- jury further if the finds for al uncertainty legislature plaintiff, $50,000 could the it will award dam- —and prisoners’ proclivity and, conclude that ages PLRA, for de- but for the the judge $150,000 (if ceit makes it hard for outsiders to tell would award in legal fees case). up. judges end is District lawyer have a takes Finally, suppose hard time telling apart: prisoners the two that with the assistance of counsel the lose half of judge plaintiff all cases which the prevail would jury before a 20% deems the sufficiently time, claim meritorious to the while plaintiff unaided the will counsel, recruit and others are settled for win 10% of these cases. Before the may sums that enactment, reflect the liti- defendants’ PLRA’s filing this case on is gation (= $10,000 0.2) costs than a high probability $50,000 rather x worth to the prevail. prisoner, See who will win 20% time with Eisenberg, (a Schwab supra, & 73 Cornell legal assistance form of regression to mean, L.Rev. at 773-74. If district judges cannot since most errors will come reliably claims, separate strong from weak from the pris- 90% of claims in which the counsel; neither can deceitful); expected suit’s oner is strength $30,000 ($150,- to determine at the out- hard award is worth to counsel set, x 0.2), then a reducing assist; law successful which induces counsel to spective the fees that judgment (reducing from the must be expected and the paid top public is a $40,000 (($50,000 damages) + benefit. guard’s perspective Moreover, force, legislature rationally 0.2). $150,000) x PLRA in theWith (as- respond conclude that some will $15,000 falls to expected legal fee adjustments. Marginal may to the effects cap is the effective suming the 150% Even average differ effects. if 80% limit), unwilling counsel changes are insensible to prisoner’s expect- Then the take case. litigation process, different behavior ($50,000 $5,000 0.1), x recovery ed falls the other welcome. A 20% would be re- anticipated judgment is guard’s and the prisoners’ in by duction suits 20% would fees). (for be no legal there will same reduce total caseload оf federal $15,000 is to enough If it that turns out courts about The actual reduction 5%. counsel, prisoner’s expect- then the recruit year between before PLRA’s $10,000 (just rises to as before recovery ed enactment, greater. and 2001 is even In PLRA), to guard’s outlay falls 39,008 prisoners federal filed civil- $20,000 which, considering the 90% — suits, 1,000 per or 24.6 suits in- lying, is still is too chance that the 22,206 they mates. filed such pre- than the high appropriate but more is suits, 1,000 per at a 11.4 rate of inmates. $40,000. anticipated PLRA loss of Schlanger, Harv. L.Rev. at See expected prisoner’s re- By reducing the rose, prisoners While the number of $5,000 $10,000 to this class covery from dropped dramatically. number of suits cases, discourages suits that the statute (Note applica- a decline this is before objectively viewed are frivolous when —or changes tion of two made other rationally could conclude. Congress so PLRA: screening under U.S.C. ante, made ex at this The decision is and 1997e(a) § § under 1915A and dismissals a direct stage the PLRA has effect for failure administrative reme- to exhaust represent willingness counsel’s to those dies.) prisoners making frivolous claims. See prisoners That the PLRA has led to cut Boivin, By reducing the 225 F.3d at 45. propensity their to sue shows that half anticipated cost defendant’s respond Litigation do to incentives. $40,000 $20,000 for this set of to free, prisoner, if is never even to a prison- takes the claims even when counsel because it time from exercise and diverts case, brings PLRA the outcome er’s watching Congress rationally television. so, closer the real loss entailed-—or to of the expected could believe that the size could again, rationally conclude. recovery prisoners’ deci- influences some We come to the district court’s second their time. sions about how to allocate just assumption: don’t think Although of the effect attribut- the amount pris- way. judge was certain that 1997e(d) calculate, §to hard to its able is deluded, to oners or determined who legisla- is A rational direction knowable. what, court, no matter lie will do so reduction ture could conclude that small weak, to file trivial, determined frivolous bogus suits worth incorrigible. potential The PLRA then achieving suits are at some cost even fail; prisoners filing prevail will won’t desist from in the com- prisoners’ ability less (or See, e.g., have National the class of suits we described mon meritorious suit. other). Chicago, legislature Coatings could believe Paint & Ass’n Yet Cir.1995) (7th that, (discussing how law has no effect on F.3d even marginal infra- per- the difference between plaintiffs, from defendants’ its effect (or marginal analysis behavior affects under dants for that matter with Justice standard). Rehnquist appropriate the rational-basis about the rule for cases)

all civil-rights rationally could de D (as approach cide to alter the it) interpreted Justice Brennan for a sub wrong, Congress Even if all of this is applies. set of all cases to For which rationally suspect that fee awards covered, prisoners reasons we have are a rule, under 1988 are excessive aas begin, sensible subset with which to prisoners’ appropriate suits are an 1997e(d) is a step. modest The district place explore the results ‍​‌‌‌​‌​‌​​‌​​‌​‌​​‌​‌‌​‌‌‌​‌​​‌​​​​​‌‌‌‌​​​​​​‌​‍of a cutback. requires Daley pay court’s award more time, ability step take one at a jury’s than 12 times the estimate of actual (to alter the rules for one subset see what damages; cap even with full happens) changing without the rules for effect, Daley pay must actual about 8 times everyone, important is one of the most damages, hefty multiplier. still a legislative powers protected by the ration- (A larger multiplier than the double-dam al-basis standard. And it would be entire- that, ages approach according to State ly rational to conclude that fees under Farm Mutual Automobile Insurance Co. 1988 are need of recalibration. Al- — U.S. -, —, v. Campbell, 123 S.Ct. though plurality Court River- 1513, 1526, 155 (2003), may L.Ed.2d 585 be rejected side contention attorneys’ the constitutional limit for awards based proportional damages, must be to see distress.) Experience emotional under 573-81, (opinion 477 106 U.S. S.Ct. 2686 PLRA may general lead to more modi Brennan, J., Marshall, joined by Black- or, if many good too claims no fications— Stevens, JJ.), mun & four other Justices vindicated, longer can be experience concluded that 1988 as it stands should may lead Congress adjust cap to lift or be against understood to limit awards de- prisoners. for permits The Constitution fendants to the amount that a solvent tinkering; this sort of it put does not plaintiff willing pay would be to his own legislature an to all-or-none choice at the lawyer, generally a sum pro- less than the outset, before data can be collected. spective 588-96, recovery. See 477 J., (Rehnquist, S.Ct. 2686 dissenting, step-at-a-time corollary to the ra- joined C.J., by Burger, and White & tional-basis standard tolerates the sort of JJ.). O’Connor, Powell, Justice who wrote inconsistency systems to which all of ma- dispositive opinion, concluded that the jority voting prone. See Kenneth J. $245,000 award —about legal fees for Arrow, Social Choice and Individual Val- $33,350 work that led to in damages —was (2d ed.1963). Suppose ues one-third of all unjust (why to the defendants should these legislators believe with Justice Brennan pay defendants be made to legal ser- that no limit applied should be to awards principal vices whose improve effect is to suit; of attorneys’ fees in constitutional deterrence respect with to other would-be that one-third believe with Justice Rehn- violators?) but could not be set given aside quist that awards in all constitutional suits deferential appellate review and state- (almost should be limited to the amount ments in legislative history implying always less than damages) that a sol- Congress some Members of thought a private vent litigant willing would be cap hard unwarranted. assistance; pay and that one- agreed Members of who plaintiffs with third believe that the with the (which Justice Powell about fairness to opportunity defen- lowest costs of time majority held it to be irrational required should be because say, prisoners) inexplicable lawyers’ time for time and unreasoned. Wisconsin their own substitute legis- of these the United States have defended the extent. Two-thirds to some 1997e(d); proposition: line drawn as Part agree would with II.C lators persons demonstrates and free should not an “unreasoned dis- “Prisoners (384 310, 1497); respect recovering with tinction” U.S. at treated alike S.Ct. enough defendants.” But and that is attorneys’ fees from show that Rinaldi equal- though they agree does undermine the PLRA. But there rule, they agree would not on is more. treatment result, of that rule. As a

the content among Rinaldi is series of decisions by prison- fees in proposal to reduce suits away the 1950s and 1960s that clear what majority, carry ers would two-thirds the Justices deemed to be obstacles though proposal to reduce fees across appeals by indigent suspects. criminal If in- would fail. that form of the board See, Illinois, 12, v. e.g., 351 U.S. Griffin consistency can be called “irrational” and (1956); Douglas S.Ct. 100 L.Ed. 891 unconstitutional, then it is condemned as California, for- democracy itself the Constitution (1963). L.Ed.2d 811 These and other simi because, proved, as Arrow inconsis- bids— lar decisions were revisited in Ross v. Mof tency consequence is an unavoidable fitt, U.S, by majority rule. The rational- decision (1974), L.Ed.2d 341 which concluded that approach legis- this sort of basis tolerates successors rest more com its Griffin by asking, not inconsistency lative what process fortably on the due clause—be (or believe, judges) actually but legislators they process cause determine what states person for a possible whether is sensible afford to of must those accused crime— -something that the law does to believe equal рrotection than on the clause. Ever could, do, many People useful. believe since Ross it has been understood that 1997e(d) § something does useful. protect only cases such as Rinaldi princi- of defendants. This means E defendants, pally though criminal occasion- ally principle application main has some to yet have not mentioned two We litigation exceptional in civil of stays argument of and the dis defendants Johnson’s import, may those that terminate holding: Yeager, trict Rinaldi v. such as court’s 1497, 16 children. 305, parental rights concerning L.Ed.2d 577 their 384 U.S. 86 S.Ct. S.L.J., 102, (1966), Normet, Lindsey v. M.L.B. v. 519 U.S. U.S. See (1996). (1972). 555, 136 L.Ed.2d 473 Nei- 92 S.Ct. any ther Rinaldi nor of the other cases supports Neither case the conclusion that 1997e(d) to hold sequence ever has been used is invalid. its plain- the defendant subsidize must pris- a requiring Rinaldi dealt with law why That we held litigation. tiffs’ civil is oners —but not criminal defendants whose Congress.may require civil Lewis suspended, sentences had been or those plaintiffs pay way. their own prison re- fined but not sentenced —to that, Lindsey: the Court held pay any transcripts prepared As the cost clause, equal protection with the appeal. appar- on direct consistent for use state suits from may distinguish a state eviction ently any failed to offer defense of this (at least, may litigation property about distinction the Justices did not other the rent post tenants to bonds for any proffered justification), require and the discuss extent to which defendants must under- pending decision. 405 U.S. at 69- accruing Indigent litigants unable prisoners’ 92 S.Ct. 862. write suits. for accrued rent lose post bonds district court judgment is held, summarily, the as Court reversed, is remanded for an case is concerned. far as the Constitution attorneys’ complies fees that award aspects Lindsey strongly support These 1997e(d). in the the kind of distinctions drawn Lindsey PLRA. The Court added RIPPLE, concurring in Judge, Circuit (to post tenant to a bond requiring the judgment. affirmance) forfeited the event of impending all accrued and rentals double view, my requires In this case irrational; double-or-nothing game straightforward application of the well- chance, litigation. not a mode of civilized frequently applied known and rational ba 74-79, Lindsey Id. at 92 S.Ct. 862. What analysis. sis test of constitutional When (in party forcing establishes is that one review, subject to this it is classification is tenant-defendant) pay Lindsey, the ex- appropriate second-guess not for a court (double rent) adversary as a tra wisdom, fairness, logic legisla “the receiving condition of a decision on the Beach tive choices.” FCC v. Communica merits violates the Constitution. If that tions, Inc., 307, 313, 508 U.S. here, holding has resonance it casts a (1993). Only L.Ed.2d one itself, for, a condition shadow on appropriately issue is before us: Whether merits, Daley receiving decision on that the Congress could have believed clas not his own ex- wager had to implemented by legislation sification penses do but also Johnson’s. We relationship legiti had rational to some problemat- think that fee-shifting laws are purpose. id. government mate See ic; times, many have been sustained conducting inquiry, the classification (7th Mann, see In re 311 F.3d strong presumption “is accorded a of valid Cir.2002) cases); (collecting nothing Doe, 312, 319, ity,” Heller v. Lindsey implies fee-shifting ever is (1993), S.Ct. and required. upheld long must be so as there is some double-or-nothing Unlike the statute in “reasonably conceivable state of facts that Lindsey, compel the PLRA does not provide a rational basis for the clas pay (compared defendant to extra with sification,” Communications, Beach 1988) a condition of a receiving as deci- 313, 113 at sion on the merits. The district court Congress enacted the classifica- When head, Lindsey treating turned it a its as ease, specific question tion in this had requirement that one side subsidize the (1) goals bring mind: to relief to a by enough litigation other to ensure that that, justice system federal civil in its Nothing occurs. of the kind can be found view, by was overburdened meritless law- (which, recall, in Lindsey that a held sin- by prisoners; brought suits gle-bond im- requirement is valid even for tenants) protect public treasury from unwise pecunious in any other decision expenditures. Cong. See Rec. which we are aware. If the American S14611-01, is, Sept. constitutional, (daily at S14626 ed. Rule is which it there can 1995) (statement Hatch) (“This be no of Sen. validity doubt about PLRA, legislation help bring landmark will relief impose “litigation which does not a prisoners simply justice system tax” on to a civil reduces the overburdened evidence, lawsuits.”); Congress be drawn from the Cong. was prisoner frivolous S7498-01, (daily May ed. at S7524 entitled to conclude that these factors lead Rec. (“[W]e 1995) (statement Dole) high potential Sen. gains see explosion in alarming bringing litigation have witnessed opportunity and low of lawsuits filed State the number costs associated with the venture. See Frivolous lawsuits prisoners.... Boivin, 44; Madrid, Federal 225 F.3d at 190 F.3d courts, waste by prisoners up tie filed 996; S7498-01, Cong. at see also 141 Rec. resources, judicial valuable 1995) (state- (daily May ed. S7526 justice by the quality enjoyed affect the (“Unlike Kyi) prospec- ment of Sen. other law-abiding population.”); id. at S7526 status, litigants poor person tive who seek (“The (statement Kyi) volume of Sen. prisoners have all the of life necessities rеpresents large bur- prisoner litigation supplied, including required materials is al- judicial system, on the den bring prisoner their For a lawsuits. by increases non- ready overburdened status, qualifies poor person who for there litigation.”); Cong. Rec. prisoner and, therefore, bring is no cost to a suit no S14312-03, (daily Sept. ed. S14317 limit incentive to suits to cases that have 1995) (statement Abraham) (“[A]t- of Sen. success.”). chance of Congress may some relat- torney’s proportionally fees must be wrong coming well have been dead longer court ordered relief. No ed to the conclusion, say but we cannot that the attorneys charge mas- will be allowed presenting decision to view amounts to the State for the service sive special problems requiring special reme- violations.”). correcting minimal These dy was an irrational one. certainly legitimate government con- Nor does rational basis standard cerns, certainly open and it is to us permit judgment us to substitute our second-guess congressional judgment Congress the determination of with re- a need to address these there was spect appropriate to the means to address had a problems. Congress sufficient basis problems. manner in present the identified One for its determination Congress prob- state of civil in the federal courts which chose to address the required legislative intervention. imposing lem was restrictions on attorneys’ fees available for the successful grounds also had sufficient litigation brought by § 1983 prosecution of that, respect to civil concluding approach certainly not prisoner. This litigation, prisoners present unique situa- way addressing remedy. requires particularized tion that it, litigation problem. proba- Nor is in all (1st Black, 36, 44 See Boivin v. 225 F.3d bility, may the best one. It well be correct Cir.2000); Gomez, 990, 190 Madrid v. F.3d fees, attorneys’ that the restriction on Cir.1999). (9th hardships pris- 996 discouraging attorneys bring- from while life, prisoners’ lack of control cases, prevent the ing hardly frivolous will incarceration, the conditions of their over suits bringing from the same time, availability great of a deal of free the assistance of counsel. It also without of the usual economic absence may attorneys’ turn that the fees re- out all initiating legal disincentives in action than good striction does more harm type to affect the combine attorneys taking from merito- discouraging prisoners, brought by frequency thereby reducing the effec- in rious cases and brought, it and the manner Indeed, §of 1983. the restriction Al- tiveness presented which it is to the courts. of meritorious reasonably might might сonclusions increase number though other 600 313, 113 As as our long S.Ct. 2096. brought by prisoners without the U.S.

cases in- counsel and therefore legislators assistance of could have had a rational basis judicial action, resources significantly crease judg for their we must allow their needed to unravel the issues. right to de ment to stand. We have no perfect, Congress mand that achieve a possi- concerns demonstrate the These perfect, even a near accommodation be might misjudged bility Congress that have Heller, ends. tween means and See remedy the effectiveness of (“[Cjourts 321, 113 U.S. at S.Ct. may made an Congress chose. That have compelled under rational-basis review to remedy unwise choice of does not estab- accept legislature’s generalizations even however, lish, acted irra- Congress imperfect fit when there is between Bd. Retire- tionally. See Massachusetts ends.”). Indeed, 307, 316, Congress has means Murgia, 421 ment v. U.S. (1976) experiment. It can (per perfect right L.Ed.2d 520 (“[T]he curiam) “solution,” cho- perhaps implement State has not monitor its effec accomplish [its] sen the best means to change tiveness and later determine to test, purpose. rationality But where is the quest course its for a solution. Equal not violate the Protec- State ‘does basis, join judgment I of the On merely the classifica- tion Clause because court. ” imperfect.’ tions made its laws are Williams, Dandridge v. (quoting ROVNER, ILANA DIAMOND Circuit 471, 485, EVANS, Judge, with whom DIANE P. (1970))). Congress may thought well have WOOD, WILLIAMS, Judges, Circuit that, lawyers declined to take meritless join, dissenting. lawsuits, prisoners, provi- aware of other concluding provision that this PLRA sions, including provi- the “three strikes” relationship scrutiny, satisfies rational PLRA, implicit sion of the would take the majority as well as other courts have held attorney’s in the advice decision decide Congress rationally believe the bring not to the cases on their own. See provisions PLRA furthered its interest Bain, (6th Walker v. 257 F.3d deterring litigation. frivolous or trivial Cir.2001); Johnson, Hadix v. 230 F.3d journey from the fee restric- (6th Cir.2001). Congress also tions to the reduction trivial or frivolous that, in might past, have believed at- however, filings, requires many leaps, so torneys brought good had number ridiculous, many destroy any as to sem- that, hope despite lawsuits in the meritless rationality. blance of To believe that the suit, recovery frivolousness impacts filing fee restriction decision of might obtained. be See Jackson v. State pro prisoners, se would have to Paroles, Bd. Pardons & 331 F.3d of (11th (1) prisoners believe that inclined Cir.2003); Walker, 257 F.3d at Hadix, bring frivolous or trivial lawsuits and 669; 230 F.3d at 845. Congress those would not be deterred wrong making well have been such filing such estimations; least, suits the likelihood very at the it may have damages their would minimal or own attorneys’ overestimated the value of the (3) But, prisoners non-existent but those would remedy. fees restriction as a in im- test, filing be deterred from those suits plementing the rational basis we are prospect grading not that the fees available to their as- legislative wisdom of the Heller, attorneys branch. See 509 U.S. at 113 then non-existent were restrict- (4) 2637; Communications, Beach PLRA though 508 ed under the even those rendering prison- entitled to it even more difficult for not have been attorneys would PLRA absent the present for such suits even adequately ers to these meritori- (5) chances of those though courts, and even ous claims to the and more difficult prac- obtaining counsel was prisoners ever willing for the court to find counsel nil, only prisoner 1% of tically given accept appointments represent prison- private attorneys, cases involve rights civil government cases. The ers such does counsel appointed involve and another 4% purport legitimate to have a interest in (who appointed not be presumably would deterring prisoners filing meritorious cases). hypothetical for our trivial/frivolous suits, it, provi- nor therefore Henry Da- Roger A. Hanson & W.K. See sion is unconstitutional. Prison ley, Challenging the Conditions of apply equal pro- Rather than traditional Liti- Report A on Section 1983 and Jails: (1995); see, analysis tection classification at is- e.g., 21-22 McKeever gation Cir.1982) (7th Israel, here, F.2d sue as did all of the other circuits to (in appoint coun- determining claim, whether plurality opinion consider this sel, is whether the question “the threshold free-ranging in a engages discussion merit”). Such a belief claim is of sufficient myriad unrelated statutes under the man- alternative, fanciful, not rational. answering “equal tra the question com- impacts that the fee restriction to believe pared to what?” But the classification attorneys bringing of private the decision mystery singling issue here is not —the prisoners, Congress suits on behalf such prisoners out of from the 1988 fee struc- (1) there are have to believe that would all rights ture available to other civil liti- willing bring are private who attorneys gants the sole issue in this case is —and despite the on behalf of suits rationally that classification is re- whether proof and the ab- difficult standards legitimate governmental goal. lated to a damages of traditional such as lost sence question, addressing Rather than (2) earnings and future those wages poli- a host unrelated plurality examines frivolous аttorneys would file a or .trivial cy including issues whether the fees avail- though lawsuit even fees for such lawsuits generous actions too rights able civil are not available under 1988 but are compared with those available in other attorneys would decide not to those same of actions and whether causes merely file the law suit once fees were worthy of benefits than other are less PLRA. sequence restricted under the This interesting Those are issues for groups. considering made even more ridiculous candidates, legislators political but all civil prisoner 1% of here, irrelevant to the are mere detours private attorneys, in- litigation involves protection plu- claim before us. The equal ACLU, yet cluding groups such as the rality approach in stark contrast to stands are asked to believe that we circuits to consider the that of the other attorneys think those rationally could issue, engaged in a which at least have bring the frivolous or trivial choosing straightforward analysis of the classifica- be deterred from that lawsuits equal protec- traditional applied tion and under the course the fee restriction plurality analysis tion to the issue. prohibition under but not the fee equal opinion travels so far afield from If is a rational this connection jurisprudence opinion in its protection one, all truly then this test has lost mean- rationality of we can examine the before ing. only impact provision will here, actions, we are issue have is on the meritorious classification actions, nor equal in fees be across causes of clarify not at issue compelled to what is that any there constitutional mandate this case. must be lower a court deems fees important” I. or the cause of action “less worthy.” wide-rang- litigants “less Such First, right of no one claims equal protection clause ing approach to the right is a of subsidized access to the courts “super-legis- courts into a would transform demonstrating that there is no access. Doe, Heller v. Doe lature.” See fees, right attorney’s constitutional 312, 319, 2637, 125 L.Ed.2d opinion lists a of constitu- plurality number (rational in equal basis review right no of rights tional for which there is judicia- protection does not “authorize ‘the undisputed that is funding, point but it is a judge ry superlegislature sit as a [to] gratuitous. the discussion is and therefore desirability legislative or of the wisdom pris- concerning whether This is not case ”). policy determinations’ We are not the oners, any persons, other have a consti- or body whether proper to determinе attorney’s fees in civil right tutional spectrum prisoners of benefits afforded whether, issue here is litigation. veterans, or wheth- given more than those in prevailing plaintiffs granting fees to persons prisoners group er or other actions, may rights civil constitu- deserving than veter- less benefits persons tionally single group out one get ans and therefore should less. The (as treatment, parties all well differing approach end result such an be issue) circuits to as the other consider suspect majority that I would not one agree relationship that the rational test is compare af- endorse. Should we benefits appropriate analyzing one for given with those to im- elderly forded the question. poverished about those children? What Second, forum ana- this case is not a regardless of in- given to senior citizens lyze attorney’s should whether opposed provided to those to the come as rights litigation as a available civil working poor, unemployed? or to the Are whole, im- whether such is more worthy? judge we to who is more Of portant types litigation, than other not. The court ventures into that course prisoners group are a whether as whole dangerous territory comparing the fees persons.” worthy less of fees than “free provided available to with those Although a discussion in the current such statutes, comparison under other climate well foster a visceral reaction protection jurispru- in equal has no basis (why outrage should veterans have dence. right prisoners!), lesser to fees than it is Moreover, illusory comparison comparison illusory an unrelated to the is an issue, ap- one for another reason. The PLRA equal protection foments the prisoners. type plies rights of resentment towards a disfavored to all civil actions group equal protection particular happens that the clause is This case to address care, un- designed appropriate to address. It is difficult to the denial of medical why plurality plurality comparison which leads into a derstand so much of opinion comparison relating is devoted to a of the with other unrelated statutes malprac- including fees available to civil medical medical care— law, FTCA, persons tort and Medicaid. suits with the fees available tice just easily miscellaneous other causes of actions. But the case could have entirely field of requirement There is no constitutional involved different law. action, exception if the civil cause of with the plurаlity’s approach, of the Under IDEA shortly. un- which we will discuss The concerned the conditions rights claim PLRA, however, live, just creates such classi- prisoner was forced to der which the fication within cause of action. Section habitability provi- examine all we would attorney’s grants prevailing fees to sions, logical laws. The or landlord-tenant plaintiffs rights litigation. civil The in that approach of that would be extension specifically PLRA targets those litigants, provision PLRA constitutionality of the sub-group (prisoners) creates that depending on the nature might vary well fees, will not have the same access pro- underlying equal of the lawsuit. stating brought by that action “[i]n free-rang- requires tection clause no such prisoner ... attorney’s are ing examination of the fairness wisdom fees authorized under section 1988 [footnote provision light analogous of a of title, of this such fees shall not omitted] fact, raising unrelated statutes. after that_” except awarded It is that classi- plurality explic- comparisons, the false fication between un- classes individuals itly recognizes upon the numbers pass equal protection der 1988 that must much of its argument which it bases scrutiny. directly comparable.” Op. “not at 590. example may fallacy An illustrate the plurality appear the end does not plurality’s approach. Suppose instead questioning availability to be of attor- limiting prisoners, fees for the PLRA ney’s prisoners fees to as much as the availability reduced the of fees under allowance of suits under 1983 at blue-eyed litigants. 1988 for all Under analysis challenges why all. Much of its plurality’s Reasoning, there would be litigate are allowed to at all for protection problem no equal stat- indifference to their serious deliberate arguments ute. The same justify used to needs, comparing prisoners’ litiga- medical apply the restriction for and med- options tion to those of veterans blue-eyed blue-eyed litigants: rights civil recipients among icaid others. But that is litigants “decidedly would still be better subject provisions not the of the PLRA off’ under those fee restrictions than vet- are concerned here before us. We persons claiming erans under the FTCA or un- attorney’s with the restriction on fees Security pro- under the Social benefits PLRA, der the not the wisdom gram; litigants in those other causes of statutes, litigation options among varying attorney represen- manage action to obtain place this discussion has no and therefore tation so there is no reason believe equal protection analysis in an equal necessary blue-eyed fees are for the provision at issue here. same; rights litigants civil to do the civil stated, question “equal com- As we nearly important rights litigation is pared by compar- is not answered conviction, what” as' collateral attacks on a ing prisoners in civil actions to liti- there; there there are less fees available fees; causes of actions. For gants unrelated right attorney’s no constitutional unrelated causes of nearly all those finally, widely other statutes have di- (i.e. law, FTCA, structures, tort malpractice action vergent fee “what etc.), filing all claimants suit under those systems that all of these different means is identically. Although Yet thought actions are treated could be rational solutions.” availability people would balk at the there be variations most rational could, actions, consistent among suggestion different causes of protection, single persons out discrepancy equal there is no such within a with eye a deny Calloway with certain color and them considered the constitutionali- ty provision of a that limited the fees that attorney’s litigants fees as all other same pay the District of could to at- Columbia pursuing the same constitutional claims. torneys prevailing parties in IDEA That is because the detour into other singling lawsuits. The reason for out Dis- focus, ignores proper causes of actions litigants trict of from all other Columbia which is on the classification itself viewed record, litigants IDEA was clear authorizing in the context of the statute alone, that in year which demonstrated one particular for that cause of action. “although [District the DCPS of Columbia rationally The classification must be relat- Schools] Public served less than two-thou- legitimate governmental goal. ed to the percent sandths of one of the nation’s dis- analysis That is not even addressed until students, forty-five percent abled over plurality opinion, well into the but it is the requests process hearings for due nation- purposes equal relevant one for wide were made in Id. at 4. D.C.” Because protection. plurality’s polemic may The attorney’s fees were available under the (intuitive) appeal only have because ex- IDEA, representation in D.C. had ploits our preconceptions pris- own about grown from an obscure niche into boom- oners as a class and their worthiness —in ing, industry, lucrative costing the DCPS words, other highlights why because it in attorney’s over million fees in fiscal $10 group. disfavored But that year Secretary 1998. Id. The of Educatiоn tendency act arbitrarily against a disfa- compliance had determined that immediate group vored precisely why the reason requirements the DCPS with the of the protection the equal necessary. clause is IDEA was feasible because the root extensive; causes of its failures were so Only examples one of offered Secretary had thus entered into com- plurality, that of the District of Columbia pliance agreement with mandating DCPS IDEA, actually claimants under the ad- compliance full years. within three Id. sub-group litigants dresses a who were Against background, this unusual Con- singled compared out for reduced fees as gress acted to reduce the amount of attor- asserting others the same cause of ac- ney’s fees for IDEA available actions tion. The in Calloway upheld D.C. Circuit D.C. The D.C. Circuit considered whether that disparity only after determining the classification at issue there —the sin- rationally classification was related to gling litigants out of D.C. from other the legitimate goal of addressing acute IDEA litigants rationally related to —was funding need in the District. 216 F.3d legitimate governmental goal. gov- Notably, uphold the court did not the clas- ernment “in argued that view of DCPS’s theory proposed sification under the inability manifest to meet obligations its majority that all vary fee structures IDEA, under Congress rationally could and therefore all could be considered ra- impor- have concluded that ‘it was more tional, uphold nor did it it because the fees spend tant for the District to its funds on that remained available were better than remedying systemic those pro- defects and groups those afforded other such as veter- viding primary upon services rather than ” Indeed, ans. Calloway provides sup- no litigation fees.’ Id. at 8. The D.C. Circuit port presented for the theories in this held that rationally believe majority opinion. A glance at Calloway is limiting payments attorneys revealing its contrast present to the leave more funds available for direct ser- vices, case. assisting and that disabled children Moreover, primary damages compared edu- cannot be funds towards by allocating any meaning versus non- attorney’s with rather than cational services prisoner litigation, because the absence of goal. governmental legitimate fees was capacity in earning necessarily the former provision sur- Accordingly, the Id. at 8-9. damages. good skews the This case is a protection scrutiny. equal vived example discrepancy. Diagnosed no sim- plurality opinion establishes disease, stage with end liver Johnson attorney’s between reduced ilar"connection lapsed multiple into a coma In times. rights litigation in civil and prisoner fees February by he was examined Dr. any governmental goal. Unlike legitimate Musat, Alexandra medical director of the booming, is no lucrative Calloway, there Program Liver at the Uni- Transplantation prisoner segment in of civil business versity Hospital, Wisconsin who recom- pris- only With 1% of all rights litigation. mended that Johnson should evaluated involving attor- rights oner civil cases even appropri- to determine whether he was an court, that can neys appointed by not transplant, ate candidate for a liver as “the a fee drain possibly be identified as only option for viable resolution of his litigants proportion to the other out symptoms and liver failure.” Without a It rights under the civil statutes.. transplant, liver Dr. Musat estimated that attorney’s between connection expectancy Johnson’s life would be plu- that the governmental goal legitimate range years. of three to four makes, instead to rality choosing never Daley, defendant Dr. George The a condemna- opinion devote much of the medical director of the Bureau of Correc- gen- prisoner rights litigation tion of civil tional Health Services for- the Wisconsin (without attorney repre- erally regard to Corrections, Department of to au- refused fees) decrying or the extent of sentation thorize that evaluation. On a number of rights gener- in civil actions fees available occasions, Daley Dr. denied subsequent compared causes of ac- ally as with other requests prison written two doctors majority appears to deem tions that the seeking authorization the treatment Protection significant. Equal more recommended Dr. Musat. Johnson Clause, however, the fit addresses be- pursuant then filed suit U.S.C. particular classification and the tween him alleging Daley that Dr. denied and that is legitimate governmental goal, adequate medical care for his liver disease lacking here. In Eighth in violation of the Amendment. In effort its discussion to a late to tie court dismissed that July the district equal protection analysis, the traditional prejudice without for failure to ex- action plurality declares that the other statutes remedies, but haust administrative attorney’s with lesser fees are relevant complaint reinstated in December was litigants under those comparisons because satisfied the exhaus- after Johnson obtaining statutes do not have difficulties April Dr. Da- requirement. tion counsel, could as- and therefore approved request to have ley finally under a more favor- University sume Johnson evaluated statutory structure would not either. transplant, able liver Wisconsin comparison superficial That is so as to be University of Wisconsin June First, Daley, meaningless. Hospital, approval as has been men- of Dr. tioned, list as a placed the focus on medical cases is mis- name on the Johnson’s potential recipient in all for a donated liver. placed, because the PLRA limits fees proceeded to trial on the issues actions. The case types prisoner rights civil provisions, initial the evalua- utes with less fee Con- of whether the denials of liberal gress widely conclude would be deliberate indifference to tion constituted pre- the PLRA. But even available under serious medical needs Johnson’s PLRA, attorneys rarely were available three-year delay in evaluation whether the prisoners. represented by Prisoners are transplant on the list placement litiga- of all attorneys only prisoner 4% him harm. caused tion, majority and the vast of those attor- and the Despite length delay neys appointed. are court Because attor- life, recognized clear risk to Johnson’s civil neys were scarce doctors, prison was even Johnson the PLRA reduced litigation even before $10,000 in compensatory awarded fees, comparison to other statutes $30,000 punitive damages, damages and meaningless. undoubtedly amounts that would have plurality opinion raises a host of prisoner. higher much were he not been questionable arguments, other the plurality opinion reflects the de- Even the prisoners that all are liars least of which is life, prisoner’s stating a dis- valuation of and all of their cases lost are lost because missively appears that “he to have suffered imagine any It is difficult to lied. long-term injury delay,” from the but no persons group other of for whom such “[njonetheless, jury agreed that (and generaliza- sweeping unsupported) him ... ... and awarded dam- Johnson tolerated, let alone given tions would be plurality I that ages.” doubt the would be credence, judicial opinion. in a Neverthe- three-year delay in so cavalier about less, generalizations the do not further the placed transplant on a if it being list were fact, plurality’s argument. many of awaiting life-saving one they or loved alleged prisoner posited by those traits the plurality opinion and the procedure, fails fil- plurality would demonstrate that their lawsuit, tо mention that but for the John- entirely by ing decisions are unaffected probably still not be on the son is, instance, attorney’s fees. There no transplant list. prisoners reason to believe that motivated reality deep-seated that the is both away get day file lawsuits to from prisoners antipathy societal towards as a time, prison, pass pris- the or to harass wages class as well as the absence of lost staff, on will moved to be abstain earnings damages or future ensures that by prospect such conduct the that their prisoner nearly cases will al- damages hypothetical attorney future will receive ways Roger minimal. See A. Hanson & if less the suit is successful. But Henry Daley, Challenging the Con- W.K. precisely rationality that is the basis Report ditions Prison and A on Jails: analysis plurality. plu- offered the of Litigation (recog- Section 1983 rality preconceptions further these uses prisoner that nizing settlements ver- engage about character to in an even more wages are because are non- dicts smaller fanciful hypothetical calculation of the ef- component existent and a substantial of prisoner of fects on behavior. compensatory ‍​‌‌‌​‌​‌​​‌​​‌​‌​​‌​‌‌​‌‌‌​‌​​‌​​​​​‌‌‌‌​​​​​​‌​‍damages is either lost instance, assuming prisoners For all are wages earnings). More funda- foregone liars, plurality postulates that a frivo- mentally, comparison with the other recognized lous case often will not be extrapolation trial, statutes is flawed in its of such until ignores but experience under other statutes to this reality majority that the vast of if plurality evidentiary context. The concludes that cases are without an resolved attorneys widely hearing. Roger Henry are under See A. Hanson & available stat- Furthermore, prison sions context. Challenging the Conditions Daley, W.K. Report majority A on Section declares that “even and Jails: 80% Prison (1995) (noting that evi- Litigation prisoners changes are insensible to in the hearings are not held 97% dentiary process, different behavior cases). large part are in The calculations other 20% would be welcome.” Given assumptions and un- unsupported based only repre- 4% will ever be instance, For from the factors. recognized counsel, the prediction sented 20% is fully prisoners lose 90% all statistic that we further consider that baseless. When cases, majority then assumes tried majority ap- the vast those 4% involve prisoners making claims 9 out of 10 pointed counsel and therefore are cases guards lying. out of lying, trivial, that the court does not consider Only 3% of cases unsupportable. That is potentially clear that the cases becomes evidentiary hearings or trials. Id. reach deterred are not the trivial ones which not, that do courts assume In the 97% interest, government claims an but the allegations truthful in their prisoners are meritorious in which it does not. ones lack nonetheless but find (in McKeever, F.2d at 1320 determin- rela- necessary satisfy support counsel, appoint ing whether “the prerequisites to relief tively demanding question threshold whether the claim is cases, (i.e., prisoners need to in medical merit”). No of sufficient amount of statis- malpractice, de- not mere demonstrate games rationally can tical shell establish to a serious medical indifference liberate otherwise. need). majority of overwhelming For turn, then, only present- to the issue We then, cases, there no basis to assume connection the clas- ed here —the between prisoner is that the case is lost because the legitimate governmental sification and Likewise, go the cases that of lying. proper application A of ra- interest. trial, is no reason to believe that the there PLRA relationship tional test renders the prison- that the lack of success establishes fee restrictions unconstitutional. possibility lying opposed was as to the er the corroboration prisoner that the lacked simply could not support a claim or II. burden, any in case 90% high meet the but expected All of the only

of 3% is 2.7%. analysis our with a brief ex- begin We from that false recovery calculations flow PLRA genesis of the of the planation assumption. PLRA in provisions. The was enacted of response to a veritable flood in potential reduction that merit, of it litigation, most without majority portends as a result of these courts clogged up the dockets federal provisions similarly PLRA baseless. away from merito- and drained resources instance, majority concludes that For magnitude prob- rious cases. PLRA fee will reduce the restrictions See, e.g., Roller v. apparent. lem was cases, prisoners filing percentage (4th Cir.1997) Gunn, 107 F.3d decrease, does not consider whether (“In 1995, brought 25% of over risky guards it less to en- by making in federal courts. cases filed behavior, the civil in- in unconstitutional will gage alone, pauperis in In this circuit and therefore offset crease such behavior forma (IFP) half of case, accounted for almost filings “gain.” any In alleged some of that caseload and the court’s 1995 far removed from the the calculations are fil- responsible for 75% of those reality deci- were filing issue here and the (citations omitted); provisions Although upheld we have those ings.”) Boivin (1st Cir.2000). Black, 36, 41 In against equal protection challenges, 225 F.3d each recog- addressing problem, Congress provision must on its be examined unique circumstances of nized own merits. breeding ground prison provided life in We are concerned this ease litigation. for frivolous Inmates have a 1997e(d)(2) (3), §§ in provide & which hands, no great deal of time on their brought by cases an inmate which fees Al- spend filing disincentive to suits. § are authorized under the award of though appearance a court is a nuisance attorney’s fees is limited to 150% the hardship and often a real on a non-incar- 1997e(d)(2), § judgment, amount of person, who must arrange cerated hourly payable prisoner’s rate to a care, in- off from work or child time of the hour- attorney is restricted to 150% no concerns. To the con- mate has such ly court-appointed counsel rate allowed for trary, trip to the courtroom is a benefit in criminal cases under the Criminal Jus- for an inmate is otherwise confined who (18 1997e(d)(3) 3006A), § tice Act U.S.C. addition, availability to a cell. (collectively referred to as “the PLRA fee status, provision IFP all as well restrictions”). daily prison,

the inmate’s needs in re- ap Because those PLRA fee restrictions impediment litiga- moved financial ply only to cases which fees are autho result, type tion. As a of cost-benefit rized under in order to assess the non-prisoner might assessment which equal protection challenge we first must engage, to whether the determine consti- place provisions those the context of the tutional worth the effort and issue was fees otherwise available under relief, pursuing cost of federal court was 1997e(d); Hadix, §See Martin v. artificially skewed the context of the 343, 363-64, 1998, 144 Johnson, L.Ed.2d prison suits. See Hadix v. (“[i]n (6th (Scalia, J., Cir.2000); Boivin, dissenting) F.3d 225 347 Branker, 44; reality simply F.3d at Tucker v. 142 ... the PLRA revises the G. 1294, (D.C.Cir.1998); 1988, § F.3d provided 1300 Mitchell fees and it seems (11th Farcass, 1483, v. 112 F.3d 1488-89 underlying purpose provi that the of Cir.1997); Roller, 107 F.3d at 234. Con- govern sion must its amendment as well— gress responded problem by to that en- purpose provide appropri was to acting attempt the PLRA in an to re- lawyers ate incentive for to work on epidemic prisoner dress the of frivolous cases) (among rights other civil litigation. Doe, suits.”); Heller v. Doe 509 U.S. 312, 321, 2637, 113 S.Ct. 125 L.Ed.2d 257 already upheld

We have a number of (1993) (“even rationality the standard of See, provisions PLRA as constitutional. we so often have defined it must find some (7th Sullivan, e.g., v. Lewis 279 F.3d 526 footing subject in the realities of the ad Cir.2002) (holding constitutional re- legislation”). dressed See also quirement prisoners prepay filing fees Evans, 620, Romer 517 U.S. 116 S.Ct. if v. history litigation have a of frivolous (1996) 1620, (analyzing 134 L.Ed.2d 855 except where under danger imminent light amendment in of pre-existing law to physical injury); Trigg, serious Zehner v. (7th Cir.1997) that rational relationship 133 F.3d determine test (holding 459 consti- violated); Normet, Lindsey tutional PLRA limitation that forbids re- was 405 56, 78, 862, covery damages for mental or emotional U.S. 92 S.Ct. 31 L.Ed.2d 36 prior showing physical injury). (analyzing statutory without a double-

609 surmounted, that hurdle is may the context of court requirement bond statutes); only Reitman v. in an state award fees but amount that is pre-existing 373, 1627, 369, Mulkey, light degree reásonable in of overall (1967) (in equal protection Farrar, 114, 506 success. U.S. at provision, constitutional challenge to state plaintiff prevailing S.Ct. 566. Where is a “ ‘immediate ob- court should consider its party but the is merely success technical jective,’ its ‘ultimate effect’ and its ‘histori- minimis, or de presumption is that no existing pri- and the conditions cal context 115, fees should be awarded. See id. at ”). In enacting to its enactment.’ or (where plaintiff S.Ct. 566 recovers 1988, Congress recognized that civil only damages only nominal “the reason lights damages actions for are distinct all”); usually able fee is no fee at Cole v. only private tort suits that benefit Wodziak, (7th Cir.1999) 486, 169 F.3d plaintiffs. ordinary Unlike the individual (“a paltry jury implies award ... that the rights civil suits “vindicate litigation, tort zero”); only fee reasonable Monticello important rights civil and constitutional George School Dist. No. 25 v. L. on Behalf solely monetary that cannot be valued L., (7th Brock 102 F.3d Cir. Rivera, 477 City terms.” Riverside v. 1996) (“when plaintiffs simply success is 561, 574, 106 91 L.Ed.2d minimis, technical or de no may be (1986). Congress determined that awarded, plaintiff even has succeed many victims of civil violation were ed on an may issue representation pri- to obtain unable ”); thus technically ‘prevailing party’ fees, high attorney market because of vate Constan, Maul v. 23 F.3d 145 & 147 provides payment and therefore (7th Cir.1994) (award attorney’s fees is is, large a reasonable fee—that “a fee minimis). inappropriate victory where is de competent to induce counsel to enough question The ultimate in entitlement to case, no plaintiffs larger.” handle the Sheahan, 1988, therefore, 1002 fees under is whether Simpson v. 104 F.3d Cir.1997). (7th plaintiffs victory significant Maul, merely 23 F.3d at de minimis. purpose, § al Consistent with “[njominal recognition relief does “prevail lows for the award of fees make,” necessarily victory a nominal ing parties.” In order to be considered a Farrar, U.S. at 113 S.Ct. 566 prevailing party, plaintiff must have (O’Connor, concurring), courts J. judicially sanctioned relief obtained some damages in cases of minimal award fees Specifically, merits of the claim. on the only if other factors that the establish actual relief on the plaintiff prevails when small, victory, although monetarily is actu- claim, provided by merits of the court ally significant making one. decree, materially al judgment or consent assessment, the factors we look to three the legal relationship ters the between concurrence set forth in Justice O’Connor’s parties by modifying the defendant’s be “(1) the in Farrar: the difference between way directly in a benefits the havior recovery judgment recovered and the plaintiff. Buckhannon Bd. and Care (2) sought; significance the of the Home, Virginia Dept. Inc. v. West plaintiff prevailed; Resources, issue on which the Health and Human 532 U.S. public purpose litigation.” 598, 604, 1835, 121 149 L.Ed.2d 855 S.Ct. Farrar, 122, 566; 103, (2001); 506 U.S. at 113 S.Ct. Hobby, Farrar v. 506 U.S. 1001; 111-112, 566, Briggs at v. Simpson, 121 104 F.3d 113 S.Ct. L.Ed.2d 494 Cir.1996). (7th Marshall, 355, (1992); 361 104 at 1001. 93 F.3d Simpson, F.3d Once 610 Cir.2003). (11th Paroles, that the vic- 331 F.3d those factors establish

Where signif- deserving of careful opinions de minimis but is instead Those tory is not Nevertheless, icant, split under in the be available attention. met, If those factors are then Third en banc and dissents Circuit or de plaintiff achieved a technical against caution in the Circuit cases Sixth victory minimis and fees are unavailable Apprendi judgment, a rush to course, if a case is under 1988. Of 466, 120 Jersey, New 530 U.S. S.Ct. frivolous, can be awarded under no fees (2000), 2348, 1988, plaintiffs plaintiff and in fact States, McNally v. United 483 U.S. pursuit be sanctioned for the counsel can (1987), 97 L.Ed.2d S.Ct. Farrar, 111-12, at of such a suit. U.S. nearly uniform both of which overruled 113 S.Ct. 566. precedent, certainly illustrate lower court not al- strength of numbers does

III. analysis convincing ways signify background, I turn to the With Buckhannon, Supreme Court. See PLRA restric constitutionality of the fee (noting appro that the parties agree tions. The with a ‘clear ma- disagreeing that “our is the rational re priate level review is not at all a rare jority’ of the Circuits lationship challenged test because Indeed, opinions our phenomenon. impact provisions do not fundamental the unanimous and sometimes contradict do not consti rights and interpretation of fed- long-standing lower suspect tute a class which would have courts.”). eral higher degree scrutiny. triggered that ani- begin We with the interests issue, therefore, is whether those gov- PLRA fee restrictions. The mate the rationally PLRA fee restrictions are re Daley propose possi- five ernment and Dr. legitimate governmental lated to a inter interests furthered governmental ble Although est. the district courts have inter- provisions, the fee which mirror the issue, appel on the federal diverged It ests asserted the other circuit eases. ra late courts that have considered the matter whether had does not tionality of the PLRA fee restrictions enacting in mind those interests when upheld split ques have them or on the restrictions, PLRA fee or whether sitting tion. The Third Circuit en bane conjecture, because are mere Johnson issue, split evenly had the on the every basis which negate must conceivable upholding provisions effect of as con support legislation might whether stitutional because the district court had any foundation in the not the basis has County Montgomery so held. Collins v. Heller, record. Inspectors, Bd. Prison 176 F.3d Of purport- 2637. The fee restrictions (3d Cir.1999). First, Sixth, edly government’s inter- are related to Ninth, Eighth, and Eleventh Circuits (1) deterring filing in: est frivolous provisions held Boiv constitutional. (2) claims; (1st regulating filing of suits Black, Cir.2000); in 225 F.3d 36 (3) harms; (6th predicated protecting Johnson, trivial Hadix v. 230 F.3d 840 (4) fisc; Cir.2000) court Bain, public regulating federal and Walker v. 257 F.3d (6th Cir.2001); Charrier, management into intervention States’ Foulk v. (8th Cir.2001); systems; preventing prison their 262 F.3d 687 Madrid v. (9th Gomez, Cir.1999); consider windfall fee awards. will 190 F.3d 990 We Jackson v. Board Pardons and these in turn. State circuits as well as the concur The First Circuit in Boivin Two of the faced chal- lenge analogous more to the the fee restrictions one before us. uphold here rence case, presented In that Boivin “in skeletal governmental interest solely on the based form” an argument that there was a “com- In the deterring litigation. frivolous plete lack of fit between the that Madrid, means case of the inmates Ninth Circuit fees) Congress (capping attorney’s chose government that the had a acknowledged (re- and the end that it sought to achieve deterring frivolous legitimate interest ducing prisoner litigation).” frivolous not ra filings, but maintained that was F.3d at 44-45. The First Circuit under- inmates and distinguish tional to between argument stood the to be that cap the fee that goal. non-inmates furtherance of would not deter the filing of frivolous ac- rejected F.3d at 996. The court that tions because fees are awarded argument, holding government parties. prevailing The Boivin court re- rationally could believe that are jected argument: responsible majority for the of frivolous [cjommon suggests sense this ex suits, classify and therefore could on that post Congress pre- view is untenable. in fact argument basis. Id. That consis sumably motivating feared the effect of Lewis, with our decision in 279 F.3d tent fees, ante, prospect attorneys’ ex 528-29, many the decisions of n cap and the fee quells that effect upholding circuits the constitutionali other potential capping рayoff. This ty fee of the PLRA. filing provisions of the odds, changes the and forces both law- could well have determined that Congress client, self-interest, yer and out of responsible dispropor for a inmates likely greater ‍​‌‌‌​‌​‌​​‌​​‌​‌​​‌​‌‌​‌‌‌​‌​​‌​​​​​‌‌‌‌​​​​​​‌​‍assess outcomes with care percentage tionate frivolous that, filing before a suit even nominal- courts, properly the federal and could cre successful, ly might holding leave them filings, ate a to such disincentive nearly empty bag. responsible filing them for the holding ” Id. at 45. The court’s “ex post “ex Madrid, the court held that fees. Con ” distinction, however, ante to recog- fails rationally distinguish could gress between nize that the PLRA fee do not restrictions laypersons in its effort inmates impose any added disincentive ex ante to litigation. deter frivolous filing litigation, of frivolous because parties here concede Madrid’s already prohibits for such liti- fees point government legitimate that the has a gation. Congress Boivin theorizes that deterring litigation, interest frivolous potential attorney’s feared that fees could properly and that focus provide litigation. for It then motivation dispropor- that effort on inmates who are prospect holds that of a limited fee tionately responsible problem. analysis beginning, alter that at the maintains, however, Johnson diminishing litigation. thus frivolous That PLRA fee restrictions at issue here are in- assumes an initial assessment rationally goal related to that oth- case, strength of the because mate —in words, er that the fit between the end and recovery the fee under the PLRA is tied to the means is so attenuated as to render damages attained. If 1988 autho- arbitrary. The Madrid restrictions for even frivo- payment rized the court never addressed that more critical litigation, lous then the PLRA fee restric- particular issue of whether this classifica- motivation tions would indeed reduce the availability pro- attorney filing tion—the fee restriction —is relat- that such fee true, opposite is however. goal. that vides. Just the ed to litiga- in early stage at an possible for a some merit § no fees are Under Further, only case, may cap provisions the fee in fact sanctions be tion. frivolous Therefore, prisoner in which the has litigation. apply to cases imposed for such restrictions, by very their thereby assuring PLRA fee that actually prevailed, case, meritorious.”). terms, inapplicable to such a least one claim was apply only to however, because those restrictions not and cannot government, does attornеy’s “in fees are inmate cases legitimate inter- argue that has 1988.” See authorized under section discouraging litigation in meritorious est 1997e(d)(l) (2). addition, In § & by inmates. all provisions deny § fees for frivo- of the recognition of the weakness imposing greater thus di- litigation, lous Sixth, Eighth, argument, the frivolousness PLRA filing than the sincentive ex ante extent the Eleventh Circuits some impose. themselves would fee restrictions decisions on the second assert- rested their answer how an The First Circuit failed to interest —that of decreas- governmental ed would filing litigation frivolous inmate I marginal or trivial lawsuits. will ing prospect it motivated to withdraw that purposes assume for of this dissent only 150% of the that he could obtain in- legitimate have a government fees, prior when the law

judgment as in of merito- decreasing terest the number already PLRA established that he civil suits that involve trivial rious litiga- obtain no fees at all for such government links its interest harms. goal tion. If the is to reduce frivolous decreasing litigation trivial with the fee litigation, the PLRA fee restriction adds (1) by opining that: the fee restrictions equation. The law under nothing to provide restrictions will a disincentive that already prospect § removed attorney to previously did not exist for an circumstances, any fees such and there- (2) violations; involving take a case trivial contemplative potential that any fore effect will increase the likelihood that attor- might filing fees have on the decision was neys will decline to take such cases by § already fully leveraged 1988. Given prospect in turn inmates to that will cause § prohibition on fees under 1988 for cases filing refrain such because litigation, frivolous the PLRA fee restric- se, proceed pro will have to or will cause impact on the tions have no whatsoever when unable them to abandon their suits not al- filing litigation of frivolous representation. to obtain § ready provided by language 1988. The however, PLRA no re- Again, adds acknowledges of the limit- statute already striction fees that was not ing the PLRA fee restrictions to cases § present under and therefore does § authorized under which fees are not add a disincentive for the Instead, PLRA impact fee re- litigation. file that trivial For the same strictions ex ante is on the inmate reason, fee restrictions would contemplating filing of non-frivolous impact attorney’s decision to file a litigation potentially in which fees are Hadix, place. frivolous or trivial suit the first available under 1988. See (“with the PLRA or Under either truly F.3d respect at 844 n. 3 attorney initially would need to assess the claims, plausibly frivolоus it could be ar- case, filing potential for fees before such gued provision have at best already prohibits and because very attenuated effect on the suit, inmate, the PLRA a frivolous or trivial pro decision of a se whose claims possessing at least does not create additional disincentive must be certified as 566; All the PLRA does is filing Simpson, suits. 104 F.3d at 1001. such attorneys filing prisoner frivolous notify government The argue, does not nor could that rights get it, civil actions will it legitimate that has a interest dis- maximum of 150% of zero instead of zero. couraging filing of constitutional claims in Hadix The Sixth Circuit and Walker involving significant public interest. PLRA analyze failed to restrictions Therefore, exception that inapplicable. § generally, context of 1988 fees are left pre-existing § We with the therefore did not address whether presumes law that that no fees are avail- PLRA fee restriction added disincen- minimis able for cases involving de or trivi- already provided by that not tive was Therefore, PLRA, al harms. before the an § 1988 fee restrictions. Because the inmate deciding whether to file a lawsuit Eighth analysis entirely Circuit’s consisted presented prospect with the Walker, quote of a and the Eleventh attorney’s fees for meritorious in- cases merely quoted and Hadix Circuit Walker harms, volving significant but with no fees separate analysis, without those decisions if prevailed available the suit but involved shortcoming. manifest the same The harms, only trivial and with no fees and critical, however, in de- 1988 context possibly if sanctions the suit was frivolous. termining whether the means are rational- PLRA nothing fee restrictions do ends; ly related to the the search for a alter the quo status for the inmate who objec- link the classification and between brings the frivolous or trivial suit. It substance to the re- gives tive is what only serves significant create a disad- Romer, equal protection. quirement vantage for those presenting significant, (to 632-33, 517 U.S. at 116 S.Ct. 1620 challenges. again, meritorious Once how- relationship scrutiny, rational survive ever, government does not allege that enough scope law must be “narrow and it legitimate deterring has interest in a factual grounded sufficient context for suits, filing of such meritorious nor does it us to ascertain some relation between the argue opposed as to others served”). purpose and the classification it responsible are for more of those suits or restriction, placed The PLRA fee proper single are otherwise a class to out remedy context of the that it modi- goal. for such a fies, step fails to cross the first in the Even fеes were available under three-step sequence supposedly that would attorneys representing prisoners in triv- litigation, the volume of trivial reduce be- actions, ial civil of cases subset provide it does not cause disincentive category impacted by in that an previously that did not exist for attor- fee restrictions is so small that ney a case involving to take trivial viola- actually begin be zero. We with the reali- attorney’s tions. That is because fees are ty 1% of all cases even already presumptively unavailable in cases private attorneys. involve other 4% or de involving trivial minimis violations. counsel, appointed involve defini- supra Only See discussion 590-592. appoint tion in trivial courts do counsel where other factors establish that seem- cases, we are cases. Within 1% ingly victory actually signifi- minimal was cant, asked to believe that some of those cases significant it involves a where attorney trivial but an nonetheless important public issue serves interest, agreed represent prisoner, that the will fees be available for a case attorney filing that would otherwise be considered trivial would not be deterred from Farrar, 122, by prospect or de minimis. 506 U.S. at of little or no fees under 614 that The court further noted Id. at 896. restriction of “qualitative”

the was to dis- purported goal although by deterred attorney will be that the cases, there was “no courage frivolous PLRA. of the restriction “quantitative” being appointed in friv- chance” of counsel to believe is no reason There cases, only pris- accordingly olous reach. hypothetical cases fall within provisions the fee were oners affected court, reality faced with the The district complaints for those who filed meritorious basis, daily was on a prisoner litigation of counsel the court could not secure whom reasoning. of The skeptical of this line fees available under because of the limited pris nearly “in 100%” of noted that court goal reducing of Congress’ the PLRA. representation, involving cases oner on federal courts prisoner suits burden court, appointed by the attorneys were be ill-served a fee restriction 1,980 rights civil cases prisoner that of the plod through pro forced district courts to federal courts be in the Wisconsin filed because of filings se meritorious cases September January 1995 and tween appointed counsel. inability obtain appointed. Johnson had counsel 2.5% reality in which the fee restrictions F.Supp.2d Daley, negated purported connection operates (W.D.Wis.2000); Roger also A. Hanson see goals. the classification and the between Dept. Henry Daley, United States & W.K. 900; Heller, at Id at see U.S. Statistics, Justice, Bureau of Justice 2637(noting that “even the standard Prisons and Challenging the Conditions rationality we so often have defined it Litiga Report A on Section Jails: footing find some the realities of must (re (Table 6) (Dec.1994) tion, at 21-22 subject legislation”). addressed rights civil counting that 96% hand, PLRA the other fee re- On se, attorneys pro actions are filed foreseeable, direct, very strictions have private appointed approximately 4% impact and inevitable on the meritorious of the attorneys approximately 1% by attorneys, ap- actions filed whether cases). thirty that in The court noted its pointed privately retained. Where the cases, handling prison civil years of governmental in- alleged relation with the attorney it think of none that were dubious, impact and the terest is F.Supp.2d initiated. an unrelated class of meritorious cases so that the asserted connec court concluded severe, connection obvious and no rational and attor filing tion between the decision and the exists the classification between tenuous: ney’s fees"was too purported interest. argument

At the of defendant’s heart emphasize not con- I must that we are perform a idea that cost- possibility here with the that the cerned deciding whether to analysis benefit merely PLRA fee restrictions are cumula- lawsuit, fac- weighing variety file a provisions §in do tive of 1988. Statutes to as- Although it is reasonable tors. equal protection solely not violate because this, pro prisoner does do sume that a se they overlap pre- somewhat with other it irrational to conclude that he bases problem in this existing remedies. The possibility justi- his decision on the distant government case is that the interest time, presently that at future his is in the deterrence fying some the classification suits, PLRA lawyer might yet recover of frivolous and trivial non-existent apply larger amount of restrictions will not even to such smaller rather than language suits. The clarifies fees. apply to actions in cient factual context for that the fee restrictions Court to ascertain authorized, 1988 fees thus some relation between the classification starting serves); contours of 1988 the making purpose Heller, and the analysis. 2637(“even Because no fees are point in the the stan cases, or trivial available for frivolous rationality dard of as we so often have apply PLRA fee restrictions will never to defined it must find some in footing the cases, governmen- and therefore the such subject realities of the addressed the deterring those cases is tal interest legislation”); 78, Lindsey, 405 at U.S. wholly inapposite. 862 (analyzing statutory S.Ct. the double- bond requirement in the context of the fit

Although the between means and statutes). pre-existing state The PLRA perfect, there ends need must be fee go beyond restrictions well being legislation some fit in order for the to somewhat under-inclusive or relationship If over-inclu scrutiny. survive rational sive; rather, essentially all deterring the interest is frivolous and of the interests legislation im- the restrictions litigation, allegedly target trivial the are pacts only litiga- 1988, non-trivial meritorious excluded from its reach where tion, lacking. present that fit is case as the PLRA fee restrictions have a di rect, to the lack of fit bears witness between impact foreseeable on the class the fee restrictions and the deterrence of litigation in in claims no litigation. frivolous Johnson’s meritorious Burlington terest. Northern R. Co. v. placed claim concerned actions which his Ford, 648, 653, 2184, 504 U.S. 112 S.Ct. danger. life in His claim cannot be char- 119 L.Ed.2d 432 (recognizing that as any acterized trivial under definition of protection equal clause is violated the Nevertheless, presented that term. he evi- under-inclusiveness and over-inclusiveness dence to the district court that at least great is so that the rules can no longer be private attorneys four refused to take his rationally implement said policy case, representation only and he obtained Evans, 620, judgment); Romer v. 517 U.S. him appointed after counsel was 632, 1620, 116 S.Ct. attorney, district court. That ac- having (1996) (amendment fails rational relation court, cepted appointment from is ship test where “its sheer breadth is so prospect recovering now faced with the with discontinuous the reasons offered for fees which are inadequate compensate inexplicable by it that seems anything [it] reasonably expended for the effort and the affects”). but animus toward the class it undertaken, meager compen- risk and that completely are Where means divorced solely sation is attributable to the status of end, here, fails the client as incarcerated rather than to relationship the rational test. See Massa course, the relative merit of the claim. Of Murgia, chusetts Bd. Retirement v. a statute does not fail the rational rela- 307, 314, U.S. 96 S.Ct. 49 L.Ed.2d tionship solely imprecise test because its (1976) (examining mandatory whether impacts persons beyond reach those with- retirement statute “has the effect of ex Neither, legitimate in its interest. howev- cluding from who service so few officers er, analyze can we claim in some kind unqualified age fact as to render Never-Neverland, where the context wholly objec a criterion unrelated to the actual and the reach of the statute are statute.”). tive Romer, 632-33, ignored. See (to required 116 S.Ct. 1620 survive rational This if the ration- relation conclusion scrutiny, grounded relationship inquiry law must be al suffi- retain provide undertaking all, compelled with an anal- comports

meaning at case, Lindsey v. Supreme of twice the ogous payment Court sureties for the two Normet, 92 S.Ct. and if the premises, value of the rental (1972). Lindsey, the Court L.Ed.2d 36 affirmed, landlord was judgment was constitutionality of an Ore- addressed to twice the rents automatically entitled and Detainer statute Entry gon Forcible Id. at during appeal. accruing an adverse appealing tenants required 862. post bond twice determination analysis its of the dou- began The Court expected to accrue the rent amount of by recognizing provision decision. Id. ble-bond appellate pending interest governmental required though even the state is not require- for that double-bond advanced review, appeal an appellate when provide appeals for prevent frivolous ment was afforded, required that equal protection absent an add- dilatory purposes, because arbitrarily capricious- right the not be no tenant would have disincen- ed cost the litigants and not oth- ly granted some Additionally, forego appeal. the tive to 77, 862. We are ers. 405 U.S. at 92 S.Ct. Supreme opined Court that the Oregon the here: presented with a similar situation compen- payment bond would additional provide required was not in lieu of dam- for or would be sate waste fees, awarding attorney’s for mechanism holding over. Id. at ages for unlawful provided the fees cannot be arbi- but once 862. S.Ct. trarily capriciously denied to one class analyzed Court the Supreme The U.S. violating equal protec- litigants without in the context of the provision double-bond tion. for Oregon appeal provisions pre-existing 74-78, Id. at 92 S.Ct. went on to generally. Although Lindsey civil cases the Court ordinary litigation, civil the liti- 862. legitimate acknowledge Oregon that had undertaking to file an gant required was post in ensuring appellants interest that all covering or more sureties with one adequate security appeal, for the Court costs and disbursements which damages, did requirement held that the double-bond against appellant might be awarded purpose. that not effectuate Court Moreover, appellant an to ob- appeal. for already emphasized undertaking that the involving stay tain a of execution a case protected by assuring pay- the landlord had monetary judgment, undertaking protection accrued rent and ment appellant would provide to also that 77-78, at 862. against waste. Id. S.Ct. satisfy appeal. if she lost the judgment rejected that dou- The Court the claim proper- was for real judgment Where the provision would screen out frivo- ble-bond ty, provide had to undertaking appeals, only because “it not bars lous no waste dur- appellant would commit appeals by are un- nonfrivolous those who ing pendency appeal, it also allows post able to the bond but during that pay property for the use of appeals by meritless others who can afford appeal. appellant time should the lose Thus, the bond.” Id. at 74-75, The double- Id. 92 S.Ct. 862. recognized the Court the statute was provision imposed bond additional obli- deficient because it was both over— and Entry gations appeals from Forcible under-inclusive, pre-existing and because In addition to judgments. and Detainer already protected the state’s as- statutes all liti- undertaking required civil an action was serted interest. gants, appellant such parallel prob- pose of disadvantaging group criticisms bur- Lindsey’s, Romer, the PLRA. The assert- presented lems dened the law. deterring frivolous and triv-

ed interests 116 S.Ct. 1620. The fit between means already covered ial and ends is even more attenuated at all does not allow in Lindsey, case than and therefore the context, In that the limita- in such cases. PLRA fee equal protec- restrictions violate meaningless on the amount of fees is tion Yeager, tion. See also Rinaldi v. Moreover, of cases. type for those 305, 310, non-trivial, impacts inevitably (1966) (invalidating requirement civil cases which Con-

meritorious persons repay incarcerated the costs of in deterring. claims no interest gress transcripts; holding that in- statutory impact magni- of the 150% limitations are terest in deterring appeals frivolous cannot context, prison damage fied in the where equal protection scrutiny survive because consistently lower than are awards are the statute inevitably many burdens whose provided by non-prisoners in actions nonfrivolous, appeals unsuccessful were recovery of no much where the risk leaving many while untouched ap- whose greater. By linking percentage fees to a frivolous.) peals were damages, of those lower the fee has a The remaining interests asserted the impact prison in greater adverse con- government similarly are insufficient experienced in non- might text than be survive even scrutiny. that minimal level of litigation. Finally, the fee re- government maintains that just strictions at issue in this case are two fee rationally restrictions are related to in of a number of other restrictions on fees government in reducing interests fed- 1997e(d). 1997e(d)(l) Section limits the eral court intervention manage- into state in ways: fee amount two the fee must be prisons, ment of preventing windfall fee reasonably prov- and incurred in directly awards, public protecting fisc. violation, ing an actual and the amount argument The first pris- successful proportionately must be related to the decrees, litigation may on result consent directly court ordered relief or and reason- involving the federal court state man- ably enforcing incurred in or- relief agement prisons, the fee re- Therefore, dered the violation. strictions reduce the incentive for cap hourly 150% on total fees and on the claims, prisoners to file such thus dimin- operate rate will in all cases to reduce the ishing federal court involvement in state fee award below that baseline amount of management prisons. of the The remain- in- directly, reasonably fees that were ing arguments similarly im- focus on the proportionate curred and to the relief or- state, pact litigation of meritorious on the impact dered. This further undermines asserting that the fee restrictions arguments made this case. The fee fees, judicial discretion in awarding cabin impact no on the restrictions have frivolous reducing potential thus for windfall fee cases, operate only and trivial to re- awards, protect public and would fisc litigation duce the fee meritorious award that, by decreasing paid the fees must be below the amount that was both reason- of the All these out state treasuries. ably proportionate incurred and to the re- justifications impact occa- focus on the lief. The restrictions therefore lack the fit governmental prisoner litigation. between classification and sioned meritorious money if necessary Certainly, interest to ensure that the states would save pur- not drawn filed litigation classification is for the less meritorious were “[tjhere held, however, them, and if fees available for such Court is no against (although, again, litigation by focusing were restricted defensible interest served on legiti- government’s interest must be in a classifying that distinction as feature scrutiny.) statute, mate one to survive Similar reimbursement since it bears no if savings could be obtained relationship purpose of whatsoever to the applicable passed a similar fee restriction repayment provision.” Id. blue-eyed litigants, government to all all person S.Ct. 1497. Whether was institu- litigants, or all con- employee not, or nature of the tionalized system. Equal the educational cerning imposed, was a trait unrelated to sentence however, requires more than protection, objective the fiscal of the statute. Id. at just goal that some is furthered showing 309-310, 86 S.Ct. 1497. The Court further rather, equal protection legislation; rejected claim that the state’s the classifi- in the nature of requires rationality “some cation was a matter of administrative con- Rinaldi, 384 singled the class out.” U.S. venience, punished by those because fines 308-09, 1497; Kuebel, Schilb v. S.Ct. ordinary be reached through gar- could 357, 368, 30 L.Ed.2d nishment, repayment easily (1971). probation. made a condition of Id. at Thus, fit

The Court examined the need for that again 86 S.Ct. 1497. the Court rec- goal between classification and Rinaldi. ognized constitutionality that the of a stat- There, Jersey required Newa statute indi- vacuum, analyzed ute cannot be in a crime, gent persons convicted of a who recognition must include a con- the real prison, repay confined to the cost were operates. text in Because incar- transcript were unsuccessful ceration status had no rational connection repayment, It appeal. required no such cost, transcript to a the Court held that however, from those who received sus- rationality the statute lacked in the nature sentence, pended probation, a fine. singled of the class out and was unconsti- argued The state that its statute was de- Equal tutional under the Protection signed replenish county treasury the Id.; Schilb, Clause. U.S. at from those who had benefitted from coun- 479; S.Ct. see also v. Strange, James ty expenditures, and that it would deter 309-10, appeals. frivolous 384 U.S. at 86 (1972) (relying on Rinaldi holding and rejected 1497. The that argu- Court giving statute right state to recover ment, however, holding that the statute indigent defense costs from defendants was unconstitutional under Equal the Pro- depriving protective exemp- them of Certainly, tection the Clause. statute equal protection). tions violates help replenish county treasury, the presented We are same situa- but that furtherance оf the goal fiscal did in addressing tion ‍​‌‌‌​‌​‌​​‌​​‌​‌​​‌​‌‌​‌‌‌​‌​​‌​​​​​‌‌‌‌​​​​​​‌​‍the remaining govern- Instead, inquiry. end the Court’s mental gov- interests asserted here. The Equal Court held that Protection ernment in that, diminishing asserts interest requires “in defining Clause class states, the fiscal burden of fees on the subject legislation, distinctions in decreasing also are drawn have ‘some relevance to costs associated with purpose defending monitoring compliance in which the classification is ” 308-09, litigation. cases of made.’ Id. 86 S.Ct. 1497. In meritorious There is no Rinaldi, however, in- distinguished rationality, imposing the classification such appellants stitutionalized attorneys representing unsuccessful restriction on insti- persons, those not institutionalized. tutionalized because the locale of objec- states, ing unrelated to the fiscal the burden on litigant is there is no ra- Congress approach can Although single prisoners. tional reason to tive. out attempt in piece-meal, will, there is no problem however, PLRA fee restrictions have explain why inmates should the briefs to a significant, predictable impact on the singled out over non-inmates for the ability prisoners with meritorious cases involving in cases meritorious restriction representation. to obtain As the district all that is addressed litigation, which is court recognized, only prisoners “the af- proffered governmental last three these fected are those who file meritorious com- instance, prisoner/non- For interests. plaints for whom the court cannot secure makes no prisoner classification sense counsel because of the limited fees avail- in simply protecting the interest Johnson, lawyers able to in such cases.” fisc, public because there is no reason to F.Supp.2d at 896. Rather than de- filing are more non- believe courts, crease the burden on these restric- non-prison- meritorious cases than trivial effect, tions will have opposite making ers, achieving or that windfall fee it more persuade difficult for courts to greater numbers such cases. awards lawyers accept appointment. Id. at 898. fact, record indicates that at the The inevitable result will be that constitu- time the PLRA fee restrictions were en- against tional violations will go acted, nearly prison of all 96% unremedied, and that contrary to the se, pro and there is no correlation was purposes of the civil acts and between inmate status and windfall fee § Congress legitimate gov- has no (at awards least no correlation would ernmental in deterring filing interest likely indicate such awards are more to be such, of meritorious lawsuits. As the clas- inmates; reverse, however, provided to rationally sification is not related to the true). might be There is no rational basis goals Equal and fails Protection scrutiny. inmate goal to connect status with the I respectfully dissent. reducing the fiscal burden more than Congress single blue-eyed out liti- FLAUM, Judge, dissenting. Chief gants and their restrict fees. The classifi- cation itself has to be related to the inter- In my judgment, Judge Rovner has asserted, dissent, est is not. plurality’s pro indicated her enacting the PLRA was concerned with posed answering benchmarks for litigation, flood of frivolous not the “compared question to what?” miss the litigation. flood of meritorious There is appropriate mark. The focus should be simply theory no basis in the record or in prisoner nonprisoner litigants between and upon which we could hold that meritorious indeed, § seeking fees under I be 1988— by prisoners creating is an eco- perhaps apt comparison lieve that the most justifying nomic burden the singling out of prisoners bring would be between former type inmates for this of restriction. There ing during suit for violations that occurred is, short, no connection between the imprisonment their and current goals fiscal of the statute and the status of bringing suit for identical violations. Cf. litigant the meritorious as either an inmate Puckett, (7th Kerr v. 138 F.3d or a non-institutionalized individual. Cir.1998) (holding as defined 1997e(h) compre in 42 does not discouraging As a means of frivolous or U.S.C. released). trivial hend a felon who has been prisoners, impos- suits Concluding Judge es no restriction on fees that Rovner has identi does already impose. approach comparison aAs means of reduc- fied the correct for with the well-rea- agreeing purposes II in Parts contained analysis

soned respectfully I dissent. opinion, her

III of America,

UNITED STATES

Appellee, TROGDON, Appellant.

Gregory L.

No. 02-3233. Appeals,

United States Court

Eighth Circuit. 11, 2003.

Submitted: March Koszuth, argued, Ann Federal Public M. 3, 2003. July Filed: MO, Defender, appellant. Springfield, Pincham, argued, Asst. Katharine MO, City, appellee. Atty., Kansas HANSEN, Judge,1 RILEY Before Chief MELLOY, Judges. Circuit HANSEN, Judge. Circuit Trogdon pleaded guilty to Gregory L. pornography, in violation of receiving child 2252A(a)(2)(A)(2000), and was 18 U.S.C. sixty prison months sentenced to supervised years four release. sentencing, and the contested matter appeal, Trogdon whether only issue on sixty-month statutory mini- subject to a prison prior mum term due to his convic- first-degree sexual misconduct. tion for court,2 conclude, as did the district We triggers the enhanced stat- this conviction utory Accordingly, minimum. we affirm judgment of the district court. Wright, Scott O. United stepped David R. Hansen 2. The Honorable 1. The Honorable Judge of the States as Chief United Judge down States District for the Western District Eighth Appeals Circuit at the Court of of Missouri. 31, 2003. He has close of business on March Honorable James B. been succeeded Loken.

Case Details

Case Name: Cedric Johnson v. George M. Daley, and United States of America, Intervenor-Appellant

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 19, 2003

Citation: 339 F.3d 582

Docket Number: 00-3981, 00-4115

Court Abbreviation: 7th Cir.