Glenndol Frank Parker v. CO CONWAY No. 08-2900 GLENNDOL FRANK PARKER v. CO CONWAY JOSEPH CONWAY

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-2764
_____________
GLENNDOL FRANK PARKER,
Appellant
v.
CO CONWAY
_____________
No. 08-2900
_____________
GLENNDOL FRANK PARKER
v.
CO CONWAY
JOSEPH CONWAY,
Appellant
On Appeal From the United States District Court
for the Eastern District of Pennsylvania
(No. 07-CV-251)
District Judge: Honorable Juan R. Sanchez
Magistrate Judge: Honorable Lynne A. Sitarski
Submitted Under Third Circuit LAR 34.1(a)
May 28, 2009
Before: FISHER, CHAGARES, and COWEN, Circuit Judges.

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2
(Filed: September 17, 2009)
Alexander Bilus
Stephen D. Brown
Joshua G. Schiller
Kenneth L. Topping
Dechert
2929 Arch St.
18th Fl., Cira Centre
Philadelphia, PA 19104
Counsel for Appellant/Cross-Appellee
Kevin R. Bradford
Claudia M. Tesoro
Office of Attorney General of Pennsylvania
21 S. 12th St.
Philadelphia, PA 19107
John G. Knorr III
Office of Attorney General of Pennsylvania
Dep’t of Justice
Strawberry Square
Harrisburg, PA 17120
Counsel for Appellee/Cross-Appellant
_____________
OPINION OF THE COURT
_____________
CHAGARES, Circuit Judge.
The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997e, imposes quantitative limits on the amount of attorney’s fees
a court may award a plaintiff who prevails in a civil rights action
that he filed while incarcerated. See § 1997e(d)(2)-(3) (“PLRA fee
caps” or “fee caps”). The PLRA does not, however, impose similar

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Upon the parties’ consent, the District Court referred the1
case to a United States Magistrate Judge for trial and post-trial
purposes pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73. We refer to the Magistrate Judge as the “District
Court” throughout this opinion.
3
limits on the amount of attorney’s fees a court may award such a
plaintiff who filed suit while not incarcerated. This case requires
us to determine whether the PLRA fee caps unconstitutionally deny
prisoners equal protection of the law, and, if they do not, to review
the District Court’s application of the fee caps.
The District Court held that the PLRA fee caps are
constitutional. We will affirm the District Court’s judgment,
including its application of the fee caps.
I.
While Glenndol Parker was a prisoner in the Pennsylvania
correctional facility at which Joseph Conway was a guard, Parker
filed a lawsuit against Conway, pursuant to 42 U.S.C. § 1983,
alleging that Conway assaulted him in violation of the Eighth
Amendment. The District Court appointed counsel to represent
Parker. The case proceeded to trial, and a jury found for Parker,1
awarding him $17,500 in total damages. Parker then filed a motion
for attorney’s fees, seeking a total of $64,089.
Parker recognized that his motion implicated the PLRA,
which provides, in relevant part:
(d) Attorney’s fees
(1) In any action brought by a prisoner who is confined to
any jail, prison, or other correctional facility, in which
attorney’s fees are authorized [by virtue of the plaintiff’s
having prevailed in a § 1983 action], such fees shall not be
awarded, except to the extent that –
(A) the fee was directly and reasonably incurred in

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4
proving an actual violation of the plaintiff’s rights
protected by a statute pursuant to which a fee may be
awarded . . . ; and
(B)(i) the amount of the fee is proportionately related
to the court ordered relief for the violation . . . .
(2) Whenever a monetary judgment is awarded in an action
described in paragraph (1), a portion of the judgment (not to
exceed 25 percent) shall be applied to satisfy the amount of
attorney’s fees awarded against the defendant. If the award
of attorney’s fees is not greater than 150 percent of the
judgment, the excess shall be paid by the defendant.
(3) No award of attorney’s fees in an action described in
paragraph (1) shall be based on an hourly rate greater than
150 percent of the hourly rate established under section
3006A of Title 18 for payment of court-appointed counsel.
§ 1997e(d).
Parker argued to the District Court that the PLRA fee caps
unconstitutionally discriminate against successful prisoner litigants
because 42 U.S.C. § 1988(b), which governs an attorney’s fee
award made to a prevailing civil rights plaintiff who was not
incarcerated at the time he filed suit, requires only that the award
be “reasonable.” Therefore, Parker contended, the court should not
use the fee caps to compute his attorney’s fee award. Conway
disagreed. Conway also argued that the provision requiring a court
to apply “a portion of the judgment (not to exceed 25 percent)” to
satisfy the attorney’s fee award compels the court to apply the full
25 percent whenever the attorney’s fee award is greater than 25
percent of the judgment, as it is in this case.
The District Court rejected Parker’s constitutional argument,
applied the fee caps, and awarded him $26,250, an amount equal
to § 1997e(d)(2)’s limit of 150 percent of the total judgment (rather
than the $64,089 he requested). Appendix (“App.”) 1 & n.1. The
District Court also rejected Conway’s construction of the statute
and applied approximately 18 percent of Parker’s total judgment to

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We need not decide whether the equal protection guarantee2
relevant to this case is found in the Fifth Amendment’s Due
5
satisfy the attorney’s fee award (rather than the 25 percent Conway
requested). App. 2. Parker appealed, and Conway cross-appealed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §
1331. We have jurisdiction over both Parker’s appeal and
Conway’s cross-appeal pursuant to 28 U.S.C. §§ 636(c)(3), 1291.
We engage in plenary review of the District Court’s ruling
on the constitutionality of a federal statute. Abdul-Akbar v.
McKelvie, 239 F.3d 307, 311 (3d Cir. 2001) (en banc) (citing
DeSousa v. Reno, 190 F.3d 175, 180 (3d Cir. 1999)). We also
engage in plenary review of the District Court’s legal interpretation
of such a statute. Id. (citing Pa. Mines Corp. v. Holland, 197 F.3d
114, 119 n.2 (3d Cir. 1999)).
III.
Subsection (d)(2) of the PLRA limits a prevailing prisoner-
plaintiff’s attorney’s fee award to 150 percent of the judgment, and
subsection (d)(3) independently limits the attorney’s fee award to
150 percent of the lodestar amount (hours worked multiplied by
hourly rate) with an hourly rate equal to the hourly rate the
Criminal Justice Act (“CJA”) authorizes for court-appointed
criminal defense attorneys. Further, subsection (d)(2) also requires
the court to apply some portion of the judgment “not to exceed 25
percent” to satisfy the attorney’s fee award.
Parker’s appeal is an equal protection challenge to the
PLRA fee caps. He asserts that Congress’s decision to impose
these numerical caps on the attorney’s fees that a court may award
a successful civil rights plaintiff who filed suit while incarcerated
– but not on the attorney’s fees that a court may award such a
plaintiff who filed suit while not incarcerated – denies prisoners
equal protection of the law.2

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Process Clause or the Fourteenth Amendment’s Equal Protection
Clause. Compare Jackson v. State Bd. of Pardons and Paroles, 331
F.3d 790, 792 & n.1 (11th Cir. 2003) (framing equal protection
challenge to PLRA fee caps as Fifth Amendment issue on ground
that PLRA is federal law) with Johnson v. Daley, 339 F.3d 582,
585 (7th Cir. 2003) (en banc) (framing equal protection challenge
to PLRA fee caps as Fourteenth Amendment issue on ground that
PLRA was enacted pursuant to § 5 of the Fourteenth Amendment).
The same framework applies to an equal protection challenge
brought under either amendment. See Adarand Constructors, Inc.
v. Pena, 515 U.S. 200, 217 (1995).
6
A.
Parker concedes that his equal protection challenge to the
PLRA fee caps implicates rational basis review. See, e.g., Parker
Br. 13. “[R]ational basis review requires merely that the [statute]
be rationally related to a legitimate government objective.”
Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 165 n.24
(3d Cir. 2002). The Supreme Court has explained just how much
freedom a legislature has in enacting a statute to which rational
basis review applies:
The distinctions drawn by a challenged statute must bear
some rational relationship to a legitimate state end and will
be set aside as violative of the Equal Protection Clause only
if based on reasons totally unrelated to the pursuit of that
goal. Legislatures are presumed to have acted
constitutionally even if source materials normally resorted
to for ascertaining their grounds for action are otherwise
silent, and their statutory classifications will be set aside
only if no grounds can be conceived to justify them. With
this much discretion, a legislature traditionally has been
allowed to take reform “one step at a time, addressing itself
to the phase of the problem which seems most acute to the
legislative mind,” and a legislature need not run the risk of
losing an entire remedial scheme simply because it failed,
through inadvertence or otherwise, to cover every evil that
might conceivably have been attacked.

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The Supreme Court, in a decision issued shortly after3
Collins, considered subsection (d)(3)’s fee cap (albeit in a context
other than an equal protection challenge), and no Justice expressed
any doubts about its constitutionality. See Martin v. Hadix, 527
U.S. 343 (1999).
7
McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 809 (1969)
(quoting Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483,
489 (1955)) (internal citations omitted). Under rational basis
review, Congress’s judgment “is not subject to courtroom
factfinding and may be based on rational speculation unsupported
by evidence or empirical data.” FCC v. Beach Commc’ns, Inc.,
508 U.S. 307, 315 (1993). Further, rational basis review “is not a
license for courts to judge the wisdom, fairness, or logic of
legislative choices.” Id. at 313.
Parker argues that Congress’s prisoner versus non-prisoner
classification does not rationally relate to any legitimate
government objective.
B.
Parker’s is not the first equal protection challenge to the
PLRA fee caps to come before us. In Collins v. Montgomery
County Board of Prison Inspectors, 176 F.3d 679 (3d Cir. 1999)
(en banc), this Court, sitting en banc, divided equally over whether
the fee cap limiting an attorney’s fee award to 150 percent of the
judgment irrationally discriminates against prisoners, and we did
not reach the merits of the equal protection challenge to the other
limiting provisions. Id. at 686.3
Every other court of appeals to address challenges to any or
all of the PLRA fee caps in a precedential opinion, however, has
rejected the challenges. See, e.g., Royal v. Kautzky, 375 F.3d 720,
725-26 (8th Cir. 2004); Riley v. Kurtz, 361 F.3d 906, 917 (6th Cir.
2004); Johnson v Daley, 339 F.3d 582, 598 (7th Cir. 2003) (en
banc); Jackson v. State Bd. of Pardons and Paroles, 331 F.3d 790,
797-98 (11th Cir. 2003); Robinson v. Hager, 292 F.3d 560, 563 n.2
(8th Cir. 2002); Foulk v. Charrier, 262 F.3d 687, 704 (8th Cir.

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8
2001); Walker v. Bain, 257 F.3d 660, 669-70 (6th Cir. 2001);
Hadix v. Johnson, 230 F.3d 840, 846 (6th Cir. 2000); Boivin v.
Black, 225 F.3d 36, 46 (1st Cir. 2000); Madrid v. Gomez, 190 F.3d
990, 996 (9th Cir. 1999). We join them. This littany of court of
appeals precedent offers multiple legitimate government objectives
on which we could focus. One such government objective will
suffice, however. See McDonald, 394 U.S. at 809.
Congress could have legitimately intended to reduce the
variability in attorney’s fee awards. Johnson, 339 F.3d at 593-94.
Congress could have rationally believed that reasonableness, §
1997e(d)(1)(A), and proportionality, § 1997e(d)(1)(B)(i), are
qualitative standards that may vary from district court to district
court. See id. at 593. Use of these qualitative standards alone
therefore “ensures inconsistency.” Id. A numerical cap is not
susceptible to as much interpretive variation as these qualitative
standards are. Thus, “Congress rationally could conclude – on the
ground of equitable treatment alone – that a quantitative rule . . .
should supplement a qualitative one . . . .” Id. at 594. Further, it
is not constitutionally problematic that Congress decided, in
enacting the PLRA fee caps, to address the issue of uniformity of
attorney’s fee awards with respect to prevailing prisoner-plaintiffs
only. Id. at 596 (“The ability to take one step at a time, to alter the
rules for one subset (to see what happens) without changing the
rules for everyone, is one of the most important legislative powers
protected by the rational-basis standard.”).
We note that the PLRA fee caps rationally relate to other
legitimate government objectives, as well. For example, the PLRA
fee caps rationally relate to the legitimate goal of reducing (in
addition to uniformizing) attorney’s fee awards. See id. Congress
could have rationally believed that attorney’s fee awards in general
are too high. Id. (citing City of Riverside v. Rivera, 477 U.S. 561,
573-81 (1986) (plurality opinion) (affirming award of
approximately $245,000 for legal work that resulted in $33,350 in
damages)). The fee caps tend to reduce those fee awards. Again,
it is not constitutionally problematic that Congress chose to single
out prisoners in attempting to further this legitimate government
objective. See id.

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Parker’s argument that the fee caps might not rationally4
relate to a legitimate government objective in this very case, see
Parker Br. 38-41, is beside the point. “Under the rational-basis
test, a court must uphold legislation ‘if there is any reasonably
conceivable state of facts that could provide a rational basis for the
classification[,]’” even if the instant case does not present that state
of facts. Madrid, 190 F.3d at 996 n.8 (quoting Beach Commc’ns,
508 U.S. at 313) (holding that even though suit underlying instant
equal protection challenge was not frivolous, that fee cap furthered
goal of deterring frivolous suits sufficed to defeat equal protection
challenge).
Parker’s reliance on Rinaldi v. Yeager, 384 U.S. 305 (1966)
and Lindsey v. Normet, 405 U.S. 56 (1972) is misplaced, as well.
See Johnson, 339 F.3d at 597-98 (holding that Rinaldi and Lindsey
9
In addition, the fee caps rationally relate to the legitimate
government objective of deterring frivolous lawsuits and deterring
lawsuits that, while not technically frivolous, generate litigation
costs that exceed any potential recovery. See id. at 593-95; Boivin,
225 F.3d at 45; Madrid, 190 F.3d at 996. Congress could have
rationally believed that prisoners have less of an incentive than
non-prisoners to refrain from filing insubstantial lawsuits, given,
for example, that prisoners may receive free of charge office
supplies and legal materials that non-prisoners would not. See
Johnson, 339 F.3d at 592-93; see also Boivin, 225 F.3d at 44. As
other courts have noted, capping the amount of attorney’s fees a
court may award to a prevailing prisoner plaintiff may cause a
prisoner to evaluate more carefully the merit of the action he
intends to file, therefore reducing the likelihood he would file an
insubstantial lawsuit, because it reduces the chance the prisoner
will find an attorney to take his case (and because he believes the
chances of winning are lower without a lawyer than with one).
See, e.g., Walker, 257 F.3d at 669; Boivin, 225 F.3d at 45.
The PLRA fee caps rationally relate to the legitimate
government objective of achieving uniformity in attorney’s fee
awards, as well as multiple other legitimate government objectives.
Parker’s equal protection challenge therefore fails.4

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did not preclude PLRA fee caps from passing rational basis
review). As the en banc Court of Appeals for the Seventh Circuit
explained, these cases invalidated statutes that amounted to
“litigation tax[es]” imposed on certain groups and not others. See
id. at 598. But they cast no constitutional doubt upon the PLRA,
because the PLRA “does not impose a ‘litigation tax’ on prisoners
but simply reduces the extent to which defendants must underwrite
prisoners’ suits.” Id.
Though in Collins, we did note, with no disapproval, the5
district court’s application of less than 25 percent of the judgment
to an attorney’s fee award that exceeded that amount. 176 F.3d at
682.
10
IV.
Conway’s cross-appeal challenges the District Court’s
interpretation of the part of subsection (d)(2) providing that “a
portion of the judgment (not to exceed 25 percent) shall be applied
to satisfy the amount of attorney’s fees awarded against the
defendant.” § 1997e(d)(2). Specifically, Conway argues that this
provision requires the court to satisfy the entire attorney’s fee
award via proceeds from the judgment when the attorney’s fee
award is less than or equal to 25 percent of the judgment, and to
apply the full 25 percent of the judgment to the award whenever (as
in this case) the attorney’s fee award exceeds that amount.
As the Supreme Court has held, a court must “begin by
looking at the language of the [statute] . . . . When [the court]
find[s] the terms of a statute unambiguous, judicial inquiry is
complete, except ‘in rare and exceptional circumstances.’” Rubin
v. United States, 449 U.S. 424, 429-30 (1981) (quoting TVA v.
Hill, 437 U.S. 153, 187 n.33 (1978)). The plain language of the
25-percent provision is unambiguous and does not support
Conway’s reading. The statute does not compel district courts to
apply 25 percent of the judgment to pay attorney’s fees when the
attorney’s fee award exceeds that amount.
We have not squarely ruled upon this issue before, but the5
Court of Appeals for the Eighth Circuit has. In Boesing v. Hunter,
540 F.3d 886 (8th Cir. 2008), it held:

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The Court of Appeals for the Eighth Circuit’s later opinion6
in Kahle v. Leonard, 563 F.3d 736 (8th Cir. 2009), does not call
Boesing into question. In Kahle, the district court declined to
satisfy the entire attorney’s fee award via proceeds from the
judgment, despite the fact that the attorney’s fee award was less
than 25 percent of the judgment. 563 F.3d at 742. The court of
appeals vacated and remanded to the district court to reconsider
that percentage. Id. at 743. The court of appeals did this not
because it held that the district court was compelled by the 25-
percent provision to satisfy the entire attorney’s fee award using
proceeds from the judgment, but because it held that the district
court failed to consider circuit precedent instructing district courts
to apply a multi-factor test to attorney’s fee awards. Indeed, only
one judge expressed the view that the 25-percent provision
compelled the district court to satisfy the entire attorney’s fee
award using the judgment. See id. (Loken, C.J., concurring). That
11
The PLRA states that the district court “shall” apply a
portion of the judgment “not to exceed 25 percent.” The
term “shall” indicates that the district court must apply some
percentage of the judgment to pay attorney’s fees, and the
phrase “not to exceed 25 percent” clearly imposes a
maximum, not a mandatory, percentage. This statute is not
ambiguous. We hold that the plain language of 42 U.S.C.
§ 1997e(d)(2) does not require the district court to
automatically apply 25 percent of the judgment to pay
attorney’s fees [when the fee award exceeds 25 percent of
the judgment]. Instead, the PLRA gives the district court
discretion to apply a lower percentage.
Id. at 892 (citations omitted) (affirming district court’s application
of less than 25 percent of judgment to satisfy attorney’s fee award,
even though attorney’s fee award exceeded 25 percent of
judgment); see also ITT-Indus. Credit Co. v. Hughes, 594 F.2d
384, 387 (4th Cir. 1979) (explaining that contractual language
providing for payment of attorney’s fees “‘not to exceed’ 15%” of
a particular sum “clearly contemplate[s]” payment of attorney’s
fees in “an amount less than 15%” of that sum). We agree with the
Boesing court’s holding.6

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view was not adopted by the majority of the court.
The statements to the contrary in Riley, 361 F.3d at 911;7
Johnson, 339 F.3d at 585; and Walker, 257 F.3d at 669, are all
dicta. The Walker court never had to review the application of the
25-percent provision, because the district court held that subsection
(d)(2) was unconstitutional and therefore never applied it in the
first place. 257 F.3d at 663. The district court whose decision was
under review in Johnson did apply the 25-percent provision, but
that portion of the district court’s order was not appealed. 339 F.3d
at 585. And the Riley court never had to review the application of
the 25-percent provision because the district court (on non-
constitutional grounds) declined to apply the PLRA. 361 F.3d at
912-13. Further, the only authority the Riley court cited to support
its departure from the statute’s plain text is the dicta in Walker and
Johnson. 361 F.3d at 911 (citing Johnson, 339 F.3d at 585;
Walker, 257 F.3d at 667). Finally, these out-of-circuit decisions,
dicta or not, do not bind us and we decline to follow them to the
extent that they conflict with subsection (d)(2)’s plain text.
12
The PLRA’s 25-percent provision does not require a district
court to apply 25 percent of the judgment to satisfy an attorney’s
fee award when the attorney’s fee award exceeds 25 percent of the
judgment. Accordingly, a district court may apply less than 25
percent of the judgment (as long as it applies some portion of the
judgment) to satisfy the attorney’s fee award. Therefore,7
Conway’s statutory interpretation argument fails.
V.
For the above reasons, we will affirm the District Court’s
judgment in all respects.

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