                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 12-8148


JAMEY LAMONT WILKINS,

                 Plaintiff - Appellant,

           v.

OFFICER GADDY,

                 Defendant – Appellee,

UNITED STATES OF AMERICA,

                 Intervenor.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:08-cv-00138-RJC-DSC)


Argued:   September 18, 2013                 Decided:   November 1, 2013


Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.


Affirmed by published opinion.       Judge Wilkinson         wrote   the
opinion, in which Judge Motz and Judge Floyd joined.


ARGUED: David Alexander Strauss, NORTH CAROLINA PRISONER LEGAL
SERVICES, Raleigh, North Carolina, for Appellant.  Kimberly D.
Grande, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.    Jonathan Heuer Levy, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor.    ON
BRIEF: Roy Cooper, North Carolina Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.   Anne Tompkins, United States Attorney, Charlotte,
North Carolina, Stuart F. Delery, Principal Deputy Assistant
Attorney General, Barbara L. Herwig, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor.




                               2
WILKINSON, Circuit Judge:

     Plaintiff         is     a     state     prisoner          who      challenges         the

constitutionality       of     42   U.S.C.        §    1997e(d)(2),      a    part    of   the

Prison Litigation Reform Act of 1995 (PLRA), as violating his

right   to     equal        protection      of        the     laws    under     the     Fifth

Amendment’s Due Process Clause.                       The challenged provision caps

the attorneys’ fee award that a successful prisoner litigant may

recover from the government in a civil rights action at 150

percent of the value of the prisoner’s monetary judgment.                                  The

district court upheld the constitutionality of this provision,

and we now affirm.



                                             I.

                                             A.

     Jamey Wilkins, the plaintiff, was a prisoner in the custody

of the North Carolina Department of Correction (now the North

Carolina Department of Public Safety).                       On June 13, 2007, he was

incarcerated at the Lanesboro Correctional Institute in Polkton,

North   Carolina,      when       Officer    Alexander         Gaddy,    the    defendant,

escorted     another    inmate      past     his       cell.     Wilkins       and    Officer

Gaddy became embroiled in an argument that resulted in Officer

Gaddy   opening     Wilkins’s         cell        and       physically    subduing         him.

According to Wilkins, Officer Gaddy lifted and then slammed him

to the concrete floor where, once pinned, Officer Gaddy punched,

                                             3
kicked, kneed, and choked Wilkins until the officer was removed

by another member of the corrections staff.                     Wilkins alleged

that the altercation caused him a bruised heel, back and neck

pains, headaches, and other health complications.

                                         B.

       Following the incident, Wilkins filed a pro se civil rights

suit    under    42    U.S.C.   §   1983      claiming   that    Officer    Gaddy

“maliciously     and    sadistically”        assaulted   him    with   “excessive

force” in violation of the Eighth Amendment.               The district court

dismissed the suit when it concluded that Wilkins had failed to

state a claim upon which relief could be granted because he had

not    alleged   more    than   a   de   minimis     injury.      We    affirmed.

Wilkins v. Gaddy, 308 F. App’x 696 (4th Cir. 2009).

       The Supreme Court granted Wilkins’s petition for certiorari

and reversed, holding that the “core judicial inquiry” in Eighth

Amendment claims is not focused on the “extent of the injury”

sustained by the plaintiff but rather the “nature of the force”

used in the purported assault.                Wilkins v. Gaddy, 559 U.S. 34,

39 (2010).       Although it remanded for further proceedings, the

Supreme Court “express[ed] no view on the underlying merits” of

Wilkins’s claim and noted that “the relatively modest nature of

his alleged injuries will no doubt limit the damages he may

recover.”    Id. at 40.



                                         4
     Wilkins      obtained     representation         upon   remand    from      North

Carolina Prisoner Legal Services and proceeded to trial.                           The

jury returned a verdict holding Officer Gaddy responsible for

using excessive force against Wilkins, but declined to award

compensatory      or    punitive    damages.        Instead,    it    awarded     only

nominal damages of $0.99.            The district court entered judgment

for Wilkins in the amount of $1.                   Wilkins, as the prevailing

party, filed a motion under the fee-shifting provision of 42

U.S.C.     § 1988      for   $92,306.25       in   attorneys’    fees.           While

acknowledging that fee awards in prisoner lawsuits are capped by

§ 1997e(d)(2),       Wilkins    argued     that    this   section     of   the    PLRA

violated    the     Fifth    Amendment’s      equal   protection      component     by

irrationally        treating     prisoner      and     non-prisoner        litigants

differently.

     The magistrate judge to whom the matter had been referred

calculated the award pursuant to § 1997e(d)(2) and recommended

that Wilkins’s lawyers be awarded $1.40. *                Wilkins reiterated his

equal protection challenge before the district court, but the

court found § 1997e(d)(2) to be a constitutional exercise of

legislative authority.             Specifically, the district court held


     *
       The magistrate judge applied the fee cap in § 1997e(d)(2)
and found that the maximum permissible award was $1.50.    Next,
because § 1997e(d)(2) also requires that some of the plaintiff’s
judgment apply toward his attorneys’ fee award, the magistrate
judge reduced Wilkins’s fee award to $1.40.


                                          5
that the classification between prisoners and non-prisoners in

§ 1997e(d)(2)      was    rationally        related    to    legitimate   government

interests,    including         reducing     marginal       prisoner    lawsuits   and

protecting the public fisc.                It further noted that the rational

basis     standard       of     review      commands    judicial       deference     to

legislative acts unless the relationship of the chosen means to

the desired ends is bereft of logical support.                         Consequently,

the     district   court        declined     to    strike      down    § 1997e(d)(2),

adopted     the    magistrate         judge’s     recommendation,       and    awarded

Wilkins’s    counsel          $1.40   in    attorneys’        fees.     Wilkins    now

appeals.



                                            II.

      Wilkins seeks the full award of $92,306.25 in attorneys’

fees for his counsel.            To that end, he contends that the fee cap

in § 1997e(d)(2) creates a distinction between prisoner and non-

prisoner litigants that cannot stand under the Fifth Amendment.

First,     Wilkins       does      admit      that     courts     do     not    review

classifications involving prisoners with strict scrutiny.                           He

asserts, however, that statutes governing inmates still require

a heightened standard of review because of prisoners’ unique

characteristics.          Second,      he    argues    that    § 1997e(d)(2)      fails

even ordinary rational basis review because it arbitrarily and

irrationally       “discriminates           against     prisoner       civil   rights

                                             6
litigants” in that the fee cap bears “no rational relationship”

to the admittedly legitimate governmental objectives at which it

is aimed.         Appellant’s Br. 7.               We are not persuaded by either

contention.

                                               A.

         Government may not constitutionally deny to any person the

equal protection of the laws.                       But this principle is not and

cannot be absolute because it is a “practical necessity that

most legislation classif[y] for one purpose or another, with

resulting disadvantage to various groups or persons.”                                Romer v.

Evans,     517    U.S.    620,     631      (1996).         Indeed,    unless    a    statute

affects     a    fundamental       right      or    some     protected     class,      courts

generally        accord    the     legislation          a    “strong     presumption       of

validity”        by   applying     a     rational      basis        standard    of    review.

Heller v. Doe, 509 U.S. 312, 319 (1993).

         This standard is quite deferential.                         It simply requires

courts to determine whether the classification in question is,

at   a    minimum,       rationally         related    to     legitimate       governmental

goals.      City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S.

432, 440 (1985).           In other words, the fit between the enactment

and the public purposes behind it need not be mathematically

precise.         As   long    as    Congress         has     a   reasonable      basis    for

adopting        the    classification,             which      can     include     “rational

speculation       unsupported          by    evidence       or   empirical      data,”    the

                                               7
statute     will       pass     constitutional         muster.        FCC     v.    Beach

Commc’ns., Inc., 508 U.S. 307, 315 (1993).                        The rational basis

standard      thus     embodies       an    idea     critical    to   the    continuing

vitality of our democracy: that courts are not empowered to “sit

as a superlegislature to judge the wisdom or desirability of

legislative       policy      determinations.”           City    of   New   Orleans       v.

Dukes, 427 U.S. 297, 303 (1976).

       Wilkins     accepts      the    fact     that   we   should    apply    rational

basis review to analyze the fee cap in § 1997e(d)(2).                          However,

he would have us apply a “‘more searching form of rational basis

review,’” Appellant’s Br. 9 (quoting Lawrence v. Texas, 539 U.S.

558, 580 (2003) (O’Connor, J., concurring)), because he contends

that the rational basis standard is in reality a “spectrum” and

that   “prisoners       possess       certain      characteristics     which       warrant

the court to apply the rational basis review in a less rigid

manner,” Appellant’s Br. 8-9.                 These include prisoners’ relative

inability to protect themselves in the political process and the

historical       discrimination            against     prisoners      in    employment,

housing, and welfare programs.                     In effect, Wilkins asks us to

give   less      deference      to    legislative       classifications       involving

prison litigants.

       We   do   not    think    that      sliding-scale        rational    basis    is   a

permissible approach here.                  Our precedent clearly holds that

prisoners are not a “suspect class.”                   Giarratano v. Johnson, 521

                                              8
F.3d     298,    303        (4th       Cir.       2008)     (internal          quotation         marks

omitted).            The       Supreme       Court      has      only       applied       heightened

scrutiny       when    it       finds      that     a     particular         class       is     “quasi-

suspect” in that it possesses immutable characteristics, faces

historic or ongoing discrimination, or is subject to arbitrary

burdens on some basis beyond its ability to control.                                           City of

Cleburne, 473 U.S. at 439-43.                           Because breaking the law is a

voluntary act and many prisoners will eventually be released,

the    “status         of        incarceration             is        neither        an        immutable

characteristic             .     .     .      ,     nor       an          invidious       basis       of

classification.”               Moss v. Clark, 886 F.2d 686, 690 (4th Cir.

1989).      “Moreover, it would be ironic for the law to confer

special solicitude upon a class whose members had violated it.”

Id.      Nor    is    any       fundamental         right       of    access       to    the     courts

involved,       for        no        party     possesses             an     entitlement          to    a

congressional declaration that its attorneys’ fees in a federal

lawsuit shall be borne by the non-prevailing party.                                      See Johnson

v. Daley, 339 F.3d 582, 586 (7th Cir. 2003) (en banc) (finding

that there is no “fundamental right to have one’s adversary, or

the    public        treasury,         defray       all     or       part     of    the       cost    of

litigation”).

       These considerations militate in favor of ordinary rational

basis review.              Several of our sister circuits have concluded

that   classifications                involving         prisoners          should       not    receive

                                                   9
strict scrutiny, and their reasoning also supports the parallel

conclusion      that      heightened    scrutiny     is   not   warranted.            See,

e.g.,     Boivin     v.      Black,   225    F.3d   36,    42   (1st     Cir.        2000)

(“[P]risoners are simply not a protected class.”); Zehner v.

Trigg, 133 F.3d 459, 463 (7th Cir. 1997) (finding the argument

that prisoners are a protected class “completely unsupported”).

We note also that the Supreme Court has used the rational basis

standard    when     considering       the    constitutionality     of    a     statute

distinguishing between jailed and non-jailed persons, McDonald

v. Bd. of Election Comm’rs of Chicago, 394 U.S. 802, 807-09

(1969),        and     has      not    applied       heightened        scrutiny         to

classifications        involving       prisoners     absent     another    protected

characteristic, such as race, see Johnson v. California, 543

U.S.    499,    505-09     (2005).      Accordingly,       we   decline    Wilkins’s

invitation to apply heightened equal protection scrutiny in this

case.

                                             B.

       We turn now to Wilkins’s rational basis challenge.                       When a

litigant files suit in a court in the United States, he or she

will typically pay the costs associated with hiring an attorney.

This is the “American Rule” and it governs litigation in federal

courts    “absent      explicit       congressional       authorization”        to    the

contrary.       Key Tronic Corp. v. United States, 511 U.S. 809, 814-

15     (1994)    (internal       quotation        marks    omitted).          Congress

                                             10
exercised its power to partially abrogate the American Rule when

it enacted the Civil Rights Attorney’s Fees Awards Act of 1976,

42 U.S.C. § 1988, which granted district courts the authority to

award attorneys’ fees from state coffers to the prevailing party

in a civil rights action.             By providing lawyers with a suitable

award if they could achieve success in court, this fee-shifting

provision encouraged them to take civil rights cases that they

otherwise might not and thus ensured “effective access to the

judicial      process   for     persons     with       civil   rights     grievances.”

Hensley      v.    Eckerhart,      461   U.S.      424,    429    (1983)    (internal

quotation marks omitted).

      But what Congress provides, Congress can adjust or take

away.     It adopted the PLRA almost 20 years later in an effort to

reduce      the   “ever-growing      number       of   prison-condition       lawsuits

that were threatening to overwhelm the capacity of the federal

judiciary.”        Anderson v. XYZ Correctional Health Services, Inc.,

407 F.3d 674, 676 (4th Cir. 2005).                     The legislative history of

the   Act    is    replete   with    statements        that    inmate    civil   rights

litigation        consumed    an    undue    amount       of   both     executive   and

judicial resources.          See Intervenor Br. of the United States 6-8

(compiling congressional statements).                    In an effort to address

this problem, the PLRA included, among other things, limitations

on    attorneys’      fees    awards.            Section 1997e(d)(2)       states    in

relevant part that “[i]f the award of attorney's fees is not

                                            11
greater than 150 percent of the judgment, the excess shall be

paid by the defendant.”               While this language is “not a model of

clarity,” its import is apparent.                    Shepard v. Goord, 662 F.3d

603, 607 (2d Cir. 2011).              Although § 1997e(d)(2) does not remove

a district court’s discretion to shift attorneys’ fees, it caps

awards at 150 percent of a prisoner’s monetary judgment.                                See

id. at 608 (noting that every circuit to consider § 1997e(d)(2)

has construed it to impose a fee cap and holding the same).

Wilkins does not contest this interpretation.                           But non-prisoner

civil rights litigants are not subject to the fee cap; it is

this distinction that Wilkins claims is unconstitutional.

       Congress’s       goals    in     enacting         § 1997e(d)(2)       include,   as

noted    earlier,       reducing      marginal      or    frivolous       prisoner   civil

rights lawsuits and protecting the public fisc.                            See Jackson v.

State Bd. of Pardons and Paroles, 331 F.3d 790, 798 (11th Cir.

2003).        Wilkins    agrees       that   these       goals    are     legitimate,   but

contends that § 1997e(d)(2) is so poorly tailored to these ends

that     it   could     not     possibly       be    expected       to     advance   them.

Overall,      he   insists      the    fee   cap     is    a     thoroughly    irrational

approach to the prison litigation problem.                         While the provision

may not be the only or the optimal way of stemming baseless

inmate    lawsuits,       we    hold    that      Congress        acted    rationally   in

adopting it.



                                             12
       It was not irrational for Congress to believe that inmates

have    certain     litigation   advantages    and   certain       incentives    to

file lawsuits not shared by non-prisoner plaintiffs.                      Inmates

are provided with the necessities of life at state expense; they

receive “free paper, postage, and legal assistance”; and they

may have greater amounts of free time in which to prepare their

claims.      Roller v. Gunn, 107 F.3d 227, 234 (4th Cir. 1997).

Furthermore, prisoners might see legal proceedings as a “means

of     gaining     a    short    sabbatical    in     the     nearest     Federal

courthouse,” Anderson, 407 F.3d at 676 (internal quotation marks

omitted), or as a tool to “intimidat[e] members of the prison

staff,” Hadix v. Johnson, 230 F.3d 840, 844 (6th Cir. 2000).

Congress was entitled to conclude that this mix of advantages

and incentives finds no analogue outside prison walls.

       Of course, the above propositions are not indisputable, and

in certain respects, prison litigants may suffer some litigation

disadvantages in relation to their non-prison counterparts.                     But

under the rational basis standard, Congress could have believed

that the danger of frivolous, marginal, and trivial claims was

real and that a legislative solution was required to equalize

prisoner     and       non-prisoner    litigants.           And    although     the

congruence       between    § 1997e(d)(2)     and    the    goal    of    reducing

meritless     and      insubstantial    prisoner     lawsuits       may   not   be

perfect, it does exist.          Walker v. Bain, 257 F.3d 660, 670 (6th

                                       13
Cir. 2001).       A cap on attorneys’ fees awards requires attorneys

“to ask if the game is worth the candle” and demand greater odds

of success before agreeing to represent a prisoner.                               Boivin, 225

F.3d at 45.       If a prisoner cannot find counsel, it may dissuade

him or her from bringing such a claim at all.                               Or so Congress

might reasonably have believed.

     Wilkins argues that even more basic flaws in the provision

require    its    invalidation.            He    claims      there         is    no    coherent

connection between § 1997e(d)(2) and limiting frivolous lawsuits

because    the     fee    cap    applies        only    to   successful               cases    and

Congress    cannot       rationally    disadvantage          meritorious              claims   of

constitutional       violations       in    the    name      of   reducing            meritless

litigation.       But Congress could rationally have determined that

limiting an attorneys’ fee award incentive ex ante, before the

outcome     is    known,     prevents       the        filing     of       at     least       some

ultimately       meritless      claims.         Johnson,        339    F.3d       at    594-95.

Moreover, even though there exist other rules that discourage

attorneys    from    bringing        frivolous         claims,    such          as    sanctions

under     Federal     Rule      of    Civil       Procedure           11        and    § 1988’s

requirement that “reasonable attorney’s fee[]” awards go only to

a “prevailing party,” nowhere in the Constitution does it say

that Congress is limited to a single legislative solution to a

perceived social ill.           Id. at 593-94.



                                           14
       It is true, as Wilkins emphasizes, that Farrar v. Hobby

already    holds     that        district        courts        should       decline    to     award

attorneys’ fees if the prevailing party suffers only minimal

harm.     506 U.S. 103, 114-16 (1992).                          But Farrar does nothing

more    than    direct      courts         to    consider        the       prevailing       party’s

“extent of success” when determining the appropriate attorneys’

fee award under cases subject to the fee-shifting provision in

§ 1988.        Id. at 116 (internal quotation marks omitted).                                    By

contrast, § 1997e(d)(2) categorically limits a district court’s

discretion       solely     in    prisoner            civil    rights       lawsuits.         These

rules,     while     overlapping,               are     not     co-extensive.               Indeed,

district courts after Farrar occasionally dispensed substantial

attorneys’       fees     awards      to    prevailing          parties       even     when    they

received only minimal judgments.                        See, e.g., Wilcox v. City of

Reno, 42 F.3d 550 (9th Cir. 1994) (upholding an award of $66,535

in attorneys’ fees because the district court properly exercised

its    discretion       under      Farrar        despite        a     $1    judgment    for     the

plaintiff);       Jones     v.    Lockhart,            29   F.3d      422    (8th    Cir.     1994)

(upholding the district court under Farrar and awarding $10,000

in    attorneys’        fees     to   a     prisoner          litigant       who     received     a

judgment    of     $2).        Even    if       Farrar        makes    the    fee     cap    mostly

redundant, as Wilkins claims, Congress is not constitutionally

forbidden from enacting legislation simply because some other

rule aims to resolve the same problem in a different way.

                                                 15
     Wilkins         further      contends      that      the    fee    cap     is    fatally

defective because it stands no chance of doing its job.                               It will

not, in his view, dissuade prisoners from filing civil rights

lawsuits; rather, they will simply proceed pro se, even if their

claims are frivolous, marginal, or trivial.                           The precise extent

to which the cap will accomplish the congressional purpose is

not for us to decide, however, for Congress could reasonably

conclude that at least some meritless and insubstantial lawsuits

would   go    unfiled       when    prisoners        find    themselves         required        to

“shoulder      the     entire      workload”         of   litigating       their          cases.

Walker, 257 F.3d at 669.

     We need not tarry over Wilkins’s final contention: that

§ 1997e(d)(2) is not a reasonable way to conserve public funds.

Protection of the public fisc is a core responsibility of the

legislative branch.               Indeed, as to federal expenditures, the

Supreme      Court    has    affirmed      Congress’s           control    of    the       purse

strings: “[The Appropriations Clause] is to assure that public

funds will be spent according to the letter of the difficult

judgments reached by Congress as to the common good and not

according to the individual favor of Government agents or the

individual      pleas       of   litigants.”           Office     of    Pers.        Mgmt.      v.

Richmond,      496    U.S.       414,   428    (1990).          The    extent        to    which

individual      litigants         should      have   their       lawyers      paid        by   the

people involves the setting of priorities sufficiently akin to

                                              16
the   appropriations         process     that        we       are    loath        to    interfere.

Wilkins sought over $92,000 in attorneys’ fees on a judgment of

$1.       Congress     was     free      to     conclude            that      fee       awards   so

disproportionate to a monetary judgment are an unwise use of

public funds.

      The    Supreme        Court       has     made          clear        that        determining

attorneys’    fees     awards      “should         not    result         in   a    second    major

litigation.”          Fox    v.     Vice,      131       S.    Ct.       2205,      2216    (2011)

(internal quotation marks omitted).                           The simple, mathematical

formula      embodied        in      § 1997e(d)(2)              rationally              forestalls

collateral    fee     litigation        while        ensuring         that        the    incentive

provided by an attorneys’ fee award still attaches to the most

injurious civil rights violations.

      Our    ruling    upholding         the       fee    cap       in     § 1997e(d)(2)         is

anything but novel.          It is in accord with every other circuit to

consider this provision of the PLRA.                           See Parker, 581 F.3d at

200; Johnson, 339 F.3d at 583; Jackson, 331 F.3d at 792-93;

Foulk v. Charrier, 262 F.3d 687, 691 (8th Cir. 2001); Walker,

257 F.3d at 663; Boivin, 225 F.3d at 38.                             As noted in Shepard,

662   F.3d     at     609,        the   “argument             that       [§ 1997e(d)(2)          is

unconstitutional] has been uniformly rejected by the circuits in

which such issues have been raised.”                          We now join those courts




                                              17
and   affirm   the   judgment   of   the   district   court   upholding   the

constitutionality of § 1997e(d)(2).

                                                                   AFFIRMED




                                      18
