USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-11085 Non-Argument Calendar ________________________
D.C. Docket No. 9:16-cv-80077-RAR
ROBIN HERFIELD,
Plaintiff-Appellant,
versus
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Carolyn W. Colvin,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(December 9, 2020)
Before WILLIAM PRYOR, Chief Judge, WILSON and ROSENBAUM, Circuit Judges. USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 2 of 7
PER CURIAM:
Robin Herfield appeals the award of attorney’s fees under the Equal Access
to Justice Act following her successful challenge to the denial of her application
for disability insurance benefits. Herfield challenges as inadequate the hourly rate
of $125 awarded for work by Curtis Fisher, an out-of-state attorney who drafted
briefs for Herfield’s counsel of record. The district court paid Fisher as a non-
attorney because he was not a member of the bar of the Southern District of Florida
and failed to seek admission to practice pro hac vice in Herfield’s action against
the Commissioner of Social Security. See S.D. Fla. S.R. 4(a). We affirm.
Herfield’s application for attorney’s fees requested compensation for her
counsel of record and for Fisher of more than $190 an hour, which Herfield
calculated by adding a cost-of-living increase to the maximum statutory hourly rate
of $125 for attorneys. See 28 U.S.C. § 2412(d)(2)(A). Herfield reported that less
than half of her attorney’s fees were attributable to two members of the bar of the
district court, Evan Zagoria and Sarah Bohr, who worked on Herfield’s case,
respectively, 4.7 and 8.2 hours in 2016 and .65 and 16.8 hours in 2017. Herfield
sought the majority of attorney’s fees for research and writing by Fisher that
totaled 27.1 hours in 2016 and 8.6 hours in 2017. Herfield sought equal pay for
Fisher based on his seven years of work as a law clerk in the Middle District of
Florida and eight years of drafting briefs and other writings “related to Social
2 USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 3 of 7
Security law” while he was licensed in two states, a district court in Wisconsin,
and the Court of Appeals for the Seventh Circuit. The Commissioner opposed
Herfield’s application and argued that Fisher should be paid the standard hourly
rate of $80 applied to paralegals because he declined to seek admission pro hac
vice to be compensated as an attorney.
The district court denied Herfield’s application for attorney’s fees without
prejudice and with leave to refile. The district court ruled that Herfield was entitled
to compensation for Fisher’s work, but it refused to pay Fisher “at the same rate as
an attorney as he was not admitted here.” The district court ordered Herfield to
“recalculate [the] fees associated with the work of Mr. Fisher on the basis of a
reasonable rate for a non-attorney performing [his] work.”
Herfield filed an amended application for attorney’s fees that requested an
hourly rate of $175 for Fisher. Herfield argued that her rate matched prevailing
market rates for an attorney with Fisher’s skills and experience. The Commissioner
responded that Fisher should be paid as a paralegal because he had attempted to
circumvent the local rules that required attorneys to be members of the bar or seek
admission pro hac vice to practice before the district court. See S.D. Fla. S.R. 4(a).
The district court adopted a magistrate judge’s recommendation to reduce
Fisher’s hourly rate from $175 to $125. The district court found that it would be
unjust to allow “non-admitted attorneys . . . [to] enjoy the benefits and privileges of
3 USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 4 of 7
practicing before [its] Court” without complying with its local rules. See S.D. Fla.
S.R. 4(a). The district court stated that Fisher “should have sought pro hac vice
admission” due to the importance of briefs in Social Security litigation and his
predominant role in the case and that “[h]is failure to do so justifie[d] a reduction
in his hourly rate.”
We review an award of attorney’s fees for abuse of discretion. Common
Cause/Georgia v. Billups, 554 F.3d 1340, 1349 (11th Cir. 2009). Under that
standard, we affirm unless “the court fails to apply the proper legal standard or to
follow proper procedures in making the determination, or bases an award upon
findings of fact that are clearly erroneous.” Gray ex rel. Alexander v. Bostic, 613
F.3d 1035, 1039 (11th Cir. 2010). Because the abuse of discretion standard implies
a range of choices, ordinarily we affirm even if we would have decided the case
differently. Id.
The Equal Access to Justice Act provides that “a court shall award to a
prevailing party . . . fees and other expenses . . . incurred by that party in any civil
action” against the United States “unless the court finds that the position of the
United States was substantially justified or that special circumstances make an
award unjust.” 28 U.S.C. § 2412(d)(1)(A). The prevailing party is entitled to
“reasonable attorney fees . . . based upon prevailing market rates for the kind and
quality of the services furnished except that . . . attorney fees shall not be awarded
4 USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 5 of 7
in excess of $125 per hour unless the court determines that an increase in the cost
of living or a special factor . . . justifies a higher fee.” Id. § 2412(d)(2)(A). The
term “attorney fees” includes fees for work by “paralegals . . . and others whose
labor contributes to the work product for which an attorney bills her client.”
Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 581 (2008) (internal quotation
marks omitted). A reasonable fee is one sufficient to attract competent counsel to
take the case but prevents a windfall for an attorney. Perdue v. Kenney A. ex rel.
Winn, 559 U.S. 542, 552 (2010).
A district court “may adopt and amend rules governing its practice” so long
as those rules are “consistent with . . . federal statutes and rules.” Fed. R. Civ. P.
83(a)(1). The special rules for the Southern District of Florida allow only members
of its bar to appear as attorneys in court unless an attorney obtains permission to
appear pro hac vice. S.D. Fla. S.R. 4(a). To obtain permission to appear pro hac
vice in a particular case, an attorney must submit “a pro hac vice motion filed and
served by co-counsel admitted to practice in” the district. Id. We accord “great
deference to a district court’s interpretation of its local rules.” Clark v. Hous. Auth.
of City of Alma, 971 F.2d 723, 727 (11th Cir. 1992).
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USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-11085 Non-Argument Calendar ________________________
D.C. Docket No. 9:16-cv-80077-RAR
ROBIN HERFIELD,
Plaintiff-Appellant,
versus
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Carolyn W. Colvin,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(December 9, 2020)
Before WILLIAM PRYOR, Chief Judge, WILSON and ROSENBAUM, Circuit Judges. USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 2 of 7
PER CURIAM:
Robin Herfield appeals the award of attorney’s fees under the Equal Access
to Justice Act following her successful challenge to the denial of her application
for disability insurance benefits. Herfield challenges as inadequate the hourly rate
of $125 awarded for work by Curtis Fisher, an out-of-state attorney who drafted
briefs for Herfield’s counsel of record. The district court paid Fisher as a non-
attorney because he was not a member of the bar of the Southern District of Florida
and failed to seek admission to practice pro hac vice in Herfield’s action against
the Commissioner of Social Security. See S.D. Fla. S.R. 4(a). We affirm.
Herfield’s application for attorney’s fees requested compensation for her
counsel of record and for Fisher of more than $190 an hour, which Herfield
calculated by adding a cost-of-living increase to the maximum statutory hourly rate
of $125 for attorneys. See 28 U.S.C. § 2412(d)(2)(A). Herfield reported that less
than half of her attorney’s fees were attributable to two members of the bar of the
district court, Evan Zagoria and Sarah Bohr, who worked on Herfield’s case,
respectively, 4.7 and 8.2 hours in 2016 and .65 and 16.8 hours in 2017. Herfield
sought the majority of attorney’s fees for research and writing by Fisher that
totaled 27.1 hours in 2016 and 8.6 hours in 2017. Herfield sought equal pay for
Fisher based on his seven years of work as a law clerk in the Middle District of
Florida and eight years of drafting briefs and other writings “related to Social
2 USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 3 of 7
Security law” while he was licensed in two states, a district court in Wisconsin,
and the Court of Appeals for the Seventh Circuit. The Commissioner opposed
Herfield’s application and argued that Fisher should be paid the standard hourly
rate of $80 applied to paralegals because he declined to seek admission pro hac
vice to be compensated as an attorney.
The district court denied Herfield’s application for attorney’s fees without
prejudice and with leave to refile. The district court ruled that Herfield was entitled
to compensation for Fisher’s work, but it refused to pay Fisher “at the same rate as
an attorney as he was not admitted here.” The district court ordered Herfield to
“recalculate [the] fees associated with the work of Mr. Fisher on the basis of a
reasonable rate for a non-attorney performing [his] work.”
Herfield filed an amended application for attorney’s fees that requested an
hourly rate of $175 for Fisher. Herfield argued that her rate matched prevailing
market rates for an attorney with Fisher’s skills and experience. The Commissioner
responded that Fisher should be paid as a paralegal because he had attempted to
circumvent the local rules that required attorneys to be members of the bar or seek
admission pro hac vice to practice before the district court. See S.D. Fla. S.R. 4(a).
The district court adopted a magistrate judge’s recommendation to reduce
Fisher’s hourly rate from $175 to $125. The district court found that it would be
unjust to allow “non-admitted attorneys . . . [to] enjoy the benefits and privileges of
3 USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 4 of 7
practicing before [its] Court” without complying with its local rules. See S.D. Fla.
S.R. 4(a). The district court stated that Fisher “should have sought pro hac vice
admission” due to the importance of briefs in Social Security litigation and his
predominant role in the case and that “[h]is failure to do so justifie[d] a reduction
in his hourly rate.”
We review an award of attorney’s fees for abuse of discretion. Common
Cause/Georgia v. Billups, 554 F.3d 1340, 1349 (11th Cir. 2009). Under that
standard, we affirm unless “the court fails to apply the proper legal standard or to
follow proper procedures in making the determination, or bases an award upon
findings of fact that are clearly erroneous.” Gray ex rel. Alexander v. Bostic, 613
F.3d 1035, 1039 (11th Cir. 2010). Because the abuse of discretion standard implies
a range of choices, ordinarily we affirm even if we would have decided the case
differently. Id.
The Equal Access to Justice Act provides that “a court shall award to a
prevailing party . . . fees and other expenses . . . incurred by that party in any civil
action” against the United States “unless the court finds that the position of the
United States was substantially justified or that special circumstances make an
award unjust.” 28 U.S.C. § 2412(d)(1)(A). The prevailing party is entitled to
“reasonable attorney fees . . . based upon prevailing market rates for the kind and
quality of the services furnished except that . . . attorney fees shall not be awarded
4 USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 5 of 7
in excess of $125 per hour unless the court determines that an increase in the cost
of living or a special factor . . . justifies a higher fee.” Id. § 2412(d)(2)(A). The
term “attorney fees” includes fees for work by “paralegals . . . and others whose
labor contributes to the work product for which an attorney bills her client.”
Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 581 (2008) (internal quotation
marks omitted). A reasonable fee is one sufficient to attract competent counsel to
take the case but prevents a windfall for an attorney. Perdue v. Kenney A. ex rel.
Winn, 559 U.S. 542, 552 (2010).
A district court “may adopt and amend rules governing its practice” so long
as those rules are “consistent with . . . federal statutes and rules.” Fed. R. Civ. P.
83(a)(1). The special rules for the Southern District of Florida allow only members
of its bar to appear as attorneys in court unless an attorney obtains permission to
appear pro hac vice. S.D. Fla. S.R. 4(a). To obtain permission to appear pro hac
vice in a particular case, an attorney must submit “a pro hac vice motion filed and
served by co-counsel admitted to practice in” the district. Id. We accord “great
deference to a district court’s interpretation of its local rules.” Clark v. Hous. Auth.
of City of Alma, 971 F.2d 723, 727 (11th Cir. 1992).
The district court did not abuse its discretion by classifying Fisher as a non-
attorney based on his lack of licensure. Under the local rules of the district court,
Fisher’s failure to request admission to participate pro hac vice prevented him
5 USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 6 of 7
from appearing and participating in Herfield’s case as an attorney. See S.D. Fla.
S.R. 4(a). So his status in the district court was different from Herfield’s counsel of
record, all of whom were members of the bar of the district court. Because Fisher
could not submit his work directly to the district court and was limited to
“contribut[ing] to the work product” of Herfield’s attorneys, see Richlin, 553 U.S.
at 581, the district court committed no abuse of discretion by treating Fisher as a
non-attorney to determine his hourly rate of compensation.
The district court also did not abuse its discretion by awarding Fisher an
hourly rate of $125. The Equal Justice Act provides that the starting point to
determine a reasonable hourly rate must be “the prevailing market rates for the
kind and quality of the services provided.” 28 U.S.C. § 2412(d)(2)(A). Consistent
with the statute, the district court determined that Fisher merited more than the
hourly rate of $80 ordinarily paid to paralegals based on his out-of-state licensure,
his level of skill, and the extent of his work on Herfield’s case. But the rate paid to
Fisher was subject to a statutory ceiling of “$125 per hour” unless “an increase in
the cost of living or a special factor . . . justifie[d] a higher fee.” Id. Fisher’s
experience and the quality of his services did not merit an upward adjustment
because “the work and ability of counsel” is not a special factor that justifies a
higher hourly rate. See Pierce v. Underwood, 487 U.S. 552, 573 (1988). The
district court also was not required to credit the affidavits and declarations that
6 USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 7 of 7
Herfield offered to justify an increased fee because that evidence failed to address
what hourly rate other non-attorneys in the area had earned for performing the
same tasks as Fisher. And the district court reasonably relied on an earlier social
security case identified by Herfield in which it awarded an hourly rate of $125 to
attorneys who failed to seek admission to practice pro hac vice. See Dillard v. City
of Greensboro, 213 F.3d 1347, 1355 (11th Cir. 2000) (acknowledging “there is
some inferential evidentiary value to [a] prior award” of attorney’s fees). The
district court did not abuse its discretion.
We AFFIRM the award of attorney’s fees to Herfield.