[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-11085

Non-Argument Calendar

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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.

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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 nonattorney 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 

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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 

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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 

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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 nonattorney 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 

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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 

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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.

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