[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 20

- 11 085 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 W ILLIAM PRYOR , Chief Judge, WILSON and ROSENBAUM , Circuit Judges. USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 1 of 72 PER CURIAM: Robin Herfield appeals t he award of attorney’s fees under the Equal Access to Justice Act following her successful challenge to t he denial of her application for disability insurance benefits. Herfield challenges as inadequate the h ourly rate of $125 awarded for work by Curtis Fisher , an out

- of

- state attorn ey 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 fail e d to seek admi ssion to practice pro hac vice in Herfield’s action against the Commissioner of Social Security

. S ee 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 increas e 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 he r 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 b y 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 draft ing br iefs and other writings “related to Social

USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 2 of 73 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 t hat F isher 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 r efused to pay Fisher “at the same rate as an attorney as he was not admitted here.” T he district court ordered Herfield to

“ recalculate [the] fee s ass ociated 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 pai d 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 practic e 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 t o $12 5

. The district court found that it would be unjust to allow “non

- admitted attorneys . . . [to] enjoy the benefits and privileges of

USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 3 of 74 practicing before [its] Court” without complying with its local rules. See S.D. Fla. S.R. 4(a). The district court stat ed that Fisher “ should ha ve 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 “t he court fails to apply the proper legal standard or to follow proper procedures in making t he 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 E qual A ccess to J ustice A ct 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 prevail ing market rates for the kind and quality of the services furnished except that . . . attorney fees shall not be awarded

USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 4 of 75 in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor . . . justifies a hig her fee.” Id

. § 2412(d)(2)(A). The term “attorney fees” includes fees for work by “ paralegals

. . . and other s who se labor contribute s to the work product for which an attorney bills her client

. ” Richlin Sec. Serv. Co. v. Chertoff , 553 U.S. 571 , 5 81 (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 attorne ys 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 vic e 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 c ourt 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 fail ur e to request admission to participate pro hac vice prevented him

USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 5 of 76 from a ppear ing and participat ing in Herfield’s case as an attorney

. See S.D. Fla. S.R. 4(a). S o 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. Beca use 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 R ichlin , 553 U.S. at 581, the district court committed no abuse of discretion by treating Fisher as a

n on - 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 rate s for the kind and quality of the services provided

. ” 28 U.S.C. § 2412(d)(2)(A) . Consistent with the statute, t he district court de termin ed that Fisher merited more than the hourly rate of $80 ordinarily paid to paralegals based on hi s 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 fact or . . . 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” i s 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

USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 6 of 77 Herfield offer ed to justify a n increased fee because that evidence failed to address what hourly rate other non

- attorneys in the ar ea had earned for performing the

same tasks as Fisher. And t he district court reasonably relied on a n earlier social security case identified by Herfield in which it award e d an hourly rate of $125 t o attorneys who failed to seek admission to practice pro h ac 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). T he district court did not abuse its discretion. We AFFIRM the award of attorney’s fees to Herfield. USCA11 Case: 20-11085 Date Filed: 12/09/2020 Page: 7 of 7