John Zech v. Commissioner of Social Securit

Filing

Opinion issued by court as to Appellant John Allen Zech. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 02/23/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11292
Non-Argument Calendar
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D.C. Docket No. 9:14-cv-81426-DLB
JOHN ALLEN ZECH,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 23, 2017)

Before TJOFLAT, WILLIAM PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:

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John Zech appeals the magistrate judge’s award of attorney’s fees under the
Equal Access to Justice Act (“EAJA”) after his successful appeal of the denial of
his application for disability insurance benefits and supplemental security income.
On appeal, Zech argues that the district court abused its discretion when it
compensated him for the work of two non-admitted attorneys, Howard Olinsky and
Paul Eaglin, at the paralegal hourly rate. Alternatively, Zech argues that the
district court abused its discretion by not allowing Olinsky and Eaglin to move
nunc pro tunc for admission pro hac vice before it ruled on his EAJA motion.
We review the district court’s decision of whether to award attorney’s fees
under the EAJA, as well as the amount of such fees, for an abuse of discretion.
Meyer v. Sullivan, 958 F.2d 1029, 1033 (11th Cir. 1992). An abuse of discretion
occurs where the district court fails to apply the proper legal standard, fails to
follow proper procedures in making its determination, or bases an award upon
clearly erroneous findings of fact. Gray ex rel. Alexander v. Bostic, 613 F.3d
1035, 1039 (11th Cir. 2010). This standard usually implies a range of choices, and
we will affirm even if we would have decided the matter the other way. Id.
The EAJA provides that “a court shall award to a prevailing party, other than
the United States, fees and other expenses, in addition to any costs awarded . . .
unless the court finds that the position of the United States was substantially

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justified or that special circumstances make an award unjust.” 28 U.S.C.
§ 2412(d)(1)(A).
While we have never addressed whether a district court can reduce EAJA
fees for attorneys who are not members of that court’s bar and did not move for
admission pro hac vice, another circuit has. In Priestly v. Astrue, the Fourth
Circuit held that the EAJA authorizes plaintiffs to receive reimbursement for work
performed by an attorney, regardless of whether the attorney performing the work
is admitted to practice in the district or not. Priestley v. Astrue, 651 F.3d 410, 413
(4th Cir. 2013). Specifically, using non-admitted attorneys for brief writing
services did not constitute a special circumstance sufficient to deny a fee award as
unjust. Id. However, while these non-admitted attorneys were entitled to
compensation, the district court retained discretion to treat their work as that of: (1)
non-attorneys providing support; or (2) work falling in the class of attorney work
for which admission to the court might not be necessary. Id. at 418-19. A plaintiff
was entitled to reimbursement at no less than the rate traditionally used for nonattorneys performing legal work. Id. at 419.
A district court may adopt local rules governing its practice, provided they
are consistent with federal law and the federal rules of procedure, evidence, and
bankruptcy. Fed. R. Civ. P. 83(a). “A district court is the ‘best judge of its own
rules.’” Clark v. Housing Auth. of Alma, 971 F.2d 723, 727 (11th Cir. 1992)
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(citation omitted). We give “great deference to a district court’s interpretation of
its local rules” and review a district court’s application of local rules for an abuse
of discretion. Id.
Southern District of Florida Special Rule 4(a) provides that only members of
the district court’s bar may appear as attorneys in court, unless the court permits
them to appear pro hac vice. S.D. Fla. S.R. 4(a). A non-admitted attorney may,
upon the submission of a written application by counsel admitted to practice in the
district, obtain permission to appear pro hac vice, and participate in a particular
case. S.D. Fla. S.R. 4(b)(1). Southern District of Florida Local Rule 11.1(d) states
that an attorney must enter an appearance when they: (1) file any pleading, unless
otherwise specified; or (2) represent a witness in any civil action or criminal
proceeding. S.D. Fla. L.R. 11.1(d).
The district court did not abuse its discretion by compensating Olinsky and
Eaglin at the paralegal hourly rate. Zech, as the prevailing party in his Social
Security appeal, was entitled to an award of counsel fees. See 28 U.S.C.
§ 2412(d)(1)(A). However, both Olinsky and Eaglin worked on Zech’s case
without moving for admission pro hac vice, and thus were not admitted to appear
and participate in the case. See S.D. Fla. S.R. 4(b)(1). The magistrate judge’s
decision to compensate this work at the paralegal hourly rate, such that admission
in the case was not required, was not an abuse of discretion, because his decision
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represented an interpretation of the EAJA that was silent as to such a situation. See
Bostic, 613 F.3d at 1039. Moreover, while the magistrate judge was not required
to award compensation in this manner, his decision represented one choice in a
range of permissible options that he was free to choose from. Id.
Priestly, while persuasive authority only, supports the magistrate judge’s
decision, because the Fourth Circuit gave its district courts: (1) discretion as to
how it compensated non-admitted attorneys for the services they performed; and
(2) the ability to treat the work of a non-admitted attorney like that of a nonattorney. See Priestly, 651 F.3d at 416, 418-19. Here, the magistrate judge chose
to treat their work as compensable at the rate of a paralegal. Therefore, the district
court did not abuse its discretion in compensating Olinsky and Eaglin for their
services at the paralegal rate, and we accordingly affirm in this respect.
The district court did not abuse its discretion by not affording Olinsky and
Eaglin an opportunity to move nunc pro tunc for admission pro hac vice before
ruling on Zech’s EAJA motion and reducing the amount of attorney fees. The
Commissioner put Zech on notice when she asked the court to compensate Olinsky
and Eaglin at the paralegal rate for their failure to move for admission pro hac
vice. Despite this, Olinsky and Eaglin failed to move for admission. While the
magistrate judge could have allowed them to seek admission, he was not required
to do so, as it represented one choice in a range of permissible options available to
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him. See Bostic, 613 F.3d at 1039. Accordingly, because the district court did not
abuse its discretion, we affirm.
AFFIRMED.

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