Michael McNULTY, Appellant, v. Lewis W. SULLIVAN, Secretary of Health and Human Services, Appellee

886 F.2d 1074

Unempl.Ins.Rep. CCH 14941A
Michael McNULTY, Appellant,
v.
Lewis W. SULLIVAN, Secretary of Health and Human Services, Appellee.

No. 89-1879.

United States Court of Appeals,
Eighth Circuit.

Submitted Sept. 25, 1989.
Decided Oct. 12, 1989.

Appeal from the United States District Court for The Eastern District of Arkansas; H. David Young, United States Magistrate.

Anthony W. Bartels, Jonesboro, Ark., for appellant.

Karen J. Sharp, Dallas, Tex., for appellee.

Before ARNOLD, FAGG, and BEAM, Circuit Judges.

PER CURIAM.

1

Michael McNulty appeals from the district court's order refusing to grant an upward cost of living adjustment in the statutory hourly rate for attorney fee awards under the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412(d)(2)(A)(ii). We affirm.

2

The abuse of discretion standard governs our review. See Pierce v. Underwood, --- U.S. ----, 108 S. Ct. 2541, 2553, 101 L. Ed. 2d 490 (1988); Brouwers v. Bowen, 823 F.2d 273, 275 (8th Cir.1987). Although "the district court may, upon proper proof, increase the $75 per hour rate for attorney's fees to reflect the increase in the cost of living," Kelly v. Bowen, 862 F.2d 1333, 1336 (8th Cir.1988), this increase is not automatic, Headlee v. Bowen, 869 F.2d 548, 551-52 (10th Cir.1989); Oliveira v. United States, 827 F.2d 735, 742 (Fed.Cir.1987). In this instance, McNulty failed to submit proof supporting his request for a higher fee to the district court.

3

Based on our review of the record, we cannot say the district court abused its discretion by refusing to make an upward adjustment in the fee awarded to McNulty's attorney. Accordingly, we affirm.