Huskey v. O'Malley

W.D. Missouri

Huskey v. O'Malley

DecidedFebruary 28, 2024

Docket4:23-cv-00295

StatusUnknown

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Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

LELA HUSKEY, ) ) Plaintiff, ) ) v. ) Case No. 23-00295-CV-W-MDH-SSA ) MARTIN O’MALLEY, ) Commissioner of Social Security, ) ) Defendant. )

Before the Court is Plaintiff’s Application for Attorney’s Fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Plaintiff’s Motion seeks $6,387.54 for 25.85 hours of work and Defendant has no objection. The EAJA creates a right to attorney’s fees in civil actions against the government. The EAJA statute provides legal fees may be allowed only for an adversary action, such as a social security claim in district court and are payable to prevailing parties. 42 U.S.C. § 406(b)(1); Clifton v. Heckler, 755 F.2d 1138 (5th Cir. 1985). There is no question that Plaintiff is the prevailing party in this social security matter. In determining whether the attorney’s fees requested by a qualified Plaintiff are “reasonable,” Section 2412(d)(2)(A) of EAJA specifies a statutory cap of $125.00 per hour, which should be adjusted for increases in the cost of living. The Eighth Circuit has held that the Consumer Price Index constitutes appropriate proof of the cost-of-living increase since the original enactment of the EAJA, and justifies an award higher than the statutory rate of $75. Stanfield v. Apfel, 985 F. Supp. 927, 930-931 (E.D. Mo. 1997) (decision approving as “reasonable” in 1997 an hourly rate of $128.36 per hour) citing Johnson v. Sullivan, 919 F.2d 503, 504 (8th Cir. 1990). The statutory hourly rate under the EAJA was increased from $75 to $125 per hour for cases commenced on or after March 26, 1996. Further, in determining the reasonableness of the hours claimed in Plaintiff’s request, the Court must rely upon its own knowledge, experience, and expertise of the time required

completing similar activities by lawyers of reasonably comparable skill, experience, and reputation. Shepherd v. Apfel, 981 F. Supp. 1188, 1192 (S.D. Iowa 1997) citing Gilbert v. City of Little Rock, Arkansas, 867 F.2d 1063, 1066 (8th Cir. 1989). Therefore, Plaintiff’s Motion is GRANTED, and it is ORDERED that Plaintiff is awarded $6,387.54 to be paid by the Social Security Administration. Plaintiff has signed an Assignment of EAJA Fees in this case. (Doc. 27-2). The award is to be made payable to Attorney Kyle Sciolaro and mailed to Burnett Driskill, Attorneys. The Court acknowledges that, in accordance with Astrue v. Ratliff, 560 U.S. 586 (2010), the EAJA fee is payable to Plaintiff as the litigant and may be offset to satisfy a pre-existing debt that the litigant owes to the United States.

IT IS SO ORDERED. Dated: February 28, 2024 /s/ Douglas Harpool______ DOUGLAS HARPOOL United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

LELA HUSKEY, ) ) Plaintiff, ) ) v. ) Case No. 23-00295-CV-W-MDH-SSA ) MARTIN O’MALLEY, ) Commissioner of Social Security, ) ) Defendant. )

Before the Court is Plaintiff’s Application for Attorney’s Fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Plaintiff’s Motion seeks $6,387.54 for 25.85 hours of work and Defendant has no objection. The EAJA creates a right to attorney’s fees in civil actions against the government. The EAJA statute provides legal fees may be allowed only for an adversary action, such as a social security claim in district court and are payable to prevailing parties. 42 U.S.C. § 406(b)(1); Clifton v. Heckler, 755 F.2d 1138 (5th Cir. 1985). There is no question that Plaintiff is the prevailing party in this social security matter. In determining whether the attorney’s fees requested by a qualified Plaintiff are “reasonable,” Section 2412(d)(2)(A) of EAJA specifies a statutory cap of $125.00 per hour, which should be adjusted for increases in the cost of living. The Eighth Circuit has held that the Consumer Price Index constitutes appropriate proof of the cost-of-living increase since the original enactment of the EAJA, and justifies an award higher than the statutory rate of $75. Stanfield v. Apfel, 985 F. Supp. 927, 930-931 (E.D. Mo. 1997) (decision approving as “reasonable” in 1997 an hourly rate of $128.36 per hour) citing Johnson v. Sullivan, 919 F.2d 503, 504 (8th Cir. 1990). The statutory hourly rate under the EAJA was increased from $75 to $125 per hour for cases commenced on or after March 26, 1996. Further, in determining the reasonableness of the hours claimed in Plaintiff’s request, the Court must rely upon its own knowledge, experience, and expertise of the time required

completing similar activities by lawyers of reasonably comparable skill, experience, and reputation. Shepherd v. Apfel, 981 F. Supp. 1188, 1192 (S.D. Iowa 1997) citing Gilbert v. City of Little Rock, Arkansas, 867 F.2d 1063, 1066 (8th Cir. 1989). Therefore, Plaintiff’s Motion is GRANTED, and it is ORDERED that Plaintiff is awarded $6,387.54 to be paid by the Social Security Administration. Plaintiff has signed an Assignment of EAJA Fees in this case. (Doc. 27-2). The award is to be made payable to Attorney Kyle Sciolaro and mailed to Burnett Driskill, Attorneys. The Court acknowledges that, in accordance with Astrue v. Ratliff, 560 U.S. 586 (2010), the EAJA fee is payable to Plaintiff as the litigant and may be offset to satisfy a pre-existing debt that the litigant owes to the United States.

IT IS SO ORDERED. Dated: February 28, 2024 /s/ Douglas Harpool______ DOUGLAS HARPOOL United States District Judge

48 Fair empl.prac.cas. 1609, 49 Empl. Prac. Dec. P 38,654 Johnnie Gilbert, Horace Walters, Andrew Lockhart, and Billy O'donald, Appellants/cross-Appellees v. The City of Little Rock, Arkansas the Civil Service Commission of the City of Little Rock, Arkansas Walter E. "Sonny" Simpson, Individually and in His Official Capacity as Chief of Police of the City of Little Rock, Arkansas and Carlton E. McMullin Individually and in His Official Capacity as City Manager of the City of Little Rock, Arkansas, Appellees/cross-Appellants. Julius Bryant, Jack Matlock, Mixie Alexander, Jesse Briscoe, Grady Anthony, Marcella Wilson, and Larry Bazzelle, Intervenors-Below

867 F.2d 1063 (Eighth Circuit, 1989)

Shepherd v. Apfel

981 F. Supp. 1188 (S.D. Iowa, 1997)

Clifton v. Heckler

755 F.2d 1138 (Fifth Circuit, 1985)

Johnson v. Sullivan

919 F.2d 503 (Eighth Circuit, 1990)

Stanfield v. Apfel

985 F. Supp. 927 (E.D. Missouri, 1997)