ORDER GRANTING MOTION FOR ATTORNEY FEES UNDER EQUAL ACCESS TO JUSTICE ACT

CHARLES F. EICK, Magistrate Judge.

PROCEEDINGS

On June 21, 2017, counsel for Plaintiff filed a "Motion for Award of Attorney's Fees Pursuant to Equal Access to Justice Act, etc." (the "Motion"). Defendant did not file any timely opposition to the Motion. See Minute Order dated June 21, 2017. The Motion seeks an award of $4,600 to be paid directly to Plaintiff's counsel.

BACKGROUND

On August 31, 2016, Plaintiff filed a complaint seeking review of the Commissioner's denial of disability benefits. The parties consented to a Magistrate Judge on October 24, 2016. After reviewing the parties' cross-motions for summary judgment, the Court remanded the matter for further administrative proceedings. See "Memorandum Opinion and Order of Remand," filed March 23, 2017.

APPLICABLE LAW

The Equal Access to Justice Act ("EAJA") provides:

28 U.S.C. § 2412(d)(1)(A) (emphasis added). "[F]ees and other expenses" include "reasonable attorney fees." 28 U.S.C. § 2412(d)(2)(A).

"It is the government's burden to show that its position was substantially justified or that special circumstances exist to make the award unjust." Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). "`Substantially justified' means "`justified in substance or in the main' — that is, justified to a degree that could satisfy a reasonable person." Id. (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). In other words, where "reasonable people could differ as to the appropriateness of the contested action," the Government's position is substantially justified. Pierce v. Underwood, 487 U.S. at 565 (internal brackets, quotations and citations omitted). Substantial justification requires that the Government's position have a "reasonable basis both in law and in fact." Id. at 565-66; see also Commissioner, I.N.S. v. Jean, 496 U.S. 154, 158 n.6 (1990); Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (substantial justification is equated with reasonableness).

In viewing the conduct of the Government, "the remedial purpose of the EAJA is best served by considering the totality of the circumstances." United States v. Gavilan Joint Community College Dist., 849 F.2d 1246, 1248 (9th Cir. 1988) (citation omitted). The Court must examine both the Government's pre-litigation and litigation positions. Id.; see Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998) ("The government's position must be `substantially justified' at each stage of the proceedings.") (quotations and citation omitted). In the Social Security context, the Government's position includes "both the government's litigation position and the underlying agency action giving rise to the civil action." Meier v. Colvin, 727 F.3d 867, 870-72 (9th Cir. 2013); see also 28 U.S.C. § 2412(d)(2)(D) ("`position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based . . ."). In evaluating the reasonableness of the Government's position, the Court must "focus on the remand issue[s] rather than the ultimate disability determination." Lewis v. Barnhart, 281 F.3d 1081, 1086 (9th Cir. 2002). When the ALJ's decision is the final decision of the Administration, the ALJ's decision is the "action or failure to act by the agency upon which the civil action is based." Meier v. Colvin, 727 F.3d at 870-72. In this circumstance, the ALJ's decision is the decision reviewed for substantial justification. Id.

DISCUSSION

For the reasons set forth in the "Memorandum Opinion and Order of Remand," filed March 23, 2017, the Government's position was not substantially justified. No special circumstances would make an award unjust. The fees sought are reasonable.

An EAJA fee award generally is payable to the prevailing litigant rather than to the prevailing litigant's counsel. See Astrue v. Ratliff, 560 U.S. 586, 596-97 (2010). However, Plaintiff assigned his EAJA fees to his counsel. See "Plaintiff's Affidavit and Assignment of EAJA Fee," appended to the Motion. If Plaintiff does not owe a government debt that qualifies for an offset, payment may be made in the name of Plaintiff's counsel when the Government waives the Anti-Assignment Act, 31 U.S.C. section 3727. See United States v. Kim, 806 F.3d 1161, 1169-70 (9th Cir. 2015) (to the extent the Anti-Assignment Act may apply to EAJA fee awards, "[i]t is well established . . . that the Government can waive coverage of the Anti-Assignment Acts.") (citation omitted).

The Court construes the Government's failure to file timely opposition to the Motion as a waiver of the Anti-Assignment Act. The fees therefore are payable to Plaintiff's counsel, as Plaintiff's assignee, absent offset by reason of any outstanding federal indebtedness owing from Plaintiff under 31 U.S.C. section 3716. See, e.g., Fambrough v. Commissioner of Social Security, 2016 WL 500605, at *5 (E.D. Cal. Feb. 9, 2016) (finding that payment could be made directly to counsel if Plaintiff does not owe a government debt and the Government waives the Anti-Assignment Act's requirements; citing district court cases finding same); Yesipovich v. Colvin, 2015 WL 5675869, at *8 (N.D. Cal. Sept. 28, 2015) (same).

CONCLUSION AND ORDER

For all of the foregoing reasons, IT IS ORDERED that Plaintiff is awarded attorney fees under the EAJA in the amount of $4,600. If the Government determines that Plaintiff does not owe a federal debt, then the Government shall cause the payment of the award to be made directly to Barbara Arnold pursuant to the assignment executed by Plaintiff. This award is without prejudice to the rights of Plaintiff and Plaintiff's counsel to seek attorney fees under 42 U.S.C. section 406, if and when appropriate.