1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEANNETTE CUMMINGS, Case No. 1:23-cv-00371-HBK 12 Plaintiff, ORDER GRANTING AWARD AND PAYMENT OF ATTORNEYS FEES AND 13 v. COSTS UNDER THE EQUAL ACCESS TO JUSTICE ACT 1 14 MARTIN O’MALLEY, COMMISSIONER OF SOCIAL (Doc. Nos. 20) 15 SECURITY, 16 Defendant. 17 18 19 20 Pending before the Court is the parties’ stipulated motion for award of attorney’s fees 21 filed on March 29, 2024. (Doc. No. 20). The parties agree to an award of attorney’s fees and 22 expenses to Plaintiff’s attorney, Roger David Drake of Bertoldo Carter Smith & Cullen, in the 23 amount of $5,500.05 in attorney fees and expenses, pursuant to the Equal Access to Justice Act 24 (“EAJA”),

and $402.00 in costs, pursuant to

. (Id.). 25 On February 21, 2024, this Court granted Plaintiff’s Motion for Summary Judgment and 26 remanded the case pursuant to sentence four of

(g) to the Commissioner for

27 1 Both parties have consented to the jurisdiction of a magistrate judge in accordance with

(c)(1). (Doc. No. 9). 28 1 further administrative proceedings. (Doc. No. 18). Judgment was entered the same day. (Doc. 2 No. 19). Plaintiff now requests an award of fees and costs as the prevailing party. See 28 U.S.C. 3 § 2412(a) & (d)(1)(A); Fed. R. Civ. P. 54(d)(1); see

cf. Shalala v. Schaefer, 509

, 300-02 (1993) (concluding that a party who wins a sentence-four remand order under 5

(g) is a prevailing party). The Commissioner does not oppose the requested 6 relief. 7 The EAJA provides for an award of attorney fees and costs to private litigants who both 8 prevail in civil actions (other than tort) against the United States and timely file a petition for fees. 9

(d)(1)(A); §1920. Under the Act, a court shall award attorney fees to the 10 prevailing party unless it finds the government’s position was “substantially justified or that 11 special circumstances make such an award unjust.” Id. Here, the government did not show its 12 position was substantially justified and the Court finds there are not special circumstances that 13 would make an award unjust. 14 Based on the stipulation, the Court finds an award of $5,500.00 in attorney fees and 15 expenses is appropriate. EAJA fees, expenses, and costs are subject to any offsets allowed under 16 the Treasury Offset Program (“TOP”), as discussed in Astrue v. Ratliff,

(2010). If 17 the Commissioner determines upon effectuation of this Order that Plaintiff’s EAJA fees are not 18 subject to any offset allowed under the TOP, the fees shall be delivered or otherwise transmitted 19 to Plaintiff’s counsel. 20 //// 21 //// 22 //// 23 Accordingly, it is ORDERED: 24 1. The stipulated motion for attorney fees and expenses (Doc. No. 20) is GRANTED. 25 2. The Commissioner is directed to pay to Plaintiff as the prevailing party EAJA fees in 26 the amount of $5,500.00 in attorney fees and expenses and $402.00 in costs. Unless the 27 Department of Treasury determines that Plaintiff owes a federal debt, the government shall make 28 payment of the EAJA fees and costs to Plaintiff’s counsel, Roger David Drake of Bertoldo Carter 1 | Smith & Cullen, in accordance with Plaintiff's assignment of fees and subject to the terms of the 2 | stipulated motion. 3 “| Dated: __April 3, 2024 law □□□ fareh Hack 5 HELENA M. BARCH-KUCHTA ‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28