Steven Capitani v. Jo Anne Barnhart

Opinion

FILED NOT FOR PUBLICATION JUN 17 2011

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

STEVEN LEE CAPITANI, No. 09-57015

Plaintiff - Appellant, D.C. No. 3:07-cv-00266-JAH-AJB

v. MEMORANDUM * MICHAEL J. ASTRUE, Commissioner of Social Security Administration,

Defendant - Appellee.

Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding

Submitted June 9, 2011 ** Pasadena, California

Before: KOZINSKI, Chief Judge, IKUTA, Circuit Judge and PIERSOL, District Judge.***

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Lawrence L. Piersol, Senior United States District Judge for the District of South Dakota, sitting by designation. page 2

The district court did not abuse its discretion in denying Capitani’s

attorney’s late-filed application for attorney’s fees under the Equal Access to

Justice Act because her reasons for missing the deadline amounted to “a garden

variety claim of excusable neglect.” Irwin v. Dep’t of Veterans Affairs, 498 U.S.

89, 96 (1990); see Le v. Astrue, 529 F.3d 1200, 1201 (9th Cir. 2008); see also

Modrowski v. Mote, 322 F.3d 965, 968–69 (7th Cir. 2003).

AFFIRMED.