Steven Capitani v. Jo Anne Barnhart ( 2011 )

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NOT FOR PUBLICATION JUN 17 2011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.