                                                                           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                              NOT FOR PUBLICATION                           JUN 17 2011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.
