                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            MAR 27 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


BESS BAIR; TRISHA LEE LOTUS;           )      No. 15-15674
BRUCE EDWARDS; JEFFREY                 )
HEDIN; DAVID SPREEN;                   )      D.C. No. 3:14-cv-03422-WHA
ENVIRONMENTAL PROTECTION               )
INFORMATION CENTER, a non-             )      MEMORANDUM*
profit corporation; CENTER FOR         )
BIOLOGICAL DIVERSITY, a non-           )
profit corporation; CALIFORNIANS       )
FOR ALTERNATIVES TO                    )
TOXICS, a non-profit corporation,      )
                                       )
      Plaintiffs-Appellants,           )
                                       )
      v.                               )
                                       )
CALIFORNIA DEPARTMENT OF )
TRANSPORTATION; MALCOLM )
DOUGHERTY, in his official             )
capacity as Director of the California )
Department of Transportation,          )
                                       )
      Defendants-Appellees,            )
                                       )

                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding



      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                       Argued and Submitted March 13, 2017
                            San Francisco, California

Before: FERNANDEZ and WATFORD, Circuit Judges, and STATON,** District
Judge.

      Bess Bair and a number of other persons and entities1 (collectively “Bair”)

appeal the district court’s denial of attorney’s fees2 to Bair against the California

Department of Transportation and its Director, Malcolm Dougherty, in his official

capacity, (hereafter collectively “Caltrans”) on the basis, among other things, that

the motion for fees was not filed in a timely fashion.3 We affirm.

      Pursuant to a stipulation by the parties to the action, on December 4, 2014,

the district court dismissed the action without prejudice on the basis that “there is

no final agency action subject to judicial review” and Bair’s claims were, therefore,

not “ripe for adjudication.” That was a final order. See McGuckin v. Smith, 974

F.2d 1050, 1053 (9th Cir. 1992), overruled on other grounds by, WMX Techs., Inc.

      **
        The Honorable Josephine L. Staton, United States District Judge for the
Central District of California, sitting by designation.
      1
       Those are: Trisha Lee Lotus, Bruce Edwards, Jeffrey Hedin, David Spreen,
Environmental Protection Information Center, Center for Biological Diversity, and
Californians for Alternatives to Toxics.
      2
        The motion was made pursuant to the provisions of the Equal Access to
Justice Act, 28 U.S.C. § 2412 (“EAJA”).
      3
      We need not, and do not, consider the district court’s other bases for
denying the motion.

                                           2
v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see also Montes v. United

States, 37 F.3d 1347, 1350 (9th Cir. 1994). Moreover, because the unripe action

was dismissed upon the stipulation of the parties and without prejudice, it was not

appealable. See Ward v. Apple Inc., 791 F.3d 1041, 1046 (9th Cir. 2015); Montes,

37 F.3d at 1350. In short, this stipulated judgment was both final and

nonappealable when entered; put otherwise, as to this type of judgment4 there was

no “possibility that the judgment was ‘open to attack’” once it was entered. Hoa

Hong Van v. Barnhart, 483 F.3d 600, 610 (9th Cir. 2007). Thus, the time to file a

motion for fees began to run on December 4, 2014, and expired fourteen days later

if the EAJA did not apply,5 or thirty days later if it did.6

       Bair, however, suggests that the judgment was not final because the Federal

Highway Administration had the right to intervene7 and, thus, had a right to appeal.

Not so. No doubt there was an intervention right before the action was voluntarily

dismissed without prejudice to any party. However, once the case was dismissed

       4
        Here, all of the parties specifically agreed that “there is no final agency
action subject to judicial review, and no claims have yet accrued for statute of
limitation purposes.” They added: “no party hereto waives any claim or defense,
and can assert any and all claims or defenses in any subsequent legal challenge.”
       5
           See N.D. Cal. Civil L. R. 54-5(a); see also Fed. R. Civ. P. 54(d)(2)(B)(i).
       6
           See 28 U.S.C. § 2412(d)(1)(B).
       7
           See 23 U.S.C. § 327(d)(3).

                                              3
without prejudice as unripe and without any waiver of claims or defenses, there

was nothing left to intervene in or to appeal from. See Yniguez v. Arizona, 939

F.2d 727, 731 (9th Cir. 1991); see also Diamond v. Charles, 476 U.S. 54, 68, 106

S. Ct. 1697, 1706, 90 L. Ed. 2d 48 (1986). Of course, the Federal Highway

Administration had not even attempted to intervene before the dismissal without

prejudice was issued.

      Finally, Bair asserts that the district court should have granted equitable

tolling. However, to obtain that Bair had to, at least, show due diligence and that

“some extraordinary circumstance stood in [Bair’s] way.” Pace v. DiGuglielmo,

544 U.S. 408, 418, 125 S. Ct. 1807, 1814, 161 L. Ed. 2d 669 (2005). That Bair did

not do. Bair has shown “what is at best a garden variety claim of excusable

neglect,” if that. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct.

453, 458, 112 L. Ed. 2d 435 (1990). In fact, Bair’s date of filing would have been

timely only if Bair prevailed on three debatable points: the EAJA applied to

Caltrans, which is not itself a United States entity (a proposition that had not been

adopted by any court at that time); the stipulated voluntary dismissal on the basis

of unripeness did not result in a final judgment and was appealable; and Caltrans’

time to appeal (and Bair’s) was controlled by Federal Rule of Appellate Procedure

4(a)(1)(B). Bair ran the risk of failure to prevail on all of those points. That was

brave perhaps; it was not diligent, and a timely filing was not precluded by some

                                           4
extraordinary circumstance.

      In fine, the district court did not abuse its discretion when it denied Bair’s

motion for attorney’s fees. See Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir.

2007); see also United States v. Hinkson, 585 F.3d 1247, 1261–63 (9th Cir. 2009)

(en banc).

      AFFIRMED.




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