Bair v. California Department of Transportation, 685 F. App'x 546

Bair and several co-plaintiffs sued Caltrans; the parties stipulated to dismiss the action without prejudice on December 4, 2014, because there was "no final agency action" and claims were unripe.
The stipulated dismissal was entered as a final judgment but was nonappealable because it was a voluntary dismissal for lack of ripeness without prejudice or waiver of claims.
Bair moved for attorney’s fees under the Equal Access to Justice Act (EAJA); the district court denied the motion as untimely among other bases.
The Ninth Circuit treated the December 4, 2014 stipulated dismissal as the event that triggered the limitations period for fee motions (14 days if EAJA did not apply; 30 days if it did).
Bair argued the judgment was not final because the Federal Highway Administration could have intervened and thus had appeal rights, and alternatively sought equitable tolling.
The court rejected intervention/appeal and equitable tolling arguments, concluding Bair failed to show due diligence or extraordinary circumstances and instead showed at most excusable neglect.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the stipulated dismissal was a final, nonappealable judgment that started the time to file a fee motion	Bair: dismissal not final because FHWA could have intervened and appealed	Caltrans: dismissal was final and nonappealable once entered without prejudice and without any pending intervention	Held: Dismissal was final and nonappealable; time to move for fees began Dec. 4, 2014
Whether EAJA applied to Caltrans for calculating the fee-motion deadline	Bair: EAJA applied, giving a 30-day deadline	Caltrans: EAJA did not apply (Caltrans is not a federal entity), so a shorter deadline governed	Held: Court assumed issue but treated result under either deadline; timeliness not established by Bair
Whether the possibility of FHWA intervention preserved appealability and tolled the deadline	Bair: potential intervention meant dismissal was not final/appealable	Caltrans: no pending intervention at dismissal; nothing left to intervene in after dismissal	Held: Potential intervention did not prevent final, nonappealable dismissal
Whether equitable tolling excused the late fee motion	Bair: equitable tolling warranted due to uncertainty on EAJA and appealability	Caltrans: no extraordinary circumstances; Bair failed to show diligence	Held: Equitable tolling denied; Bair showed at most excusable neglect, not diligence or extraordinary circumstances

McGuckin v. Smith, 974 F.2d 1050 (9th Cir.) (treatment of finality for stipulated dismissals)
WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. en banc) (overruling/related procedural authority)
Montes v. United States, 37 F.3d 1347 (9th Cir.) (appealability of voluntary dismissals)
Ward v. Apple Inc., 791 F.3d 1041 (9th Cir.) (nonappealability of certain dismissals)
Hoa Hong Van v. Barnhart, 483 F.3d 600 (9th Cir.) (finality and possibility of attack on judgment)
Yniguez v. Arizona, 939 F.2d 727 (9th Cir.) (intervention and finality principles)
Diamond v. Charles, 476 U.S. 54 (U.S.) (intervention/appeal context)
Pace v. DiGuglielmo, 544 U.S. 408 (U.S.) (standard for equitable tolling: diligence and extraordinary circumstances)
Irwin v. Dep't of Veterans Affairs, 498 U.S. 89 (U.S.) (excusable neglect vs. equitable tolling)
Bias v. Moynihan, 508 F.3d 1212 (9th Cir.) (abuse of discretion standard for fee denials)
United States v. Hinkson, 585 F.3d 1247 (9th Cir. en banc) (standard of review for district court decisions)