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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT » 1 .
UNITED STATES OF AMERICA, N0. 06-10672
D.C. N0. CR=04»/00874-RGS
Plaintiff- Appellee, _
V.
_ JUDGMENT A
_ CHERIE PEDREGO,
Defendant - Appellant.
Appeal from the United States District Court for the District of Arizona
(Phoenix).
This cause came on to be heard on the Transcript of the Record from the
United States District Court for the District of Arizona (Phoenix) and was duly I
submitted.
Orr consideration whereof it is now here ordered and adjudged by this
Court, that the judgment of the said District Court in this cause be, and hereby is
REVERSED, REMANDED.
`Filed and entered 08/22/07 4 A
1 A TRUE COPY
CATHY A. CATTERSON
Clerk of Court
‘ AT`l'EST
. FEB DIZUU8
by::A/1,1 /’ 1i1,n2
6% ' "
Case 2:O4—cr-OO874—RGS Document 147 Filed O2/O1/2008 Page 1 of 4


I . ` NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS F I D
FOR THE NINTH CIRCUIT . AUG 22 zggy
cm-av A. cATTERs0N cuanx
u.s. count or APPEALS
UNITED STATES OF AMERICA, No. 06-10672
Plaintiff- Appellee, D.C. No. CR-04-00874-RGS
~ v.
MEMoRANDUM*
CHERIE PEDREGO,
Defendant - Appellant. (
, Appeal from the United States District Court
for the District of Arizona
Roger G. Strand, District Judge, Presiding I
Argued and Submitted June 14, 2007
San Francisco, California
( 7 Before: SCHROEDER, Chief Circuit Judge, CANBY and W. FLETCHER, Circuit
Judges.
Cherie Vigil (formerly Pedrego) appeals the district court’s order vacating
its earlier order granting Vigil’s motion to recover fees and costs pursuant to the _
Hyde Amendment, lll Stat. 2519 (1997). We have jurisdiction under 28 U.S.C. §
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Case 2:04-cr-00874-RGS Document 147 Filed O2/O1/2008 Page 2 of 4

1291, and we reverse. Because the parties are familiar with the factual and
procedural history of this case, we do not recount it here.
i The district court’s order of February 17, 2005, dismissing the indictment
without prejudice was a "iinal judgment" for purposes of 28 U.S.C. §
2412(d)(l)(B). A dismissal without prejudice has the legal effect of rendering the
action as if it had never been tiled. United States v. Calfornia, 932 F.2d 1346,
1351 (9th Cir. 1991). Thus, while the prosecution remained free to refile charges,
- the February 17, 2005 order terminated the criminal action. See Mitchell v. Bd. of
Governors of Wash. State Bar Ass ’n, 145 F.2d 827, 828 (9th Cir. 1944) (per
curiam) (“A proceeding is none the less terminated because it is dismissed without
prejudice.").
s The district court therefore was without jurisdiction to enter its later order of
September 28, 2006, dismissing the indictment with prejudice. The district court
properly vacated the latter order as void on that ground.
Because the earlier order had terminated the case in February 2005, Vigil’s
application for fees and costs was untimely. The government did not oppose the -
application when it was filed, however, and the district court awarded the fees and
costs. Several months later, the government moved under Rule 60(b), Fed. R. Civ.
P., to set aside the award, and the district court granted the motion.
2
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We conclude that the district court abused its discretion by granting the
government’s Rule 60(b) motion and vacating the award of costs and fees on the
ground that the application for them had been untimely. Although the government
primarily relied upon Rule 60(b)(4) as a basis for relief, the district court clearly
did not accept that argument because it vacated the fee award on the ground that
the application was untimely, not for lack of jurisdiction or because the fee award
was otherwise void. The district court’s decision to vacate the fee award,
1 therefore, necessarily rests on Rule 60(b)(l). Because the government filed its
motion for relief well after the time for filing an appeal of the order granting fees,
Ashford v. Steuart, 1657 F.2d 1053, 1055 (9th Cir. 1981) (in considering Rule
. 60(b)(l) motions filed after the time for filing appeals, "the interest in finality
V must be given great weight"), and because it did not present grounds sufficient to
justify its failure to timely challenge Vigil’s motion for fees, we conclude that
Rule 60(b)(l) did not provide a basis for vacating the fee award.
Accordingly, we REVERSE the district court’s order granting the _
government’s Rule 60(b) motion, and REMAND with instructions to reinstate the
awardof fees and costs.
REVERSED and REMANDED, with instructions.
3
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