IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 01-20891

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RODOLFO BRISENO, ET AL.,

Plaintiffs,

JUDITH CASTANEDA,

Plaintiff-Appellant,

VERSUS

JOHN ASHCROFT,

UNITED STATES ATTORNEY GENERAL;

JAMES BURZYNSKI,

UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE,

TEXAS SERVICE CENTER DIRECTOR;

RICHARD B. CRAVENER,

Defendants-Appellees.

* * * * * * * * * * * * * * * * * * * *
2

JUDITH CASTANEDA,

Plaintiff-Appellant,

VERSUS

JAMES BURZYNSKI,

DIRECTOR, TEXAS SERVICE CENTER,

UNITED STATES DEPARTMENT OF JUSTICE,

IMMIGRATION AND NATURALIZATION SERVICE;

RICHARD B. CRAVENER,

DIRECTOR, HOUSTON’S DISTRICT OFFICE,

UNITED STATES DEPARTMENT OF JUSTICE,

IMMIGRATION AND NATURALIZATION SERVICE,

Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Texas

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May 24, 2002

Before SMITH, BENAVIDES, and PARKER,

Circuit Judges.

PER CURIAM:

Judith Castaneda appeals the denial of her

FED. R. CIV. P. 60(b) motion for

reconsideration of a ruling denying her fees

and costs under the Equal Access to Justice

Act (“EAJA”), 28 U.S.C. § 2412(d). Because

the district court lacked subject matter

jurisdiction, we affirm. 

I.

In August 1998, Castaneda and her

husband sued James Burzynski, in his capacity

of director of the Immigration and

Naturalization Texas Service Center, to

adjudicate their applications for adjustment of

status. Two months later, the court granted a

joint motion to dismiss without prejudice.1 In

September 2000, Castaneda filed a mandamus

petition seeking action on her status

application. The parties also reached

1

 This was a FED. R. CIV. P. 41(a)(2)

dismissal without any conditions.
3

agreement on this action, and it was dismissed

without prejudice by motion of the court on

December 1, 2000.2

In February2001, Castaneda filed a request

for costs and fees under the EAJA; the district

court denied this request on April 6. On

May 4, Castaneda filed motion to “reconsider,” which the court construed as a rule 60(b)

motion and denied. Castaneda timely appealed

the denial.

II.

An application for expenses under the

EAJA must be filed within thirty days of “final

judgment.” 28 U.S.C. § 2412(d)(1)(B). A

final judgment for purposes of the EAJA must

be “final and not appealable.” 28 U.S.C.

§ 2412(d)(2)(G). The government contends

that because more than thirty days elapsed between the second rule 41(a)(2) dismissal order

and Castaneda’sEAJAapplication, the district

court was without jurisdiction to consider it.

Because this thirty-day deadline represents

a waiver of sovereign immunity, it is

jurisdictional. Clifton v. Heckler, 755 F.2d

1138, 1144-45 (5th Cir. 1985); Action on

Smoking & Health v. Civil Aeronautics Bd.,

724 F.2d 211, 225-26 (D.C. Cir. 1984).3 We

review the jurisdiction of the district court de

novo. United States v. Sims Bros. Constr.,

277 F.3d 734, 741 (5th Cir. 2001). The thirtyday time period in which an applicant must file

for fees under the EAJA begins to run “after

the time to appeal that ‘final judgment’ has

expired.” Melkonyan v. Sullivan, 501 U.S. 89,

96 (1991). Normally, the thirty-day period

would start once the time to file an appeal has

passed. Id. In this case, however, Castaneda

did not have the option to appeal. 

A rule 41(a)(2) dismissal is ordinarily not

appealable. Mortgage Guar. Ins. Corp. v. Richard Carlyon Co., 904 F.2d 298, 300 (5th

Cir. 1990). We have left open the possibility

that a rule 41(a)(2) dismissal with conditions

imposed by the district court may constitute

legal prejudice and thus render the dismissal

appealable. Yoffe v. Keller Indus., Inc., 580

F.2d 126, 129-30 (5th Cir. 1978). Here, the

district court did not attach any conditions to

the dismissal, and Castaneda can point to no

legal prejudice arising from it. 

Whether the “time for filing an appeal”

from a rule 41(a)(2) dismissal without

prejudice expiressimultaneouslywiththe entry

of such an order is an issue of first impression

in this circuit. We are compelled by the

statutory language to answer in the

affirmative. The EAJA’s time limitation

contains a twist on the standard final judgment

rule. Usually, an order described as a final

judgement is one that meets the criteria for

finality and is appealable. For EAJA fee

applications, though, the order must be final

and not appealable. 28 U.S.C. §

2412(d)(2)(G).

This conclusion finds support in Bryan v.

Office of Personnel Mgmt., 165 F.3d 1315,

1321 (10th Cir. 1999), in which the court also

regarded the thirty-day filing period as a jurisdictional prerequisite to recovering EAJA

fees. As here, the parties filed, and the court

granted, a joint motion for voluntarydismissal.

Id. Reasoning that such a dismissal did not

entitle plaintiffto an appeal, the court used the

date of this order to commence the thirty-day

2 This was also a rule 41(a)(2) dismissal

without conditions.

3

See also Dole v. Phoenix Roofing, Inc.,

922 F.2d 1202 (5th Cir. 1991).
4

period; plaintiff filed for fees beyond this time

and thus was not entitled to recover EAJA

fees. Id. 

Accordingly, because Castaneda filed her

application for EAJA fees more than thirty

days after the order granting voluntary

dismissal became final and non-appealable, the

district court was without subject matter jurisdiction. That court should have dismissed

the fee application for want ofjurisdiction, but

the result isthe same. We reform the denial of

April 6, 2001, to be a dismissal of the motion

for want of jurisdiction. As so reformed, the

order is AFFIRMED.