## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 01-20891

_______________



### R ODOLFO 

### B RISENO



### , ET AL



### .,

Plaintiffs,



### J UDITH 

### C ASTANEDA



### ,

Plaintiff-Appellant,

VERSUS



### J OHN 

### A SHCROFT



### , U NITED S TATES A TTORNEY G ENERAL ; 

### J AMES 

### B URZYNSKI



### , U NITED S TATES I MMIGRATION AND N ATURALIZATION S ERVICE

,

T EXAS S ERVICE C ENTER D IRECTOR ; 

### R ICHARD 

### B. C RAVENER



### ,

Defendants-Appellees.

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

### J UDITH 

### C ASTANEDA



### ,

Plaintiff-Appellant,

VERSUS



### J AMES 

### B URZYNSKI



### , D IRECTOR

, T EXAS S ERVICE C ENTER

, U NITED S TATES D EPARTMENT OF J USTICE

, I MMIGRATION AND N ATURALIZATION S ERVICE ; 

### R ICHARD 

### B. C RAVENER



### , D IRECTOR

, H OUSTON ’ S D ISTRICT O FFICE

, U NITED S TATES D EPARTMENT OF J USTICE

, I MMIGRATION AND N ATURALIZATION S ERVICE

,



### Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

May 24, 2002

Before S MITH , B ENAVIDES , and P ARKER

, Circuit Judges.

PER CURIAM:

Judith Castaneda appeals the denial of her

F ED

. R. C IV

. P. 60(b) motion for

reconsideration of a r u ling denying her fees

and costs unde r t he Equal Access to Justice

Act (“EAJA”), 28 U.S.C. § 2412(d). Because
the dis t rict 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 Imm i grati on 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 st a tus application. The parties also reached

1 This was a F E D

. R. C IV

. 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 February 2001, 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 motio n 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’s EAJA application, the district court was without jurisdiction to consider it.

Because this thirty-day deadline represents

a waiver of s o vereign immunity, it is jurisdictional. C lif

ton v. Heckler , 755 F.2d 1138, 1144-45 (5th Cir. 1985); A ction on Smoking & Health v. Civil Aeron autics Bd.

, 724 F.2d 211, 225-26 (D.C. Cir. 1984). 3 We review the jurisdiction of the district court de

novo

. U nited States v. S ims Bros. Constr.

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

for fees unde r t he EAJA begins to run “after

the time to appeal that ‘fin a l judgment’ has expired.” M

elkonyan v. Sullivan

, 501 U.S. 89, 96 (1991). Normally, t he 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. M

ortgage Guar. Ins. Corp. v. Richard Carlyon Co.

, 904 F.2d 298, 300 (5th

Cir. 19 90). We have left open the possibility

that a rule 41(a)(2) dismissal with conditions impo sed 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 c a n point to no legal prejudice arising from it.

Whether the “t ime for filing an appeal”

from a rule 41(a)(2) dismissal without prejudice expires simultaneously with the 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 limit at ion

contains a twist on the standard final judgment

rule. Usually, an order described as a final judgement is one that meets the cr i teria for

finalit y and is appealable. Fo r EAJA fee applications, though, the order m ust be final

a nd not app ealable. 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 t hirt y-day filing period as a jurisdictiona l prerequisite to recovering EAJA

fee s. As here, the parties filed, and the court granted, a joint motion for voluntary dismissal.

Id

. Reaso ning that such a dismissal did not

entitle plaint iff to 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; plaint iff filed for fees beyond this time

and thus was not enti tl ed to recover EAJA

fees. Id

.

Acc o rdingly, because Castaneda filed her application for EA JA 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 of jurisdiction, but

the result is the 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.