Castaneda v. Ashcroft, et al

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.
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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.

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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 motion to “reconsid-
er,” 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 be-
tween 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 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 thirty-
day 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. Ri-
chard 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 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 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 jur-
isdictional prerequisite to recovering EAJA
fees. As here, the parties filed, and the court
granted, a joint motion for voluntary dismissal.
Id. Reasoning that such a dismissal did not
entitle plaintiff 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).

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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 jur-
isdiction. 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.

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