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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-20891
_______________
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.
* * * * * * * * * * * * * * * * * * * *

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.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
May 24, 2002
Before SMITH, BENAVIDES, and PARKER,
I.
Circuit Judges.
In August 1998, Castaneda and her
husband sued James Burzynski, in his capacity
PER CURIAM:
of director of the Immigration and
Naturalization Texas Service Center, to
Judith Castaneda appeals the denial of her
adjudicate their applications for adjustment of
FED. R. CIV. P. 60(b) motion for
status. Two months later, the court granted a
reconsideration of a ruling denying her fees
joint motion to dismiss without prejudice.1 In
and costs under the Equal Access to Justice
September 2000, Castaneda filed a mandamus
Act ("EAJA"), 28 U.S.C. § 2412(d). Because
petition seeking action on her status
the district court lacked subject matter
application. The parties also reached
jurisdiction, we affirm.
1 This was a FED. R. CIV. P. 41(a)(2)
dismissal without any conditions.
2

agreement on this action, and it was dismissed
96 (1991). Normally, the thirty-day period
without prejudice by motion of the court on
would start once the time to file an appeal has
December 1, 2000.2
passed. Id. In this case, however, Castaneda
did not have the option to appeal.
In February 2001, Castaneda filed a request
for costs and fees under the EAJA; the district
A rule 41(a)(2) dismissal is ordinarily not
court denied this request on April 6. On
appealable. Mortgage Guar. Ins. Corp. v. Ri-
May 4, Castaneda filed motion to "reconsid-
chard Carlyon Co., 904 F.2d 298, 300 (5th
er," which the court construed as a rule 60(b)
Cir. 1990). We have left open the possibility
motion and denied. Castaneda timely appealed
that a rule 41(a)(2) dismissal with conditions
the denial.
imposed by the district court may constitute
legal prejudice and thus render the dismissal
II.
appealable. Yoffe v. Keller Indus., Inc., 580
An application for expenses under the
F.2d 126, 129-30 (5th Cir. 1978). Here, the
EAJA must be filed within thirty days of "final
district court did not attach any conditions to
judgment." 28 U.S.C. § 2412(d)(1)(B). A
the dismissal, and Castaneda can point to no
final judgment for purposes of the EAJA must
legal prejudice arising from it.
be "final and not appealable." 28 U.S.C.
§ 2412(d)(2)(G). The government contends
Whether the "time for filing an appeal"
that because more than thirty days elapsed be-
from a rule 41(a)(2) dismissal without
tween the second rule 41(a)(2) dismissal order
prejudice expires simultaneously with the entry
and Castaneda's EAJA application, the district
of such an order is an issue of first impression
court was without jurisdiction to consider it.
in this circuit. We are compelled by the
statutory language to answer in the
Because this thirty-day deadline represents
affirmative. The EAJA's time limitation
a waiver of sovereign immunity, it is
contains a twist on the standard final judgment
jurisdictional. Clifton v. Heckler, 755 F.2d
rule. Usually, an order described as a final
1138, 1144-45 (5th Cir. 1985); Action on
judgement is one that meets the criteria for
Smoking & Health v. Civil Aeronautics Bd.,
finality and is appealable. For EAJA fee
724 F.2d 211, 225-26 (D.C. Cir. 1984).3 We
applications, though, the order must be final
review the jurisdiction of the district court de
and not appealable. 28 U.S.C. §
novo. United States v. Sims Bros. Constr.,
2412(d)(2)(G).
277 F.3d 734, 741 (5th Cir. 2001). The thirty-
day time period in which an applicant must file
This conclusion finds support in Bryan v.
for fees under the EAJA begins to run "after
Office of Personnel Mgmt., 165 F.3d 1315,
the time to appeal that `final judgment' has
1321 (10th Cir. 1999), in which the court also
expired." Melkonyan v. Sullivan, 501 U.S. 89,
regarded the thirty-day filing period as a jur-
isdictional prerequisite to recovering EAJA
fees. As here, the parties filed, and the court
2
granted, a joint motion for voluntary dismissal.
This was also a rule 41(a)(2) dismissal
Id. Reasoning that such a dismissal did not
without conditions.
entitle plaintiff to an appeal, the court used the
3 See also Dole v. Phoenix Roofing, Inc.,
date of this order to commence the thirty-day
922 F.2d 1202 (5th Cir. 1991).
3

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.
4