                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          JUN 4 2004
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 JOHNNY RAY CALDWELL,

           Plaintiff - Appellant,
                                                        No. 03-4235
 vs.                                            (D.C. No. 2:02-CV-939-PGC)
                                                          (D. Utah)
 JO ANNE B. BARNHART,
 Commissioner of Social Security,

           Defendant - Appellee.


                              ORDER AND JUDGMENT *


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges. **


       Plaintiff-Appellant Johnny Ray Caldwell, an inmate appearing pro se,

appeals from the district court’s dismissal of his claims under the Social Security

Act, 42 U.S.C. §§ 1381-1383c. Our jurisdiction arises under 28 U.S.C. § 1291.

For the reasons stated below, we affirm.


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                    Background

      In August 2000, Mr. Caldwell filed a complaint in the United States

District Court for the District of Utah challenging the Commissioner’s denial of

his March 17, 1997, application for Supplemental Security Income (“SSI”)

benefits. Caldwell v. Soc. Sec. Admin., No. 00-CV-564 (D. Utah filed Aug. 7,

2000) (“Caldwell I”), Aplee. Supp. App. at 11. On motion by the Commissioner,

in June 2001, the district court remanded the case to the Commissioner pursuant

to sentence six of 42 U.S.C. § 405(g), 1 for additional administrative proceedings.

The Appeals Council sent the case back to the Administrative Law Judge (“ALJ”)

for rehearing.

      While Caldwell I was on remand, Mr. Caldwell filed another complaint in

the district court, again challenging the Commissioner’s denial of his March 17,

1997, SSI application. Caldwell v. Barnhart, No. 01-CV-475 (D. Utah filed July

2, 2001) (“Caldwell II”), Aplee. Supp. App. at 17. On January 25, 2002, the ALJ

in Caldwell I issued a decision favorable to Mr. Caldwell, finding that as of

January 1, 1996, Mr. Caldwell was medically eligible for SSI based on disability

under Title XVI of the Social Security Act based on his mental condition. The



      1
       “The court may, on motion of the Commissioner of Social Security made
for good cause shown before the Commissioner files the Commissioner’s answer,
remand the case to the Commissioner of Social Security for further action by the
Commissioner of Social Security . . . .” 42 U.S.C. § 405(g).

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Commissioner then moved to consolidate Caldwell II into Caldwell I for entry of

judgment affirming the ALJ’s decision and to dismiss any remaining claims. The

district court granted this motion in August 2002. Mr. Caldwell’s appeal to this

court was dismissed in February 2003 on the Commissioner’s motion on the

grounds that he had “received all of the benefits he sought in his application

before the Social Security Administration.” Def./Aplee. Mot. Dismiss, Ex. A at 9.

      Mr. Caldwell filed the complaint in the instant action (“Caldwell III”) on

August 26, 2002, seeking payment of the SSI benefits owed to him pursuant to the

ALJ’s January 2002 decision, and asserting a claim for mental anguish. R. Doc.

3. On October 15, 2002, the Commissioner issued Mr. Caldwell payment in the

amount of $9,996.67 for a seven-year period of SSI benefits. On April 10, 2003,

the district court dismissed Mr. Caldwell’s action, finding that “[b]ecause Mr.

Caldwell has received all of the SSI benefits due and owing to him his claims are

now barred by res judicata and mootness and are dismissed.” R. Doc. 26

(footnote omitted). Mr. Caldwell filed his notice of appeal in this court on

September 30, 2003.



                                     Discussion

I.    Timeliness

      The Commissioner argues that this court lacks jurisdiction to consider Mr.


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Caldwell’s appeal because he failed to file his notice of appeal within the time

required under Federal Rule of Appellate Procedure 4(a)(1)(B). “[T]he filing of a

timely notice of appeal is ‘mandatory and jurisdictional.’” Trotter v. Regents of

the Univ. of N.M., 219 F.3d 1179, 1182 (10th Cir. 2000) (quoting Budinich v.

Becton Dickinson & Co., 486 U.S. 196, 203 (1988)). The Court of Appeals “must

determine, as a threshold matter, whether the notice of appeal was timely.” Id. at

1182.

        The district court granted the Commissioner’s motion to dismiss Mr.

Caldwell’s complaint on April 10, 2003. Mr. Caldwell’s notice of appeal was

filed in the district court on September 30, 2003. 2 Ordinarily, an appealing party

in an action against the United States or its officers must file a notice of appeal

within sixty days of the entry of a final decision. Fed. R. App. P. 4(a)(1)(B). In

this case, however, the district court did not file a separate entry of judgment with

its April 10, 2003, decision. See Fed R. Civ. P. 58(a). In light of that, judgment

is considered entered 150 days after entry of the district court’s April 10, 2003,




        Mr. Caldwell appears to have delivered the notice of appeal to prison
        2

officials for mailing on September 28, 2003. Because of our disposition of the
timeliness issue, we need not address whether the “prisoner mailbox rule,” Fed.
R. App. P. 4(c)(1); see also Houston v. Lack, 487 U.S. 266, 276 (1988), applies in
this case. We do note, however, that the benefit of the rule may be attained only
if the prisoner submits a declaration or notarized statement in accordance with
Rule 4(c)(1), see United States v. Ceballos-Martinez, 358 F.3d 732, 734 (10th Cir.
2004), and we have found no such documents in the record.

                                         -4-
Order. See Fed. R. Civ. P. 58(b)(2)(B). Thus, the time to appeal did not begin to

run until Monday, September 8, 2003. Pursuant to Federal Rule of Appellate

Procedure 4(a)(1)(B), then, Mr. Caldwell had 60 days to file his notice of appeal.

This period expired on November 7, 2003. As Mr. Caldwell’s notice of appeal

was filed on September 28, 2003, his appeal is timely.

II.   Res Judicata and Mootness

      The Commissioner argues that Mr. Caldwell’s appeal is barred by res

judicata because it involves the same parties and is based on the same issues as

presented in his earlier suits, and that Mr. Caldwell’s claim is moot because he

has received all of the benefits to which he is entitled. We review de novo the

district court’s dismissal of a case based on res judicata or mootness. See Plotner

v. AT&T Corp., 224 F.3d 1161, 1168 (10th Cir. 2000); N.M. Envtl. Dep’t v.

Foulston (In re L.F. Jennings Oil Co.), 4 F.3d 887, 888 (10th Cir. 1993). Based

on our review of the parties’ arguments, we agree with the district court.

       We have previously explained that four elements must be satisfied in a res

judicata defense:

      (1) the prior suit must have ended with a judgment on the merits;
      (2) the parties must be identical or in privity; (3) the suit must be
      based on the same cause of action; and (4) the plaintiff must have
      had a full and fair opportunity to litigate the claim in the prior
      suit.

Plotner, 224 F.3d at 1168 (internal quotation marks and citations omitted). We


                                         -5-
are satisfied that these four elements were met in Mr. Caldwell’s earlier lawsuits

against the Commissioner. First, a judgment on the merits was entered in the

prior suits, which was affirmed by this court. See Def./Aplee. Mot. Dismiss, Ex.

A at 9, 12-18; Aplee. Supp. App. at 4, 14, 23. Second, the parties in Mr.

Caldwell’s several lawsuits are the same, i.e., Mr. Caldwell and the Commissioner

of the Social Security Administration. See Aplee. Supp. App. at 11, 17. Third,

the cause of action in Mr. Caldwell’s prior lawsuits was the same as in the present

case, namely his eligibility for SSI benefit payments from January 1996 to

January 2002. See Def./Aplee. Mot. Dismiss, Ex. A at 13-17. Finally, our review

of the record satisfies us that Mr. Caldwell had a full and fair opportunity to

litigate his claim.

       We also agree with the district court that Mr. Caldwell’s claims are moot.

Mr. Caldwell has already been paid the SSI benefits due him under his March 17,

1997, application and he has thereby received all of the relief to which he was

entitled. 3 To the extent Mr. Caldwell claims that the Commission’s payment of

$9,967.67 did not amount to payment in full of the benefits due him, he has not


       3
        In his complaint, Mr. Caldwell asserted a claim against the Commissioner
for “Mental Anguish.” R. Doc. 3 at 5. He appears to have abandoned this claim,
as his subsequent filings and appellate brief have failed to mention it. The claim
is therefore waived. Tran v. Trs. of the State Colls. in Colo., 355 F.3d 1263, 1266
(10th Cir. 2004). Even were it not waived, Mr. Caldwell has failed to exhaust his
administrative remedies. See 28 U.S.C. § 2675(a); McNeil v. United States, 508
U.S. 106, 107 (1993).

                                         -6-
indicated how this amount was deficient.

      AFFIRMED. All pending motions are denied.


                                     Entered for the Court


                                     Paul J. Kelly, Jr.
                                     Circuit Judge




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