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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-11952
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:14-cv-21862-JEM



ALDO ROMAN BAEZ,

                                             Plaintiff - Appellant,

                                  versus

COMMISSIONER OF SOCIAL SECURITY,

                                             Defendant - Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (January 22, 2019)

Before WILLIAM PRYOR, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Aldo Roman Baez appeals the district court’s determination that his

postjudgment motion for attorney’s fees was untimely. Although the district court

did not enter its judgment in a separate document, we conclude that it did enter a

final judgment and that the window for fee motions had closed before Baez moved

for fees. Accordingly, we affirm.

                                                 I.

      In 2007, Baez applied for Social Security disability insurance benefits and

for supplemental security income and was denied. The administrative law judge

(“ALJ”) determined Baez was not disabled. Baez then sought judicial review in

the district court. The suit progressed, and the parties filed cross motions for

summary judgment. Although the magistrate judge rejected most of Baez’s

arguments, he recommended reversal and remand, finding the ALJ erred in two

ways. 1

      On March 21, 2016, the district court adopted the magistrate judge’s report

and recommendation (“R&R”) in full. Its order granted in part Baez’s motion for

summary judgment, denied the Social Security Commissioner’s motion for

summary judgment, reversed the decision of the Commissioner, and remanded for

further proceedings. The court specifically noted, “This case is CLOSED, and all

pending motions are DENIED as MOOT.”


      1
          The merits of Baez’s claims are not relevant to this appeal.
                                                 2
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      Almost exactly a full year later, on March 20, 2017, Baez moved for

attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.

§ 2412(d). EAJA has a time limit on fee awards: a “party seeking an award of fees

and other expenses shall, within thirty days of final judgment in the action, submit

to the court an application for fees and other expenses which shows that the party

is a prevailing party and is eligible to receive an award under this subsection.” Id.

§ 2412(d)(1)(B).

      The district court denied Baez’s motion. The court rejected Baez’s

argument, now before us on appeal, that EAJA’s 30-day window had not begun

because judgment was not entered on a separate document. The court reasoned,

assuming without deciding that it had not entered judgment on a separate

document, that Baez’s motion was “untimely since the judgment became final and

non-appealable 210 days after the R&R.” The court calculated 210 days by

looking to two separate rules: (1) Rule 58(c)(2)(B) of the Federal Rules of Civil

Procedure, which provides that judgment is automatically entered after “150 days

have run from the entry in the civil docket,” and (2) Rule 4(a)(1)(B) of the Federal

Rules of Appellate Procedure, which provides for 60 days to appeal after entry of

judgment when a United States agency or officer is a party. According to the

district court, Baez’s motion “was filed 324 days after the R&R,” so it was time

barred.

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      This timely appeal followed.

                                          II.

                                          A.

      The parties both state the standard of review for denial of fees under EAJA

is abuse of discretion. Normally that standard of review would apply because

EAJA requires the district court to determine whether the government’s litigating

position was “substantially justified.” Pierce v. Underwood, 487 U.S. 552, 559-63

(1988). But here the district court did not evaluate the government’s litigating

position in a manner warranting that deferential standard of review. Instead, it

interpreted the Federal Rules as procedurally barring Baez’s EAJA motion. “We

review the district court’s construction of the Federal Rules of Civil Procedure de

novo, and its factual findings for clear error.” Hemispherx Biopharma, Inc. v.

Johannesburg Consol. Invs., 553 F.3d 1351, 1360 (11th Cir. 2008).

                                          B.

      As noted, EAJA provides that a “party seeking an award of fees and other

expenses shall, within thirty days of final judgment in the action, submit to the

court an application for fees . . . .” 28 U.S.C. § 2412(d)(1)(B).

      This appeal turns on when (and whether) judgment was entered. Under Rule

58(c) of the Federal Rules of Civil Procedure,

      judgment is entered at the following times:

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           (1) if a separate document is not required, when the judgment is
           entered in the civil docket under Rule 79(a); or
           (2) if a separate document is required, when the judgment is
           entered in the civil docket under Rule 79(a) and the earlier of these
           events occurs:
              (A) it is set out in a separate document; or
              (B) 150 days have run from the entry in the civil docket.

“Judgment,” as the Federal Rules of Civil Procedure define it, is “any order from

which an appeal lies.” Fed. R. Civ. P. 54(a). Because the “courts of appeals . . .

have jurisdiction of appeals from all final decisions of the district courts,” 28

U.S.C. § 1291,2 a judgment, for purposes of Rule 58(c) and § 1291, is a final

decision of the district court. Understood this way, judgment is entered when the

district court enters what it intends to be3 its final order on the docket and 150 days

pass, irrespective of whether there is a separate document labeled as a judgment.

       Baez says the judgment was not “ever set forth as an entry in the civil

docket, which is clear from the docket itself.” It is true that no separate entry

labeled “judgment” appears on the docket. But the following entry does appear:




       2
         We have jurisdiction over this appeal under 28 U.S.C. § 1291.
       3
         The Supreme Court has instructed that we consider, in assessing our jurisdiction under
§ 1291, the intent of the district court with respect to finality. Bankers Tr. Co. v. Mallis, 435
U.S. 381, 385 n.6 (1978) (“Even if a separate judgment is filed, the courts of appeals must still
determine whether the district court intended the judgment to represent the final decision in the
case.”).
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The docket thus reflects the district court’s decision reversing and remanding the

decision of the Commissioner. It further notes that the case is “CLOSED.” The

case was terminated, and Baez was the prevailing party because he obtained

reversal and remand of the Commissioner’s adverse decision. See Shalala v.

Schaefer, 509 U.S. 292, 301–02 (1993). Thus, the March 21, 2016, docket entry

reflects the final order and judgment of the district court. Indeed, were that not so,

Baez would not yet be able to move for fees under EAJA, which itself requires a

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

       Baez cites Schaefer for the proposition that Rule 58 requires judgment be

entered in a separate document. When the Supreme Court decided Schaefer in

1993, Rule 58 did not contain the 150-day clause. Thus, the Court explained,

“Rule 58 . . . requires a district court to set forth every judgment ‘on a separate

document’ and provides that ‘[a] judgment is effective only when so set forth.’”

Schaefer, 509 U.S. at 302–03. But in 2002, Rule 58 was amended to add the 150-

day clause, which operates as described above.

       Although the text of the Rule disposes of this case, the Advisory Committee

Notes shine light on the 2002 amendment. 4 The Notes explain that the




       4
        The text of a given Rule is what is authoritative. Nevertheless, “[h]aving been prepared
by a body of experts, the Notes are assuredly persuasive scholarly commentaries—ordinarily the
most persuasive—concerning the meaning of the Rules.” Tome v. United States, 513 U.S. 150,
167 (1995) (Scalia, J., concurring in part and concurring in the judgment).
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amendments were “designed to work in conjunction with Appellate Rule 4(a) to

ensure that appeal time does not linger on indefinitely.” Fed. R. Civ. P. 58,

advisory committee note to 2002 amendment. Although it is preferable that

judgment be entered separately, “in the cases in which court and clerk fail to

comply with this simple requirement,” the 150-day clause applies. Id. See also

Fed. R. App. P. 4, advisory committee note to 2002 amendment (“This cap will

ensure that parties will not be given forever to appeal (or to bring a postjudgment

motion) when a court fails to set forth a judgment or order on a separate document

in violation of Fed. R. Civ. P. 58(a)(1).” (emphasis added)).

      Here, final judgment was entered on August 18, 2016, 150 days from when

the district court’s March 21, 2016, order terminating the case appeared on the

docket. “The 30-day EAJA clock begins to run after the time to appeal [a] ‘final

judgment’ has expired.” Melkonyan v. Sullivan, 501 U.S. 89, 96 (1991). Because

a United States officer is a party to this action, the government had 60 days to

appeal after entry of judgment. Fed. R. App. P. 4(a)(1)(B)(iii). It failed to do so,

and the judgment became final and nonappealable on October 17, 2016. Thus,

Baez’s EAJA fee motion was due 30 days later on November 16, 2016—yet he

filed the motion on March 20, 2017. His motion was time barred.

      The district court incorrectly remarked that Baez had 210 days from the

magistrate judge’s R&R to file his EAJA motion. Baez had 210 days from the

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entry of judgment, which the district court, not the magistrate judge, ordered

entered. It is also unclear how the district court concluded the motion “was filed

324 days after the R&R.” But these misstatements do not matter. Baez’s motion

was still untimely when properly measured.

      AFFIRMED. 5




      5
          We deny Baez’s motion to dismiss this appeal.
                                               8
