United States Court of Appeals

For the First Circuit

No. 06-1179

MIGUEL A. DIAZ-REYES,

Plaintiff, Appellant,

v.

MINERVA FUENTES-ORTIZ, in her official capacity and personal

capacity; CONJUGAL PARTNERSHIP DOE-FUENTES; REYMUNDO RIVERAVIERA, in his official and personal capacity; CONJUGAL

PARTNERSHIP RIVERA-DOE; LUIS A. FELICIANO-CARRERAS, in his

official and personal capacity; CONJUGAL PARTNERSHIP FELICIANODOE; ALIDA GUZMÁN-RIVERA, in her official and personal capacity;

CONJUGAL PARTNERSHIP DOE-GUZMÁN; LILLIAN SÁNCHEZ-PÉREZ, in her

official and personal capacity; CONJUGAL PARTNERSHIP DOE-SÁNCHEZ;

MANUEL DÍAZ-SALDAÑA, in his official and personal capacity;

CONJUGAL PARTNERSHIP DÍAZ-DOE; WILLIAM VAZQUEZ-IRIZARRY;

MARA REYES-ALFONSO, in her official and personal capacity;

CONJUGAL PARTNERSHIP DOE-REYES; MARÍA BETANCOURT, in her official

and personal capacity; CONJUGAL PARTNERSHIP DOE-BETANCOURT;

FRANCISCO PÉREZ-NEWMAN, in his official and personal capacity;

CONJUGAL PARTNERSHIP PÉREZ-DOE; INSURANCE COMPANY XYZ; 

NYDIA I. HERNÁNDEZ; CONJUGAL PARTNERSHIP DOE-HERNÁNDEZ; 

ROBERTO DE-JESÚS; FERNANDO MORETTA; ZENIA MORETTA;

ROBERTO SANCHEZ, 

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U. S. Magistrate Judge]

Before

 Selya, Circuit Judge,

Stahl, Senior Circuit Judge,

and Howard, Circuit Judge.
Jose M. Casanova Edelman on brief for appellant.

Ruperto J. Robles and Rafael J. Lopez on brief for appellees

Manuel Díaz-Saldana, Comptroller for the Commonwealth of Puerto

Rico, Reymundo Rivera-Viera, Lillian Sánchez Pérez, Mara Reyes

Alfonso, María Betancourt, Minerva Fuentes Díaz, Francisco Pèrez

Newman, Luis A. Feliciano Carreras, Alida Guzmán-Rivera, Nydia I.

Hernández, Roberto De Jesús and Fernando Moretta, all in their

personal and official capacities as well as in representation of

their respective conjugal partnerships.

Salvador J. Antonetti-Stutts, Solicitor General, Maite D.

Oronoz-Rodríguez, Deputy Solicitor General and Susana I.

Peñagarícano-Brown, Assistant Solicitor General, Department of

Justice, on brief for appellee Roberto Sanchez-Ramos, in his

official capacity.

December 27, 2006
The parties agreed to litigate this case before a magistrate 1

judge. See 28 U.S.C. § 636(c).

The Secretary of Justice did argue that the official-capacity 2

Title VII action against him had to be dismissed because Diaz had

not exhausted administrative remedies by naming him in the Equal

Opportunity Commission charge.

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HOWARD, Circuit Judge. Miguel Diaz-Reyes, an employee of

the Puerto Rico Office of the Comptroller, brought an employment

discrimination action against several employees of the Office of

the Comptroller, in their individual and official capacities, and

against the Secretary of the Puerto Rico Department of Justice, in

his individual and official capacity. The complaint asserted

claims under Title VII, 42 U.S.C. § 2000e et seq.; the Civil

Rights Act of 1866, 42 U.S.C. § 1981; the Americans with

Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.; and various

Puerto Rico statutes. 

Defendants moved to dismiss the Title VII claims to the

extent that they asserted individual liability on the ground that

such claims are unavailable under Title VII. They also moved to 1

dismiss the remaining claims on various other grounds. The

Comptroller defendants did not, however, move to dismiss the

official capacity claims under Title VII. The district court 2

agreed with all of the defendants' arguments. Accordingly, it

ordered the dismissal of the Title VII claims against the

Comptroller defendants "in their individual capacities" and the

rest of Diaz's claims. Two weeks after the court issued this
The statute actually uses the term "final decision," but a 3

final decision is equivalent to a final "judgment." Sell v. United

States, 539 U.S. 166, 176 (2003).

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order, the district court clerk entered a "judgment" dismissing

"the case . . . with prejudice." Diaz filed a notice of appeal ten

days later. For the reasons that follow, we lack jurisdiction to

consider Diaz's appeal.

Neither party has challenged our appellate jurisdiction,

but we have an obligation to inquire into it sua sponte. Global

Naps, Inc. v. Mass. Dep't of Telecomms. & Energy, 427 F.3d 34, 41

(1st Cir. 2005). Subject to certain exceptions not relevant here,

Congress has limited the courts of appeals to reviewing final

judgments of the district courts. 28 U.S.C. § 1291; see 3

Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 203-04 (1999)

(explaining that the final judgment rule serves several purposes

including the prevention of piecemeal appeals, the avoidance of

obstruction to just claims, and the promotion of efficient judicial

administration). 

 A judgment is "any order from which an appeal lies."

Fed. R. Civ. P. 54(a). For an order to constitute a final

judgment, there must be "some clear and unequivocal manifestation

by the [district] court of its belief that the decision made, so

far as the court is concerned, is the end of the case." Goodwin v.

United States, 67 F.3d 149, 151 (8th Cir. 1995); see also United

States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232 (1958)
Under Fed. R. Civ. P. 58, "unless the court orders otherwise, 4

the clerk must, without awaiting the court's direction, promptly

prepare, sign, and enter the judgment when the court denies all

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(holding that a pronouncement amounts to a final judgment where it

"clearly evidences the judge's intention that it shall be his final

act in the case").

It is important to distinguish between the judgment

itself under Fed. R. Civ. P. 54(a) and the entry of the judgment

under Fed. R. Civ. P. 58. The judgment is "the act of the court."

Ex Parte Morgan, 114 U.S. 174, 175 (1885). The entry of the

judgment "is the ministerial notation of the judgment by the clerk

of the court." 10 Charles Alan Wright, Arthur R. Miller, & Mary

Kay Kane, Federal Practice and Procedure, § 2651, at 11 (3d. ed.

1998). While the entry of judgment is crucial to its effectiveness

and to measuring the time to file an appeal, "the mere entry of a

notation by the clerk under Rule 58 does not create a judgment

unless the court intended it to have that effect." Id.; see also

In re Forrester, 177 F.2d 572, 576 (1st Cir. 1949) (stating that

"the rules differentiate between a judgment and the entry of the

judgment, with the implication that the judgment must pre-exist

before the clerk can perform the ministerial act of entering it")

(internal quotation omitted).

Here, the clerk entered a judgment, pursuant to Fed. R.

Civ. P. 58, two weeks after the district court issued the order

allowing the defendants' motion to dismiss. But a review of the 4
relief." See generally 11 Federal Practice & Procedure § 2783.

A district court may issue a partial judgment to permit an 5

interlocutory appeal, where, as here, it has dismissed certain

claims or certain parties in their entirety. Fed. R. Civ. P.

54(b); see generally Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737,

742-44 (1976). But to do so, the court must make "an express

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district court's order reveals that the court did not intend this

order to be a final judgment disposing of the litigation. The

order stated that the Title VII claims against the Comptroller

defendants were dismissed only to the extent that they asserted

individual capacity claims. These defendants did not move for

dismissal of the official capacity Title VII claims, and the order

did not mention them. Moreover, the court's order did not purport

to end the case, as it merely listed the claims that were

dismissed. Thus, the clerk's entry of judgment pursuant to Fed. R.

Civ. P. 58 appears to have been a clerical error and is without

effect. See Butler v. Stover Bros. Trucking Co., 546 F.2d 544, 548

(7th Cir. 1977) ("Entry of judgment involves a ministerial duty by

the clerk. If the clerk fails to stay within the authority given

him . . . entry of judgment by the clerk is void.") (citations

omitted). Accordingly, there is no judgment under Fed. R. Civ. P.

54(a), and we lack jurisdiction under 28 U.S.C. § 1291. See Burke

v. Comm'r, 301 F.2d 903, 903-04 (1st Cir. 1962) (per curiam)

(concluding that there was no appellate jurisdiction, despite the

clerk having entered judgment, where it appeared that the district

court did not intend a judgment to issue).5
determination that there is no just reason for delay" and direct

the entry of judgment as to the dismissed claims or parties. Fed.

R. Civ. P. 54(b); see Spiegel v. Trustees of Tufts Coll., 843 F.2d

38, 42-44 (1st Cir. 1988) (discussing the elements of a proper Fed.

R. Civ. P. 54(b) certification). There is no indication that the

district court intended to issue such a partial judgment here.

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Appeal dismissed. The district court, on remand, should

vacate the judgment as void and conduct further proceedings

consistent with this opinion. No costs are awarded.
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