C.h., by v. Martha Heyward, in her individual capacity

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2390
C.H., by and through her Parents and Guardians Daryl Lewis
Hardwick and Priscilla Lea Hardwick,
Plaintiff – Appellant,
v.
MARTHA HEYWARD, in her individual capacity and in her
official capacity as Principal of Latta Middle School;
GEORGE H. LIEBENROOD, JR., in his individual capacity and
in his official capacity as Principal of Latta High School;
BOARD OF TRUSTEES OF LATTA SCHOOL DISTRICT DILLON COUNTY
NO. 3,
Defendants – Appellees.
-------------------------------------
NATIONAL SCHOOL BOARDS ASSOCIATION; SOUTH CAROLINA SCHOOL
BOARDS ASSOCIATION,
Amici Supporting Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:06-cv-01042-TLW)
Argued: October 27, 2010 Decided: December 10, 2010
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Dismissed and remanded by unpublished per curiam opinion.

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ARGUED: Kirk David Lyons, SOUTHERN LEGAL RESOURCE CENTER,
INCORPORATED, Black Mountain, North Carolina, for Appellant.
Vinton D. Lide, LIDE & PAULEY, LLC, Lexington, South Carolina,
for Appellees. ON BRIEF: Michael S. Pauley, LIDE & PAULEY, LLC,
Lexington, South Carolina; Vernie L. Williams, CHILDS &
HALLIGAN, Columbia, South Carolina, for Appellees. Francisco M.
Negrón, Jr., General Counsel, Lisa E. Soronen, Nancy Dinsmore,
NATIONAL SCHOOL BOARDS ASSOCIATION, Alexandria, Virginia; Scott
Price, General Counsel, SOUTH CAROLINA SCHOOL BOARDS
ASSOCIATION, Columbia, South Carolina, for Amici Supporting
Appellees.
Unpublished opinions are not binding precedent in this circuit.

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3
PER CURIAM:
C.H., by and through her parents and guardians, appeals the
summary judgment entered against her on her civil rights claims.
For the following reason, we dismiss the appeal and remand the
case to the district court for further proceedings.
C.H. brought this action for damages and injunctive relief
asserting that the defendants violated several of her federal
and state constitutional rights by prohibiting her from wearing
to school clothing that they determined was in violation of the
schools’ dress codes.1
The defendants moved for summary judgment on C.H.’s claims
to the extent they involve the confederate flag clothing. The
district court entered summary judgment in their favor, holding
that they did not violate any of C.H.’s constitutional rights by
prohibiting her from wearing confederate flag clothing.
Hardwick v. Heyward, 674 F.Supp.2d 735 (D.S.C. 2009). Noting
Among her claims, she contends that the
defendants violated her First Amendment right to free speech by
prohibiting her from wearing clothing that (1) displayed the
confederate flag and (2) protested the dress codes (the “protest
clothing”).
1 C.H. sued Martha Heyward, in her individual capacity and
official capacity as Principal of Latta Middle School; George H.
Liebenrood, Jr., in his individual capacity and official
capacity as Principal of Latta High School; and the Board of
Trustees of Latta School District (Dillon County No. 3).

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4
that the defendants had agreed during the pendency of the
litigation to permit C.H. to wear the protest clothing, the
court stated in its summary judgment order that the protest
clothing was “not in dispute” and “not before the Court at this
time.” Id. at 729 n.3. Because the defendants did not move for
summary judgment as to C.H.’s First Amendment claim for damages
involving the protest clothing, the court never resolved that
claim.2
On appeal, C.H. argues that the district court erred in
granting summary judgment against her on claims involving
confederate flag clothing. She also contends that we must
vacate the summary judgment and remand this case in any event
because the court did not address her First Amendment damages
claim insofar as it relates to the protest clothing. 3
2 It is unclear whether any of C.H.’s other causes of action
involve the protest clothing. However, that issue is immaterial
for our purposes and is a matter the district court may consider
on remand.
In their
brief, the defendants address C.H.’s arguments concerning the
confederate flag clothing, but they inexplicably do not address
her argument that the case must be remanded for the court to
consider her First Amendment damages claim involving the protest
clothing.
3 Notably, C.H. did not alert the district court of this
fact.

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Although the parties have not questioned our jurisdiction,
we have “an obligation to verify the existence of appellate
jurisdiction before considering the merits of an appeal.”
Palmer v. City Nat’l Bk., of W.Va., 498 F.3d 236, 240 (4th Cir.
2007), cert. denied sub nom. City Nat. Bk. of W.Va. v. Dept. of
Agric., Farm Serv. Agency, 553 U.S. 1053 (2008). “With few
narrow exceptions” that are not present here, “our jurisdiction
extends only to ‘appeals from . . . final decisions of the
district courts of the United States.’” United States v. Myers,
593 F.3d 338, 344 (4th Cir. 2010) (quoting 28 U.S.C. § 1291).
A “final decision” is one that “fully resolve[s] all claims
presented to the district court” and leaves “nothing further for
the district court to do.” Aluminum Co. of Am. v. Beazer East,
Inc., 124 F.3d 551, 557 (3d Cir. 1997). In considering whether
a decision is “final” under § 1291, “the label used to describe
the judicial demand is not controlling, meaning we analyze the
substance of the district court’s decision, not its label or
form.” Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir.
2003) (citation omitted and internal punctuation modified).
“[W]hen the record clearly indicates that the district court
failed to adjudicate the rights and liabilities of all parties,
the order is not and cannot be presumed to be final,
irrespective of the district court’s intent.” Witherspoon v.
White, 111 F.3d 399, 402 (5th Cir. 1997).

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In Stillman v. Travelers Ins. Co., 88 F.3d 911 (11th Cir.
1996), the Eleventh Circuit was presented with a situation
similar to this appeal. There, the appellant contended that the
district court procedurally erred by granting summary final
judgment to the appellee because “there were other issues and
defenses which should have survived and the grant of summary
judgment should have been only partial.” Id. at 912. The
Eleventh Circuit found that the entry of summary final judgment
was in fact error because it did not adjudicate all of the
issues in the case. The Eleventh Circuit explained:
This summary judgment, therefore, is only a partial
summary judgment. It is in no sense a final judgment.
It is not final as to all the parties or as to any
party or as to the whole subject matter of the
litigation. Unfortunately for [the appellee], the
district court’s mistake does not help him because a
district court mislabeling a non-final judgment
‘final’ does not make it so.
Id. at 914 (citations omitted and internal punctuation
modified). Under those circumstances, the Eleventh Circuit
dismissed the appeal for lack of appellate jurisdiction.4
4 Recently, a panel of this Court reached a similar
determination. See Blowe v. Bank of Am., 316 Fed. Appx. 283
(4th Cir. 2009). In Blowe, the district court granted the
defendants’ motion to dismiss certain claims but did not rule on
the plaintiff’s other claims. Nonetheless, after entering its
dismissal order, the court “entered judgment and removed the
case from the active docket, deeming it to be closed.” Id. at
285. We concluded that the order “did not constitute a final
judgment as to all claims against all defendants,” id. at 284,
and it therefore did not “qualify for review” under § 1291, id.
(Continued)

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We conclude that a similar disposition is compelled here.
Although the district court granted summary judgment on C.H.’s
confederate flag clothing claims, it has not yet ruled (or been
asked to rule) on her protest clothing First Amendment damages
claim. Because that claim (at a minimum) remains viable, the
court actually granted partial summary judgment, and an order
that grants partial summary judgment “is interlocutory in
nature.” American Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d
505, 514 (4th Cir. 2003).
Accordingly, we dismiss this appeal and remand the case to
the district court with instructions for that court to commence
further proceedings consistent with this opinion.
DISMISSED AND REMANDED
at 285. Accordingly, we dismissed the appeal for lack of
jurisdiction and remanded the case “with instructions to vacate
the Clerk’s entry of judgment, reopen the case, and commence
further proceedings.” Id.; see also Gen. Constr. Co. v. Hering
Realty Co., 312 F.2d 538, 540 (4th Cir. 1963) (“The result is
that this court is now asked to review an order of the District
Court which rendered a final judgment on a part of the claim of
the Construction Company against the Realty Company but failed
to consider and render judgment on the remainder of the claim. .
. . Until both parts of the claim are adjudicated, there is no
final judgment, and the appeal is premature.”).

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