`
`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`Dismissed and remanded by unpublished per curiam opinion.
`
`
`
`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`Unpublished opinions are not binding precedent in this circuit.
`
`
`
`2
`
`
`
`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
` 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”).
`
`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
`
`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).
`
`
`
`3
`
`
`
`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
`3
`claim insofar as it relates to the protest clothing.
` 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.
`
`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.
`3 Notably, C.H. did not alert the district court of this
`fact.
`
`
`
`4
`
`
`
`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).
`
`
`
`5
`
`
`
`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)
`
`
`
`6
`
`
`
`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.”).
`
`
`
`7