UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1561
THE COUNTY OF JAMES CITY; WETLANDS BOARD OF THE COUNTY OF
JAMES CITY,
Plaintiffs - Appellees,
v.
W. WALKER WARE, IV,
Defendant – Appellant,
v.
LEO P. ROGERS, in his individual capacity and in his
official capacity as County Attorney for James City County;
JENNIFER C. LYTTLE, in her individual capacity and in her
official capacity as Assistant County Attorney for James
City County; PATRICK T. MENICHINO, in his individual
capacity and in his official capacity as an employee of
James City County; DARYL COOK, in his individual capacity
and in his official capacity as an employee of James City
County; DAVID GUSSMAN, in his individual capacity and in his
official capacity as a member of the Wetlands Board of James
City County; HENRY LINDSEY, in his individual capacity and
in his official capacity as a member of the Wetlands Board
of James City County; JOHN HUGHES, in his individual
capacity and in his official capacity as a member of the
Wetlands Board of James City County; LARRY WALTRIP, in his
individual capacity and in his official capacity as a member
of the Wetlands Board of James City County; WILLIAM
APPERSON, in his individual capacity and in his official
capacity as a member of the Wetlands Board of James City
County,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Raymond A. Jackson,
District Judge. (4:08-cv-00107-RAJ-FBS)
Submitted: December 16, 2009 Decided: January 8, 2010
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Timothy M. Murphy, Williamsburg, Virginia, for Appellant. Leo
P. Rogers, Jr., JAMES CITY COUNTY ATTORNEY’S OFFICE,
Williamsburg, Virginia; Jeremy D. Capps, HARMAN, CLAYTOR,
CORRIGAN & WELLMAN, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
W. Walker Ware, IV, appeals the district court’s order
remanding this case to the Commonwealth of Virginia, Circuit
Court of the City of Williamsburg and the County of James City
pursuant to 28 U.S.C. § 1447(c) (2006). On appeal, Ware
contends that, though 28 U.S.C. § 1447(d) (2006) generally
precludes the appeal of remand orders, this court may “look
beyond the label given to [the] remand order[]” to determine
whether it is subject to appellate review. Ware asserts that
because the remand order relied on Merrell Dow Pharm., Inc. v.
Thompson, 478 U.S. 804 (1986), as a basis for remand, appellate
review is appropriate, and the remand order should be reversed
because “the Complaint states an exclusively federal claim.” We
disagree, and dismiss the appeal for lack of jurisdiction.
“Congress has placed broad restrictions on the power
of federal appellate courts to review district court orders
remanding removed cases to state court. The general statutory
provision governing the reviewability of remand orders is 28
U.S.C. § 1447(d),” providing that “‘[a]n order remanding a case
to the State court from which it was removed is not reviewable
on appeal or otherwise.’” Things Remembered, Inc. v. Petrarca,
516 U.S. 124, 127 (1995) (quoting § 1447(d)); see also
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12 (1996).
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The Supreme Court has determined that Ҥ 1447(d) must
be read in pari materia with § 1447(c), so that only remands
based on grounds specified in § 1447(c) are immune from review
under § 1447(d).” Quackenbush, 517 U.S. at 711-12. However,
whether a remand order is reviewable is not based on a district
court’s explicit citation to § 1447(c). See Borneman v. United
States, 213 F.3d 819, 824 (4th Cir. 2000). Instead, § 1447(d)’s
appellate bar applies to any order relying on a ground
delineated in § 1447(c). Id. at 824-25. Moreover, “a remand
order based on a lack of subject matter jurisdiction, whether
sua sponte or not, falls within the scope of § 1447(c) and
therefore is not reviewable by a court of appeals.”
Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196
(4th Cir. 2008).
Despite Ware’s contentions to the contrary, it is
apparent that the district court’s remand was based solely on
its finding that it did not possess subject matter jurisdiction
over the case. Though Ware asserts that the district court
alternatively based its remand on Merrell Dow Pharm., Inc. v.
Thompson, this argument misinterprets the lower court’s holding.
The district court’s reference to Merrell Dow is limited to a
single citation, for the proposition that “the ‘mere presence’
of a federal issue in a state cause of action does not
automatically confer federal-question jurisdiction.” We do not
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read this citation, however, as forming any basis of the
district court’s remand order, and Ware’s argument to the
contrary is incorrect. Therefore, because the district court’s
remand was premised on its lack of subject matter jurisdiction,
the district court’s order is not subject to review, and we
dismiss Ware’s appeal for a lack of subject matter jurisdiction.
Additionally, in the last paragraph of his brief, Ware
asserts that the district court erred in failing to retain
jurisdiction over or address Ware’s counterclaims. However, the
district court’s conclusion in its denial of Ware’s motion for
reconsideration that it lacked jurisdiction to address Ware’s
motion for leave to amend his counterclaim makes it clear that
the district court’s remand order applied to all parts of the
case, including the counterclaims. Because such orders are not
reviewable on appeal, we are without jurisdiction to address the
merits of Ware’s argument.
Accordingly, we dismiss the appeal. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED
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