                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               JAN 20 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

MATT O’DEA,                                      No. 08-35525

             Plaintiff - Appellee,               D.C. No. 6:07-CV-00069-CCL

  v.
                                                 ORDER*
BNSF RAILWAY COMPANY,

             Defendant - Appellant,

 and

MONTANA DEPARTMENT OF LABOR
AND INDUSTRY; MONTANA HUMAN
RIGHTS COMMISSION,

             Defendants.


                   Appeal from the United States District Court
                           for the District of Montana
                   Charles C. Lovell, District Judge, Presiding

                      Argued and Submitted January 13, 2010
                               Seattle, Washington




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: KLEINFELD and TALLMAN, Circuit Judges, and SETTLE,** District
Judge.

      We lack jurisdiction over an appeal from a remand order entered due to a

lack of subject matter jurisdiction. See 28 U.S.C. § 1447; Carlsbad Tech. Inc. v.

HIF Bio, Inc., --- U.S. --- , 129 S. Ct. 1862, 1865–66 (2009). Costs on appeal are

awarded to Appellee. See Fed. R. App. P. 39.

      DISMISSED.




      **
            Honorable Benjamin Hale Settle, United States District Judge for the
Western District of Washington, sitting by designation.


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