                           UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 “§ 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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