South Carolina v. Sakima El Bey

Filing 920081120

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4636

SOUTH CAROLINA, Plaintiff - Appellee, v. SAKIMA IBAN SALIH EL BEY, We the people preamble Citizen of the United States Government National of the United States, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief District Judge. (3:08-cr-00519-JFA-1)

Submitted:

October 30, 2008

Decided:

November 20, 2008

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Sakima Iban Salih El Bey, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Sakima Iban Salih El Bey appeals the district court's order remanding his case to the state court from which it was removed. Generally, "[a]n order remanding a case to the State

court from which it was removed is not reviewable on appeal or otherwise." 28 U.S.C. § 1447(d) (2006). Although this section

could be read expansively to apply to all remand orders, the Supreme Court has held that it must be read in conjunction with 28 U.S.C. § 1447(c) (2006). 517 U.S. 706, 711-12 (1996). In sua sponte remanding El Bey's case to state court, the district court basis found for the that there of was his no legitimate state Quackenbush v. Allstate Ins. Co.,

jurisdictional

removal

pending

criminal case to federal court.

Because the remand order is

based on a lack of subject matter jurisdiction, it falls within the scope of § 1447(c) and is therefore not reviewable. See

§ 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."); Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008) (holding that a remand order based on lack of subject matter jurisdiction, whether sua sponte or not, falls under § 1447(c) and is not reviewable). Accordingly, we deny El Bey's motion to proceed in forma pauperis and dismiss the appeal. 2 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

3