Opinion
22-3255
11-23-2022
CITY OF SALINA, Plaintiff - Appellee, v. CRAIG IVAN GILBERT, Defendant-Appellant. CRAIG IVAN GILBERT, Defendant-Appellant, v. STATE OF KANSAS, Plaintiff - Appellee. STATE OF KANSAS, Plaintiff - Appellee, v. CRAIG IVAN GILBERT, Defendant-Appellant.
D.C. No. 5:22-CV-03126-JWL) (D. Kan.) No. 22-3256 (D.C. No. 5:22-CV-03202-JWL-JPO) (D. Kan.) No. 22-3257 (D.C. No. 5:22-CV-03102-JWL) (D. Kan.)
Before McHUGH, BRISCOE, and ROSSMAN, Circuit Judges.
ORDER
In the captioned appeals, pro se appellant Craig Ivan Gilbert seeks to appeal three orders relating to the district court's remand of three separate cases to Kansas state court. However, Mr. Gilbert cannot appeal orders relating to the district court's remand of a case to state court where the remand is based on a lack of subject matter jurisdiction. See 28 U.S.C. § 1447(d) ("An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise ...."). Mr. Gilbert attempted to remove the three cases underlying these appeals to federal court from Kansas state court, but the district court summarily remanded all three cases back to state court. See City of Salina v. Gilbert, No. 5:22-cv-3126-JWL (D. Kan. June 22, 2022) (remanding because the statutory requirements for federal court jurisdiction were not satisfied) (on appeal as Appeal No. 22-3255); Kansas v. Gilbert, No. 5:22-cv-3202-JWL-JPO (D. Kan. Sept. 14, 2022) (same) (on appeal as Appeal No. 22-3256); Kansas v. Gilbert, No. 5:22-cv-3102-JWL (D. Kan. May 26, 2022) (same) (on appeal as Appeal No. 22-3257).
In Appeal No. 22-3256, Mr. Gilbert attempts to appeal the remand order itself. [See ECF No. 2]. In Appeal No. 22-3257, Mr. Gilbert attempts to appeal the district court's order denying Gilbert's motion for an order to transfer the files and records in the underlying criminal matter to a special criminal prosecutor. [See ECF No. 16]. And, in Appeal No. 22-3255, Mr. Gilbert attempts to appeal the district court's October 13, 2022 order denying his Motion to Reconsider Appointment of Special Prosecutor. [See ECF No. 23].
A district court order remanding a case to state court for lack of subject matter jurisdiction is not an appealable order. See 28 U.S.C. § 1447(d); Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127 (1995) (holding that § 1447(d)'s jurisdictional limitation applies to remands based on subject matter jurisdiction). In determining whether a remand order is appealable, this court's inquiry is restricted to a superficial determination that the "basis for the district court's decision can be 'colorably characterized as subject matter jurisdiction.'" Moody v. Great Western Ry. Co., 536 F.3d 1158, 1162 (10th Cir. 2008) (quoting Powerex Corp. v. Reliant Energy Servs., 551 U.S. 224, 234 (2007)). If the remand order is not appealable, this court similarly lacks jurisdiction to consider a subsequent order denying reconsideration. See Scherer v. Merck &Co., Inc., 241 Fed.Appx. 482, 484 (10th Cir. 2007) (dismissing for lack of jurisdiction because the only way the appellant could obtain the relief requested was by reversal of the remand order); see also Agostini v. Piper Aircraft Corp., 729 F.3d 350, 353-55 (3rd Cir. 2013) (concluding that § 1447(d)'s prohibition appellate review extends to later orders that cannot be disaggregated from the original remand because reversal would affect the remand decision).
The district court's orders remanding these three cases to state court can be "colorably characterized" as based on lack of subject matter jurisdiction. See Moody, 536 F.3d at 1162 (citation and internal quotation marks omitted). Thus, § 1447(d) bars appellate review of the remand orders. And, because this court lacks jurisdiction to review the remand orders, it also lacks jurisdiction to review the district court's refusal to reconsider or reverse the remand orders. See, e.g., Moody, 536 F.3d at 1162.
The court has previously noted that Mr. Gilbert has made dozens of attempts to remove state court actions to the District of Kansas, all of which have been remanded or dismissed by the district court. See Kansas v. Gilbert, No. 22-3210 (10th Cir. Oct. 27, 2022). Insofar as the district court has remanded due to lack of federal subject matter jurisdiction, the court reiterates that those orders cannot be reviewed in this court. Future appeals from such orders will be summarily dismissed.
APPEALS DISMISSED.