UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4456

COMMONWEALTH OF VIRGINIA,

Plaintiff - Appellee,

v.

TASHA LIZST CACCIOTTI,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Rossie David Alston, Jr., District Judge. (1:20-cr-00041-RDA-MSN-1)

Submitted: March 25, 2021 Decided: April 22, 2021

Before FLOYD and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Alan J. Cilman, Fairfax, Virginia, for Appellant. Mark R. Herring, Attorney General, Michael A. Jagels, Acting Deputy Attorney General, Toby J. Heytens, Solicitor General, Martine E. Cicconi, Deputy Solicitor General, Michelle S. Kallen, Deputy Solicitor General, Jessica Merry Samuels, Assistant Solicitor General, Kendall T. Burchard, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Tasha Liszt Cacciotti, a member of the armed forces, was charged by state officials

with reckless driving in violation of Virginia Code § 46.2-862. Cacciotti sought to remove

the case from the Fairfax County General District Court to the Eastern District of Virginia

and filed a notice of removal citing 28 U.S.C. § 1442a. Finding that Cacciotti had not

established federal removal jurisdiction, the district court affirmed the magistrate judge’s

order, denied removal, and remanded the case to state court.

Cacciotti appeals, arguing that remand was improper. The Commonwealth

contends that the district court’s order is not appealable. We agree and, thus, dismiss the

appeal.

“Congress has placed broad restrictions on the power of federal appellate courts to

review district court orders remanding removed cases to state court.” Doe v. Blair,

(4th Cir. 2016) (internal quotation marks omitted). Title 28, Section 1447(d)

of the U.S. Code prohibits this court from reviewing remand orders based on the grounds

specified in

(c)—i.e., “(1) a district court’s lack of subject matter

jurisdiction or (2) a defect in removal other than lack of subject matter jurisdiction that was

raised by the motion of a party within 30 days after the notice of removal was filed.”

Ellenburg v. Spartan Motors Chassis, Inc.,

(4th Cir. 2008) (internal

quotation marks omitted). This is so, even if we conclude that the district court’s remand

order was erroneous.

Thus, if the district court remands on one of these enumerated

grounds, “review is unavailable no matter how plain the legal error in ordering the

remand.” Briscoe v. Bell,

, 413 n.13 (1977). We look to the substance of a

2 remand order to determine whether it was issued under § 1447(c). Borneman v. United

States,

(4th Cir. 2000).

Cacciotti contends that her case was remanded, not for lack of subject matter

jurisdiction, but instead based upon the erroneous factual findings that her duties did not

include driving to work and that she did not receive a direct order to drive at the speed

charged. However, these “findings” were discussed in the context of determining whether

the case presented a “federal defense.” Subject matter jurisdiction in this case must be

predicated on the presence of a “federal defense.” See Mesa v. California,

(1989). Without the requirement that the defendant present a federal defense, the

district court had no basis for jurisdiction under Article III.

.

Here, the district court ruled that Cacciotti’s “primary argument” against remand

was that she asserted she had properly alleged a “federal immunity defense based on

exigency.” That is, Cacciotti averred that she was following an order based on an

emergency situation. Specifically, Cacciotti, who is a nurse, contended that she was

speeding to work at Walter Reed National Military Center in order to assist with a patient

who was a danger to herself and others. Assuming that Cacciotti was responding to an

emergency and following an order, the district court nonetheless determined that she had

not alleged a viable defense because driving at an excess rate of speed was not part of her

duties. Moreover, even if Cacciotti had been directed to get to work with utmost speed,

the court concluded that such a direction did not require her to violate state law. “To

endorse [Cacciotti]’s argument would essentially require that federal officers, whenever

they are in a rush to get to their place of employment under emergency circumstances,

3 would be able to remove their case to federal court when they were cited for a traffic

infraction.” Accordingly, the court concluded that, even accepting Cacciotti’s alleged facts

as true, she had failed to establish a federal immunity defense.

Lacking a federal defense, the district court found no federal basis for the underlying

cause of action and determined that it therefore lacked jurisdiction. Because the remand

order was based on lack of subject matter jurisdiction, it is not subject to appellate review

under § 1447(d). Moreover, although Cacciotti contends that her emergency situation

permitted speeding under the circumstances and challenges various factual findings by the

district court, we lack jurisdiction to consider these claims. Indeed, if factual or legal errors

permitted this court to consider subject matter jurisdiction issues in remand cases,

§ 1447(d)’s prohibition on appellate review would be meaningless. See Ohio v. Wright,

(6th Cir. 1993) (noting that “federal officer” remand order was not

appealable even though the district court had to “examine and discuss the federal defense”);

Ellenburg,

(“The important policy carried in this provision disfavors

prolonged interruptions to litigation created by litigating which of two otherwise legitimate

courts should resolve the disputes between the parties.”).

Accordingly, we dismiss the appeal. We dispense with oral argument because the

facts and legal contentions are adequately presented materials before this court and

argument would not aid the decisional process.

DISMISSED

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