FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAURA J. FLAM, AKA Mrs. Gale,

Plaintiff-Appellee,

v.

MARSHALL S. FLAM, M.D.,

Defendant-Appellant.

No. 12-17285

D.C. No.

1:12-cv-01052-

AWI-DLB

OPINION

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, Senior District Judge, Presiding

Argued and Submitted

January 14, 2015—San Francisco California

Filed June 8, 2015

Before: Diarmuid F. O’Scannlain and Richard R. Clifton,

Circuit Judges and Jed S. Rakoff,* Senior District Judge.

Opinion by Judge O’Scannlain

* The Honorable Jed S. Rakoff, Senior District Judge for the U.S.

District Court for the Southern District of New York, sitting by

designation.
2 FLAM V. FLAM

SUMMARY**

Magistrate Judges

The panel reversed the district court’s judgment

remanding a removed case to state court following a

magistrate judge’s grant of a motion for remand.

The panel held that a remand order made under 28 U.S.C.

§ 1447(c) is not within the power of a magistrate judge to

issue under 28 U.S.C. § 636. Following the functional

approach adopted by the Third, Sixth, and Tenth Circuits, the

panel held that a motion to remand is a dispositive motion

because remand orders put litigants out of federal court. 

Thus, a magistrate judge presented with a motion for remand

should provide a report and recommendation to the district

court. The panel held that 28 U.S.C. § 1447(d) did not bar

review of the magistrate judge’s order. 

The panel remanded the case to the district court with

instructions to consider the motion to remand in the first

instance or to request that the magistrate judge prepare a

report and recommendation regarding the motion.

COUNSEL

Wiley R. Driskill, Campagne, Campagne, & Lerner, Fresno,

California, argued the cause on behalf of the defendantappellant Dr. Marshall Flam. With him on the briefs was

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
FLAM V. FLAM 3

Thomas E. Campagne, Campagne, Campagne, & Lerner,

Fresno California.

William S. Ryden, Jaffe and Clemens, Beverly Hills,

California, argued the cause on behalf of the plaintiffappellant Ms. Laura Flam. With him on the brief was Mark

E. Mahler, Jaffe and Clemens, Beverly Hills, California.

OPINION

O’SCANNLAIN, Circuit Judge:

Wemust decide whether amagistrate judge is empowered

to issue an order remanding a removed case to state court, and

whether such an order, once made, may be reviewed by the

district court.

I

This case began with a dispute related to the division of

pension assets after a divorce. Laura Flam filed suit in Fresno

County Superior Court in June 2012, alleging that Dr.

Marshall Flam failed to perform certain duties related to her

portion of a pension account. The account was held jointly by

the two before their divorce but, while Ms. Flam received a

separate account as part of the divorce proceedings, Dr. Flam

remained the pension fund’s trustee. Ms. Flam alleges that

Dr. Flam failed to provide her with certain account statements

required by law, and also contends that he breached his

spousal fiduciary duties by failing to inform her when he

transferred the pension account’s assets from one brokerage

house to another in 2007.
4 FLAM V. FLAM

Dr. Flam timely removed the case to the Eastern District

of California based on federal question jurisdiction, arguing

that Ms. Flam’s lawsuit is governed by the Employee

Retirement Income Security Act, 29 U.S.C. § 1001 et. seq.

(“ERISA”). Ms. Flam subsequently moved to remand the

case to state court. The magistrate judge assigned to the case

then issued an order remanding the case to state court. Dr.

Flam timely filed a motion for reconsideration of the removal

order by the district court, as allowed by Eastern District of

California Local Rules. E.D. Cal. Local Rule 303.

The district court refused to entertain the motion for

reconsideration, however. The court reasoned that 28 U.S.C.

§ 1447(d), which states in part that “[a]n order remanding a

case to the State court from which it was removed is not

reviewable on appeal or otherwise,” barred any review of the

magistrate judge’s order. It explained that 28 U.S.C.

§ 1447(d) barred review because “the Magistrate Judge’s

remand order was issued, . . . the case was closed, . . . [and]

certification was sent to the Fresno County Superior Court.”

Dr. Flam appeals from the district court’s denial of

reconsideration.

II

We have jurisdiction to review the district court’s order

denying reconsideration because that decision is final under

28 U.S.C. § 1291. See Harmston v. City & County of San

Francisco, 627 F.3d 1273, 1278 (9th Cir. 2010). We do not

review the magistrate judge’s remand order itself, but instead

review the merits of the district court’s legal determination

that the magistrate’s order was not reviewable.
FLAM V. FLAM 5

III

In order to decide the questions presented by this case, we

must resolve two issues. First, we must determine whether a

remand order made under 28 U.S.C. § 1447(c) is within the

power of a magistrate judge to issue under 28 U.S.C. § 636.

Second, we must determine whether 28 U.S.C. § 1447(d) bars

review of a magistrate court’s remand order even if such an

order is beyond the power of a magistrate judge to issue.

Because the answer to the first question informs the answer

to the second, we address each in turn.

A

1

“The Federal Magistrates Act, 28 U.S.C. §§ 631–39,

governs the jurisdiction and authority of federal magistrates.”

United States v. Reyna-Tapia, 328 F.3d 1114, 1118 (9th Cir.

2003) (en banc). The Act “provides that certain matters (for

example, non-dispositive pretrial matters) may be referred to

a magistrate judge for decision, while certain other matters

(such as case-dispositive motions [and] petitions for writs of

habeas corpus) may be referred only for evidentiary hearing,

proposed findings, and recommendations.” Id. (footnotes

omitted).

The textual basis for the distinction between dispositive

and non-dispositive motions is found in 28 U.S.C.

§ 636(b)(1). Section 636(b)(1)(A) states that a magistrate

judge may “hear and determine any pretrial matter pending

before the court except a motion for injunctive relief, for

judgment on the pleadings, for summaryjudgment, to dismiss

or quash an indictment or information made by the defendant,
6 FLAM V. FLAM

to suppress evidence in a criminal case, to dismiss or to

permit maintenance of a class action, to dismiss for failure to

state a claim upon which relief can be granted, and to

involuntarily dismiss an action.” 28 U.S.C. § 636(b)(1)(A). In

turn, 28 U.S.C. § 636(b)(1)(B) provides that “a judge may

also designate a magistrate judge” to submit “findings of fact

and recommendations for the disposition” of any items

expressly excepted from the magistrate’s authority by

28 U.S.C. § 636(b)(1)(A). The matters listed in 28 U.S.C.

§ 636(b)(1)(A) are dispositive while, in general, other matters

are non-dispositive. See Fed. R. Civ. P. 72; see also

12 Charles Alan Wright et. al., Federal Practice & Procedure

§ 3068.2 (2d ed. 2015).

Though the list contained in 28 U.S.C. § 636(b)(1)(A)

appears to be exhaustive—after all, the statute empowers a

magistrate judge to “hear and determine” any pretrial matter

“except” those listed—the Supreme Court has identified some

judicial functions as dispositive notwithstanding the fact that

they do not appear in the list. See, e.g., Gomez v. United

States, 490 U.S. 858, 873–74 (1989) (holding that jury

selection is more akin to a dispositive matter and so could not

be conducted by a magistrate). To determine whether a

motion is dispositive, we have adopted a functional approach

that “look[s] to the effect of the motion, in order to determine

whether it is properly characterized as ‘dispositive or nondispositive of a claim or defense of a party.’” United States v.

Rivera-Guerrero, 377 F.3d 1064, 1068 (9th Cir. 2004)

(quoting Maisonville v. F2 America, Inc., 902 F.2d 746, 747

(9th Cir. 1990)); see also S.E.C. v. CMKM Diamonds, Inc.,

729 F.3d 1248, 1260 (9th Cir. 2013) ((“[W]here the denial of

a motion to stay is effectively a denial of the ultimate relief

sought, such a motion is considered dispositive, and a
FLAM V. FLAM 7

magistrate judge lacks the authority to ‘determine’ the

matter.” (citation omitted)).

Other courts of appeals have considered whether a

remand motion is dispositive under 28 U.S.C. § 636(b)(1)(A)

and have adopted a similar approach. For example, the Sixth

Circuit engaged in a “functional analysis of the [remand]

motion’s potential effect on litigation.” Vogel v. U.S. Office

Products Co., 258 F.3d 509, 514–15 (6th Cir. 2001). 

Similarly, the Second Circuit explained that it was following

the approach adopted by the Third, Sixth, and Tenth Circuits

by “analyz[ing] the practical effect of the challenged action

on the instant litigation” to determine whether a motion is

dispositive. Williams v. Beemiller, Inc., 527 F.3d 259, 265 (2d

Cir. 2008). We employ the functional approach required by

our precedent and adopted by our sister circuits.

2

Each of our sister circuits to consider the question has

held that a motion to remand is a dispositive one, and

therefore concluded that a remand order is beyond the power

of a magistrate judge to issue. Williams, 527 F.3d at 266;

Vogel, 258 F.3d at 517; First Union Mortg. Corp. v. Smith,

229 F.3d 992, 996 (10th Cir. 2000); In re U.S. Healthcare,

159 F.3d 142, 146 (3d Cir. 1998). The essential reasoning of

those cases is that because such a remand order is “dispositive

insofar as proceedings in the federal court are concerned,” a

motion to remand is a dispositive order under 28 U.S.C.

§ 636(b)(1)(A). In re U.S. Healthcare, 159 F.3d at 145. Since

such an order “preclusively determines the important point

that there will not be a federal forum available to entertain a

particular dispute,” these courts have reasoned that a

magistrate judge lacks the power to issue it. Id.
8 FLAM V. FLAM

We have previously held that remand orders possess

“important elements of finality, at least with respect to federal

court proceedings, because [they] put the parties ‘effectively

out of federal court.’” Harmston, 627 F.3d at 1278–79

(emphasis in original) (quoting Cal. Dept. of Water Res. v.

Powerex Corp., 533 F.3d 1087, 1094 (9th Cir. 2008)). Our

recognition that remand orders put litigants out of federal

court accords with other courts of appeals’ observations that

the effect of a remand order is to end all federal proceedings.

We therefore agree with our sister circuits. Because a

28 U.S.C. § 1447(c) remand order is dispositive of all federal

proceedings in a case, we hold that a motion to remand is

properly characterized as a dispositive motion under

28 U.S.C. § 636(b)(1)(A), meaning that a remand order

cannot be issued by a magistrate judge. Thus, a magistrate

judge presented with a motion for remand “should provide a

report and recommendation to the district court that is subject

to de novo review . . . .” Williams, 527 F.3d at 266.

B

Yet, even if a remand order is beyond the power of a

magistrate to issue, Dr. Flam is not entitled to the relief he

seeks if 28 U.S.C. § 1447(d) bars review of the magistrate

judge’s order. Ms. Flam contends that the district court

correctly decided that it does just that.

In relevant part, 28 U.S.C. § 1447(d) states that “[a]n

order remanding a case to the State court from which it was
FLAM V. FLAM 9

removed is not reviewable on appeal or otherwise . . . .”1

While we have read this statute broadly to “preclude not only

appellate review but also reconsideration by the district

court,” Seedman v. U.S. District Court for the Cent. District

of Cal., 837 F.2d 413, 414 (9th Cir. 1988), we have also

recognized that the rule is not without exceptions. For

example, in Seedman, we explained that the Supreme Court

had limited the scope of the general rule established by

section 1447(d). Id. More recently, we have recognized that

“[a]lthough [the language of section 1447(d)] appears

comprehensive, the Supreme Court has explained that the

provision does not prohibit review of all types of remands.”

Powerex, 533 F.3d at 1091.

Most relevant here, in Thermtron Products, Inc. v.

Hermansdorfer, the Court held that “[s]ection 1447(d) is not

dispositive of the reviewability of remand orders in and of

itself” because it and “§ 1447(c) must be construed together

. . . .” 423 U.S. 336, 345 (1976), superseded by statute on

other grounds by 28 U.S.C. § 1447(c).2 Thus, the Court

1 The statute goes on to except cases “removed pursuant to section 1442

[and] 1443” and states that such cases “shall be reviewable by appeal or

otherwise.” Section 1442 refers to suits against federal officers or

agencies, and section 1443 refers to civil rights cases. See 28 U.S.C.

§§ 1442–1443. Neither exception is implicated in this case.

2 Section 1447(c) states that “[a] motion to remand [a] case on the basis

of any defect other than lack of subject matter jurisdiction must be made

within 30 days after the filing of the notice of removal” but that a remand

based on lack of subject matter jurisdiction may be made at any time.

28 U.S.C. § 1447(c). Though Congress has amended section 1447(c)

several times since Thermtron, the Supreme Court has assumed that those

amendments are “immaterial to Thermtron’s gloss on § 1447(d).”

Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 230 (2007).
10 FLAM V. FLAM

explained, “only remand orders issued under § 1447(c) and

invoking the grounds specified therein that removal was

improvident and without jurisdiction are immune from review

under § 1447(d).” Id. at 346. For our part, we have interpreted

the Court’s guidance to mean that where a “court lacked

authority to remand under section 1447(c), section 1447(d)

would not preclude review.” Kelton Arms Condo. Owners

Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1191 (9th

Cir. 2003).

Three of the four courts of appeals to consider whether a

magistrate judge can issue a remand order have also

considered whether 28 U.S.C. § 1447(d) bars review of a

magistrate judge’s remand order, and each has concluded that

it does not.3 The Third Circuit reasoned that it seemed

“evident that if an order of a district judge remanding a case

is not insulated from review unless issued for a reason set

forth in section 1447(c) . . . then an order of a magistrate

judge that could not be issued pursuant to section 1447(c)

because of the magistrate judge’s lack of authority to issue

it[] is not insulated from review by section 1447(d).” In re

U.S. Healthcare, 159 F.3d at 146. The Second and Sixth

Circuits have also adopted that approach. See Williams,

527 F.3d at 262–64; Vogel, 258 F.3d at 518–19.

Like our sister circuits, we have already concluded that a

magistrate judge cannot properly issue a remand order under

We have done the same. See, e.g., Atlantic Nat’l. Trust LLC v. Mt. Hawley

Ins. Co., 621 F.3d 931, 935 (9th Cir. 2010).

3

In the other case, First Union Mortg. Corp. v. Smith, 229 F.3d 992, 994

(10th Cir. 2000), the court had no need to confront this question because

the case involved one of 28 U.S.C. § 1447(d)’s exceptions.
FLAM V. FLAM 11

28 U.S.C. § 636(b)(1)(A), and thus the magistrate judge in

this case lacked the authority to remand the case to state

court. See supra Part III.A.2. Because the magistrate lacked

the authority to issue a remand order under section 1447(c),

section 1447(d) poses no bar to review under our precedent.

Kelton Arms, 346 F.3d at 1191; see also Powerex, 533 F.3d

at 1091 (“‘[O]nly remands based on grounds specified in

§ 1447(c) are immune from review under § 1447(d).’”

(quoting Things Remembered, Inc. v. Petrarca, 516 U.S. 124,

127 (1995))). The district court therefore erred when it

concluded that it could not review the magistrate judge’s

remand order.

IV

The judgment of the district court is REVERSED. The

case is REMANDED to the district court with instructions to

consider Ms. Flam’s motion to remand in the first instance or

to request that the magistrate judge prepare a report and

recommendation regarding that motion.