F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

L A UR A J

. F L AM , AKA Mrs. Gale, Plaintiff-Appellee ,

v

.
M AR S HA L L S. F L

AM , M.D., Defendant-Appellant

. N o. 12-17285

D.C. No. 1:12-cv-01052- A W I -DL B

OPI NI ON

Appeal from the United States District Court for the Eastern District of California Anthony W . I shii, Senior District J udg e, Presiding
Argued and Submitted J anuary 14, 2015—San F rancisco California

F iled J une 8, 2015

B efore: Diarmuid F . O’Scannlain and Richard R. Clifton, Circuit J u dg es and J ed S. Rakoff, * Senior District J udg e.

Opinion by J udg e O’Scannlain

* T h e Ho n o rab le J ed S. Rak o f f , Sen io r District J u d g e f or th e U

. S

. District Co urt f

o r th e S o ut

h ern District o f New Yo rk , sitti n g b y d esig n atio n

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SUMMARY * *

Magistrate Judges

The panel reversed the d istrict court’s judg ment remanding a removed case to state court f ollowing a mag istrate judg e’s g r a

n t of a motion for remand.

The panel held that a remand order made under 28 U .S.C. § 1447(c) is n ot within the power of a mag istrate judge to issue under 28 U.S.C. § 636. F ollowing the functional approach adopted b y the T h ird, Six th, a nd Tenth Circuits, the p anel held that a motion to remand is a dispositive m o t i o n because remand orders put litig ants out o f federal court. Thus, a mag istrate judg e presented with a motion for remand should p rovide a r eport a nd recommendation to th e d i strict

c o u rt. T he panel held that 28 U.S.C. § 1447(d) d id n o t b a r review of the mag istrate judg e’s order.

The panel rema n d e d t h e case to the district court with instructions to consider the motion to rema n d in the first instance or to request that the mag istrate j u d g e p repare a report and recommendation reg arding the motion.

COUNSEL

W iley R. Driskill, Campag ne, Campagne, & L erner, F resno, California, argued the cause on behalf of the defendantappella n t D r. Marshall F lam. W ith h im on the b riefs was

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co nv en i en ce o f

th e read er.F L AM V

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Thomas E

. Campag ne, Campag ne, Campag ne, & L e rner, F resno California.

W illiam S. Ry den, J affe and Clemens, B e verly H ills, California, argued the c a use on behalf of the plaintiffap pellant Ms. L aura F lam. W ith him on the brief was Mark E. Mahler, J a ffe and Clemens, B everly Hills, California.

OP INION

O’SCANNLAI

N, Circuit J udg e:

W e must decide whether a mag istrate judg e is empowered to issue an order remanding a removed case to state court, a nd whether such an order, once made, may be reviewed by the district court.

I

This case beg an with a dispute r elated to the d i v i s i on o f pension assets after a divorce. L aura F lam filed suit in F resno County Superior Court in J une 2012, alleg ing that Dr. Marshall F lam failed to perform certain duties related to her portion of a pension account. The account was held jointly b y the two b efore their divorce b u t , w hile Ms. F lam received a separate account as part of the divorce proceeding s, Dr. F lam remained the pension f

und’s trustee. M s. F lam alleg es that Dr. F lam f

ailed to provide h er with c e rtain account statements
r e quired by law, and also contends that he breach e d h i s spousal fiduciary duties by failing to inform her when he transferre d t h e pension account’s assets from one b rokerag e house to another in 2007.F L AM V

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Dr. F lam timely removed the case to the Eastern District of California based on federal question jurisdictio n , arguing that Ms. F lam’s law suit is g overned by the Employ ee Retirement Income Secur i t y A ct, 29 U .S.C. § 1001 et. seq. (“ERI SA”). Ms

. Fl a m subsequently moved to remand the

case to state court. The mag istrate judg e assig ned to the case then issued a

n order remanding the case to stat e court. Dr. F lam timely filed a motion for reconsideration o f the removal order by the district c ourt, a s a llowed by Eastern D istrict o f California L o cal Rules. E.D. Cal. L o cal Rule 303.

The district court refused to entertain the motion f o r reconsideration, however. The court reasoned that 28 U .S.C. § 1447(d), w h i c h states in part that “ [a] n order remanding a
case to the State c ourt f

ro m which it was removed is not reviewable on appeal or o therwise,” barred any review of the mag istrate judg e’s order. I t e x plain e d t h at 28 U .S.C. § 1 4 47(d) barred review because “the M a g istrate J udg e’s remand orde r wa s issued,

. . . the c ase was closed,

. . . [ and] certification was sent to the F resno County Superior Court.” Dr. F lam appeals from the district court’s denial o f reconsideration.

I I

W e have jurisdiction to review the district c o u r t ’s order denying r econsideration b ecause that decision is final under 28 U

. S .C. § 1291. S

e e Harmston v. City & County of San Francisco , 627 F .3d 1273, 1278 (9th Cir. 2010). W e d o not review the mag istrate judg e’s r emand order itself, but instead review the merits of the distri ct court’s leg a l determination that the mag istrate’s order was not reviewable.F L AM V

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I I I

In order to decide the questions presented by this case, we must resolve two issues. F irst, we must determine whether a remand o rder made under 2 8 U.S.C. § 1 447(c) is within the power of a mag istrate j udg e to issue under 28 U.S.C. § 636. Second, we must determine whether 28 U.S.C. § 1447(d) bars review o f a mag i s t r a te court’s remand order e ven if such an order is beyond the power of a m ag istrate judg e to issue. B ecause th e a n s wer to the first question informs the answer to the second, we address each in turn.

A

1

“The F e d eral Mag istrates A ct, 28 U.S.C. §§ 631–39, g overns the jurisdiction and authority o f f ederal mag istrates.” United States v. Reyna-Tapia , 328 F .3d 1 114, 1118 (9th Cir. 2003) (en b anc). The Act “provides that certain matters (for

ex ample, non-dispositive pretrial matters) may be referred to
a mag istrate judg e for decision, w h i l e certain other matters (such as c ase-dispositive motions [ and] petitions f or writs o f habeas corpus) may be referred only for evidentiary hearing , proposed finding s , and recommendations.” Id

. (footnotes omitted).

The tex tual basis for the distinction between d i s p o s itive and non-dispositive motions is found in 28 U .S.C. § 636(b)(1). Section 636(b)( 1 ) ( A ) states that a mag istrate judg e may “hear and determine any pretrial matter p e n d i n g bef o r e the court ex cept a motion for injunctive relief, for judg ment on the pleading s, for summary judg ment, to dismiss

or quash an indictment or information made by the defendant,F L AM V

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to suppress evidence i n 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 g ranted, 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 judg e may also desig nate a mag istrate judg e” to submit “finding s of fact

a n d recommendations for the disposition” of any item s
ex p ressl y e x cepted from the mag istrate’s authority b y 28 U.S.C. § 636(b)(1)(A). Th e m a t ters listed in 28 U .S.C. § 636(b)(1)(A) are dispositive while, in general , other matters
are non-dispositive. See F ed. R. Civ. P. 72; see also 12 Charles Alan W rig ht et. al., F ederal Practice & Procedure § 3068.2 (2d ed. 2015).
Thoug h the list co n tained in 28 U.S.C. § 6 36(b)(1)(A) appears to be ex haustive—after all, the st a t u te empowers a mag istrate judg e to “hear and determine” any pretrial matter

“ ex cept” those listed—the Supreme Court has i d e nt i f i e d s o m e judicial functions as dispositive notwithstanding the fact that they do not a

ppear in the list. S

ee, e.g. , Gomez v. United States , 4 9 0 U .S. 8 58, 873–74 ( 1 989) (holding that jury selection is more akin to a dispositive matter and so c ould not be conducted by a mag istrate). To det e r m i n e 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 i s properly characteriz ed a s ‘dispositive or nondispositive o f a claim or defense of a party .’” United States v

. Rivera

- G u e rrero , 377 F .3d 1064, 1068 (9th Cir. 2 004) (quoting Maisonville v. F2 America, Inc. , 902 F .2d 746, 747 (9th Cir. 1 990)); see also S.E.C. v. CMKM D iamond s , Inc. , 729 F .3d 1248, 1260 (9th Cir. 2 013) ((“[ W ] here the denial o f

a motion to stay is effectively a denial of the ultimate r e l i e f soug h t, such a motion is considered d i s p ositive, and aF L AM V

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mag istr ate judg e lacks the authority to ‘ determine’ the matter.” (citation omitted)).

Other courts of appeals have considered whe t h er a remand motion is dispositive under 28 U.S.C. § 6 36(b)(1)(A) and have adopted a similar approach. F or ex ample, the Six th Circuit eng ag ed in a “ func t ional analy sis of the [ remand] motion’s potential effect on litig atio n

. ” Vogel v. U.S. Office P r oducts Co. , 2 58 F .3d 509, 514–15 (6th Cir. 2 0 0 1 ). Similarly , the Second Circuit ex p lained that it was following the approach adopted by the Third, Six th, and Tenth Circuits by “analy z [ ing ] the practical effect of th e challeng ed action

o n t h e instant litig ation” to determine whether a motion is dispositive. W

illiams v. Beemiller, Inc. , 527 F .3d 259, 265 (2d Cir. 2 008). W e employ the f unctional approach required b y our precedent and adopted by our sister circuits.

2

Each of our sister circuits to c o nsider th e q u e stion has held th a t a motion to remand is a dispositive one, a nd therefore concluded that a remand order is beyond the power of a mag istrate judg e to issue. W il l i a m s , 527 F .3d at 266; Vogel , 258 F .3d at 517; F irst U nio n Mo r t

g

. Corp. v. Smith , 229 F .3d 992, 996 (10th Cir. 2000 ) ; In r e U.S. Healthcare , 159 F

. 3d 142, 146 (3d Cir. 1998). The essential r easoning o f those cases is that because such a remand order is “dispositive insofar as proceeding s in the federal court are conc erned,” a motion to r emand is a dispositive order under 28 U .S.C. § 636(b)(1)(A). I

n re U.S. Healthcare , 159 F .3d at 145. Since such an order “preclusively d e t e r mines the important point that there will not be a federal forum available to entertain a particular dispute,” these courts hav e r e a soned that a mag istrate judg e lacks the power to issue it. Id

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W e have previousl y h e ld that remand orders possess “important elements of finality , at least with respect to federal court p roceeding s, because [ they ] put the parties ‘effectively out of federal court.’” H a rm s t o n , 627 F .3d at 1278–79 (emphasis in orig inal) (q uoting Cal. Dept. of W ater R e s. v

. Powerex Corp. , 533 F

. 3d 1087, 1094 (9th Cir. 2008)). Our recognition that re m a n d o rders put litig ants out o f federal court a ccords w ith other courts of a p peals’ observations that the effect of a remand order is to end all federal proceeding s.

W e therefore a g r ee with our sister circuits. Because a 28 U.S.C. § 1447(c) remand order is dispositive of all federal proceeding s in a case, we h o ld that a motion to remand is properly characteriz ed as a dispositive motion under 28 U.S.C. § 6 36(b) ( 1 ) ( A), meaning that a r emand order cannot be issued b y a mag istrate judg e. Th u s , a mag istrate judg e p resented with a motion for remand “should p rovide a report and recommendation to the district court that is subject to de novo review . . . .” W illiams , 527 F .3d at 266.

B

Yet , e v en if a remand order is beyond the power of a mag istrate to issu e , D r

. F lam is not entitled to the relief he seeks if 28 U .S.C. § 1447(d) bars review of the mag istrate judge ’s order. Ms. F lam c ontends that the district court correctly decided that it does just that.

In r elevant part, 28 U.S.C. § 1447(d) s tates that “[ a] n order rem a n d i n g a case to the State court from which it wasF L AM V

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removed is not re v i e w ab le on appeal or otherwise

. . . .” 1 W h ile we have read this statute broadly to “preclude not only appellate review but al s o reconsideration by the district court,” Seedman v. U.S. District Court for the Cent. District

o f Cal. , 837 F .2d 413, 4 14 ( 9th Cir. 1 988), we have a l s o recogniz ed that the rule is not wi t hout e x ceptions. F o r
ex am p l e , in Seedman , we ex plained that the Supreme Court had li m i t e d the scope of the g eneral rule established b y section 1447( d ). Id. More r ecently , w e h ave recogniz e d that “[ a] lthoug h [ the languag e o f section 1447(d)] appears
co m p r e h ensive, the Supreme Court has ex plained that the provision does not pro h i b i t r eview of all ty pes of r emands.” Powerex , 533 F .3d at 1091.

Most relevant here, in Ther mtron Products, Inc. v

. Hermansdorfer , the Court held that “ [ s] ection 1447(d) is not dispositive of the reviewability of remand order s i n and o f itself” b e cause it and “§ 1 447(c) must b e construed tog ether

. . . .” 423 U.S. 336, 345 (1976), superse ded b y statute on other grounds by 28 U.S.C. § 1447(c). 2 T h us, the Court

1 T h e statute g o es o n to ex cep t cases “ rem o v ed p ursu an t to s ectio n 1 4 4 2 [an d ] 1 4 4 3 ” an d states th at su chcases “ sh all b e rev iew ab l e b y ap p eal or
o th erw i se.” Sect i o n 1 4 4 2 ref ers to su its ag ain st f

ed eral o f f icers or
a g e n cies, an d sectio n 1 44 3 ref ers to civ il rig h t s cases. S ee 2 8 U

. S

. C

. § § 1 4 42

– 1 4 4 3. Neith er ex cep tio n is im p licatedinth is case.

2 Sectio n 1 4 47 (c) states th at “ [a] m o tio n t o rem an d [a] case o n th e b asis

o f any d ef

ect o th er th an

lack o f su bj ect m atter j urisd ictio n m u st b e m ad e
w ith in 3 0 d ay s af

ter th e f ilin g o f th e n o t ice o f rem o v al” b ut t h at a rem an d b ased o n l a ck o f su

b j ect m atter j u

risd ictio n m ay b e m ad e at any tim e. 2 8 U.S.C. § 1 4 4 7 (c). T h o u g h Co n g ress h as am en d ed sectio n 14 4 7 (c)

sev eral tim es sin ce Th ermtro n , th e Su p rem e Co urt h as assu

m ed th at th ose
am en d m en ts are “ im

m aterial t o T

h ermtro n ’ s g lo ss o n § 1 4 4 7 (d ).” Po werex Co r

p

. v. Relia n t En erg

y S ervs., In c. , 5 5 1 U.S. 2 2 4 , 2 3 0 (2 0 0 7 ).F L AM V

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ex p lained, “only rem a n d o rders issued under § 1447(c) a nd invoking the gr ounds specified therein that removal was improvident and without jurisdi c t i o n a r e i mm u n e from r eview under § 1447(d).” I

d. at 346. F or our part, we have interpreted the Court’s g uidance to mean that where a “court lacked authority to remand under section 1447(c), section 1 4 4 7 (d)

w o u l d n ot preclude review.” Kelton Arms Condo. O wner s Ass’n, Inc. v. H

omestead Ins. Co. , 346 F .3d 1190, 1191 (9th Cir. 2003).

Three of the f

our courts of appeals to consider whether a mag istrate judg e can issue a reman d o rder have also considered wh e t h er 28 U.S.C. § 1447(d) bars review of a mag istrate judg e’s remand o rder, and each has concluded that it does not. 3 The Third Circuit r e a s oned that it seemed “evident that if an order of a district judg e remandinga case is n ot insulated from review unless issued for a re as o n set f o rth in section 1447(c)

. . . then a n order of a ma gi s t r a t e judg e that c ould not be issued pursuant t o section 1447(c) because of the mag istrate judg e’s lack of a u t h o r i ty to issue it[ ] is not insulated from r eview by s e ction 1447(d).” In re U.S. Healthcar e , 159 F

. 3d at 146. The Second and Six th Circuit s h ave also adopted that approach. See W illiams , 527 F .3d at 262–64; Vogel , 258 F .3d at 518–19.

L ike our sister circuits, we have already concluded that a mag istrate judg e cannot p roperly issue a remand order under

W e h av e d o n e th e sam e. S ee, e.g

. , Atla n t ic Na t’l. Tru st LLC v. Mt. Ha wley In s. Co

. , 6 2 1 F.3 d9 3 1 , 9 35 (9 th Cir. 2 01 0 ).

3 In th e o th er case, First U n io n M o rtg

. Co rp

. v. S

mith , 22 9 F.3 d 9 9 2 , 9 9 4 (1 0 th Cir. 2 0 0 0 ), th e co urt h ad n o n eed to co n f ro n t th is q u estio n b ecau s e th e case in v o lv edo n e o f

2 8 U.S.C. § 1 44 7 (d )’ s ex cep tio n s.F L AM V

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28 U.S.C. § 6 36(b)(1)(A), and thus the mag istrate judg e in t his case lacked the authority to remand the case to sta t e court. See supra Part I I I .A.2. B ecause the mag istrate lacked th e authority to issue a remand o rder under section 1447(c), section 1447(d) poses no bar to review under our precedent. Kelton Arms , 346 F .3d at 1 1 9 1 ; s e e also Powerex , 533 F .3d at 1091 (“‘[ O] nly remands based on g r ounds specified in § 1447(c) are immune from review u n d e r § 1447(d).’” (quoting Things Remembered, Inc. v. Petrarca , 516 U.S. 124, 127 (1995))). The district c o u r t therefore erred when it concluded that it could not re v i e w the mag istrate judg e’s remand order.

I V

The judg ment of the district court i s R E VERSED

. The

case is REMANDED to the d istrict court with instructions to consider Ms. F lam’s motion to remand in the first instance o r to request that the mag istrate judg e p r e p a r e a report a nd recommendation reg ardingthat motion.