On June 8, 2015, in Flam v. Flam, the US Court of Appeals for the Ninth Circuit joined other sister circuits in holding that a motion to remand is a dispositive motion and that it is beyond the scope of a magistrate judge's authority to issue a remand order under 28 U.S.C. § 1447(c) (No. 12-17285, (June 8, 2015)).

In a case related to the division of pension assets after a divorce, Laura Flam filed a case in state court in June 2012. Marshall Flam removed the case to the US District Court for the Eastern District of California based on federal question jurisdiction, and Ms. Flam moved to remand it back to the state court under 28 U.S.C. § 1447(c). The magistrate judge assigned to the case granted the motion and issued an order remanding the case. The district court denied Mr. Flam's motion for reconsideration, finding that 28 U.S.C. § 1447(d) barred review of the remand order, and an appeal ensued.

The Ninth Circuit reviewed the district court's determination that the magistrate judge's order is not reviewable and reversed.

The court first considered whether the remand order itself was under the magistrate's power to issue under the Federal Magistrate's Act (28 U.S.C. § 636) (FMA). The FMA provides that, while certain non-dispositive matters may be referred to a magistrate judge for decision, case-dispositive motions and petitions in general may be referred only for evidentiary hearing, proposed findings and recommendations. To determine whether a remand order was dispositive, the court followed a so-called functional approach adopted by the US Courts of Appeals for the Second, Third, Sixth and Tenth Circuits, and analyzed the effect of a motion to remand. Because an order to remand a case to the state court under 28 U.S.C. § 1447(c) would end all federal proceedings, the court found a motion to remand to be dispositive and held that issuing an order to remand was beyond the magistrate's power under the FMA. In so holding, the Ninth Circuit agreed with the other circuits. The court noted that a magistrate judge presented with a motion to remand should provide a report and recommendation to the district court.

The court also considered whether 28 U.S.C. § 1447(d) precluded a review of the magistrate judge's order, and concluded that it does not. Citing US Supreme Court precedent and following other Courts of Appeals (Second, Third and Sixth Circuits) that considered the issue, the Ninth Circuit found that where a court lacks authority to remand under Section 1447(c), Section 1447(d) does not preclude review.

Practitioners in the Ninth Circuit should be mindful that a motion to remand is a dispositive motion and that a remand order is beyond the authority of a magistrate judge.