By Louis J. Manetti, Jr.
Hinshaw & Culbertson LLP
The Supreme Court recently clarified that the 14-day window to appeal from a federal district court order granting or denying class certification is not subject to equitable tolling. In Nutraceutical Corp. v. Lambert, the plaintiff, Lambert, sued Nutraceutical Corp. and alleged that its dietary supplement marketing violated a California consumer protection law. 586 U.S. ___ (2019). Although the district court initially certified a class, on February 20, 2015, it decertified the class. At that point, Lambert had 14 days to ask the Court of Appeals for the Ninth Circuit for permission to appeal. See Fed. R. Civ. P. 23(f).
Instead, 20 days after the decertification order, Lambert moved for the district court to reconsider the order. On June 24, 2015, the court denied the motion to reconsider. Fourteen days after that, Lambert petitioned the Ninth Circuit to take the appeal on the decertification order. Nutraceutical’s response to the petition argued that the petition was untimely. The Ninth Circuit deemed the appeal timely. It reasoned that Rule 23(f)’s time limit was nonjurisdictional, and therefore equitable remedies softening the deadline were available.
The Supreme Court rejected the Ninth Circuit’s approach. Rule 23(f) authorizes federal appellate courts to permit a discretionary appeal if the petition is filed within 14 days after the order is entered. The Court began by noting that because Rule 23’s time limitation is in a procedural rule, and not a statute, it is properly classified as a nonjurisdictional claim-processing rule. Thus, the opposing party can waive or forfeit a noncompliance argument. But merely because a rule is not jurisdictional does not render it “malleable in every respect.” Specifically, some claim-processing rules are “mandatory” in the sense that the rule is unalterable if noncompliance is properly raised.
With that, the Court stated that whether a rule allows for equitable tolling turns on whether the rule’s text leaves room for that flexibility. It first noted that Rule 23(f) is phrased unequivocally. And while that, by itself, was not determinative, the Federal Rules of Appellate Procedure singled out Rule 23(f) for inflexible treatment. Although FRAP 2 authorizes appellate courts to suspend the application of the rules in a particular case on a showing of good cause, it also warns: “except as otherwise provided in Rule 26(b).” And Rule 26(b), while allowing for extensions of time generally, specifies that a court of appeals “may not extend the time to file . . . a petition for permission to appeal.” Given the clear expression of “rigorous enforcement”, compliance with 23(f) could not be suspended on equitable tolling grounds. The Court concluded that this comported with applicable precedent, and was fully consistent with the notion that, because interlocutory appeals disrupt the rule that appeals must ordinarily wait until the end of a case, Rule 23(f)’s time limit would be “purposefully unforgiving.”
Finally, the Court specified that the petition for leave to appeal would have been timely if the motion to reconsider had been filed within the 14-day appeal window. Lambert argued that courts of appeal uniformly hold that, so long as a motion to reconsider is filed within 14 days of an order granting or denying class certification, a Rule 23(f) petition filed within 14 days of the resolution of the reconsideration motion is timely. The Court explained that Lambert’s argument that the same outcome should occur here relied on a mistaken premise. A motion to reconsider filed “within a window to appeal” does not toll anything. Instead, it renders an otherwise final decision of a district court not final for the purposes of appeal. It determines when the 14-day window begins to run—not the availability of tolling. Thus, Lambert’s petition for leave to appeal was untimely, and the case was remanded for further proceedings.
This case should serve as a clear warning that, in the wake of an order granting or denying class certification, whether a litigant intends to move to reconsider the order or to petition the appellate court for review, that action must be taken within 14 days.