SCOTUS Unanimously Holds Deadline for Permission to Appeal Class Certification Ruling Cannot be Equitably Tolled

February 27, 2019

Key Takeaway:  Parties must submit a petition for permission to appeal class certification orders—Rule 23(f) petitions—within 14 days of the district court’s ruling. No exceptions!

To immediately appeal a federal district court’s order granting or denying class certification, a party must first seek permission from the relevant court of appeals “within 14 days after the order is entered.” Fed. R. Civ. P. 23(f). In Nutraceutical Corp. v. Lambert, No. 17-1094, slip. op., 586 U.S. __ (2019), the Supreme Court of the United States considered whether “a court of appeals may forgive on equitable tolling grounds” a party’s failure to adhere to Rule 23(f)’s fourteen day deadline. Id. at 1. On February 26, 2019, the Court issued its decision: the answer was a unanimous “no.” Id.

In 2013, Plaintiff Troy Lambert filed a putative class action against Defendant Nutraceutical Corp., alleging that its marketing of dietary supplements violated California’s consumer protection law. The U.S. District Court for the Central District of California initially certified the class in 2014, but then decertified it on February 20, 2015. “From that point, Lambert had 14 days to ask the Court of Appeals for the Ninth Circuit for permission to appeal the order.” Id.

Rather than seek permission to appeal before the Ninth Circuit, Lambert moved for reconsideration before the district court. On June 24, 2015, the district court denied the motion. Fourteen days after the district court denied the motion for reconsideration, and several months after the decertification order, Lambert petitioned the Ninth Circuit for permission to appeal. The Ninth Circuit deemed Lambert’s petition timely on equitable tolling grounds, reasoning that Lambert “acted diligently” in moving to reconsider, that Rule 23’s time limit is “non-jurisdictional, and that equitable remedies softening the deadline are therefore generally available.” 870 F.3d 1170, 1176, 1179.

The Supreme Court reversed. In a unanimous opinion written by Justice Sotomayor, the Supreme Court agreed that Rule 23(f) is a “non-jurisdictional claim processing rule” because it is found in a procedural rule and not a statute. Slip. op. at 3. The Court explained that such rules can be waived or forfeited by an opposing party. But, they are not “malleable in every respect.” Id. at 4. Though subject to waiver and forfeiture, some non-jurisdictional claim processing rules are “mandatory”—meaning they are “unalterable if properly raised by an opposing party.” Id. (internal quotation marks and citations omitted). And these “mandatory” rules, the Court held, are not subject to equitable tolling. Id.

In Nutraceutical Corp., the Court concluded that Rule 23(f)’s plain text makes clear that the time requirements are “mandatory” and not subject to equitable tolling. The Court considered Federal Rule of Appellate Procedure 5(a)(2), which states that a petition for permission to appeal “be filed within the time specified” by the applicable rule (in this case Rule 23(f)). The Court further noted that Federal Rule of Appellate Procedure 26(b)(1) prohibits a court of appeals from “extend[ing] the time to file . . . a petition for permission to appeal.” The Supreme Court therefore concluded that these Rules “express a clear intent to compel rigorous enforcement of Rule 23(f)’s deadline” and demonstrate that it may not be extended, “even where good cause for equitable tolling might otherwise exist.” Slip. op. at 5.

The Supreme Court’s ruling resolves a division in the lower courts and conclusively establishes that a party must petition a court of appeals for permission to appeal a district court’s class certification order within 14 days—with no exceptions.

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