Supreme Court Holds That 14-Day Appeal Deadline Established by Rule 23(f) Cannot Be Tolled
On February 26, 2019, the Supreme Court unanimously held in Nutraceutical Corporation v. Lambert, that the 14-day deadline imposed by Federal Rule of Civil Procedure 23(f), seeking permission to appeal an order granting or denying class certification, cannot be tolled.
After initially certifying a class, the District Court, on February 20, 2015, decertified the class after finding that common issues did not predominate among the class members. Pursuant to Rule 23(f)’s 14-day deadline, the plaintiff, Lambert, had until March 5, 2015 to seek permission to appeal. But, on March 2, 2015, Lambert orally informed the District Court that he would seek reconsideration and did not file his motion for reconsideration until March 12, 2015. Lambert’s motion for reconsideration was denied on June 24, 2015. Fourteen days after that, almost four months past his 14-day deadline, Lambert petitioned the Ninth Circuit seeking permission to appeal the District Court’s order decertifying the class.
The Court of Appeals granted Lambert’s petition, finding that the 14-day deadline under Rule 23(f) should be tolled given the circumstances. Specifically, the Court of Appeals found that because Lambert had informed the court within 14 days that he would be seeking reconsideration, he acted diligently.
The Supreme Court disagreed, however, and found that the 14-day deadline imposed by Rule 23(f) could not be tolled and that the Court of Appeals erred in accepting Lambert’s petition on those grounds. The Supreme Court examined the interaction between Rule 23(f) and the Federal Rules of Appellate Procedure, and ultimately concluded that Rule 23(f) lacked the requisite flexibility that would have allowed for equitable tolling. Specifically, the High Court explained that “because Rule 23(f)’s time limitation is found in a procedural rule, not a statute, it is properly classified as a nonjurisdictional claim-processing rule,” meaning it cannot be waived or forfeited. In rejecting Lambert’s argument that the advisory committee notes on Rule 23(f) allowed the Court of Appeals to grant his motion, the Supreme Court concluded that the comments only spoke to a court’s “discretion to decide whether a particular certification decision warrants review in an interlocutory posture, not to its determination whether a petition is timely.”
As the Supreme Court held, the federal rules “express a clear intent to compel rigorous enforcement of Rule 23(f)’s deadline, even where good cause for equitable tolling might exist.” The Nutraceutical ruling highlights the important practice point of requesting permission to appeal, and if granted, asking the appeals court to stay the appeal pending the outcome of the motion for reconsideration.