Supreme Court Rules That Deadline For Appealing Class Certification Decision Is Not Subject To Equitable Tolling
On February 26, 2019, the United States Supreme Court unanimously reversed a decision from the United States Court of Appeals for the Ninth Circuit, which had held that Rule 23(f) of the Federal Rules of Civil Procedure is subject to equitable tolling in appropriate circumstances. Nutraceutical Corp. v. Lambert, No. 17-1094, -- S.Ct. -- (2019). The Supreme Court ruled that the deadline in Rule 23(f) is mandatory and not subject to equitable tolling.
In Nutraceutical, plaintiff brought claims pursuant to California consumer-protection law against defendant in the U.S. District Court for the Central District of California in March 2013. Although the District Court initially certified the suit as a class action, it later revisited its class certification decision, and on February 20, 2015, ordered the class decertified (the “Decertification Order”). On March 2, 2015, at a status conference, plaintiff expressed his intent to file a motion for reconsideration, and the District Court ordered that any such motion be filed by March 12, 2015. Plaintiff complied with the court-ordered deadline and timely filed his motion for reconsideration. On June 24, 2015, the District Court denied the motion for reconsideration (the “Reconsideration Order”). Fourteen days later on July 8, 2015, plaintiff petitioned the U.S. Court of Appeals for the Ninth Circuit for permission to appeal the February 20, 2015 Decertification Order (the “Petition”).
Despite the passage of 138 days between the Decertification Order and the Petition, the Ninth Circuit held that the Petition was timely. The Ninth Circuit explained that, in appropriate circumstances, courts may employ equitable remedies to soften Rule 23(f)’s 14-day requirement because Rule 23(f) is non-jurisdictional. The Ninth Circuit ruled that tolling was appropriate in this particular case because plaintiff had “otherwise acted diligently” by informing the District Court of his intention to move to reconsider and complying with the scheduling order governing that motion.
Justice Sotomayor, writing for the Court, reversed the Ninth Circuit and held that Rule 23(f) is not subject to equitable tolling. The Court explained that, although Rule 23(f) is a non-jurisdictional claim-processing rule, the determination of whether such a rule is “mandatory” and not subject to tolling turns on the text of the rule. “Where the pertinent rule or rules invoked show a clear intent to preclude tolling, courts are without authority to make exceptions merely because a litigant appears to have been diligent, reasonably mistaken, or otherwise deserving.”
Here, the Court found that the deadline in Rule 23(f) was phrased in an unqualified manner and conditioned the possibility of an appeal on the filing of a petition “within 14 days” of “an order granting or denying class-action certification.” In addition, the Court explained that Federal Rules of Appellate Procedure 26(b) states that a court of appeals “may not extend the time to file . . . a petition for permission to appeal.” Based on the text of these rules, the Court concluded that the rules expressed a clear intent to compel rigorous enforcement of Rule 23(f)’s deadline, even where good cause for equitable tolling might otherwise exist.
Plaintiff raised an alternative argument that his petition was timely because he filed it within 14 days of the district court’s denial of his motion for reconsideration. The Supreme Court declined to address that alternative argument for the first time on appeal and instead indicated that, if the Ninth Circuit concludes that the alternative argument is preserved, it can address it in the first instance on remand.