U.S. Supreme Court Nixes Equitable Tolling for Class Action Appeals


U.S. Supreme Court Nixes Equitable Tolling for Class Action Appeals

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Aphrodite Kokolis

Federal Rule of Civil Procedure 23(f) provides that a party seeking permission to appeal an order granting or denying class certification must file the petition within 14 days of the district court order. On February 26, 2019, the U.S. Supreme Court unanimously held that this 14-day period is not subject to equitable tolling when the opposing party objects that the appeal is untimely, “even where good cause for equitable tolling might otherwise exist.” Nutraceutical Corp. v. Lambert, No. 17-1094 (U.S. Feb. 26, 2019). The Supreme Court’s decision is significant beyond the Rule 23(f) class action context, because the Court’s reasoning applies to any permissive federal appeals.

The Proceedings Below

The plaintiff filed a class action in the Central District of California alleging that the defendant’s marketing of a dietary supplement violated California consumer protection statutes. The district court initially certified a class, but on February 20, 2015, decertified the class.

Instead of filing a Rule 23(f) petition for leave to appeal the decertification order, the plaintiff informed the district court at a March 2, 2015 status conference (10 days after the order) that he wanted to file a “motion for reconsideration.” The district court gave the plaintiff permission to move for reconsideration by March 12 (20 days after the decertification order), and the plaintiff complied with that deadline. On June 24, 2015, the district court denied the reconsideration motion. The plaintiff filed a Rule 23(f) petition with the Ninth Circuit on July 8—14 days after the district court’s reconsideration order, but more than four months after the decertification order.

The defendant argued that the appeal was untimely, but the Ninth Circuit disagreed, holding that Rule 23(f)’s 14-day deadline should be “tolled” under the circumstances. The Ninth Circuit held that the Rule 23(f) deadline is “non-jurisdictional, and that equitable remedies softening the deadline are therefore generally available.” The Ninth Circuit held that tolling was warranted because the plaintiff had “informed the [district court] of his intention to seek reconsideration” within Rule 23(f)’s 14-day window; had complied with the district court’s March 12 deadline; and had “otherwise acted diligently.” The Ninth Circuit acknowledged that “other circuits would likely not toll the Rule 23(f) deadline” under these circumstances (because the plaintiff had not filed his reconsideration motion within 14 days of the decertification order), but the court adhered to its ruling that equitable tolling applied. Having found the appeal timely, the Ninth Circuit proceeded to reverse the decertification order.

The Supreme Court’s Decision

The Supreme Court unanimously reversed.

The Supreme Court agreed with the Ninth Circuit that Rule 23(f) is a “non-jurisdictional claim-processing rule” that can be waived. The Court held, however, that Rule 23(f)’s 14-day deadline was “mandatory”—that is, “unalterable” if the opposing party objects. “Rules in this mandatory camp are not susceptible of the equitable approach that the Court of Appeals applied here.”

The Supreme Court based its decision on the text of Rule 23(f) and the Federal Rules of Appellate Procedure dealing with permissive appeals generally. “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.”

The Court noted that Rule 23(f) “conditions the possibility of an appeal” on the filing of a petition within 14 days after the certification order is entered.[1] The Court further noted that Federal Rules of Appellate Procedure 5(a)(2) and 26(b)(1) provide that a petition for permission to appeal must be filed within the time specified and that this deadline may not be extended. “The Rules thus express a clear intent to compel rigorous enforcement of Rule 23(f)’s deadline, even where good cause for equitable tolling might otherwise exist.”

Unanswered Questions

The Supreme Court left several questions unanswered.

First, the Court declined to address the plaintiff’s arguments that his petition was timely even without resort to tolling. The plaintiff argued that his reconsideration motion was filed within the time allowed by the district court at the March 2 hearing (thereby causing the 14-day period to run from the disposition of the reconsideration motion, not the original order), and that the district court’s order denying reconsideration was itself an “order granting or denying class-action certification” under Rule 23(f). The Supreme Court stated that the Ninth Circuit had not addressed these issues, but could do so on remand.

Second, the Supreme Court did not decide the effect of a “timely” motion for reconsideration of the class certification order—in other words, whether a Rule 23(f) petition is timely if filed within 14 days of the decision of a reconsideration motion that itself was filed within 14 days of the original class certification decision. The Court stated that every Court of Appeals to have considered the issue would accept such Rule 23(f) petitions as timely. The Court noted, however, that the plaintiff’s own reconsideration motion was not filed within 14 days of the decertification order. Moreover, the Court rejected the plaintiff’s argument that this Circuit Court authority demonstrates that Rule 23(f) is amenable to “tolling”: “A timely motion for reconsideration filed within a window to appeal does not toll anything; it renders an otherwise final decision of the district court not final for purposes of appeal. In other words, it affects the antecedent issue of when the 14-day limit begins to run, not the availability of tolling.”

Finally, despite appearing to reject outright any equitable tolling for Rule 23(f) appeals, the Supreme Court declined to address whether a party may obtain relief from an untimely filing if the district court “misled” the party about the appellate filing deadline, or if there was an “insurmountable impediment to filing,” such as if “the clerk’s office is inaccessible.”

[1] When the plaintiff filed his Rule 23(f) petition, the Rule provided that a court of appeals may permit an appeal “if a petition for permission to appeal is filed . . . within 14 days after the order is entered.” Current Rule 23(f) provides that a litigant “must file a petition” within that 14-day period. The Supreme Court concluded that “the difference is immaterial for purposes of this case.”