Supreme Court Unanimously Rejects Equitable Tolling of Rule 23(f)’s Time Limit to Petition for Interlocutory Appeal
Yesterday, the Supreme Court in Nutraceutical Corp. v. Lambert unanimously held that Rule 23(f) is not subject to equitable tolling. After the District Court for the Central District of California decertified a class of consumers who alleged that Nutraceutical’s marketing of a dietary supplement violated California consumer-protection law, plaintiff Lambert filed a motion for reconsideration, which the court subsequently denied. Fourteen days later, Lambert petitioned the Ninth Circuit Court of Appeals for permission to appeal the decertification order under Rule 23(f). Nutraceutical opposed Lambert’s petition, arguing that it was untimely because more than four months had passed since the court’s decertification order. The Court of Appeals, however, deemed the petition timely and accepted the appeal, stating that the Rule 23(f) fourteen-day deadline should be equitably tolled under the circumstances as the time limit is “non-jurisdictional, and that equitable remedies softening the deadline are therefore generally available,” and Lambert had acted diligently in moving for reconsideration and subsequently filing his petition within fourteen days after the denial of that motion.
On appeal, the Supreme Court acknowledged that generally, non-jurisdictional claim-processing rules can be waived or forfeited, but some such rules are “mandatory” and “unalterable” if properly raised by an opposing party, and these rules are “not susceptible of the equitable approach that the Court of Appeals applied…” While Fed. R. App. P. 2 authorizes an appellate court for good cause to “suspend any provision of these rules in a particular case,” there is a caveat in Rule 2 pertaining to Fed. R. App. P. 26(b), which states that a court may not extend the time to file a petition for permission to appeal – the “precise type of filing” the Ninth Circuit had erroneously found could be subject to equitable tolling.
If there was any doubt before yesterday’s decision, the message is now clear – file petitions pursuant to Rule 23(f) for permission to appeal orders granting or denying class certification within fourteen days, or your petition will be time-barred.