No Laughing Matter – Fed. R. Civ. P. 23(f)’s Deadline for Filing Petitions for Permission to Appeal Certification Orders Cannot Be Equitably Tolled

After a lively oral argument interrupted eight times by laughter, a unanimous Supreme Court reached a serious holding in Nutraceutical Corp. v. Lambert, No. 17-1094 (Feb. 26, 2019): that Fed. R. Civ. P. 23(f)’s 14-day period for requesting permission to appeal class certification orders cannot be equitably tolled.

The class-action plaintiff in Lambert sued for an alleged violation of the California consumer protection law. Although the district court originally allowed the plaintiff to proceed on behalf of a class, the court later ordered the class decertified. The plaintiff did not file a petition for permission to appeal within the 14-day period provided by Rule 23(f). Instead, the plaintiff orally informed the court of his intent to file a motion for reconsideration of the decertification order. The plaintiff filed the motion for reconsideration on the date ordered by the court, which fell long after the expiration of Rule 23(f)’s 14-day deadline. After the district court later denied that motion—four months after the Rule 23(f) deadline passed—the plaintiff finally filed a petition for permission to appeal the decertification order in the Ninth Circuit. The Ninth Circuit accepted the petition despite its untimeliness, finding that Rule 23(f)’s deadline is non-jurisdictional and warranted equitable tolling because the plaintiff complied with the district court’s instructions and otherwise acted diligently.

The Supreme Court agreed with the Ninth Circuit that Rule 23(f) is non-jurisdictional, but rejected the Ninth Circuit’s conclusion that the Rule is subject to equitable tolling. Instead, the Court held that Rule 23(f) is a mandatory claim-processing rule that, when not “waived or forfeited by an opposing party,” is “unalterable” and, thus, not subject to equitable tolling. The Court based its opinion in large part on the “inflexible” language of numerous procedural rules, including Rule 23(f), which requires that petitions for permission to appeal be filed “within 14 days after the order is entered”; Fed. R. App. P. 5(a)(2), which states that “a petition for permission to appeal must be filed within the time specified”; and Fed. R. App. P. 26(b), which expressly excludes petitions for permission to appeal from the group of filings eligible for extensions of time. At oral argument, the Supreme Court laughed its way through a “wonderful parade of horribles”—including courthouse fires, lightning strikes, epidemics, hurricanes, and even a Martian invasion—to consider what, if any, circumstances might warrant tolling Rule 23(f)’s deadline. But Lambert’s holding is no laughing matter. After Lambert, an untimely filed petition for permission to appeal to which the nonmoving party objects is barred. Accordingly, parties who seek permission to appeal orders granting or denying class-action certification must be diligent to file their petitions within the 14-day deadline, or risk losing their chance at an interlocutory appeal.