Today’s guest post by Reed Smith associate Tim Carwinski addresses the broader possible ramifications of a recent Supreme Court decision, Nutraceutical Corp. v. Lambert, 139 S. Ct. 710 (2019). This is one of those many cases that we saw something about, but it didn’t seem that pertinent to what we do, so we let it go. Tim let us know that there was more to this decision than was apparent from the legal press, and upon reading his submission, we agreed. Hence this guest blogpost. As always, our guest posters are entitled to 100% of the credit (and any blame) for what they write.
Experience teaches that it’s best not to get too excited when an adversary blows a deadline. Most judges, it seems, will bend over backwards to avoid enforcing a draconian rule. But in the recently decided Nutraceutical Corp. v. Lambert, 139 S.Ct. 710, 2019 WL 920828 (Feb. 26, 2019), a unanimous Supreme Court reminded us that there are limits to this discretion when it reversed a Ninth Circuit decision that had allowed a plaintiff to appeal a class-certification defeat under Federal Rule 23(f) after the expiration of the rule’s 14-day deadline.
Of particular interest for readers of this Blog, whose clients/employers have been largely spared the class-action volume that some other industries suffer, the Court has given guidance on how to determine which deadlines in general are potentially subject to equitable tolling and which are not. (The analysis turns not on whether the deadline is “jurisdictional,” but on the text of the rule itself.) Also of interest, the Court appears to cast doubt on whether motions to reconsider can affect deadlines for filing interlocutory appeals.
Federal Rule 23(f) provides that parties may petition to appeal a class certification decision so long as the petition is filed within 14 days of the order. “A party must file a petition for permission to appeal with the circuit clerk within 14 days after the order is entered.” Fed. Rule Civ. Proc. 23(f). The Supreme Court reviewed a case where the plaintiff brought a putative class action alleging false advertising of the benefits of an aphrodisiac/dietary supplement. Nutraceutical, 2019 WL 920828, at *2. The district court (yes, it was in California) initially certified the class but, following the close of discovery, granted a motion to decertify. Ten days later (i.e., within the 14-day period), Plaintiff’s counsel informed the district court that he intended to move to reconsider the decertification order, and the court gave Plaintiff ten days to file his motion (i.e., to a date outside the 14-day period). The district court ultimately denied the motion to reconsider, and Plaintiff filed a petition for appeal 14 days after that denial (i.e., well outside the 14-day period, as measured from the original decertification order). Id.
On appeal before the Ninth Circuit, the defendant-appellee argued that the petition was untimely. But the Ninth Circuit decided to hear the appeal anyway, holding that the 14-day rule is not “jurisdictional” and, therefore, subject to equitable tolling. Tolling was appropriate, the Court ruled, because Plaintiff’s counsel had informed the court of Plaintiff’s intention to move to reconsider within the 14-day deadline and had acted diligently. Id. at *3. That led to the not unusual circumstance of the Ninth Circuit being at odds with every other appellate court to consider the issue. Cue a string cite! Fleischman v. Albany Med. Ctr., 639 F.3d 28, 31 (2d Cir. 2011) (allowing a motion filed “outside the fourteen-day window” to toll the Rule 23(f) deadline “would eviscerate its deliberate and tight restriction on interlocutory appeals”); Gutierrez v. Johnson & Johnson, 523 F.3d 187, 192 & 193 n.4 (3d Cir. 2008) (deadline is “strict and mandatory” and motion to reconsider after the deadline does not re-start the clock); Nucor Corp. v. Brown, 760 F.3d 341, 343 (4th Cir. 2014) (“An out-of-time motion for reconsideration—regardless of whether the motion is styled as one for reconsideration or for decertification—cannot restart the clock for appellate review under Rule 23(f)” (internal quotations omitted)); McNamara v. Felderhof, 410 F.3d 277, 281 (5th Cir. 2005) (motion to reconsider must be filed within Rule 23(f) deadline to toll the appellate period); Gary, 188 F.3d at 892 (7th Cir. 1999) (if motion to reconsider is late, then the “appeal must wait until the final judgment.”); Shin v. Cobb Cty., Bd. of Educ., 248 F.3d 1061, 1064 (11th Cir. 2001) (only “timely filed” motions to reconsider can toll Rule 23(f) deadline); In re DC Water & Sewer Auth., 561 F.3d 494, 495 (D.C. Cir. 2009) (same).
The Supreme Court reversed, and clarified the correct standard. The 14-day restriction in Rule 23(f) is not jurisdictional, true, because it is contained in procedural rule and not in a statute. Nutraceutical, 2019 WL 920828, at *3. This makes it a “claim-processing rule,” which may or may not be subject to equitable tolling depending on whether it a “mandatory” claim-processing rule, as determined by reference to the text of the rule itself. “Whether a rule precludes equitable tolling turns not on its jurisdictional character but rather on whether the text of the rule leaves room for such flexibility.” Id. If the text of the rule or rules shows a “clear intent” to preclude tolling, then courts are powerless to override a deadline because a party is “deserving” or otherwise diligent. Id.
Point 1: Under Nutraceutical, the widely employed jurisdictional/non-jurisdictional distinction is not dispositive of whether a filing deadline may be tolled for “equitable” reasons.
Notably, the Court found that the unqualified language of Rule 23 itself was not enough to make its deadline mandatory, since the appellate rules otherwise permit extensions of time for “good cause.” See Fed. Rule App. Proc. 4. What was critical was the text of Federal Appellate Rule 26, which provides that an appellate court “may not extend the time to file … a petition for permission to appeal.” Fed. Rule App. Proc. 26(b)(1). Nutraceutical, 2019 WL 920828, at *4.
Point 2: Do not expect equitable tolling of any type of petition for leave to appeal, not just Rule 23(f).
In a way, this decision represents a victory for Justice Ginsburg and her 20+ year campaign to stop courts from analyzing deadlines through the imprecise lens of “jurisdiction.” See Carlisle v. United States, 517 U.S. 416, 434-35 (1996) (Ginsburg, J., concurring) (it is “anomalous to classify time prescriptions, even rigid ones, under the heading ‘subject matter jurisdiction’”); see also Ctr. For Nuclear Responsibility, Inc. v. United State Nuclear Regulatory Comm’n, 781, F.2d 935, 945 n.4 (D.C. Cir. 1986) (Ginsburg, J., dissenting) (challenging “profligate use” of the word “jurisdiction” in diverse contexts).
But potential disagreements over the future application of this framework loom, as evidenced by the justices’ questions at oral argument and the court’s decision not to consider certain arguments advanced by the parties. Justice Breyer and others wondered what would happen if an Act of God, such as a hurricane, made it impossible to meet a filing deadline. (See Argument Trans. 8-11.) On this issue the Court declined to rule. Nutraceutical, 2019 WL 920828, at *5 n.8 (“We also have no occasion to address whether an insurmountable impediment to filing timely might compel a different result.”).
Of potentially significant consequence is the Court’s not addressing the intersection of the mandatory claim-processing rule and motions to reconsider. As the Court observed, the rationale for permitting a motion to reconsider is that the order is not “final” when the motion is pending. Nutraceutical, 2019 WL 920828, at *5. But a class certification order isn’t a final order; it’s interlocutory. See Adv. Comm. Notes on 1998 Amends. to Fed. Rule Civ. Proc. 23. In the absence of a federal rule governing motions to reconsider interlocutory orders, on what basis would such a motion ever affect the 14-day clock, even if filed in advance of the deadline? Or alternatively, if motions to reconsider result in a new class certification “order” under Rule 23(f), what is the rule that requires those orders to be treated differently than those stemming from “timely” reconsideration motions?
Point 3: In light of the Court’s strictly rule-based approach, practitioners should no longer assume they can file a motion to reconsider and reserve their right to file a Rule 23(f) appeal later.