The Supreme Court of the United States takes time limits to appeal seriously, and its February 26, 2019, decision in Nutraceutical Corp. v. Lambert proves that class actions are no exception.[1] Rule 23(f) of the Federal Rules of Civil Procedure provides “14 days after [an] order is entered” granting or denying class-action certification to petition for permission to appeal.[2] The Supreme Court held that Rule 23(f)’s “nonjurisdictional claim-processing rule” is not subject to equitable tolling.[3]

Lambert sued in the United States District Court for the Central District of California, alleging violations of California consumer-protection law and seeking class certification. The District Court initially permitted the plaintiffs to proceed as a class, but later issued an order decertifying the class. Lambert had 14 days to petition for permission to appeal. Instead, at a status conference 10 days after the decertification order, Lambert informed the District Court that he would seek reconsideration. The District Court told him to file the motion within 10 days. Lambert complied, and so he filed his motion for reconsideration 20 days after the decertification order. The District Court denied the motion.

Within 14 days of the District Court’s denial of his motion for reconsideration, Lambert sought permission to appeal the decertification order. The Ninth Circuit granted permission.[4] The Ninth Circuit held that Rule 23(f) permits equitable tolling and Lambert’s case qualified. But, as the Ninth Circuit recognized, “[o]ther circuits have… held that a motion for reconsideration filed more than fourteen days after a certification order will not toll the deadline even when the district set or influenced that deadline.”[5] The Ninth Circuit found unpersuasive the “reasons offered by other circuits for strictly limiting the availability of Rule 23(f) tolling, by only allowing for tolling when a motion for reconsideration is filed within the fourteen-day period.”[6]

The Supreme Court reversed and instructed that “[w]hether 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.”[7] The Court then looked to the text of Rule 23(f) and applicable Federal Rules of Appellate Procedure. It noted that Rule 23(f)’s deadline is “phrased in an unqualified manner.” Although that “does not necessarily establish that tolling is unavailable,” it is good evidence that tolling is foreclosed. The Court then pointed out that Rules 2 and 26 of the Federal Rules of Appellate Procedure confirm the unqualified nature of Rule 23(f)’s time limit. Rule 2 permits a court of appeals to “suspend any provision” of appellate procedure “except as otherwise provided in Rule 26(b).”[8] Rule 26(b) prohibits an appellate court from “extend[ing] the time to file… a petition for permission to appeal.”[9] While the Court “agree[d] that Rule 23(f) is nonjurisdictional,” it concluded that the relevant rules “clearly foreclose the flexible tolling approach on which the Court of Appeals relied.”[10]

The Court left several critical issues unresolved. If a litigant files a motion for reconsideration “within the time allowed… either by the Federal Rules or by [a] District Court,” though not filed within 14 days of the decertification order, does that cause the time to appeal to run from the disposition of the reconsideration motion? Alternatively, is a district court’s order denying reconsideration itself “an order granting or denying class-action certification under Rule 23(f)”? The Court stated it “will not offer the first word” on those questions, and remanded consideration of them to the Ninth Circuit for further development.[11]

Rule 23(f) Litigation After This Decision

Lambert pointed out that “every Court of Appeals to have considered the question would accept a Rule 23(f) petition filed within 14 days of the resolution of a motion for reconsideration that was itself filed within 14 days of the original order.”[12] The Court did not address this practice because Lambert’s request for reconsideration was not filed within 14 days of the original order.

The Court’s decision, however, suggests that this practice may be on borrowed time. The time for taking appeals as of right under Rule of Appellate Procedure 4(A) runs from the disposition of, among other things, motions to alter or amend the judgment.[13] Yet Rule of Appellate Procedure 5, governing petitions for permission to appeal, states only that “[t]he petition must be filed within the time specified by the statute or rule authorizing the appeal.”[14] Rule 23(f) states, without exception, that litigants have 14 days to petition for permission to appeal “from an order granting or denying class-action certification.” Therefore, if, as the Court held, Rule 23(f) is inflexible, then a post-order motion for reconsideration, whether filed within 14 days of the order or “within a reasonable time” under Rule 60(b), should not restart the clock for Rule 23(f). An “order granting or denying” certification is not the same as an order denying reconsideration. Because Rule 23(f) is inflexible, then it follows that an order denying a motion to reconsider should not restart the clock either, regardless of when it was filed.