The Supreme Court’s February 26, 2019 opinion in Nutraceutical Corp. v. Lambert, No. 17-1094, unanimously holds that Federal Rule of Civil Procedure 23(f) is not subject to equitable tolling. In other words, no matter what the circumstances, federal appellate courts cannot consider interlocutory appeals of district court class-action certification decisions if a review petition is filed beyond the 14 days allowed by Rule 23(f).
Under Rule 23(f), a court of appeals is authorized to “permit an appeal from an order granting or denying class-action certification . . . if a petition for permission to appeal is filed . . . within 14 days after the order is entered.” Slip op. at 3 (emphasis added). In Nutraceutical the Respondent filed a Rule 23(f) petition with the Ninth Circuit 14 days after a district court denied his motion for reconsideration of a class decertification order — even though that was 4 months after the original decertification order. The Ninth Circuit held that under the circumstances, the petition for appellate review was equitably tolled and thus timely.
The Supreme Court indicated that “[b]ecause Rule 23(f)’s time limitation is found in a procedural rule, not a statute, it is properly classified as a nonjurisdictional claim-processing rule,” and “therefore can be waived or forfeited by an opposing party.” Id. at 3-4. Nonetheless, according to the Court, the nonjurisdictional nature of Rule 23(f) does not “render it malleable in every respect.” Id. at 4. “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.
The Court found that “the Federal Rules of Appellate Procedure single out Civil Rule 23(f ) for inflexible treatment.” Id. at 5. The Court indicated that under “Appellate Rule 26(b) . . . A court of appeals ‘may not extend the time to file . . . a petition for permission to appeal.'” Id. (quoting Fed. R. App. P. 26(b)(1)). “In other words, Appellate Rule 26(b) says that the deadline for the precise type of filing at issue here may not be extended.” Id. The Court left open, however, the question of whether the Respondent’s Rule 23(f) petition was timely without resort to tolling (e.g., the question of whether the denial of the motion for reconsideration of the decertification order was itself an order denying class certification that triggers (or re-triggers) the 14-day period for seeking appellate review. Id. at 9-10.
Rule 23(f) was promulgated in accordance with 28 U.S.C. § 1292(e), which states that “[t]he Supreme Court may prescribe rules . . . to provide for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided for under [§§ 1292(a), (b), (c), and (d)].” The Court’s rationale in Nutraceutical presumably would apply to any other federal interlocutory appeal rule promulgated under § 1292(e).