Rule 23(f) of the Federal Rules of Civil Procedure is not subject to equitable tolling, the U.S. Supreme Court unanimously held.
The rule permits appeals from orders granting or denying class certification if a petition for permission to appeal is filed within 14 days after the order is entered. While the Court found the rule is a waivable nonjurisdictional claim processing rule, the clear text of the rule leaves no room for flexibility. The ruling stands as a warning to practitioners not to rely on equitable tolling instead of deadlines set forth in procedural rules.
Neutraceutical Corp. v. Lambert
In Neutraceutical Corporation v. Lambert, the plaintiff filed a federal class action alleging that the defendant’s marketing of a dietary supplement did not comply with California law. The U.S. District Court for the Central District of California ordered the class decertified. Under Rule 23(f), the plaintiff had 14 days from the date of this ruling to ask the Court of Appeals for the Ninth Circuit for permission to appeal the decertification order. At a status conference 10 days after the district court entered the order, the plaintiff informed the court he wanted to file a motion for reconsideration. The district court gave the plaintiff 10 days to file the motion. Pursuant to the court’s direction, the plaintiff filed the motion for reconsideration 10 days later. The court denied the motion three months later.
Fourteen days after this denial, the plaintiff asked the Ninth Circuit for permission to appeal the district court’s decertification order. The defendant objected that the plaintiff’s motion was untimely, as it was filed over three months after the initial decertification order was entered. The Ninth Circuit held that Rule 23(f)’s deadline was a nonjurisdictional claim processing rule and, thus, subject to equitable tolling. It found that the 14-day time limit should be tolled because the plaintiff acted “diligently” in complying with the deadline given to him at the status conference. The defendant appealed.
Rule Text Provides No Room for Flexibility
The Supreme Court reversed the Ninth Circuit’s ruling. The Court agreed that since Rule 23(f) is a procedural rule and not a statute, its time limitation is a nonjurisdictional claim-processing rule. However, the Court took its analysis one step further and held that Rule 23(f) is not subject to equitable tolling.
Whether a rule precludes equitable tolling depends on whether its text leaves room for flexibility, the Court said. Rule 23(f) provides that a petition to appeal must be filed within 14 days of an order granting or denying class certification. Likewise, Rule 5(a)(2) of the Federal Rules of Appellate Procedure provides a petition for permission to appeal “must be filed within the time specified.” While Rule 2 of the Federal Rules of Appellate Procedure authorizes a court of appeals to suspend the appellate rules for “good cause,” it has a “conspicuous caveat: ‘except as otherwise provided in Rule 26(b),’” the Court noted. Rule 26(b) of the Federal Rules of Appellate Procedure explicitly provides that an appellate court cannot extend the time to file a petition for permission to appeal. “The Rules thus express a clear intent to compel rigorous enforcement of Rule 23(f)’s deadline, even where good cause for equitable tolling might otherwise exist,” the Court concluded.
In so ruling, the Court relied on its own precedent finding where the rule invoked shows a clear intent to preclude tolling, courts have no authority to make exceptions “merely because a litigant appears to have been diligent, reasonably mistaken, or otherwise deserving.” In both Carlisle v. United States and United States v. Robinson, the Court held the petitioner could not appeal out of time because the text of Rule 45(b) of the Federal Rules of Criminal Procedure clearly stated that “the court may not extend the time for taking any action.” While both Carlisle and Robinson involved Criminal Rule 45(b), that rule’s extension of time provision parallels that of Rule 26(b), the Court reasoned.
“Don’t Rely on Equitable Tolling”
“Equity was developed to get around strict legal guidelines,” states Matthew T. Heffner, Chicago, IL, cochair of the Rule 23 Subcommittee of the ABA Section of Litigation’s Class Actions & Derivative Suits Committee. “But here, the Court found that if the rules are so clear and have such a strong intent that they be followed, you can’t use equity to get around them,” he says.
“The Supreme Court took into consideration what the rule says and interpreted the rule as the rule, period,” agrees Louis F. Burke, New York, NY, cochair of the Section of Litigation’s Class Actions & Derivative Suits Committee.
As a result, practitioners must not ignore procedural deadlines, Section leaders advise. “The lesson here is don’t rely on equitable tolling,” says Heffner. “This ruling is a strong reminder to practitioners that once you have a decision on class certification, you need to quickly determine whether you want to take your appeal and file it quickly,” he explains.
“Do not assume the court will let you deviate from a deadline mandate,” comments Burke. “Read the rules and pay attention. Docket your deadline and make sure you file your notice of appeal timely, because you aren’t always going to get leniency on following the rule,” he advises.
Catherine M. Chiccine is an associate editor for Litigation News.
Hashtags: #equitabletolling, #Rule23, #FRCP, #SCOTUS, #FRAP
- Anthony R. McClure, “Ninth Circuit Splits from Others in Tolling Deadline for Class Action Appeals,” Litigation News (Jan. 3, 2018).
- Adam E. Polk, “Ninth Circuit: No Formal Motion for Reconsideration Motion Needed to Toll 23(f) Deadline,” Class Action & Derivative Suits (Sept. 26, 2017).
- Shanna Bowman, “Supreme Court Finds Exception to Appeals Filing Deadline Permissible, Not Violation of Jurisdictional Limits,” Trial Practice (Nov. 13, 2017).
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