Don’t Delay Rule 23(f) Appeal

27 February 2019 Consumer Class Defense Counsel Blog
Author(s): Michael D. Leffel

In Nutraceutical Corporation v. Lambert, No. 17-1094, 586 U.S. __ (Feb. 26, 2019), the United States Supreme Court once again endorsed the old adage, “When you snooze, you lose”—at least sometimes. Under Federal Rule of Civil Procedure 23(f), either side can file for a permissive appeal of a district court’s adverse class certification (or decertification) ruling. However, Rule 23(f) provides that a court of appeals may only permit an appeal if the petition seeking “permission to appeal is filed with the circuit clerk within 14 days after the order is entered.” Fed. R. Civ. P. 23(f). (Rule 23(f) has been amended since the case began, but the difference is not material to the Supreme Court’s decision. See Nutraceutical, slip op. at 3 n.2.) While courts of appeals have taken various equitable approaches that have effectively tolled or extended that time period, the Supreme Court just put more bite into that 14-day limitation.

Background & Holding

In Nutraceutical, the district court decertified a class action. Plaintiff stated that he intended to file a motion for reconsideration. The district court set a schedule for the briefing, and the plaintiff filed his motion within that time period. The filing of the motion for reconsideration, however, was 20 days after the decertification order was issued. The district court denied the motion, and plaintiff petitioned the Ninth Circuit for Rule 23(f) review 14 days later. Over the objection of the defendant, the Ninth Circuit held that the petition was timely because, “in its view, the Rule 23(f) deadline should be ‘tolled’ under the circumstances.” Slip op. at 2 (citation omitted). The Ninth Circuit went on to hold “that the District Court abused its discretion in decertifying the class” and “reversed the decertification order.” Slip op. at 2.

Defendant petitioned the Supreme Court for review, highlighting that other courts would not toll the Rule 23(f) deadline under similar circumstances, even though most would toll the Rule 23(f) period if the motion for reconsideration had been filed within 14 days of the decertification ruling.

While the Supreme Court acknowledged that Rule 23(f)’s 14-day time limitation is not a jurisdictional bar, it is “a non-jurisdictional claim-processing rule.” Slip op. at 3. (The opinion contains a brief but enlightening discussion about the distinction between jurisdictional limitations and claim-processing rules, and about how the Court itself had been “less than meticulous” in its use of some of these terms in the past. See Slip op. at 3-4 & n.3.) Because Rule 23(f) provides a claim-processing rule, it “can be waived or forfeited by an opposing party.” Slip op. at 3-4. The defendant in Nutraceutical had not waived this deadline, having sought to bar the Rule 23(f) appeal precisely because it was untimely. The Court went on to explain that the interplay of Federal Rule of Civil Procedure 23(f) and Federal Rule of Appellate Procedure 5(a)(2) and 26(b) “express a clear intent to compel rigorous enforcement of Rule 23(f)’s deadline, even where good cause for equitable tolling might otherwise exist.” Slip op. at 5.

Lessons Learned & Open Questions

The are many takeaways from this decision, and several questions expressly left open by the Court. The main lessons are fairly obvious. First, if you lose a certification ruling, do not delay. Even if you intend to move for reconsideration, you should ensure that you are not jeopardizing your right to seek permissive appeal. Second, if you won below, make sure you object to any untimely Rule 23(f) appeal so that you do not waive this argument.

There are open questions, however. A failure to file a Rule 23(f) petition within 14 days of a class certification ruling, even if objected to based on timeliness, may not always bar this type of appeal. First, the Court distinguished cases where the motion for reconsideration in the district court was filed within 14 days of the class certification ruling, and expressly stated that it was not considering that issue. Slip op. at 9 & n.7. Second, the Court did not consider, and left for the Ninth Circuit to consider on remand, whether the Rule 23(f) petition was in fact timely because the time to appeal should run from the time of the order denying the motion for reconsideration or because it was otherwise permitted under the Federal Rules or by the District Court. Slip op. at 9. These issues will need to be resolved going forward, so a losing (and otherwise tardy) party should not abandon all hope. But the best practice is to avoid this situation completely and file the petition within 14 days.

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