SCOTUS Rebuffs Ninth Circuit's Attempt to "Soften" Deadline to Appeal Class Action Certification

ABSTRACT: The Federal Rules of Civil Procedure give parties just 14 days to appeal a ruling granting or denying certification of a class action. The United States Supreme Court recently found that deadline to be "purposefully unforgiving," and rejected an appeal from a plaintiff who missed the deadline because he opted to seek reconsideration of the trial court's class certification ruling before trying to appeal.

The deadline to appeal an order granting or denying class certification is a rigid one that is not subject to equitable tolling, according to a unanimous United States Supreme Court. Reversing the Ninth Circuit Court of Appeals, the high court found that lower courts lack the power to relax the 14-day deadline for filing a petition for permission to appeal class-certification rulings.

Nutraceutical Corporation v. Lambert arose from a putative consumer class action filed against the maker of a dietary supplement. Although the Central District of California initially certified a class of similarly situated plaintiffs, it later changed its decision and entered an order decertifying the class. Rule 23(f) of the Federal Rules of Civil Procedure provides that a petition for permission to appeal that order had to be filed with the Ninth Circuit Court of Appeals within 14 days. 

However, 10 days after the ruling, the plaintiffs’ lawyers informed the district court at a status hearing that they intended to file a motion for reconsideration of the order decertifying the class. The district judge instructed them to do so within 10 days of the hearing—20 days from the decertification order—which they did. Several months later, the trial court denied the motion for reconsideration, and the plaintiffs’ lawyers then filed their petition for permission to appeal. While the petition for permission to appeal was filed within 14 days of the order denying reconsideration, it was more than four months after the initial order decertifying the class action. 

Notwithstanding this apparent procedural defect, the Ninth Circuit accepted the appeal. It rejected the manufacturer’s argument that the appeal was untimely, primarily because the plaintiffs’ lawyers had told the trial court of their intention to seek reconsideration within the initial 14-day window and then sought permission to appeal within 14 days of the denial of that motion for reconsideration. To reach this result, it invoked the doctrine of equitable tolling to “soften” the deadline and permit the appeal. True to its reputation as a judicial outlier, the Ninth Circuit acknowledged contrary authority from the Second, Third, Fourth, Fifth and Seventh Circuits and admitted those courts “would likely not toll the Rule 26(f) deadline” under these circumstances.  

The United States Supreme Court took a far more rigid view of the 14-day deadline imposed by Rule 26(f), describing it as “purposefully unforgiving.” Writing for a unanimous court, Justice Sonia Sotomayor framed the issue as whether the text of the rules left room for flexibility in how this deadline is imposed. Although appellate courts have very broad authority under the Federal Rules of Appellate Procedure to “suspend any provision of these rules in a particular case,” that flexibility comes with an important caveat: Appellate Rule 26 expressly provides that courts of appeals “may not extend the time to file […] a petition for permission to appeal.” The court found that this language shows “a clear intent to compel rigorous enforcement” of the 14-day deadline to file with the appellate court. “Courts may not,” Justice Sotomayor concluded, “disregard a properly raised procedural rule’s plain import any more than they may a statute’s.”

The plaintiffs’ lawyers tried to draw a distinction between “extending the time to file” a petition to appeal, which Appellate Rule 26 expressly forbids, with a decision “to excuse late filings on equitable grounds after the fact.” Relying on prior Supreme Court precedent under the analogous rules of criminal procedure, the high court rejected this type of hair-splitting. No matter how it is described, the acceptance of a late filing is a de facto extension of time.

But this opinion does not completely dash these plaintiffs’ attorneys’ hopes of appealing the decertification of their class. The Supreme Court declined to weigh in on two of their primary arguments for certification, because those were not addressed by the underlying court of appeals opinion. This leaves the Ninth Circuit free to revive those arguments on remand. 

First, the plaintiffs’ lawyers argued that regardless of whether the deadline for a petition for permission to appeal could be extended, the trial court could extend the time to file a motion for reconsideration, and they claimed the district court did just that when it instructed them to file their motion for reconsideration within 10 days of the hearing.  Alternatively, they argued that the order denying reconsideration was itself an “order granting or denying class-action certification,” starting a new 14-day window in which to file a petition to appeal, even if they had blown the initial deadline. In either case, the crux of the argument is that the deadline to file a petition for permission to appeal should have been calculated from the date the motion for reconsideration was denied, not the date of the initial class decertification.

And these arguments might have some legs, too. The Supreme Court carefully confined its analysis to the narrow issue of whether equitable tolling could be applied to the deadline to appeal class certification orders, since that was the sole basis for the Ninth Circuit’s ruling. Justice Sotomayor even acknowledged that a timely motion for reconsideration can render an otherwise final decision not final for appeal purposes.  The question of whether the motion for reconsideration was timely and, if so, its effect remains unanswered. This means the parties’ appellate battle is not over, with the next round back before the Ninth Circuit. And regardless of how that court rules, a second appeal to the Supreme Court may be necessary to untie the rest of this procedural knot.