Supreme Court rejects equitable tolling of class action appeals

The Supreme Court today issued a new opinion addressing the timing of requests to appeal class certification rulings. The decision gives practitioners another new reason to be especially careful when plotting potential appeals.

Under Federal Rule of Civil Procedure 23(f), circuit courts have virtually unfettered discretion to “permit an appeal from an order granting or denying class-action certification.” The timing for petitioning such an appeal, however, is more firm: “A party must file a petition for permission to appeal with the circuit clerk within 14 days after the order is entered…”

So, what happens when a district court grants or denies class certification, and then one of the parties moves for reconsideration of that order — rather than immediately petitioning for appeal?

The circuit courts typically allow intervening motions for reconsideration, followed by appeals, as long as the motion is filed within 14 days of the certification ruling, and the petition is filed within 14 days of the reconsideration ruling.

But under the Supreme Court’s new ruling in Nutraceutical Corp. v. Lambert., the filing of a motion for reconsideration may waive the ability to later take an appeal. In Lambert, the plaintiff waited 20 days from a decertification order to move to reconsider — and then, after that motion was denied, petitioned for appeal 14 days after the denial.

The Supreme Court rejected the argument that the intervening motion for reconsideration equitably tolled the Rule 23(f) deadline:

While Appellate Rule 2 authorizes a court of appeals for good cause to “suspend any provision of these rules in a particular case,” it does so with a conspicuous caveat: “except as otherwise provided in Rule 26(b).” Appellate Rule 26(b), which generally authorizes extensions of time, in turn includes this express carveout: A court of appeals “may not extend the time to file . . . a petition for permission to appeal.” Fed. Rule App. Proc. 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. 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 Supreme Court, however, left a number of crucial questions unresolved.

Plaintiff argued, for example, that even if equitable tolling didn’t apply, that his petition to appeal was timely (since it was filed within the time allowed by the Federal Rules and the district court). The Court also declined to say whether the petition would have been acceptable had plaintiff filed his motion for reconsideration within 14 days (rather than 20).

With no answers to those questions, the Lambert ruling casts considerable uncertainty on motions to reconsider class certification rulings. (Such motions may be preferable for a variety of reasons, including that they are often resolved faster than an appeal.) Practitioners who wish to err on the side of caution, may well choose to skip otherwise meritorious motions to reconsider and instead petition to appeal right away.