On February 26, the Supreme Court held in a unanimous decision that the deadline to seek permission for an interlocutory appeal of a decision granting or denying class certification cannot be extended through equitable tolling.  Rule 23(f) of the Federal Rules of Civil Procedure allows for an interlocutory appeal of class certification orders, but mandates that permission must be sought from the court of appeals within 14 days of the order.  The case is Nutraceutical Corp. v. Lambert.  The opinion can be found here. 

When the district court decertified Lambert’s class, he filed a motion for reconsideration.  Fourteen days after the Court denied the motion for reconsideration, and four months after the decertification order, Lambert petitioned the Ninth Circuit for permission to appeal the decertification order.  The Ninth Circuit allowed the appeal, holding that Rule 23(f)’s deadline should be tolled because Lambert had “acted diligently.”  The Supreme Court decisively disagreed, reversing the Ninth Circuit’s decision to allow the appeal. 

The Court first determined that Rule 23(f)’s time limitation was a nonjurisdictional claim-processing rule, but that “does not render it malleable in every respect.”  The Court searched the text of the rule for flexibility and found none.  Instead, it found the “Rules express a clear intent to compel rigorous enforcement of Rule 23(f)’s deadline, even where good cause for equitable tolling might otherwise exist.”  This is so because “Appellate Rule 26(b) says that the deadline for the precise type of filing at issue here may not be extended.” 

It is important to note that although the Court found no flexibility in Rule 23(f)’s deadline, objections to timeliness must still be raised.  Unlike jurisdictional rules, the deadline “can be waived or forfeited by an opposing party.”  In this case, equitable tolling could not save Lambert’s untimely petition because Nutraceutical had objected to the timeliness of the petition. 

This decision confirms how most have generally viewed the deadline for filing petitions under Rule 23(f), but still provides two key reminders for class action defendants.  First, when appealing an order certifying a class, defendants must be vigilant in adhering to Rule 23(f)’s 14-day deadline.  Second, when a plaintiff seeks permission to appeal an order under Rule 23(f), defendants should object to the timeliness if that petition was not filed within 14 days of the order, even if some intervening circumstances exist.