“What, never?” “No, never!” “What, never?” “Well, hardly ever!” The Supreme Court, Rule 23(f), and Gilbert & Sullivan

When a federal district court certifies, refuses to certify, or decertifies a class, Federal Rule of Civil Procedure 23(f) gives a party 14 days to ask a court of appeals for permission to appeal the ruling. But what if a party seeks permission outside the 14-day window because some circumstance prevented action within 14 days or otherwise provided a compelling reason for later filing? Can such a request for permission be considered by the court of appeals? Or, to put it in more technical legal jargon, is the 14-day period subject to "equitable tolling"?

The Supreme Court heard argument on that issue this past Tuesday in a case called Nutraceutical v. Lambert. And if the argument is anything to go on (which it often isn't), class action lawyers should play it safe by filing for permission to appeal within 14 days of a district court ruling on certification if at all possible. The questions asked at argument suggest that most members of the Court may see the Court's choice as being between saying the time period can never be tolled or saying it can be tolled only in the most extreme circumstances (of which the case under consideration doesn't seem to the Justices to be an example).

Or, as opera-buff and civil-procedure-maven Justice Ginsburg put it, evoking Gilbert and Sullivan's "I am the Captain of the Pinafore" from H.M.S. Pinafore, "not necessarily never but not more than hardly ever." The defendant's lawyer, to whom she directed the question, either didn't hear or didn't get the reference and seemed confused by the audience's laughter. But Justice Ginsburg's phrasing didn't seem to bode well for his opponent.

The issue arose when a district court decertified a class and told the plaintiffs if they wanted to file a motion for reconsideration, they could have until a date 20 days after the decertification order to do so. The plaintiffs filed the motion and waited until after the court denied it to seek permission to appeal. The Court of Appeals for the Ninth Circuit held that under the circumstances of the case, the filing of a reconsideration motion within the time allowed by the district court tolled the 14-day for seeking permission to appeal.

The Supreme Court used to regard such time periods as "jurisdictional" and hence not subject to equitable tolling under any circumstances. More recently, the Court has generally characterized many time limits (including those like Rule 23(f) that are established by court rule rather than statute) as nonjurisdictional, but nonetheless "mandatory." The Court has reserved the question whether such "mandatory claims-processing rules" are subject to equitable tolling.

At oral argument, the Court asked plenty of penetrating questions to both sides, but the questions to the defendant's counsel (who opposed tolling) generally focused on how far the Court should go if they ruled in the defendant's favor, while the questions to the plaintiffs' attorney generally expressed skepticism toward arguments that the 14-day limit was tolled in the circumstances of the case.

At the end of the day, at least some members of the Court seemed inclined toward holding open the possibility that some "unique circumstances" could allow tolling of the limit, potentially including circumstances where a judge affirmatively misled a party into a late filing (though as Justice Kagan observed to the plaintiffs' attorney, "I don't see where that is [the case] here"). Justice Alito allowed that "if there's a Martian invasion, there would be an exception for that," but, as Chief Justice Roberts helpfully observed, "there hasn't been a Martian invasion yet." The Justices seemed potentially divided about how extreme the circumstances would have to be to justify tolling, but none seemed to be going to bat for a permissive rule. Interestingly, Justice Gorsuch went furthest in articulating an argument that the text of the rules permitted allowance of late filings in at least some circumstances.

The Court's decision won't come out until sometime in the new year, but in the interim, absent an attack from Mars, class action lawyers seeking to pursue a Rule 23(f) appeal would be well advised to get their request for permission to appeal in within 14 days of the trial court's order refusing to certify or decertifying a class until the Court clarifies when, if even, a request outside that period can be entertained.

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