Hunton Employment & Labor Perspectives

Federal Rule of Civil Procedure 23(f) governs petitions for interlocutory appeals of orders that grant or deny class certification and requires that a petition for permission to appeal must be filed “within 14 days after the order is entered.” It makes no mention of motions for reconsideration.

In Nutraceuticals Corp. v. Lambert, the district court granted the defendant’s motion to decertify the class.  Rather than immediately seeking permission to appeal the district court’s decertification decision under FRCP 23(f), the plaintiff instead filed a motion for reconsideration. That motion was denied three months later, and only then did the plaintiff seek Rule 23(f) relief from the Ninth Circuit Court of Appeals. The Ninth Circuit held that FRCP 23(f)’s 14-day deadline could be equitably tolled while the motion for reconsideration was under review, and therefore granted the untimely petition.

A unanimous Supreme Court reversed and held that equitable principles cannot be used to extend Rule 23(f)’s deadline. The Court explained that the controlling factor was whether the text of the Rules made the deadline “mandatory.” If a deadline is mandatory, it can still be waived or forfeited, but it is not subject to equitable principles if the opposing party raises it. The Court noted that the FRAP expressly prohibit any exceptions to the 14-day deadline, and thus equitable tolling could not apply to the otherwise untimely petition to appeal.

The implications of the Supreme Court’s decision are pretty straightforward: litigants must seek permission to appeal within 14 days of an unfavorable ruling on a motion to certify or decertify a class, regardless of whether they ask the district court to reconsider the underlying certification decision. Although the losing party could simultaneously file a motion for reconsideration, it should not wait for a determination on the motion for reconsideration before seeking permission to appeal under FRCP 23(f).