United States: The Supreme Court Taketh Away (Equitable Tolling) . . . And Perhaps Giveth (A Second Chance On Reconsideration)?

The Federal Rules of Appellate Procedure are generally liberal and allow the appellate courts a great deal of discretion: for example, FRAP 2 allows a Court of Appeals to "suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b)." As the Supreme Court emphasized on Tuesday in Nutraceutical Corp. v. Lambert, that final caveat is important.

Troy Lambert sued Nutraceutical, a dietary supplement company, for failing to properly label products. He sued on behalf of a class of similarly situated consumers, and the federal district court initially certified a class. However, Nutraceutical successfully moved to decertify after discovery. Ten days later, during a status conference, Lambert informed the court that he intended to move for reconsideration. The court ordered him to submit the motion by ten days after the conference, which he did. The court denied his motion, at which point Lambert petitioned the Ninth Circuit for permission to file an interlocutory appeal of both the decertification order and the denial of reconsideration.

Nutraceutical objected that Lambert's petition was outside the permissible time to file a petition. At the time, FRCP 23(f) allowed the appellate court to "permit an appeal" of an order denying class cert "if a petition for permission to appeal is filed . . . within 14 days after the order is entered." (The language has since changed slightly, but the substance of the rule is the same.) Lambert's petition was not filed until several months after the decertification order was entered. Nonetheless, the Ninth Circuit held that it could grant Lambert's petition because, first, the FRCP time limit was non-jurisdictional, and second, Lambert was entitled to equitable tolling of the time because he had been diligent in seeking relief, first from the district court and then from the appellate court.

Nutraceutical appealed the timeliness issue, and the Supreme Court reversed. Justice Sotomayor, writing for a unanimous court, agreed with the Ninth Circuit that the rule was not jurisdictional. But, the Court said, the time to file is mandatory and cannot be tolled. The distinction between mandatory and non-mandatory deadlines, the Court noted, depends on the "text of the rule." Even a "deadline . . . phrased in an unqualified manner" may be susceptible to equitable tolling if the text does not clearly preclude tolling.

In this case, though, the Court found that "the Federal Rules of Appellate Procedure single out Civil Rule 23(f) for inflexible treatment." Lambert pointed to FRAP 2 to argue for the appellate court's equitable power to alter the rules. But the Court found that the carve-out at the end of the rule ("except as otherwise provided in Rule 26(b)") trumped the general grant of discretion to the appellate courts. FRAP 26(b) explicitly states that "the court may not extend the time to file . . . a petition for permission to appeal." The Court held that the rules expressed "a clear intent to compel rigorous enforcement of Rule 23(f)'s deadline, even where good cause for equitable tolling might otherwise exist."

Does that spell the end of the road for Lambert or other litigants who pursue a timely motion for reconsideration but fail to timely appeal a Rule 23 order? No, it does not for two reasons.

First, if the party moves for reconsideration (at least within 14 days of the original order), that motion does not toll the time to petition for an appeal, but it can make "an otherwise final decision of a district court not final," which "affects the antecedent issue of when the 14-day limit begins to run." The Court also left open the possibility, to be considered by the circuit court on remand, that a timely motion for reconsideration could have the same effect even if not filed within the 14-day window.

Second, Lambert argued, and the Court remanded for the lower court to consider, that the denial of reconsideration was also "an order granting or denying class-action certification," with its own 14-day window for a petition for permission to appeal.

Where does that leave litigants? On the one hand, the Court's unanimous ruling draws a clear line in the sand: there is simply no equitable tolling available when it comes to seeking permission to appeal. Thus, in theory, litigants ought to proceed straight to seeking an appeal of an unfavorable ruling without waiting to see if a better result can be obtained on reconsideration (or, at the very least, ought to pursue them in tandem). On the other hand, the opinion creates some uncertainty as to whether a litigant like Lambert can use reconsideration to get around the deadline to seek appeal, lack of tolling notwithstanding.

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