The U.S. Supreme Court suddenly seems to have a little time on its hands. Or at least on its mind. In two different class action cases on its docket this week, the question at hand was timeliness.
First, in Nutraceutical Corp. v. Lambert, the Supreme Court ruled that Rule 23(f)’s 14-day time limit for filing a Rule 23(f) petition for permission to appeal from an order granting or denying class certification is not flexible and is not subject to equitable tolling. The window for filing a Rule 23(f) petition opens when the certification order is entered and slams shut exactly 14 days later, at least absent a motion to reconsider filed within that 14-day window.
Plaintiff’s counsel seemed to have a little judicial help in getting themselves wrapped around the timeliness axle. The case was filed as a class action alleging misleading marketing of a dietary supplement in contravention of California law. The trial court initially granted class certification, but on February 20, 2015, changed its mind and decertified the class. At a status conference 10 days later, would-be class counsel informed the district judge that plaintiff would be filing a motion to reconsider. The trial court told plaintiff to file any such motion on or before March 12, a deadline that was some 20 days after the decertification order. However, neither plaintiff nor the court mentioned anything about a 23(f) appeal. Plaintiff’s counsel filed a motion to reconsider on March 12, and the trial court denied it on June 24, 2015. Fourteen days after that, plaintiff’s counsel filed a 23(f) petition with the Ninth Circuit.
The Ninth Circuit tried to cut plaintiff’s counsel some slack. It ruled that the time limit of Rule 23(f) was not jurisdictional, and therefore was subject to equitable tolling. The court found that the plaintiff qualified for equitable tolling because his counsel “informed the [District Court] orally of his intention to seek reconsideration” within Rule 23(f )’s 14-day window, relied on the district court’s sua sponte March 12 deadline for filing reconsideration, and “otherwise acted diligently.” Therefore, the petition for permission to appeal would be deemed timely. For good measure, the Ninth Circuit also granted permission to appeal and reversed the decertification order.
But the Supreme Court said “not so fast.” It agreed that Rule 23(f)’s time limit is not jurisdictional, but explained that was not the end of the story. “Whether a rule precludes equitable tolling turns not on its jurisdictional character but rather on whether the text of the rule leaves room for such flexibility.” Here, Federal Rules of Appellate Procedure 2 and 26(b) expressly combine to remove Rule 23(f) appeals from among those provisions of the rules that may be suspended in the discretion of the appellate court, the latter stating that a court of appeals “may not extend the time to file . . . a petition for permission to appeal.” This was the end of the inquiry as far as SCOTUS was concerned. The very textualist opinion was unanimous and was written by Justice Sotomayor.
The opinion notes, but pointedly does not endorse, the fact that every circuit court to address the issue so far has ruled that a motion for reconsideration filed within the 14-day window after the order on class certification postpones the time for 23(f) appeal. But this is not a matter of tolling, the court explained: A “timely motion for reconsideration filed within a window to appeal does not toll anything; it renders an otherwise final decision of a district court not final for purposes of appeal.” Interestingly, the court also punted back to the Ninth Circuit two arguments the plaintiff made that his appeal was timely even without equitable tolling. The first was his argument that even if his motion for reconsideration was not filed within 14 days of the decertification order, it was filed within the time allowed for reconsideration motions, and a timely reconsideration motion should cause the time to appeal to run from the disposition of the reconsideration motion, not from the original order decertifying the class. The second was his argument that the denial of reconsideration was itself an order subject to 23(f) appeal as an order denying class certification. All of these reserved questions will surely be litigated, and in time could end up back in front of the Supreme Court.
Meanwhile, in Rotkiske v. Klemm, the High Court just agreed to decide whether the one-year statute of limitations for class and individual claims brought under the Fair Debt Collection Practices Act begins to run from the moment of the violation or from the plaintiff’s discovery of the facts giving rise to the violation. The Third Circuit says it runs from the moment of violation regardless of the time of discovery. The Fourth and Ninth Circuits disagree. The issue is important to class action practice because the FDCPA is one of those many “gotcha” statutes that offer classwide statutory damages for technical violations, and a discovery rule could reopen endless events of the past to fresh litigation today.
We will continue to monitor the ripples from both of these cases.