Supreme Court Clarifies Law on Late-Filed Rule 23(f) Petitions

This week, the Supreme Court ruled that the 14-day deadline to file an interlocutory appeal of a district court’s class certification decision is not subject to equitable tolling.  Nutraceutical Corp. v. Lambert, No. 17-1094, 2019 WL 920828 (U.S. Feb. 26, 2019).  In Nutraceutical, after the district court issued a decision decertifying the class, the plaintiff filed a motion for reconsideration 20 days later and filed a Rule 23(f) petition for review of the decision to decertify the class a further 14 days after the motion for reconsideration was denied.  The Ninth Circuit reasoned that because Rule 23(f)’s 14-day deadline was not jurisdictional, it could apply equitable principles and—where the plaintiff had orally stated his intention to file the motion for reconsideration within the 14-day window—the deadline was tolled.  A unanimous Supreme Court reversed, holding that equitable tolling does not apply to the 14-day deadline to file a Rule 23(f) petition.

Nutraceutical does not alter the general rule in the Eleventh Circuit—that the court will not grant an untimely petition.  Shin v. Cobb Cty. Bd. of Educ., 248 F.3d 1061, 1063 (11th Cir. 2001).  However, the Supreme Court’s ruling does clarify the law.  Prior Eleventh Circuit opinions describe the deadline under Rule 23(f) as “jurisdictional,” suggesting that there are no circumstances under which an untimely petition may be granted.  Id.; Jenkins v. BellSouth Corp., 491 F.3d 1288, 1290 (11th Cir. 2007).  Nutraceutical made clear that the rule is non-jurisdictional, which means that the party opposing the petition can waive or forfeit its right to rely on the 14-day deadline—for example, by failing to properly raise the timeliness issue.

The Supreme Court did not rule on the question of whether a motion for reconsideration in the trial court tolls or restarts the clock for filing a Rule 23(f) petition, leaving undisturbed the Eleventh Circuit’s rule.  Shin, 248 F.3d at 1064 (a motion for reconsideration tolls the period for filing a 23(f) petition).  The Court also left open the possibility that a motion might be timely if the district court had misled a party about the applicable deadline or if exceptional circumstances such as the closure of the clerk’s office had made filing impossible.

Posted by Nick Boyd.

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