On February 26, 2019, in Nutraceutical Corp. v. Lambert, the Supreme Court of the United States held that Federal Rule of Civil Procedure 23(f)’s 14-day deadline to request permission to appeal a district court’s order regarding class certification cannot be equitably tolled.


Relevant Background and Ninth Circuit’s Holding

Lambert brought a putative class action against Nutraceutical, which the district court originally certified. On February 20, 2015, the district court decertified the class. Rule 23(f) gave Lambert 14 days to ask the Court of Appeals for the Ninth Circuit for permission to appeal. Instead, Lambert informed the district court 10 days after its decertification order that he intended to file a motion for reconsideration with that court. The district court set a deadline of March 12, 2015, and Lambert filed his motion for reconsideration on that day. On June 24, 2015, the district court denied Lambert’s motion for reconsideration. Fourteen days later, Lambert petitioned the Ninth Circuit for permission to appeal the February 20, 2015 decertification order.

The Ninth Circuit deemed Lambert’s petition as timely because, in its view, the Rule 23(f) deadline should be tolled under the circumstances. The Court of Appeals reasoned that Rule 23(f)’s time limit is “non-jurisdictional, and that equitable remedies softening the deadline are therefore generally available.” 870 F.3d 1170, 1176 (9th Cir. 2017). Lambert had informed the district court of his intention to move to reconsider within Rule 23(f)’s 14-day window, and otherwise had acted diligently. Id. at 1179.

The Supreme Court’s Decision

The Supreme Court unanimously reversed and remanded. The Court agreed that Rule 23(f) is not jurisdictional, but held it is not subject to equitable tolling. Rule 23(f)’s time limitation indeed is a “nonjurisdictional claim-processing rule,” and can be waived or forfeited by an opposing party. Op. at 3-4. But whether the rule permits equitable tolling turns on whether the “text of the rule leaves room for such flexibility.” Id.  Those rules “make clear” that the Rule 23(f) deadline is not subject to equitable tolling. Id. at 4.  Specifically, Federal Rule of Appellate Procedure 2 authorizes a court of appeals to suspend a provision of the rules, except as provided in Rule 26(b). And Rule 26(b) expressly provides that a court of appeals “may not extend the time to file … a petition for permission to appeal.” Id. at 4-5 (citing Fed. R. Civ. App. 26(b)(1)). Prior case law analyzing Federal Rule of Criminal Procedure 45(b), which has an extension-of-time provision that parallels Rule 26(b), confirmed the Court’s view. Id. at 5-6.

The Court rejected Lambert’s other arguments, including Lambert’s hair-splitting interpretation of Rule 26(b) and his reliance on the 1998 Advisory Committee Notes to Rule 23(f). Id. at 8-9. The Court declined to consider Lambert’s arguments that he had not raised in proceedings below, namely, that tolling was unnecessary and his Rule 23(f) petition was timely because the time to appeal ran from the date of the district court’s disposition of the reconsideration motion, not the original order.


A party facing a class certification order should be aware that Rule 23(f)’s 14-day deadline to petition for permission to appeal cannot be equitably tolled. The Supreme Court’s opinion left open the possibility that the 14-day deadline under Rule 23(f) can begin to run after the disposition of a timely motion for reconsideration, because that reconsideration order itself may be an order granting or denying class certification. But a party should research the relevant law in its jurisdiction before embarking on such a path.

Husch Blackwell’s Class Action Defense team can answer any questions you may have about this decision.