Untimely request for permissive appeal of class certification ruling deemed dead on arrival.

The district court certified a plaintiff class in the case but later reconsidered and decertified the class. Under Federal Rule 23(f), the named plaintiff would have had 14 days to seek review of that decertification order in the court of appeals. Instead, the plaintiff informed the district court that he wished to seek reconsideration in the district court and obtained a deadline to do so. Reconsideration was denied some months later, and the plaintiff thereafter sought appellate review. In this opinion, the Supreme Court rejected the Ninth Circuit’s rationale for accepting review of the delayed request for appeal.

The Supreme Court noted that the time limitation on seeking appellate review is a non-jurisdictional, claim-processing rule, which by definition can be “waived or forfeited by an opposing party.” But where the opposing party neither waives nor forfeits the rule, they must be enforced unless some other equitable consideration allows for an enlargement of time. “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, the Court interpreted the express prohibition on extending the time to seek appellate review of a class certification order as “a clear intent to compel rigorous enforcement of Rule 23(f)’s deadline, even where good cause for equitable tolling might otherwise exist.” Later in the opinion, the Court called the time limitation “purposefully unforgiving.”

This case is a warning to class action practitioners that immediate review of class certification rulings may be sought, but only if sought immediately.

^{Case Law Alerts, 2nd Quarter, April 2019}

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