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Tuesday, February 26, 2019

Mandatory-but-non-jurisdictional FRCP 23(f)

SCOTUS on Tuesday decided Nutraceutical Corp. v. Lambert, holding that FRCP 23(f)'s 14-day time period for seeking permission for interlocutory appeal of a class-certification order is a mandatory claim-processing rule not subject to equitable tolling. My SCOTUSBlog analysis is here. The Court was unanimous, per Justice Sotomayor.

It appears that the Court is approaching something like clear lines, at least in how to approach questions if not the answer with respect to any particular rule. Anything appearing in an REA-established rule must be a non-jurisdictional claim-processing rule. That leads to the second question of whether that claim-processing rule, while non-jurisdictional, possesses similar characteristics, such as non-tolling, based on the text, structure, and history of that rule.

On the other hand, under Scott Dodson's approach (which the Court expressly considered but declined to adopt in Hamer) this would have been jurisdictional, as it marked the line between courts. Of course, Dodson then would have required the Court to consider tolling, because rules can be jurisdictional but still subject to equitable exception.

Posted by Howard Wasserman on February 26, 2019 at 03:12 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink


Yes, I would have considered this jurisdictional because it divides authority between the district and appellate courts, and I would have separately considered the rigidity of the deadline independent from its jurisdictional status.

In addition, Rule 23(f) might be jurisdictional even under the Court's own jurisprudence. The Court's bright-line rule in Hamer, and reaffirmed in Nutraceutical, that REA rules can't be jurisdictional because only Congress controls the jurisdiction of the lower federal courts, suffers from an oversight, which is that Congress can delegate jurisdictional rulemaking to the Court and has done so in Sec. 1292(e) and 2072(c) with respect to interlocutory appeals. The Rules Advisory Committee specifically understood its authority to promulgate Rule 23(f) under this delegation. Thus, Rule 23(f) is one of those narrow classes of REA rules that might be an exception to the usual understanding that REA rules can't be jurisdictional.

The Court in Nutraceutical didn't even consider that possibility.

Posted by: Scott Dodson | Feb 27, 2019 11:51:00 AM

Interesting. Seems bit too rigid and unfair. The judge in the district court, had to warn him, that reconsideration, can't affect or can't come at the back of the 14 days. Procedure, is not a "water bed", but neither "Sodom bad". If one party complies with the rules, acts diligently ( as stated by the circuit court ) then, flexibility is warranted here. For, the judge, is the manager of the procedure or proceedings ( inherent and autonomous power ). Correct, parties must comply with written rules, and in advance. But, once there is ambiguity, deviation ( or even potential one ) it is then up to the judge rather, not on parties, to make sure everything would go rightly.


Posted by: El roam | Feb 26, 2019 5:43:40 PM

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