Nutraceutical Corp. v. Lambert

Oral argument transcript · No. 17-1094 · October Term 2018 · argued November 27, 2018 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• John Hueston, Los Angeles, California, for the petitioner
• Jonathan A. Herstoff, New York, New York, for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument first this morning in Case 17-1094, Nutraceutical Corporation versus Lambert. Mr. Hueston. ORAL ARGUMENT OF JOHN HUESTON ON BEHALF OF THE PETITIONER

John Hueston: Mr. Chief Justice, and may it please the Court: In the proceedings below, Respondent filed his Rule 23(f) petition months late, and Nutraceutical timely objected. Although this Court has held that mandatory claim processing rules are unalterable when properly invoked, the Ninth Circuit in this case created broad and unprecedented equitable exceptions to excuse Lambert's late filing. Critically, in this case, this Court has twice considered language in a federal rule that is virtually identical to the federal rules at issue in this case. And in both those cases, in the Carlisle and the Robinson cases, this Court rejected equitable exceptions, even when faced with facts far more empathetic than 1 those presented here.

Justice Ginsburg: Counsel, I thought that both sides agreed that if the motion for reconsideration is filed within 14 days, within that period, then there is tolling until the motion is decided. Is that -- is that so?

John Hueston: That is correct, Justice Ginsburg. And -­

Justice Ginsburg: And isn't that a form of equitable tolling?

John Hueston: It is not a form of equitable tolling, Your Honor. Instead, as held by this Court in U.S. v. Dieter, it's based on a traditional and virtually unquestioned practice that is premised upon three main policy points: to prevent premature appeals, to develop and strengthen the record, and to respect the authority of the district court. It's important to realize that this doctrine could not open the door to equitable exceptions for claim processing rules because, in the Ibarra, Dieter, and Healy cases, those dealt with a statute, 3731, establishing the deadline in a criminal case, and, thus, it was 1 a jurisdictional case. So the application of that rule in the context of a criminal case with jurisdictional rules, in fact, tolled those jurisdictional deadlines. And so, therefore, pursuant to the Court's holdings in Hamer and elsewhere, that is not an equitable exception.

Justice Kagan: Mr. Hueston, given the reasons that you just stated for that rule, why is the rule limited to a motion for reconsideration that's filed during the 14-day window? In other words, suppose the motion for reconsideration was filed in a timely manner for such a motion but after the 14-day period. Why wouldn't the same reasons apply?

John Hueston: Because, Your Honor, if that reasoning applied, in this instance, for instance, there was actually no deadline for filing of a motion for reconsideration in the Central District of California, but let's assume for purposes of your question we had a 30-day deadline. If that 30-day deadline were imposed in this case and one could file on the 30th day 1 and begin tolling, that would render the 14-day deliberately small window that the advisory committee drafters created in order to minimize the disruption and delay in the context of class action cases a nullity because, in any instance where you would have a longer deadline for a motion for reconsideration, you could wait out that period and avoid the window that was intentionally created by the drafters. And I would like to direct the Court's attention specifically to the advisory committee notes to the 1998 amendment to Rule 23(f), where they specifically stated the importance of the short window to deliberately keep the time as short as possible.

Justice Kagan: It just seems as though the -- the exception that you admit, which is the exception for filing a motion for reconsideration within the 14-day period, also effectively renders that 14-day period a nullity, right, because it stops it in its tracks and then, once the motion for reconsideration has been dealt with, as I understand the agreement between the parties, the -- the clock goes all the way back to the 1 beginning. So given that -- that what you -- the exception you admit renders the 14-day period a nullity, again, I just wonder why the exact same reasons, practices, traditions don't suggest that, for example, as in -- as -- as what -- the example you gave, if the motion for reconsideration is timely filed within 30 days, that as long as you do that, it should have the same effect.

John Hueston: Justice Kagan, there is no doubt that if the motion for reconsideration is filed, for instance, on the 14th day, there would then be a longer period of time. But we must presume that the advisory committee considered that. And as I have thought about the timing, the 14 days creates a shorter window at which then is hooked the potentially later motion for reconsideration period. If we apply Lambert's rule and extend that out to 30 days or potentially longer, and in the Central District no deadline at all, it truly renders the 14-day period a nullity in that instance. 1 Your Honors, I would like to direct your attention particularly to the Carlisle case. That case involved very similar language in former Criminal Rule 45(b). And in that instance, the trial court was faced in a situation where there was a motion for judgment of acquittal and the trial judge found legal innocence. And the judge granted additional time. The petition was filed just one day late. The trial judge found that it was appropriate to grant an extension for just a single day because a grave injustice would occur. And yet, faced with legal innocence and excusable neglect, this Court looked at the language of former federal Criminal Rule 45(b), which has virtually identical language to Appellate Rule 26(b), which is applicable in this case; namely, "The Court may not enlarge" -- sorry -- "The Court may not extend the time for the filing."

Justice Kavanaugh: On that -­

Justice Breyer: What happens if there's -- what happens if Hurricane Katrina comes along and no one can reach the 1 courthouse?

John Hueston: Your Honor, Hurricane Katrina -- so the answer is, Your Honor, the situation in Carlisle was far more grave than Hurricane Katrina. In that instance -­

Justice Breyer: In other words, if Hurricane Katrina comes along and all the courthouses are shut, nobody can get there, everybody loses their motion?

John Hueston: Your Honor, in this instance, when you have with Rule 26(f) the emphatic language without the harsh consequences at issue that you do in Carlisle and others, then, if the deadline cannot be abided by within the 14 days, then the opportunity to pursue the petition for permission for interlocutory appeal is lost. Now that may seem like a harsh consequence -­

Justice Ginsburg: Well, didn't the -­

Justice Breyer: I'm not saying harsh consequence.

Justice Ginsburg: -- same Justice say in Carlisle that it wasn't utterly exception-less, so it may be that Hurricane 1 Katrina would fall into that category?

John Hueston: Well, Your Honor, the language in the plurality opinion is that it was plain and unambiguous, and there was simply no room in the text for even legal innocence to justify a single day's delay.

Justice Alito: How would we -­

Justice Breyer: But your answer to Justice Ginsburg's question, I couldn't hear it. What was it -- but I think it was along the same line. What -- what -- what happens in all these things where that courthouse burns down, lightning strikes, Hurricane Katrina? You see the point?

John Hueston: Yes.

Justice Breyer: In your opinion, does everybody -- and, you know, there are dozens of motions pending. Some fall within these. Some don't. Anyone with a motion that falls within this language, bad luck, you lose. Is that what it is? Even though it isn't a jurisdictional rule, it's -- is that -- is that your position?

John Hueston: It is our position within this context of a mandatory claim 1 processing rule in the emphatic language that is present here, more so than even in the Carlisle and Robinson cases.

Chief Justice Roberts: Isn't there -­ I -- I may be misremembering this, but isn't there a provision that extends the filing period when the courthouse is closed?

John Hueston: Your Honor, there is an exception for accessibility of the courthouse that would apply in that situation.

Chief Justice Roberts: Now that doesn't help you with intervening periods, I gather that would not toll in that sense, but if the due date is a date on which the court is inaccessible or formally closed, that would get at least that relief?

John Hueston: Yes, Your Honor. And the key point here, I believe, is that it is properly within the province of the rule drafters to consider when and in what circumstances the court should have discretion. And here, at both Rule 26(b), and then, to distinguish this as an even stronger example of emphatic language, in Rule 2 in both --

Justice Gorsuch: Well, before we leave -- before we leave 26(b), there is a bit of a complication, right? It says that we can extend time or permit an act to be done after the time expires. And then what it -- after having given that authority to the court, it then takes away the authority to extend the time to file. It doesn't take away both of those things and they're disjunctive. So what do we do about that?

John Hueston: Your Honor, that very issue was addressed in the Robinson case, and that is, with that other issue, can an act be allowed later, the Robinson case found that to allow an act or a filing later would effectively enlarge or extend the period of time, and so, therefore, that would be prohibited.

Justice Sotomayor: The problem with Carlisle and Robinson is that they were well before our explanation of there being a difference between jurisdiction and non-jurisdiction claim processing rules. And we were a little bit loose back then in terms 1 of our textual approach to things.

John Hueston: Yes, Your Honor.

Justice Sotomayor: Justice Gorsuch's question, though, is a fair one because it's the practice of the Supreme Court with respect to filing of amicus briefs that we don't grant extensions but we take late amicus. And so why can't we look at the exact words of 26(b) and say, no, you can't extend the time, but a court has, as it always has, equitable discretion to take something that's filed late because, assuming that the facts qualify as equitable, and that's open to question, I know, in this case, but assuming, why don't we read the provision as it states, a court can permit an act to be done after that time expires?

John Hueston: Justice Sotomayor, let me address -- there were several parts to your question. Let me try to address each in turn. Undoubtedly, and as this Court has stated repeatedly in recent decisions, that there was a sort of loose use of the term "jurisdictional." However, and, in fact, that loose use of the word "jurisdictional" was, in 1 fact, improperly used in the Robinson case. And that has been pointed out. But the Court in more recent decisions, particularly the Kontrick decision and the Eberhart decision, specifically cites Robinson as still good law, acknowledging, though, the term "jurisdictional" was misused, that, in fact, Robinson stands for, as Eberhart said, observing clear limits of the rules. So going back to the second part of your question, the Robinson case specifically addressed the issue that, well, if the Court has not addressed that second portion, an act that could be allowed, if we allowed a late filing, that would, in fact, eviscerate the first proscription and render, in fact, that portion of Rule 26(b) a nullity.

Justice Gorsuch: So what work does that language then do to permit an act to be done after the deadline?

John Hueston: And I -­

Justice Gorsuch: Why doesn't your interpretation itself render that language a nullity?

John Hueston: And, Justice Gorsuch, 1 I've been giving thought to that.

Justice Gorsuch: I had hoped you might. (Laughter.)

John Hueston: Thank you.

Justice Gorsuch: So have I. (Laughter.)

John Hueston: And, Your Honor, I believe what that may open the door to are other acts that do not effectively enlarge or extend the period of time. So there could be other categories of actions that the Court might consider and allow.

Justice Gorsuch: Give me an example, though, because 26(b) is entitled extension, extending time. So I would have thought that it would have had to do something about time. And I'm just struggling to come up with an example of what work that language does under your interpretation.

John Hueston: Your Honor, it might, for instance, countenance some other related proceeding or action, other than an extension of time on the actual motion for petition for permission to appeal that would be filed. That 1 might be an instance where that would apply. But I -­

Justice Sotomayor: I'm sorry, you'll need to explain that to me because I'm not following you.

John Hueston: Your Honor, I think the language in 26(b) as construed by Robinson in this instance would preclude an enlargement of the time to file. But what another act that might be allowed could be an act that relates to another motion that might be filed in the proceeding or something collateral but not the actual motion itself. If, in fact, we read it to include the motion itself, the Court, and, of court -­ course, the Court can revisit the thinking in Robinson, the Court would be moving right into the facts of Robinson and writing out the prescription on the extension of time.

Justice Sotomayor: The problem is that we really wouldn't -- yes, you're right, we would be revisiting Robinson, but we would be saying that the words of a statute have meaning, and Robinson read out of that permission the equitable considerations that 1 the very statute permitted.

John Hueston: Your Honor, this case is actually a stronger case with more emphatic language considered collectively than Robinson and Carlisle because we not only have the equivalent of Rule 45(b) and 26(b), we also have Appellate Rule 2, where there is, of course, the notion of equity and suspending the rules. And the drafters specifically accepted the application of 26-2.

Justice Sotomayor: That's a -- that's a circle with no out because 2 refers to 26(b), and if we read 26(b) the way I suggest, that already builds in the equitable exception. But, in terms of the purpose of the rule, we have previously said that 26(b) gives -- 26(f) gives the court, the trial court, almost unfettered discretion whether to grant the motion to appeal. And if that's the case, wouldn't the natural reading of this be that the court should have unfettered discretion to decide if a late filing makes it think that the issue is more important than it might otherwise have thought?

Justice Ginsburg: It's the discretion 1 of the court of appeals, not the district court.

Justice Sotomayor: Yes.

Justice Ginsburg: To give permission to appeal.

John Hueston: Justice Sotomayor, to answer your question, the court of appeals has discretion to accept a timely petition but does not have the discretion to accept an untimely petition because the rule-makers specifically removed that discretion in the language of 26(b) and 2, and there's one other rule that's applicable, and that is Appellate Rule 5(a)(2), which further reinforces that a petition must be filed within 14 days.

Justice Ginsburg: And Rule 26(b), it says generally the court may grant an extension of time. But there's a category of cases in which it can't, and that is for permission to appeal, the time to appeal or the time to seek permission to appeal.

John Hueston: Yes. Yes, Justice Ginsburg, but that supports our point.

Justice Ginsburg: Yes, it does.

John Hueston: Because, in that 1 instance, we can clearly see the intent of the rule-makers in providing for a broad range of equitable discretion and then withdrawing it in the particular instance of 26(b).

Justice Breyer: What do you think in -- I think it was Justice Ginsburg's concurrence in Carlisle, where she said that the Court had recognized one "sharply honed equitable exception" -- it doesn't have the word "equitable," but it means it -- "to mandatory claim processing rules." The unique circumstances exception.

John Hueston: Your Honor -­

Justice Breyer: Is that -- do you agree with that?

John Hueston: -- I agree that Justice Ginsburg filed a concurring opinion and described -­ (Laughter.)

John Hueston: -- the unique circumstances doctrine as, indeed, a sharply honed exception that covers cases in which the trial judge misled a party who could have and probably would have taken timely action had the trial judge conveyed correct, rather than 1 incorrect, information.

Justice Ginsburg: I believe the example was the trial judge, you have until X date to file, and the litigant filed on X date, but, in fact, the judge was wrong and it should have been an earlier date.

John Hueston: That's right. When there is a specific assurance by the trial judge and a mistaken one that the party reasonably relies on to its detriment, factually, that simply does not apply here, and this Court need not reach the applicability of the unique circumstances doctrine.

Justice Breyer: But that's -- that's different. I mean, if you -- you agree -- I take it you agree that there is one sharply honed exception, whatever that might be, called unique circumstances. You know, I can -- I can make up weird examples, probably you can too, but -- but is there such an exception? I take it your answer is yes or no? Is it yes or no?

John Hueston: Your Honor, there has -­ yes.

Justice Breyer: Yes? Okay.

John Hueston: There has been an 1 exception generally in several cases that has been described, the unique circumstances doctrine. However, we have not been presented squarely with the question of whether -- when you have mandatory claim processing rules with emphatic language, whether that might preclude even the unique circumstances.

Justice Breyer: Well, that's what I wonder, because I could see -- would you agree or not agree? Holding 1, this is not jurisdictional. Holding 2, it is very limited. Holding 3, there is a unique circumstances exception. Holding 4, this doesn't fall within it.

John Hueston: Yes, Your Honor, if -­ if I understand Holding 2, we are addressing not the facts here but claim processing rules that would be other than this sort of emphatic -­

Justice Breyer: I'm address -- I'm just saying in general -­

John Hueston: Yes.

Justice Breyer: -- with claim processing rules, there are equitable exceptions.

John Hueston: Yes, Your Honor.

Justice Breyer: At least for unique circumstances. And then this is not one. That's what you're about -- you could argue that or you could say never. And I'm not sure what you think is correct.

John Hueston: Your Honor, I am arguing in this case that the Court need not reach the application of the unique circumstances doctrine, and, factually, if we attempt to apply it, it does not apply here.

Justice Gorsuch: Well, are we slicing the baloney pretty thinly? I mean, what's unique, all right? A judge misinforming a party about the time remaining to appeal sounds pretty terrible. But I can imagine a lot more terrible things than that. Hurricanes, lightning, all of Justice Breyer's wonderful parade of horribles, all right? (Laughter.)

Justice Gorsuch: Why aren't those all unique circumstances too? Don't you really have to argue that Thompson's wrong and that, in fact, the rules here preclude any equitable 1 tolling, and unique circumstances is a species of equitable tolling? Doesn't that have to be your argument?

John Hueston: Your Honor, doctrinally, that is our argument, that when you have language as we do at issue here, emphatic and mandatory, it precludes the reading of all equitable exceptions.

Justice Kagan: Well, Mr. Hueston, you can't please everyone here. (Laughter.)

John Hueston: I'm trying my best, Your Honor.

Justice Kagan: I think you're going to have to choose between nothing, no time, never, and, sure, you can reserve some -- the possibility of an equitable exception in circumstances that are different from the ones here. So which is it?

John Hueston: Your Honor, again, we don't believe the Court needs to reach the application of the unique circumstances doctrine. And if that's the only one, the one sharply honed exception recognized to apply within the context of claim processing rules, 1 and it factually does not apply, then the decision below must be reversed. But, to answer your question, I do believe that the language here is sufficiently emphatic and clear that it does not admit to equitable exceptions.

Justice Alito: I mean, it's not clear that you face this binary choice. The problem with unique circumstances, a potential problem, is that every lawyer who is in trouble thinks that the circumstances of that lawyer's case are unique and every judge who wants to get to a particular result can characterize the facts of the case before the judge as unique. But maybe there's such a thing as the catastrophic exception or the apocalyptic exception. (Laughter.)

Justice Alito: So, if there's a Martian invasion, there would be an exception for that. But something short of that, you know, like the attorney is sick, wouldn't work.

John Hueston: That's right, Your Honor.

Justice Breyer: Well, it's rather hard to -- what is -- what is the answer to 1 what Justice Alito says? We have the answer, as the Chief Justice points out, where the courthouse is closed, but one can think of epidemics or fires in the north -- and, you know, that's exactly right -- and what -- what do we write about that? What, in your opinion, do we write? A forest fire keeps the lawyer from the courthouse, which is open. What -­ what do we write?

John Hueston: All right. So, in that instance, within the context of this case, Rule 23(f), the court, in fact, would not be allowed to admit an equitable exception in that circumstance. That appears harsh, but it is not, and the drafters, I submit, had this in mind. A Rule 23(f) petition for permission to seek interlocutory appeal, if that cannot proceed, they have their full right of appeal at the end of the case. No catastrophic or harsh consequence ensues. And so -­

Justice Kavanaugh: Well, that's going to be too late in the real world of how the litigation transpires, though, you would admit? Too -- too late as a practical matter.

John Hueston: Well, in the -- Justice Kavanaugh, in the context of class action cases, typically -- and, of course, the rules allow this -- you can continue to challenge the class certification or decertification order. So, practically, there is no catastrophic lost ability. And having that fully retained appellate right puts the Petitioner in a far better circumstance than the party in Carlisle, who was faced with a plain error review on appeal, or a habeas route, one of the most difficult pathways in the law.

Justice Ginsburg: Would it be fair to say that your position is not necessarily never but not more than hardly ever? (Laughter.)

John Hueston: Repeat the question, Your Honor. More than hardly? I missed the last -­

Justice Ginsburg: Yes. In other words, we can say never, and that's one answer; another is equitable discretion without any tight boundaries, and another is what -- what my opinion in Carlisle -- Carlisle referred to 1 as sharply honed, not utterly exception-less. So it's not never, but hardly ever.

John Hueston: That could be the pathway, obviously, the Court does take. And one sharply honed exception, as Your Honor described in your concurrence, was the hardly ever one exception that the Court was describing.

Justice Kavanaugh: What -- what -­

John Hueston: Here, it factually does not apply.

Justice Kavanaugh: Picking up on Justice Kagan's question at the beginning, is the exception for a motion for reconsideration that's filed within 14 days, is that equitable, or what is that exception?

John Hueston: No, it is not an equitable exception, Your Honor.

Justice Kavanaugh: Well, it's not written in the rules.

John Hueston: It is based -- according to U.S. v. Dieter, it is not written in the rules, but it is instead based on -­

Justice Kavanaugh: If it's not written in the rules, doesn't it have to be 1 characterized as equitable? I'm still not understanding where that comes from, and -- and I'm also not understanding what sense that makes, really, because, if you filed a timely motion for reconsideration, you have filed a timely motion for reconsideration. It shouldn't be circumscribed based on some other rule that has nothing to do with motions for reconsideration. What's wrong with that thinking?

John Hueston: What's -- what's wrong with that, Your Honor, is that it departs, and the Court can revisit, the teaching of Healy that, to keep the appellate right alive, the motion for reconsideration has to be filed within the applicable time, in this case 14 days, and that has been the rule that has applied here. And motions for reconsideration have not been described as equitable exceptions. And, again, the point I made earlier that they have been applied to delay in the context of the application of jurisdictional rules shows that they are not regarded by this Court historically as equitable in nature. 1 Mr. Chief Justice, if I could reserve the remaining time for rebuttal.

Chief Justice Roberts: Thank you, counsel. Mr. Herstoff. ORAL ARGUMENT OF JONATHAN A. HERSTOFF ON BEHALF OF THE RESPONDENT

Jonathan A. Herstoff: Mr. Chief Justice, and may it please the Court: For three main reasons, the court of appeals properly decided to consider this appeal on the merits. First, the appeal was timely within the plain language of the federal rules. Second, the court of appeals properly determined that Rule 23(f) is subject to equitable tolling. And, third, the appeal was properly considered based upon this Court's decisions in Harris Truck Lines and Thompson. And I'd like to start with timeliness under the federal rules. Rule 59(e) provides that a motion to alter or amend the judgment may be filed within 28 days.

Justice Ginsburg: Rule 59(e) deals with final judgment at the end of the case, the final judgment on the merits. It doesn't deal with interlocutory rulings. You can't turn every ruling in the case into a judgment covered by Rule 59. 59 is at the end of the case, the final judgment.

Jonathan A. Herstoff: I submit that the -­ the language of Rule 59(e) refers to judgments, which are defined as orders from which an appeal lies under Rule -­

Justice Ginsburg: Yes, but -- but those words, an order from which the appeal -­ an appeal lies, means an appeal as of right. And the one thing I think we can all agree on here is permission to appeal the grant or denial of class action is not an appeal of right.

Jonathan A. Herstoff: And I agree with that. It is a permissive appeal. But once the court of appeals grants permission to appeal, the appeal does lie from that certification order. But even if the Court finds that the -­

Justice Kavanaugh: You read -- just to clarify, you read -- you read Rule 54 to 1 apply to appeals not just as of right?

Jonathan A. Herstoff: That's right, Justice Kavanaugh, I do. And in the yellow brief, the Petitioner said that an appeal does not lie because it is not an appeal as of right, but Black's Law Dictionary defines "lie" as to exist or to reside. And once the -­

Justice Ginsburg: But in the context of 59(a) -- 54(a), it is an appeal of right. If you segment out one party and a judgment is finalized to that party or a particular claim, the judgment can be made final as to that claim even though other claims are pending. I thought that's what 54 deals with.

Jonathan A. Herstoff: Well, Rule 54(b) does permit a district court to enter final judgment with respect to certain claims. And for -- and for that, that is a final judgment as of right once the district court certifies that for -­ for appeal. But even if this were not a Rule 59 motion, the -- this appeal still was timely for several reasons.

Justice Kavanaugh: Can I just ask on the Rule 59 question, again, suppose a local 1 rule gave you 45 days for a motion for reconsideration, but Rule 59 has the 28-day. What's your position on that?

Jonathan A. Herstoff: If -- if Rule 59 were determined to apply here, then that would not work because Rule 59 has a non-extendable 28-day period. If it is not a Rule 59 motion, though, I think in -- in your example there would be a local rule that gives -- I think you said 45 days, that would be a timely reconsideration motion.

Justice Alito: Why would that be -­ why would that even be permitted?

Jonathan A. Herstoff: Why -- why would it be permitted to -­

Justice Alito: Yeah. Why would that -- why would the filing of a motion for reconsideration, which is nowhere mentioned in the Rules of Civil Procedure, toll the time for filing an appeal?

Jonathan A. Herstoff: Because, there, this Court has long held that a timely reconsideration motion will suspend the time to appeal. 1 And in the Dieter, Healy, and Ibarra line of cases, those dealt with the criminal rules, where there is no specific provision for reconsideration motions.

Justice Alito: Well, it might be that -- that filing it within the period allowed under the particular rule at issue here would toll the time to appeal, but I don't see where anything -- I'm not sure the basis for the idea that filing a motion -- forget about Rule 23 for the moment -- filing a motion for reconsideration, so-called, tolls the time to appeal. As I said, there's no mention of that in the Rules of Civil Procedure. And the Rules of Appellate Procedure set out quite clearly the particular motions that toll the time for filing a notice of appeal, and there's no mention there of a motion for reconsideration. There's a motion -- it mentions the motion to alter or amend the judgment.

Jonathan A. Herstoff: Well, I think the -­ this Court's decision in Ibarra explains this well. And the Court explained that the reason that reconsideration motions toll the time to 1 appeal is to give the district court an opportunity to correct their own alleged errors and to prevent unnecessary burdens from being placed on the court of appeals. I think that's -- that's shown here, where you have a record on the class certification. The district court is familiar with the record. The district court here specifically said only 10 days after the decertification order that it was going to entertain reconsideration briefing. And during that time, the court agreed to suspend summary judgment proceedings, other pretrial proceedings, and trial. So this was a considerable pause in the proceedings so that the district court would have a chance to reconsider before the case went up on appeal. And that -- I think that makes a lot of sense. And I think the courts should not be discouraged from reconsidering before it goes up to the court of appeals.

Justice Ginsburg: But there's nothing inconsistent with the 14-day limit of seeking permission to appeal and making a motion to reconsider. You could do both.

Jonathan A. Herstoff: It's true that you could do both, but then you'd have the district court and the court of appeals considering the exact same order at the same time. And this Court has long held that the district courts and the courts of appeals should not be -­

Justice Ginsburg: Well, the court of appeals says we'll wait -- we'll wait on the district court's decision on the motion for reconsideration.

Jonathan A. Herstoff: The court of appeals would have the discretion to stay their proceedings, just like district courts have discretion to stay their proceedings. But -- but, still, you'd have the same on the order that's up at both the court of appeals and at the district court. And I think it makes more sense to say that when the reconsideration motion is pending at the district court, there should be no need to file a petition for permission to appeal.

Justice Kagan: What -- what did you understand the district court to be saying when it set the motion for reconsideration? What -­ what was -- what were the -- what's the -- what 1 did it tell you about timing deadlines?

Jonathan A. Herstoff: Well, the district court said -­

Justice Kagan: And what did you infer from what it said?

Jonathan A. Herstoff: So I -- I infer from that that the district court was, indeed, going to reconsider this decertification order and, indeed, they suspended, the district court suspended further proceedings. So the case was effectively stayed while this was -­

Justice Kagan: The district court, though, didn't say anything about a time for appeal, is that correct?

Jonathan A. Herstoff: That is true, they did not specifically say that.

Justice Kagan: And why doesn't that matter?

Jonathan A. Herstoff: Okay. It doesn't matter in the -- in the same -- in the same way that, in Thompson, there was no mention of anything about an appeal. The district court said that the post-trial motion was filed in ample time, and this Court held that that representation meant that the appeal was 1 required to be considered on the merits, even though a post-trial motion was not filed in ample time. I don't think that the fact that the district court did not specifically mention appeal really makes a difference here, especially -­

Justice Gorsuch: Well, but in -- in Thompson, we -­

Chief Justice Roberts: What -­

Justice Gorsuch: I'm sorry, please.

Chief Justice Roberts: What did you understand us to be saying when we described these types of provisions as mandatory claims processing rules?

Jonathan A. Herstoff: I think, in general, it -- it is strict. It -- it is, however, subject to forfeiture and waiver. And the Court has held open several times whether it's subject to equitable exceptions and -­

Justice Ginsburg: But in the cases -­

Chief Justice Roberts: But we were -­ I'm sorry.

Justice Ginsburg: In the cases that said mandatory, Kontrick, Eberhart, it said 1 strictly applied, but the party who would benefit from the rule can waive the rule or forfeit it, but -- but both cases said, if it's properly raised, as it was here, then it applies.

Jonathan A. Herstoff: That's true. But Kontrick also left open the possibility that these rules could be softened on equitable grounds, I think was the language that was used in Kontrick. And it makes sense. And this -­ I'm sorry.

Chief Justice Roberts: I'm just trying to figure out. I mean, when we did sort of tighten up the use -- loose use of the term "jurisdiction," we -- we said that these are, nonetheless, mandatory. And for some of us at least, that made sense. But if it -- if the alternative to a stricter application of the jurisdictional term was that equitable claims are going to be available across the board, I for one would want to reconsider our loosening of the use of "jurisdiction" because there ought to be some area, I thought, where the claims -- where the claim procedures were -- were mandatory in the 1 sense that Justice Ginsburg has just talked about.

Jonathan A. Herstoff: So I -- I -- I don't think the claim processing rules are necessarily subject to any equitable exception. It's not necessarily subject to good cause exceptions or excusable neglect like -- like most softer deadlines would be. Equitable tolling is different, though. Equitable tolling has been a part of American jurisprudence since the beginning and even in England prior to that.

Chief Justice Roberts: Well, yes, at a time where "jurisdiction" meant what we used to think it meant. In other words, yes, there was equitable tolling but not across the board, and the areas in which it did not apply were much more expansive than they are now today.

Jonathan A. Herstoff: I think, back then when equitable tolling did not apply, that those were in circumstances, from my understanding, where the time limit is what the Court today would refer to as jurisdictional. Now, here, we have a non-jurisdictional provision.

Justice Gorsuch: Is -- is the upshot 1 of your argument, though, counsel, that so long as it's a non-jurisdictional rule, equitable tolling must always apply? Congress couldn't authorize a truly mandatory statutory deadline?

Jonathan A. Herstoff: No, that is not our position. We do not go that far.

Justice Gorsuch: Okay. So if -- if there is room for what the Chief Justice suggests remains, why isn't this the paradigm case? I mean, how -- how clear could Congress through the rule-making committee have been? In multiple places, in multiple ways making clear through language like "must" and expressly excluding times for appeal, I mean, gosh, if this isn't good enough, what is?

Jonathan A. Herstoff: Well, I think that -­ that as Your Honor referred to with my -- with my co-counsel, Rule 26(b) specifically draws a distinction between extending the time, on the one hand, and, on the other hand, permitting a late filing. And here, if anything -­

Justice Gorsuch: Well, we have Robinson that takes care of that problem, he says, so we have precedent there. So, again, how -- how much clearer could the rules have 1 been but for maybe that one example, the precedent plugs that hole?

Jonathan A. Herstoff: Well, I think the -­ the rules committee actually was a lot clearer in another example where I think the rule would not be subject to equitable exceptions, and that's in Appellate Rule 4(a)(4), specifically the 2016 amendment to 4(a)(4). There, the Court changed the rule to make clear that only a timely Rule 50 or Rule 59 motion, and it's not an untimely Rule 50 or Rule 59 motion, would suspend the time to appeal regardless of what the district court -­

Justice Breyer: Well, what do you think as a standard we should use? That is to say, if it's a jurisdictional rule, I guess that's pretty unwaivable and nothing. If it's a non-jurisdictional rule, then equitable grounds, but, certainly, Congress can stop that, or the rules committee. And the way it stopped it was it said, normally, you can extend the time for good cause. Now that's quite broad. But there's an exception for our case, which says you can't extend it for good cause. So here we have for 1 good cause, here we have zero, and I thought perhaps that Justice Ginsburg proposed a narrow exception that would, in fact, make it not for good cause but not zero. And that's the unique circumstances sharply honed, which I guess covers Justice Alito's Mars attack -­ (Laughter.)

Justice Breyer: -- and various others that are unusual but cry out, okay? Now what about that? I'm not advocating it. I want to know your opinion.

Jonathan A. Herstoff: I -- I agree completely, Justice Breyer, with -- with what you're saying. It is true that a good cause extension is not permitted for petitions for permission to appeal. Rule 26 does not say anything about equitable tolling. Equitable tolling requires much more than simple good cause.

Justice Breyer: If, in fact, we are at sharply honed, special, unique circumstances, how do you win this case? Because what seemed to happen here is it was -­ I don't know if it was you, but whatever lawyer went in for your side, within the 14 days, did 1 not even ask the judge to extend the time, at least not in writing. And so it's pretty hard to say you are, from an equitable point of view, in a unique circumstance.

Jonathan A. Herstoff: Well, I do think that the -- the Thompson rule applies here, because 10 days after the decertification order, the district court held a status conference during -- during which we asked for permission to file a motion for reconsideration in writing. And at that time -­

Justice Sotomayor: Counsel, on what ground would we overrule the circuit's rejection of that argument? You raised it below. It explicitly didn't rule on that basis. It held that you had filed the motion after the 14 days. What ground do we have to disagree with the circuit court on that?

Jonathan A. Herstoff: Well, you're talking about with the Ninth Circuit saying -- saying that unless an exception applies, the petition would be barred?

Justice Sotomayor: Exactly.

Jonathan A. Herstoff: So the -- when the Ninth Circuit said that, it included within 1 that language a reconsideration motion that's filed within the 14 days. So what the court of appeals said was that the decertification order was made on February 20. There was no Rule 23(f) petition filed within that 14-day period. And, therefore, unless an exception applies, it would be untimely. So the court was saying, even if a motion for reconsideration was filed within the 14-day period, it would be untimely. So they considered that an exception as well. So -­

Chief Justice Roberts: The -- the unique -- we've talked about unique circumstances. Unique is defined as the only one. There have been many hurricanes, there have been many fires, there hasn't been a Martian invasion yet, but what do you think it is? Unique is not unusual, right? So, if you're going to create an exception for unique circumstances, it can't mean the situation where judges misadvise litigants about how much time they have. That doesn't happen all the time, but we've certainly seen more than one case of that. So, if you're going to say unique 1 circumstances, what exactly does it mean, if it doesn't mean what the dictionary says?

Jonathan A. Herstoff: Well, I think it -- it is a unique circumstance where the district court misadvises the party on how much time -­

Chief Justice Roberts: I mean, I've seen dozens of cases where that has happened. In some, if it's an equitable tolling situation, it's typical that equitable tolling is appropriate, although not always. So that's not unique. Now, if you're going to say it's an unusual circumstance, then I think you've opened the barn door. If you're going to say it's a circumstance where the judge is the main villain in the missing of the deadline, well, then that's something else, and maybe that's better or -- or worse than unusual. But it just seems to me that if you're -- you're using "unique" -- perhaps the Court has used "unique" as kind of a wiggle word that shouldn't have any wiggle in it.

Jonathan A. Herstoff: Well, I think that applying this doctrine is consistent with the federal rules, though, for instance, on Rule 1, 1 and the rules are derived from the old equity rules, so it makes sense that there is some flexibility there when a district court misinforms litigants about the time that they have to file, especially in the context of a non-jurisdictional rule like we have -­

Chief Justice Roberts: Well, then I think you do have to say the exception is when the district court misadvises the litigants, rather than saying "unique" but not really meaning unique, because then you get in a situation that Justice Alito was talking about. Most lawyers consider their case unique when they run into something like this, and the judges gives them a lot more flexibility than perhaps the rules committee wanted as well.

Jonathan A. Herstoff: I agree. I mean, I think this term "unique circumstances doctrine" does refer specifically to the district court misinforming it -­

Justice Kagan: Yeah, Mr. Herstoff, I don't think this is your fault, right? This is the court's fault in -- in putting a bad label on something that it actually meant when it meant -- meant something else. But my 1 understanding of what the court has meant when it's done this is not the attack from Mars or Hurricane Katrina. My understanding is that it was meant to label a category of cases where the court had misled the party into doing something, into missing some kind of deadline. Is that your understanding?

Jonathan A. Herstoff: Yes, I agree, Justice Kagan.

Justice Kagan: So -- but -- but I don't see where that is here.

Jonathan A. Herstoff: Where that is? Well, the district court paused the proceedings and specifically said that you -- that a reconsideration motion could be filed by March 12, 2015.

Justice Kagan: Yes. So he said a reconsideration motion could be filed. He was right about that. A reconsideration motion could have been filed. What he didn't say anything about was -- was -- was what that meant for your appeal right.

Jonathan A. Herstoff: That's true. But I 1 think there is a basic understanding that when a reconsideration motion is pending, a party does not need to seek appellate review on top of that. I mean, that's really what happened in Thompson. The district court did not say anything about an appeal. It simply said that the motion was filed in ample time. And the Court held that that was -- that was sufficiently misleading such that the appeal was required to be considered on the merits, even though -­

Justice Ginsburg: Has this Court cast any doubt on Thompson?

Jonathan A. Herstoff: In the -- in the context of jurisdictional rules, yes, the Court overruled Thompson for jurisdictional deadlines and this Court's decision in Bowles but left it intact for non-jurisdictional rules. And I think with good reason, because non-jurisdictional rules, I think, presumably should be subject to or at least presumptively subject to equitable considerations, such as tolling, such as the -- what the Court has referred to as the unique circumstances 1 doctrine, which I think is a subspecies of tolling or estoppel.

Justice Gorsuch: Well -­

Justice Ginsburg: I thought mandatory -- the Court has said in -- in the Kontrick line of cases mandatory means inflexible?

Jonathan A. Herstoff: And that, I mean, generally is inflexible. I mean, we're not advocating for a good cause standard here. There has to be something more than that. I think that a district court misleading a party is more than simple excusable neglect or good cause. Equitable tolling is as well. I mean, in this Court's decision in Irwin, the Court said that statutes of limitations are presumptively entitled to equitable tolling and then went on to hold that in the facts of that case, equitable tolling was not established because the party -­

Justice Gorsuch: Counsel -­

Jonathan A. Herstoff: -- had established at most a garden variety claim of excusable neglect, so I think tolling is on a different level.

Justice Gorsuch: -- I -- I think -- I 1 think you have two possible lines of response to Justice Ginsburg's question, and I'm curious which you choose. So, if Thompson doesn't apply to jurisdictional statutes, one could say it does apply to mandatory but inflexible claims processing rules because it's not a species of equitable tolling at all; it is, in fact, a rule of judicial administration that, when it's our fault, shame on us. Or one could say, yeah, let's be honest, it's a form of equitable tolling and, therefore, shouldn't apply, just as it doesn't to jurisdictional rules, it shouldn't apply to mandatory claims processing rules, but should remain a viable option otherwise. And that would harmonize Bowles with this line of cases. Which of those choices should we make and why?

Jonathan A. Herstoff: I do think that -- that these rules presumably should be subject to equitable tolling and not necessarily just for the district court misleading the parties. However, either way, the judgment should be affirmed because here, in fact, the -- the 1 court did mislead Mr. Lambert into thinking that he had -­

Justice Ginsburg: How? The court didn't say one word about permission to appeal.

Jonathan A. Herstoff: The court didn't, but I think this is just like Thompson, where the -­ where the court said you had this amount of time to seek reconsideration.

Justice Kavanaugh: Don't the local rules of many courts then miss -- also mislead counsel because the local rules of many courts would have motions for reconsideration that could be filed within periods longer than 14 days?

Jonathan A. Herstoff: Well, then I think that -­

Justice Kavanaugh: Under your position, all the district court did here was identify a date that was longer than 14 days. The local rule for motions for reconsideration, the local rules of many courts similarly identify a date that's longer than 14 days for motions for reconsideration.

Jonathan A. Herstoff: Well, I think on that --

Justice Kavanaugh: How would you distinguish what happened here from a local rule that's longer than 14 days?

Jonathan A. Herstoff: Well, I think here the district court did set this -- this specific deadline. And I think it does -­

Justice Kavanaugh: How would you distinguish a local rule that has a date longer than 14 days, a period longer than 14 days in which you can file a motion for reconsideration?

Jonathan A. Herstoff: Well, I do think that -- that really Rule 59 comes into play here, which says 28 days, but I think it is very unreasonable to interpret Rule 59 to apply here, but even if the Court concludes that it does not, it's at least a reasonable interpretation to say -­

Justice Kavanaugh: And the Rule 59 argument, just to reiterate, depends on your Rule 54 interpretation, correct?

Jonathan A. Herstoff: That's right, yes. So I -- I do think that at -- at the very least, if a local rule gives up to a 28-day period to seek reconsideration.

Justice Kavanaugh: You could have the same confusion of a local rule that gives longer than 28 days, for example, the local rule here for motion for reconsideration, but then you're not within the 28 days of Rule 59, right?

Jonathan A. Herstoff: I think that's true. The Court has not really had occasion to address the precise contours of when a motion for reconsideration is going to suspend the time to appeal. The Court's cases that have decided that have been in the context where the reconsideration motion was filed within the time to appeal. So it hasn't had occasion to consider it when the -- when it's been filed outside, say, this 14-day time period. So that clarification is important here to -- to consider that.

Justice Kavanaugh: What do you do with a local rule that has no time limit, as the one here in a motion for reconsideration, a motion is filed a year later or something like that?

Jonathan A. Herstoff: I think, under those circumstances, it becomes a question of 1 reasonableness. Now if upon -- if the litigation goes on and a year later you're asking the court to reconsider its decision based upon the exact same evidence that was before the court a year earlier, I think that, as an initial matter, the Rule 23(f) petition is very unlikely to be granted because the court of appeals is going to see that as causing an unreasonable delay. And as was discussed earlier in this argument, the courts of appeals have absolute discretion whether to consider this appeal or not.

Chief Justice Roberts: You know, sometimes in these unique circumstances situation, if you're focusing on judicial conduct, what we find when we look into it, it's a lot more ambiguous than you may think. And I do think we have to be careful about what we're requiring of the district court judges. If somebody stands up in the situation like this and says, Your Honor, I'd like to file a motion to reconsider next week, is that okay? The judge says, sure, fine with me. I don't think he should have to stop and 1 say, well, let me research it and see if the time is expired by then. And then, if he says, well, if you're going to file it next week, file it on Friday. And it turns out Thursday's the deadline. I mean, the judge has misled you, the lawyer would say, because he said I could file it on Friday. It turns out the rule says I couldn't. So I'm not -- I'm not as comfortable with an exception for cases where the court misleads the parties because I'm not sure that's as clear a case as you might think of where the blame is justifiably placed on the judge.

Jonathan A. Herstoff: Again, I'm not even sure I'm calling it blame. I think it's just the -- the parties' reasonable expectations when a court -- when a district court has said that they're going to reconsider.

Justice Kavanaugh: There's nothing misleading about that, I guess is the point here, because the local rule had no time, correct, for a motion for reconsideration? The district court set a time for a motion for reconsideration. There's nothing misleading at 1 all about that.

Jonathan A. Herstoff: Well, then -- well, what's the -­

Justice Kavanaugh: What's misleading, I guess, is, in context, when you roll in Rule 23(f), which the district court said nothing about, correct?

Jonathan A. Herstoff: The district court did not say anything -­

Justice Kavanaugh: I mean, I just don't think it's fair to say the district court misled here. I don't even think it falls into that box necessarily.

Justice Sotomayor: The leave to file a motion -- the motion for leave to file an appeal, you didn't tell the judge you were intending to do that, did you?

Jonathan A. Herstoff: The Rule 23(f) was not brought up at the status conference, that's true.

Justice Sotomayor: So how was the judge supposed to play lawyer? He's supposed to tell you -- you ask him, let me file a motion for reconsideration, he's supposed to protect you and be your lawyer and tell you, 1 you know, if you file it next week, you're going to lose your time to appeal? I don't know of any case we've ever held where a judge has to tell you something when you don't ask the judge about that.

Jonathan A. Herstoff: And it's really not our position that we're placing any kind of blame on the district judge. It is our position, though, that when a district court says that it's going to reconsider an order, that that essentially renders the order non-final for purposes of appeal. And why would one file a petition for permission to appeal when the district court said we're going to take another look at this order and perhaps change it.

Justice Ginsburg: It is -­

Justice Kagan: But can -­

Justice Ginsburg: -- it is a non-final order. This motion granting or denying class action status is the -- the most non-final because the rules tell us it can be changed any time up to the entry of final judgment.

Jonathan A. Herstoff: And let -- let me 1 clarify. When I say it's non-final, I mean it renders it not the district court's last word on decertification based upon the evidence in front of the district court. The district court is going to reconsider this order, and it's our position that, under those circumstances, it doesn't make sense to seek appellate review when the order might be changing based upon the pendency of that reconsideration motion more fully.

Justice Kagan: You know, I suppose I'm with you that it makes more sense to do the motion for reconsideration before the appeal and that that is true even when the appeal is interlocutory, but, you know, not every rule we have makes perfect sense. And it just doesn't seem as though you're off the hook from actually looking up the rules and saying, well, look, this says 14 days. I better file this appeal within 14 days, or at least ask some further questions about it, just because it sort of seems to make sense to do a motion for reconsideration before an appeal.

Jonathan A. Herstoff: Well, the rules 1 actually do not specifically address reconsideration motions, and it has been long understood that a timely reconsideration motion will suspend the time to appeal. Now I think it would be a different situation if, for instance, we were in a bankruptcy appeal, which specifically says that the time to appeal stops running only if you file within 14 days under the bankruptcy rules, and there -- there it was clear. And here you have rules that are silent with respect to reconsideration motions. So I think we go by the Healy, Dieter, Ibarra line of cases, which say a timely reconsideration motion suspends the time to appeal. And, here, the reconsideration motion was, indeed, timely. And for that reason, the time to appeal should be suspended and therefore runs from June 24, 2015. The -- the Rule 23(f) petition was filed 14 days later, and the appeal, therefore, was improperly deemed timely.

Justice Sotomayor: If we reject that, do you lose?

Jonathan A. Herstoff: If you reject -­

Justice Sotomayor: That you -- that you didn't file a motion within the time, within the 14 days?

Jonathan A. Herstoff: May I -- may I answer the question?

Chief Justice Roberts: Sure.

Jonathan A. Herstoff: No, because we still have equitable tolling and the Harris Truck Lines and Thompson line of cases, so in either circumstance the judgment should be affirmed. Thank you.

Chief Justice Roberts: Thank you, counsel. Mr. Hueston, you have a minute left. REBUTTAL ARGUMENT OF JOHN HUESTON ON BEHALF OF THE PETITIONER

John Hueston: Your Honor, in this remaining minute, let me emphasize and direct the Court's attention to PA 69 to 77, where the short status conference took place. And in that status conference, it is notable that not only did the court not mention Rule 23(f), not mention any sort of appellate right, but counsel did not even mention 23(f), nor even say the word appeal. 1 And, in fact, no mistake at all was made by the judge in that case. To have the rule that Lambert is urging today would have a judge effectively need to conduct a Rule 11 criminal colloquy with counsel, asking if they're aware of all sorts of potential related rights. That is asking an impossible task for a district court judge and an unfair one and goes well beyond the acknowledged sharply honed exception, which does not apply factually in this case. Thank you.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:12 a.m., the case was submitted.)