we'll hear argument first this morning case seventeen ten ninety four nutraceutical corp versus lambert mr houston mr chief justice and may it please the court in the proceedings below responde filed his rule twenty three f petition months late and nutraceutical timely objected although this court has held that mandatory claimed processing rules are an alterable 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 it is not a form of equitable tolling your honor instead as held by this court in us feeder 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 the statute thirty seven thirty one establishing the deadline in a criminal case and thus it was a jurisdictional case so the application of that rule in the context of a criminal case would jurisdictional rules in fact told those jurisdictional deadlines and so therefore pursuant to the court holdings and hammer and elsewhere that is not an equitable exception mr houston 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 first fourteen day window and other words supposed a motion for reconsideration was filed in a timely manner for such a motion but after the fourteen day period why wouldn't the same reasons apply because your honor if that reasoning applies 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 thirty day deadline if that thirty day deadline or impose in this case and one could file on the thirtieth day and begin tolling that would render the fourteen 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 nobody 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 knows the one thousand nine hundred eighty eight amendment to rule twenty three f where they specifically stated the importance of the short window to deliberately keep the time the shortest possible it just seems as were the the exception that you admit which is the exception for filing a motion for reconsideration within the fourteen day period also effectively renders that fourteen day period another day 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 that the clock goes all the way back to the beginning so given that what you the exception you admit renders the fourteen day period another day again i just wonder why the exact same reasons practices traditions don't suggest that for example as and as as what in the example you gave if the motion for  reconsideration is timely filed within thirty days that as long as you do that it should have the same effect justice kagan there is no doubt that if the motion for reconsideration is filed for instance on the fourteenth day there would then be a longer period of time but we must presume that the advisory committee consider that and as i have thought about the timing the fourteen days creates a shorter window at which then is hawked the potentially later motion for reconsideration period if we apply a lamberts rule and extend that out to thirty days or potentially longer and in the central district no deadline at all it truly honors i would like to direct your attention particularly to the carlisle case that case involved very similar language in former criminal rule forty five 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 forty five b which has virtually identical language to appellate rule twenty six  katrina comes alone no one can reach the gordo's your honor hurricane katrina so the answer is your honor the situation in carlisle was far more grave and hurricane katrina consequences that issue that you do in carlisle and others then if the deadline cannot be abided by within the fourteen days then the opportunity to pursue the petition for permission for it isn't a jurisdictional rule it is that is that your position it is our position within this context of a mandatory claim processing rule in the emphatic language that is present here more so than even in the carlisle robinson case where i may be misremembering this but isn't there a provision that extends the filing period when the courthouse is closed your honor there is an exception for accessibility of the court house that would apply in that situation now this doesn't help you with intervening periods i gather that we're not told in that sense but if the due date is a date in which the court is inaccessible or formally close that you get at least that relief 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 hear it both rule twenty six b and then to distinguish this as an even stronger example of an phatic language in rule you before we leave twenty six 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 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 your honor that very issue was addressed in the robinson case and that is with that other issue can an act to 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 prohibitive problem with carlyle and robinson is that they were well before our explanation of there being a difference between why can't we look at the exact words of twenty six 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 wildly because assuming that the facts qualify as equitable and that it's open to question i know in this case but assuming why don't we 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 jurisdiction however and in fact that loose use of the word jurisdictional was in fact improperly used in the robinson case and that has been pointed out but the court in more recent decisions particularly the contr decision and the ybor hard decision specifically cites robinson and as still good law acknowledging though the term jurisdictional was misused that in fact robinson stands for as you were hard 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 a lapped if we allowed a late filing that would in fact fee this rate the first proscription and render in fact that portion of rule twenty six be an old so what work does that language then do to permit an act to be done after the deadline why isn't your interpretation itself render that language discourse which i've been giving thought to that i had hoped you might thank you so have i and your honor i believe what that may open the door to our other acts that do not effectively and larger extend the period of time so there could be other categories of actions that the court might consider and allow give me an example because twenty six b is titled extension extending touch so i would have thought that it would have had to do something about it i'm destroying to come up with an example of what work that language your honor it might for instance count e some other related proceeding for action other than an extension of time on the actual motion for a petition for permission to appeal that would be filed that might be an instance where that would apply but i cannot follow your honor i think the language in twenty six b as construed by robinson in this instance would preclude enlargement of the time to file but what another act that might be allowed could be an act that relates to the now other 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 in a court course the court can revisit the thinking and robinson the court review moving right into the facts of robinson and writing out the prescription on the extension time the problem is that we really wouldn't guess 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 the very statute committed your honor in this case is actually a stronger case with more in phatic language considered collectively than robinson and carlisle because we not only have the equivalent of rule forty five been in twenty six b we also have a where there is of course the notion of equity and suspending the rules and the drafters specifically accepted the application of twenty six two that's a circle with no out because two refers to twenty six b and if we read twenty six b the way i suggest that already brill's in the equitable exception but in terms of the the purpose of the rule 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 x unfettered discretion work 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 maker specifically removed that discretion in the language of twenty six b and two and there's one other rule that supportable and that is appellate rule five eight two which further reinforces that the petition must be file within fourteen days again because in that 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 twenty six the unique circumstances doctrine as indeed a shark really 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 there that's right when there is a specific assurance by the trial judge in a mistaken one that the party reasonably relies on to its detriment factually that simply does not apply here and this court need been an exception she generally he and several cases that has been described as unique circumstances doctrine however we have not been presented squarely with the question of whether when you have mandatory claim processing rules within phatic language where that might preclude even the unique circumstance helped to it i wonder because i can see would you agree or not agree holding one this is not jurisdiction holding to it is very limited holding three there is a unique circumstances exception holding for this doesn't fall within  rules there are equitable exceptions yes or at least for unique circumstances and then this is not one that's what you're about and you could argue that or you could say never and i'm not sure what you think is correct your honor i am arguing in this case that the court need not reach the application of the need circumstances doctrine and factually if we attempt to apply it it does not apply here 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 just as briers and wonderful parade of horribles right why aren't those all unique circumstances too don't you really have to argue the thompsons role and in fact the rules here preclude any equable tolling and unique circumstances a species of equitable tolling does not have to be your argument your honor doctrinally that is our argument that when you have language as we do it at issue here in time never and surely you can reserve some the possibility of an equitable exception in circumstances that are different from the ones here so which is it 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 this one sharply one exception recognized to apply within the context of claim processing rules and it actually does not apply then the decision below must be reversed but to answer your question i do believe that the language here is sufficiently in phatic unclear that it does not that i mean it's not an option 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 lawyers case are unique and every judge who wants to get to a particular result can characterize the facts of the case before the judges you need but maybe there is such a thing as the catastrophic exception or the apocalyptic exception 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 that's right your honor it's rather hard to know what is the what is the  says we have the answer as the chief justice points out where the courthouse is close but one can think of epidemics or fires in the north and you know that's exactly right and what do we write about but what in your opinion do we write forest fire keeps the lawyer from the court house which is open what do we are so in that instance within the context of this case rule twenty three out of the court in fact would not be allowed to admit an equitable exception in that circumstance that appears harsh but it is not in the draft submit had this in mind it rule twenty three up 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 and s it's going to be too late in the real world of how the litigation transpires so you would admit to too late as a practical matter well in the justice kavanagh 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 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 what it was if actually does not apply picking up on justice kagan squash at the beginning is the exception for a motion for reconsideration that's filed within fourteen days equitable or what is that exception no it is not an equitable exception your honor what's not written in the rules it is based according to u s v d or it is not written in the rules but it's not written in a rules doesn't have to be characterized as equitable still not understanding where that comes from and and i'm also not understand 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 f right a lot of the motion for reconsideration has to be filed within the a political time in this case fourteen 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 th 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 twenty three f is subject to equitable tolling and third the appeal was properly considered based upon this court's decisions and harris struck lines and thompson and i'd like to start with timeliness under the federal rules will to judgments which are defined as orders from which an appeal lies on the answer but those were an order from which the appeal and appeal live means an appeal and so right and the permission to appeal the appeal does life from that certification order but i mean even if the court finds that the you read fifty four to apply  out one party and the action is finally to that party or a particular plane the judgment can be made final as to that plane even though other planes painting i thought that's what fifty forty five days for a motion for reconsideration would rule fifty nine as to twenty eight what's your position on that if i if rule fifty nine were determined to apply here then that would not work because well fifty nine has a non will twenty eight day period if it is not a rule fifty nine motion i think you know in your example there would be a local rule that gives things that forty five days that would be a timely reconsideration i would that be why would that even be permitted has long held that a timely reconsideration motion will suspend the sign at the time to appeal and did healey and you bar a line of cases those dealt with the criminal rules where there was no specific provision for reconsideration motions well it might be that filing it within the period allowed under the particular game at issue here would told time to appeal but i don't see where or anything i'm not sure of the basis for the idea that filing a motion forget about will twenty three for the moment following 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 told the time for filing a notice of appeal and there's no mention there of motions told the time to 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 and i think that that's shown here where you have  record on the class certification the district court is familiar with the records the district court here specifically said only ten days after the decertification order that it was going to entertain the 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 man 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  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 what did you understand the district court to about a time for appeal is that correct that that is true they did not specifically say that and why doesn't that matter think it doesn't matter there in the same in the same way that in thompson there was no med mention of anything about an appeal to 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 required to be considered on the merits even though post trial motion was not  jurisdiction 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 mean i'm 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 that were the cla procedures were were mandatory in the sense that justice ginsburg is just talked about so i don't think the claims processing rules are necessarily subject to i'm not to any equitable exception it's not necessarily subject to a good to that well yes at a time where jurisdiction meant what we used to think it meant another words yes there was a cruel tolling but not across the board and the areas in which it did not apply were much more expansive than they are now today and i think  don't counsel that so long as it's a non jurisdictional equitable toy must always apply congress couldn't authorize a truly mandatory statutory deadline and not know that it's not our position we don't we do not go that far so 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 maust and express the excluding times for appeal i mean gosh if this isn't good enough what is what think that there as your honor referred to them with my out with my co counsel rule twenty six 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 as well we have rob a lot clearer in another example where i think the rule would not be subject to a quibble exceptions and that's an appellate rule for a four specifically the twenty sixteen amendment to for a for their the court changed the rule to make clear that only a timely will fifty or rule rule fifty nine motion it's not an untimely will fifty or will fifty nine motion would suspend the time to appeal regardless of what the districts what what you think  grounds but certainly congress can stop or the rules committee in 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 we says you can't extend it for good cause so here we have for 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 a good cause but not zero and that the unique circumstances sharply honed which i guess covers justice alito as mars attack and various others that are unusual but cry out ok now what about but i'm not advocating it i wouldn't know your opinion i agree completely just prior with one that with what you're saying it is true that a good cause extension is not permitted for petitions for permission to appeal rule twenty six does not say anything about equitable tolling equitable tolling requires much more than a simple good cost if in fact we aren't sharply honed special unique circumstances how do you win this case because what seem to happen here is it was i don't for you but whatever lawyer went in for your sawed within the fourteen days did not even asked 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 why do you think that the the thompson rule applies here because ten days after the decertification order argument you raised it below it explicitly didn't rule on that basis it held that you had filed the motion after the fourteen days what grounds do we have to disagree with the circuit court on with the same they're talking about with the night circuit sound that saying that unless an exception applies the petition would be barred exactly so the when the ninth circuit said that it included within that language a reconsideration motion that's filed within the fourteen days so what the court of appeals said was that the decertification order was made on february twentieth there was no rule twenty three of petition filed within that fourteen day period and therefore in boston exception applies that would be untimely so the court was saying even if a motion for reconsideration was filed within the fourteen day period it would be on time late so they considered that an exception as well so we've talked about unique circumstances unique is defined is the only one there been many hurricanes there's been many fires there hasn't been a martian invasion you had but what do you think it is unique is not unusual right so if you're going to create an exception for unique circumstance it can't mean the situation where judges miss advised litigants about how much time they have that happen 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 circumstances what in some if it's an equitable tolling situation 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 victim the villain in the missing of the deadline will insist that's something else and maybe that's better or worse than unusual but it just seems to me that if you're if you're using sense that there is some flexibility there when a district court misinforms a litigant about the time that they have to file especially in the context of a non jurisdictional rule like we have well then i think you do have to say the exception is when the district court m gets 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 meet when they run into something like this and judges you know gives them a lot more flexibility than perhaps the rules committee wanted as well i agree i mean i think this term unique circumstances doctrine does refer specifically to the district court misinforming it misters of i don't think this is your fault right this is the court's fault and putting a bad label on something that it actually meant when it meant meant something else but my 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 and to missing some kind of deadline is that your understanding yes i agree justice kagan so but i don't see where that is here where that it's what the district court paused the proceedings and didn't say anything about was was it was what that meant for your appeal right that's true but i 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 deficient lead to mislead and such that the appeal  they i mean it generally is a inflexible i mean that i we're not advocating for a good cause standard here has to be something more than that i think that a district court misleading a party that is more than simple excusable neglect or 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 you have let's be honest it's a form of equitable tolling and therefore shouldn't apply just as it doesn't to stiction rules it shouldn't apply to mandatory claims processing rules but should remain a viable option otherwise and that would harmonize boles with this line of cases which of those choices should we make and what made you think that the that these rules presumably should be subject to equitable tolling and not necessarily just for the district court misleading the parties however you have to either way the judgment should be affirmed because here in fact the court did mislead mr lambert into thinking that  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 the periods longer than fourteen days what then i mean and i think that all the district court did hear was a den of fire a date that was longer than fourteen days the local rule for motion for reconsideration the local rules of many courts so morally identified date that's longer than fourteen days for motions reconsideration to distinguish what happened here from a local rule that's longer than fourteen days i think i got here the district court did set this specific deadline and i think it does how would you distinguish a local rule that has a day longer than fourteen fifty nine to apply here but even if the court concludes that it does not it's at least a reasonable interpretation and the rule fifty nine argument just to reiterate depends on your rule fifty four interpretation that's right yes so i do think that at the very least nine and i think that's true given that the court has not really had occasion to address the precise contours of when our motion for reconsideration is going to spend the time to appeal the court's cases that have decided that have been in the context where the reconsideration motion becomes a question of reasonableness now if a pardon if the litigation goes on and it's 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  discretion of whether to consider this appeal or not you know sometimes in the city the unique circumstances situation if you're focusing on judicial conduct well what we find 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 or 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 ok to say sure fine with me and i don't think he should have to stop and 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 is the deadline i mean the judges 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 is i'm not as comfortable with that 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 mean i'm not even sure i'm calling it blame i think it's just the at the parties reasonable expectations when a court when a district court has said that they're volunteer reconsider but 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 when there's nothing misleading at all about that well then well what's misleading i guess is in context when you roll in rule twenty three yeah which the district court said nothing about correct the district courts and 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 we leave it 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 say i'm not rule twenty three f was not brought up at the status conference so how was the judge supposed to play a 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 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 hilde we're a judge has to tell you something when you don't ask the church about memory and we're and it's really not our position that we're placing any kind of blame on the district judge it is our position that when a district court says that it's going to reconsider and order that that essentially run renders the order non final for purposes of appeal 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 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 dependency if that reconsideration motion lifo not so 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 the says fourteen days i better file this appeal within fourteen days or at least ask some further questions about it just because it's sort of seems to make sense to do a motion for reconsideration before an appeal well there are the rules actually do not specifically address reconsideration motions and it has long been understood that a timely reconsideration motion will suspend the time to appeal but i think it would be a different situation if for instance we were in at a bankruptcy appeal which specifically says that the time to appeal stops running only if you file within fourteen days under the bankruptcy rules and there there was clear i mean here you have rules that are silent with respect to  reconsideration motions so i think we go by the rebar a line of cases which say that 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 twenty fourth of twenty fifteen to wreak the rule twenty three after it was filed fourteen days later and the appeal therefore was properly deemed timely if we reach that do you honor in this remaining minute let me emphasize and direct the court's attention to p a sixty nine to seventy seven where the short status conference took place and in that status conference it is notable that not only did the court not mention rule twenty three f not mention any sort of appellate right but counsel did not even mention twenty three f nor even say the word appeal and in fact no mistake at all it was made by the judge in that case to have the rule that lambert is urging today would have the judge effectively need to conduct a ruhleben criminal colloquy with counsel asking if there where 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 acknowledge sharply honed exception which does not apply factually in this case thank you thank you counsel the case was submitted