Justices reveal little about whether the deadline for removing cases to federal court can be excused

When a plaintiff files a lawsuit in state court asserting a claim that could be brought in federal court, federal law gives the defendant 30 days to remove the case to federal court. At issue in Enbridge Energy, LP v. Nessel is whether the federal statute imposing this deadline, 28 U.S.C. §1446(b)(1), allows a district court to extend (or “equitably toll”) this time limit.

Michigan Attorney General Dana Nessel filed this lawsuit in June 2019 in Michigan state court. The suit seeks to force Enbridge to shut down “Line 5,” an oil and natural-gas-liquids pipeline running beneath the Straits of Mackinac. (Line 5 supplies a huge portion of the crude oil and propane consumed in Michigan, Ohio, Ontario, and Quebec.) Enbridge did not initially seek to remove the case to federal court, but instead filed a motion for summary disposition. After a separate (but related) lawsuit brought against Enbridge by Michigan Governor Gretchen Whitmer was removed and then voluntarily dismissed, Enbridge filed a notice of removal in December 2021 – 30 months after this suit was originally filed. (In the meantime, Canada asserted that Michigan’s shutting down of Line 5 would put the U.S. in violation of the 1977 Transit Pipelines Treaty.)

The district court permitted Enbridge’s late removal, concluding that Section 1446(b)(1)’s 30-day deadline can be “overcome in exceptional circumstances.” But the U.S. Court of Appeals for the 6th Circuit reversed, holding that the deadline is mandatory when the plaintiff objects in a timely fashion. The Supreme Court granted review to decide whether excusing a late notice of removal – as the district court did here – is permitted under Section 1446(b)(1).

Representing Enbridge, John Bursch argued that the 30-day removal deadline functions as a statute of limitations “because it prescribes a period within which certain rights may be enforced.” And, explained Bursch, the Supreme Court has long held that statutes of limitations – including time limits on the assertion of various procedural rights, not just substantive rights – are presumptively subject to equitable tolling. Bursch thus argued that, given this presumption, district courts must retain “their traditional equitable authority” to toll the 30-day deadline “absent the clearest command” in the statute to the contrary. And in Bursch’s view, Section 1446(b)(1) lacks any such clear command.

By contrast, Michigan Solicitor General Ann Sherman argued that the presumption in favor of equitable tolling does not apply to Section 1446(b)(1) because that presumption is specific to statutes setting “a deadline by which legal remedies must be pursued or are lost.” But the federal removal statute addresses the “allocation of judicial power,” contended Sherman, an area that has traditionally called for “strict enforcement” of statutory deadlines. This makes it quite unlike deadlines that entail “a harsh consequence of depriving defendants of their day in court,” where the presumption most logically applies.

Sherman further argued that, even if a presumption in favor of tolling applies to Section 1446(b)(1), it is overcome. First, Sherman asserted that the presumption does not require the “clearest command” from Congress to be surmounted; the question is just whether Congress has expressed a contrary intent in the statutory scheme. Second, Sherman argued that everything about the removal statute – “the text, the structure, the history, and the purpose” – indicates “Congress would not have wanted tolling.” Most important, the scheme contains “six explicit exceptions to the 30-day deadline, many of which already reflect equitable concerns and some of which specifically authorize courts to extend the deadline for cause.” In essence, Congress has spoken to the question and “did not authorize courts to create their own exceptions.”

Justice Clarence Thomas asked Bursch whether the Supreme Court had ever before applied the presumption in favor of tolling to a removal statute. Bursch conceded “this will be the first time,” but he explained that the court had applied the presumption in several instances in which the deadline did not extinguish any claims, illustrating that it extends to statutes prescribing “a period within which certain rights may be enforced.”

Justice Elena Kagan observed that the removal statute contained several references “to equitable consideration[s] in different parts of the statute,” suggesting “that Congress did not have in mind … that equity would underlie the whole thing.” Bursch responded that these were weak indications of Congress’ intent, and thus fell well short of the “clearest command” necessary to overcome the presumption.

Justice Samuel Alito asked Sherman whether “there are any grounds on which equity would allow a district court to excuse non-compliance with a 30-day removal deadline other than the exceptions that are set out in the statute?” Sherman said “there could be some estoppel” (meaning the defendant’s late removal was due to its reliance on the plaintiff’s representations). If that is so, Alito reasoned, isn’t the necessary implication “that we have to look beyond the statutory text and see whether what is alleged here might possibly qualify”? Sherman said no because “equitable tolling and estoppel are distinct doctrines,” such that the availability of one does not imply the other.

Alito also expressed concern about the practical consequences of allowing this case to return to state court: if “the state court orders that operation of the … pipeline be terminated,” the impact on U.S.-Canada relations could be “pretty severe,” and it might be several years before the case could return to the Supreme Court, even if it presented important treaty claims. Sherman responded that the Constitution has always contemplated state courts’ exercising jurisdiction over claims arising under federal law – including quite important ones – especially when defendants miss the deadline for removal. It is for Congress to decide whether removal should work differently.

The argument largely ignored whether, if the 30-day limit is subject to equitable tolling, the district court was correct to extend that deadline here. So if Enbridge prevails, that will likely be left for the lower courts to resolve on remand.

Ultimately, the hour of discussion revealed little about where the justices stood. We must wait to find out until the court hands down its decision, likely by the end of June.