When a plaintiff files suit in state court – and a federal district court would have jurisdiction over the case had it been filed there – 28 U.S.C. §1446(b)(1) gives the defendant 30 days in which to remove the case to federal court. If the defendant misses this deadline, the dispute stays in state court. The question presented in Enbridge Energy, LP v. Nessel was whether this 30-day limit is subject to equitable tolling – that is, whether district courts, at their discretion, can extend the deadline due to extenuating circumstances. In a short and unanimous opinion written by Justice Sonia Sotomayor, the court said no: aside from the exceptions expressly set out in the statute, the 30-day deadline is mandatory.
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The underlying dispute in Enbridge (as discussed in the case preview) concerns whether the state of Michigan can force Enbridge to shut down its “Line 5,” a pair of oil and natural-gas-liquids pipelines that run beneath the Straits of Mackinac. Because Line 5 supplies a substantial portion of the crude oil and propane consumed in Michigan, Ohio, Ontario, and Quebec, the economic and political stakes in that dispute are substantial. But that backdrop was immaterial to the question before the justices, which only concerned whether the case belonged in state or federal court.
In June 2019, Michigan Attorney General Dana Nessel sued Enbridge in Michigan state court. She asserted several state-law claims and sought an order requiring Enbridge to close Line 5. In December 2021 – following a series of events in a related case – Enbridge filed a notice of removal under Section 1446(b)(1), seeking to have the case heard in federal court. The district court held that, despite Enbridge’s filing its notice 857 days after the 30-day deadline had expired, the removal was timely. The district court reasoned that the 30-day deadline was subject to equitable tolling, and that such tolling was warranted here given the case’s “exceptional circumstances” – namely, the importance of the federal issues and the possibility of a “collision course” between this case and another (filed by Enbridge) that was already pending in federal court. On appeal, the U.S. Court of Appeals for the 6th Circuit reversed, concluding that the 30-day limit is not subject to equitable tolling.
In its unanimous, 14-page opinion, the Supreme Court agreed with the 6th Circuit, holding that the case must be remanded to state court. According to the court, no matter a case’s particular circumstances, Congress has deprived district courts of the discretion to extend Section 1146(b)(1)’s 30-day deadline based on equitable considerations.
Much of the briefing and oral argument addressed whether Section 1146(b)(1) constitutes a “statute of limitations,” such that (under well-established precedent) it is subject to a presumption in favor of equitable tolling. But the court brushed that question aside, reasoning that “even if §1446(b)(1) is a statute of limitations … the presumption is rebutted here because such tolling conflicts with §1446(b)(1)’s text, structure, and context.”
Sotomayor’s opinion for the court made three basic points. First, Section 1446(b)(1) “speaks in strict, mandatory terms.” It states that the “notice of removal … shall be filed within 30 days after the receipt” by the defendant of the complaint or summons. According to Sotomayor, while this “strict phrasing” is not necessarily determinative, it is “consistent with treating its deadline as mandatory.”
Second – and “most important” to the court – the structure of Section 1446(b)(1) “strongly indicates” that Congress did not intend to grant district courts the power to adorn the statute with “unmentioned, open-ended, ‘equitable’ exceptions.” Section 1446(b) already spells out several exceptions to its 30-day deadline in its text. For instance, Section 1446(b)(3) provides that when a case is not initially removable, the deadline for removal is 30 days from when the defendant receives “a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” Section 1446(c)(1) then states that, despite this extension, a case that is removable based on diversity jurisdiction cannot be removed “more than 1 year after commencement of the action.” Further, this one-year limit on Section 1446(b)(3)’s exception does not apply when “the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action” – an exception that is clearly grounded in equitable considerations.
To the court, this detailed structure of exceptions – along with others in Section 1441(b) (“[f]or actions against foreign states”), Section 1454(b)(2) (“for actions involving certain intellectual-property rights”), and Section 1441(e)(1) (“[f]or certain cases involving fatal accidents”) – shows that “Congress did not want equitable tolling under §1446(b)(1).” The explicit inclusion of such a specific list – including exceptions that take equitable concerns into account – demonstrates that Congress expressly considered and spelled out when the 30-day deadline should be extended, and allowing district courts the open-ended discretion to extend the deadline under other circumstances would thus contravene the scheme’s intended operation.
Third and finally, Sotomayor emphasized that a principal goal of federal removal statutes is to achieve “efficiency” and avoid “prolonged litigation on threshold nonmerits questions.” Subjecting Section 1446(b)(1)’s 30-day deadline to equitable tolling would undermine this “manifest interest in resolving threshold removal questions early and conclusively.” In cases like Enbridge, uncertainty as to whether the dispute might be moved to federal court (and start largely anew) could hang over the litigation for years.
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Given the political controversy concerning the potential closure of Line 5, Enbridge came to the court with considerable fanfare. But it left with a whimper. As to the case itself, Enbridge and the Michigan attorney general are now left to renew their battle in Michigan state court. As to the broader legal question – whatever the circumstances of a particular case – Section 1446(b)(1) means what it appears to say: outside the statute’s explicit exceptions, a defendant’s notice of removal “shall be filed within 30 days,” full stop.