Amicus Curiae Brief — Enbridge Energy, LP, et al., Petitioners v. Dana Nessel, Attorney General of Michigan, on Behalf of the People of the State of Michigan

Supreme Court briefSep 5, 2025

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No. 24-783

I N T HE

6XSUHPH&RXUWRIWKH8QLWHG6WDWHV

E NBRIDGE E NERGY , LP, et al.,

Petitioners,

D ANA N ESSEL ,

Attorney General of Michigan, on Behalf of the

People of the State of Michigan,

Respondent.

On Writ of Certiorari to the

U.S. Court of Appeals for the Sixth Circuit

BRIEF OF NORTH AMERICA’S

BUILDING TRADES UNIONS AND

UNITED STEELWORKERS AS

AMICI CURIAE IN SUPPORT OF

PETITIONERS

David R. Jury

U NITED

S TEELWORKERS

60 Boulevard of the

Allies

Room 807

Pittsburgh, PA 15222

Jonathan D. Newman

Counsel of Record

Jacob J. Demree

S HERMAN D UNN , P.C.

900 Seventh Street, N.W.

Suite 1000

Washington, D.C. 20001

newman@shermandunn.com

(202) 785-9300

Mosaic - (301) 927-3800 - Cheverly, MD

TABLE OF CONTENTS

Table of Authorities .................................................... ii

Interest of Amici ......................................................... 1

Introduction and Summary of Argument .................. 3

Argument .................................................................... 7

II.

Section 1446(b)(1)’s Thirty-Day

Deadline Is Subject to Equitable

Tolling. ........................................................... 7

Section 1446(b)(1) Is a Procedural

Claim-Processing Rule Subject to

the Background Equitable Tolling

Presumption. ............................................ 7

Equitable Tolling Is Consistent

with Section 1446(b)(1)’s Text and

Structure. ............................................... 12

Equitable Tolling Is Consistent

with the History and Purpose of

Federal-Question Removal. ................... 18

Section 1446(b)(1)’s Thirty-Day

Deadline Should Be Tolled Here. ............... 21

Conclusion ................................................................. 26

TABLE OF AUTHORITIES

Cases

Page(s)

Agyin v. Razmzan,

986 F.3d 168 (2d Cir. 2021) ................................. 12

Am. Pipe & Constr. Co. v. Utah,

414 U.S. 538 (1974) ............................................. 22

Arbaugh v. Y&H Corp.,

546 U.S. 500 (2006) ............................................. 10

Arellano v. McDonough,

598 U.S. 1 (2023) ...................................... 14-15, 18

Ayers v. Watson,

113 U.S. 594 (1885) ............................................. 12

Bailey v. Glover,

88 U.S. (21 Wall.) 342 (1875) ................................ 9

Boechler, P.C. v. Comm’r,

596 U.S. 199 (2022) .............................. 9, 11-12, 14

Bowen v. City of New York,

476 U.S. 467 (1986) ............................................. 17

Burnett v. N.Y. Cent. R.R.,

380 U.S. 424 (1965) .................................... 8, 21-22

Caterpillar Inc. v. Lewis,

519 U.S. 61 (1996) ............................................... 20

Caterpillar Inc. v. Williams,

482 U.S. 386 (1987) ............................................. 12

City of Chicago v. Int’l Coll. of Surgeons,

522 U.S. 156 (1997) ........................................ 11-12

Corona-Contreras v. Gruel,

857 F.3d 1025 (9th Cir. 2017) ............................. 12

Doe v. Braden,

57 U.S. (16 How.) 635 (1854) .............................. 25

iii

Duncan v. Gegan,

101 U.S. 810 (1880) ........................................ 15-16

Farina v. Nokia, Inc.,

625 F.3d 97 (3d Cir. 2010) ................................... 12

Fin. Timing Publ’ns, Inc. v. Compugraphic

Corp., 893 F.2d 936 (8th Cir. 1990) .................... 12

Fletcher v. Hamlet,

116 U.S. 408 (1886) ............................................. 25

Glus v. Brooklyn E. Dist. Terminal,

359 U.S. 231 (1959) ............................................... 9

Gold-Washing & Water Co. v. Keyes,

96 U.S. 199 (1878) ............................................... 19

Granny Goose Foods, Inc. v. Brotherhood of

Teamsters, Loc. No. 70, 415 U.S. 423 (1974) . 15-16

Harris v. U.S. Dep’t of Transp.,

122 F.4th 418 (D.C Cir. 2024) ............................. 12

Harrow v. Dep’t of Def.,

601 U.S. 480 (2024) .......................................... 7-11

Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428 (2011) ............................................. 10

Holland v. Florida,

560 U.S. 631 (2010) ................... 9, 12-16, 18, 22-23

Holmberg v. Armbrecht,

327 U.S. 392 (1946) ............................................ 8-9

Honda v. Clark,

386 U.S. 484 (1967) ............................................. 18

Irwin v. Dep’t of Veterans Affs.,

498 U.S. 89 (1990) .......................................... 21-22

Johnson v. Heublein Inc.,

227 F.3d 236 (5th Cir. 2000) ............................... 21

Leininger v. Leininger,

705 F.2d 727 (5th Cir. 1983) (per curiam) .......... 12

Lozano v. Alvarez,

572 U.S. 1 (2014) ................................................... 9

McLeod v. Cities Serv. Gas Co.,

233 F.2d 242 (10th Cir. 1956) ............................. 12

McQuiggin v. Perkins,

569 U.S. 383 (2013) ............................................ 8-9

Miller v. French,

530 U.S. 327 (2000) ........................................ 12-13

Moore ex rel. Rice v. N. Am. Sports, Inc.,

623 F.3d 1325 (11th Cir. 2010) (per curiam) ...... 12

Murphy Bros. v. Michetti Pipe Stringing, Inc.,

526 U.S. 344 (1999) ........................................ 20-21

N. Ill. Gas Co. v. Airco Indus. Gases,

676 F.2d 270 (7th Cir. 1982) ............................... 12

N. Pac. R.R. v. Austin,

135 U.S. 315 (1890) ............................................. 21

Order of R.R. Telegraphers v. Rwy. Express

Agency, Inc., 321 U.S. 342 (1944).................... 8, 21

Pace v. DiGuglielmo,

544 U.S. 408 (2005) ......................................... 9, 21

Powers v. Chesapeake & Ohio Rwy.,

169 U.S. 92 (1898) ............................................... 22

Riley v. Bondi,

145 S. Ct. 2190 (2025) .................................... 10-11

Roman Cath. Archdiocese of San Juan v. Feliciano, 589 U.S. 57 (2020) (per curiam) ............... 15

Santos-Zacaria v. Garland,

598 U.S. 411 (2023) ............................................. 10

Seaton v. Jabe,

992 F.2d 79 (6th Cir. 1993) ................................. 12

Shamrock Oil & Gas Corp. v. Sheets,

313 U.S. 100 (1941) ....................................... 17, 20

United States v. Beggerly,

524 U.S. 38 (1998) ............................................... 13

United States v. Brockamp,

519 U.S. 347 (1997) ......................................... 9, 13

United States v. Kwai Fun Wong,

575 U.S. 402 (2015) ............................................. 10

Universal Truck & Equip. Co. v. SouthworthMilton, Inc., 765 F.3d 103 (1st Cir. 2014) ........... 12

Westlake Legal Grp. v. Yelp, Inc.,

599 F. App’x 481 (4th Cir. 2015) (per curiam) ..................................................................... 12

Wilkins v. United States,

598 U.S. 152 (2023) ............................................. 10

Wilson v. Intercollegiate (Big Ten) Conf. Athletic Ass’n, 668 F.2d 962 (7th Cir. 1982) ........ 20-21

Zipes v. Trans World Airlines, Inc.,

455 U.S. 385 (1982) ............................................. 18

Constitutions, Statutes, and Rules

8 U.S.C. § 1252(b)(1) ............................................ 10-11

28 U.S.C. § 1338(a) ................................................... 17

28 U.S.C. § 1441 ........................................................ 11

28 U.S.C. § 1441(d) ................................................... 17

28 U.S.C. § 1442a ...................................................... 17

28 U.S.C. § 1446 .................................................. 11, 16

28 U.S.C. § 1446(b) ............................................. 12, 20

28 U.S.C. § 1446(b)(1) ........ 5-7, 9, 11-12, 15-18, 21, 26

28 U.S.C. § 1446(b)(2)(C) .......................................... 16

28 U.S.C. § 1446(b)(3) ......................................... 16, 20

28 U.S.C. § 1446(c)(1) ............................................... 16

28 U.S.C. § 1446(d) ................................................... 15

28 U.S.C. § 1447(c) .................................................... 15

28 U.S.C. § 1454(b)(2) ............................................... 17

50 U.S.C. § 3936(a) ................................................... 17

Act of June 25, 1948,

Pub. L. No. 80-773, § 1446(b), 62 Stat. 869,

939 ........................................................................ 20

Act of Mar. 3, 1875,

ch. 137, §§ 2-3, 18 Stat. 470, 470-71 ................... 19

Act of Mar. 3, 1887,

ch. 373, § 1, 24 Stat. 552, 553-54 ........................ 19

Act of May 24, 1949,

Pub. L. No. 81-72, § 83(a), 63 Stat. 89, 101 ........ 20

Fed. R. Civ. P. 23 ...................................................... 22

I.R.C. § 6330(d)(1) ..................................................... 11

Judiciary Act of 1789,

ch. 20, § 12, 1 Stat. 73, 79-80 .............................. 18

U.S. Const. art. VI .................................................... 25

Other Authorities

Agreement Concerning Transit Pipelines,

Can.-U.S., art. II, § 1, Jan. 28, 1977,

T.I.A.S. No. 8,720 ........................................... 24-25

William Blackstone, Commentaries ........................... 8

vii

Michael G. Collins, The Unhappy History of

Federal Question Removal, 71 Iowa L. Rev.

717 (1986) ............................................................ 19

The Federalist No. 80 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) ................................. 18

Felix Frankfurter & James M. Landis, The

Business of the Supreme Court: A Study in

the Federal Judicial System (1927) ............... 18-19

H.R. Rep. No. 94-1487 (1976) ................................... 17

H.R. Rep. No. 100-889, pt. 1 (1988) .......................... 16

James W. Moore et al., Moore’s Federal Practice (3d ed. 2023) .................................................. 19

Notice of Removal, GFR Media v. United Steelworkers Loc. 6135, No. 25-cv-1040 (D.P.R.

Jan. 22, 2025)......................................................... 2

Ohio Dep’t of Com., Prevailing Wage Portal,

https://pwr.com.ohio.gov/ (last visited Sept.

2, 2025)................................................................... 4

Joseph Story, Commentaries on Equity Jurisprudence as Administered in England and

America (12th ed. 1877) ........................................ 8

Verified Pet. for Removal, STV Grp., Inc. v.

Nassau Suffolk Bldg. & Constr. Trades

Council, No. 15-cv-1532 (E.D.N.Y. Mar. 24,

2015).................................................................... 2-3

Governor Gretchen Whitmer, Governor

Whitmer Takes Action to Protect the Great

Lakes (Nov. 30, 2021), https://www.

michigan.gov/whitmer/news/press-releases/

2021/11/30/governor-whitmer-takes-actionto-protect-the-great-lakes............................... 24-25

INTEREST OF AMICI 1

North America’s Building Trades Unions

(“NABTU”) is a labor organization composed of fourteen national and international unions and 327 provincial, state, and local building and construction

trades councils representing more than three million

workers. Thousands of those workers are employed in

the pipeline and energy sector, including:

•

Pipefitters and welders represented by the

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry

of the United States and Canada;

•

Heavy equipment operators, mechanics, and

surveyors represented by the International Union of Operating Engineers, who operate, maintain, and repair the equipment used on pipeline

projects;

•

Transportation workers represented by the International Brotherhood of Teamsters, who

move material and people to, from, and around

the sites where pipelines are built, repaired,

and maintained;

•

Construction laborers represented by the Laborers International Union of North America,

who clear rights of way, prepare jobsites, place

pipes, and restore the landscape after the pipeline is buried; and

•

Electricians represented by the International

Brotherhood of Electrical Workers, who work at

pumping and service stations along pipelines to

No counsel for a party authored this brief in whole or in part,

and no person other than amici or their counsel made a monetary

contribution to the preparation or submission of this brief.

ensure that the instruments, valves, gauges,

pumps, and motors operate properly.

Members of all of NABTU’s affiliates also perform critical maintenance and repair of facilities that rely on

pipelines like the Line 5 pipeline at issue in this case,

including refineries that refine crude oil and fractionators that separate propane and butane from natural

gas liquids.

The United Steel, Paper and Forestry, Rubber,

Manufacturing, Energy, Allied Industrial and Service

Workers

International

Union,

AFL-CIO-CLC

(“United Steelworkers” or “USW”) represents approximately 500,000 members in the United States, Canada, and the Caribbean in numerous industrial and

other sectors, including the energy sector, where it

represents employees working in oil refineries, as well

as those involved in maintaining and constructing

pipelines. USW is the largest union in the American

refining industry, representing production and

maintenance workers at dozens of refining, production, pipeline, maintenance, storage, and petrochemical facilities in the United States — facilities that together represent roughly two-thirds of the nation’s refining capacity. USW represents workers in refineries

that are fed by Line 5 and whose employment would

be jeopardized if Line 5 were closed.

NABTU and USW have a strong interest in this

case, which could determine the future employment

and well-being of thousands of their members.

NABTU, USW, and their affiliates also have a strong

interest in this case as potential defendants in statecourt litigation. See, e.g., Notice of Removal, GFR Media v. United Steelworkers Loc. 6135, No. 25-cv-1040

(D.P.R. Jan. 22, 2025) (notice of removal by USW affiliate); Verified Pet. for Removal, STV Grp., Inc. v.

Nassau Suffolk Bldg. & Constr. Trades Council, No.

15-cv-1532 (E.D.N.Y. Mar. 24, 2015) (notice of removal

by NABTU affiliate).

INTRODUCTION

AND SUMMARY OF ARGUMENT

For over seven decades, the Line 5 pipeline has

transported energy sources through Wisconsin and

Michigan and Ontario, Canada. Thousands of amici’s

members are responsible for maintaining the pipeline

and associated industrial facilities, like Ohio’s PBF

Energy Toledo and Cenovus Refinery. For example,

USW represents approximately 375 production and

maintenance and office and technical employees at

PBF Energy Toledo, and 325 process, production, and

maintenance employees at the Cenovus Refinery (formerly known as the bp-Husky Toledo Refinery). And

at just those two refineries, members of NABTU’s affiliated unions performed 1,373,299 hours of routine

and large-scale maintenance in 2024 — approximately full-time employment for nearly seven hundred workers.2

These are jobs with solid wages and benefits. Senior USW-represented production and maintenance

employees at PBF Energy Toledo earn straight-time

Because many construction trades workers often work intermittently, moving from job to job and employer to employer, and

because wages and benefits are paid and reported on an hourly

basis, employment in the industry is commonly tracked through

hours of work rather than numbers of individual workers. Assuming the reported hours reflect full-time employment (forty

hours a week for fifty weeks in a year), these numbers would represent work for 687 individuals. However, while the employees

performing routine maintenance are likely employed on an ongoing basis in these refineries, many more are brought in for largescale, short-term projects.

hourly wage rates between $41.20 and $51.55, and

senior USW-represented employees at the Cenovus

Refinery earn between $44.76 and $55.55 per hour.

NABTU’s affiliates have also negotiated robust wages

and benefits for building trades workers in Lucas

County (the site of the refineries). The prevailing

wage, including employer contributions to benefit

funds, is $83.56 per hour for pipefitters, $54.94 per

hour for operating engineers (or more, depending on

the type of equipment used), $53.80 for laborers, and

$76.48 for electricians.3

Sudden closures of the Line 5 pipeline threaten

catastrophic losses of good-paying, middle-class jobs

that provide skilled workers in the United States and

Canada with consistent employment, health insurance, pensions, and other benefits, and opportunities

for the next generation of working people to achieve

the same. Yet in 2019 and 2020, Michigan’s Governor

and Attorney General took steps to shut down the

pipeline, leading to closely parallel cases: this case,

which was filed in state court and removed to federal

court; Michigan v. Enbridge, which was filed in state

court, removed, and ultimately dismissed; and

Enbridge v. Whitmer, which was filed in federal court.

Though Petitioners (together, “Enbridge”) were late in

removing this case, the district court held that “[i]t

would be an absurd result for the Court to remand the

present case and sanction a forum battle,” since “[i]n

this battle about the correct law to apply . . . this

Court has already said important federal interests determine federal jurisdiction and a federal forum.” Pet.

Prevailing wage rates for each craft are available at Ohio

Dep’t of Com., Prevailing Wage Portal, https://pwr.com.ohio.gov/

(last visited Sept. 2, 2025).

App. 37a.

The issue before the Court is whether district

courts have the authority to equitably toll 28 U.S.C.

§ 1446(b)(1)’s thirty-day period for removal. Practically, that means deciding whether to allow for reasoned deliberation in these parallel cases in federal

court or to sanction a forum battle that would threaten

thousands of jobs and millions of dollars in family-sustaining wages and benefits.

I. When Congress writes a statute of limitations,

it does so against an equitable tolling presumption.

Though limitations periods are binding, they can normally be excused where strict enforcement would be

unjust. There is an exception to the equitable tolling

presumption for a small set of “jurisdictional” timing

rules. Because jurisdictional rules go to a court’s authority to hear a case, courts have no authority to excuse noncompliance with their requirements. Without an exceedingly strong clear statement that Congress intended a statute of limitations to be jurisdictional, however, a statute of limitations is merely procedural.

Section 1446(b)(1)’s thirty-day period is a nonjurisdictional claim-processing rule. It speaks to defendants’ obligations with respect to removal, and not to a

court’s power to hear a removed case. Removal jurisdiction is granted in an entirely separate section, and

there is no clear connection between compliance with

the thirty-day removal deadline and the jurisdictional

provisions. Therefore, Section 1446(b)(1) is presumptively subject to equitable tolling.

Congress did not rebut that presumption here.

The removal statute does not contain unusually emphatic or highly detailed language, and tolling would

not affect parties’ substantive rights. Nothing about

Section 1446(b)(1)’s text or structure shows that Congress intended to prevent tolling of its thirty-day

deadline.

Moreover, equitable tolling is consistent with the

history of federal courts’ removal jurisdiction (and

particularly their federal-question removal jurisdiction). Congress provided for federal-question removal

as part of a Reconstruction-era effort to ensure consistent interpretations of important federal issues.

The evolution of federal-question removal law shows

that its purpose is to strike a balance between decision

making by the most competent court, on the one hand,

and speedy, fair resolution of disputes, on the other.

Equitable tolling aligns with that purpose.

II. Tolling is appropriate if a party has diligently

pursued its rights and an extraordinary circumstance

excuses its technically late filing. For example, a

party that is tricked into letting a deadline pass would

traditionally be entitled to tolling. Tolling may also

be appropriate when circumstances beyond a party’s

control change the nature of a case.

Here, after over a year of litigating this case in

state court, Michigan radically changed its strategy by

attempting to revoke Enbridge’s easement through

the Straits of Mackinac. Next, the Government of

Canada intervened and initiated international dispute resolution procedures with the United States to

address Michigan’s attempts to shut down the Line 5

pipeline. Finally, after agreeing to hold this case in

abeyance pending a federal court’s resolution of related issues, Michigan changed course again by moving to resolve this lawsuit quickly and without federal

oversight.

The Court should reverse the Sixth Circuit, hold

that equitable tolling applies, and remand for further

proceedings in which the lower courts will consider

these and other factors to determine if the facts justify

equitable tolling of the thirty-day deadline in the removal statute.

ARGUMENT

Section 1446(b)(1)’s Thirty-Day Deadline Is

Subject to Equitable Tolling.

Section 1446(b)(1) Is a Procedural ClaimProcessing Rule Subject to the Background Equitable Tolling Presumption.

1. The text of Section 1446(b)(1) is straightforward:

The notice of removal of a civil action or

proceeding shall be filed within 30 days

after the receipt by the defendant,

through service or otherwise, of a copy of

the initial pleading setting forth the

claim for relief upon which such action or

proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then

been filed in court and is not required to

be served on the defendant, whichever

period is shorter.

The summons and complaint in this case were served

on Enbridge on July 12, 2019. J.A. 103a. Enbridge

removed this case to federal court on December 15,

2021. J.A. 1a-20a, 57a; Pet. App. 7a. Enbridge’s removal was unquestionably late under the plain text of

Section 1446(b)(1).

But that is not the end of the analysis, since “[t]he

procedural requirements that Congress enacts to govern the litigation process are only occasionally as

strict as they seem.” Harrow v. Dep’t of Def., 601 U.S.

480, 483 (2024). That’s because “Congress legislates

against the backdrop of judicial doctrines creating exceptions, and typically expects those doctrines to apply.” Id.

One of those background doctrines is equitable tolling, which courts have applied for centuries. See

McQuiggin v. Perkins, 569 U.S. 383, 409 (2013)

(Scalia, J., dissenting, with Roberts, C.J., Thomas &

Alito, JJ.). Traditionally, equity has been described as

“synonymous to justice.” 3 William Blackstone, Commentaries *429. “[E]quity delighteth in equality” and

seeks to restore situations to how “they ought to have

been,” absent an injustice or unfairness. 1 Joseph

Story, Commentaries on Equity Jurisprudence as Administered in England and America 60-61 (12th ed.

1877) [hereinafter Story, Commentaries on Equity Jurisprudence].

Normally, limitations periods operate to “assure

fairness,” Burnett v. N.Y. Cent. R.R., 380 U.S. 424, 428

(1965), by “preventing surprises through the revival of

claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared,” Order of R.R. Telegraphers

v. Rwy. Express Agency, Inc., 321 U.S. 342, 348-49

(1944). But “statutes of limitation are not controlling

measures of equitable relief.” Holmberg v. Armbrecht,

327 U.S. 392, 396 (1946). Equity does “act in obedience and in analogy to the statute of limitations, in

proper cases,” but it may “also interfere . . . to prevent

the bar of the statutes, where it would be inequitable

or unjust.” 2 Story, Commentaries on Equity Jurisprudence, supra, at 762.

At equity, “specific circumstances, often hard to

predict in advance, could warrant special treatment.”

Holland v. Florida, 560 U.S. 631, 650 (2010). For example, equity steps in when one party fraudulently

conceals facts from the other to unfairly run out the

statute of limitations. E.g., Holmberg, 327 U.S. at

396-97; Bailey v. Glover, 88 U.S. (21 Wall.) 342, 34748 (1875). Similarly, when a litigant “has been pursuing [its] rights diligently” and “some extraordinary circumstance” stands in its way, Pace v. DiGuglielmo,

544 U.S. 408, 418 (2005), equity can excuse lateness

to prevent “inequitable reliance on statutes of limitations,” Glus v. Brooklyn E. Dist. Terminal, 359 U.S.

231, 233 (1959).

“Colonial legislatures would have assumed that

equitable tolling would attend any statute of limitations they adopted.” McQuiggin, 569 U.S. at 410

(Scalia, J., dissenting, with Roberts, C.J., Thomas &

Alito, JJ.). In most cases, so, too, has Congress. See

Boechler, P.C. v. Comm’r, 596 U.S. 199, 208-09 (2022).

Consistent with Congress’s longstanding intent, this

Court presumes that equitable tolling applies to statutes of limitations. Lozano v. Alvarez, 572 U.S. 1, 1011 (2014). Generally, unless there is a “good reason to

believe that Congress did not want the equitable tolling doctrine to apply,” courts may excuse violations of

a statutory limitations period. United States v.

Brockamp, 519 U.S. 347, 350 (1997).4

2. There is an exception to the equitable tolling

presumption for “a small set of cases, where the

Equitable tolling is different than equitable exceptions to a

statute of limitations. See McQuiggin, 569 U.S. at 392. Amici

argue only that tolling is available and take no position on

whether courts could create equitable exceptions to Section

1446(b)(1).

procedural rule counts as ‘jurisdictional.’” Harrow,

601 U.S. at 484. A rule is jurisdictional if it goes to a

court’s authority to hear a case. Henderson ex rel.

Henderson v. Shinseki, 562 U.S. 428, 434 (2011).

When a party fails to comply with a jurisdictional rule,

the rule divests the court of its adjudicative authority.

Since “courts are not able to exceed limits on their adjudicative authority, they cannot grant equitable exceptions to jurisdictional rules.” Santos-Zacaria v.

Garland, 598 U.S. 411, 416 (2023).

But without a clear statement “that a threshold

limitation on a statute’s scope shall count as jurisdictional, . . . courts should treat the restriction as nonjurisdictional.” Arbaugh v. Y&H Corp., 546 U.S. 500,

515-16 (2006). The Court “will not categorize a provision as ‘jurisdictional’ unless the signal is exceedingly

strong.” Riley v. Bondi, 145 S. Ct. 2190, 2201-02

(2025). Under Arbaugh’s clear statement rule, most

time bars are nonjurisdictional. Wilkins v. United

States, 598 U.S. 152, 158 (2023). That’s true “even

when the time limit is important (most are) and even

when it is framed in mandatory terms (again, most

are).” United States v. Kwai Fun Wong, 575 U.S. 402,

410 (2015). Indeed, “since Arbaugh, [the Court’s]

cases have almost uniformly found that the provisions

at issue failed to meet this very demanding test.” Riley, 145 S. Ct. at 2202.

There is no clear statement here. “Congress must

do something special, beyond setting an exception-free

deadline, to tag a statute of limitations as jurisdictional and so prohibit a court from tolling it.” Kwai

Fun Wong, 575 U.S. at 410. For example, in Riley, the

Court interpreted 8 U.S.C. § 1252(b)(1), which provides that “[t]he petition for review [of an order of removal of a non-U.S. citizen] must be filed not later

than 30 days after the date of the final order of removal.” The statute tells petitioners what to do but

“provides no directives to courts.” 145 S. Ct. at 2202.

“It makes no reference to jurisdiction and lacks any

language ‘demarcat[ing] a court’s power.’” Id. (quoting Harrow, 601 U.S. at 484) (alteration in original).

Moreover, the section containing the deadline does not

concern jurisdiction — if Congress had intended to

make the thirty-day deadline jurisdictional, it could

have placed it in a jurisdictional statute. Id.

Boechler involved similar language in I.R.C.

§ 6330(d)(1), which provides that a “person may,

within 30 days of a determination [in a collection due

process hearing] under this section, petition the Tax

Court for review of such determination.” But Section

6330(d)(1) continues with a parenthetical: “(and the

Tax Court shall have jurisdiction with respect to such

matter).” However, the Court held that the jurisdiction-granting parenthetical was not clearly connected

to the thirty-day deadline. 596 U.S. at 204. Proximity

to jurisdictional provisions was unimportant because

there was no “clear tie” between the jurisdictional and

procedural language. Id. at 207.

Here, Section 1446(b)(1) is silent on courts’ power

to hear removed cases. It provides only that the notice

of removal “shall be filed within 30 days.” That speaks

to the defendant’s responsibility and, like the statute

in Riley, does not speak to any responsibility of a

court. In fact, Section 1446 is titled “Procedure for removal of civil actions.” Jurisdiction over removal is

granted in a separate section (Section 1441). There is

no clear link between compliance with Section

1446(b)(1) and a court’s jurisdiction to hear a removed

case. “The propriety of removal” depends not on

timely removal but “on whether the case originally

could have been filed in federal court.” City of Chicago

v. Int’l Coll. of Surgeons, 522 U.S. 156, 163 (1997); see

also Caterpillar Inc. v. Williams, 482 U.S. 386, 392

(1987) (similar).

Like its 1875 predecessor, Section 1446(b) is

“modal and formal,” in contrast to the separate “jurisdictional,” “indispensable” section “defin[ing] the

cases in which a removal may be made.” Ayers v. Watson, 113 U.S. 594, 598 (1885). As a result, every circuit has held that Section 1446(b)’s requirements are

procedural and not jurisdictional.5 It follows that Section 1446(b)(1) is presumptively subject to equitable

tolling.

Equitable Tolling Is Consistent with Section 1446(b)(1)’s Text and Structure.

Congress does not alter the background equitable

tolling principle lightly, Boechler, 596 U.S. at 209, and

there is no evidence that Congress intended to rebut

the presumption here. The Court will not read a statute to displace courts’ traditional equitable authority

without the “clearest command.” Holland, 560 U.S. at

See, e.g., Universal Truck & Equip. Co. v. Southworth-Milton, Inc., 765 F.3d 103, 109-10 (1st Cir. 2014); Agyin v. Razmzan,

986 F.3d 168, 182 (2d Cir. 2021); Farina v. Nokia, Inc., 625 F.3d

97, 114 (3d Cir. 2010); Westlake Legal Grp. v. Yelp, Inc., 599 F.

App’x 481, 484 (4th Cir. 2015) (per curiam); Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir. 1983) (per curiam); Seaton v.

Jabe, 992 F.2d 79, 81 (6th Cir. 1993); N. Ill. Gas Co. v. Airco Indus. Gases, 676 F.2d 270, 273 (7th Cir. 1982); Fin. Timing

Publ’ns, Inc. v. Compugraphic Corp., 893 F.2d 936, 940 (8th Cir.

1990); Corona-Contreras v. Gruel, 857 F.3d 1025, 1029 (9th Cir.

2017); McLeod v. Cities Serv. Gas Co., 233 F.2d 242, 244 (10th

Cir. 1956); Moore ex rel. Rice v. N. Am. Sports, Inc., 623 F.3d

1325, 1329 (11th Cir. 2010) (per curiam); Harris v. U.S. Dep’t of

Transp., 122 F.4th 418, 425 (D.C. Cir. 2024).

646 (quoting Miller v. French, 530 U.S. 327, 340

(2000)). Whether Congress intended to rebut the equitable tolling presumption is a question of traditional

statutory interpretation. United States v. Beggerly,

524 U.S. 38, 48 (1998).

The foundational cases are Brockamp and

Beggerly. Brockamp involved the time limit for filing

tax refund claims. The relevant statute (1) set out its

time limit “‘in unusually emphatic form’”; (2) used

“‘highly detailed’ and ‘technical’ language” that could

not be read as containing implicit exceptions; (3) “‘reiterate[d] its limitations several times in several different ways’”; (4) related to nationwide tax collection,

with which tolling could substantially interfere; and

(5) “would, if tolled, ‘require tolling . . . substantive

limitations on the amount of recovery.’” Holland, 560

U.S. at 646 (quoting Brockamp, 519 U.S. at 350-52)

(alteration in original). Tolling could logjam the IRS

by “forcing [it] to respond to, and perhaps litigate,

large numbers of late claims.” Brockamp, 519 U.S. at

352. Therefore, Congress more likely “decided to pay

the price of occasional unfairness in individual cases

(penalizing a taxpayer whose claim is unavoidably delayed) in order to maintain a more workable tax enforcement system.” Id. at 353. Tolling would have

been inconsistent with congressional intent and, as a

result, was unavailable.

Beggerly was a Quiet Title Act suit. Under the

Quiet Title Act, the statute of limitations was “unusually generous” (twelve years), and tolling would

“throw a cloud of uncertainty” over land ownership

rights — rights that landowners must “know with certainty.” 524 U.S. at 48-49. Equitable tolling would be

“incompatible with the Act.” Id. at 49.

The Court recently applied Brockamp and Beggerly

in Arellano v. McDonough, 598 U.S. 1 (2023). There,

the question was whether an exception to an “effective

date” of an award of disability compensation to veterans was subject to equitable tolling. Generally, the

effective date can be no earlier than the day on which

the Department of Veterans Affairs receives the application for benefits. However, the relevant statute contains sixteen detailed exceptions, many of which reflect equitable considerations. “That Congress accounted for equitable factors in setting effective dates

strongly suggests that it did not expect an adjudicator

to add a broader range of equitable factors to the mix.”

Id. at 10. The Court, therefore, held that equitable

tolling applied.

Without clear commands in statutory text and

structure, the Court has found that Congress did not

rebut the equitable tolling presumption. For example,

in Boechler, the statute contained a single exception,

had a short thirty-day time limit, was not unusually

emphatic or detailed, was not reiterated multiple

times, and did not expressly prohibit equitable tolling.

596 U.S. at 209-10. Equitable tolling would be consistent with the statute.

And in Holland, the Antiterrorism and Effective

Death Penalty Act’s (“AEDPA”) one-year limitations

period was neither unusually emphatic nor reiterated

several times. 560 U.S. at 647. The one-year period

was not particularly long, and equitable tolling would

not interfere with the substantive aspects of a claim.

Id. “In short, AEDPA’s 1-year limit reads like an ordinary, run-of-the-mill statute of limitations.” Id.

Though a separate section of the statute dealing with

state collateral review proceedings referred to tolling,

Congress referred to tolling only because it “had to explain” how the one-year period would apply when

collateral proceedings were pending. Id. at 648. That

“special need for an express provision undermine[d]

any temptation to invoke the interpretive maxim inclusio unius est exclusio alterius (to include one item

. . . is to exclude other similar items . . . ).” Id. The

respondent in Holland also pointed to what it claimed

were detailed exceptions to the limitations period, but

the Court instead read those provisions as triggers to

the running of the limitations period. Id. at 647. Tolling was consistent with the statute, and the Court

held that it applied.

Here, the Court should “[s]tart with the text.”

Arellano, 598 U.S. at 8. Section 1446(b)(1) reads like

a run-of-the-mill statute of limitations: A notice of removal “shall be filed within 30 days” of the triggering

event. The thirty-day requirement is not reiterated,

unusually generous, or written in unusually emphatic

form or using highly detailed or technical language

that would preclude equitable exceptions. Allowing

tolling of the thirty-day period will not impact the substance of any claims or create administrative problems for federal or state courts.

Under Section 1446(d), the state court will still be

prohibited from processing the case upon receipt of a

copy of the notice of removal. See Roman Cath. Archdiocese of San Juan v. Feliciano, 589 U.S. 57, 63-64

(2020) (per curiam) (explaining that a state court has

no jurisdiction over a removed case unless and until

that case is remanded). The plaintiff will still have

thirty days to move to remand the case back to state

court under Section 1447(c). And state-court orders

entered before a late removal will still be binding after

the federal court takes up the case, since “[a]fter removal, the federal court ‘takes the case up where the

State court left it off.’” Granny Goose Foods, Inc. v.

Brotherhood of Teamsters, Loc. No. 70, 415 U.S. 423,

436 (1974) (quoting Duncan v. Gegan, 101 U.S. 810,

812 (1880)).

It’s true that Section 1446(b)(1) is not the only provision dealing with the start of the removal period.

Section 1446(b)(1) starts the clock on the sooner of “receipt by the defendant . . . of a copy of the initial pleading” or “service of summons upon the defendant if such

initial pleading has then been filed in court and is not

required to be served on the defendant.” Section

1446(b)(3) starts the clock for cases that are not initially removable after “receipt by the defendant . . . of

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.” But as

in Holland, these are merely alternative triggers — not exceptions — to the running of the thirtyday period.

Section 1446 includes additional restrictions on

the time for removal, but these restrictions merely respond to specific situations that Congress had to address. For example, Section 1446(b)(2)(C), which provides that an earlier-served defendant may consent to

removal outside the thirty-day window if a laterserved defendant files a timely notice of removal, explains the workings of the consent mechanism once a

timely notice of removal has been filed. It does not

excuse an initial failure to timely remove. And Section 1446(c)(1), which provides that a diversity case

may generally not be removed “more than 1 year after

commencement of the action,” avoids removal after a

late-stage creation of diversity jurisdiction, such as

when the plaintiff settles “with a diversity-destroying

defendant on the eve of trial,” H.R. Rep. No. 100-889,

pt. 1, at 72 (1988).

In some contexts, Section 1446(b)(1)’s thirty-day

period is superseded by other statutes. E.g., 28 U.S.C.

§§ 1441(d) (extended removal period in civil actions

against foreign states); 1442a (extended removal period in suits against members of the armed forces);

1454(b)(2) (extended removal period in patent and

copyright cases). But Congress had to explain how removal would work in those unique, special circumstances outside of the typical federal-question or diversity case. Congress did not deliberately rebut the

equitable tolling presumption just because it had to

expand the removal period to accommodate cases with

longer periods for responding to complaints, see H.R.

Rep. No. 94-1487, at 32 (1976) (civil actions against

foreign states), extended tolling of other limitations

periods, see 50 U.S.C. § 3936(a) (suits against members of the armed forces), or cases in federal district

courts’ exclusive jurisdiction, see 28 U.S.C. § 1338(a)

(patent and copyright cases).

It’s also true that the removal statutes are strictly

construed against removal out of respect for state sovereignty. Shamrock Oil & Gas Corp. v. Sheets, 313

U.S. 100, 108 (1941). But a statute intended to be

strictly construed may still be intended to be equitably

tolled. For example, in Bowen v. City of New York, 476

U.S. 467 (1986), the Court interpreted a sixty-day limitations period in the Social Security Act. The Social

Security Act waived sovereign immunity, so the Court

had “no difficulty agreeing” that the statute “must be

strictly construed.” Id. at 479. Nevertheless, the

Court held that Congress did not intend to preclude

equitable tolling, in light of the statute’s structure and

purpose. Id. at 480. Similarly, here, nothing in Section 1446(b)(1) signals Congress’s intent to overcome

the equitable tolling presumption.

Equitable Tolling Is Consistent with the

History and Purpose of Federal-Question Removal.

The statutory text and structure make clear that

equitable tolling applies to Section 1446(b)(1), but to

the extent competing interpretations of the statute

are plausible, this Court should consider the nature of

the statute’s subject matter — here, removal (and

particularly federal-question removal). Arellano, 598

U.S. at 14; see, e.g., Holland, 560 U.S. at 648 (looking

to AEDPA’s “basic purposes”); Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 398 (1982) (looking to Title VII’s “remedial purpose” and the “particular purpose of the [statute’s] filing requirement”); Honda v.

Clark, 386 U.S. 484, 495 (1967) (looking to the “legislative purpose” of the Trading with the Enemy Act).

From the founding, it was clear that federal courts

must have authority to review certain decisions of

state courts. Allowing each state to have “final jurisdiction over the same causes, arising upon the same

laws, is a hydra in government from which nothing

but contradiction and confusion can proceed.” The

Federalist No. 80, at 476 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Since the Judiciary Act of

1789, ch. 20, § 12, 1 Stat. 73, 79-80, Congress has provided for some form of removal of state cases to federal

court.

But for over eighty years, there was no federalquestion removal procedure. In the years before Reconstruction, federal courts were primarily responsible for protecting “citizens litigating outside of their

own states and thereby exposed to the threatened

prejudice of unfriendly tribunals,” and not for vindicating rights established under federal law. Felix

Frankfurter & James M. Landis, The Business of the

Supreme Court: A Study in the Federal Judicial System 64 (1927).

Then came a “radical change[] in the law regulating removals.” Gold-Washing & Water Co. v. Keyes,

96 U.S. 199, 204 (1878). In 1875, Congress allowed

any party — defendant or plaintiff — to remove cases

“arising under the Constitution or laws of the United

States, or treaties made . . . under their authority” by

petitioning before the case was tried in state court.

Act of Mar. 3, 1875, ch. 137, §§ 2-3, 18 Stat. 470, 47071.

The 1875 removal reform was “part of a larger substantive law and jurisdictional revolution” arising out

of Reconstruction. Michael G. Collins, The Unhappy

History of Federal Question Removal, 71 Iowa L. Rev.

717, 720 (1986). Federal courts became “the primary

and powerful reliances for vindicating every right

given by the Constitution, the laws, and treaties of the

United States.” Frankfurter & Landis, supra, at 65.

And federal-question removal “ensure[d] that the tribunal better informed on questions of federal law

would adjudicate” federal-law cases, promoting consistency in the interpretation of important federal issues. 16 James W. Moore et al., Moore’s Federal Practice § 107.03 (3d ed. 2023).

As a result, federal judges’ workloads increased,

and casehandling delays grew. See Frankfurter &

Landis, supra, at 77-78. In 1887, Congress restricted

the removal right to defendants and pushed back the

deadline for removing from any time before trial to

any time before the defendant was required to respond

to the plaintiff’s complaint. Act of Mar. 3, 1887, ch.

373, § 1, 24 Stat. 552, 553-54.

One purpose of the 1887 law was to establish a

uniform removal procedure “unaffected by local law

definition or characterization of the subject matter to

which it is to be applied.” Shamrock Oil & Gas Corp.,

313 U.S. at 104. But basing the limitations period on

the time for responding to the complaint caused the

removal deadline to vary from state to state. See Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S.

344, 351 (1999). To create a uniform end-date that left

adequate time to decide whether to remove the case,

Congress enacted 28 U.S.C. § 1446(b), which originally provided that “[t]he petition for removal of a civil

action or proceeding may be filed within twenty days

after commencement of the action or service of process, whichever is later.” Act of June 25, 1948, Pub.

L. No. 80-773, § 1446(b), 62 Stat. 869, 939.

Section 1446(b) was amended one year later to

change the timing trigger to receipt of the initial

pleading or service of summons. Act of May 24, 1949,

Pub. L. No. 81-72, § 83(a), 63 Stat. 89, 101. That law

also added the precursor to what is today Section

1446(b)(3). These changes protected defendants from

having to remove a suit before knowing what the suit

was about. Murphy Bros., 526 U.S. at 351-52. Congress later extended the removal deadline from

twenty to thirty days, where it stands today. Id. at

352 n.3.

The evolution of the removal statutes shows that

Congress wanted to accommodate both the need for

consistent interpretations of federal issues and the desire for “fair and unprotracted administration of justice.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 77 (1996).

Because of the important role removal plays in the

“proper allocation of decision-making responsibilities

between state and federal courts,” Wilson v. Intercollegiate (Big Ten) Conf. Athletic Ass’n, 668 F.2d 962,

965 (7th Cir. 1982), defendants must have a fair opportunity to decide whether to remove, see Murphy

Bros., 526 U.S. at 351-52. At the same time, defendants should not be able to “wait and see” how a state

proceeding goes before deciding whether to remove,

and state courts should not have to waste significant

time and resources processing a case that will ultimately be removed to federal court. See Johnson v.

Heublein Inc., 227 F.3d 236, 242 (5th Cir. 2000).

Section 1446(b)(1)’s thirty-day period promotes

fairness in the removal process, just like other statutory limitations periods. See Burnett, 380 U.S. at 428;

Order of R.R. Telegraphers, 321 U.S. at 348-49. Equitably tolling Section 1446(b)(1)’s time constraints to

preserve fairness to the parties when important federal questions are at stake is therefore consistent with

the removal statutes’ history and purpose.

II.

Section 1446(b)(1)’s Thirty-Day Deadline

Should Be Tolled Here.

Tolling is appropriate when (1) a party has diligently pursued its rights, and (2) “some extraordinary

circumstance” excuses the party’s technically late filing. Pace, 544 U.S. at 418. The traditional extraordinary circumstance is when one party “induce[s] or

trick[s]” the other “into allowing the filing deadline to

pass.” Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 96

(1990). As the Court explained when analyzing a prior

version of the removal statutes, tolling would be appropriate “if the conduct of the plaintiff in a given case

were merely a device to prevent a removal.” N. Pac.

R.R. v. Austin, 135 U.S. 315, 318 (1890).

Tolling is also appropriate when a party “has actively pursued [its] judicial remedies by filing a defective pleading during the statutory period.” Irwin, 498

U.S. at 96. For example, in Burnett, an employee sued

a railroad under the Federal Employers’ Liability Act

in state court. The state court dismissed the lawsuit

for lack of venue, and the employee refiled in federal

court — after the expiration of the law’s limitations

period. Because the employee “did not sleep on his

rights but brought an action within the statutory period in a state court of competent jurisdiction,” and because the employee’s failure to timely file in federal

court was “not because he was disinterested, but

solely because he felt that his state action was sufficient,” the Court excused the employee’s noncompliance with the statute of limitations. 380 U.S. at 429.

And in American Pipe & Construction Co. v. Utah,

414 U.S. 538 (1974), former class members of a class

action lawsuit moved to intervene as individual plaintiffs after certification of the class was denied, which

was after the applicable statute of limitations had

run. The defendants were on notice of the claims

against them and the types of potential plaintiffs, so

tolling was consistent with “policies of ensuring essential fairness to defendants and of barring a plaintiff

who ‘has slept on his rights.’” Id. at 554 (quoting Burnett, 380 U.S. at 428). On the other hand, allowing

only those potential class members who had timely

filed motions to intervene to participate “would deprive Rule 23 class actions of the efficiency and economy of litigation which is a principal purpose of the

procedure.” Id. at 553.

Tolling may also be appropriate when a party fails

to timely file because of “circumstances wholly beyond

[its] control.” Powers v. Chesapeake & Ohio Rwy., 169

U.S. 92, 100 (1898). For example, in Holland, a prisoner had repeatedly alerted his attorney to a filing

deadline but ultimately filed after the deadline had

passed. Beyond being simply negligent, the attorney

failed to file the petition after the prisoner’s many letters repeatedly identifying applicable legal rules and

requesting that the attorney file on time. Remanding

to the lower courts, this Court held that the attorney’s

failure to timely file “may well [have been] an ‘extraordinary’ instance” justifying equitable tolling. 560 U.S.

at 652.

Turning to this case: Attorney General Dana Nessel filed her complaint in June 2019 in state court, and

the summons and complaint were served on Enbridge

the next month. J.A. 103a. The parties moved for

summary disposition, and Attorney General Nessel

was awarded a temporary restraining order that

briefly enjoined the operation of the pipeline. Pet.

App. 3a-4a. Enbridge did not remove, and litigation

continued in state court for over a year.

But before the court had a chance to rule on the

motions for summary disposition, Governor Gretchen

Whitmer attempted to revoke an easement that authorizes Enbridge to operate the Line 5 pipeline in the

Straits of Mackinac. Pet. App. 4a. Governor Whitmer

then filed a new lawsuit in state court (Michigan v.

Enbridge). Id. Enbridge removed that lawsuit to federal district court, id., and filed a separate lawsuit in

federal court to enjoin the shutdown (Enbridge v.

Whitmer), Pet. App. 27a.

As a result, despite over a year of orderly litigation

over Line 5, Enbridge and Michigan were bound up in

three separate lawsuits by the end of 2020: this case

(then still in state court), Michigan v. Enbridge, and

Enbridge v. Whitmer. Governor Whitmer moved to remand Michigan v. Enbridge back to state court. Pet.

App. 5a. Because a decision in either of the cases in

federal court could “address [issues that] may

potentially impact th[e state] Court’s proceedings” in

this case, Attorney General Nessel and Enbridge

agreed to hold this case in abeyance. R. 38:9 (first alteration in original).

The federal district court denied Governor

Whitmer’s motion to remand Michigan v. Enbridge on

November 16, 2021, holding that it had federal-question jurisdiction because the case required interpretation of, among other laws, the Transit Pipelines

Treaty between the United States and Canada. Pet.

App. 6a. Under the Transit Pipelines Treaty, “[n]o

public authority in the territory of either Party shall

institute any measures . . . which are intended to, or

which would have the effect of, . . . interfering with in

any way the transmission of hydrocarbons in transit.”

Agreement Concerning Transit Pipelines, Can.-U.S.,

art. II, § 1, Jan. 28, 1977, T.I.A.S. No. 8,720. In opposition to Governor Whitmer’s remand motion, the

Government of Canada had filed an amicus brief arguing that Michigan’s attempts to shut down the Line

5 pipeline interfered with Line 5’s operations in violation of the Transit Pipelines Treaty. R. 38:10-11.

Canada subsequently notified the district court that it

had invoked the treaty’s dispute resolution provision

with the United States. R. 38:11.

As a result of the district court’s decision, Michigan

“shift[ed] its legal strategy to give Michigan state

courts the final say” in the Line 5 controversy. Governor Gretchen Whitmer, Governor Whitmer Takes Action to Protect the Great Lakes (Nov. 30, 2021).6 Governor Whitmer voluntarily dismissed Michigan v.

https://www.michigan.gov/whitmer/news/press-releases/

2021/11/30/governor-whitmer-takes-action-to-protect-the-greatlakes

Enbridge, Pet. App. 6a, and Attorney General Nessel

asked the state court to lift the stay in this case,

R. 38:12. Rather than wait for a federal court to resolve the important federal issues in the related cases,

Michigan opted to “move quickly to shut down the

dual pipelines.” Governor Gretchen Whitmer, supra.

Enbridge removed this case on December 15,

2021 — within thirty days of the decision in Michigan

v. Enbridge. J.A. 1a-20a, 57a; Pet. App. 7a.

These facts show several extraordinary circumstances justifying tolling. First, Michigan radically

changed its strategy after over a year of litigating this

case when it attempted to revoke Enbridge’s easement. Next, Canada’s intervention and initiation of

international dispute resolution procedures transformed this case into “substantially a new suit.”

Fletcher v. Hamlet, 116 U.S. 408, 410 (1886). “[I]t

would be impossible” for the federal government to

meaningfully honor its obligations under the Transit

Pipelines Treaty if state courts could “annul or disregard any of its provisions, unless they violate the Constitution of the United States.” Doe v. Braden, 57 U.S.

(16 How.) 635, 657 (1854).

It would also be contrary to the Supremacy Clause

for a state to attempt to override a treaty. Under Article VI of the Constitution, “all Treaties made, or

which shall be made, under the Authority of the

United States, shall be the supreme Law of the Land;

and the Judges in every State shall be bound thereby,

any Thing in the Constitution or Laws of any State to

the Contrary notwithstanding.”

After Canada alerted the district court and parties

that it was actively seeking to enforce its treaty rights,

and after the district court denied Governor

Whitmer’s motion to remand the case, it was clear for

the first time that Michigan v. Enbridge, Enbridge v.

Whitmer, and this case were at the center of an international controversy. That controversy involves

parties — sovereign nations — and circumstances

outside of Enbridge’s control.

Finally, after it had agreed to hold the state-court

litigation in abeyance, Michigan changed course again

by moving to resolve this lawsuit “quickly” and without federal oversight. Strictly enforcing Section

1446(b)(1)’s thirty-day limitations period here would

reward Michigan’s efforts to evade federal-court review. This Court should reverse the decision of the

court below and remand the case to the Sixth Circuit

with instructions for it to rescind the remand order.

CONCLUSION

This Court should reverse the decision of the court

below and remand this case for further proceedings in

federal court.

Respectfully submitted,