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 briefOct 20, 2025

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No. 24-783

In the Supreme Court of the United States

ENBRIDGE ENERGY, L.P., ET AL.

Petitioners,

DANA NESSEL, ATTORNEY GENERAL OF THE STATE OF

MICHIGAN, ON BEHALF OF THE PEOPLE OF THE STATE OF

MICHIGAN,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF FOR CENTER FOR LITIGATION & COURTS

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

SCOTT DODSON

JOSHUA P. DAVIS

Counsel of Record

MATTHEW SUMMERS

Berger Montague PC

DANIEL MARTIN

Center for Litigation & Courts 505 Montgomery St.

Suite 625

UC College of the Law – SF

San Francisco, CA 94111

200 McAllister St.

San Francisco, CA 94102

jdavis@bm.net

(925) 285-1445

dodsons@uclawsf.edu

TABLE OF CONTENTS

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

Interest of Amicus Curiae .......................................... 1

Summary of Argument ............................................... 2

Argument .................................................................... 2

A. If the 30-Day Removal Deadline Permits

Equitable Exceptions, They Aren’t Met

Here. ...................................................................... 2

B. This Court Needn’t—And Shouldn’t—

Decide Whether the 30-day Removal

Deadline is Ever Subject to Equitable

Exceptions. .......................................................... 12

Conclusion................................................................. 20

TABLE OF AUTHORITIES

CASES

Abbo-Bradley v. City of Niagara Falls,

73 F.4th 143 (2d Cir. 2023) ................................. 19

Arellano v. McDonogh,

598 U.S. 1 (2023) ................................................. 13

Beneficial National Bank v. Anderson,

539 U.S. 1 (2003) ................................................... 5

Blackburn v. Oaktree Capital Management,

LLC, 11 F.3d 633 (6th Cir. 2008) ........................ 20

Boechler, P.C. v. Commissioner of Internal

Revenue, 596 U.S. 199 (2022) ............................. 13

Broyes v. Junction City Foundry, Inc.,

992 F. Supp. 1246 (D. Kan. 1997) ....................... 15

Carlisle v. United States,

517 U.S. 416 (1996) ............................................. 14

Carlsbad Technologies, Inc. v. HIF Bio, Inc.,

556 U.S. 635 (2009) ............................................. 20

Caterpillar v. Lewis,

519 U.S. 61 (1996) ......................................... 18–19

Chamberlain v. Amrep, Inc.,

2004 WL 2324676 (N.D. Tex. 2004) .............. 14–15

Charles Dowd Box Co. v. Courtney,

368 U.S. 502 (1962) ......................................... 9–10

Colorado River Water Conservation District v.

United States, 424 U.S. 800 (2076) ....................... 8

iii

Couser v. Shelby County,

139 F.4th 664 (8th Cir. 2025) ............................... 5

DeMartini v. DeMartini,

964 F.3d 813 (9th Cir. 2020) ............................... 20

Gillis v. Louisiana,

294 F.3d 755 (5th Cir. 2002) ............................... 19

Glus v. Brooklyn Eastern District Terminal,

359 U.S. 231 (1959) ............................................. 15

Grable & Sons Metal Products, Inc. v. Darue

Engineering & Manufacturing,

545 U.S. 308 (2005) ............................................... 6

Great Northern Railroad Co. v. Merchants

Elevator Co., 259 U.S. 285 (1922) ......................... 9

Grover v. Corndial Corp.,

275 F. Supp. 2d 750 (W.D. Va. 2003).................. 14

Holland v. Florida,

560 U.S. 631 (2010) ............................................. 16

Harrow v. Department of Defense,

601 U.S. 480 (2024) ............................................. 13

Irwin v. Department of Veterans Affairs,

498 U.S. 89 (1990) ........................................... 2, 13

Kinley Corp. v. Iowa Utilities Board,

999 F.2d 354 (8th Cir. 1993) ................................. 5

Loftin v. Rush,

767 F.2d 800 (11th Cir. 1985) ....................... 11, 20

Menominee Indian Tribe of Wisconsin v. United

States, 577 U.S. 250 (2016) ......................... 2, 8, 10

Metropolitan Life Insurance Co. v. Taylor,

481 U.S. 58 (1987) ................................................. 5

Michigan v. Enbridge Energy, L.P.,

571 F. Supp. 3d 851 (W.D. Mich. 2021) ................ 7

Morse v. Frederick,

551 U.S. 393 (2007) ............................................. 12

Northern Pacific Railroad Co. v. Austin,

135 U.S. 315 (1890) ....................................... 13, 15

Nutraceutical Corp. v. Lambert,

586 U.S. 188 (2019) ............................................. 14

Osborn v. Haley,

549 U.S. 229 (2007) ............................................. 19

Pace v. DiGuglielmo,

544 U.S. 408 (2005) ................................. 2, 4, 8, 12

PDK Labs., Inc. v. D.E.A.,

362 F.3d 786 (D.C. Cir. 2004) ............................. 12

Powers v. Chesapeake & Ohio Railway Co.,

169 U.S. 92 (1898) ................................................. 3

Price v. Wyeth Holdings Corp.,

505 F.3d 624 (7th Cir. 2007) ................................. 4

Quackenbush v. Allstate Insurance Co.,

517 U.S. 706 (1996) ............................................. 20

Ross v. Blake,

578 U.S. 632 (2016) ............................................. 12

Shamrock Oil & Gas Corp. v. Sheets,

313 U.S. 100 (1941) ............................................... 9

Staples v. Joseph Morton Co.,

444 F. Supp. 1312 (E.D.N.Y. 1978)..................... 15

Stutler v. Marathon Pipeline Co.,

938 F. Supp. 968 (S.D. Ind. 1998) ......................... 5

Syngenta Crop Protection, Inc. v. Henson,

537 U.S. 28 (2002) ............................................... 13

Tafflin v. Levitt,

493 U.S. 455 (1990) ............................................. 10

Taylor v. Medtronic, Inc.,

15 F.4th 148 (2d Cir. 2021) ................................. 19

Teague v. Regional Commissioner of Customs,

394 U.S. 977 (1969) ............................................. 14

Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336 (1976) ............................................. 20

Transport Indemnity Co. v. Financial Trust Co,

339 F. Supp. 405 (C.D. Cal. 1972) ...................... 15

United States v. Joseph,

94 U.S. 614 (1876) ............................................... 12

United States v. Mitchell,

463 U.S. 206 (1983) ............................................. 11

Vogel v. U.S. Office Products Co.,

56 F. Supp. 2d 859 (W.D. Mich. 1999) ................ 14

RULES AND STATUTES

15 U.S.C. § 717u ......................................................... 9

28 U.S.C. § 1292 ....................................................... 18

28 U.S.C. § 1441 ......................................................... 5

28 U.S.C. § 1442 ......................................................... 9

28 U.S.C. § 1447 ................................................. 19, 20

28 U.S.C. § 1453 ................................................. 18, 19

Fed. R. Civ. P. 12 ................................................ 11, 19

Federal Courts Jurisdiction and Clarification

Act, Pub. L. 112-63, 125 Stat. 758 (2011) ........... 16

Act of May 24, 1949, 63 Stat. 101 ...................... 16–17

OTHER

14C Charles Alan Wright & Arthur R. Miller,

Federal Practice & Procedure § 3731

(5th ed. 2025) ................................................. 10, 19

Daniel Wilf-Townsend, Assembly-Line

Plaintiffs, 135 Harv. L. Rev. 1704 (2022) ........... 15

INTEREST OF AMICUS CURIAE

The Center for Litigation and Courts (“Center”) is

a nonpartisan, academic research center at the

University of California Law, San Francisco. Its

mission includes sharing knowledge of civil litigation

with courts. In furtherance of that mission, the Center

has filed briefs in this Court and others on issues

relevant to its expertise in civil litigation.

The Center has a particular expertise in the

matters of federal jurisdiction and procedure at issue

in this case. Because neither the parties nor the courts

below have fully addressed the position articulated in

this amicus brief, the Center believes the brief will aid

the Court’s adjudication.

The Center’s interest is in informed development

and application of federal law. The Center has no

interest in the ultimate outcome of this litigation.

Rather, the Center’s interest is that of a true friend of

the court.1

1 No person or entity other than the Center and its

counsel authored this brief in whole or in part or

contributed money intended to fund the preparation or

submission of this brief.

SUMMARY OF THE ARGUMENT

Whether the nonjurisdictional 30-day removal

deadline is ever subject to equitable exceptions is a

difficult question that this Court needn’t—and

shouldn’t—answer here. That’s because, even if the

statute permits equitable exceptions, Petitioners don’t

qualify for them.

That reason alone is sufficient to affirm the Sixth

Circuit’s judgment ordering the district court to

remand the case. Principles of judicial restraint

counsel going no further. Alternatively, the Court may

prefer to dismiss the writ as improvidently granted.

ARGUMENT

A. If the 30-Day Removal Deadline Permits

Equitable Exceptions, They Aren’t Met Here.

1. Equitable exceptions to the 30-day deadline—if

permitted at all—require the defendant to prove two

elements: (1) the defendant diligently pursued

removal; and (2) exceptional or extraordinary

circumstances beyond the defendant’s control

prevented removal.

a. The general test for equitable tolling is clear: the

litigant must prove both diligence in pursuing the

right and the presence of extraordinary circumstances

beyond the litigant’s control that stood in the way.

Menominee Indian Tribe of Wis. v. United States, 577

U.S. 250, 255–56 (2016); Pace v. DiGuglielmo, 544 U.S.

408, 418 (2005). The Court has cautioned that the test

is a difficult one to meet. See Irwin v. Dep’t of Veterans

Aff., 498 U.S. 89, 96 (1990) (“Federal courts have

typically extended equitable relief only sparingly.”).

b. This Court’s removal cases suggest that

equitable tolling, if it applies to removal deadlines in

the first place, would follow this stringent, two-part

test requiring both diligence in seeking removal and

exceptional circumstances beyond the defendant’s

control that stood in the way.

In Powers v. Chesapeake & Ohio Railway Co., 169

U.S. 92 (1898), the Court confronted a removal outside

the pre-1949 version of the deadline, which ran solely

from when the case was filed, rather than from when

it became removable. The defendant initially removed

the case within the deadline, but the district court

remanded for lack of complete diversity. On remand,

but after the removal time expired, the plaintiff

dismissed all nondiverse parties, and the defendant

again exercised diligence by immediately removing.

Id. at 97–98. This Court held the second removal

timely to prevent a diligent defendant’s opportunity to

remove “from being defeated by circumstances wholly

beyond his control.” Id. at 100–01.

Powers is a statutory-interpretation case on when

the time to remove begins, not an equitable-exception

case. Id. at 102 (“We do not find it necessary to pass

upon the points of fraudulent joinder and of estoppel

. . . because, for the reasons before stated, we are of

opinion that, upon the true construction of the act of

congress, the petition [was timely].”). But by

emphasizing the defendant’s due diligence and

circumstances wholly beyond his control, Powers is

consistent with the Court’s general approach to

equitable tolling. Powers thus suggests that, if

equitable tolling applies to the removal deadline, the

general Menominee Indian Tribe test would apply.

2. In this case, Petitioners don’t qualify for

equitable tolling of the 30-day removal deadline—even

were it available—because they meet neither element

of the Menominee Indian Tribe test; Petitioners

neither were diligent in seeking removal nor faced

exceptional circumstances beyond their control that

stood in their way.

a. Neither Petitioners nor their amici try to show

diligence. Yet diligence is an essential prerequisite to

equitable tolling. Pace, 544 U.S. at 418 (“Even if we

were to accept [the existence of extraordinary

circumstances], [Petitioner] would not be entitled to

relief because he has not established the requisite

diligence.”). Diligence is especially crucial here

because Congress intentionally crafted a short, rigid,

and clear deadline to prevent defendants from unfairly

waiting to see how their case might fare before

removing. See Price v. Wyeth Holdings Corp., 505 F.3d

624, 631 (7th Cir. 2007).

Here, Petitioners weren’t diligent in seeking

removal. Instead, they repeatedly followed a wait-andsee approach in their litigation strategy.

Petitioners could’ve—but didn’t—remove the case

when it was originally filed. Rather than file a notice

of removal, Petitioners filed a motion to dismiss and

for summary disposition on the pleadings, arguing

that all Respondent’s claims were preempted by

federal law. (J.A. 145a–155a.) Petitioners asserted

•

that “the Federal Government has occupied the

entire field”;

•

that, “to ensure that states do not regulate in

areas covered by [the federal pipeline act,]”

Congress “express[ly] preempt[ed]” state

regulatory laws and gave the federal Pipeline

and

Hazardous

Materials

Safety

Administration “exclusive jurisdiction” as “a

single regulator” to regulate pipelines like the

one at issue in this lawsuit;

•

that the act “preempts all efforts by states or

local governments to impose, whether facially

or otherwise, operational and environmental

requirements that pertain to the interstate

pipelines”; and

•

that, citing Kinley Corp. v. Iowa Util. Bd., 999

F.2d 354, 358 (8th Cir. 1993), “the state cannot

regulate in this area” because of preemption.

(J.A. 147a–152a.)

Those same preemption arguments offered a

colorable basis for removal under the doctrine of

complete-preemption removal. Beneficial Nat’l Bank

v. Anderson, 539 U.S. 1, 8 (2003) (“When the federal

statute completely pre-empts the state-law cause of

action, a claim which comes within the scope of that

cause of action, even if pleaded in terms of state law,

is in reality based on federal law. This claim is then

removable under 28 U.S.C. § 1441(b) . . . .”); Metro. Life

Ins. Co. v. Taylor, 481 U.S. 58, 63–64 (1987)

(“Congress may so completely pre-empt a particular

area that any civil complaint raising this select group

of claims is necessarily federal in character.”); see also

Couser v. Shelby Cnty., 139 F.4th 664, 672 (8th Cir.

2025) (concluding that “Congress expressly preempted

the entire field of hazardous liquid pipeline safety”);

Kinley, 999 F.2d at 359 (“This Congressional grant of

exclusive federal regulatory authority precludes state

decision-making in this area altogether and leaves no

regulatory room for the state to either establish its

own safety standards or supplement the federal safety

standards.”); cf. Stutler v. Marathon Pipeline Co., 938

F. Supp. 968, 970 (S.D. Ind. 1998) (concluding that

complete-preemption removal under the Pipeline

Safety Act “was not frivolous”).

Petitioners, however, chose to seek summary

disposition in state court rather than removal to

federal court. That decision was perfectly reasonable.

In state court, Petitioners had a chance to obtain a

judgment on the pleadings. Successfully removing the

case to federal court, by contrast, would’ve converted

some claims to federal claims based on complete

preemption,

potentially

disrupting

state-law

arguments that Petitioners might have hoped would

prevail in state court. So Petitioners made a strategic

decision to submit to the authority of the state court to

adjudicate their dispositive motion rather than

diligently pursue their right to remove.

Petitioners declined a second opportunity to

remove the case when the Governor filed a “virtually

identical lawsuit” in state court against Petitioners

alleging “the same basic facts and state-law theories.”

(Pet’r Br. 10.) On November 24, 2020, Petitioners

timely removed the Governor’s case, but not this case,

based on federal-question jurisdiction under Grable &

Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545

U.S. 308 (2005). (Pet. App. 5a & 29a n.4.)

By that time (and likely well before), the Grable

arguments for removal were equally available to

Petitioners as a basis to remove this case.

Nonetheless, Petitioners again chose to keep this case

in state court by agreeing to hold the state-court action

in abeyance. (Pet’r Br. 13.) And again, the decision was

reasonable. Petitioners could wait to see how they

fared in the Governor’s case in federal court, and, if

they fared poorly, they still had their pending

dispositive motion in state court. Removing this case,

by contrast, would moot their dispositive motion and

prematurely commit them to federal court.

The wait-and-see gambit paid off. In the Governor’s

case, the district court confirmed that the case was

removable based on federal-question jurisdiction

under Grable. Michigan v. Enbridge Ene., L.P., 571 F.

Supp. 3d 851, 858–59 (W.D. Mich. 2021). The district

court also “made rulings reflecting its view of the

merits” that favored Petitioners. (Pet’r Br. 15.) Having

secured that favorable ruling, Petitioners finally

removed this case based on the same Grable factors

and noted it as a related case for assignment to the

same federal judge. (J.A. 4a.) Removal occurred more

than two years after the case was originally filed, more

than two years after Petitioners moved for summary

disposition in state court based on preemption, and

about a year after Petitioners removed the Governor’s

case based on Grable. (Pet. App. 6a–7a, 29a.)

In short, Petitioners could’ve removed the case

when originally filed based on complete-preemption

grounds; they instead chose to seek merits

adjudication in state court. They could’ve removed the

case when they removed the Governor’s nearly

identical case on Grable grounds; they again instead

chose to wait and see what happened with that

removal before abandoning their dispositive motion in

state court. Each step of the way, Petitioners decided

against removal in favor of a wait-and-see litigation

strategy to keep their state-court motion pending until

getting enough information to finally better-deal the

state court. That is not “diligence,” and neither

Petitioners nor their amici argue to the contrary.

Petitioners’ failure to exercise due diligence in

pursuing removal is fatal to their assertions of

equitable tolling even if equitable tolling is allowed

under the statute. Cf. Pace, 544 U.S. at 419

(explaining that where a party “waited years, without

any valid justification, to assert [his] claims,” his lack

of diligence precluded equitable tolling).

b. Nor have Petitioners shown exceptional or

extraordinary circumstances beyond their control that

prevented removal.

A showing of exceptional or extraordinary

circumstances is an independent, essential element of

equitable tolling. Menominee Indian Tribe, 577 U.S. at

259 n.5. This element requires not only that the

circumstances be exceptional or extraordinary but also

that they be beyond the litigant’s control. Id. at 257

(“[T]he second prong of the equitable tolling test is met

only where the circumstances that caused a litigant’s

delay are both extraordinary and beyond its control.”

(emphasis in original)).

The district court found exceptional circumstances

based on the importance of the federal issues, a

“collision course” between the state and federal

actions, and the need “to maintain uniform and

consistent administration of this controversy.” (Pet.

App. 34a & n.9, 35a–38a.)

No other federal court of which amicus is aware has

permitted untimely removal by a private party based

on the importance of the federal issues, the need to

avoid parallel state and federal litigation, or the need

to maintain uniform and consistent administration of

the dispute. Notably, those very same concerns were

present in a canonical abstention opinion from this

Court that directed a federal court to dismiss a case in

favor of state-court jurisdiction. Colo. R. Water

Conserv. Dist. v. United States, 424 U.S. 800 (1976).

Those concerns don’t justify excusing noncompliance

with a clear and rigid removal deadline. See Shamrock

Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09 (1941)

(stating that “[d]ue regard for the rightful

independence of state [courts] requires [federal courts]

scrupulously confine their own jurisdiction” via “strict

construction” of the removal statute). Nothing about

the federal issues in this case is exceptional, and the

district court was wrong to conclude otherwise.

Had Congress thought matters involving pipeline

regulation especially deserving of federal-court

adjudication, Congress could’ve provided for exclusive

federal jurisdiction or for a more flexible removal

regime for such disputes, as Congress has with other

types of claims. E.g., 15 U.S.C. § 717u (exclusive

federal jurisdiction over certain civil actions involving

natural gas); 28 U.S.C. § 1442 (federal-officer

removal). Instead, Congress left the forum decision in

this case to the parties under ordinary, concurrent

federal-question jurisdiction and ordinary, partydriven removal procedures. Congress has long

committed even important federal issues to concurrent

federal-court jurisdiction, content to allow the parties

to agree to state court, if they wish, with this Court

available to safeguard interests in federal-law

uniformity and solicitude. E.g., Tafflin v. Levitt, 493

U.S. 455 (1990) (holding RICO subject to concurrent

jurisdiction). Cf. Great N. R. Co. v. Merchants Elevator

Co., 259 U.S. 285, 290–91 (1922) (noting that

important questions of federal law “may ultimately be

reviewed by this court either on writ of error or on writ

of certiorari; and thereby uniformity in construction

may be secured”). And the nation has long followed a

“consistent history of acceptance of concurrent

jurisdiction.” Charles Dowd Box Co. v. Courtney, 368

U.S. 502, 508 (1962). To use equitable tolling—a device

designed for fairness to the parties—to override the

parties’ initial choice of forum, Congress’s decision to

provide for concurrent jurisdiction, and the union’s

longstanding solicitude of concurrent jurisdiction

would turn removal on its head. This case offers no

basis to justify such a revolution.

Petitioners’ alternative contention—that Grable

removal was uncertain until proved successful in the

Governor’s case (Pet’r Br. 18, 34–35)—also doesn’t

qualify as an exceptional circumstance beyond

Petitioners’ control. In Menominee Indian Tribe, this

Court rejected a similar argument based on a litigant’s

mistaken judgment, concluding that a “mistake of law

was not outside its control.” 577 U.S. at 257 n.3. The

Court explained: “[I]t is common for a litigant to be

confronted with . . . an uncertain outcome based upon

an uncertain legal landscape, and impending

deadlines.

These

circumstances

are

not

extraordinary.” Id. at 258 (quotation marks omitted).

Finally, Petitioners argue that suspected forum

shopping by Respondent and the parties’ abeyance

agreement in state court amount to exceptional

circumstances. (Pet’r Br. 42–44.) Petitioners are

wrong. A legion of cases denies equitable tolling to

represented defendants even when the parties agree

to continue proceedings in state court beyond the 30day deadline. 14C Charles Alan Wright & Arthur R.

Miller, Fed. Prac. & Proc. § 3731 n.63 (5th ed. 2025)

(collecting cases). After all, such an agreement—as the

abeyance agreement here—requires the consent of the

defendant, consent that’s wholly within the

defendant’s control. As for suspected forum shopping

by Respondent, removal itself provides the solution:

when plaintiffs select state court, defendants may

counter with their own preemptive removal right.

Petitioners’ recourse to any suspected state-court

forum shopping by Respondent was to preemptively

remove the case rather than file a motion in state court

and wait to see what would happen.

3. The facts of this case make for an easy decision:

the removal petition was untimely, and equitable

tolling isn’t available. The facts don’t even present a

circuit split.2 The Sixth Circuit correctly ordered the

case remanded to state court.

2 Petitioners wouldn’t be entitled to equitable tolling

under Loftin v. Rush, 767 F.2d 800 (11th Cir. 1985).

Loftin involved a state court’s default money judgment

against the U.S. Navy despite sovereign immunity

from such judgments. Id. at 805. Even if amounting to

exceptional circumstances, those facts aren’t apposite

to Petitioners. For one, the Government’s litigationdefense structure is uniquely bureaucratic, such that

a surprising and unusual default money judgment

issued by a state court may require more than 30 days

for the Government to properly assess its strategy. Cf.

Fed. R. Civ. P. 12(a)(2) (giving the Government 60

days to respond to a complaint rather than the usual

21 days for other defendants). For another, federal

sovereign immunity is jurisdictional and can be raised

at any time. United States v. Mitchell, 463 U.S. 206,

212 (1983). Petitioners can claim neither the unique

bureaucracy nor the sovereign immunity that might

amount to special and exceptional circumstances for

the Government in a case like Loftin.

B. This Court Needn’t—And Shouldn’t—

Decide Whether the 30-day Removal

Deadline is Ever Subject to Equitable

Exceptions.

1. The Sixth Circuit held, and Respondent argues,

that the 30-day deadline is never amenable to

equitable exceptions. (Pet. App. 2a, 18a–24a; Resp. Br.

21–53.) Petitioners disagree. (Pet’r Br. 23–50.) This

Court needn’t, and shouldn’t, decide who’s correct. See

Pace, 544 U.S. at 418 n.8 (finding that a party was “not

entitled to equitable tolling” without deciding whether

equitable tolling was available in the first place).

2. Fundamental principles of judicial restraint

counsel against pronouncing a broad rule when a

narrow resolution is easy and straightforward. A

“‘cardinal principle of judicial restraint’ is that ‘if it is

not necessary to decide more, it is necessary not to

decide more.’” Morse v. Frederick, 551 U.S. 393, 431

(2007) (Breyer, J., concurring & dissenting) (quoting

PDK Labs., Inc. v. D.E.A., 362 F.3d 786, 799 (D.C. Cir.

2004) (Roberts, J., concurring)). That prudent

principle has guided this Court for more than a

century. United States v. Joseph, 94 U.S. 614, 618

(1876) (“abiding by the rule which we think ought

always to govern this court, to decide nothing beyond

what is necessary to the judgment we are to render”).

Judicial restraint is especially applicable here, for

three reasons.

a. First, the broader question is a difficult one

under the Court’s existing doctrine.

As the parties’ briefing shows, the word “shall” is

ambiguous. (Pet’r Br. 33–34; Resp. Br. 34–35.)

Compare Ross v. Blake, 578 U.S. 632 (2016) (rejecting

equitable exceptions to the PLRA’s exhaustion

requirement because of the word “shall”), with Harrow

v. Dep’t of Defense, 601 U.S. 480, 489 (2024) (stating

that the presumption of equitable tolling applies to a

statutory filing deadline with the word “shall”).

The structure of the statutory framework for

removal points in different directions (Pet’r Br. 37–40;

Resp. Br. 35–44), as do longstanding judicial

presumptions (Pet’r Br. 32–33; Resp. Br. 32). Compare

Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32

(2002) (directing that removal statutes be “strictly

construed”), with Northern Pac. R. Co. v. Austin, 135

U.S. 315, 318 (1890) (recognizing arguments for

equitable estoppel), and Boechler, P.C. v. Comm’r of

Internal Revenue, 596 U.S. 199, 209–10 (2022)

(applying the general presumption of equitable

tolling), and with Arellano v. McDonogh, 598 U.S. 1

(2023) (finding the equitable-tolling presumption

rebutted).

So the question presented is a difficult one.

b. Second, waiting for a case presenting truly

extraordinary circumstances beyond a diligent

defendant’s control, briefed by parties with a concrete

stake in them, would better inform this Court about

whether and when Congress intended the deadline to

allow for equitable exceptions in deserving cases. Such

cases are reasonably foreseeable.

Suppose, for example, a surprise cyber attack shuts

down a district court’s ECF system (but the clerk’s

office’s remains accessible for accepting physical

filings) for the twenty-four hours immediately

preceding the expiration of the 30-day removal

deadline, and an out-of-state defendant, who was

prepared for timely electronic filing, can’t make lastday arrangements for physical filing until the next

morning. Cf. Nutraceutical Corp. v. Lambert, 586 U.S.

188, 197 n.7 (2019) (reserving “whether an

insurmountable impediment to timely filing might

compel a different result”); Teague v. Regional Comm’r

of Customs, 394 U.S. 977, 981–84 (1969) (Black, J.,

dissenting) (recounting an analogous act-of-God filing

delay caused by an unexpected snowstorm); Grover v.

Corndial Corp., 275 F. Supp. 2d 750 (W.D. Va. 2003)

(accepting a defendant’s removal notice as timely

when the defendant’s good-faith attempt to file was

prevented by bad weather); Vogel v. U.S. Off. Prods.

Co., 56 F. Supp. 2d 859, 865–66 (W.D. Mich. 1999)

(accepting a late removal notice when the defendant

timely submitted the notice to the court, but the clerk

failed to properly docket the notice in time), rev’d on

other grounds, 258 F.3d 509 (6th Cir. 2001).

Consider further, in the above hypothetical, that

the defendant could, with significant expense,

physically file a timely notice but instead relies on the

district court’s assurance that all filings subject to

nonjurisdictional deadlines will be deemed timely if

made the following day. Cf. Carlisle v. United States,

517 U.S. 416, 435–36 (1996) (Ginsburg, J., concurring)

(discussing the “unique circumstances” exception

when a court misleads a party into filing late).

Or consider a plaintiff who files a removable case

in state court, but the state court dismisses the case

before the defendant can remove, leaving nothing to

remove. The plaintiff successfully seeks reopening of

the case, or reconsideration of the dismissal, or even

direct appeal to the state appellate court, and, as a

result, the case is reopened, but, in the meantime, the

30-day removal deadline has elapsed. Cf. Chamberlain

v. Amrep, Inc., 2004 WL 2324676 (N.D. Tex. 2004)

(finding equitable tolling under those circumstances).

Or consider a defendant who, immediately after

service, engages in good-faith settlement negotiations

with the plaintiff, resulting in a settlement offer to the

plaintiff on the thirtieth day of the removal window,

which the plaintiff orally, but in bad faith, accepts and

specifically pledges not to move to remand the case

based on noncompliance with the 30-day deadline to

give the parties time to consummate a written

settlement agreement. The next morning, the plaintiff

reneges, seeking more money. The defendant

immediately removes the case, and the plaintiff moves

to remand based on the 30-day deadline. Compare

Transport Indem. Co. v. Fin. Trust Co., 339 F. Supp.

405, 408–09 (C.D. Cal. 1972) (hypothesizing similar

facts justifying equitable estoppel), and Staples v.

Joseph Morton Co., 444 F. Supp. 1312 (E.D.N.Y. 1978)

(applying estoppel on similar facts), with Broyes v.

Junction City Foundry, Inc., 992 F. Supp. 1246 (D.

Kan. 1997) (denying estoppel based on similar facts).

Cf. Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231,

233–34 (1959) (affirming the general principle of

equitable estoppel); Northern Pac. R., 135 U.S. at 318

(suggesting, in dictum, the possibility of applying

equitable estoppel to the 30-day removal deadline).

Now add to this hypothetical the facts that the

defendant is pro se and the plaintiff is a represented

debt-collection agency that repeatedly sues pro se

defendants in state court seeking a quick and lucrative

resolution, which removal would disrupt. See Daniel

Wilf-Townsend, Assembly-Line Plaintiffs, 135 Harv. L.

Rev. 1704, 1708–10 (2022) (documenting that

represented

corporate

plaintiffs—often

debt

collectors—repeatedly sue individual, pro-se debtors

in state court).

Perhaps these or other exceptional scenarios could

present a compelling case for equitably tolling or

excusing the 30-day removal deadline. See Holland v.

Florida, 560 U.S. 631, 650 (2010) (acknowledging that

“specific circumstances, often hard to predict in

advance, could warrant special treatment in an

appropriate case”). But they are not before the Court,

and they have no advocates to argue their merits here.

The easy answer produced by the facts in this case

masks more difficult circumstances in which equitable

exceptions are more compelling. Awaiting a more

appropriate case would offer better grounding for

deciding whether to adopt a blanket rule against all

equitable exceptions to the 30-day removal deadline.

c. Third, Congress could, in the meantime, step in

to clarify when, if at all, the 30-day deadline is subject

to equitable exceptions. Ultimately, the flexibility of

the deadline is a question for Congress, which has, in

the past, resolved conflicts and uncertainties over

whether and when removal deadlines should yield to

exceptional circumstances. E.g., Federal Courts

Jurisdiction and Clarification Act, Pub. L. 112-63, §

103, 125 Stat. 758 (2011) (resolving lower-court

conflicts by adding a bad-faith exception to the oneyear bar on removal of diversity cases); id. (resolving

lower-court conflicts by giving each defendant its own

30-day deadline to remove); Act of May 24, 1949, ch.

139, § 83, 63 Stat. 101 (superseding this Court’s

interpretation in Powers by amending the 30-day

removal deadline to clarify that the time period begins

when the case becomes removable). An opinion from

this Court noting the difficulty of the issue but

reserving judgment would give Congress the first

opportunity to clarify or rework the statute as it sees

fit. And the Judicial Conference could charge its

Committee on Federal-State Jurisdiction to study the

issue and provide guidance to Congress in the interim.

For these reasons, judicial restraint counsels

against deciding the broad question presented here.

3. The principle of judicial restraint might be set

aside if leaving the question undecided would cause

unacceptable confusion, uncertainty, or unfairness, or

if the question would likely evade review in the future.

Here, neither situation is concerning.

a. Leaving the broader question unanswered here

will not generate unacceptable confusion, uncertainty,

or unfairness because exceptional circumstances are

rare. In the decades of practice under the 30-day

statutory deadline, across hundreds of thousands of

removal petitions filed, the issue has reached decision

in only a small minority of appellate courts. In the vast

majority of removals, the 30-day deadline will be

either clearly met or clearly not met.

And the unanticipated nature of those rare

instances of exceptional circumstances inhibits

gamesmanship. The plaintiff selects the initial forum,

and the defendant has no option to transfer a statecourt case across state lines. Thus, the defendant has

little opportunity to strategically select a forum within

a circuit that recognizes exceptional circumstances.

And the unpredictable nature of exceptional

circumstances ought not influence the plaintiff’s

initial selection of a circuit that doesn’t recognize

equitable exceptions. So leaving the question

unanswered, for now, won’t cause unfairness.

b. Although exceptional circumstances are rare,

when they do arise, they likely won’t evade review in

an appropriate future case.

Whether the 30-day removal deadline permits

equitable exceptions is either unresolved or answered

in the affirmative in around eleven circuits. If a

district court in one of those circuits denies a motion

to remand after finding equitable reasons to excuse

noncompliance with the 30-day deadline, then the

plaintiff may challenge that ruling in one of two ways.

First, the plaintiff in a class-action case falling

under the Class Action Fairness Act can seek

immediate review of the denial of a remand order. See

28 U.S.C. § 1453(c)(1) (“[A] court of appeals may accept

an appeal from an order of a district court granting or

denying a motion to remand a class action to the State

court from which it was removed . . . .”). In all other

cases, a plaintiff can seek interlocutory review, as

Respondent did here. See 28 U.S.C. § 1292(b).

Although appeal in either circumstance is

discretionary, an opinion from this Court reserving the

question will signal to lower courts that permission to

appeal should be granted.

Second, the plaintiff can seek review of the denial

of a motion to remand in conjunction with a dispositive

pretrial order, such as the granting of a motion to

dismiss. In such a case, Caterpillar v. Lewis, 519 U.S.

61 (1996), will not stand in the plaintiff’s way.

Caterpillar held that a statutory defect in

removal—that the case be suitable for removal at the

time of removal—could be disregarded when the case

had reached verdict and thus faced overwhelming

considerations of finality, efficiency, and economy. Id.

at 75–76. Caterpillar may apply in the rare case that

involves no dispositive ruling through years of pretrial

litigation and then trial. But pretrial disposition is far

more common. Frequently, federal judges dismiss

cases prior to discovery for failure to state a claim. See

Fed. R. Civ. P. 12(b)(6). A plaintiff appealing a

dismissal could also appeal the denial of a remand

motion, and because considerations of finality,

efficiency, and economy wouldn’t be overwhelming in

such a case, Caterpillar wouldn’t bar appellate courts

from reviewing the timeliness of removal. E.g., Taylor

v. Medtronic, Inc., 15 F.4th 148 (2d Cir. 2021)

(considering the 30-day deadline on the plaintiff’s

appeal of both a dismissal under Rule 12(b)(6) and the

denial of a motion for remand); cf. Gillis v. Louisiana,

294 F.3d 755 (5th Cir. 2002) (considering the 30-day

deadline on the plaintiff’s appeal of both a summary

judgment and the denial of a motion for remand).

If a district court grants a plaintiff’s motion to

remand, holding that the deadline doesn’t recognize

equitable exceptions, appellate review is, admittedly,

more difficult because 28 U.S.C. § 1447(d) normally

would bar the defendant from appealing the remand.

That bar, however, doesn’t apply in civil-rights

removals, in federal-officer removals, in Class Action

Fairness Act removals, in Westfall Act removals, and

in two other kinds of cases. See 28 U.S.C. §§ 1447(d)

(exempting civil-rights and federal-officer removals);

id. § 1453(c) (class-action removal); Osborn v. Haley,

549 U.S. 229 (2007) (Westfall Act); 14C Wright &

Miller, supra, § 3740 (other cases). So a defendant

removing any of these cases could appeal a remand

order based on noncompliance with the 30-day

deadline. E.g., Abbo-Bradley v. City of Niagara Falls,

73 F.4th 143 (2d Cir. 2023) (considering the 30-day

deadline on appeal from a remand order after federalofficer removal).

In other cases, the appellate bar doesn’t apply to

certain remand orders for reasons outside of removal

or jurisdictional defects. See Carlsbad Tech., Inc. v.

HIF Bio, Inc., 556 U.S. 635 (2009) (discretionary

decline of supplemental jurisdiction); Quackenbush v.

Allstate Ins. Co., 517 U.S. 706 (1996) (abstention);

Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336

(1976) (remand based on docket congestion). And

several courts of appeals (including the Sixth Circuit)

have held that remand orders under Section 1447(e)

aren’t subject to the appellate bar. E.g., DeMartini v.

DeMartini, 964 F.3d 813 (9th Cir. 2020); Blackburn v.

Oaktree Cap. Mgmt., LLC, 511 F.3d 633 (6th Cir.

2008). If a defendant appeals a remand based on one

of these grounds when the 30-day deadline is also at

issue, the plaintiff could seek affirmance of the

remand order based on the alternative ground of

noncompliance with the 30-day deadline, allowing the

court of appeals to decide whether the deadline

supplies an alternative reason to affirm the remand.

E.g., Loftin, 767 F.2d at 805–06 (reviewing

noncompliance with the 30-day removal deadline on

appeal from a remand made pursuant to discretionary

decline of supplemental jurisdiction).

For these reasons, an appropriate case presenting

truly exceptional circumstances is likely to be

reviewable by this Court in the future.

CONCLUSION

In such an appropriate case, perhaps this Court

should resolve the question presented. But that day

needn’t be today, and this case isn’t such a case.

The Court instead should affirm the Sixth Circuit

solely on the ground that the facts of this case don’t

warrant excusing noncompliance with the 30-day

removal deadline. In the alternative, the Court may