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 21, 2025

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No. 24-783

In The

Supreme Court of the United States

ENBRIDGE ENERGY, LP, ET AL.,

Petitioners,

DANA NESSEL, ATTORNEY GENERAL 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 OF FEDERAL COURTS AND CIVIL

PROCEDURE SCHOLARS

AS AMICI CURIAE IN SUPPORT OF

RESPONDENT

Dana Kaersvang*

Counsel of Record

Hyland Hunt

DEUTSCH HUNT PLLC

300 New Jersey Ave., NW

Suite 300

Washington, DC 20001

(202) 888-0404

dkaersvang@deutschhunt.com

*Licensed in Colorado

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION AND SUMMARY OF

ARGUMENT .........................................................3

ARGUMENT ...............................................................5

Equitable tolling is not consistent with the

text and amendment history of § 1446. ...............5

A. In § 1446, Congress created a detailed,

rules-based system so that removal

questions would be decided promptly and

uniformly. .......................................................5

B. The background principle of equitable

tolling does not apply to forum selection

rules like § 1446. ..........................................12

II. Application of the statute as written protects

important interests in uniformity, certainty,

and efficiency. .....................................................19

CONCLUSION ..........................................................28

(i)

TABLE OF AUTHORITIES

Cases

American Pipe & Construction Co. v. Utah,

414 U.S. 538 (1974) .............................................. 16

Bernstein v. Maximus Fed. Servs., Inc.,

63 F.4th 967 (5th Cir. 2023) ................................. 24

Boechler, P.C. v. Comm’r,

596 U.S. 199 (2022) .................................. 13, 15, 19

BP Pub. Ltd. Co. v. Mayor of Baltimore,

593 U.S. 230 (2021) ...............................7, 17, 24, 25

Breuer v. Jim’s Concrete of Brevard, Inc.,

538 U.S. 691 (2003) .............................................. 17

Carlsbad Technology, Inc. v. HIF Bio, Inc.,

556 U.S. 635 (2009) .............................................. 17

Caterpillar Inc. v. Lewis,

519 U.S. 61 (1996) ...................................... 7, 23, 24

City & Cnty. of San Francisco v. EPA,

604 U.S. 334 (2025) .............................................. 11

Doe v. United States,

76 F.4th 64 (2d Cir. 2023) .................................... 24

Foss v. E. States Exposition,

149 F.4th 102 (1st Cir. 2025) ............................... 24

Great N.R. Co. v. Alexander,

246 U.S. 276 (1918) ................................................ 5

iii

Grubbs v. Gen. Elec. Credit Corp.,

405 U.S. 699 (1972) .............................................. 19

Hallstrom v. Tillamook Cnty.,

493 U.S. 20 (1989) ........................................... 13-14

Harrow v. Dep’t of Defense,

601 U.S. 480 (2024) .............................................. 15

Healy v. Ratta,

292 U.S. 263 (1934) .............................................. 17

Heimeshoff v. Hartford Life & Accident Ins. Co.,

571 U.S. 99 (2013) ................................................ 13

Hertz Corp. v. Friend,

559 U.S. 77 (2010) ................................................ 27

Holland v. Florida,

560 U.S. 631 (2010) ........................................ 15, 21

Irwin v. Dep’t of Veterans Affairs,

498 U.S. 89 (1990) .......................................... 15, 20

Kingdomware Techs., Inc. v. United States,

579 U.S. 162 (2016) ................................................ 6

Kircher v. Putnam Funds Tr.,

547 U.S. 633 (2006) .............................................. 25

Kline v. Burke Constr. Co.,

260 U.S. 226 (1922) .............................................. 22

Lexecon Inc. v. Milberg Weiss Bershad Hynes &

Lerach, 523 U.S. 26 (1998) ..................................... 6

Lozano v. Alvarez,

572 U.S. 1 (2014) .................................13, 14, 16, 18

Menominee Indian Tribe v. United States,

577 U.S. 250 (2016) .............................................. 21

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

526 U.S. 344 (1999) .......................................... 6, 10

Nutraceutical Corp. v. Lambert,

586 U.S. 188 (2019) ........................................ 12, 15

Petrella v. MGM,

572 U.S. 663 (2014) .............................................. 13

Powerex Corp. v. Reliant Energy Servs.,

551 U.S. 224 (2007) ................................................ 7

Powers v. Chesapeake & Ohio Ry. Co.,

169 U.S. 92 (1898) ................................................ 18

Reyes Mata v. Lynch,

576 U.S. 143 (2015) .............................................. 16

Rotella v. Wood,

528 U.S. 549 (2000) .............................................. 14

Rotkiske v. Klemm,

589 U.S. 8 (2019) .............................................. 9, 13

Royal Canin v. Wullschleger,

604 U.S. 22 (2025) ................................................ 26

Shamrock Oil & Gas Corp. v. Sheets,

313 U.S. 100 (1941) .......................................... 4, 17

Syngenta Crop Prot., Inc. v. Henson,

537 U.S. 28 (2002) ............................................ 5, 17

Tafflin v. Levitt,

493 U.S. 455 (1990) ...............................4, 13, 16, 17

Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336 (1976) .............................................. 17

Things Remembered v. Petrarca,

516 U.S. 124 (1995) .............................................. 24

United States v. Beggerly,

524 U.S. 38 (1998) ................................................ 19

United States v. Brockamp,

519 U.S. 347 (1997) ........................................ 15, 19

United States v. Kwai Fun Wong,

575 U.S. 402 (2015) ......................................... 15-16

Yellow Freight Sys. v. Donnelly,

494 U.S. 820 (1990) .............................................. 13

Young v. United States,

535 U.S. 43 (2002) .......................................... 14, 15

Zipes v. Trans World Airlines, Inc.,

455 U.S. 385 (1982) .............................................. 16

Statutes

9 U.S.C § 205 .............................................................. 8

12 U.S.C. § 1819(b)(2) ............................................ 7, 8

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

28 U.S.C. § 1441(d)..................................... 8, 9, 19, 23

28 U.S.C. § 1441(e) ........................................... 8, 9, 19

28 U.S.C. § 1442 ......................................................... 7

28 U.S.C. § 1442a ................................................. 8, 19

28 U.S.C. § 1443 ......................................................... 7

28 U.S.C. § 1446 (1952) ............................................ 10

28 U.S.C. § 1446(b)..................................................... 1

28 U.S.C. § 1446(b)(1) ............................................ 3, 6

28 U.S.C. § 1446(b)(2) .................................... 8, 11, 19

28 U.S.C. § 1446(b)(3) ...................................... 6, 8, 19

28 U.S.C. § 1446(c)(1) ................................8, 12, 18, 19

28 U.S.C. § 1446(c)(3) ..................................... 8, 12, 19

28 U.S.C. § 1447(c) ................................................... 12

28 U.S.C. § 1447(d)............................................... 7, 24

28 U.S.C. § 1453(c)(1) ................................................. 7

28 U.S.C. § 1454(b)..................................................... 8

28 U.S.C. § 1454(b)(1) ................................................ 8

28 U.S.C. § 1455(b)(1) ................................ 8, 9, 11, 19

28 U.S.C. § 2679(d)(1) .......................................... 8, 19

vii

42 U.S.C. § 233(c) ................................................. 8, 19

Federal Courts Jurisdiction and Venue

Clarification Act of 2011, Pub. L. No. 112-63,

125 Stat. 758 ......................................................... 10

Rules

Fed. R. Civ. P. 1 .......................................................... 1

Other Authorities

American Law Institute, Federal Judicial Code

Revision Project, Part III, Removal (2004) .... 11, 12

Black’s Law Dictionary (10th ed. 2014) .................. 13

Aaron-Andrew P. Bruhl, The Jurisdiction

Canon, 70 Vand. L. Rev. 499 (2017) .................... 13

Stephen B. Burbank & Tobias Barrington

Wolff, Class Actions, Statutes of Limitations

and Repose, and Federal Common Law, 167

U. Pa. L. Rev. 1 (2018) ......................................... 16

H.R. Rep. No. 80-308 (1947) .................................... 10

H.R. Rep. No. 100-889 (1988) .................................... 7

H.R. Rep. No. 112-10 (2011) .............................. 11, 12

S. Rep. No. 81-303 (1949) ......................................... 10

Antonin Scalia & Bryan Garner, Reading Law:

The Interpretation of Legal Texts (2012) ............... 9

viii

Michael E. Solimine, Removal, Remands, and

Reforming Federal Appellate Review, 58 Mo.

L. Rev. 287 (1993) ................................................. 17

INTEREST OF AMICI CURIAE1

Amici are law professors with expertise in federal

courts and federal civil procedure, including the time

limits for removal under 28 U.S.C. § 1446(b). Amici

seek to share their expertise regarding the history of

Congress’s amendment of the removal statute and

how that history informs the resolution of the

question presented here. Drawing on years of

scholarship in this area, amici also explain the

distinction between situations in which the courts

apply background principles of equitable tolling and,

by contrast, situations governed by forum-selection

rules like the removal deadline. Amici believe that

applying the removal statute as written properly

defers to enacted law, best ensures a fair, predictable,

rule-based system, and fosters “the just, speedy, and

inexpensive determination” of civil actions. See Fed.

R. Civ. P. 1.

Amici include:2

• James E. Pfander, Owen L. Coon Professor of

Law, Northwestern University Pritzker School

of Law

1 No counsel for any party authored this brief in whole or in

part, and no person or entity other than amici curiae or their

counsel made a monetary contribution intended to fund the

brief’s preparation or submission.

2 Amici listed herein file in their individual capacity as

scholars. Amici provide their institutional affiliation solely for

purposes of identification.

(1)

• Joan Steinman, University Distinguished

Professor Emerita, Professor of Law Emerita,

Chicago - Kent College of Law, Illinois Tech

• Stephen B. Burbank, David Berger Professor for

the Administration of Justice Emeritus,

University of Pennsylvania Law School

• Kevin M. Clermont, Ziff Professor of Law,

Cornell University

• Suzanna Sherry, Herman O. Loewenstein

Professor of Law Emerita, Vanderbilt

University

• Michael E. Solimine, Donald P. Klekamp

Professor of Law, University of Cincinnati

College of Law

• Howard M. Wasserman, Professor of Law, FIU

College of Law

INTRODUCTION AND SUMMARY OF

ARGUMENT

The right to remove a civil action from state to

federal court is a creature of federal statute. The

absence of any legislative provision for equitable

tolling of the 30-day time limit for removal in the

statute at issue here, 28 U.S.C. § 1446(b)(1), should

decide this case. Section 1446 creates a detailed,

rules-based system that favors early resolution of

removal questions with only narrow and carefully

delineated exceptions. Here, Petitioners concededly

failed to comply with these rules: the complaint in

question was served on Petitioners in July 2019,

starting the removal clock. Pet. App. 9a. Petitioners

did not remove this case until December 2021, over

two years after their thirty-day removal right had

ended. Id. 7a.

In striving to remove to federal court despite

missing the statutory deadline, Petitioners seek to

benefit from the equitable tolling framework that

governs statutes of limitations for federal actions.

This approach is misguided in several ways. First, the

text and amendment history of the removal statutes

confirm that when Congress has considered equitable

reasons to vary the removal rules, it repeatedly has

chosen to resolve those concerns by statute, either

expressly adopting a rule or expressly authorizing

courts to analyze the equities. It has shown no

openness to courts creating their own exceptions to

Congress’s

carefully

reticulated,

rules-based

procedures.

Petitioners also err in likening the removal

statute’s forum-selection timeliness rules to statutes

of limitations. True, statutes of limitations are

sometimes subject to equitable exceptions. But they

are nothing like removal deadlines.

Statutes of limitations can determine the outcome

of an action, potentially closing courthouse doors

altogether. They are a world apart from forumselection timing rules that determine whether a case

can be removed from the state court where it

presumptively should reside. Removal deadlines,

unlike statutes of limitations, close only one of two

available courthouse doors. Each party will still get

its day in court.

In addition, removal deadlines are a lynchpin of a

congressionally

determined

framework

for

determining when and how certain types of cases will

be resolved by a federal court, rather than the state

court in which they were filed. State courts are

“presumptively competent” to resolve questions of

federal law under our constitutional “system of dual

sovereignty.” Tafflin v. Levitt, 493 U.S. 455, 458

(1990). This Court thus has often reaffirmed that the

“power reserved to the states under the Constitution

to provide for the determination of controversies in

their courts, may be restricted only by the action of

Congress in conformity to the Judiciary Articles of the

Constitution.” Shamrock Oil & Gas Corp. v. Sheets,

313 U.S. 100, 108-09 (1941). Congress has given

plaintiffs first choice of forum, and the removal

statute requires defendants to act expeditiously if

they seek to invoke their circumscribed statutory

right of removal. Nothing in this Court’s precedents

or the federal removal statutes supports disregarding

the mandatory timelines set by Congress and leaving

the removal window open for months or years, as

contemplated by Petitioners.

Petitioners’ proposed open-ended equitable

inquiry combined with limited appellate review would

upend the strict, rules-based system Congress

designed. In place of Congress’s rules, Petitioners

would substitute a list of malleable factors with little

basis in the law of equitable tolling as it has otherwise

developed and little prospect of providing meaningful

standards for district courts to apply. Existing limits

on appellate review, fashioned by Congress to ensure

speedy resolution of forum selection, confirm that

Congress did not mean to invest district courts with

discretion to extend the time for removal.

ARGUMENT

I. Equitable tolling is not consistent with the

text and amendment history of § 1446.

A. In § 1446, Congress created a detailed,

rules-based system so that removal

questions would be decided promptly

and uniformly.

“The right of removal is entirely a creature of

statute and ‘a suit commenced in a state court must

remain there until cause is shown for its transfer

under some act of Congress.’” Syngenta Crop Prot.,

Inc. v. Henson, 537 U.S. 28, 32 (2002) (quoting Great

N.R. Co. v. Alexander, 246 U.S. 276, 280 (1918)). No

such act of Congress exists here. The text, structure,

and context of the removal statutes demonstrate that

Congress created a rules-based structure for early

determination of the proper forum so that the parties

can get on with litigating the merits. Allowing courts

to create equitable exceptions beyond those made by

Congress would undermine that statutory scheme.

1. In § 1446 and other removal statutes, Congress

set a short deadline so that removal questions

normally can be decided quickly, at the outset of

litigation. A 30-day deadline governs, except for

express, limited exceptions.

Mandatory terms show the unyielding nature of

the statute’s 30-day removal deadline. The defendant

“shall” file the removal notice within 30 days of a

statutorily specified event. 28 U.S.C. § 1446(b)(1).

Generally, “‘shall’ is ‘mandatory’ and ‘normally

creates an obligation impervious to judicial

discretion.’” Kingdomware Techs., Inc. v. United

States, 579 U.S. 162, 172 (2016) (quoting Lexecon

Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523

U.S. 26, 35 (1998)). Here, Congress used “shall” in a

subsection

titled

“Requirements[],”

further

underscoring the mandatory nature of the time

requirement when no explicit statutory exception

applies. 28 U.S.C. § 1446(b)(1).

Section

1446’s

structure

underscores

congressional intent that removal questions be

resolved as early as possible. The 30-day time limit

begins to run from service of summons or receipt of

complaint, “whichever period is shorter.” 28 U.S.C.

§ 1446(b)(1); Murphy Bros. v. Michetti Pipe Stringing,

Inc., 526 U.S. 344, 347-49 (1999) (holding that

defendant must be served with summons or complaint

for the 30-day period to start). And when a case not

initially removable becomes removable, the defendant

must act to remove the case “within 30 days” of receipt

of the “first” paper from which it can “ascertain[]” that

the case has become removable. 28 U.S.C.

§ 1446(b)(3). For diversity cases, Congress elected to

further “‘reduc[e] the opportunity for removal after

substantial progress has been made in state court’” by

prohibiting removals more than one year after

commencement except in cases of bad faith, even for

cases that first became removable after the time had

run. Caterpillar Inc. v. Lewis, 519 U.S. 61, 75 n.12

(1996) (quoting H.R. Rep. No. 100-889, at 72 (1988)).

Congress’s “obvious concern with efficiency,”

BP Pub. Ltd. Co. v. Mayor of Baltimore, 593 U.S.

230, 245 (2021), is also evident in other procedural

provisions. Remand orders are generally not subject

to appellate review. 28 U.S.C. § 1447(d).3 Except in a

few specified areas, Congress preferred that

erroneously remanded cases be litigated in state court

rather than allowing “prolonged litigation on

threshold nonmerits questions.” Powerex Corp. v.

Reliant Energy Servs., 551 U.S. 224, 237 (2007).

2. Where Congress wanted exceptions to this

general rule of speedy resolution, it carved them out

expressly. In a narrow subset of circumstances,

Congress provided some equitable discretion to courts

by offering “for cause” exceptions to removal

deadlines. Specifically, in cases relating to federal

property rights like patents, copyrights, or plant

variety protection, Congress expressly provided a

“[s]pecial rule[]” that the “time limitations contained

in section 1446(b) may be extended at any time for

As in other parts of the removal statutes, Congress

explicitly provided for exceptions to this bar on appellate review

where it determined they were justified. See, e.g., 28 U.S.C.

§ 1447(d) (providing for appellate review of cases removed under

28 U.S.C. §§ 1442 and 1443); id § 1453(c)(1) (class actions). And

certain agencies are permitted to appeal remand orders. See,

e.g., 12 U.S.C. § 1819(b)(2)(C) (Federal Deposit Insurance

Corporation can appeal remand orders).

cause shown.” 28 U.S.C. § 1454(b)(1). But Congress

limited this rule to cases removed “based solely on”

that section. Id. § 1454(b). Congress also allowed

courts to extend the deadline for good cause in suits

against foreign states, id. § 1441(d), multi-party,

multi-forum litigation, id. § 1441(e), and criminal

prosecutions, id. § 1455(b)(1). And, for some cases,

Congress set a later deadline, see 12 U.S.C.

§ 1819(b)(2)(B), or allowed cases to be removed at any

time before trial, see, e.g., 9 U.S.C. § 205; 28 U.S.C.

§§ 1442a, 2679(d)(1); 42 U.S.C. § 233(c).

But for the mine run of civil litigation, including

this case, Congress did not embrace a “for cause”

exception. Instead, Congress chose expressly to define

the situations in which circumstances would justify

extending the removal time and specified how much

extra time should be allowed.

For example, the statute covers situations where a

defendant cannot initially determine that a case is

removable. It provides that if “the case stated by the

initial pleading is not removable,” the defendant may

remove within 30 days of receiving the paper “from

which it may first be ascertained that the case is”

removable. 28 U.S.C. § 1446(b)(3). And in cases with

multiple defendants, the statute provides that each

defendant gets its own 30 days, starting when it is

served the initial pleading or summons, so that the

removal time for later-served defendants does not run

before they are served. Id. § 1446(b)(2).

Congress also provided a special rule to address a

litigant’s bad faith. 28 U.S.C. § 1446(c)(1). If a

plaintiff “acted in bad faith” to prevent removal, the

one-year restriction on removal for diversity cases

does not apply. Id. § 1446(c)(1), (3)(B).

In sum, Congress created a comprehensive

statutory scheme allowing courts to extend the time

for removal in a limited universe of civil cases and

establishing a detailed rules-based framework to

address equitable concerns in others. “It is a

fundamental principle of statutory interpretation

that ‘absent provision[s] cannot be supplied by the

courts.’” Rotkiske v. Klemm, 589 U.S. 8, 14 (2019)

(quoting Antonin Scalia & Bryan Garner, Reading

Law: The Interpretation of Legal Texts 94 (2012))

(holding that a discovery rule does not apply to the a

certain statute of limitations). The cascading set of

statutory exceptions and exceptions to exceptions

shows that Congress well knows how to authorize

courts to extend or excuse the removal deadline, see,

e.g., 28 U.S.C. §§ 1441(d), (e), 1455(b)(1), making

“judicial supplementation” of the text “particularly

inappropriate.” Rotkiske, 589 U.S. at 14.

2. Section 1446’s amendment history confirms

that Congress did not intend courts to create

exceptions to the statute’s short, uniform time limits,

beyond those Congress specified expressly. Congress

has repeatedly addressed fairness concerns by adding

specific rules to expressly define the narrow contours

of available exceptions. And it has done so while

simultaneously revising the statute to promote the

speedy resolution of removal questions early in

litigation. Respondent details the long history of the

statute. Resp. Br. 44-48. Amici highlight a few

developments here.

a. In 1948, Congress amended the statute to create

a short, nationally uniform removal deadline. Before

that amendment, the time for removal turned on state

law. “[A] defendant could remove a case any time

before the expiration of her time to respond to the

complaint under state law.” Murphy Bros., 526 U.S.

at 351. Congress substituted a 20-day time limit (later

extended to 30 days) that would “‘operate uniformly

throughout the Federal jurisdiction.’” Id. (quoting

H.R. Rep. No. 80-308, at A135 (1947)).

After adoption of this uniform deadline, it soon

became clear that the triggering condition for the

removal time to begin to run—commencement of the

action or service of process—meant that in some

states a defendant would be required to remove a case

even “before the defendant obtained access to the

complaint.” Murphy Bros., 526 U.S. at 351. Congress

did not rely on courts’ equitable discretion to resolve

this problem, but instead solved it with a statutory

rule enacted the following year. The amendment

moved the start of the removal clock to receipt of the

“initial pleading setting forth the claim for relief” or

service of summons. 28 U.S.C. § 1446 (1952).

Congress’s fix gave defendants until after they

“know[] what the suit is about” to remove. Murphy

Bros, 526 U.S. at 352 (quoting S. Rep. No. 81-303, at

6 (1949)).

b. In the most recent amendments to § 1446, in

2011, Congress considered and rejected equitable

tolling, instead electing to prioritize the need for

speedy, rule-based determination of the proper

forum. See Federal Courts Jurisdiction and Venue

Clarification Act of 2011, Pub. L. No. 112-63, § 103,

125 Stat. 758, 759-62. Congress scrapped draft

statutory language that would have given courts

authority to make equitable exceptions in civil cases,

while at the same time adding an equitable tolling

provision only for criminal cases. See Id.; 28 U.S.C.

§ 1455(b)(1). For civil cases, Congress again legislated

express rules to govern specific situations, indicating

that

courts

should

not

create

additional

exceptions. See City & Cnty. of San Francisco v. EPA,

604 U.S. 334, 349 n.12 (2025) (declining to read into

statute a provision that Congress deleted).

Specifically, at the time of the 2011 amendments,

there was “confusion surrounding the timing of

removal when defendants are served at different

times.” H.R. Rep. No. 112-10, at 13 (2011). Congress

reviewed an American Law Institute proposal that

would have allowed the district court to extend the

removal time for late-served defendants “[i]n the

interest of justice.” American Law Institute, Federal

Judicial Code Revision Project, Part III, Removal, 437

(2004) (hereinafter ALI); H.R. Rep. No. 112-10, at 15

n.4 (noting that “an alternative approach was

proposed by the ALI”). The ALI proposal was intended

to “expressly confer[] the equitable discretion needed

to avoid unfair application of the general rule.” ALI,

supra, at 455. But Congress rejected this approach

and instead created an explicit rule by which each

defendant has 30 days to remove beginning when that

defendant is served. 28 U.S.C. § 1446(b)(2)(B). The

rule also allows earlier-served defendants to consent

to removal even if they previously chose not to

remove. Id. § 1446(b)(2)(C). These provisions reflect

equitable concerns—“[f]airness to later-served

defendants” and “equal treatment”—but Congress

chose to adopt uniform rules to address these

concerns rather than allow courts to apply equitable

tolling. H.R. Rep. No. 112-10, at 14.

Congress also rejected proposed amendments from

the ALI that would have allowed district courts to

permit removal of diversity cases more than one year

after commencement, in the “interest of justice.” ALI,

supra, at 463; H.R. Rep. No. 112-10, at 15 n.4. Again

eschewing a grant of such broad equitable discretion,

Congress generally kept the strict one-year time limit

on removal and expressly provided for limited

exceptions in situations of bad-faith interference by

plaintiffs, such as hiding the true amount in

controversy. 28 U.S.C. § 1446(c)(1), (3)(B); H.R. Rep.

No. 112-10, at 16.

The amendment history of Section 1446 thus

confirms that the removal deadline is not one that

courts may freely treat as “malleable in every

respect.” Nutraceutical Corp. v. Lambert, 586 U.S.

188, 192 (2019). The removal statute requires remand

when, as here, its procedural requirements have not

been met and the plaintiff timely objected. 28 U.S.C.

§ 1447(c).

B. The background principle of equitable

tolling does not apply to forum selection

rules like § 1446.

Attempting to escape the plain text of the statute,

(and the statutory history of Congress rejecting broad

equitable discretion in favor of finality), Petitioners

urge the Court to import the inapposite equitable

tolling framework governing statutes of limitations.

See Br. 33-38. Unlike statutes of limitations, however,

removal deadlines do not end the litigation. They

affect only the forum in which the case will be heard.

In governing which forum will adjudicate a case, the

removal rules create a system where plaintiffs make

the initial forum choice, subject to removal only in

carefully defined situations. This choice reflects that

State courts are “presumptively competent[] to

adjudicate claims arising under the laws of the United

States.” See Yellow Freight Sys. v. Donnelly, 494 U.S.

820, 823 (1990) (quoting Tafflin, 493 U.S. at 458).

And, given the strong state interests at stake,

removal statutes historically have been construed

narrowly, unlike statutes of limitations.4

1. Equitable tolling is “a background principle

against which Congress drafts limitations periods.”

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

(emphasis added). It thus “applies when there is a

statute of limitations.” Petrella v. MGM, 572 U.S. 663,

681 (2014). But it does not apply to other types of time

limits. Lozano v. Alvarez, 572 U.S. 1, 13-14 (2014).

And even as to limitations periods, the Court begins

with the statutory text and “if the words of a statute

are unambiguous, this first step of the interpretive

inquiry is [its] last.” Rotkiske, 589 U.S. at 13

(addressing the discovery rule).

Not all time limits are limitations periods. As a

general matter, “[s]tatutes of limitations establish the

period of time within which a claimant must bring an

action.” Heimeshoff v. Hartford Life & Accident Ins.

Co., 571 U.S. 99, 105 (2013). They “bar[] claims after

a specified period,” Black’s Law Dictionary 1636 (10th

ed. 2014), and they are “triggered by the violation

giving rise to the action.” Hallstrom v. Tillamook

4 Some have criticized this and other interpretive canons as

inconsistent with textualism. See, e.g., Aaron-Andrew P. Bruhl,

The Jurisdiction Canon, 70 Vand. L. Rev. 499, 521-24 (2017).

But here, the strict-construction canon and the text point in the

same direction: Congress intended the 30-day limit to be

mandatory, subject only to statutory—not judicial—exceptions.

See supra, Sec. I.A. The interpretative canons confirm that

Congress meant what it said in § 1446.

Cnty., 493 U.S. 20, 27 (1989) (holding that

background principles of equitable tolling do not

apply to a statute requiring notice to the government

at least 60 days in advance of suit). Their purpose is

to eliminate stale remedies or claims and provide

certainty and repose to defendants. See Lozano, 572

U.S. at 14; Young v. United States, 535 U.S. 43, 47

(2002).

In determining whether a deadline is a limitations

period to which background principles of equitable

tolling apply, the Court has examined whether the

deadline in question “serves the same ‘basic policies

[furthered by] all limitations provisions: repose,

elimination of stale claims, and certainty about a

plaintiff's opportunity for recovery and a defendant's

potential liabilities.’” Young, 535 U.S. at 47 (quoting

Rotella v. Wood, 528 U.S. 549, 555 (2000)) (holding

that a look-back period for certain IRS claims in

bankruptcy was a limitations period because it

extinguished a remedy previously available to the

IRS).

Deadlines that extinguish remedies thus are

subject to background principles of equitable tolling,

but deadlines that merely make the remedy harder to

obtain are not. Young, 535 U.S. at 47; Lozano, 572

U.S. at 14. For example, the one-year period to seek

automatic return of a child under the Hague

Convention on Child Abduction without an

adjudication of the child’s best interests is not a

limitations period because the same relief—return of

the child—is available later, albeit under a different

legal standard. Lozano, 572 U.S. at 14. Similarly, no

background principles favor tolling time limits that

function as “substantive limitations on the amount of

recovery” but do not dispose of the action altogether.

Holland v. Florida, 560 U.S. 631, 646-47 (2010)

(quoting United States v. Brockamp, 519 U.S. 347,

350-52 (1997)).

Consistent with these principles, time limits for

pursuing appeals or petitions for review may be

subject to a background principle of equitable tolling

if they may result in extinguishing claims and

remedies. See Harrow v. Dep’t of Defense, 601 U.S.

480, 489-90 (2024). But the deadline for seeking

interlocutory appeal of an order decertifying a class

was held by the Court not to be subject to equitable

tolling, although the deadline plainly has a significant

effect on the procedure by which the claim must be

litigated. See Nutraceutical Corp., 586 U.S. at 189-90,

192-94.

All of the cases that Petitioners have identified as

applying background principles of equitable tolling

involved deadlines that extinguished remedies or

claims. Br. 33-38, 46-49. For example, Boechler, on

which Petitioners heavily rely, involved the deadline

for petitioning the Tax Court to review an IRS

decision to seize taxpayer property, a limitations

period that would extinguish the petitioner’s claim.

596 U.S. at 202. In Holland, the Court equitably

tolled the one-year statute of limitations for filing

federal habeas claims, another limitations period that

would extinguish the petitioner’s claim. 560 U.S. at

634. See also Young, 535 U.S. at 49-50 (holding that

time for the IRS to assert claims for taxes under the

3-year lookback period in bankruptcy is subject to

equitable tolling); Irwin v. Dep’t of Veterans Affairs,

498 U.S. 89, 91-92 (1990) (same for filing a Title VII

action); United States v. Kwai Fun Wong, 575 U.S.

402, 405, 408 n.2 (2015) (same for time for filing an

administrative claim and lawsuit under the Federal

Tort Claims Act); Zipes v. Trans World Airlines, Inc.,

455 U.S. 385, 387, 393 (1982) (same for time for filing

a charge before the EEOC).5

2. The strict time period for removal (along with

the set of congressionally recognized exceptions) is

nothing like a limitations period. Removal deadlines

do not “embody a policy of repose,” “foster the

elimination of stale claims,” or create “certainty about

a plaintiff’s opportunity for recovery and a

defendant’s potential liabilities.” Lozano, 572 U.S. at

14 (internal quotation marks omitted). No claims or

remedies are extinguished. Removal deadlines

determine only which of two courts—both competent

to decide the case—will hear plaintiff’s claims. See

Tafflin, 493 U.S. at 459.

Beyond the poor fit between the equitable tolling

presumption and the removal deadline, the equitabletolling presumption runs headlong into this Court’s

5 The other cases that Petitioners rely on are even further

afield. Petitioners cite Reyes Mata v. Lynch, 576 U.S. 143 (2015),

but the Court there did not decide whether the time limit at

issue—the period for filing a motion to re-open before the Bureau

of Immigration Affairs—was the type of time limit to which

background principles of equitable tolling could potentially

apply. Id. at 149 n.3, 151. Petitioners also invoke American Pipe

& Construction Co. v. Utah, 414 U.S. 538 (1974). A strong

argument has been made that American Pipe applies federal

common law, rather than the background principles of equitable

tolling that Petitioners assert. Stephen B. Burbank & Tobias

Barrington Wolff, Class Actions, Statutes of Limitations and

Repose, and Federal Common Law, 167 U. Pa. L. Rev. 1

(2018). In any event, like the other cases Petitioners cite,

it involved a statute of limitations and so does not advance

Petitioners’ cause.

counsel that “statutory procedures for removal are to

be strictly construed.” Syngenta, 537 U.S. at 32; see

Resp. Br. 31-32. 6 Strict construction of removal

statutes protects the “power reserved to the states

under the Constitution to provide for the

determination of controversies in their courts.”

Shamrock Oil & Gas, 313 U.S. at 108-09. The “deeply

rooted presumption in favor of concurrent state court

jurisdiction” has its roots in a constitutional order

that gives states concurrent sovereignty with the

federal government. Tafflin, 493 U.S. at 458. Federal

courts must, therefore, “scrupulously confine their

own jurisdiction to the precise limits which the

statute has defined.” Healy v. Ratta, 292 U.S. 263, 270

(1934).

Petitioners assert (Br. 50) that the strict

construction of removal statutes did not survive this

Court’s decision in Breuer v. Jim’s Concrete of

Brevard, Inc., 538 U.S. 691 (2003). But Breuer merely

recognized that Congress has specified by statute that

cases are removable under 28 U.S.C. § 1441(a) unless

another statute expressly restricts removal. Breuer,

538 U.S. at 697. Breuer did not reject the principle

that state courts are competent to decide questions of

federal law or question the respect for state interests

on which the strict-construction presumption is

6 In keeping with its emphasis on text-based interpretation

of removal statutes, this Court recently questioned earlier

decisions that it viewed as departing from that approach. BP,

593 U.S. at 243 (discussing Carlsbad Technology, Inc. v. HIF

Bio, Inc., 556 U.S. 635, 638 (2009); Thermtron Products,

Inc. v. Hermansdorfer, 423 U.S. 336, 345-346 (1976)); see also

Michael E. Solimine, Removal, Remands, and Reforming Federal

Appellate Review, 58 Mo. L. Rev. 287, 297-98 (1993).

based. Rather Breuer reinforced the principle that

Congress is responsible for specifying the exceptions

it wants in removal statutes and does not leave it to

courts to make up their own.

Petitioners also misunderstand this Court’s

decision in Powers v. Chesapeake & Ohio Railway Co.,

169 U.S. 92 (1898), when they assert a tradition of

applying equitable tolling to removal statutes. See

Opening Br. 32. Powers involved statutory

construction, not equitable tolling. The suit there

became removable as a diversity case only when the

plaintiff dropped his suit against several defendants

at the time the case was “called for trial” in state

court. Powers, 169 U.S. at 98 . The Court held that it

would be “inconsistent with the words” of the thengoverning removal statute for the time for removal to

run before the case became removable. See id. at 100.

And Congress subsequently amended the statute to

limit Powers in favor of early resolution of removal

questions by setting the one-year limit on removal in

diversity cases. 28 U.S.C. § 1446(c)(1); see supra 1112.

3. Even were this Court to conclude that

background principles of equitable tolling apply to

forum selection deadlines in general, the clarity of

Congress’s rejection of tolling forecloses its

application here. Resp. Br. Sec. II. As the Court has

explained, application of equitable tolling “is

fundamentally a question of statutory intent.”

Lozano, 572 U.S. at 10. And the removal statute’s text

reveals no statutory intent to allow tolling here.

The mandatory text of the removal deadline is

buttressed by Congress’s decision expressly to carve

out its own exceptions. See supra Sec. I.A. In

Brockamp, Congress’s provision of “numerous”

exceptions (six) counseled against allowing courts to

add more. Boechler, 596 U.S. at 209 (discussing

Brockamp, 519 U.S. at 350-51). So, too, the removal

statute, which similarly is subject to “numerous”

statutory carve-outs—more even than in Brockamp—

should be held not to allow courts to add occasions for

tolling or extension of time. See id.; see also 28 U.S.C.

§ 1446(b)(2)(B), (C), (b)(3), (c)(1), (c)(3)(A), (c)(3)(B); id.

§ 1441(d), (e); id. § 1442a; id. § 1455(b)(1); id.

§ 2679(d)(1); 42 U.S.C. § 233(c).

The incorporation of equitable principles in the

exceptions cited above reinforces the inference that

the removal statutes do not allow equitable tolling

except where Congress explicitly delegated that

discretion. See United States v. Beggerly, 524 U.S. 38,

48 (1998). Here, the exceptions legislated by Congress

already “effectively allow[] for equitable tolling” in the

situations where Congress deemed it appropriate. Id.

Congress’s choice of a highly detailed, rules-based

scheme for all exceptions, including those sounding in

equity, counsels against reading additional equitable

exceptions into the statute. See Brockamp, 519 U.S.

at 350-51.

II. Application of the statute as written protects

important interests in uniformity, certainty,

and efficiency.

Allowing equitable tolling would not only be

inconsistent with the removal statute’s text, but it

would thwart the statute’s goals of uniformity,

certainty, and efficiency. All agree that uniformity, in

particular, is crucial to the proper operation of the

rules governing removal. See Grubbs v. Gen. Elec.

Credit Corp., 405 U.S. 699, 705 (1972) (“[T]he removal

statutes and decisions of this Court are intended to

have uniform nationwide application.”). As explained

above, supra Sec. I.A, Congress has embraced a rulesbased removal system that ensures nationwide

uniformity. And Petitioners likewise embraced the

need for uniformity in seeking certiorari. See Pet. 4.

Yet Petitioners’ proposal to authorize district courts

to equitably exempt parties from the removal

deadline would achieve just the opposite. Worse, it

would result in extended and wasteful litigation

under complicated equitable tests and would threaten

to disrupt ongoing state court litigation years after its

initiation.

A. Petitioners’ approach would create an

anything-goes environment that would result in

widely varying decisions on removal timing. Three

factors combine to create this result: the absence of

any well-developed body of equitable principles in the

removal context to guide Petitioners’ proposed tolling

analysis, limited appellate review of both remand

orders and remand denials, and the deferential

nature of any appellate review that might occur.

1. Petitioners advance a novel equitable tolling

test unmoored from the historical backdrop and

without any meaningful guidance to cabin district

courts’ decisions on when to excuse untimely

removals. Petitioners assure the Court (with no

evidence) that equitable relief will be granted

“sparingly,” Opening Br. 43 (quoting Irwin, 498 U.S.

at 96). But a promise that equitable relief will be

granted only in “exceptional circumstances” (Opening

Br. 43-44) provides no assurance that one district

court’s “exceptional circumstances” will match

another’s.

With equitable tolling of statutes of limitations,

there is a “long history,” so “courts can easily find

precedents that can guide their judgments.” Holland,

560 U.S. at 651. But Petitioners would eschew this

guidance. Although otherwise trying to analogize

equitable tolling of untimely removal to equitable

tolling of statutes of limitations, Petitioners do not

suggest that the well-established factors that guide

the statute-of-limitations inquiry—requiring a

showing of both diligence and extraordinary

circumstances beyond the litigant’s control—apply in

the untimely-removal context. See Menominee Indian

Tribe v. United States, 577 U.S. 250, 255-57 (2016).

Petitioners may be reluctant to invoke the traditional

equitable tolling factors in recognition that those

factors have been incorporated into the statute to the

extent that Congress wanted them there, see supra 712, and no statutory exception would avail Petitioners

here. See Br. of Tribal Nations 17-20; Br. of Great

Lakes Business Network 14-16.

Petitioners’ choice would leave lower courts with a

vacuum of guidance. Petitioners have at best

identified a smattering of lower-court cases in a fourdecade span suggesting that courts may equitably

excuse untimely removals. See Pet. 18-20. Instead of

citing any criteria drawn from precedent, Petitioners

simply list (Br. 43-44) the factors the district court

cited here—“gamesmanship” by the other party; the

need to avoid two litigation tracks; and a “substantial

federal interest.” Not only do these factors not map

onto the traditional equitable tolling considerations,

but they are not constraining. See Br. of Great Lakes

Business Network 9-14; Br. of Tribal Nations Sec. I.B.

They often could be brandished in a removal dispute.

Start with “gamesmanship” (Opening Br. 43).

Petitioners marshal their case for unfair play, but so

does Respondent, highlighting that the Attorney

General’s state case was far from dormant and the

state court had issued a ruling adverse to Petitioners

before they attempted to remove the case. Resp. Br. 915. Although the district court here found that

Petitioners prevailed in what it termed a “battle of

equity,” Pet. App. 37a, a different court easily could

have come out the other way.

As for the Petitioners’ stated desire for a single

forum (Opening Br. 44), it provides no guidance,

because it does not help a district court determine

which forum should be the chosen one—the state

court where litigation has been proceeding or the

federal forum that is generated later (by removal of

another case or separate federal suit or both, as

happened here). See Pet. App. 27a-28a. Given its nondeterminativeness, the “single forum” factor is highly

unlikely to produce uniform results among district

court decisions.7

Finally, there is the question of whether a case

presents “substantial federal interests.” Opening Br.

43. Petitioners do not meaningfully explain what

makes their asserted federal interest exceptional. If

any case touching on foreign affairs qualifies, that is

not an “exceptional” circumstance at all. Plus—like so

many of the factors that Petitioners invoke—

Congress has already decided when a federal interest

is substantial enough to merit a carve-out from

7 Note too that the premise underlying the “single forum”

argument runs headlong into this Court’s presumption that a

single dispute may proceed concurrently in state and federal

courts. See, e.g., Kline v. Burke Constr. Co., 260 U.S. 226 (1922).

removal procedures. Congress has acted in the

foreign-affairs sphere, authorizing district courts to

extend timelines for “good cause” in suits against

foreign states. 28 U.S.C. § 1441(d). Congress also has

created other statutory exceptions serving other

federal interests that Congress judged substantial.

See supra 7-8 (discussing statutes applicable to

patent and copyright cases and suits against military

service members and federal employees). Permitting

district courts to pick and choose additional federal

interests to privilege in a similar fashion will result

in a patchwork of varying policy choices instead of a

uniform national rule.8

Unbounded by any historical tradition or body of

precedent, Petitioners’ proposed grab bag of factors is

not a coherent test that would cabin district courts’

discretion. Nor should it displace the limited

exceptions that Congress already allowed.

2. Appellate review would not meaningfully distill

district courts’ decisions into a uniform set of rules.

First, removal issues will rarely reach the courts

of appeals at the outset of litigation. An order denying

a motion to remand is not immediately appealable as

of right. Caterpillar, 519 U.S. at 74. A remand denial

thus would generally be reviewable only after final

judgment. But if the federal court has jurisdiction at

8 Despite

Petitioners’ invocation of a substantial federal

interest—which presumably requires something more than a

bare claim to federal question jurisdiction—the Sixth Circuit has

not endorsed Petitioners’ federal question jurisdiction argument.

Pet. App. 8a. It remains subject to challenge, Br. of Great Lakes

Business Network 16-18; Br. of Tribal Nations 12 n.13, and

would be an open question on remand if the Court were to

authorize equitable tolling of the removal deadline.

the time judgment is entered, the judgment stands

regardless of procedural defects in the removal. Id. at

75. So a district court order that grants equitable

tolling to permit an untimely removal—however

erroneous—may be overtaken by events by the time

the issue reaches a court of appeals.9

As for orders denying equitable tolling, appellate

courts “lack[] the power to review a district court

order remanding a case to state court,” with only

narrow exceptions. BP, 593 U.S. at 235; 28 U.S.C.

§ 1447(d). Remand due to untimely removal, if the

defect is timely raised, is “precisely the type of

removal defect” to which the general appeal bar

applies. Things Remembered v. Petrarca, 516 U.S.

124, 128 (1995). Courts of appeals thus could review

district court orders declining to excuse untimely

removals only in the limited categories of cases where

Congress has expressly provided for appellate review.

See supra 7 & n.3.

In addition, even when appellate review occurs,

review would likely be deferential. Appellate review

is deferential for decisions about equitable tolling of

statutes of limitations. See, e.g., Foss v. E. States

Exposition, 149 F.4th 102, 112 (1st Cir. 2025);

Bernstein v. Maximus Fed. Servs., Inc., 63 F.4th 967,

969 (5th Cir. 2023); Doe v. United States, 76 F.4th 64,

70 (2d Cir. 2023). The same would presumably apply

to decisions excusing untimely removals. Given both

the infrequency of review opportunities and the

deferential standard, appellate review cannot be the

backstop that “ensure[s] that district courts are being

9 This case reached the Sixth Circuit only because the district

court certified its order for interlocutory appeal and the Sixth

Circuit granted permission to appeal. Pet. App. 45a-46a.

uniform,” contrary to the theory of Petitioners’ amici.

Br. of Arthur Miller 9.

B. The substitution of district-by-district variable

standards for a nationally uniform removal timeline

is not the only procedural mischief threatened by

Petitioners’ proposed approach. Authorizing courts to

equitably toll the removal deadline also would impair

the certainty and efficiency that are crucial to the

removal procedure. The upshot would be significant

uncertainty looming over state court litigation,

potentially for years, and extended wrangling over

threshold issues—the very situation that the rulesbased removal framework and general bar on

appellate review were designed to avoid.

As the limits on appellate review exemplify,

Congress prized finality and certainty and was

willing therefore to trust the accuracy of most district

court removal decisions—including timeliness

decisions. See BP, 593 U.S. at 235 (noting Congress’s

choice to accept delay from appellate review for some

removal issues but not others). This efficiency comes

with a cost, in terms of accuracy, as Congress

understood; even plain errors can go uncorrected.

Kircher v. Putnam Funds Tr., 547 U.S. 633, 642

(2006). But that is a tradeoff that Congress was

willing to make in the context of this statute, where

the timeliness question would typically present a

straightforward inquiry applying clear statutory

rules. Petitioners’ approach, however, would inject

messy fact-bound threshold questions, requiring

district courts to balance a complex set of wholly openended equitable factors without guidance from either

historical tradition or the removal statute itself.

Congress’s decision to curtail appellate review is

further proof that it did not anticipate or intend that

district courts would be engaged in such complex and

error-inducing inquiries.

Besides introducing complexity and raising the

risk of (largely unreviewable) error, Petitioners’

approach would force state cases to be litigated in the

seemingly never-ending shadow of federal removal,

despite Petitioners’ breezy assertion (Br. 40) that the

Court need not worry. This case itself illustrates the

reason for concern. Whether or not their activities

qualify as waiving the right to remove, Petitioners

engaged in briefing and arguing dispositive motions

for over a year in state court—and even received an

adverse decision on a temporary restraining order—

before deciding to switch forums. Pet. App. 3a-4a; Br.

of Tribal Nations Sec. II.

The removal statute is designed to avoid just such

late-breaking attempts to pull cases from state court.

Congress has created a system that provides plaintiffs

with the right to make an initial forum choice. Royal

Canin v. Wullschleger, 604 U.S. 22, 35, 42 n.9 (2025).

Defendants may remove if they satisfy carefully

defined requirements—including quick action. In

deciding whether to remove, defendants may consider

any number of strategic considerations. These

considerations include factors remarkably similar to

those that Petitioners claim (Br. 40-43) justify

untimely removal here: whether a federal court would

be better suited (in defendants’ view) to address the

particular federal interest at stake and whether a

plaintiff’s decision to file in state court is an attempt

to engage in “forum manipulation.” Congress requires

defendants to make that decision within 30 days

when—as here—defendants’ basis to remove is the

same now as it was at the outset of the case. Pet. App.

12a-14a. To allow those same strategic considerations

to serve as excuses for untimely removal invites

defendants to sit on removal decisions until they see

how the state court case is going.

At bottom, replacing a straightforward deadline

with a complex and unpredictable set of equitable

exceptions defeats the efficiency that is at the heart of

the removal statute’s design. As the Court has

repeatedly emphasized, rules governing threshold

issues about which forum should hear a case need to

be clear and resolved quickly, so the parties can move

on to litigating the merits. Otherwise, complex tests

will “eat[] up time and money as the parties litigate,

not the merits of their claims, but which court is the

right court to decide those claims.” Hertz Corp. v.

Friend, 559 U.S. 77, 94 (2010) (discussing complex

jurisdictional tests). Adhering to Congress’s scheme

achieves its goals. Essentially untethered equitable

exceptions do not. Petitioners’ approach would mean

that threshold issues could not be considered settled

at the outset; an untimely removal could pop up midcourse. And once raised, threshold questions of

removal procedure cannot be resolved efficiently and

predictably under open-ended and variable equitable

standards. This result cannot be squared with

Congress’s removal statute.

CONCLUSION

The judgment should be affirmed.

Respectfully submitted,