Dana Nessel v. Enbridge Energy, LPDana Nessel v. Enbridge Energy, LP
COUNSEL
OPINION
GRIFFIN, Circuit Judge.
Michigan Attorney General Dana Nessel seeks to shut down Enbridge’s Line 5 Pipeline, which runs underwater across the Straits of Mackinac between Michigan’s Lower and Upper Peninsulas. The merits of this litigation are not before us. Instead, we consider only which court should decide this case: does it belong in Michigan state court (where the Attorney General filed it in 2019) or in federal court (to where Enbridge removed it over two years later)? We hold that Enbridge failed to timely remove this case to federal court under
I.
Defendant Enbridge1 owns and operates the Line 5 Pipeline, which is part of a pipeline network that transports petroleum products to refineries in the Midwest, Ontario, and Quebec. Line 5 runs from northwestern Wisconsin through Michigan’s Upper and Lower Peninsulas and then into Canada—terminating in Sarnia, Ontario, just across the border from Port Huron, Michigan. Between Michigan’s peninsulas, it traverses the Straits of Mackinac pursuant to a 1953 easement issued by the State of Michigan, which owns the Straits’ bottomlands. In recent years, that easement has been the subject of litigation in several cases, two of which are relevant here.
A.
The Attorney General’s case. On June 27, 2019, Michigan Attorney General Dana Nessel filed this case in Michigan state court, the 30th Circuit Court for the County of Ingham. The summons and complaint were served on Enbridge on July 12, 2019. The complaint seeks to enjoin Enbridge’s continued operation of Line 5 based on alleged violations of three state laws: the
On September 16, 2019, Enbridge responded to the complaint by moving for summary disposition, arguing that the complaint failed to state a claim on which relief could be granted. Enbridge argued, among other things, that the Attorney General’s claims under the public-trust doctrine were preempted by the federal Pipeline Safety Act, which it claimed occupies the field of pipeline-safety regulation. The Attorney General then filed her own dispositive motion.
In May 2020, the state court held oral argument on those dispositive motions. Before the argument, the state court asked the parties to be prepared to answer questions about federal preemption. Much of the argument indeed focused on preemption issues, including whether the Attorney General’s claims were preempted by either the Pipeline Safety Act or the federal Submerged Lands Act. The court requested post-argument briefing on these preemption issues. In Enbridge’s supplemental brief, Enbridge reiterated its preemption defenses, arguing that the Pipeline Safety Act and the Submerged Lands Act preempted Michigan’s public-trust authority applied to an oil pipeline on submerged bottomlands.
While those dispositive motions were pending, the Attorney General filed a separate motion for a temporary restraining order and preliminary injunction on June 25, 2020. That motion stemmed from a recently disclosed report about issues with Line 5’s infrastructure at the Straits. Enbridge actively participated in the briefing and argument that followed. The motion resulted in a temporary restraining order that briefly enjoined the operation of the pipeline on the Straits’ bottomlands. The court later authorized Enbridge to restart the pipeline’s operations after complying with its federal safety regulator’s requirements.
B.
The Governor’s case. On November 13, 2020, before a ruling by the Ingham County Circuit Court on the competing motions in the Attorney General’s case, Michigan Governor Gretchen Whitmer issued a notice of revocation of the 1953 easement, calling for Line 5 to be shut down by May 2021, and simultaneously filed a complaint in state court to enforce the notice. Her complaint closely paralleled the Attorney General’s. Indeed, according to Enbridge, it “repeat[ed] the same basic facts and claims alleged in the Attorney General’s complaint,” and these two lawsuits involved the “same controversy” between the “same parties or their privies.”
Enbridge timely removed the Governor’s case to the United States District Court for the Western District of Michigan on November 24, 2020. See
The Governor moved to remand the case to state court, arguing that the district court lacked jurisdiction over her exclusively state-law claims. The Canadian government then filed an amicus brief in opposition to the motion to remand, arguing that “Michigan’s Shutdown Order Presents Substantial and Important Treaty Issues” under the 1977 Transit Pipelines Treaty between the United States and Canada. That treaty covers gas and oil pipelines crossing the border between Canada and the United States and prevents any public authority from “interfering with” the cross-border transmission of gas and oil. Agreement Between the Government of the United States of America and the Government of Canada Concerning Transit Pipelines, art. I(a), art. II(1), Jan. 28, 1977, 28 U.S.T. 7449. In its amicus brief, the Canadian government argued
that “unilateral action by a single state” to shut down Line 5 “would impair important U.S. and Canadian foreign policy interests by raising doubts about the capacity of the Government of the United States to make and uphold commitments without being undermined by an individual state.” On October 4, 2021, the Canadian government filed a supplemental amicus letter notifying Enbridge and the district court that Canada had formally invoked the treaty’s dispute-resolution provision, beginning negotiations between the governments of Canada and the United States over Line 5. See id., art. IX.
The district court denied the Governor’s motion to remand on November 16, 2021, a date critical to Enbridge’s argument for timely removal of this case. The court held that it had federal-question jurisdiction under Grable because resolution of the Governor’s claims necessarily requires interpretation of federal law (namely, the Submerged Lands Act, the Pipeline Safety Act, and the 1977 Treaty) and the extent to which those laws “burden[]” Michigan’s ownership of Great Lakes bottomlands. Michigan v. Enbridge Energy, Ltd. P’ship, 571 F. Supp. 3d 851, 859, 862 (W.D. Mich. 2021). Soon thereafter, the Governor voluntarily dismissed her case.
C.
Removal of the Attorney General’s case. Citing both the district court’s order denying the motion to remand in the Governor’s case and
On January 14, 2022, the Attorney General moved to remand this case to state court on two grounds: untimely removal and lack of subject-matter jurisdiction. The district court denied the motion on both grounds. It excused Enbridge’s untimely removal based on equitable principles. And it estopped the Attorney General from challenging subject-matter jurisdiction in
this case, relying on its finding of subject-matter jurisdiction in the Governor’s case. It then certified its order for interlocutory appeal, and we granted the Attorney General permission to appeal.
II.
We review a denial of a motion to remand de novo. Davis v. McCourt, 226 F.3d 506, 509 (6th Cir. 2000). The Attorney
In terms of sequencing, we need not address subject-matter jurisdiction before we address the timeliness of removal. Although federal courts must resolve questions of subject-matter jurisdiction before deciding a case on the merits, we have “leeway to choose among threshold grounds for denying audience to a case on the merits.” Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (internal quotation marks omitted); see also Scott Dodson, In Search of Removal Jurisdiction, 102 Nw. U. L. Rev. 55, 69 (2008) (noting that, in terms of “decisional sequencing,” Sinochem suggests that jurisdictional issues do not have “rigid priority” over procedural issues). Consistent with this discretion and following other courts that have remanded cases because of untimely removal without addressing questions of subject-matter jurisdiction, see, e.g., Tr. Servs. of Carolina, LLC v. Rivera, 2012 WL 1664224, at *1–2 (W.D.N.C. May 2, 2012); In re Foreclosure of a Deed of Tr., 2008 WL 5234301, at *2 (E.D.N.C. Dec. 15, 2008); Laughlin Assocs., Inc. v. Durand, 1997 WL 998381, at *1 n.1 (D. Nev. Oct. 17, 1997), aff‘d, 156 F.3d 1236 (9th Cir. 1998) (unpublished table decision); Steadman v. Sinclair, 1996 WL 257664, at *2 n.2 (S.D.N.Y. May 16, 1996),2 we do not decide whether the district court had subject-matter jurisdiction over this case because Enbridge’s removal was untimely.
A.
“The party seeking removal bears the burden of establishing its right thereto.” Her Majesty The Queen In Right of the Province of Ontario v. City of Detroit, 874 F.2d 332, 339 (6th Cir. 1989). To remove a civil case from state to federal court, a defendant must meet the requirements for removal detailed in
[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.
Id.
Enbridge unquestionably did not comply with
For a case to be removable, a federal district court must have “original jurisdiction” over the case.3 Id.
B.
Enbridge asserts that federal-question jurisdiction now exists in either of two ways. First, under the Grable doctrine, the Attorney General’s state-law claims necessarily turn on a substantial and disputed issue of federal law—the extent to which the Submerged Lands Act, the Pipeline Safety Act, and the 1977 Treaty “burden” Michigan’s authority over the Straits’ bottomlands. See Grable, 545 U.S. at 312–13. Second, because the Attorney General’s state-law claims could cause major implications for foreign affairs, an area of “uniquely federal interest[],” those claims arise under federal common law via the foreign-affairs doctrine.
See Cassirer v. Thyssen-Bornemisza Collection Found., 596 U.S. 107, 116 (2022) (citation omitted); see also Republic of Phil. v. Marcos, 806 F.2d 344, 352–53 (2d Cir. 1986); Torres v. S. Peru Copper Corp., 113 F.3d 540, 543 (5th Cir. 1997).
We express no opinion on the merits of Enbridge’s jurisdictional theories. Rather, to determine whether Enbridge can avail itself of
1.
Viewed through this timing lens, both of Enbridge’s jurisdictional theories fail on
Enbridge’s appellate brief offers no explanation regarding how the Governor’s case could be removable from its outset but this case was not. At oral argument, Enbridge argued (for the first time) that the Governor’s easement-revocation notice, calling for the shutdown of Line 5 within six months, sparked a “significant foreign-affairs controversy” that, in turn, made the Governor’s and Attorney General’s cases such that they arose under federal law under either Grable or federal common law. See Resurrection Sch. v. Hertel, 35 F.4th 524, 530 (6th Cir. 2022) (en banc) (suggesting forfeiture).
But while this unpreserved argument might explain how this case initially was not removable and then later became so, it cannot satisfy
2.
Enbridge’s arguments to the contrary are not persuasive. Enbridge tries to justify the delay between its late 2020 removal of the Governor’s case and December 2021 removal of this case by focusing on the word “ascertain” in
when the complaint was filed but whether it was “unambiguously removable.” It further contends that the first time it had “solid and unambiguous information” that this action was removable—i.e., the first time it “ascertained” removability—was when it received the district court’s November 2021 order denying remand in the Governor’s case.
But, for two reasons, Berera cannot save Enbridge’s belated removal. First, Berera is distinguishable on its facts. It was a case of artful pleading, in which the plaintiff tried to circumvent federal jurisdiction “by artfully casting [her] essentially federal law claims as state-law claims.” Id. at 358 (citation omitted). There, in response to the plaintiff’s threadbare complaint, which purported to assert only state-law claims, the defendant had to file a motion for a more definitive statement to learn about the claims’ true nature. Id. at 355. The plaintiff’s intention to assert federal claims became clear only after her counsel’s admissions at a hearing on that motion. Id. at 356. Such obfuscation by the plaintiff deprived the defendant of the opportunity to learn of grounds for removal.
Here, by contrast, Enbridge does not argue that the Attorney General “carefully crafted her complaint to circumvent federal jurisdiction.” Id. at 358. Rather, Enbridge argues only that the Attorney General’s complaint is the rare case in which federal jurisdiction exists but was uncertain because the complaint alleges only state-law claims, the parties are not diverse, and the Grable and foreign-affairs doctrines are “anything but clear.” See Grable, 545 U.S. at 321 (Thomas, J., concurring). At bottom, Enbridge contends that its jurisdictional theories were complex, necessitating additional time to remove. While we appreciate the difficulty of navigating complicated doctrines and applying them to unique facts under time constraints, that is what
Second,
is federal jurisdiction. Rather, it means to learn with certainty that there are good-faith grounds on which to argue for federal jurisdiction. In other words, as Berera states: “Section 1446(b)’s requirement of solid and unambiguous information is akin to actual notice.” 779 F.3d at 364. If at first a case is not removable,
Given this conclusion, Enbridge’s additional argument that Canada’s later invocation of the 1977 Treaty first made this case removable is without merit. And even if that argument could somehow show that this case first became removable based on Canada’s declarations, it too fails under
C.
In sum, under either of Enbridge’s jurisdictional theories, Enbridge had good-faith grounds to argue for federal jurisdiction more than 30 days before it removed this case. Enbridge missed
III.
Next, we must decide whether the district court correctly ruled that
the district court’s determination that equity favored Enbridge for abuse of discretion, whether a statute permits an equitable exception in the first place is a legal question that we review de novo. Cf. In re Maughan, 340 F.3d 337, 341 (6th Cir. 2003).
Statutory time limits exist on a spectrum of how strictly courts enforce them. They range from “jurisdictional” conditions on the stricter end to mere “time-related directives” on the laxer. See Dolan v. United States, 560 U.S. 605, 610–11 (2010). In the middle is the broad category of “claims-processing rules,” which “do not limit a court’s jurisdiction, but rather regulate the timing of [requests] brought before the court.” Id.
Federal courts have “no authority to create equitable exceptions to jurisdictional requirements.” Bowles v. Russell, 551 U.S. 205, 214 (2007). Indeed, immunity from equitable exceptions is one of several
We know that
But simply confirming that
equitable tolling.” Id. When properly raised by an opposing party, these “mandatory” claims-processing rules “are ‘unalterable,’” id. (quoting Manrique v. United States, 581 U.S. 116, 121 (2017)), and “assure relief to a party properly raising them,” Eberhart v. United States, 546 U.S. 12, 19 (2005) (per curiam). In other words, “[r]ules in this mandatory camp are not susceptible of the equitable approach” the district court applied here. Nutraceutical, 586 U.S. at 192; see also Scott Dodson, Mandatory Rules, 61 Stan. L. Rev. 1, 5–9 (2008). Because the Attorney General properly invoked
Although we presume that we can grant equitable exceptions to non-jurisdictional statutes, Holland v. Florida, 560 U.S. 631, 645–46 (2010), that presumption is rebuttable, see Harrow v. Dep’t of Def., 144 S. Ct. 1178, 1186 (2024) (remanding for consideration of whether a non-jurisdictional appeal deadline is subject to equitable tolling). Whether “equitable tolling is available” under a particular statute “is fundamentally a question of statutory intent.” Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014). Here, applying our usual tools of statutory construction, we have “good reason to believe that Congress did not want” equitable exceptions to apply to
We begin with the text, focusing on whether the statute as a whole allows flexibility for extra-textual exceptions. See Nutraceutical, 586 U.S. at 192–93; see also Harrow, 144 S. Ct. at 1183-84.
The statute then includes explicit exceptions—and carveouts from those exceptions—to that default rule. It first includes an exception in cases involving multiple defendants served at different times (which is not applicable here). Id.
exception—it applies “[e]xcept as provided in subsection (c).” Id. Subsection (c), in turn, provides that “[a] case may not be removed under subsection (b)(3) on the basis of [diversity jurisdiction] more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” Id.
This statutory text expresses “a clear intent to compel rigorous enforcement” of its deadlines, limited only by its explicit exceptions. Nutraceutical, 586 U.S. at 193. Applying equitable tolling to either 30-day window in (b)(1) or (b)(3) would require adding a judicially made exception to Congress’s detailed, express scheme of exceptions and carveouts, an action the Supreme Court has cautioned against. See id. at 194; United States v. Beggerly, 524 U.S. 38, 48-49 (1998); Brockamp, 519 U.S. at 352.
Next, we look to context. One relevant consideration for whether a deadline has “jurisdictional attributes“—like immunity to equitable exceptions—is where Congress placed it in the overall statutory scheme. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 439 (2011); see also West Virginia v. Env’t Prot. Agency, 597 U.S. 697, 721 (2022). The removal statutes, including
Finally, we look to precedent. Overwhelming authority provides that removal statutes—such as
(explaining that language and policy of removal statutes “call[] for the strict construction of such legislation“); Holston v. Carolina Freight Carriers Corp., 936 F.2d 573, 1991 WL 112809, at *3 (6th Cir. 1991) (unpublished table decision) (interpreting
For these reasons, several district courts in this Circuit have rejected equitable exceptions as incompatible with a strict construction of
The cases Enbridge cites in support of an equitable exception are not persuasive. For instance, some are factually distinct, like two multi-defendant cases in which every defendant except one filed a timely notice of removal but one defendant filed one day late. Hernandez v. Six Flags Magic Mountain, Inc., 688 F. Supp. 560, 561 (C.D. Cal. 1988); Farm & City Ins. v. Johnson, 190 F. Supp. 2d 1232, 1237 (D. Kan. 2002). Others disfavor an equitable exception
because they resulted in remand to state court for untimely removal. Brown v. Demco, Inc., 792 F.2d 478, 482 (5th Cir. 1986); Holder v. City of Atlanta, 925 F. Supp. 783, 786 (N.D. Ga. 1996). Enbridge’s best case is Loftin v. Rush, 767 F.2d 800, 801, 805–06 (11th Cir. 1985), which held that a state court’s improper entry of default judgment against the United States Navy, in derogation of federal-government immunity, warranted excusing a late removal. But this single, 39-year-old, distinguishable, and out-of-circuit case hardly constitutes a “clear rule” that “demands” an equitable exception here, Nessel, 954 F.3d at 837, especially considering the overwhelming weight of authority against it.
Accordingly, we hold that
IV.
For these reasons, we reverse the district court’s denial of the motion to remand. We remand for the district court to enter an order remanding this case to Michigan’s 30th Circuit Court for the County of Ingham.
GRIFFIN
CIRCUIT JUDGE