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International arbitration, McGirt retroactivity, and anti-discrimination laws

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, a potential replacement for the now-dismissed Servotronics Inc. v. Rolls-Royce PLC case concerning subpoenas for international arbitrations, whether McGirt v. Oklahoma should apply retroactively, and whether the Colorado Anti-Discrimination Act violates a website designer’s First Amendment rights.

In March, the Supreme Court granted certiorari in Servotronics Inc. v. Rolls-Royce PLC to resolve whether 28 U.S.C. § 1782(a) applies to private commercial arbitral tribunals. Section 1782 authorizes a district court to order a person who “resides or is found” within the district “to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.” Servotronics involved a circuit split over whether a “foreign or international tribunal” includes private commercial arbitration. The U.S. Court of Appeals for the 4th Circuit allowed Servotronics to subpoena persons with first-hand knowledge of an incident relevant to an arbitration in London, but the U.S. Court of Appeals for the 7th Circuit rejected Servotronics’ subpoena request. However, the parties stipulated that the case be dismissed before the justices were scheduled to hear argument in the case, and on Sept. 29, the Supreme Court dismissed the case from its merits docket.

In ZF Automotive US, Inc. v. Luxshare, Ltd., the justices have a chance to take up the same issue again. In this case, a dispute emerged after Luxshare, a Hong Kong limited liability company, purchased a business unit from ZF Friedrichshafen AG, a German corporation headquartered in Germany. The contract provided for resolution by the rules of the German Institution of Arbitration. Following precedent in the U.S. Court of Appeals for the 6th Circuit, the district court granted Luxshare’s request to subpoena ZF Automotive US, Inc., a Michigan-based indirect subsidiary, on the ground that a private arbitration counts as a “foreign or international tribunal” for Section 1782. ZF Automotive US has filed a petition for certiorari before the judgment asking the justices to take this case in place of Servotronics.

In last year’s McGirt v. Oklahoma, the Supreme Court ruled that the eastern half of Oklahoma remains “Indian country” for purposes of the Major Crimes Act, meaning that the federal government, not the state, has authority for prosecuting Native Americans for major crimes committed on reservations. As reported on SCOTUSblog, Oklahoma has asked the justices to consider revisiting and overruling McGirt. In Parish v. Oklahoma, however, Clifton Parish’s petition asks the justices to go in the opposite direction and to rule that McGirt applies retroactively to convictions that were final when McGirt was announced. In August 2020, Parish, convicted and sentenced in Oklahoma court for second-degree murder, filed a petition for post-conviction relief on the grounds that he is a member of the Choctaw Nation and that his crime occurred within the historical boundaries of the Choctaw Nation. The Oklahoma Court of Criminal Appeals ruled that McGirt was not retroactive because the ruling was procedural. Parish argues that the decision is substantive because Oklahoma lacked the power to prosecute him.

In 303 Creative LLC v. Elenis, a website designer asks the justices to decide whether the Colorado Anti-Discrimination Act violates the free speech or free exercise clauses of the First Amendment. Lorie Smith of 303 Creative LLC wants to state on her website that she will not create websites that promote messages contrary to her faith, including same-sex marriage. Saying she fears the state will prosecute her for violating the CADA, she sued to challenge the law’s constitutionality. The U.S. Court of Appeals for the 10th Circuit upheld the CADA. For speech, the 10th Circuit ruled that Colorado had a compelling interest in ensuring access to Smith’s services, and for free exercise, the court ruled that the CADA was generally applicable. In her petition, Smith asks the justices to review these holdings and potentially, if the law is generally applicable, to revisit the prevailing standard from Employment Division v. Smith. (The justices considered a request to reconsider their cert denial in a similar case, Arlene’s Flowers Inc. v. Washington, in their “long conference” last week, and they have relisted it for Friday’s conference.)

These and other petitions of the week are below:

Rojas v. United States
Issue: Whether the Federal Food, Drug and Cosmetic Act’s felony prohibitions on “dispensing” drugs reach the administering of drugs by practitioners, which has been left to state and local regulation for more than a century.

Jackson v. Hudson
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is counsel to the petitioner in this case. This listing occurs without regard to the likelihood that certiorari will be granted.
Issue: Whether a federal prisoner is entitled to bring a habeas claim under the saving clause of 28 U.S.C. § 2255(e) to challenge the unlawful application of a mandatory minimum sentence, and imposition of a sentence that exceeded the proper statutory maximum, when his challenge was previously precluded by binding circuit precedent that has since been overruled by the circuit sitting en banc on the basis of an intervening decision of the Supreme Court.

John K. MacIver Institute for Public Policy, Inc. v. Evers
Issue: Whether the government’s selective exclusion of members of the press from the incoming governor’s official press conferences and briefings implicates the equal treatment guarantee of the First Amendment’s press clause, as the U.S. Courts of Appeals for the 1st, 2nd and District of Columbia Circuits have held, or instead should be analyzed under the speech clause’s forum analysis, as the U.S. Court of Appeals for the 7th Circuit below and the U.S. Court of Appeals for the 4th Circuit have held.

Delta Air Lines, Inc. v. Oman
Issue: Whether, consistent with the commerce clause and the deregulatory preferences of the Airline Deregulation Act, California may extend its wage-and-hour laws to flight attendants who spend the vast majority of their workweek outside of California simply because they report to a California airport to begin their multi-day, multi-state work shift.

ZF Automotive US, Inc. v. Luxshare, Ltd.
Issue: Whether 28 U.S.C. § 1782(a), which permits litigants to invoke the authority of United States courts to render assistance in gathering evidence for use in “a foreign or international tribunal,” encompasses private commercial arbitral tribunals, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held, or excludes such tribunals, as the U.S. Courts of Appeals for the 2nd, 5th and 7th Circuits have held.

Kisor v. McDonough
Issue: Whether the term “relevant official service department records” in 38 C.F.R. § 3.156(c)(1)’s “reconsideration” provision encompasses all records that “go to a benefits criterion,” or is instead restricted to only those records that “relate to the basis of the [Department of Veterans Affairs’] initial denial of benefits,” as in Kisor v. Wilkie.

Parish v. Oklahoma
Issue: Whether McGirt v. Oklahoma applies retroactively to convictions that were final when McGirt was announced.

303 Creative LLC v. Elenis
Issues: (1) Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the free speech or free exercise clauses of the First Amendment; and (2) whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under Employment Division v. Smith, and if so, whether the Supreme Court should overrule Smith.

Recommended Citation: Andrew Hamm, International arbitration, McGirt retroactivity, and anti-discrimination laws, SCOTUSblog (Oct. 8, 2021, 5:14 PM),