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-rejected Servotronics Inc. v. Rolls-Royce PLC case concerning subpoenas for international arbitrations, whether McGirt against Oklahoma should apply retroactively, and if 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 solve if 28 USC § 1782 (a) applies to private commercial arbitral tribunals. Section 1782 authorizes a district court to order a person who “resides or is” in the district “to testify or declare or produce a document or other thing for use in proceedings in a foreign or international court. “. Servotronic involved a divided circuit over whether a “foreign or international tribunal” includes private commercial arbitration. The US 4th Circuit Court of Appeals allowed Servotronics to subpoena persons with first-hand knowledge of an arbitration incident in London, but the US 7th Circuit Court of Appeals dismissed the summons request from Servotronics. However, the parties stipulated that the case be closed before the judges are supposed to hear arguments in the case, and on September 29, the Supreme Court dismissed the case from its substantive case.

In ZF Automotive US, Inc. v Luxshare, Ltd., the judges have the possibility of repeating the same question. In this case, a dispute arose after Luxshare, a Hong Kong limited liability company, purchased a business unit from ZF Friedrichshafen AG, a German company headquartered in Germany. The contract provided for a resolution by the rules of the German Arbitration Institution. Following a US Court of Appeals precedent for the 6th Circuit, the district court granted Luxshare’s request to subpoena ZF Automotive US, Inc., an indirect subsidiary based in Michigan. , on the grounds that a private arbitration counts as a “foreign or international court” for Article 1782. ZF Automotive US filed a petition for certiorari prior to judgment asking the judges to take this case in place of Servotronic.

In the last year McGirt v. Oklahoma, the Supreme Court ruled that the eastern half of Oklahoma remained “Indian country” for the purposes of the Major Crimes Act, which means that the federal government, not the state, has the power to prosecute Native Americans for major crimes committed on reserves. As reported on SCOTUSblog, Oklahoma has asked judges to consider reviewing and canceling McGirt. In Parish c. Oklahoma, however, the Clifton Parish petition asks the judges to go in the opposite direction and rule that McGirt apply retroactively to convictions that were final when McGirt has been announced. In August 2020, Parish, convicted and sentenced by an Oklahoma court of second degree murder, filed for post-conviction relief on the grounds that he is a member of the Choctaw Nation and that his crime was committed in the historical boundaries of the Choctaw. Nation. The Oklahoma Court of Criminal Appeals ruled that McGirt was not retroactive because the decision was procedural. Parish argues that the decision is substantial because Oklahoma did not have the power to sue him.

In 303 Creative LLC v. Elenis, a website designer is asking judges to decide whether Colorado’s anti-discrimination law violates the Free Speech or Free Exercise clauses of the First Amendment. Lorie Smith of 303 Creative LLC wishes to state on her website that she will not create any websites that promote messages contrary to her faith, including same-sex marriage. Claiming to fear the state would prosecute her for violating the CADA, she filed a lawsuit to challenge the constitutionality of the law. The United States Court of Appeals for the 10th Circuit upheld CADA. For the speech, the 10th Circuit ruled that Colorado has a compelling interest in securing access to Smith’s services, and for free exercise, the court ruled that CADA was generally applicable. In his petition, Smith asks the judges to review these assets and possibly, if the law is generally applicable, to review the standard in force from Division of Employment c. Smith. (The judges considered a request for reconsideration of their denial of certification in a similar case, Arlene’s Flowers Inc. v. Washington, in their “long conference” last week, and they put it back on sale for Friday’s conference.)

These and other petitions of the week are below:

Rojas v. United States
Problem: If the federal Food, Drug and Cosmetic Act’s criminal prohibitions on the “distribution” of drugs reach the administration of drugs by practitioners, which has been left to state and local regulation for more than a century.

Jackson vs. Hudson
Disclosure: Goldstein & Russell, PC, whose lawyers contribute to SCOTUSblog in various capacities, is the applicant’s lawyer in this case. This registration occurs regardless of the likelihood of certiorari being granted.
Problem: Does a federal inmate have the right to sue for habeas under the Safeguard Clause of 28 USC § 2255 (e) to challenge the illegal application of a mandatory minimum sentence and the imposition of a sentence exceeding the appropriate legal maximum, when its challenge was previously excluded by a binding circuit precedent which has since been overturned by the bench circuit based on a Supreme Court decision.

John K. MacIver Institute for Public Policy, Inc. v. Evers
Problem: Does the government’s selective exclusion of members of the press from press conferences and official briefings of the new governor imply the guarantee of equal treatment of the press clause of the First Amendment, as considered United States Courts of Appeal for the 1st, 2nd and District of Columbia circuits? , or rather should be analyzed under the forum’s analysis of the speech clause, as held by the United States Court of Appeals for the 7th Circuit below and the United States Court of Appeals for the 4th circuit.

Delta Air Lines, Inc. v. Oman
Problem: If, in accordance with the trade clause and deregulation preferences of the Airline Deregulation Act, California can extend its wages and hours laws to flight attendants who spend the vast majority of their workweek in outside of California simply because they show up at a California airport to begin their multi-state multi-day shift.

ZF Automotive US, Inc. v Luxshare, Ltd.
Problem: Whether 28 USC § 1782 (a), which allows litigants to invoke the authority of US courts to help them gather evidence for use in “a foreign or international court,” encompasses private commercial arbitration tribunals, as the Courts of Appeal of the United States have held. United States for the 4th and 6th circuits, or excludes such courts, as decided by the United States Courts of Appeal for the 2nd, 5th and 7th circuits.

Kisor v. McDonough
Problem: If the term “relevant official after-sales service records” in 38 CFR § 3.156 (c) (1)The “reconsideration” provision of the includes all files which “pass a benefit test” or is rather limited to only those files which “relate to the basis of the benefit”. [Department of Veterans Affairs’] initial denial of benefits ”, as in Kisor vs. Wilkie.

Parish c. Oklahoma
Problem: Whether McGirt v. Oklahoma apply retroactively to convictions that were final when McGirt has been announced.

303 Creative LLC v. Elenis
Problems: (1) If the application of a public housing law to compel an artist to speak or remain silent, contrary to the artist’s sincere religious beliefs, violates the freedom of expression or freedom clauses first amendment exercise; and (2) whether a public housing law that allows secular but non-religious exemptions is generally applicable under Division of Employment c. Smith, and if so, whether the Supreme Court should overturn Black-smith.


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