Worldwide little one custody, arbitration, dormant commerce clause, and additional time


at 3:03 pm

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

This Friday, the Supreme Court will hold its last conference of 2021. Out of that conference will likely come the last granted cases of the year that is rapidly approaching its conclusion. Perhaps unsurprisingly, after a few weeks that were fairly light on relisted cases, we have an abundance of relists this week with six new relisted cases.

The first new relist will be familiar to regular readers as it was featured in our last installment. Golan v. Saada, 20-1034, is an international child custody case. Under the Hague Convention on the Civil Aspects of International Child Abduction, children who are abducted must be returned to the country that is their habitual residence so that the courts there can resolve any custody disputes. The convention creates an exception to that general rule when there is a grave risk that returning the child would expose him or her to physical or psychological harm. Golan v. Saadapresents the question whether, upon finding that return to the country of habitual residence would place a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding. The Supreme Court called for the views of the solicitor general, who believes the court should take the case.

Way back in March, the Supreme Court granted certiorari in Servotronics Inc. v. Rolls-Royce PLC to resolve a circuit split about whether 28 U.S.C. § 1782(a) — which 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” — applies to private commercial arbitral tribunals. But just days before the Supreme Court was scheduled to hear argument in Servotronics, the parties settled and the case was dismissed.

Two of this week’s relists involve cases raising the same issue — and essentially auditioning to replace Servotronics. ZF Automotive US, Inc. v. Luxshare, Ltd. involves a dispute between two private corporations; because the district court granted Luxshare’s request to subpoena ZF Automotive US based on circuit precedent of the U.S. Court of Appeals for the 6th Circuit, ZF has filed a relatively unusual petition for certiorari before judgment asking the court to take this case before the court of appeals rules in it. Alix Partners, LLP v. The Fund for Protection of Investors’ Rights in Foreign States, 21-518, involves a dispute between a private entity (petitioner Alix Partners) and a Russian state investment fund. The U.S. Court of Appeals for the 2nd Circuit held that arbitration between two private parties does not come within the scope of Section 1782’s authorization to order the collection of evidence, but it held that investor-state arbitration does. Alix notes that the brief the United States filed in the Servotronics case asserted that “whether Section 1782 authorizes assistance for use in investor-state arbitration” was “a question of particular concern to the United States.” So the court will be deciding whether to take one or both of these cases. (I suspect from reviewing Servotronics that the court will likely hold that Section 1782 assistance isn’t available for private commercial arbitration — at least not between private companies. But perhaps another round of briefing will disabuse me of that idea.)

Southwest Airlines Co. v. Saxon, 21-309, presents the justices with yet another case involving the scope of the Federal Arbitration Act, this time in the context of a suit under the Fair Labor Standards Act. The FAA exempts “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” In Circuit City Stores Inc. v. Adams (2001), the Supreme Court concluded that the exemption’s residual clause, “any other class of workers,” refers only to “transportation workers,” but the court has not further defined “transportation worker.” This case involves a wage dispute between Southwest Airlines and Latrice Saxon, a ramp agent supervisor for the airline. Saxon trains, supervises, and sometimes assists ramp agents in loading and unloading passenger baggage from airplanes. After Saxon sued the airline in federal court under the FLSA, Southwest moved to dismiss in favor of arbitration. The district court agreed with Southwest that Saxon was not a transportation worker because she “did not physically transport goods at all, let alone out-of-state.” The U.S. Court of Appeals for the 7th Circuit reversed on the ground that “cargo loaders generally are a class of workers engaged in the actual transportation of goods,” including supervisors who occasionally load and unload baggage. Arguing that lower courts are split on the meaning of “transportation worker,” Southwest asks for review.

In Arrow Highway Steel, Inc. v. Dubin, 21-27, Robert Dubin embezzled over a million dollars from Arrow Highway Steel, Inc. while working during the early 1990s as Arrow’s accountant in California. Arrow sued him for his fraudulent conduct and in 1997, he stipulated to a civil judgment. Before paying any portion of the judgment, Dubin then moved to Nevada. In 2018, Arrow sued Dubin to recover on the judgment. California Code of Civil Procedure Section 351 tolls the time to enforce a judgment while a person is outside of the state, and made Arrow’s enforcement action timely. The California courts held, however, that Section 351 was unconstitutional as applied to Dubin because Section 351 places burdens on interstate commerce that are excessive in relation to its putative local benefits. The California courts relied on the Supreme Court’s opinion in Bendix Autolite Corp. v. Midwesco Enterprises, Inc. (1988), which invalidated under dormant commerce clause doctrine an Ohio law providing that the state’s statute of limitation would not run against corporations that were not present in the state and had not designated an agent for service of process. Arrow Highway Steel, represented in part by Dean Erwin Chemerinsky, argues that Section 351 does not (unlike the statute in Bendix) burden interstate commerce. Rather, the company contends it is legitimately designed to ensure that California judgments can be enforced when a judgment debtor has left California for any reason, and regardless of whether the departure has anything to do with commerce.

Last up is AMN Services, LLC v. Clarke, 21-296. Under the Fair Labor Standards Act, an employee’s base pay or “regular rate” determines the amount they are paid for “overtime” at one-and-one-half times the employee’s “regular rate.” The FLSA excludes from the “regular rate” “reasonable payments for traveling expenses … incurred by an employee in the furtherance of his employer’s interests.” Verna Clarke and Laura Wittman, who both worked as traveling clinicians for AMN Services, LLC, a health care staffing company, brought class actions alleging that their weekly per diem benefits were not actually travel expenses but rather functioned as compensation and should have been included in their regular rate of pay. The U.S. Court of Appeals for the 9th Circuit agreed, emphasizing that the company did not pay per diems for days the employee was not working (even if they were away from home traveling for AMN’s benefit at the time), that employees were able to offset missed or incomplete shifts in their per diems with hours they had “banked” by working more than minimum required hours; and that local clinicians who did not travel received the same per diems, but for them, the per diems were understood to function as wages. The panel opinion was authored by liberal judge Marsha Berzon, joined by conservative judge Daniel Collins and visiting judge Bobby Baldock from the U.S. Court of Appeals for the 10th Circuit. AMN seeks review, arguing that “this case presents the latest example of the Ninth Circuit disregarding statutory text and this Court’s precedent,” and “threaten[s] employers with massive liability for doing nothing more than following longstanding industry practice.” Although the case involves a fairly specific issue, AMN Services is supported by six amicus briefs.

That’s all for this week, and indeed, hopefully this year. Until next time, stay safe!

New Relists

Golan v. Saada, 20-1034
Issue: Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding. CVSG: 10/27/2021
(relisted after the Dec. 3 conference)

Arrow Highway Steel, Inc. v. Dubin, 21-27
Issues: (1) Whether the dormant commerce clause may be used to invalidate the application of a state’s neutral, non-discriminatory tolling statute to defeat the enforcement of a former resident’s stipulated judgment where there is no showing of any burden on or discrimination against interstate commerce; and (2) whether the dormant commerce clause applies to a state statute with no intended or demonstrated effect on interstate commerce.
(relisted after the Dec. 3 conference)

AMN Services, LLC v. Clarke, 21-296
Issue: Whether, under the Fair Labor Standards Act, per-diem allowances for traveling expenses, which are reduced when the employee fails to work a contractually required shift, are excluded from the employee’s “regular rate” as “reasonable payments for traveling expenses … incurred by an employee in the furtherance of his employer’s interests.”
(relisted after the Dec. 3 conference)

Southwest Airlines Co. v. Saxon, 21-309
Issue: Whether workers who load or unload goods from vehicles that travel in interstate commerce, but do not physically transport such goods themselves, are interstate “transportation workers” exempt from the Federal Arbitration Act.
(relisted after the Dec. 3 conference)

ZF Automotive US, Inc. v. Luxshare, Ltd., 21-401
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.
(relisted after the Dec. 3 conference)

Alix Partners, LLP v. The Fund for Protection of Investors’ Rights in Foreign States, 21-518
Issue: Whether an ad hoc arbitration to resolve a commercial dispute between two parties is a “foreign or international tribunal” under 28 U.S.C. § 1782(a) when the arbitral panel does not exercise any governmental or quasi-governmental authority.
(relisted after the Dec. 3 conference)

Returning Relists

Knight v. Pennsylvania, 20-7805
Issue: Whether a state may require a defendant to present an IQ score of 75 or below that was “documented prior to age 18” to have his intellectual disability claim considered as a basis to disqualify him from the death penalty, when this requirement is contrary to clinical standards for diagnosis and contrary to multiple decisions where the Supreme Court has granted relief to petitioners who lacked any such documentation.
(relisted after the Oct. 29, Nov. 5, Nov. 12, Nov. 19 and Dec. 3 conferences)

Holcombe v. Florida, 21-53
Issues: (1) Whether a criminal defendant establishes an “actual” conflict of interest that adversely affects counsel’s representation when the attorney engages in “joint and dual” representation – i.e., simultaneously representing both the defendant and a key prosecution witness during a trial; (2) whether the “presumed prejudice” conflict of interest standard applies when the prosecutor (rather than defense counsel) puts the trial judge on notice at the beginning of a trial of defense counsel’s conflict of interest – a conflict which is described by the prosecutor as “not waivable” – and the judge thereafter fails to inquire into the nature and scope of the conflict.
(relisted after the Oct. 29, Nov. 5, Nov. 12, Nov. 19 and Dec. 3 conferences)

Trustees of the New Life in Christ Church v. City of Fredericksburg, 21-164
Issues: (1) Whether civil authorities violate the First Amendment when they engage in their own interpretation of church doctrine to overrule a church’s determination that a particular official is a minister and, if so, whether summary reversal is appropriate; (2) whether, in the alternative, the Supreme Court should grant, vacate, and remand in light of Fulton v. City of Philadelphia, because Virginia has enacted a “system of individual exemptions” to its property tax law, and the city “‘may not refuse to extend that [exemption] system to [the Church] without compelling reason.’”
(rescheduled before the Oct. 8 and Oct. 15 conferences; relisted after the Oct. 29, Nov. 5, Nov. 12, Nov. 19 and Dec. 3 conferences)

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