Washington Watch: When Will the Federal Courts Reopen?

The resiliency of the federal courts system has been tested by the COVID-19 pandemic, revealing positively the federal judiciary’s capacity to adapt and innovate. This is a good sign. By nature, judicial institutions are averse to abrupt changes in their traditions and rules. But the lethal power of COVID-19 has afforded little room for the status quo when administering justice.

While civil litigation in federal courthouses has slowed and jury trials have been suspended in some locations, hearings in civil and criminal proceedings have continued, where practicable, through phone and videoconference arrangements, with many judges, court personnel, and attorneys working from home. These developments have swiftly involved the exponential adoption of videoconferencing, generating what may become the “new normal” for the foreseeable future.

As part of the CARES relief legislation, Congress provided $2.5 million to the federal courts in late March to strengthen their videoconferencing muscle. As the pandemic broke, it became obvious that the courts would need to shift from onsite to remote operations, requiring greater bandwidth and more secure electronic platforms for federal judges and staff to work remotely. The results have been relatively positive according to litigants and judges alike. The situation also has spotlighted the federal courts’ electronic case management and case files system (CM/ECF).

Changes in the use of technology also were adopted at the U.S. Supreme Court on May 4, 2020, when the Court began to permit the live broadcast of teleconferenced oral arguments. It remains to be seen whether audio broadcasting continues after the pandemic and ultimately becomes a stepping-stone to the video broadcast of oral arguments.

AO Guidance on Reopening the Federal Courts

Just like the rest of the country, attorneys and judges wonder when the federal courts will reopen and what federal legal practice will look like. On April 24, 2020, the Administrative Office of the U.S. Courts issued guidance to all federal circuit and district judges and personnel to use in making locally based decisions on reopening courthouses, based on local COVID-19 case trends and stay-at-home and quarantine orders as well as CDC guidance. The AO guidelines reflect the decentralized management approach of the federal court system, permitting each circuit and district to make appropriate reopening decisions through the four phases of reopening.

Phase One under the AO guidance—where many courts are now—involves postponing all but necessary proceedings, with most court personnel working remotely. In Phase Two, courts will consider resuming grand jury and petit jury proceedings and allowing the return of nonvulnerable judges, court employees, attorneys, and litigants to the federal courthouse, but video and audio-teleconferencing will continue to the greatest extent possible. Court filings likely will increase, the AO guidance notes, but clerk acceptance of filings will continue remotely and on site in some locations. In Phase Two, courtrooms, jury rooms, and cafeterias could reopen, but 6-foot physical-distancing restrictions will need to be in place as well as enhanced screening such as monitoring employee temperatures.

Courthouse access restrictions will ease further under Phase Three, with continued use of precautionary measures, but also with the relaxation of enhanced screening measures and other protocols as the CDC rescinds guidance and new governmentwide mitigation measures are adopted. Phase Four—the return to normal—will not be attained until COVID-19 has been suppressed throughout the country, permitting full, unrestricted operations and activities within federal courthouses and facilities. Court officials “will need to tailor the application of these criteria to local circumstances,” the guidelines say, and “should work with local public health and public safety agencies to ensure when these criteria are satisfied and minimize employee risk as they progress through the phases.”

James Duff, director of the Administrative Office of the U.S. Courts, said in a statement that “Some courts are beginning to consider preparations for onsite operations. Many courts, however, are not close to this process yet as the pandemic continues to have severe impact in their communities.” Duff said that more guidance will be coming from the AO, including guidance on testing potential jurors, social distancing considerations during jury assembly, voir dire, jury deliberations, and other matters.

About the Author

Bruce Moyer is government relations counsel for the FBA. 

About the FBA

Founded in 1920, the Federal Bar Association is dedicated to the advancement of the science of jurisprudence and to promoting the welfare, interests, education, and professional development of all attorneys involved in federal law. Our more than 16,000 members run the gamut of federal practice: attorneys practicing in small to large legal firms, attorneys in corporations and federal agencies, and members of the judiciary. The FBA is the catalyst for communication between the bar and the bench, as well as the private and public sectors. Visit us at fedbar.org to learn more.