Uncertainty in 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, along with 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 as it works its way through four phases of reopening.

Phase One under the AO guidance—which is where many courts are now—involves the postponement of all but necessary proceedings, with most court personnel working remotely. In Phase Two, courts will consider the resumption of grand jury and petit jury proceedings and 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, along with continued, enhanced screening that involves detection of higher temperatures among asymptomatic employees.

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, the AO guidance expectedly notes, 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, while some courts “are beginning to consider preparations for onsite operations,” many “are not close to this process yet.” And more guidance will be coming from the AO on the handling of a variety of issues, Duff said, including guidance on testing potential jurors, social distancing considerations during jury assembly, voir dire, jury deliberations, and other matters.

Bruce Moyer

Counsel for Government Relations

Federal Bar Association

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.