11th Circ. Drops Mask Mandate For Vaccinated Court Visitors

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The Eleventh Circuit has dropped its face mask and social distancing requirements for court visitors who are fully vaccinated against COVID-19, while planning to resume in-person hearings in June.

Eleventh Circuit Chief Judge William H. Pryor Jr. updated the federal appellate court's coronavirus guidelines in a general order Monday, vacating previous pandemic-related orders for court entry requirements implemented in March and August last year. The presiding judge in any proceeding can require the wearing of face masks, or authorize the removal of a mask, during that proceeding, per the order.

Judge Pryor's order relies on recent guidance from the Centers for Disease Control and Prevention in relation to the COVID-19 pandemic, that fully vaccinated people no longer need to wear a face mask or physically distance in any setting, except where required by laws and regulations. People "may be requested to provide proof of their vaccination status," he wrote in the order.

"The court takes this temporary action in response to the COVID-19 pandemic and out of concern for the health and safety of the federal judiciary and staff, members of the bar, and the public," Judge Pryor said in his order. "The court will continue to assess the ongoing need for the entry restrictions and update such restrictions as warranted."

Eleventh Circuit staff told Law360 on Tuesday that in-person oral arguments will resume in June. The court has four locations, in Atlanta, Georgia; Miami and Jacksonville, Florida; and Montgomery, Alabama.

Eleventh Circuit Executive James P. Gerstenlauer said the court's operating procedures, facilities and conditions factored into the changes, as well as updated CDC guidance. He said court staff are not required to be vaccinated but have had opportunities through work to get their shots.

Gerstenlauer said the court's general order from July, authorizing oral arguments to be held remotely, is still in effect. It is based partly on the recognition that circuit judges are in the best position to assess conditions in each of the court's locations and determine whether arguments should be in-person or not.

He said judges are scheduled to sit en banc and in person at the Atlanta courthouse for oral arguments on June 15, and two different panels of three judges are scheduled to hear in-person oral arguments in Jacksonville and Miami at the end of June.

"We expect that the court will continue to assess the need for pandemic related requirements and will make any changes that may be needed to facilitate the health and safety of the federal judiciary, employees, members of the bar, and the public," Gerstenlauer said.

The court considers people to be fully vaccinated two weeks after their second of two doses, or two weeks after their single-dose vaccine. Those not fully vaccinated must wear a face mask and physically distance themselves, per the order.

Judge Pryor said even fully vaccinated people with COVID-19 symptoms or who are awaiting a coronavirus test result will be denied court access, as will those who have tested positive for the virus within the previous 10 days.

Those not fully vaccinated who have had close contact in the previous two weeks with a person who has COVID-19, or those asked or required to quarantine, will also be denied entry to court facilities.

COVID-19 symptoms listed in the court order include a temperature of more than 100.4 degrees Fahrenheit, cough, sore throat, shortness of breath, breathing difficulties, chills, muscle or body aches, nausea or vomiting, and a new loss of taste or smell.

Judge Pryor said every court visitor must use a temperature check station in addition to the usual screening protocols. He said fully vaccinated people can still choose to wear face masks and physically distance themselves while in the court.

The court is also prohibiting people from submitting paper briefs or appendices if they would not be allowed to enter court facilities under the order.

Peach State courts have also recently lifted some pandemic restrictions and resumed in-person proceedings, including jury trials.

The Supreme Court of Georgia announced in early May that it would resume in-person oral arguments on June 9, though Chief Justice Harold D. Melton has since advised state courts to keep mask mandates until the CDC releases specific guidelines for courthouses.

Federal trial courts in Georgia resumed in-person jury trials in April. And Justice Melton lifted a jury trial suspension for state courts in March.

Justice Melton and Justice Shawn E. LaGrua, who heads the Georgia Judicial Council's COVID-19 taskforce, told Law360 that in light of the CDC's recent guidance for face masks, state court committees should re-evaluate and modify their pandemic plans as necessary. But they said the revised guidelines "would not support a general practice of allowing unvaccinated individuals in the courthouses without masks."

Georgia's current statewide judicial emergency order directs chief judges in each county to develop their own pandemic operational plans, as long as they're consistent with local, state and federal guidance.

Georgia appellate attorney Brandon Bullard of The Bullard Firm LLC told Law360 he has no concerns about the Eleventh Circuit's updated entry requirements.

"Usually when you give an appellate argument, the courtroom behind you is mostly empty," he said. "It's a rare thing to even have spectators."

Bullard said he and his wife are fully vaccinated against COVID-19 but choose to wear masks in public out of an abundance of caution, especially because they have a young child.

"The CDC guidance is a valid basis for Chief Judge Pryor to make this decision," he said. "We seem to be on the tail end of this thing. It wasn't to be unexpected."

Leigh Ann Webster of Strickland Webster LLC, an Atlanta appellate attorney and former staff attorney for the Eleventh Circuit, told Law360 her decision whether to wear a mask in the court despite being fully vaccinated would depend on how crowded it was. Webster pointed out the appellate court typically only schedules a few oral arguments on any given day, which tend to involve just one or two attorneys on each side.

She said significant case presentations like oral arguments are better in person, though video proceedings are undeniably efficient.

"It's nice to have the freedom to be in front of the judges, to be able to see them and for them to be able to see your face," Webster said Tuesday. "You get a better idea of what the judges are thinking when you can see their facial expressions."

--Additional reporting by Emily Sides. Editing by Alyssa Miller.

Update: This article has been updated with comment from the Eleventh Circuit executive and justices of the Georgia Supreme Court.

For a reprint of this article, please contact reprints@law360.com.



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