DC Circ., District Delay Proceedings Amid COVID-19 Outbreak

By Khorri Atkinson
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Law360, Washington (March 17, 2020, 10:52 AM EDT) -- The D.C. Circuit and district courts are putting off all onsite hearings and other judicial proceedings starting Tuesday, joining a growing list of federal courts across the country that are curtailing public gatherings to limit the spread of the novel coronavirus.

The appeals court said in an order Tuesday evening that all of its hearings have been indefinitely suspended but that appellate judges — who typically sit on three-judge panels — may decide whether to hold hearings by phone, postpone proceedings or decide cases without oral arguments.

The clerk's office will inform attorneys which of the three is advisable for their cases, the order added, and the "court will continue to monitor and examine options for cases currently scheduled for oral argument."

The appeals court's move came a day after Chief Judge Beryl A. Howell of the U.S. District Court for the District of Columbia announced that all federal civil and criminal jury trials in D.C. federal courts will be postponed until at least May 11, while other proceedings are postponed until April 17. However, the order late Monday added that all federal trial and bankruptcy courts in D.C. will remain open with limited operations "to support essential functions" and that criminal duty magistrate judges will continue conducting proceedings utilizing videoconference capabilities for detained defendants "when feasible."

The orders from both courts, housed at The E. Barrett Prettyman Courthouse along with the D.C. bankruptcy courts, pointed out that restrictions recently placed on public gatherings, including a declared state of emergency March 11 by the D.C. government and the Centers for Disease Control and Prevention's recommendation to cancel or postpone mass gatherings, underscore the need to combat the spreading of the virus.

Before Monday's order, the court was having difficulty obtaining an "adequate spectrum" of prospective jurors due to concerns about their health and safety, the judge said.

The judge added that individual judges presiding over nonjury trial proceedings, including court hearings, settlement conferences and grand jury sessions, are allowed to issue orders directing that those proceedings be held through teleconference, videoconference or in-person on or before April 17.

As COVID-19 cases rise across the country, numerous federal courthouses are enacting measures such as restricting public access and altering their procedures. The most dramatic move came Monday when the U.S. Supreme Court postponed oral arguments scheduled for this month's session. The high court closed to tourists last week until further notice.

Earlier Tuesday, the D.C. Circuit said it's postponing a March 31 en banc rehearing involving a dispute over the constitutionality of the Federal Energy Regulatory Commission's practice of dragging out administrative appeals for pipeline objections. The full court will now examine a panel's decision backing FERC's approval of the $1 billion Atlantic Sunrise project on April 28. On that same day, the full bench is also rehearing House Democrats' request to enforce a subpoena for congressional testimony from former White House counsel Don McGahn and the House's challenge over President Donald Trump's diversion of military funds for a border wall.

The circuit court instructed attorneys last week not to come to the courthouse if they are experiencing flu-like symptoms or symptoms of COVID-19. The notice also advised arguing attorneys to limit the attendance of co-counsel and support staff at oral argument "as much as possible."

D.C. Circuit Chief Judge Sri Srinivasan and Judge Howell said in a joint statement Friday that access to the courthouse is limited to judges, court staff, members of the media and visitors with official business with the courts.

--Editing by Alyssa Miller.

Update: This story has been updated to include information on the D.C. Circuit's order.

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

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