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Vaccinations, Renewed Caution at Circuit Courts as Delta Spreads

Aug. 13, 2021, 5:48 PM

Federal appellate courts are evolving their pandemic-era restrictions, including requiring vaccinations, introducing limits on proceedings, and canceling plans to return in-person as Covid delta variant spread prompts renewed caution in how they operate.

The U.S. Court of Appeals for the Tenth Circuit, for instance, said Thursday that only people who have been vaccinated may enter the court—the strictest known policy among the 13 federal circuits.

The court asked that unvaccinated attorneys who are scheduled to present oral argument file a motion to appear by video no less than 30 days before the scheduled day of the argument.

The Covid delta variant, which is more transmissible and accounts for the majority of new infections in the U.S., has prompted courts in recent weeks to proceed with renewed care to try to ensure safety. The changes aren’t uniform across the circuits and mainly depend on the degree of new virus spread in their region.

But overall, the situation has changed markedly from the spring and early summer when the federal court system began to normalize operations with coronavirus caseloads falling and millions of Americans getting vaccinated.

So far, at least three federal circuits starting in-person oral arguments—the Seventh, Eleventh, and Federal Circuit—will require lawyers and visitors to either be fully vaccinated or have tested negative for Covid-19.

The Federal Circuit on Thursday issued new protocols for its planned restart of in-person arguments, including requiring lawyers and attendees entering the courtroom attest that they are fully vaccinated or have tested negative for Covid-19 in the past 48 hours.

The court will also allow only the attorney arguing the case and one other person “whose presence is necessary to assist or supervise arguing counsel” to be permitted to the courthouse.

The Eleventh Circuit will also require all staff, on-site contractors and visitors to verify their vaccination status before entering the facilities.

Return Delayed

Meanwhile, the Ninth Circuit and the Fourth Circuit delayed a planned return to in-person proceedings as a result of rising positive Covid-19 cases.

The Fourth Circuit on Thursday said it won’t hold in person arguments in September. Patricia Connor, the circuit’s clerk of court, said the court will reassess before the next oral argument session starting in October.

The Ninth Circuit on Aug. 9 said it would hold arguments by video or telephone at least through October.

“We were gearing up to begin to invite lawyers to argue in person beginning August 30 and set up a lone in-person argument for Anchorage last week, inviting vaccinated local counsel to appear in-person,” Molly Dwyer, clerk of court for the Ninth Circuit, said in an email.

Dwyer said the court will reassess the situation in September.

Positive Tests

At the district level, courts in some of the states with the highest new cases per capita have canceled proceedings because of increasing infections, and in one case, because of infections within the court itself.

The Middle District of Louisiana entered its second week of canceled in-person operations after a high number of Covid-19 cases among staff forced the closure of its courthouse.

“As a result of numerous confirmed positive cases of the COVID-19 virus among key operational personnel in virtually every Court Unit, we cannot responsibly conduct in-court proceedings during the current surge in cases in the Court and in our communities,” the court said on its website.

The San Antonio division of the Western District of Texas canceled jury trials and grand juries from now until Oct. 3 because of surges related to the delta variant.

—With assistance from Jasmine Han and Andrew Wallender

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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