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Courts mull closures and risks amid coronavirus pandemic

Supreme Court decides to close to the public ‘until further notice’

The nation’s federal courts began to grapple in earnest with the fallout from the rapidly spreading coronavirus Thursday, including the Supreme Court’s decision to close to the public “until further notice,” the closure of an immigration court in Seattle and the possibility that a San Francisco courtroom might have hosted an attorney who is presumed to have the highly contagious virus.

At the national level, the Administrative Office of the U.S. Courts organized a COVID-19 Task Force as a single point of contact within the judiciary to share information and guidance relating to the coronavirus outbreak.

That includes representatives from Federal Occupational Health, the General Services Administration, the Marshals Service and other federal partners, the AO said.

But individual courts can make their own decisions about how to respond based on their local situation. Those decisions must balance long-scheduled or legally required court hearings with the health of the judges, clerks, staff, lawyers, jurors and defendants who must come to the courthouse.

Those courts have coordinated with state and local health officials to obtain current local information, with guidance from the AO on human resources, budget and other operational issues, as well as continual updates from the Centers for Disease Control and Prevention.

In Washington, the U.S. Court of Appeals for the District of Columbia Circuit posted a reminder on its website that the CDC recommends avoiding public spaces to avoid spreading the virus — and that they provide live online streaming of oral arguments.

“There is no need to come to the courthouse to have real-time access to arguments,” the D.C. Circuit posted.

The Supreme Court, which does not allow audio streaming of its arguments, made its announcement on public access to the building just hours after the Capitol authorities closed doors to tourists and the public. The Library of Congress, located next door to the Supreme Court, also announced Thursday that it would close.

The Supreme Court’s next oral argument is March 23, and the high-profile argument over the congressional subpoenas for President Donald Trump’s financial and tax records from financial institutions is set for March 31. Such an argument would usually find the courtroom packed shoulder to shoulder.

An AO memo to the nation’s judges last month suggested that federal courts “at a minimum” coordinate with human resources about “social distancing practices,” such as “teleworking, staying home when sick, and separation of potentially ill staff from others within the workplace.”

The U.S. District Court for the District of Columbia posted online Wednesday that it is “continuing regular business operations as of this date” but would post updates on its website.

As COVID-19 cases spread at breakneck pace, so do fears that the immigration court system is not taking appropriate measures to protect the employees and migrants in courtrooms across the United States.

NBC News reported Thursday that an attorney in the Justice Department’s Office of Immigration Litigation traveled to San Francisco last week for a court proceeding and returned to the Washington office before coming down with symptoms and has been deemed to be presumptively positive for COVID-19.

Other Justice Department employees questioned whether they are at risk and whether they should continue traveling for official purposes, NBC News reported.

The potential for spreading the virus shows up in the court schedule. There were five immigration appeals cases argued at the U.S. Court of Appeals for the 9th Circuit in San Francisco last week, all in the same courtroom, and 27 total cases argued in that courtroom last week, Aaron Reichlin-Melnick, a former immigration lawyer, pointed out on Twitter.

On Thursday, 104 legal service providers in New York sent a letter to the director of the Executive Office of Immigration Review, the Justice Department agency overseeing immigration courts, expressing “extreme concern at the lack of guidance or proactive initiatives” to prevent the spread of coronavirus in these courtrooms.

The letter follows a March 9 outcry by the National Association of Immigration Judges, the judges’ union, that the EOIR had ordered immigration courts to take down public health posters showing tactics for slowing the spread of coronavirus.

The agency later backtracked, calling it a mistake, and the posters went back up. Massachusetts Democratic Sens. Elizabeth Warren and Edward J. Markey wrote a letter Thursday to the DOJ expressing concern because their staff visited the Boston Immigration Court and confirmed there were no COVID-19 posters displayed in the waiting area.

The Seattle immigration court closed March 10 after a second positive COVID-19 surfaced, but no further guidance followed this closure.

Several lawyers also observed that in many courtrooms, migrants and lawyers were being made to wait in close proximity in the waiting room — in clear contradiction of the social distancing recommendations made my health professionals.

The judges’ union has asked EOIR to allow migrants who are represented by counsel to not be required to attend the hearings in person — but so far no such direction has been given.

“When will EOIR announce guidelines for how courts will help prevent contagion?” Lily Axelrod, an immigration lawyer who practices in Memphis, Tennessee, wrote on Twitter. “Director [James] McHenry told us that DoJ is coordinating an agency-wide response. I told him I hope DOJ is listening to EOIR folks on the ground because we need transparent leadership on this ASAP.”

Christina Brown, a Colorado-based immigration lawyer who experienced symptoms of COVID-19, asked for an emergency continuance in one of her cases at the immigration court in Harlingen, Texas, for fear of potentially spreading the illness to her clients and other at-risk migrants and workers in the courtroom. She was first told to file it in person but was eventually granted the continuance.

The EOIR did not respond to CQ Roll Call’s request for comment on the matter.

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