Robert Katzmann, chief judge of the U.S. Court of Appeals for the Second Circuit (Photo by David Handschuh/NYLJ)

With arguments being conducted remotely and written opinions on the rise during the COVID-19 pandemic, the U.S. Court of Appeals for the Second Circuit will reassess the prospects of reopening its Lower Manhattan courthouse later this summer, though a timeline for resuming in-person operations was not yet clear, the court's top jurist told the Law Journal this week.

Chief Judge Robert A. Katzmann said in an interview that no decisions would be made before the end of June, when the Manhattan-based appeals court stops hearing oral arguments and shifts its focus to reading and writing opinions.

At that point, Katzmann said, he would evaluate the situation in New York and prioritize the safety of staff and judges over all other considerations. Any determinations about how to proceed would be based on conditions in June, and he would not try to forecast further developments down the line, given how quickly circumstances can change, Katzmann said.

"I think we can proceed pretty much as we are and see where we are after the term ends," said Katzmann, who has served as chief judge of the Second Circuit since September 2013.

Katzmann on March 16 ordered the Second Circuit courthouse closed to the public, and announced that the panels would begin hearing arguments remotely, via the court's teleconferencing system. For the first time, audio of the arguments would be livestreamed to the Second Circuit's website to ensure that the public would still have access to the court's proceedings.

At the time, New York City was emerging as a major hot spot for coronavirus infections, and the area remains a key concern for elected officials and public health experts, given its large population and density.

Despite the largely unprecedented measures, the Second Circuit has remained productive throughout the pandemic. According to Catherine O'Hagan Wolfe, clerk of the court, the Second Circuit published written opinions in 23 appeals during the three-week period from March 23 to April 10, compared to just 13 during the same time last year.

From March 31 to April 30, the court had turned out 32 written opinions and issued 108 summary orders, and had not missed a scheduled oral argument session since transitioning to remote operations, Wolfe said.

"I don't think we've missed a beat," she said.

Attorneys who practice in the Second Circuit have said that arguments conducted over the phone had been successful, though not without their hiccups. Absent the visual cues inherent to face-to-face interactions, attorneys and active questioners often find themselves accidentally interrupting each other, and cellphones have been known to pick up ambient noise from work-from-home settings.

"They have a tradition of oral argument," said Mintz & Gold partner Roger Stavis, "and they're keeping that tradition alive in the midst of a pandemic."

"I'm pretty impressed with what they've been able to do," Stavis said.

Anecdotally, attorneys have noticed that more appeals have been taken on submission during the pandemic, as some attorneys have opted to forgo oral argument.

Katzmann said that the decision of whether to consider an appeal is typically left to the presiding judge of the panel, who will consider the preference of the parties.

"My view," he said, "is when parties want to argue, they should be able to."

With the infrastructure currently in place, Katzmann said the Second Circuit is well positioned to continue remote operations, as much remains uncertain heading into the court's August 2020 term.

Officials have warned that infections could continue over the summer months, with a possible second wave coming in the fall. Meanwhile, New York's PAUSE order banning nonessential business and gatherings is set to remain in effect through at least the middle of May, though Gov. Andrew Cuomo has said restrictions in the state's most hard-hit regions would likely remain in place much longer.

Travel to the courthouse remains a top concern for parties who may have to rely on the subway, as well as for judges, who are now working from their homes throughout the Second Circuit, which covers six districts in New York, Connecticut and Vermont. It also remains to be seen whether the courthouse would have the physical space to accommodate social-distancing measures that would likely accompany any potential reopening.

The Administrative Office of the U.S. Courts said on Monday that it had distributed guidelines for restoring operations, which recommend a four-phrase framework that relies heavily on local conditions and on "objective data" from local and state public health officials and the Centers for Disease Control and Prevention.

Under the Federal Judiciary COVID-19 Recovery Guidelines, courts were encouraged to consider factors such as the total number of locally confirmed COVID-19 cases, the availability of intensive-care-unit hospital beds and the number of people over 60 years of age, in addition to an area's overall population and density.

Some appellate attorneys, such as Wilk Auslander partner Alan Zuckerbrod, would prefer the court to open for oral arguments sooner rather than later. The Second Circuit, he said, had the room to implement physical distancing within the courthouse, but attorneys should also expect to wear masks and submit to some screening upon entry.

"I do think they have the facilities to do something live in a safe way," Zuckerbrod said.

"If I had an opportunity to do an argument live, I would figure out a way to get there," he said.

Stavis, on the other hand, said that given the court's successful remote capabilities, there was no need to hurry the process.

"In view of the logistical difficulty of bringing in judges and counsel from throughout the circuit, as well as the effectiveness of holding remote arguments, the Second Circuit need not rush its reopening," he said.

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