Need A Vaccine For That Oral Argument? Well, It Depends.

You might need a vax for that. #AppellateTwitter

So, do you have an oral argument coming up in a federal appellate case? Do you what the COVID protocol is for that argument? Because it varies wildly from circuit to circuit.

Sure, sure — they’re all part of the same system, but don’t expect any consistent rules. Each circuit has developed its own rules for how to deal with the emerging threat of the Delta variant. Yes, there is a recently announced system for emergencies, “not limited to pandemics,” for any “extraordinary circumstances relating to public health or safety, or affecting physical or electronic access to a court, [that] substantially impair the court’s ability to perform its functions,” but that doesn’t mean we are getting consistency right now.

So, what is going on in each circuit? Law360 has helpfully gathered the information (save for the 3rd Circuit, which did not respond to a request for comment). Here are the relevant details:

1st — No in-person oral arguments through at least November.
2nd — Vaccination or negative test within preceding 72 hours. In person in August.
3rd — No information provided.
4th — No in-person oral arguments until at least Oct. 26.
5th — Masks required; in person Aug. 30. Individual panels can grant remote hearing.
6th — No in-person oral arguments until at least Oct. 18.
7th — Vaccination required. In person starting Oct. 4.
8th — No in-person oral arguments through at least September.
9th — No in-person oral arguments through at least October.
10th — Vaccination required. In person starting Sept. 20.
11th — Vaccination or negative test within preceding 72 hours. In-person date unclear.
Federal — Vaccination or negative test within preceding 48 hours. In person Aug. 30.
D.C. — No in-person oral arguments through at least October.

But remember the situation is dynamic, and policies are always subject to change. Dr. Amira Roess, an epidemiologist at George Mason University, notes that with the recent full FDA approval the Pfizer vaccine has received, we can expect more mandates coming our way: “[M]any institutions have gone ahead and implemented vaccine mandates, and it just makes sense given that we’re dealing with the delta variant. We need to do what we can to dramatically decrease cases so that we can keep our hospitals functioning.”

It’s hard to say if an appellate argument is going to change anyone’s current vaccine plans, but for those jurisdictions requiring it, it sends an important message about the health and safety of the court system and everyone who works in it.


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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).