9th Circuit, Northern District judge require boosters

The 9th U.S. Circuit Court of Appeals chief judge issued a pre-Christmas order changing the definition of "fully vaccinated" to three doses, effectively requiring all court employees and people seeking to appear in person to get a COVID-19 booster shot.

Although a booster has not been mandated by a government authority, Chief Judge Mary H. Murguia said in a footnote to her Dec. 21 order that she was following recommendations of the Centers for Disease Control and Prevention.

While her order will not affect litigants and attorneys in 9th Circuit cases immediately, as the hearings are held remotely, judges in district courts in California have begun implementing the rule.

Members of the public, the news media, litigants and lawyers who wanted access on Monday to a hearing involving Pacific Gas and Electric Co. were required to prove they had a vaccine shot and a booster or listen by teleconference connection.

U.S. District Judge William H. Alsup, who is overseeing the case, issued an order on Dec. 29 that required vaccine boosters. The remote access will be on a case-by-case basis.

"The order only applies to Judge Alsup's courtroom," according to an email from the media liaison for the U.S. District Court for the Northern District of Califonrnia. "At this time, the District Court ... is not requiring proof of vaccination for visitors to enter the courthouse. ... Inside the courtrooms, each judge at the district sets his or her own requirements regarding masks and other safety protocols. At this time, I am not aware of any other judges who have implemented requirements similar to Judge Alsup's order."

9th Circuit Clerk of Court Molly Dwyer said in an interview Monday, "We were supposed to go back to in-person court in January and we decided late last week to stay remote through January. So my hope is we can go back to in-person court in February. ... Hopefully people will have time to make their appointments and get their shots."

She said the decision was made with the rise of the Omicron variant in mind. "We've kept everybody safe thus far. I'd like to get people back in the office and courtroom someday."

For attorneys, litigants or observers who do not get a booster shot by their February appearance date, the option to appear remotely is still available, Dwyer said, adding that the court has been postponing cases to allow parties and their counsel time to get a booster.

"I think the one difference between what we're doing right now and what some of my colleagues around the country are doing is I'm not currently asking the lawyers to give me any reason to appear by video," Dwyer said. "All they have to do is say they want to appear by video and I let them. In some of the other circuits you have to make a motion and it's up to the judges to decide whether you can appear by video, but we haven't done that yet. We're generously letting people appear. I think partly that's because all of the lawyers have to get on airplanes and travel. If COVID wasn't bad enough, airline travel right now is not very good either."

In the Central District of California, the decision about requiring boosters is expected to come up for a vote of the judges, said a representative for Clerk of the Court Kiry K. Gray.

Clerks of court for the Eastern and Southern District Courts did not respond to emails and phone calls.