FOR PUBLICATION

JUDICIAL COUNCIL OF THE NINTH CIRCUIT

 

‘IN RE APPROVAL OF THE
JUDICIAL EMERGENCY ORDER
DECLARED IN THE SOUTHERN
DISTRICT OF CALIFORNIA

 

 

Before: THOMAS, Chief GirouttTndse, BYBEE, IKUTA, SMITH,
MURGUIA, and CHRISTEN, Circuit Judges, HAMILTON,
MARTINEZ, PHILLIPS, and SEABRIGHT, Chief District Judges;
and LEW, Senior District Judge

On March 17, 2020, Chief Judge Larry A. Burns declared a thirty-day
judicial emergency in the Southern District of California pursuant to 18 U.S.C.

§ 3174(e). Finding no reasonably available remedy, the Judicial Council has

agreed to continue the judicial emergency for an additional one-year period and

extend the time limits of 18 U.S.C. § 3161(c), consistent with the provisions of

18 U.S.C. § 3174. This authorization will end on April 17, 2021.

The attached Report of the Judicial Council of the Ninth Circuit Regarding a
Judicial Emergency in the Southern District of California constitutes the findings
of fact and conclusions of law of the Judicial Council justifying a declaration of
judicial emergency pursuant to 18 U.S.C. § 3174. This report was submitted to the

Director of the Administrative Office of the United States Courts. See 18 U.S.C.

§ 3174(d).

Adopted: April 2, 2020 Lhectrar, 2 Dhimon

Hon. Sidney’R. Thomas, Chair
REPORT OF THE JUDICIAL COUNCIL OF THE NINTH CIRCUIT
REGARDING A JUDICIAL EMERGENCY
IN THE SOUTHERN DISTRICT OF CALIFORNIA
Submitted to the Administrative Office of the U.S. Courts
~ Pursuant to 18 U.S.C. § 3174(d)(1)
April 2, 2020

On March 11, 2020, Chief District Judge Larry A. Burns declared a judicial
emergency in the Southern District of California under 18 U.S.C. § 3174. He
- reported that under the emergency declarations of national, state and local
governments, as well as recommendations from the Centers for Disease Control
and Prevention to convene groups of no more than 10 people, the Court is unable
to obtain an adequate spectrum of trial and grand jurors. The suggested physical
distancing measures required to protect public safety diminishes the availability of
counsel, witnesses, parties, the public, Probation and Pretrial Services, and Court
staff to be present in the courtroom. Chief Judge Burns sought the Ninth Circuit
Judicial Council’s approval in declaring an emergency that would extend the time
limits of the Speedy Trial Act (STA) for bringing criminals to trial. This type of
request has been approved on three occasions, with Circuit Judicial Councils
approving judicial emergencies under 18 U.S.C. § 3174 (e) since the STA was
enacted.

With the immediate and pending national and local state of emergencies,
Chief Judge Larry A. Burns was compelled to declare a judicial emergency under
18 U.S.C. § 3174(e). This judicial emergency period commenced on March 17,
2020, and will end on April 16, 2020. After gathering additional data, the Judicial
Council found no reasonable remedy, thus agreed to declare a judicial emergency
and suspend the STA time limits required by 18 U.S.C. 3161(c) in the District for
one year. The continued judicial emergency will commence on April 17, 2020,
and will conclude on April 17, 2021.

Under 18 U.S.C. § 3174(d), the Judicial Council hereby submits to the
Administrative Office of the United States Courts the Southern District of
California’s application for a declaration of a judicial emergency and a written
report stating in detail the reasons for granting the application.
Report of the Judicial Council of the Ninth Circuit Regarding a
Judicial Emergency in the Southern District of California

April 2, 2020

Page 2

I. National, State, and County State of Emergencies — Public Safety

On March 13, 2020, the President of the United States issued a proclamation
declaring a National Emergency in response to the COVID-19 (Coronavirus
Disease) pandemic. The Governor of the State of California declared a
Proclamation of a State of Emergency to exist in California on March 4, 2020. San
Diego Mayor Kevin Faulconer declared a State of Emergency in the city of San
Diego on March 12, 2020.

On March 27, 2020, the Judicial Conference of the United States, acting
pursuant to the authority granted it under the Coronavirus Aid, Relief, and
Economic Security Act (“CARES Act”), specifically found that “emergency
conditions due to the national emergency declared by the President under the
National Emergencies Act (50 U.S.C. § 1601, et seq.) with respect to the
Coronavirus Disease 2019 (COVID-19) have materially affected and will
materially affect the functioning of the federal courts generally.”

The World Health Organization declared COVID-19 a pandemic on
March 11, 2020. In their continuing guidance, the Centers for Disease Control and
Prevention (CDC) and other public health authorities have suggested the public
avoid social gatherings in groups of more than 10 people and practice physical
distancing (within about six feet) between individuals to potentially slow the
spread of COVID-19. The virus is thought to spread mainly from person-to-person
contact and no vaccine currently exists.

No information is currently available to determine when the CDC may
retract its recommendations regarding limited group gatherings and physical
distancing. By limiting person-to-person contact, the public may “flatten” the
epidemic curve of the COVID-19 outbreak.

II. A Judicial Emergency Exists in the Southern District of California
A, 18 U.S.C. § 3174: The Judicial Emergency Provision
According to 18 U.S.C. § 3174(a), upon application by the district, a judicial

council “shall evaluate the capabilities of the district, the availability of visiting
judges from within and without the circuit, and make any recommendations it
Report of the Judicial Council of the Ninth Circuit Regarding a
Judicial Emergency in the Southern District of California

April 2, 2020

Page 3

deems appropriate to alleviate calendar congestion resulting from the lack of
resources.” Ifa judicial council finds no reasonably available remedy, it may
declare a judicial emergency and suspend the 70-day time limit for a period up to
one year, instead allowing up to 180 days before a trial must commence, See 18
U.S.C. §3174(b). The time limits to try detained persons “who are being detained
solely because they are awaiting trial” are not affected by the emergency provision,
Id. If the time limits are not suspended, the sanction for not bringing a defendant
to trial within 70 days of the filing of the indictment is a dismissal of the
indictment. See 18 U.S.C. §3162(a)(2).

The statute does not specify what qualifies as an emergency or what factors
to assess before determining that there is “no reasonably available remedy.” In the
legislative history of the STA, many members of Congress commented on the
importance of a court’s resources to be able to comply with the Act’s time limits,
and the ability to suspend time limits if a court could not meet those requirements.
See 120 Cong. Rec. 41,733, 41,755 (1974).

Congress did not intend that a district court demonstrate its inability to
comply with the STA by dismissing criminal cases and releasing would-be
convicted criminals into society. See H.R. Rep. No. 93-1508 at 80-82, reprinted in
1974 U.S.C.C.A.N, 7401. In fact, the emergency provision has been used has been
used previously on three occasions to avoid imminent criminal dismissals as a
sanction for non-compliance. See United States v. Bilsky, 664 F.2d 613,619-20 (6"
Cir. 1981) (Sixth Circuit suspended time limits for one year in the Western District
of Tennessee shortly after the STA became effective in 1980); United States v.
Rodriguez-Restrepo, 680 F.2d 920, 921 at n.1 (2d Cir. 1982) (Second Circuit
approved emergency for the Eastern District of New York, noting the district’s
“burgeoning caseload and calendar congestion.”); the Ninth Circuit approved a
declaration of emergency pursuant to 18 U.S.C. § 3174(b) for the District of
Arizona on February 24, 2011.

In addition to the statutory judicial emergency, as outlined above, the
Southern District of California also has a “judicial emergency” as defined by
Judicial Conference policy. A vacancy on a district court is considered an
“emergency” if the court’s “weighted filings” exceed 600 per judgeship. The
Southern District of California’s weighted filings, 615 per judgeship, are high
enough to be deemed an emergency. The District is authorized 13 permanent
Report of the Judicial Council of the Ninth Circuit Regarding a
Judicial Emergency in the Southern District of California

April 2, 2020

Page 4

judgeships and has 5 vacancies. The adjusted weighted filing per judge is 999.
One vacancy has been pending for over three years, two others for two years, and
the remaining two for over one year. All are categorized as judicial emergencies.
There are nominees for each of the vacancies, but due to the COVID-19 pandemic,
the status of confirmation hearing dates remains uncertain,

B. The Southern District of California’s Application

CJO #18 outlines the measures the Court is taking to maintain the public’s
safety while trying to remain in compliance with applicable statues and mandated
deadlines. The CDC recommendations regarding gatherings of 10 or fewer people
make essential tasks such as convening the grand jury, holding civil and criminal
jury trials, and criminal proceedings including sentencings, initial appearances,
etc., unattainable.

III. Reasons for Granting the Southern District of California’s Application

A. Weighted Caseload

The Southern District of California currently ranks 4" in the Ninth Circuit
and 19" nationally in weighted filings, with 615 weighted filings per judgeship for
the 12-month period ending December 31, 2019. The District ranks 2™ in the
Ninth Circuit and 5" nationally for criminal felony filings. Overall, the total civil
and criminal filings in the District reached 9,795 in 2019,

 

 

 

 

 

 

 

 

 

 

 

 

 

Numerical | Numerical
12 Month Period Ending December 31, 2019 Standing | Standing
US Circuit

Total 726 14 3
Civil 211 77 10

Filings | Criminal Felony 412 5 2

Action per Supervised Release 103 7 3
Judgeship | Pending Cases 490 49 8
| Weighted Filings 615 19 4

Terminations 660 17 3°
Trials Completed 13 60 5

 

 

 

 
Report of the Judicial Council of the Ninth Circuit Regarding a
Judicial Emergency in the Southern District of California

April 2, 2020

Page 5

The caseload in the District consists of a high number of criminal felony
cases, and the burden of these cases rests on the District Judges. The District
Judges are required under the STA to give priority to criminal cases. The District
has not received any additional permanent or temporary judgeships since 2003.

B. Limitations of In Person Appearances

Pursuant to the authority granted under the CARES Act and the Judicial
Conference of the United States, along with previous authority granted by the
Judicial Council of the Ninth Circuit Court of Appeals, the District has been
exploring use of audio and video capabilities for required in-person hearings such
as initial appearances. Many detention centers are not capable of handling audio or
video appearances. The welfare of the Court, Federal Public Defenders, CJA
Attorneys, US Marshal Service and defendants are placed at risk each time parties
congregate in person for hearings and defendants are transported to and from the
courthouse. Until a remedy is made available, the Court cannot feasibly sustain
compliance with STA deadlines given the high number of criminal defendants
processed daily while concurrently practicing small gathering and physical
distancing guidelines.

C. Status as Border Court

 

The District includes San Diego and Imperial Counties, with a combined
population of over three million residents. The District has extremely. busy ports
of entry along the southwest border of Mexico, which generates a significant
number of federal criminal cases involving immigration, drugs, and customs
offenses. Prosecutions under Operation Streamline have increased under the
Trump Administration, with the U.S. Attorneys operating at the direction of the
Department of Justice and increasing the number of arrests at the U.S.-Mexico
border. The sheer volume of Operation Streamline cases makes it impossible to
promote the safety of the Court and defendants while abiding by the current small
gathering and physical distancing guidelines.

D. Judicial Vacancies

The District is authorized 13 permanent judgeships and has 5 vacancies.
One vacancy has been pending for over three years, two others for two years, and
Report of the Judicial Council of the Ninth Circuit Regarding a
Judicial Emergency in the Southern District of California

April 2, 2020

Page 6

the remaining two for over one year. All are categorized as judicial emergencies.
There are nominees for each of the vacancies, but due to the COVID-19 pandemic,
the status of confirmation hearing dates remains uncertain.

Eleven full-time and two recall magistrate judges are leveraged to manage
the District’s congested court. In the recent 2019 Biennial Survey of Judgeship
Needs, the District has requested six additional judgeships. Since 2005, the
District has requested anywhere from one to three additional judgeships.

E. Limited Courtroom Availability

Chief Judge Burns has reported that the District is currently operating with
only three courtrooms in the San Diego courthouse in order to minimize the
amount of exposure in courtroom spaces, as well as the necessary daily sanitizing
by General Services Administration (GSA) Staff. Under pandemic protocols, GSA
is required to follow separate disinfection procedures to meet California
Department of Public Health and Cal/OSHA guidelines to contain and control
harmful exposures from Aerosol transmissible pathogens requiring droplet
precautions, including COVID-19.

IV. Proposal for Alleviating Congestion

A. Visiting Judges

The District is unable to seek designations for vising judges due to the
COVID-19 pandemic. While travel restrictions may be mitigated by utilizing
telephone or video hearings where possible, the Judiciary is impacted on a national
level by the public safety guidelines recommending gatherings of less than 10
persons and physical distancing of at least six feet.

B. Declaration from CDC Regarding Public Gatherings

The backlog of cases caused by the restriction on public safety mandates can
only start to be alleviated once the CDC lifts its guidance regarding travel-
associated risks and congregate settings and physical distancing, and the Court is
able to make a determination that it is once again safe to resume its operations as
usual, The one-year extension will allow the Court the necessary time to process
Report of the Judicial Council of the Ninth Circuit Regarding a
Judicial Emergency in the Southern District of California

April 2, 2020

Page 7

the backlog as well as manage the influx of new cases once it is deemed once again
safe for members of the public to congregate.

C. Resumption of Normal Courtroom Operations

Until the CDC lifts restrictions on the size of public gatherings and there is
consensus that it is once again safe to return the Court to its high level of
operations in all courtrooms, the District is required to conducting court
proceedings in as minimal court spaces as possible.

Vv. Conclusion

The Southern District of California (along with all of the other districts
across the circuit) and the Ninth Circuit Judicial Council are exploring every
alternative to prioritize essential hearings and keep court operations moving as
quickly as possible while maintaining the welfare of the public. However, the
emergency situation in the Southern District of California has required the District
and the Judicial Council of the Ninth Circuit to invoke the provisions of 18 U.S.C,
§ 3174(c) to extend the STA time periods for bringing defendants to trials.

Submitted by the Judicial Council
of the Ninth Circuit:

Sidney R. Thomas, Chief Circuit Judge
Jay S. Bybee, Senior Circuit Judge

Sandra S. Ikuta, Circuit Judge

N. Randy Smith, Senior Circuit Judge
Mary H. Murguia, Circuit Judge

Morgan Christen, Circuit Judge

Phyllis J. Hamilton, Chief District Judge
Ricardo 8. Martinez, Chief District Judge
Virginia A. Phillips, Chief District Judge
Michael J. Seabright, Chief District Judge
Ronald S.W. Lew, Senior District Judge
