   REPORT OF THE JUDICIAL COUNCIL OF THE NINTH CIRCUIT
            REGARDING A JUDICIAL EMERGENCY
         IN THE CENTRAL DISTRICT OF CALIFORNIA
       Submitted to the Administrative Office of the U.S. Courts
                  Pursuant to 18 U.S.C. § 3174(d)(1)
                            April 9, 2020

        On March 13, 2020, Chief District Judge Virginia A. Phillips declared a
judicial emergency in the Central District of California under 18 U.S.C. § 3174(e).
She 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 Phillips 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 accused criminal defendants to
trial. This type of request has been approved on four 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 District Judge Virginia A. Phillips was compelled to declare a judicial
emergency under 18 U.S.C. § 3174(e). This judicial emergency period
commenced on March 13, 2020, and will end on April 13, 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 13, 2020, and will conclude on April 13, 2021.

       Under 18 U.S.C. § 3174(d), the Judicial Council hereby submits to the
Administrative Office of the United States Courts the Central 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 Central District of California
April 9, 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.
Health Officers from Los Angeles, Riverside, Orange, San Bernardino, Santa
Barbara, San Luis Obispo, and Ventura Counties subsequently issued local
emergency orders and proclamations related to public gatherings.

      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 Central 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
Report of the Judicial Council of the Ninth Circuit Regarding a
  Judicial Emergency in the Central District of California
April 9, 2020
Page 3

judges from within and without the circuit, and make any recommendations it
deems appropriate to alleviate calendar congestion resulting from the lack of
resources.” If a 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
previously on four occasions to avoid imminent criminal dismissals as a sanction
for non-compliance. See United States v. Bilsky, 664 F.2d 613,619-20 (6th 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, and the Southern District of California on April 2,
2020.

      In addition to the statutory judicial emergency, as outlined above, the
Central 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
Report of the Judicial Council of the Ninth Circuit Regarding a
  Judicial Emergency in the Central District of California
April 9, 2020
Page 4

Central District of California’s weighted filings, 692 per judgeship (61 percent
above the Conference standard), are high enough to be deemed an emergency. The
District is authorized 27 permanent judgeships, one temporary judgeship, and has
10 vacancies, the oldest of which has remained unfilled since 2014. The adjusted
weighted filing per judge is 1,076. All vacancies are categorized as judicial
emergencies. There are eight nominees pending, but due to the COVID-19
pandemic, the status of confirmation hearing dates remains uncertain. Seven active
district judges are eligible to take senior status or retire immediately.

       B. The Central District of California’s Application

      Chief Judge Phillips’ application dated April 6, 2020, outlines the measures
the Court is taking to maintain the public’s safety while trying to remain in
compliance with applicable statutes 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 Central District of California’s Application

       A. Weighted Caseload

       The Central District of California currently ranks 3rd in the Ninth Circuit and
12th nationally in weighted filings, with 692 weighted filings per judgeship for the
12-month period ending December 31, 2019. Considering the 10 judicial
vacancies, the adjusted weighted filings per judge is 1,076. Overall, the total civil
and criminal filings in the District reached 16,890 in 2019.
Report of the Judicial Council of the Ninth Circuit Regarding a
  Judicial Emergency in the Central District of California
April 9, 2020
Page 5


                                                        Numerical Numerical
   12 Month Period Ending December 31, 2019             Standing Standing
                                                           US      Circuit
                    Total                       647        21         5
                    Civil                       564        12         3
           Filings Criminal Felony              53         82        12
Action per          Supervised Release          30         55        12
Judgeship Pending Cases                         525        40         7
           Weighted Filings                     692        12         3
           Terminations                         630        19         4
           Trials Completed                     10         77        11

      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 1990.

      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 the 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, U.S. Marshals 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. Increased Criminal Filings from the U.S. Attorney’s Office

      Over the past couple of years, the number of criminal cases the U.S.
Attorney’s Office (USAO) has filed rose substantially over previous totals, and the
USAO expects continued increased productivity from their assistant U.S. attorneys
Report of the Judicial Council of the Ninth Circuit Regarding a
  Judicial Emergency in the Central District of California
April 9, 2020
Page 6

(AUSAs). The number of AUSAs in the Central District is at an all-time high, as
the USAO will soon have approximately 220 AUSAs to prosecute criminal cases.
The USAO has more than doubled the size of its Riverside branch. The Eastern
Division, which handles cases from San Bernardino and Riverside Counties, has
only one district judge, which is insufficient to cover the number of criminal cases
filed there. Overflow cases are assigned to the district judges in Los Angeles and,
pre-COVID-19, the AUSAs had to travel over 120 miles roundtrip to appear at
those hearings.

      D. Judicial Vacancies

       The District is authorized 27 permanent judgeships, one temporary
judgeship, and has 10 vacancies, the oldest of which has remained unfilled since
2014. All are categorized as judicial emergencies. There are eight nominees
pending, but due to the COVID-19 pandemic the status of confirmation hearing
dates remains uncertain. Seven active district judges are eligible to take senior
status or retire immediately.

       Twenty-four full-time, one part-time, and two recalled magistrate judges are
leveraged to manage the District’s congested court. In the recent 2021 Biennial
Survey of Judgeship Needs, the District has requested 15 additional judgeships and
the conversion of its one temporary judgeship to permanent status. Since 2011, the
District has requested anywhere from 8 to 13 additional judgeships.

      E. Limited Courtroom Availability

      Chief Judge Phillips has reported that the District is currently operating
under limited capacity during the COVID-19 pandemic. Only limited hearings are
being conducted, and there are constraints on the use of video and teleconference
resources. The District has limited access to its local detention centers and jails.
These facilities have limited resources for video and telephonic conferences, and
defendants must be transferred to the closest courthouse for conferencing. Given
the sheer number of hearings, there are not enough telephone and video resources
to accommodate all 52 district and magistrate judges who need to use the
equipment at any given time.
Report of the Judicial Council of the Ninth Circuit Regarding a
  Judicial Emergency in the Central District of California
April 9, 2020
Page 7

      The District also needs to minimize the exposure in courtroom spaces and
accommodate the necessary daily sanitizing by the 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 visiting 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 determine 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 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 conduct court proceedings in as
minimal court spaces as possible.
Report of the Judicial Council of the Ninth Circuit Regarding a
  Judicial Emergency in the Central District of California
April 9, 2020
Page 8

V.    Conclusion

       The Central 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 Central 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 S. Martinez, Chief District Judge
                                 Virginia A. Phillips, Chief District Judge
                                 Michael J. Seabright, Chief District Judge
                                 Ronald S.W. Lew, Senior District Judge
