Court Operations and Pandemic Response – Annual Report 2021
The Judiciary is committed to innovative court management and administration that effectively addresses the changing needs of judges, court staff, the bar, and the public. Although the ongoing COVID-19 pandemic in 2021 continued to test court operations in unprecedented ways, the Judiciary kept that commitment.
Pandemic Response and Recovery
Chief Judge James K. Bredar wears a face mask and uses plexiglass partitions in his District of Maryland courtroom as part of the court’s COVID-19 protocols.
As COVID-19 case totals and community transmission levels fluctuated across the nation in 2021, federal courts focused on implementing measures to keep employees and the public safe and on resuming face-to-face operations where and when possible. Assisting federal courts with the recovery from the many difficult months of pandemic-related constraints on operations was a major focus for the Judicial Conference, the Administrative Office of the U.S. Courts (AO), and the COVID-19 Task Force, an intergovernmental group of district and circuit judges, court unit executives, federal defenders, probation and pretrial officers, AO staff, and representatives from other agencies, including the Federal Protective Service, the U.S. Marshals Service, the U.S. Attorney’s Office, and the General Services Administration. The Task Force monitored the pandemic’s impact on Judiciary operations, addressed emerging issues, and coordinated guidance, resources, and legislative proposals. It met regularly throughout the year, shifting its focus from responding to the pandemic to returning court operations to pre-crisis levels when possible. These efforts included the following:
- Courts received continually updated guidance, based on recommendations from the Centers for Disease Control and Prevention and executive branch agencies.
- A Safe Return to the Workplace handbook, webcast, and frequently asked questions (FAQs) were posted on the Judiciary’s internal website to assist courts in managing the return of personnel to courthouses and workspaces.
- Implementation strategies for COVID-19 vaccination and testing requirements within the workplace were distributed.
- A report titled Conducting Jury Trials and Convening Grand Juries During the Pandemic was compiled for judges.
- An updated contact tracing template, vaccine resources and FAQs on vaccine status inquiries and testing, and partner agency recovery materials were disseminated.
- Compilations of court orders and local practice documents on vaccination and testing requirements helped facilitate knowledge sharing among courts.
- Video public service announcements about jury safety were produced for individual courts to post on their public websites.
- A vaccination program for judges and Judiciary employees was provided, in conjunction with the Department of Veterans Affairs’ Veterans Health Administration.
- Virtual audits and processes for other program reviews were put into place to provide continuity of service without jeopardizing the health of independent auditors or Judiciary personnel.
- Courts received updates to COVID-19 human resources policies related to excused absences and vaccination and testing.
Multiple virtual panel discussions with epidemiologists were conducted, recorded, and made available online to provide independent expert advice on COVID-19 issues to courts and federal public defender organizations as they expanded in-person operations. Topics included coronavirus transmission, face coverings, plexiglass barrier usage, vaccines, quarantine, cleaning practices, air flow within facilities, and screening and testing.
A Virtual Judiciary Operations Group collected data with surveys, focus groups, and case studies among Judiciary stakeholders to assess virtual technologies, temporary rule changes, and other pandemic practices.
As COVID-19 case totals declined in parts of the United States, federal courts expanded the number of jury trials and other in-person proceedings while deploying safeguards, such as mask requirements, plexiglass barriers, and social distancing. A few resumed criminal jury trials on a limited basis.
Federal courts operated under a dynamic “gating” strategy, easing and tightening restrictions on courthouse procedures based on improvement or deterioration in local health conditions. Some courts resumed jury trials in the summer of 2021, only to pull back during a fall resurgence of COVID. Pandemic-related lockdowns at detention facilities also restricted courts’ ability to transport defendants to and from the courthouse for proceedings.
As the pandemic persisted well into 2021, many federal courts greatly increased the use of virtual technology to keep backlogs under control, gaining experience and expertise in its use over time. Under provisions of the Coronavirus Aid, Relief, and Economic Security (CARES) Act enacted in 2020, federal courts began conducting routine procedural hearings, such as first appearances for criminal defendants, by telephone and video hookups. In addition, the Judicial Conference provided a temporary exception to the Judiciary’s broadcast policy to allow judges to authorize the use of teleconference technology to provide the public and the media audio access to civil proceedings while public access to federal courts is restricted.
Some courts adapted electronic proceedings to meet more challenging situations. Several held virtual bench trials, which do not require a jury. In a few cases, courts holding high-profile hearings needed to stretch virtual technology to accommodate large numbers of listeners. The Western District of Washington began holding entirely virtual jury trials in civil lawsuits.
Expedited actions by the Judicial Conference were critical to the recovery efforts. The Executive Committee approved human resources policy exceptions to address staffing uncertainties and granted an extension of Civil Justice Reform Act reporting deadlines, providing judges additional time to dispose of pending cases and motions. AO staff worked closely with the courts to comply with the new deadlines. Temporary use of the FBI’s National Crime Information Center to do background checks for new or transferring employees was extended into 2022.
The Committee on Rules of Practice and Procedure published for public comment new rules and rules amendments aimed at mitigating adverse effects on court operations of future emergencies, such as contagious diseases or natural disasters.
Probation and pretrial offices continued to innovate during the pandemic. The number of supervisees placed on low-risk caseloads was temporarily increased to respond to pressures including staffing shortages and limits on in-person activity. The Defender Services Office provided a series of web-based workshops and resources for Criminal Justice Act panel attorneys, including instruction on video- and audioconferencing as attorneys struggled to have access to their clients.
The pandemic caused double-digit declines in 2020 in criminal filings (down 11 percent) and bankruptcy filings (down 12 percent). In 2021, criminal filings fell an additional 8 percent and bankruptcy filings fell over 32 percent from 2020 levels. The Judiciary projected that criminal and bankruptcy caseloads would increase as the effects of the pandemic waned, and that bankruptcy case increases could be substantial.
Electronic Case Management Modernization
In 2021, the Judiciary embarked on a major initiative to modernize its Case Management Electronic Case Filing (CM/ECF) system, which allows the courts to manage their work electronically. The system also powers PACER (Public Access to Court Electronic Records), the public access portal to federal court records.
As part of an interagency agreement, the AO worked throughout 2021 with 18F, a technology consultancy within the General Services Administration that specializes in helping government entities successfully deliver modern, efficient, and easy-to-use digital services. The 18F group assessed the current state of the Judiciary’s CM/ECF system and prepared a report finding that the system was not fully meeting its users’ needs, that its foundational technology was outdated and difficult to maintain, and that it posed cybersecurity risks. The 18F consultants recommended that the Judiciary replace the CM/ECF system with a more secure and reliable case management and filing system built with modern architecture, Agile development and acquisition practices, user-centered design, and integrated cybersecurity.
The AO endorsed the recommendations and committed to modernizing the CM/ECF system and enhancing public access to court records as part of the effort. It continued to work with 18F on development phases and also held briefings for the court community and members of Congress and their staffs. During a second phase of planning in the second half of 2021, 18F conducted additional research, tested the feasibility of some of its recommendations, and collaborated with AO offices on building a development team.
Throughout the year, the AO continued to roll out enhancements of the current CM/ECF system and help courts transition to the most recent software releases. The changes allow Judiciary personnel and members of the public to use a single login and password across courts throughout the country and enables court staff to consolidate different views of case data into a single interface.
Improving cybersecurity protections was a key aspect of the upgrades. The efforts have resulted in about a 40 percent reduction in high and critical security findings. Securing the system from cyberattack is also a major objective of the Judiciary’s modernization plan.
During the year, system modifications were also made to support the CARES Act and the COVID-19 Bankruptcy Relief Extension Act of 2021. For example, bankruptcy case screens and forms were added to make it possible for more businesses to qualify for the streamlined Chapter 11 bankruptcy process, which raises the qualification debt ceiling. It also aided debtors by exempting any COVID relief payments from income calculations for bankruptcy purposes.
McGirt Decision Impact
A 2020 decision by the Supreme Court caused a surge in prosecutions and caseloads in Oklahoma, prompting the Judiciary to act quickly to provide emergency assistance to two affected court districts. In McGirt v. Oklahoma, the Supreme Court held that land affected by an 1832 treaty between the Creek Nation and the U.S. government remains “Indian Country” for the purposes of the Major Crimes Act. The decision was later extended to four additional Indian nations. It shifted the prosecution of the most serious crimes on tribal land from state court to federal or tribal court in much of the eastern part of Oklahoma.
As a result of the McGirt decision, the number of criminal cases jumped by more than 400 percent in the Eastern District of Oklahoma and by nearly 200 percent in the Northern District of Oklahoma. The average annual criminal case filings were predicted to rise from 121 filings to 1,834 in the Eastern District and from 278 to 1,473 in the Northern District.
At its September 2021 meeting, the Judicial Conference decided to ask Congress to immediately authorize five new judgeships in the state – three for the Eastern District, where there is only one federal judgeship, and two for the Northern District, which has three judgeships. (There is also one judgeship that is shared equally by the two districts.) The Conference also approved a new magistrate judge position for the Eastern District and its Magistrate Judges Committee approved the Northern District’s request to fill an existing vacant magistrate judge position.
The sudden criminal caseload surge required an immediate operational scale-up for other personnel involved in federal criminal proceedings: chambers’ and clerk's offices, probation and pretrial offices, federal defenders, U.S. Marshals, U.S. attorney’s offices, and federal law enforcement agencies. The AO formed a working group to coordinate with the Oklahoma districts to address staffing and space requirements and to coordinate with the Department of Justice on information needed to support additional appropriations requests.
The Conference’s Committee on Defender Services agreed with the Tenth Circuit Judicial Council’s decision to create a federal defender office in the Eastern District, which had shared a combined office with the Northern District. Its Executive Committee granted the districts exemptions to national space limitation policies, allowing them to make room for expanded staff and visiting judges.
New Data Tools
The AO has been developing electronic dashboards allowing Judiciary personnel to view, make queries about, and interact visually with multiple data sets without having to download numerous static tables. A dashboard created for appellate, district, and bankruptcy courts had more than 8,000 users across more than 200 court units in 2021, including the entire probation and pretrial services community. Participating courts can see their own aggregated caseload, staffing, and IT data and the data of other participating courts. The dashboard has easy-to-understand metrics on caseload counts, multi-year caseload trends, staff caseloads, and IT deployments. Courts can use the dashboards to find out about peer practices and lessons learned at other courts.
Implementing the Bankruptcy Administration Improvement Act
The Bankruptcy Administration Improvement Act of 2020 (BAIA) made several changes to bankruptcy law that are being implemented by the Judiciary.
A major change was the extension of 25 temporary bankruptcy judgeships for an additional five years. There are 29 total temporary bankruptcy judgeships that previously had been authorized for five-year periods. The extensions are significant because they will ensure that no further temporary judgeships will expire during a period when bankruptcy filings are expected to increase.
Other changes included reauthorizing increased Chapter 11 quarterly fees and an increase in the compensation for trustees in Chapter 7 bankruptcy cases, paid for by the Department of Justice’s U.S. Trustee System Fund and administered by the AO.
Access to Interpreters
Spanish is the most frequently used language in interpreting proceedings in the courts, comprising 95 percent of all reported interpreting events in fiscal year 2021. Federal courts used interpreters in 157,772 court proceedings in the 12 months ending Sept. 30, 2021. Overall, 116 different languages were used, and American Sign Language was used in 169 cases. The table below shows the top 10 languages that required interpreting.
| Language | Number of court proceedings |
|---|---|
| Spanish | 149,903 |
| Russian | 1,385 |
| Mandarin | 1,061 |
| Armenian | 896 |
| Bosnian/Croatian/Serbian (BCS) | 854 |
| Cantonese | 289 |
| Vietnamese | 289 |
| Arabic | 284 |
| Romanian | 214 |
| Korean | 185 |