COVID and the Courts: Expect Delay

As we discussed a few weeks ago, the federal courts’ responses to COVID have varied widely. One of the most common responses across the federal courts, however, has been the extension of filing deadlines—although the particular deadlines affected and the length of the extensions granted (again) vary. To give a few examples from all levels of the federal court systems:

• The Supreme Court extended the deadline for filing a petition for certiorari from 90 days after the lower court judgment to 150 days. The Court’s extension order also noted that “motions for extensions of time . . . will ordinarily be granted by the Clerk as a matter of course if the grounds for the application are difficulties relating to COVID-19 and if the length of the extension requested is reasonable under the circumstances.”
• The Second Circuit granted a 21-day extension for all filings originally due between March 16, 2020 and May 17, 2020. However, litigants should be aware that the deadline for filing a notice of appeal and other jurisdictional deadlines have not changed.
• The Ninth Circuit has not issued blanket extensions, but the court stated that it will extend non-jurisdictional filing dates as needed. Parties may seek 60-day extensions for briefs by filing a short notice detailing the COVID-related reason for the extension. Notably, due dates for filing notices of appeal and petitions for review, as well as other jurisdictional deadlines set by statute or rule, are unaffected. 
• The Northern District of Illinois extended all civil case deadlines by 39 days. 
• The District of Maryland extended all filing deadlines between March 16 and April 24 by 6 weeks.

Where no blanket extension is effective, many parties have filed for significant extensions of briefing or other deadlines, citing practical impediments caused by COVID. For example, in the high-profile D.C. Circuit litigation challenging the Trump administration’s “Affordable Clean Energy Rule” (addressing greenhouse gas emission standards for power plants), in which the government had previously sought expedited review to try to have the case decided before January 2021, the petitioners sought—and the government consented to—an extension of most briefing deadlines by three weeks. Petitioners cited COVID-related “logistical challenges” including school closures and shelter-in-place orders. There also have been numerous government-initiated extension requests, with DOJ counsel similarly citing school and office closures as the justification for the extension of looming deadlines.

In short, we are seeing significant litigation delays at all levels of the federal judicial system, with the likely result of delaying the final resolution of many cases by several weeks or months. We recommend that clients with an impending litigation deadline first check to see whether the deadline is subject to an automatic extension under that particular court’s COVID-related orders; if not, we recommend clients consider requesting an extension, being candid with opposing counsel and the court about the practical problems posed by COVID-related closures.