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Report to Congressional Committees:
United States Government Accountability Office:
GAO:
June 2010:
Federal Courthouse Construction:
Better Planning, Oversight, and Courtroom Sharing Needed to Address
Future Costs:
GAO-10-417:
GAO Highlights:
Highlights of GAO-10-417, a report to congressional committees.
Why GAO Did This Study:
The federal judiciary and the General Services Administration (GSA)
are in the midst of a multibillion-dollar courthouse construction
initiative, which has since faced rising construction costs. As
requested, for 33 federal courthouses completed since 2000, GAO
examined (1) whether they contain extra space and any costs related to
it; (2) how their actual size compares with the congressionally
authorized size; (3) how their space based on the judiciary’s 10-year
estimates of judges compares with the actual number of judges; and (4)
whether the level of courtroom sharing supported by the judiciary's
data could have changed the amount of space needed in these
courthouses. GAO analyzed courthouse planning and use data, visited
courthouses, modeled courtroom sharing scenarios, and interviewed
judges, GSA officials, and other experts.
What GAO Found:
The 33 federal courthouses completed since 2000 include 3.56 million
square feet of extra space consisting of space that was constructed
(1) above the congressionally authorized size, (2) due to
overestimating the number of judges the courthouses would have, and
(3) without planning for courtroom sharing among judges. Overall, this
space represents about 9 average-sized courthouses. The estimated cost
to construct this extra space, when adjusted to 2010 dollars, is $835
million, and the annual cost to rent, operate and maintain it is $51
million.
Twenty-seven of the 33 courthouses completed since 2000 exceed their
congressionally authorized size by a total of 1.7 million square feet.
Fifteen exceed their congressionally authorized size by more than 10
percent, and 12 of these 15 also had total project costs that exceeded
the estimates provided to congressional committees. However, there is
no requirement to notify congressional committees about size overages.
A lack of oversight by GSA, including not ensuring its space
measurement policies were understood and followed and a lack of focus
on building courthouses within the congressionally authorized size,
contributed to these size overages.
For 23 of 28 courthouses whose space planning occurred at least 10
years ago, the judiciary overestimated the number of judges who would
be located in them, causing them to be larger and costlier than
necessary. Overall, the judiciary has 119, or approximately 26
percent, fewer judges than the 461 it estimated it would have. This
leaves the 23 courthouses with extra courtrooms and chamber suites
that, together, total approximately 887,000 square feet of extra
space. A variety of factors contributed to the judiciary’s
overestimates, including inaccurate caseload projections, difficulties
in projecting when judges would take senior status, and long-standing
difficulties in obtaining new authorizations and filling vacancies.
However, the degree to which inaccurate caseload projections
contributed to inaccurate judge estimates cannot be measured because
the judiciary did not retain the historic caseload projections used in
planning the courthouses.
Using the judiciary’s data, GAO designed a model for courtroom
sharing, which shows that there is enough unscheduled time for
substantial courtroom sharing. Sharing could have reduced the number
of courtrooms needed in courthouses built since 2000 by 126 courtrooms—
about 40 percent of the total number—covering about 946,000 square
feet of extra space. Some judges GAO consulted raised potential
challenges to courtroom sharing, such as uncertainty about courtroom
availability, but others indicated they overcame those challenges when
necessary, and no trials were postponed. The judiciary has adopted
policies for future sharing for senior and magistrate judges, but
GAO’s analysis shows that additional sharing opportunities are
available. For example, GAO’s courtroom sharing model shows that there
is sufficient unscheduled time for 3 district judges to share 2
courtrooms and 3 senior judges to share 1 courtroom.
What GAO Recommends:
Among other things, GSA should: (1) ensure that courthouses are within
their authorized size or notify congressional committees; and the
Judicial Conference of the United States should: (2) retain caseload
projections to improve the accuracy of its 10-year judge planning; and
(3) establish and use courtroom sharing policies based on scheduling
and use data. GSA and the judiciary agreed with most of the
recommendations, but expressed concerns with GAO’s methodology and key
findings. GAO believes these to be sound, as explained in the report.
View [hyperlink, http://www.gao.gov/products/GAO-10-417] or key
components. For more information, contact Mark L. Goldstein at (202)
512-2834 or goldsteinm@gao.gov.
[End of section]
Contents:
Letter:
Background:
Extra Space in Courthouses Cost an Estimated $835 Million in Constant
2010 Dollars to Construct and $51 Million Annually to Rent, Operate,
and Maintain:
Most Courthouses Exceed Congressionally Authorized Size Due to a Lack
of Oversight by GSA:
Estimated Space Needs Exceeded Actual Space Needs, Resulting in
Courthouses That Were Larger than Necessary:
Low Levels of Use Show That Judges Could Share Courtrooms, Reducing
the Need for Future Courtrooms by More Than One-Third:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Comments from the U.S. General Services Administration:
GAO Comments:
Appendix III: Comments from the Federal Judiciary:
GAO Comments:
Appendix IV: GAO Contact and Staff Acknowledgments:
Tables:
Table 1:The Different Types of Federal Judges:
Table 2: Estimated Construction and Annual Operations and Maintenance
Costs of Building Extra Space in Seven Case Study Courthouses:
Table 3: Square Footage Over Authorized and Efficiency of Seven
Courthouses:
Table 4: Comparison of 10-Year Judge Estimates and the Actual Number
of Judges After 10 Years or More for Case Study Courthouse Locations
and Related Space Consequences:
Table 5:Dedicated Courtroom-Sharing Possibilities Based on GAO Model:
Table 6: District, Senior, and Magistrate Judge Courtroom Sharing That
Could Occur in Selected Courthouses Based on the Judiciary's Data:
Table 7: The 33 Courthouses Completed from 2000 through March 2010:
Table 8: Courtroom Sharing for District Judges Based on Centralized
Sharing:
Table 9:Courtroom Sharing for Senior District Judges Based on
Centralized Sharing:
Table 10: Courtroom Sharing for Magistrate Judges Based on Centralized
Sharing:
Table 11: Courtroom Sharing for Courthouses Using Nationwide Ratio of
District Judges to Senior and Magistrate Judges Based on Centralized
Sharing:
Figures:
Figure 1: Extra Federal Courthouse Space Constructed Since 2000 and
the Estimated Construction and Annual Costs:
Figure 2: Extra Federal Courthouse Space Constructed Since 2000 Due to
Exceeding Congressionally Authorized Square Footage:
Figure 3: Percentage Difference in Size of Federal Courthouses as
Congressionally Authorized and as Built:
Figure 4: Example of a Mechanical Room on a Courtroom Floor of the
Eagleton U.S. Courthouse in St. Louis, Missouri, and on the Top Level
of the Coyle U.S. Courthouse, in Fresno, California:
Figure 5: D'Amato U.S. Courthouse Atrium Map and Pictures:
Figure 6: Atrium in Ferguson, Jr., U.S. Courthouse in Miami, Florida,
and Entry Space in DeConcini U.S. Courthouse in Tucson, Arizona:
Figure 7: Extra Federal Courthouse Space Constructed Since 2000 Due to
Overestimating the Number of Judges:
Figure 8: Unassigned Chamber Suites in the Coyle Courthouse in Fresno,
California:
Figure 9: Total District Court Case Filings for the Eastern District
of Missouri:
Figure 10: Unassigned District Courtroom and Chamber in the Ferguson
Courthouse, Miami, Florida:
Figure 11: Extra Federal Courthouse Space Constructed Since 2000 Due
to Judges Not Sharing Courtrooms:
Figure 12: Representation of an Average 8 Hour Day for a Courtroom by
Type of Judge as of July 2007:
Abbreviations:
ADR: Alternative Dispute Resolution:
BOMA: Building Owners and Managers Association:
Design Guide: The U.S. Courts Design Guide:
FJC: Federal Judicial Center:
GSA: General Services Administration:
judiciary: federal judiciary:
Marshals: U.S. Marshals:
OMB: Office of Management and Budget:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
June 21, 2010:
The Honorable James L. Oberstar:
Chairman:
The Honorable John L. Mica:
Ranking Member:
Committee on Transportation and Infrastructure:
House of Representatives:
The Honorable Eleanor Holmes Norton:
Chair:
The Honorable Mario Diaz-Balart:
Ranking Member:
Subcommittee on Economic Development, Public Buildings, and Emergency
Management:
Committee on Transportation and Infrastructure:
House of Representatives:
Since the early 1990s, the General Services Administration (GSA) and
the federal judiciary (judiciary) have undertaken a multibillion-
dollar courthouse construction initiative that has resulted in 66 new
courthouses or annexes,[Footnote 1] with 29 additional projects in
various stages of development. However, rising costs and other federal
budget priorities threaten to stall the initiative. In 2008, for
example, we found that increases in construction cost estimates for
the Los Angeles, California, courthouse had led to an impasse that has
yet to be resolved.[Footnote 2] Over the last 15 years, we have raised
concerns about GSA's and the judiciary's process for planning new
courthouses, including concerns over limited controls and oversight
over courthouse construction costs.[Footnote 3] We have also raised
questions about the accuracy of the judiciary's long-term caseload
projections--projections used to estimate the number of judges who
will be located in new courthouses in 10 years, often under a policy
that provided one courtroom for each estimated judge. Furthermore, we
and some members of Congress have raised concerns that some courtrooms
are underutilized; that more courtrooms than needed have been, and
continue to be, constructed; and that increased courtroom sharing by
judges--an option that the judiciary studied for district courtrooms
in 2008[Footnote 4]--could reduce the number of new courtrooms needed
and therefore the size and cost of new courthouse projects. As a
result of this study, the judiciary recently established some new
policies that incorporate more sharing of courtrooms for senior judges
[Footnote 5] and magistrate judges.
To assist you in your oversight of the courthouse construction
initiative, you asked us to review courthouse planning and
construction, including the initiative's management and costs.
Accordingly, for 33 federal courthouses completed since 2000, we
examined (1) whether the courthouses contain extra space and any costs
related to it, (2) how the actual size of the courthouses compares
with the congressionally authorized size, (3) how courthouse space
based on the judiciary's 10-year estimates of judges compares with the
actual number of judges; and (4) whether the level of courtroom
sharing supported by data from the judiciary's 2008 study of district
courtroom sharing could have changed the amount of space needed in
these courthouses. To address these objectives, we analyzed planning,
construction, and budget documents associated with all 33 federal
courthouses or major annexes completed from 2000 through March 2010.
For the names and locations of these courthouses, see table 7 in
appendix I. In addition, we selected seven of the federal courthouses
in our scope to analyze more closely as case studies: the Bryant U.S.
Courthouse Annex in Washington, D.C.; the Coyle U.S. Courthouse in
Fresno, California; the D'Amato U.S. Courthouse in Central Islip, New
York; the DeConcini U.S. Courthouse in Tucson, Arizona; the Eagleton
U.S. Courthouse in St. Louis, Missouri; the Ferguson U.S. Courthouse
in Miami, Florida; and the Limbaugh, Sr., U.S. Courthouse in Cape
Girardeau, Missouri. We chose these courthouses because they represent
a wide distribution of sizes, dates of completion, and locations and
their gross square footage exceeds their congressionally authorized
size.
To estimate the cost of any extra courthouse space, we added together
any extra square footage due to an increase in the courthouse's gross
square footage over the congressional authorization, inaccurate 10-
year judge estimates, and less sharing than is supported by the
judiciary's data, as described below in the methodology for the other
objectives. We then calculated the extra cost to construct, and rent
or operate and maintain this space based on the actual construction
costs and the fiscal year 2009 rent and operations and maintenance
costs. We developed this methodology after discussing and validating
the approach with outside construction experts. To determine how the
size of courthouses compares with the authorized size, we compared
each courthouse's congressionally authorized gross square footage
[Footnote 6] with the gross square footage of the courthouse as
measured by GSA's space measurement program. To learn how the
judiciary's 10-year judge estimates compared with the actual number of
judges in service, we used courthouse planning documents to determine
how many judges the judiciary estimated it would have in each
courthouse in 10 years and compared that number with the judiciary's
data showing how many judges or authorized vacancies are located there.
To learn more about the level of courtroom sharing that the
judiciary's data support, we used the judiciary's 2008 district
courtroom scheduling and use data to model courtroom sharing
scenarios. Working with a contractor, we designed this sharing model
in conjunction with a specialist in discrete event simulation and the
company that designed the simulation software to ensure that the model
conformed to generally accepted simulation modeling standards and was
reasonable for the federal court system. We determined that the
judiciary's courtroom data were sufficiently reliable for our purposes
by conducting checks on the data, reviewing the judiciary's validation
techniques, and interviewing staff who collected the data at both the
national and the local levels. We also visited courthouses in
Philadelphia, Pennsylvania, and Manhattan, New York, to observe and
discuss sharing experiences with judges and judicial staff. We chose
these courthouses because the judges in them have experience with
sharing courtrooms. We convened a panel of judicial experts and
conducted structured interviews with numerous other district and
magistrate judges about the challenges and opportunities related to
courtroom sharing.
We conducted this performance audit from September 2008 to June 2010
in accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives. A detailed
discussion of our scope and methodology appears in appendix I.
Background:
Federal courthouses vary in size and scope. While typically, one to
five district court judges are located in small-to medium-sized
courthouses, in several large metropolitan areas, 15 or more district
judges are located in a single courthouse. Courthouses may also
include space for appellate, bankruptcy, and magistrate judges, as
well as other tenants. The U.S. district courts are the trial courts
of the federal court system. There are 94 federal judicial districts--
at least 1 for each state--organized into 12 regional circuits, each
of which has a court of appeals whose jurisdiction includes appeals
from the district courts located within the circuit, as well as
appeals from decisions of federal administrative agencies. Each
district includes a U.S. bankruptcy court as a unit of the district
court.[Footnote 7] Table 1 identifies the term, role, and numbers of
the different types of federal judges.
Table 1: The Different Types of Federal Judges:
Judge type: Appeals;
Appointment: Life term;
Role: Hears appeals from district courts located within its circuit
and appeals from decisions of federal administrative agencies.;
Authorized number: 179;
Actual number (authorized number less vacancies): 159 plus 93 senior
judges.
Judge type: District;
Appointment: Life term;
Role: Exercises jurisdiction over nearly all categories of federal
cases, including both civil and criminal matters;
Authorized number: 678;
Actual number (authorized number less vacancies): 603 plus 347 senior
judges.
Judge type: Magistrate;
Appointment: 8-year term;
Role: Exercises jurisdiction over matters assigned by statute as well
as those delegated by the district judges;
Authorized number: 567;
Actual number (authorized number less vacancies): Actual number not
listed plus 43 recalled judges.
Judge type: Bankruptcy;
Appointment: 14-year term;
Role: Exercises jurisdiction over bankruptcy cases;
Authorized number: 352;
Actual number (authorized number less vacancies): 332 plus 22 recalled
judges.
Source: Federal Judiciary; authorized and actual numbers from Judicial
Business of the United States Courts: 2009 Annual Report of the
Director.
Note: Court of appeals and district judges who are eligible to retire
may continue to hear cases on a full-or part-time basis as senior
judges.
[End of table]
The Administrative Office of the U.S. Courts is an agency within the
judicial branch and serves as the central support entity for federal
courts, providing a wide range of administrative, legal, financial,
management, and information technology functions. The Director of the
Administrative Office of the U.S. Courts is supervised by the Judicial
Conference. The Judicial Conference of the United States serves as the
judiciary's principal policy-making body and recommends national
policies and legislation on all aspects of federal judicial
administration. The Judicial Conference of the United States
periodically assesses the need for additional judgeships for the
nation's appellate, district, and bankruptcy courts and recommends
additional judgeships to Congress, specifying the circuit or district
for which the additional judgeship is requested--for example, the
eastern district of California. The additional requested and
authorized judgeships may be permanent or temporary.[Footnote 8]
Since fiscal year 1996, the judiciary has used a 5-year plan to
prioritize new courthouse construction projects, taking into account a
court's projected need for space related to caseload and estimated
growth in the number of judges and staff, security concerns, and any
operational inefficiencies that may exist. Under current practices,
GSA and the judiciary plan new federal courthouses based on the
judiciary's projected 10-year space requirements. To develop these
projections, the judiciary evaluates historical caseload data,
[Footnote 9] among other factors, to estimate how many weighted
filings[Footnote 10] the court will have 10 years later. It then uses
this information to determine how many judges to plan for. Currently,
the judiciary uses a threshold of 500 adjusted annual appeals case
filings per three-judge appellate panel, 430 to 500 weighted annual
filings per authorized district judgeship,[Footnote 11] and 1,500
annual weighted filings per bankruptcy judgeship. Magistrate judge
positions are created based on an analysis of various factors,
including the weighted caseload of the court, the ratio of magistrate
judges to district judges, the workload of the magistrate judges, and
the utilization of magistrate judges in the district. Except for
appeals court judges, who sit on panels of three or more, the
judiciary requested one courtroom per estimated judge for courthouses
built from 2000 through 2009, although it occasionally planned for
senior judges to share courtrooms.
The U.S. Courts Design Guide (Design Guide) specifies the judiciary's
criteria for designing new court facilities and sets the space and
design standards for court-related elements of courthouse
construction. In 1993, the judiciary also developed a space planning
program called AnyCourt to determine the amount of court-related space
the court will request for a new courthouse based on Design Guide
standards and estimated staffing levels. GSA develops requests to
congressional authorizing committees for both new courthouses and
expanded court facilities. These requests are based on input from the
judiciary and are reviewed by the Office of Management and Budget
(OMB) before they are submitted to the congressional committees. GSA
also serves as the central point of contact for the judiciary and
other stakeholders throughout the construction process.
For courthouses that are selected for construction, GSA typically
submits two detailed project descriptions, or prospectuses, for
congressional authorization. The first prospectus, often called the
site and design prospectus, outlines the scope, size, and estimated
costs of the project at the outset and typically requests
authorization and funding to purchase the site and design the
building. The second prospectus, often called the construction
prospectus, outlines the scope, size, and estimated costs of the
project as it enters the construction phase and typically requests
authorization and funding for construction, as well as additional
funding if needed for site and design work. GSA may also provide
additional prospectuses or less formal materials that contain
information on the project's size and estimated total cost to the
authorizing committees.
Typically, the total gross square footage of the courthouses depicted
in the construction prospectus or fact sheet is based on the following:
* The judiciary's projected need for space, based on 10-year judge
estimates.
* Projected space to be built for other tenants, such as the U.S.
Marshals (Marshals) and U.S. Attorneys.
* Gross square footage reserved for building common and other space,
such as public lobbies and hallways, atriums, elevators, and
mechanical rooms. The amount of gross square footage estimated for
this space is based on GSA's specification that a courthouse should be
67 percent efficient, meaning that 67 percent of the total gross
square footage, excluding parking, should consist of tenant space
(space assigned to the courts and other tenants)[Footnote 12] and the
rest should be building common and other space.[Footnote 13]
* Space needed for interior parking.
Congressional committees authorize and Congress appropriates funds for
courthouse projects, often at both the design and construction phases.
Congressional authorizations of courthouse projects typically include
the gross square footage of the planned courthouse as described in the
prospectus and the funding requested. After funds have been
appropriated, GSA selects private-sector firms for the design and
construction work through a competitive procurement process. GSA also
manages the construction contract and oversees the work of the
construction contractor.
After courthouses are occupied, GSA charges each tenant agency,
including the judiciary, rent for the space it occupies and for its
respective share of common areas, including mechanical spaces. GSA
considers some space in buildings, such as vertical penetrations,
including the upper floors of atriums, nonrentable space. In fiscal
year 2009, the judiciary's rent payments totaled over $970 million.
The judiciary has sought to reduce the payments through requests for
rent exemptions from GSA and Congress and internal policy changes,
such as annually capping rent growth and validating rental rates.
Extra Space in Courthouses Cost an Estimated $835 Million in Constant
2010 Dollars to Construct and $51 Million Annually to Rent, Operate,
and Maintain:
The 33 federal courthouses completed since 2000 include 3.56 million
square feet of extra space consisting of space that was constructed
above the congressionally authorized size, due to overestimating the
number of judges the courthouses would have, and without planning for
courtroom sharing among judges.[Footnote 14] Overall, this space
represents about 9 average-sized courthouses. The estimated cost to
construct this extra space, when adjusted to 2010 dollars, is $835
million,[Footnote 15] and the annual cost to rent, operate, and
maintain it is $51 million. More specifically, the extra space and its
causes are as follows:
* 1.7 million square feet caused by construction in excess of
congressional authorizations;
* 887,000 extra square feet caused by the judiciary overestimating the
number of judges the courthouses would have in 10 years; and:
* 946,000 extra square feet caused by district and magistrate judges
not sharing courtrooms.
Thirty-two of the 33 courthouses include extra space attributable to
at least one of these three causes and 19 have extra space
attributable to all three causes. This extra 3.56 million square feet
cost an estimated $835 million in constant 2010 dollars to construct
based on the cost per square foot to construct each courthouse (see
figure 1).
Figure 1: Extra Federal Courthouse Space Constructed Since 2000 and
the Estimated Construction and Annual Costs:
[Refer to PDF for image: pie-chart]
Courthouses built since 2000: 13 million gross square feet (GSF);
1.7 million extra square feet due to exceeding congressionally
authorized gross square footage;
887,000 extra square feet due to over-estimating number of judges;
946,000 extra square feet due to judges not sharing courtrooms.
3.56 million total extra square feet.
Costing an estimated: $835 million to construct, and $51 million
annually to rent, operate and maintain.
Sources: GAO analysis of GSA data.
Note: Numbers in figure 1 do not add up due to rounding.
[End of figure]
In addition to the one-time construction cost increase, the extra
square footage in these 32 courthouses causes higher annual operations
and maintenance costs, which are largely passed on to the judiciary
and other tenants as rent. According to our analysis of the
judiciary's rent payments to GSA for these courthouses at fiscal year
2009 rental rates, the extra courtrooms and other judiciary space
increase the judiciary's annual rent payments by $40 million. In
addition, our analysis indicates that other extra space cost $11
million in fiscal year 2009 to operate and maintain.[Footnote 16]
Typically, operations and maintenance costs represent from 60 to 85
percent of the costs of a facility over its lifetime, while design and
construction costs represent about 5 to 10 percent of these costs.
[Footnote 17] Therefore, the ongoing operations and maintenance costs
for the extra square footage are likely to total considerably more in
the long run than the construction costs for this extra square
footage. Table 2 identifies the amount of extra space and associated
costs for our seven case study courthouses.[Footnote 18]
Table 2: Estimated Construction and Annual Operations and Maintenance
Costs of Building Extra Space in Seven Case Study Courthouses:
Courthouse: Bryant U.S. Courthouse Annex, Washington, D.C.;
Estimated extra square feet constructed: 218,000;
Estimated annual rent, operations, and maintenance costs for extra
space: $4.0 million;
Estimated extra construction costs in constant 2010 dollars: $56.5
million.
Courthouse: Coyle U.S. Courthouse, Fresno, California;
Estimated extra square feet constructed: 131,000;
Estimated annual rent, operations, and maintenance costs for extra
space: $2.2 million;
Estimated extra construction costs in constant 2010 dollars: $34.9
million.
Courthouse: D'Amato U.S. Courthouse, Islip, N.Y.;
Estimated extra square feet constructed: 282,000;
Estimated annual rent, operations, and maintenance costs for extra
space: $3.8 million;
Estimated extra construction costs in constant 2010 dollars: $74.7
million.
Courthouse: DeConcini U.S. Courthouse, Tucson, Arizona;
Estimated extra square feet constructed: 78,000;
Estimated annual rent, operations, and maintenance costs for extra
space: $1.3 million;
Estimated extra construction costs in constant 2010 dollars: $17.2
million.
Courthouse: Eagleton U.S. Courthouse, St. Louis, Missouri;
Estimated extra square feet constructed: 398,000;
Estimated annual rent, operations, and maintenance costs for extra
space: $2.8 million;
Estimated extra construction costs in constant 2010 dollars: $88.8
million.
Courthouse: Ferguson U.S. Courthouse, Miami, Florida;
Estimated extra square feet constructed: 238,000;
Estimated annual rent, operations, and maintenance costs for extra
space: $3.8 million;
Estimated extra construction costs in constant 2010 dollars: $48.5
million.
Courthouse: Limbaugh, Sr., U.S. Courthouse, Cape Girardeau, Missouri;
Estimated extra square feet constructed: 26,000;
Estimated annual rent, operations, and maintenance costs for extra
space: $0.2 million;
Estimated extra construction costs in constant 2010 dollars: $7.4
million.
Source: GAO.
[End of table]
Most Courthouses Exceed Congressionally Authorized Size Due to a Lack
of Oversight by GSA:
Twenty-seven of the 33 federal courthouses constructed since 2000
exceed their congressionally authorized size,[Footnote 19] and 15 of
the 33 courthouses exceed their congressionally authorized size by 10
percent or more. Most of the courthouses that exceed the
congressionally authorized size by 10 percent or more also had total
project costs that exceeded the estimated budget provided to
congressional authorizing committees. All seven courthouses we
examined as case studies had increases in size made up at least in
part of increases in building common and other space.[Footnote 20]
Five of the seven courthouses also had increases in tenant space. In
all seven of the case study courthouses, the increases in building
common and other space were proportionally larger than the increases
in tenant space, leading to a lower efficiency than GSA's target of 67
percent.[Footnote 21] Efficiency is important because, for a given
amount of tenant space, meeting the efficiency target helps control a
courthouse's gross square footage and therefore its costs.[Footnote
22] According to GSA officials, controlling the gross square footage
of a courthouse is the best way to control construction costs.
However, GSA lacked sufficient controls to ensure that courthouses
were planned and built according to authorized gross square footage,
initially because it had not established a consistent policy for how
to measure gross square footage. GSA established a policy for
measuring gross square footage by 2000, but GSA has not demonstrated
it is enforcing this policy because the most recently completed
courthouses continue to exceed the congressionally authorized size.
Most Federal Courthouses Constructed Since 2000 Exceed Authorized
Size, Some by Substantial Amounts:
Twenty-seven of the 33 federal courthouses built since 2000 are larger
than the congressionally authorized gross square footage. As shown in
figure 2, altogether, these 27 courthouses have about 1.7 million more
square feet than authorized.
Figure 2: Extra Federal Courthouse Space Constructed Since 2000 Due to
Exceeding Congressionally Authorized Square Footage:
[Refer to PDF for image: pie-chart]
Courthouses built since 2000: 13 million gross square feet (GSF);
1.7 million extra square feet due to exceeding congressionally
authorized gross square footage.
Sources: GAO analysis of GSA data.
[End of figure]
Fifteen of these 33 courthouses are over 10 percent larger than
authorized, and 3 of the federal courthouses built since 2000--the
O'Connor U.S. Courthouse in Phoenix; the U.S. Courthouse in Hammond,
Indiana; and the Arnold U.S. Courthouse Annex in Little Rock,
Arkansas--are at least 50 percent larger than congressionally
authorized.[Footnote 23] For example, the O'Connor Courthouse in
Phoenix was congressionally authorized at 555,810 gross square feet
but is 831,604 gross square feet, an increase of 50 percent.
On the other hand, 6 of the 33 courthouses are smaller than
congressionally authorized, as shown in figure 3, and 3 of these are
more than 5 percent smaller. For example, the Arraj U.S. Courthouse in
Denver, Colorado, is 6 percent smaller than authorized. We reported in
2005 that, according to GSA's construction manager, construction price
increases caused GSA to implement cost-saving measures that included
cutting one floor from the design.[Footnote 24] According to a GSA
official, it was possible to delete this floor because two judges
retired instead of taking senior status. In spite of this and other
cost-saving measures, according to GSA's project manager, the
competition in the local construction market contributed to actual
costs that were 6 percent higher than the estimated costs submitted
with the construction funding request.
In addition, 8 courthouses are within 5 percent of their authorized
gross square footage. Courthouses from 0 to 5 percent below their
authorized square footage include:
* the U.S. Courthouse in Laredo, Texas;
* the U.S. Courthouse Annex in London, Kentucky; and:
* the Hruska U.S. Courthouse, in Omaha, Nebraska.
Courthouses from 0 to 5 percent above their authorized gross square
footage include:
* the Federal Building and U.S. Courthouse in Wheeling, West Virginia;
* the King U.S. Courthouse in Albany, Georgia;
* the Quillen U.S. Courthouse, in Greeneville, Tennessee;
* the George U.S. Courthouse in Las Vegas, Nevada; and:
* the DeConcini U.S. Courthouse, in Tucson, Arizona.
Figure 3: Percentage Difference in Size of Federal Courthouses as
Congressionally Authorized and as Built:
[Refer to PDF for image: U.S. map with associated data]
0-15 percent smaller than Congressionally authorized square footage:
Denver, Colorado;
Gulfport, Mississippi;
Laredo, Texas;
London, Kentucky;
Omaha, Nebraska;
Tallahassee, Florida.
0-9 percent larger than authorized:
Albany, Georgia;
Brooklyn, New York;
Cleveland, Ohio;
Columbia, South Carolina;
Greenville, Tennessee;
Jacksonville, Florida;
Las Vegas, Nevada;
Montgomery, Alabama;
Seattle, Washington;
Tucson, Arizona;
Youngstown, Ohio;
Wheeling, West Virginia.
10-20 percent larger than authorized:
Cape Girardeau, Missouri;
Central Islip, New York;
Erie, Pennsylvania;
Eugene, Oregon;
Fresno, California;
Miami, Florida;
Richmond, Virginia;
Springfield, Massachusetts.
25 percent or more larger than authorized:
Corpus Christi, Texas;
Hammond, Indiana;
Little Rock, Arkansas;
Orlando, Florida;
Phoenix, Arizona;
St. Louis, Missouri;
Washington, D.C.
Source: GAO presentation of GSA data; Map Resources (map).
[End of figure]
Most of the Courthouses That Exceeded Authorized Size by 10 Percent or
More Also Exceeded Budget Estimates:
Twelve of the 15 courthouses that exceeded the congressionally
authorized gross square footage by 10 percent or more also had total
project costs that exceeded the total project cost estimate provided
to congressional authorizing committees. There is a 10 percent
statutory cap in the authorizing language on the estimated maximum
cost increase of a project. GSA's annual appropriations acts include a
provision stating that GSA may increase spending for a project in an
approved prospectus by more than 10 percent if GSA obtains advance
approval from the Committee on Appropriations.[Footnote 25] There is
no statutory requirement for GSA to notify congressional authorizing
or appropriations committees if the size exceeds the congressionally
authorized square footage. Four of the 15 courthouses had total
project costs that exceeded the estimate provided to congressional
authorizing committees at the construction phase by about 10 percent
or more.[Footnote 26] The construction industry commonly uses 10
percent as a benchmark for the expected variance between the actual
cost and the construction estimate. However, while GSA sought approval
from the appropriations committees for the cost increases incurred for
these 4 courthouses, GSA did not explain to these committees that the
courthouses were larger than authorized and therefore did not
attribute any of the cost increase to this difference.
For example, the total project cost of the Coyle U.S. Courthouse in
Fresno, California, (about $133 million) was about $13 million over
the estimate provided to congressional authorizing committees before
construction (an increase of 11 percent), while the courthouse is
about 16 percent larger than its authorized gross square footage. In
requesting approval from the appropriations committees for additional
funds for the Coyle U.S. Courthouse, GSA stated that, among other
things, additional funds were needed for fireproofing and electrical
and sewer line revisions--but did not mention that the courthouse was
16 percent larger than authorized. Because the construction costs of a
building increase when its gross square footage increases, the cost
overruns for this courthouse would have been smaller or might have
been eliminated if GSA had built the courthouse to meet the authorized
square footage.
Increase in Overall Size Consisted of Increases in Building Common and
Tenant Spaces:
We found that in five of the seven courthouses we examined as case
studies, the size increase over the congressionally authorized gross
square footage consisted of increases in both tenant space and
building common and other space over the space that was
congressionally authorized. Two of the seven had decreases in tenant
space, while all seven had increases in the building common and other
space compared with the congressionally authorized sizes for these
spaces. In the two with decreases in tenant space, the increase in the
building common and other space more than offset the decreases, so
that the gross square footage of all seven exceeded the
congressionally authorized gross square footage. In addition, for all
seven courthouses, the increase in building common and other space was
proportionally larger than the increase (if any) in tenant space, and
the efficiency of all seven courthouses was below GSA's target, as
stated in the judiciary's Design Guide, of 67 percent. According to
GSA officials, a building's efficiency is important because, as it
declines, less of the building's space directly contributes to the
tenant's mission-related activities. In addition, for a given amount
of tenant space, meeting the efficiency target helps control a
courthouse's gross square footage and therefore its costs. The
efficiency of five of our seven case study courthouses fell at least 5
percentage points below GSA's efficiency target of 67 percent.
[Footnote 27] (see table 3).
Table 3: Square Footage Over Authorized and Efficiency of Seven
Courthouses:
Gross square footage over authorized;
Bryant U.S. Courthouse Annex, Washington, D.C.: 82,374;
Coyle U.S. Courthouse, Fresno, Calif.: 67,536;
D'Amato U.S. Courthouse, Central Islip, N.Y.: 156,031;
DeConcini U.S. Courthouse, Tucson, Ariz.: 20,075;
Eagleton U.S. Courthouse, St. Louis, Mo.: 273,244;
Ferguson, Jr., U.S. Courthouse, Miami, Fla.: 97,477;
Limbaugh, Sr., U.S. Courthouse, Cape Girardeau, Mo.: 18,982.
Actual gross square footage, including parking;
Bryant U.S. Courthouse Annex, Washington, D.C.: 409,974;
Coyle U.S. Courthouse, Fresno, Calif.: 495,912;
D'Amato U.S. Courthouse, Central Islip, N.Y.: 1,014,031;
DeConcini U.S. Courthouse, Tucson, Ariz.: 439,817;
Eagleton U.S. Courthouse, St. Louis, Mo.: 1,310,876;
Ferguson, Jr., U.S. Courthouse, Miami, Fla.: 605,800;
Limbaugh, Sr., U.S. Courthouse, Cape Girardeau, Mo.: 173,392.
Authorized gross square footage for construction, including parking;
Bryant U.S. Courthouse Annex, Washington, D.C.: 327,600;
Coyle U.S. Courthouse, Fresno, Calif.: 428,376;
D'Amato U.S. Courthouse, Central Islip, N.Y.: 858,000;
DeConcini U.S. Courthouse, Tucson, Ariz.: 419,742;
Eagleton U.S. Courthouse, St. Louis, Mo.: 1,037,632;
Ferguson, Jr., U.S. Courthouse, Miami, Fla.: 508,323;
Limbaugh, Sr., U.S. Courthouse, Cape Girardeau, Mo.: 154,410.
Actual tenant space square footage[A];
Bryant U.S. Courthouse Annex, Washington, D.C.: 188,955;
(38,722 over planned);
Coyle U.S. Courthouse, Fresno, Calif.: 278,654;
(21,658 over planned);
D'Amato U.S. Courthouse, Central Islip, N.Y.: 416,827;
(33,173 under planned);
DeConcini U.S. Courthouse, Tucson, Ariz.: 255,225;
(2,285 over planned);
Eagleton U.S. Courthouse, St. Louis, Mo.: 671,050;
(73,696 over planned)[B];
Ferguson, Jr., U.S. Courthouse, Miami, Fla.: 366,924;
(46,924 over planned);
Limbaugh, Sr., U.S. Courthouse, Cape Girardeau, Mo.: 96,025;
(998 under planned).
Actual building common and other space square footage[A];
Bryant U.S. Courthouse Annex, Washington, D.C.: 149,628;
(75,633 over planned);
Coyle U.S. Courthouse, Fresno, Calif.: 173,157;
(46,577 over planned);
D'Amato U.S. Courthouse, Central Islip, N.Y.: 468,411;
(185,411 over planned);
DeConcini U.S. Courthouse, Tucson, Ariz.: 148,015;
(23,433 over planned);
Eagleton U.S. Courthouse, St. Louis, Mo.: 518,006;
(224,865 over planned)[B];
Ferguson, Jr., U.S. Courthouse, Miami, Fla.: 188,766;
(44,443 over planned);
Limbaugh, Sr., U.S. Courthouse, Cape Girardeau, Mo.: 68,008;
(20,221 over planned).
Actual Efficiency;
Bryant U.S. Courthouse Annex, Washington, D.C.: 56%;
Coyle U.S. Courthouse, Fresno, California: 62%;
D'Amato U.S. Courthouse, Central Islip, N.Y.: 47%;
DeConcini U.S. Courthouse, Tucson, Arizona: 63%;
Eagleton U.S. Courthouse, St. Louis, Missouri: 56%;
Ferguson, Jr., U.S. Courthouse, Miami, Florida: 66%;
Limbaugh, Sr., U.S. Courthouse, Cape Girardeau, Missouri: 59%.
Source: GAO.
[A] The square footage for tenant space and building common and other
space does not include indoor parking and, thus, does not add up to
the actual gross square footage, which includes indoor parking.
[B] While the square footage to be used for tenant space and building
common and other space is not specifically congressionally authorized,
GSA provides congressional committees with plans it has developed with
the judiciary that show how much of the gross square footage not
including parking (which is congressionally authorized) is to be used
for tenant space, with the rest of the square footage planned for
building common and other space.
[End of table]
GSA Lacked Sufficient Oversight and Controls to Ensure That
Courthouses Were Planned and Built According to Authorized Size:
GSA lacked sufficient control activities to ensure that the 33
courthouses were constructed within the congressionally authorized
gross square footage, initially because it had not established a
consistent policy for how to measure gross square footage. GSA
established a policy for measuring gross square footage by 2000, but
has not ensured that this space measurement policy was understood and
followed. Moreover, GSA has not demonstrated it is enforcing this
policy because all 6 courthouses completed since 2007 exceed their
congressionally authorized size. According to GSA officials, the
agency did not focus on ensuring that the authorized gross square
footage was met in the design and construction of courthouses until
2007. Our Standards for Internal Control in the Federal Government
define control activities as the policies, procedures, techniques, and
mechanisms that enforce management's directives, such as the process
of adhering to requirements and budget execution.[Footnote 28] GSA
lacked such policies, procedures, techniques, or mechanisms to enforce
adherence to the authorized square footage in the design and
construction of these federal courthouses. GSA lacked such mechanisms
even though, according to GSA officials, controlling the gross square
footage of a building is important to controlling its construction
costs because when the gross square footage of a building increases,
construction costs increase as well. This lack of oversight and
controls contributed to the increase over the congressionally
authorized size in some courthouses built since 2000.
Lack of GSA Oversight Contributed to More Building Common Space Than
Planned:
All seven of the courthouses we examined in our case studies had
increases in building common and other space--such as mechanical
spaces and atriums--as compared with the square footage planned for
these spaces within the congressionally authorized gross square
footage. The percentage of increase over the planned space ranged from
19 percent to 102 percent. According to a GSA official, at times,
courthouses were designed to meet various design goals without an
attempt to limit the size of the building common or other space to the
square footage allotted in the plans provided to congressional
authorizing committees--and these spaces may have become larger to
serve a design goal as a result. Regional GSA officials involved in
the planning and construction of several courthouses we visited stated
that they were unaware until we told them that the courthouse was
larger and less efficient than authorized.
For example, the building common and other space in the Eagleton U.S.
Courthouse in St. Louis is 77 percent larger than planned, and the
courthouse has an efficiency of 56 percent. While we could not
determine the cause of all of this additional space, all courtroom
floors of the St. Louis courthouse have mechanical rooms near the
courtrooms, and in total, the mechanical space in the St. Louis
courthouse takes up proportionally more space than it does in the
DeConcini U.S. Courthouse, in Tucson, Arizona. In addition, the
Eagleton U.S. Courthouse in St. Louis has two empty elevator shafts--
rising all 33 floors--that were built but are not used. Together, the
mechanical space and the elevator shafts bring the efficiency of the
Eagleton U.S. Courthouse well below GSA's target of 67 percent and
limit the proportion of the building's total space that contributes to
mission-related activities. However, regional GSA officials stated
that they were unaware until we told them that the courthouse was
larger and less efficient than authorized.
Similarly, according to GSA officials, some of the mechanical space in
the Coyle U.S. Courthouse in Fresno, California, was enclosed to serve
the design of the courthouse. Specifically, the top level of the
courthouse could have been left unenclosed except for the elevator
tower, but to prevent the elevator tower from marring the line of
vision of the roof, the architect enclosed a larger-than-necessary
space, which became mechanical space (see figure 4). The efficiency of
the Coyle U.S. Courthouse in Fresno is 62 percent. In addition, the
DeConcini U.S. Courthouse in Tucson, which has an efficiency of 63
percent, several percentage points below the target of 67 percent, has
public hallways on every floor with large open areas, which increase
the size of the hallways. GSA officials stated that these areas were
created to meet the architect's vision for the building's façade,
which did not consider how the space would work inside the building.
Figure 4: Example of a Mechanical Room on a Courtroom Floor of the
Eagleton U.S. Courthouse in St. Louis, Missouri, and on the Top Level
of the Coyle U.S. Courthouse, in Fresno, California:
[Refer to PDF for image: 2 photographs]
Source: GAO.
[End of figure]
Another element of GSA's lack of oversight in this area was that GSA
relied on the architect to validate that the courthouse's design was
within the authorized gross square footage without ensuring that the
architect followed GSA's policies for how to measure certain commonly
included spaces, such as atriums. Although GSA officials emphasized
that open space for atriums would not cost as much as space completely
built out with floors, these officials also agreed that there are
costs associated with constructing and operating atrium space. In
fact, the 2007 edition of the Design Guide, which reflects an effort
to impose tighter constraints on future space and facilities costs,
emphasizes that courthouses should have no more than one atrium.
According to GSA officials, a primary reason why the Limbaugh, Sr.,
U.S. Courthouse in Cape Girardeau, Missouri, and the Bryant U.S.
Courthouse Annex in Washington, D.C., exceeded their congressionally
authorized square footage is that the architect did not consider the
upper atrium levels as part of the gross square footage of the
courthouse--in conflict with GSA's standards for measuring atrium
space. In GSA's policy for determining a building's gross square
footage, the atrium space is counted on all floors because multifloor
atriums increase a building's volume and thus its costs. However,
according to GSA officials, GSA's practice in the early 2000s--when
the Limbaugh, Sr., and Bryant Courthouses were under design--was to
rely on the architect to measure and validate the plans for the
courthouse, and GSA did not expect its regional or headquarters
officials to monitor or check whether the architect was following
GSA's policies. The D'Amato U.S. Courthouse in Central Islip, New
York, was also larger than congressionally authorized, according to a
regional GSA official, because in designing this courthouse, the
square footage of the air space of three large atriums was not
included as part of the gross square footage (see figure 5). In our
visits to courthouses, we found that some GSA regional staff were
still unclear about GSA's policy for measuring atrium space.
Figure 5: D'Amato U.S. Courthouse Atrium Map and Pictures:
[Refer to PDF for image: map and 3 photographs]
Sources: GSA (floor map); Scott Frances/Esto (wall atrium photograph);
and GAO.
[End of figure]
According to GSA officials, GSA's current policy on how to count the
square footage of atriums and the target of 67 percent efficiency for
federal courthouses should make it difficult, if not impossible, for a
courthouse project to include large atriums spanning many floors--
although relatively modest atriums should still be feasible. For the
Bryant U.S. Courthouse Annex and Limbaugh, Sr., U.S. Courthouse, a
result of GSA not providing oversight to ensure that the architect's
measurement of the courthouse followed GSA's standards for measuring
atrium space was that the courthouses were built larger than
authorized. Moreover, these courthouses include larger atriums than
would likely have been feasible within the authorized gross square
footage if the atrium space had been measured according to GSA's
standards.
The Design Guide states that courthouses must provide a civic presence
and that the architecture must promote respect for the tradition and
purpose of the American judicial process. While some GSA officials we
met with suggested that atriums were part of what provided this civic
presence, we found evidence that courthouses could be built with
relatively small atriums or other elements to create a grand entrance
without causing low building efficiency. The Ferguson, Jr., U.S.
Courthouse in Miami, for example, which has an efficiency of 66
percent, close to GSA's target of 67 percent, has a public atrium that
is not a major contributor to the courthouse being larger than
authorized, and the DeConcini U.S. Courthouse in Tucson has a grand
entrance without a multistory atrium (see figure 6.)
Figure 6: Atrium in Ferguson, Jr., U.S. Courthouse in Miami, Florida,
and Entry Space in DeConcini U.S. Courthouse in Tucson, Arizona:
[Refer to PDF for image: 2 photographs]
Source: GAO.
[End of figure]
A Lack of GSA Oversight Contributed to Some Courthouses Being Built
with Larger Tenant Spaces:
GSA's lack of focus on meeting authorized square footage also
contributed to increases in the size of tenant spaces in five of our
seven case study courthouses. For example, the Ferguson, Jr., U.S.
Courthouse in Miami has about 46,924 more square feet of tenant space
than planned. The district court has about 20,768 more square feet of
space in this courthouse than planned. Among other things, the 14
regular district courtrooms built in this courthouse are each about
2,800 square feet--17 percent larger than the Design Guide standard of
2,400 square feet--while the two special proceedings courtrooms on the
13th floor are each about 3,200 square feet, about 7 percent larger
than the Design Guide standard of 3,000 square feet. GSA officials
stated that courtroom space is among the most expensive of courthouse
spaces to construct and the Design Guide's criteria are in part meant
to help ensure that courthouses are built to be cost-effective as well
as functional.
The Coyle U.S. Courthouse, in Fresno, California, and the Bryant U.S.
Courthouse Annex in Washington, D.C., also have more tenant space than
planned, in part because the design of these courthouses led to the
construction of more space than planned for U.S. marshals. According
to regional GSA officials, both of these courthouses needed additional
marshal space to accommodate the movement of prisoners from the
courthouse entrances into the holding cells via secured passageways.
As a result, the U.S. marshal space in the Coyle U.S. Courthouse
almost doubled, and in the Bryant U.S. Courthouse Annex, it more than
doubled. GSA and court officials said that for the Bryant U.S.
Courthouse Annex, an additional subterranean floor had to be built
beneath the basement parking levels to accommodate the passageway.
According to GSA officials, because of the security elements necessary
for U.S. marshal space, this space is among the most expensive types
of courthouse space to construct. Therefore, design decisions that
create a need for more U.S. marshal space than planned may have a
significant impact on the cost of constructing the courthouse.
In addition, some courthouses encompass more courtroom space than
planned because during the planning stages, neither the judiciary nor
GSA took into account the possibility that the design of the
courthouse could double the size of each courtroom. Under Design Guide
standards in effect when these courthouses were designed, courtroom
ceilings were to be at least 16 feet high,[Footnote 29] while judges'
chambers and other court-related spaces did not have ceiling height
requirements. Courthouses have been designed in various ways to
address the height requirement for courtroom ceilings. For example, in
a collegial floor plan, courtroom floors alternate with floors for
judicial chambers and other spaces that do not need higher ceilings,
so that each floor can be built to a height that is suitable for the
rooms it contains. However, because federal courthouses have typically
been built with judges' chambers on the same floors as the courtrooms,
some courthouses have courtrooms on floors designed to hold rooms with
10-foot ceilings, and the ceiling of each courtroom is cut out so that
each courtroom takes up two floors. For example, Eagleton U.S.
Courthouse in St. Louis and the Bryant U.S. Courthouse Annex in
Washington, D.C., were constructed with courtrooms that span two
floors. According to GSA's policy, when a courthouse is designed so
that a courtroom takes up two floors, the space on the second floor--
referred to as a tenant floor cut--is considered part of the gross
square footage of the building and--if it would otherwise be usable
space--is also considered to be court-occupied space. Therefore, in
this type of courthouse, each courtroom is counted as having double
the square footage of the courtroom floor. Although the extra square
footage in this type of courtroom is multistory space, like the extra
square footage in atria, and therefore, according to GSA, costs less
than square footage that is completely built out, nevertheless there
are costs associated with this space.
Judiciary officials said that space planning is done well before they
know if they will need to incorporate additional space for tenant
floor cuts in courtrooms. Under the judiciary's current automated
space planning tool, AnyCourt, which the judiciary uses to determine
how much court-related space to request for a new courthouse, the
Design Guide's standard of 2,400 square feet is provided for each
district courtroom planned for a new courthouse. However, because the
gross square footage requirements that GSA identifies in the
prospectus to congressional committees are based on AnyCourt's output
for the amount of space needed by the courts, for courthouses designed
with district courtrooms that have tenant floor cuts, the AnyCourt
program identifies only half of the square footage the courtroom will
take up when calculating the courthouse's gross square footage
following GSA's standards. If GSA requests court space based on the
AnyCourt model, it therefore may not be requesting sufficient space
for courtrooms to account for courtrooms that are designed with tenant
floor cuts.
Recently, GSA Has Taken Some Steps to Improve Oversight of Courthouse
Size:
Recently, GSA has taken some steps to improve its oversight of the
courthouse construction process by clarifying its space measurement
policies and increasing efforts to monitor the size of courthouse
projects during the planning stages. In May 2009, GSA published a
revised space assignment policy to clarify and emphasize its policies
on counting the square footage of atria and tenant floor cuts, among
other things. In addition, according to GSA officials, to avoid
further inconsistencies between its policies and the process for
measuring courthouses during the planning stages, GSA established a
collaborative effort in 2008 between its Office of Design and
Construction and its Real Estate Portfolio Management to establish
policy and practices for avoiding inconsistencies. This effort
includes, among other things, using data management software to ensure
that space guidelines are followed in the early planning phases of
courthouse projects. It is not yet clear whether these steps will
establish sufficient oversight to ensure that courthouses are planned
and constructed within the congressionally authorized square footage.
Estimated Space Needs Exceeded Actual Space Needs, Resulting in
Courthouses That Were Larger than Necessary:
Because the Judiciary Overestimated the Number of Judges, Courthouses
Have Much Extra Space After 10 Years:
Our analysis of construction plans for the 33 courthouses built since
2000 shows that 28 have reached or passed their 10-year planning
period[Footnote 30] and 23 of those 28 courthouses have fewer judges
than estimated.[Footnote 31] Overall, the judiciary has 119, or
approximately 26 percent, fewer judges than the 461 it estimated it
would have. As a result, these 23 courthouses have extra courtrooms,
chamber suites, and related support, building common, and other spaces
covering approximately 887,000 square feet (see figure 7). A variety
of factors led the judiciary to overestimate the number of judges it
would have after 10 years, including inaccurate caseload projections,
challenges associated with estimating when judges will take senior
status, and not factoring in the time associated with obtaining new
judgeship authorizations.
Figure 7: Extra Federal Courthouse Space Constructed Since 2000 Due to
Overestimating the Number of Judges:
[Refer to PDF for image: pie--chart]
Courthouses built since 2000: 13 million gross square feet (GSF);
887,000 extra square feet due to over-estimating number of judges.
Sources: GAO analysis of GSA data.
[End of figure]
Six of the seven case study courthouses we reviewed have reached the
end of their 10-year planning period and were designed for more judges
than they actually have.[Footnote 32] Table 4 compares the estimated
and actual numbers of judges for each of these courthouses and the
space consequences of overestimating the number of judges.
Table 4: Comparison of 10-Year Judge Estimates and the Actual Number
of Judges After 10 Years or More for Case Study Courthouse Locations
and Related Space Consequences:
Year estimate was made;
Bryant Courthouse, Washington, D.C.: 2000;
Coyle Courthouse, Fresno, California: 2000;
D'Amato Courthouse, Central Islip, N.Y.: 1995;
DeConcini Courthouse, Tucson, Arizona: 1995;
Eagleton Courthouse, St. Louis, Missouri: 1994;
Ferguson Courthouse, Miami, Florida: 2000.
10-year judge estimate;
Bryant Courthouse, Washington, D.C.: 49;
Coyle Courthouse, Fresno, California: 18;
D'Amato Courthouse, Central Islip, N.Y.: 25;
DeConcini Courthouse, Tucson, Arizona: 15;
Eagleton Courthouse, St. Louis, Missouri: 29;
Ferguson Courthouse, Miami, Florida: 33.
Current judges, including vacancies;
Bryant Courthouse, Washington, D.C.: 39;
Coyle Courthouse, Fresno, California: 10;
D'Amato Courthouse, Central Islip, N.Y.: 15;
DeConcini Courthouse, Tucson, Arizona: 12;
Eagleton Courthouse, St. Louis, Missouri: 20;
Ferguson Courthouse, Miami, Florida: 27.
Judges short of estimate;
Bryant Courthouse, Washington, D.C.: 10;
Coyle Courthouse, Fresno, California: 8;
D'Amato Courthouse, Central Islip, N.Y.: 10;
DeConcini Courthouse, Tucson, Arizona: 3;
Eagleton Courthouse, St. Louis, Missouri: 9;
Ferguson Courthouse, Miami, Florida: 6.
Estimated extra square footage built because of incorrect judge
estimates;
Bryant Courthouse, Washington, D.C.: 62,000;
Coyle Courthouse, Fresno, California: 52,000;
D'Amato Courthouse, Central Islip, N.Y.: 89,000;
DeConcini Courthouse, Tucson, Arizona: 25,000;
Eagleton Courthouse, St. Louis, Missouri: 76,000;
Ferguson Courthouse, Miami, Florida: 57,000.
Source: GAO.
Note: Our analysis includes judges who are located in the new
courthouse and authorized vacancies not covered by recalled judges.
[End of table]
Extra space includes courtroom suites,[Footnote 33] ranging in size
from 3,500 to 5,000 square feet, and chamber suites, ranging in size
from 1,500 to 2,400 square feet, as specified in the Design Guide (see
figure 8). In addition to the court space, these spaces require a
proportional allocation of additional public and mechanical spaces,
and judges are generally provided with secure, inside parking space in
new courthouses. These additional spaces are also not needed if
estimates exceed authorized judges.
Figure 8: Unassigned Chamber Suites in the Coyle Courthouse in Fresno,
California:
[Refer to PDF for image: 2 photographs]
Source: GAO.
[End of figure]
Judiciary Planning Overstated the Need for Space through Inaccurate
Caseload Projections and Allocations of Space for Visiting Judges:
Inaccurate caseload growth projections and inconsistent application of
planning guidelines led the judiciary to estimate a need for more
judges, and subsequently overestimate the need for space, for some
courthouse projects. In a 1993 report, we questioned the reliability
of the caseload projection process the judiciary used.[Footnote 34] In
that report, we showed that the judiciary's estimates of future space
needs exceeded estimates made using a standard statistical method by
about 3.6 million square feet. For this report, we were not able to
determine the degree to which inaccurate caseload projections
contributed to inaccurate judge estimates because the judiciary did
not retain the historic caseload projections used in planning the
courthouses. Judiciary officials said that the judiciary does not
typically review the accuracy of the caseload and judge estimates for
courthouse construction projects. However, judiciary officials at
three of our site visit courthouses indicated that the estimates used
in planning for these courthouses inadvertently overstated the growth
in district case filings and, hence, the need for additional judges.
For example, for the Eagleton Courthouse in St. Louis, judiciary
officials said the district estimated that it would need four
additional district judges by 2004 to handle a high level of estimated
growth in case filings; however, that case filing growth never
materialized and the Eagleton Courthouse has the same number of
authorized judges that it had in 1994 when the estimates were made.
Specifically, the Eastern District of Missouri, in which the Eagleton
Courthouse is located, had 3,182 case filings in 1994 and 3,241 case
filings in 2008 (see figure 9).
Figure 9: Total District Court Case Filings for the Eastern District
of Missouri:
[Refer to PDF for image: line graph]
Year: 1994;
Total filings: 3,182.
Year: 1995;
Total filings: 3,081.
Year: 1996;
Total filings: 3,410.
Year: 1997;
Total filings: 3,346.
Year: 1998;
Total filings: 3,046.
Year: 1999;
Total filings: 2,871.
Year: 2000;
Total filings: 2,993.
Year: 2001;
Total filings: 2,949.
Year: 2002;
Total filings: 3,079.
Year: 2003;
Total filings: 3,010.
Year: 2004;
Total filings: 3,070.
Year: 2005;
Total filings: 3,564v
Year: 2006;
Total filings: 3,474.
Year: 2007;
Total filings: 3,415.
Year: 2008;
Total filings: 3,241.
Year: 2009;
Total filings: 3,501.
Source: Administrative Office of the U.S. Courts.
[End of figure]
Planning for nonresident judges, or visiting judges, is another reason
of overestimating the 10-year need for judges and space. Our analysis
of courthouse space planning documents showed that 5 courthouses
included courtrooms for visiting district judges, which is a way of
building extra space into courthouses above the estimated number of
judges expected to be permanently located in the courthouse. The
judiciary indicated that its guidance has since been revised to
exclude estimates of space needs for visiting judges. These five
courthouses contain a total of six courtrooms allocated for visiting
district judges, totaling approximately 30,000 extra square feet,
which are not assigned to a specific judge. For example, when planning
the Perry, Jr., Courthouse in Columbia, South Carolina, the judiciary
estimated a need for two visiting district courtrooms--one in a new
courthouse and one in an existing space. As a result, the number of
district courtrooms in the courthouse exceeds the estimated number of
judges by two, and these two courtrooms account for approximately
15,000 extra square feet, including court, support, and public spaces.
The Judiciary's Method of Estimating Judges Does Not Account for
Uncertainty in When Judges Will Take Senior Status and in How Many New
Judgeships Will Be Authorized:
Limitations of the judiciary's 10-year judge estimates are also due,
in part, to the challenges associated with predicting how many judges
will be located in a courthouse in 10 years. Such challenges include
predicting when judges will take senior status, how many requested
judgeships will be authorized, and where newly authorized judges will
be seated. By not accounting for the outcomes of these challenges--
which is that the actual number of judges was smaller than the
estimated number--the judiciary overestimated how many judges it would
have in courthouses after 10 years or more.
Predicting when district judges will assume senior status is
challenging because judges are not required to take senior status when
they become eligible. For example, the judiciary estimated that the
Washington, D.C., district court would have 14 senior judges by the
end of the 10-year planning period; however, because some judges left
the bench, died, or remained active after they became eligible for
senior status, the court currently has 9 fewer senior judges than
estimated.
Determining how many requested judgeships will be authorized and how
many judicial vacancies will be filled is also challenging for several
reasons. First, Congress has authorized fewer positions than the
judiciary has requested over the years. It has been 20 years since
Congress passed comprehensive judgeship legislation. Yet, the
judiciary did not incorporate historic trends into its planning for
new courthouses. Instead, it requested new courthouses that could
accommodate the number of judges it would have if all of its estimated
judgeships were approved, and some of the excess space in new
courthouses reflects the judiciary's receipt of fewer judgeships than
it requested. Problems with the reliability of the weighted caseload
data--the workload indicator that the judiciary uses to decide when a
new judge is needed--can undermine the credibility of the judiciary's
requests for new judgeships. For example, in a 2009 hearing, a member
of Congress cited a lack of reliability in weighted caseloads to
question if all of the requested judgeships are necessary. In a 2008
report, we found that a weighted caseload is not reliable because its
accuracy for district and appeals courts cannot be tested. [Footnote
35]
A second challenge the judiciary faces in estimating how many judges
it will need for specific courthouses is that judgeships are requested
and thus authorized at the district or circuit levels as a whole,
rather than for a specific courthouse. Hence, it is hard to predict
which courthouses the additional judgeships requested in the Federal
Judgeship Act of 2009,[Footnote 36] if enacted, would be assigned to
if the positions were authorized. However, the judiciary's estimation
process does not take this uncertainty into account. For example, in
2009, the judiciary requested 18 judgeships for districts that contain
courthouses built since 2000, but not all of the judges for these
requested judgeships, if approved by Congress, would necessarily be
placed in those courthouses. For example, in the Eastern District of
California where the Coyle Courthouse in Fresno is located, the
average weighted caseload is 1,095 weighted filings per district
judge, well above the 430 weighted filings outlined in the judiciary's
guidelines and the highest in the nation according to the judiciary.
The judiciary estimated that the Coyle Courthouse would have 6 more
district judges than it currently has, and it has requested 4
additional district judgeships for the Eastern District of California.
However, these judgeships, if approved, could be located at other
locations in the district. In addition, the Ferguson Courthouse in
Miami has space reserved for 4 extra district courtrooms (see figure
10), yet Southern District of Florida officials said they anticipate
that the next new authorized judgeship in the district will be
allocated to the courthouse in Fort Lauderdale.
Figure 10: Unassigned District Courtroom and Chamber in the Ferguson
Courthouse, Miami, Florida:
[Refer to PDF for image: 2 photographs]
Source: GAO.
[End of figure]
Low Levels of Use Show That Judges Could Share Courtrooms, Reducing
the Need for Future Courtrooms by More Than One-Third:
Most courthouses constructed since 2000 have enough courtrooms for all
of the district and magistrate judges to have their own courtrooms.
According to the judiciary's data,[Footnote 37] courtrooms are used
for case-related proceedings only a quarter of the available time or
less, on average. Furthermore, no event was scheduled in courtrooms
for half the time or more, on average. Using the judiciary's data, we
designed a model for courtroom sharing that shows sufficient amounts
of unscheduled time for judges to share courtrooms at high levels.
Specifically, it shows that 3 district judges could share 2
courtrooms, 3 senior judges could share 1 courtroom, and 2 magistrate
judges could share 1 courtroom with time to spare. This level of
sharing would reduce the number of courtrooms the judiciary requires
by a third for district judges and by more for senior district and
magistrate judges. For example, courtroom sharing could have reduced
the number of courtrooms needed in 27 of the 33 district courthouses
built since 2000 by a total of 126 courtrooms--about 40 percent of the
total number of district and magistrate courtrooms constructed since
2000.[Footnote 38] In total, not building these courtrooms and their
associated support, building common, and other spaces would have
reduced construction by approximately 946,000 square feet [Footnote
39] (see figure 11). During our interviews and convening of an expert
panel on courtroom sharing, some judges raised potential challenges to
courtroom sharing, such as uncertainty about courtrooms' availability,
but other judges with sharing experience have overcome those
challenges when necessary and no trials have been postponed. The
judiciary has adopted sharing policies for senior and magistrate
judges in the future, but our analysis shows that additional sharing
opportunities are available.
Figure 11: Extra Federal Courthouse Space Constructed Since 2000 Due
to Judges Not Sharing Courtrooms:
[Refer to PDF for image: pie-chart]
Courthouses built since 2000: 13 million gross square feet (GSF);
946,000 extra square feet due to judges not sharing courtrooms.
Sources: GAO analysis of GSA data.
[End of figure]
Courtrooms Assigned to One Judge Are Used a Quarter of the Time or
Less for Case Proceedings:
In 1997, we reported that the district courtrooms in seven locations
were unused for 115 of 250 federal days in 1995 and recommended that
the judiciary gather data to determine how much courtroom sharing was
possible.[Footnote 40] The judiciary implemented this recommendation
by hiring a consultant to examine space use issues, including
courtroom utilization. A more recent 2008 study commissioned by the
judiciary contains the data necessary to determine the level of
sharing possible for district and magistrate judges.[Footnote 41] The
study shows that, as of July 2007, on average, a courtroom is
scheduled to be used 4.1 hours a day for active district judge
courtrooms, 2 hours a day for senior judge courtrooms, and 2.6 hours a
day for magistrate judge courtrooms. Beyond that, only half of the
scheduled courtroom time is actually spent on case-related
proceedings. Specifically, the 4.1 hours scheduled for the use of
courtrooms assigned to district judges includes about 1 hour, on
average, for scheduled events that are subsequently canceled or
postponed and about 1 hour for events that are not related to case
proceedings. Events not related to case proceedings include set-up and
take-down time for attorneys, maintenance, education, ceremonies, and
other uses. For example, judges said that they would allow their
courtrooms to be used for public tours and by law schools, and local
bar associations when available. Figure 12 illustrates the average
daily uses of courtrooms assigned to single district, senior district,
or magistrate judges.
Figure 12: Representation of an Average 8 Hour Day for a Courtroom by
Type of Judge as of July 2007:
[Refer to PDF for image: stacked vertical bar graph]
Type of courtroom: District Judge Courtroom;
Case proceeding: 1.9 hours;
Other use: 1 hours;
Event canceled or postponed: 1.2 hours;
No event scheduled: 3.9 hours.
Type of courtroom: Senior District Judge Courtroom;
Case proceeding: 1 hours;
Other use: 0.5 hours;
Event canceled or postponed: 0.5 hours;
No event scheduled: 6 hours.
Type of courtroom: Magistrate Judge Courtroom;
Case proceeding: 1.2 hours;
Other use: 0.7 hours;
Event canceled or postponed: 0.7 hours;
No event scheduled: 5.4 hours.
Source: GAO analysis of Judiciary data.
[End of figure]
These low levels of courtroom usage are consistent across courthouses
regardless of case filings. Specifically, the judiciary's data showed
no correlation between the number of weighted and unweighted cases
filed in a courthouse and the amount of time courtrooms are in use.
Although the judiciary uses weighted case filings as the measurement
criteria for requesting additional judgeships, this representation of
higher levels of activity does not translate into higher courtroom
usage rates, according to the judiciary's courtroom use data.
According to the data, courthouses located on the nation's border and
those with higher pending caseloads do make greater-than-average use
of their courtrooms, but other courthouses in the same districts
offset that higher use for district and senior district judges'
courtrooms.
There is some consensus in federal court-related literature, and among
federal judges we interviewed, that there has been a trend toward
decreasing time spent on trials--the main use of a courtroom. For
example, some trials have been replaced with other types of case
resolution, including Summary judgment, settlements, and alternative
dispute resolution (ADR) that require less use of a courtroom. Court-
related literature indicates that the use of courtrooms for trials has
declined since the mid-1960s and the role of judges has changed with
the changes in case resolution.[Footnote 42] A judge said that the
decrease in the number of trials does not mean that cases are not
being resolved--it means they are being resolved through other means,
including settlement, dismissal, and pleas. Other judges said that
there has been an increased emphasis on ADR, which is done outside of
a courtroom by a third-party mediator, as well as an increase in
Summary judgments, a written procedure that allows speedy disposition
of a controversy without the need for a trial or a courtroom.
Increased Courtroom Sharing Is Feasible and Could Reduce the Need for
Courtrooms By More Than One-Third:
Based on the low levels of use indicated by the judiciary's data, we
found that sharing is feasible in 27 of the 33 district courthouses
built since 2000 and could have resulted in the construction of 126
fewer courtrooms--40 percent of all district and magistrate courtrooms
in those courthouses.[Footnote 43] The Design Guide in place when
these courthouses were built encouraged judicial circuits to adopt
courtroom-sharing policies for senior judges. However, most of the
courthouses constructed since 2000 provided enough courtrooms for all
district and magistrate judges to have their own courtrooms.
The 2008 study by the judiciary states that the data collected during
the study could be used with computer modeling to determine how levels
of use might translate into potential sharing opportunities for
judges, but that such a determination was outside the scope of the
study. As a result, we applied generally accepted modeling techniques
to the judiciary's data to develop a computer model for sharing
courtrooms. The model ensures sufficient courtroom time for:
* all case-related activities;
* all time allotted to noncase-related activities, such as preparation
time, ceremonies, and educational purposes; and:
* all events canceled or postponed within a week of the event.
Under our model, the remainder of time remains unscheduled--
approximately 18 percent of the time for district courtrooms and 22
percent of the time for magistrate courtrooms on average. In this way,
our model includes substantial time when the courtroom is not in use
for case proceedings. Some noncase-related events could be held
outside of normal business hours, and 60 percent of events are
canceled or postponed within 1 week of the event's original date,
according to the judiciary's data. Not allocating time in the model
for these purposes would create even more opportunity for sharing;
however, we chose to include these data, keep the model conservative,
and allow for unpredictability.
The judiciary's report also included a section of case studies based
on in-depth interviews with judges at courthouses where judges share
courtrooms. These interviews suggested that courtrooms can be shared
in two ways(1) through dedicated sharing, in which judges are assigned
to share specific courtrooms, and (2) through centralized sharing, in
which all courtrooms are available for assignment to any judge based
on need. Our model shows the following possibilities for dedicated
courtroom sharing, with additional unscheduled time to spare (see
table 5).
Table 5: Dedicated Courtroom-Sharing Possibilities Based on GAO Model:
Judges: 3 district judges;
Dedicated courtrooms needed: 2 district courtrooms.
Judges: 3 senior district judges;
Dedicated courtrooms needed: 1 district courtroom.
Judges: 1 district and 1 senior judge;
Dedicated courtrooms needed: 1 district courtroom.
Judges: 2 magistrate judges;
Dedicated courtrooms needed: 1 magistrate courtroom.
Source: GAO.
[End of table]
Our model shows that centralized sharing improves efficiency by
increasing the number of courtrooms each judge can access, whereas in
dedicated sharing judges only use the shared courtroom assigned to
them. We used the model to estimate how the courtrooms in one
courthouse could be shared both ways. Specifically, to illustrate the
increased efficiency of centralized sharing over dedicated sharing, we
applied the two types of sharing to the current district and
magistrate judges in the Ferguson Courthouse in Miami, Florida.
Currently, the Ferguson Courthouse has 26 courtrooms for 26 judges,
including 12 district judges, 3 senior district judges and 11
magistrate judges (two of whom are recalled). Under a dedicated
sharing model, the Ferguson Courthouse could accommodate these judges
in 15 courtrooms. Under a centralized sharing model, in which all
district judges have access to all district judge courtrooms and all
magistrate judges have access to all magistrate courtrooms, the number
of needed courtrooms is reduced to 14. Table 6 shows the levels of
sharing possible and the amount of space that could be eliminated for
all of our seven case study courthouses through centralized sharing.
Table 6: District, Senior, and Magistrate Judge Courtroom Sharing That
Could Occur in Selected Courthouses Based on the Judiciary's Data:
Courthouses: Bryant Courthouse Annex, Washington, D.C.;
Current number of courtrooms by type with one courtroom per judge:
District: 20; Magistrate: 3;
Number of courtrooms needed under centralized sharing: District: 11;
Magistrate: 2;
Number of extra courtrooms under centralized sharing: 10;
Square footage of extra courtroom and associated support and public
spaces: 74,000.
Courthouses: Coyle Courthouse, Fresno, Calif.;
Current number of courtrooms by type with one courtroom per judge:
District: 3; Magistrate: 4[A];
Number of courtrooms needed under centralized sharing: District: 2;
Magistrate: 2;
Number of extra courtrooms under centralized sharing: 3;
Square footage of extra courtroom and associated support and public
spaces: 20,000.
Courthouses: D'Amato Courthouse, Islip, N.Y.;
Current number of courtrooms by type with one courtroom per judge:
Active District: 7; Magistrate: 4;
Number of courtrooms needed under centralized sharing: District: 4;
Magistrate: 2;
Number of extra courtrooms under centralized sharing: 5;
Square footage of extra courtroom and associated support and public
spaces: 35,000.
Courthouses: DeConcini Courthouse, Tucson, Ariz.;
Current number of courtrooms by type with one courtroom per judge:
Active District: 5; Magistrate: 7;
Number of courtrooms needed under centralized sharing: District: 4;
Magistrate: 3;
Number of extra courtrooms under centralized sharing: 5;
Square footage of extra courtroom and associated support and public
spaces: 33,000.
Courthouses: Eagleton Courthouse, St. Louis, Mo.;
Current number of courtrooms by type with one courtroom per judge:
Active District: 9; Magistrate: 6;
Number of courtrooms needed under centralized sharing: District: 5;
Magistrate: 3;
Number of extra courtrooms under centralized sharing: 7;
Square footage of extra courtroom and associated support and public
spaces: 49,000.
Courthouses: Ferguson Courthouse, Miami, Fla.;
Current number of courtrooms by type with one courtroom per judge:
Active District: 15; Magistrate: 11;
Number of courtrooms needed under centralized sharing: District: 9;
Magistrate: 5;
Number of extra courtrooms under centralized sharing: 12;
Square footage of extra courtroom and associated support and public
spaces: 83,000.
Courthouses: Limbaugh Courthouse, Cape Girardeau, Mo.;
Current number of courtrooms by type with one courtroom per judge:
Active District: 2; Magistrate: 1;
Number of courtrooms needed under centralized sharing: District: 1;
Magistrate: 1;
Number of extra courtrooms under centralized sharing: 1;
Square footage of extra courtroom and associated support and public
spaces: 7,500.
Source: GAO analysis of the judiciary's data.
[A] There are 5 magistrate judges in the Coyle Courthouse, including 1
vacancy, but only 4 courtrooms. The model was run for 5 magistrate
judges and the result was that there would need to be 2 magistrate
courtrooms--eliminating the need for 2 magistrate courtrooms.
[End of table]
Some Judges Said They Could Overcome the Challenges to Courtroom
Sharing:
We solicited expert views on the challenges related to courtroom
sharing through interviews with judges and court administrators on
site visits to courts with sharing experience and assistance from the
National Academy of Sciences in assembling a panel of judicial
experts.[Footnote 44] While some judges remained skeptical that
courtroom sharing among district judges could work on a permanent
basis, judges with experience in sharing courtrooms said that they
overcame the challenges when necessary and trials were never postponed
because of sharing.
The primary concern judges cited was the possibility that a courtroom
might not be available. They stated that the certainty of having a
courtroom available encourages involved parties to resolve cases more
quickly. They further noted that courtroom sharing could be a
disservice to the public if it meant that an event had to be
rescheduled for lack of a courtroom; in that case, defendants,
attorneys, families, and witnesses would also have to reschedule,
costing the public time and money. To address the concern that a
courtroom would not be available when needed, we programmed our model
to provide more courtroom time than necessary to conduct court
business. As stated earlier, the model includes time for all case-
related events, all noncase-related events, all canceled events, all
postponed events, and approximately 18 percent to 22 percent of
courtroom time remained unscheduled. Most judges with experience
sharing courtrooms agreed that court staff must work harder than in
nonsharing arrangements to coordinate with judges and all involved
parties to ensure that everyone is in the correct courtroom at the
correct time, but that such coordination is possible as long as people
remain flexible and the lines of communication remain open.
Additionally, some judges said that sharing increased the need for
coordination, not space. However, one district court official
cautioned that other indicators of courthouse efficiency were
negatively affected by sharing; including the time it takes from the
day a case is filed to when it is resolved.
Judges who share courtrooms in one district also said that
coordination is easier when there is a great deal of collegiality
among judges. A few panel members noted that the design of many
courthouses today, with judges' chambers located adjacent to
courtrooms, is not conducive to collegiality or courtroom sharing.
While this design is convenient for judges who are assigned
exclusively to the adjacent courtroom, it leads to isolation from
other judges. Alternative courtroom designs, such as that of the
Roosevelt Courthouse in Brooklyn, New York, may be more conducive to
collegiality and sharing. In this courthouse, the chamber and court
floors alternate so that judges' chambers are not located on the same
floor as the courtrooms. The chamber floors are completely secure
because the public does not need direct access to them, and chambers
are grouped so that judges have greater opportunities to interact.
This design breaks the apparent association of chambers with specific
courtrooms without significantly increasing the distance from chambers
to courtrooms. Another judge suggested perimeter chambers around
several courtrooms of varying sizes to make courthouses more conducive
to sharing.
Another concern about sharing courtrooms was how the court would
manage when judges have long trials. Judges noted that long trials
present logistical challenges requiring substantial coordination and
continuity, which could be difficult when sharing courtrooms. However,
when the number of total trials is averaged across the total number of
judges, each judge has approximately 15 trials per year, with the
median trial lasting 1 or 2 days.[Footnote 45] Hence, it is highly
unlikely that all judges in a courthouse will simultaneously have long
trials. Also, a centralized sharing arrangement would allow for those
who need a courtroom for multiple days to reserve one.
Panelists' concern about sharing courtrooms between district and
magistrate judges stems in part from differences in responsibilities,
which can affect courtroom design and could make formal courtroom
sharing inappropriate. For example, district judges are
constitutionally empowered to handle all types of federal cases,
whereas magistrate judges are hired by the court and are not
constitutionally empowered to try felony criminal cases. Although
magistrate judges can try all civil cases with the consent of the
parties, civil cases do not require as much courtroom space because
the jury box for civil cases is smaller. Accordingly, the Design Guide
allots smaller courtrooms with smaller jury boxes to magistrate
judges. In addition, judges we interviewed said that it would be
highly unusual for district judges to routinely share courtrooms with
magistrate judges. To address this concern, our model separated
district and magistrate judges for sharing purposes, reducing the
potential for sharing that could occur through cross scheduling in
courthouses with both district and magistrate judges.
Judges expressed concern about the compatibility of the current
scheduling system with courtroom sharing. Most judges keep their own
schedules through their personal staff, making centralized sharing
difficult. For example, one concern raised by the panel was that
sharing was very difficult because judges were unable to access one
another's calendars or see if a courtroom had been reserved for
another event. According to panelists, a new calendar system approved
by the judiciary is also not conducive to sharing because it shows
judges' Products, but not courtroom Products. One courthouse we
visited that has a courtroom sharing arrangement overcame this
challenge by assigning courtrooms centrally through the Clerk of
Court's office.
Finally, judges said that increasing the use of technology could help
overcome some of the challenges to courtroom sharing. Panel judges
agreed that increased technology saves money; it expedites general
processing because documents can be submitted to the court
electronically. Technology makes certain conferences easier through
the use of teleconferences and videoconferencing. One judge said that
videoconferencing with a defendant who was being held in a prison
hundreds of miles away potentially saved thousands of dollars. Another
judge said that if less money were spent on space, more could be spent
on technological upgrades to increase flexibility and increase the
ability to share space among judges.
The Judiciary Has Taken Some Steps to Increase Sharing in Future
Courthouse Projects:
In 2008 and 2009, the Judicial Conference adopted sharing policies for
future courthouses under which senior district and magistrate judges
will share courtrooms at a rate of two judges per courtroom plus one
additional duty courtroom for courthouses with more than two
magistrate judges. Additionally, the conference recognized the greater
efficiencies available in courthouses with many courtrooms and
recommended that in courthouses with more than 10 district judges,
district judges also share. Our model's application of the judiciary's
data shows that more sharing opportunities are available.
Specifically, sharing between district judges could be increased by
one-third in all but the largest courthouses by having three district
judges share two courtrooms in all-sized courthouses. Sharing between
senior district judges could also be increased by having three senior
judges--instead of two--share one courtroom. If implemented, these
opportunities could further reduce the need for courtrooms, thereby
decreasing the size of future courthouses.
To date, the Judicial Conference has made no recommendations for
bankruptcy judges to share courtrooms. However, the judiciary is
conducting a study for bankruptcy courtrooms similar to the 2008
district court study and expects to complete it in 2010.
Conclusions:
It is important for the federal judiciary to have adequate,
appropriate, modern facilities to carry out judicial functions.
However, the current process for planning and constructing new
courthouses has resulted in the 33 federal courthouses built since
2000 being overbuilt by more than 3.6 million square feet--the size of
9 average-sized courthouses. This extra space not only cost $843
million in constant 2010 dollars to construct, but has additional
annual costs of $52 million in operations and maintenance and rent
that will continue to strain GSA's and the judiciary's resources for
years to come. This extra space exists because the courthouses, as
built, are larger than those congressionally authorized; contain space
for more judges than are in the courthouses at least 10 years after
the space was planned, and, for the most part, were not planned with a
view toward judges sharing courtrooms.
GSA has not exercised sufficient oversight to ensure that regional GSA
staff and architects focused on designing courthouses within the
congressionally authorized gross square footage, as measured according
to GSA's space measurement policies--and this lack of oversight
contributed to the construction of courthouses that are larger than
congressionally authorized. While GSA's appropriations acts include a
provision stating GSA is to obtain advance approval from the
Committees on Appropriations if the expenditures for a project will
exceed the amount included in an approved prospectus by more than 10
percent, there is no statutory requirement for GSA to notify the
congressional authorizing or appropriations committees if the size of
a courthouse project exceeds the congressionally authorized gross
square footage. Without such a requirement, GSA did not notify
congressional committees that four courthouses that had cost increases
of about 10 percent or more were also more than 10 percent larger than
authorized. In addition, GSA did not focus on avoiding such increases
during the design and construction of these courthouses--to the extent
that regional GSA officials involved in the planning and construction
of several courthouses we visited were unaware until we told them that
the courthouse projects they worked on were larger than
congressionally authorized. GSA lacked such mechanisms even though,
according to GSA officials, controlling the efficiency and gross
square footage of a building is important to control construction
costs. One additional contributor to the construction of more tenant
space than planned is the judiciary's automated space planning tool,
AnyCourt, which incorporates a standard square footage requirement for
each district courtroom. However, according to GSA's space measurement
policy, the amount of a courtroom's square footage doubles if the
courtroom is designed with a tenant floor cut. Without a mechanism to
adjust AnyCourt's calculation of a planned courthouse's square footage
to reflect GSA's space measurement policy when the design includes
tenant floor cuts, GSA may not request sufficient gross square footage
to build a courthouse with tenant floor cuts that falls within the
authorized gross square footage. Further, it is not yet clear whether
GSA's recent steps to better monitor the size of courthouse projects
provide sufficient oversight to ensure that courthouses are
constructed within the congressionally authorized square footage. The
ongoing confusion that we identified among some GSA regional staff
about GSA's policies for measuring atriums and the gross square
footage of courthouses--and the fact that the six most recently
completed courthouses exceeded the congressionally authorized size--
raise questions about the sufficiency of GSA's oversight improvement
steps to date.
The judiciary's inaccurate estimates of future numbers of judges
further contributed to the size and cost of these courthouses.
Estimating the number of judges that will be stationed a specific
location in the future is challenging for a number of reasons, but the
judiciary usually overestimated the number of judges. Overly
optimistic projections of growing caseloads, combined with unsupported
assumptions about the amount of time it would take to obtain
authorizations for new judgeships, led the judiciary to estimate it
would have 120 more judges than it actually has at courthouses built
since 2000. The full extent to which the overly optimistic caseload
projections contributed to the inaccurate judge estimates is unknown,
because the judiciary has not analyzed and does not retain its
caseload projection data. Without analyzing the accuracy of its
caseload estimates, the judiciary cannot determine what changes to its
planning for 10-year needs would yield more accurate estimates.
Furthermore, the interplay between the judiciary's policy of
authorizing judges districtwide and its need to estimate how many
judges will be needed at specific locations creates additional
challenges to accurately estimating future numbers of judges.
The third major contributor to the extra space in most of the 33
courthouses built since 2000, the judiciary's one-judge, one-courtroom
policy--which the judiciary's data show is inefficient--has undergone
some initial changes, but considerably more efficiencies are possible.
As our computer modeling has shown, higher levels of courtroom sharing
would not jeopardize the availability of courtrooms or delay trials,
and even with the modeled level of sharing, the courtrooms would be
dark much of the time because of frequent cancellations. Yet, given
the challenges to effective courtroom sharing raised by some judges we
spoke with, the transition could be difficult without an effort by the
judiciary to promote practices that have helped other judges overcome
the challenges to sharing courtrooms. Such an effort, while a
challenge to the status quo, could reap long-term benefits for
taxpayers and the judiciary, since further courtroom sharing could
significantly reduce the size of new courthouses--as well as the costs
associated with constructing and renting them.
While it is too late to reduce the extra space in the 33 courthouses
constructed since 2000, for at least some of the 29 additional
courthouse projects underway and for all future courthouse
construction projects not yet begun, GSA and the judiciary have an
opportunity to align their courthouse planning and construction with
the judiciary's real need for space. Such changes would greatly reduce
construction, operations and maintenance, and rent costs.
Recommendations for Executive Action:
In order to improve the planning and oversight for future courthouse
construction projects and to increase the efficiency of courtroom
usage through courtroom sharing, we are making six recommendations.
To ensure that future courthouses are built within the congressionally
authorized gross square footage, we recommend that the Administrator
of GSA take the following three actions:
* Establish sufficient internal control activities to ensure that
regional GSA officials understand and follow GSA's space measurement
policies throughout the planning and construction of courthouses.
These control activities should allow for accurate comparisons of the
size of a planned courthouse with the congressionally authorized gross
square footage throughout the design and construction process.
* To avoid requesting insufficient space for courtrooms based on the
AnyCourt model's identification of courtroom space needs, establish a
process, in cooperation with the Director of the Administrative Office
of the U.S. Courts, by which the planning for the space needed per
courtroom takes into account GSA's space measurement policy related to
tenant floor cuts if a courthouse may be designed with courtrooms that
have tenant floor cuts.
* Report to congressional authorizing committees when the design of a
courthouse exceeds the authorized size by more than 10 percent,
including the reasons for the increase in size.
In planning for future space needs, we recommend that the Director of
the Administrative Office of the U.S. Courts, on behalf of the
Judicial Conference of the United States, improve the accuracy of its
10-year estimation of judges by taking the following action:
* Retain caseload projections for at least 10 years for use in
analyzing their accuracy and incorporate additional factors into the
judiciary's 10-year judge estimates, such as past trends in obtaining
judgeships.
To increase the efficiency of courtroom use, we recommend that the
Director of the Administrative Office of the U.S. Courts, on behalf of
the Judicial Conference of the United States, take the following two
actions:
* Expand nationwide courtroom sharing policies to more fully reflect
the actual scheduling and use of district courtrooms.
* Distribute information to judges on positive practices judges have
used to overcome challenges to courtroom sharing.
Agency Comments and Our Evaluation:
We provided copies of a draft of this report to GSA and AOUSC for
review and comment and received written comments from both. GSA agreed
with our recommendation to inform congressional committees when
courthouses exceed their authorized size by more than 10 percent.
However, GSA indicated that it has serious concerns with the report
and takes exception to much of our methodology and many of the
report's conclusions, commenting that much of the information in the
report is misleading. GSA's complete comments are contained in
appendix II, along with our response to specific issues raised. AOUSC
commented that it has serious concerns about the accuracy of key data,
the way in which information is presented, and the methodologies
employed, but indicated that it welcomes constructive and feasible
recommendations and will implement them as it has in the past. AOUSC's
complete comments are contained in appendix III, along with our
response to specific issues raised. In general, we believe our
methodology, analysis, findings, and conclusions are sound. In
response to AOUSC's comments, we made some technical clarifications,
none of which materially affected our findings, conclusions, or
recommendations.
GSA Comments:
In commenting on a draft of our report, GSA cited serious concerns
with our methodology and many of the report's conclusions and stated
that much of the information in the report is misleading. As detailed
below, our methodology applied GSA's policies and data directly from
original documents and sources. Our conclusions address the
opportunity to improve courthouse planning and construction for future
courthouses by quantifying the costs of GSA's lack of oversight on
past courthouse projects. We believe that our findings are presented
in a fair and accurate way.
Regarding our methodology, GSA stated that we assume that upper-level
space in building atriums is included in the gross square footage of
an asset. This is true. We included this space in the gross square
footage calculation because that is GSA's space measurement policy.
Since at least August 2000, GSA's explicit policy has been and remains
today to include all levels of atriums and tenant floor cuts in
measuring the gross square footage of a building. GSA also states that
we mistakenly ascribed normal operating and construction costs to the
upper-level space in atriums. This is an oversimplification of our
cost estimation methodology, which balanced higher cost space, such as
courtroom and marshal space, with lower cost space, such as the upper
floors of atriums to create a conservative estimate of the costs
associated with the extra space in courthouses. Our report indicates
that, according to GSA, the upper floors of atriums are less expensive
to construct. However, these spaces represent only a portion of the
1.7 million square feet built above congressional authorization and
none of the 1.8 million extra square feet due to overestimating the
number of judges and not sharing courtrooms. Furthermore, GSA states
that we retroactively apply courtroom sharing policies to courthouses.
Our congressional requesters specifically asked that we consider how a
courtroom sharing policy could have changed the amount of space needed
in these courthouses. However, our draft and final reports indicate
that the judiciary's policy at the time was largely to provide one
courtroom per judge.
GSA also stated that (1) our cost estimates for the extra space are
contrived and (2) the final construction costs for 32 of the 33
exceeded appropriations by $269 million. Our cost estimates were based
on GSA data and generally accepted construction cost estimation
methods, and appropriation levels are not relevant to this discussion.
We validated our cost estimation approach with a number of
construction industry experts. All agreed that in order to develop an
order of magnitude estimate for such cost implications, determining
the cost per square foot of constructing the building was the best
methodology. GSA's approach of comparing costs with appropriations is
not relevant because there are numerous reasons why projects can go
over or under budget. Appropriation levels did not take into account
that these courthouses could have been much smaller than authorized
with improved judge estimates and courtroom sharing, and previous
appropriation levels were not adjusted for inflation.
AOUSC Comments:
In commenting on a draft of our report, AOUSC cited concerns about our
data, presentation, and methodologies but effectively concurred with
our recommendations and said it will implement them as it has in the
past. Specifically, AOUSC disputed our conclusion that the 33
courthouses completed since 2000 have 3.56 million extra square feet.
In AOUSC's view, it was misleading to conclude that space is extra
because the actual number of judges in courthouses is smaller than the
number the judiciary estimated. According to AOUSC, this conclusion
does not provide a complete picture of the judiciary's need for
courthouse space, and the shortfall in the actual number of judges has
occurred, in part, because Congress has not approved all needed new
judgeships. AOUSC also stated that it was not appropriate for us to
retroactively apply courtroom sharing policies that were not in effect
at the time the courthouses were planned. AOUSC further questioned the
soundness of our courtroom sharing model and maintained that the
report did not describe the model in enough detail to permit a
complete analysis of its sufficiency. AOUSC also disputed our
characterization of the views of the experts who participated in our
panel on courtroom sharing, in part because of the objections of a
U.S. District Judge, who participated in the 1-day portion of the
expert panel.
We believe our findings, analysis, conclusions, and recommendations
are well supported by the facts. GAO adheres to generally accepted
government auditing standards, which ensure the accuracy and relevance
of the facts within this report. These standards include a layered
approach to fact validation that includes supervisory review of all
work papers, independent verification of the facts within the report,
and the judiciary's review of the facts prior to our release of the
draft report for agency comment. We also believe that our estimation
of the extra space in courthouses is appropriate. Our congressional
requesters specifically asked that we consider how a courtroom sharing
policy could have changed the amount of space needed in these
courthouses. However, our draft and final reports indicate that the
judiciary's policy at the time was largely to provide one courtroom
per judge. Our report acknowledges the challenges associated with
estimating future needs for judges, and we continue to believe that
the judiciary could overcome some of those challenges and improve
courtroom planning by increasing the accuracy of its caseload
projections and by being more realistic about the number of authorized
judgeships it is likely to have after 10 years.
With regard to our courtroom sharing model, the report contains
sufficient detail so that anyone with access to the judiciary's data
and familiarity with discrete event simulation modeling techniques
could replicate our model. We developed our model to demonstrate the
benefits of the judiciary developing a policy for courtroom sharing
based on courtroom scheduling and usage data, not to provide a
specific model for the judiciary's use. Our analysis of the views of
the expert panel were based on the results of a 1-day panel session
with 7 participants and subsequent interviews with 5 additional
experts who could not attend the 1-day session. We used an official
transcript of the statements from the 1-day panel to support the facts
in our report, but none of the experts who participated in the 1-day
session participated in the individual interviews with experts who
could not attend the 1-day session. As a result, none of the
individual experts had the opportunity to hear all experts' views. Our
report notes that some judges remained skeptical that courtroom
sharing could work on a permanent basis, but not all the experts held
that view. In response to AOUSC's comments, we clarified the report
and added detail to our methodology in appendix I as appropriate.
We are sending copies of this report to the Director of the
Administrative Office of the U.S. Courts, the Director of the Federal
Judicial Center, the Administrator of GSA, and interested
congressional committees. The report is also available at no charge on
GAO's Web site at [hyperlink, http://www.gao.gov].
If you or your staff have any questions concerning this report, please
contact me at (202) 512-2834 or goldsteinm@gao.gov. Contact points for
our offices of Congressional Relations and Public Affairs may be found
on the last page of this report. GAO staff who made major
contributions to this report are listed in appendix IV.
Signed by:
Mark L. Goldstein:
Director, Physical Infrastructure Issues:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
For the 33 federal courthouses completed since 2000, we examined (1)
whether the courthouses contain extra space and any costs related to
it; (2) how the actual size of the courthouses compares with the
congressionally authorized size; (3) how courthouse space based on the
judiciary's 10-year estimates of judges compares with the actual
number of judges; and (4) whether the level of courtroom sharing
supported by data from the judiciary's 2008 study of district
courtroom sharing could have changed the amount of space needed in
these courthouses. The 33 courthouses in our scope included the
courthouses in table 7.
Table 7: The 33 Courthouses Completed from 2000 through March 2010:
Year completed: 2000;
Courthouse: George U.S. Courthouse, Las Vegas, Nevada;
Eagleton U.S. Courthouse, St. Louis, Missouri;
D'Amato U.S. Courthouse, Central Islip, New York;
DeConcini U.S. Courthouse, Tucson, Arizona;
Hruska U.S. Courthouse, Omaha, Nebraska;
U.S. Courthouse Annex, Tallahassee, Florida;
O'Connor U.S. Courthouse, Phoenix, Arizona.
Year completed: 2001;
Courthouse: U.S. Courthouse, Corpus Christi, Texas;
Johnson U.S. Courthouse Annex, Montgomery, Alabama;
Quillen U.S. Courthouse, Greeneville, Tennessee.
Year completed: 2002;
Courthouse: U.S. Courthouse Annex, London, Kentucky;
U.S. Courthouse, Hammond, Indiana;
King U.S. Courthouse, Albany, Georgia;
Stokes U.S. Courthouse, Cleveland, Ohio;
Jones Federal Building & U.S. Courthouse, Youngstown, Ohio;
Simpson U.S. Courthouse, Jacksonville, Florida.
Year completed: 2003;
Courthouse: Arraj U.S. Courthouse, Denver, Colorado;
Perry, Jr., U.S. Courthouse, Columbia, South Carolina.
Year completed: 2004;
Courthouse: Russell, Jr., U.S. Courthouse, Gulfport, Mississippi;
Federal Building & U.S. Courthouse, Wheeling, West Virginia;
U.S. Courthouse Annex, Erie, Pennsylvania;
U.S. Courthouse, Laredo, Texas;
U.S. Courthouse, Seattle, Washington.
Year completed: 2005;
Courthouse: Coyle U.S. Courthouse, Fresno, California.
Year completed: 2006;
Courthouse: Bryant U.S. Courthouse Annex, Washington, D.C.;
Roosevelt U.S. Courthouse Annex, Brooklyn, New York;
Morse U.S. Courthouse, Eugene, Oregon.
Year completed: 2007;
Courthouse: Arnold U.S. Courthouse Annex, Little Rock, Arkansas;
U.S. Courthouse Annex, Orlando, Florida;
Ferguson, Jr., U.S. Courthouse, Miami, Florida;
Limbaugh, Sr., U.S. Courthouse, Cape Girardeau, Missouri.
Year completed: 2008;
Courthouse: Robinson, III, and Merhige, Jr., U.S. Courthouse,
Richmond, Virginia;
U.S. Courthouse, Springfield, Massachusetts.
Source: GSA.
[End of table]
To meet all four objectives, for each of the 33 courthouses in our
scope, we reviewed the site and design prospectuses, construction
prospectus, and other relevant fact sheets and housing plans provided
by the General Services Administration (GSA) to congressional
authorizing committees to support the request, as well as the
congressional authorizations provided at the construction phase of the
project. To understand how much square footage is allocated to
different types of court space and the process for determining how
much space is requested for a new courthouse, we reviewed the 1997 and
2007 editions of the judiciary's Design Guide and examples of the
judiciary's space program model, AnyCourt, for those courthouse
projects in our scope for which an AnyCourt model had been developed.
We discussed verbally and in writing with GSA officials GSA's and the
judiciary's processes for planning and constructing courthouses, and
we requested and received written responses to questions related to
the judiciary's process for determining its space needs. We also
reviewed prior GAO work on courthouse construction and rent paid by
the judiciary to GSA, and we researched relevant laws. Furthermore, to
meet all four objectives, we selected 7 federal courthouses in our
scope to analyze more closely as case studies. We chose the 7 case
studies because they provided examples of courthouses that are larger
than congressionally authorized. In addition, we chose these sites to
represent a wide distribution of courthouse sizes, dates of
completion, and geographical locations. Our analysis of courthouse
size and cost is based on data for all courthouses and major annexes
completed from 2000 through March 2010. The information specifically
from our site visits cannot be generalized to that population. These
case studies included the following courthouses(1) Bryant U.S.
Courthouse Annex in Washington, D.C.; (2) Coyle U.S. Courthouse in
Fresno, California; (3) D'Amato U.S. Courthouse in Central Islip, New
York; (4) DeConcini U.S. Courthouse in Tucson, Arizona; (5) Eagleton
U.S. Courthouse in St. Louis, Missouri; (6) Ferguson, Jr., U.S.
Courthouse in Miami, Florida; and (7) Limbaugh, Sr., U.S. Courthouse
in Cape Girardeau, Missouri. For these courthouses, we analyzed
blueprints labeled with size and tenant allocations for each space,
which we requested and received from GSA. For all of these courthouses
except the DeConcini Courthouse in Tucson, we visited the courthouse,
where we toured the courthouse and met with court officials, including
judges, circuit executives, and others involved in planning for
judicial space needs and requesting and using courthouse space; and we
met with GSA officials involved in planning, constructing, and
operating the courthouse. For the DeConcini Courthouse, we reviewed
workpapers from a prior GAO engagement that included a December 2005
visit to the Tucson courthouse that involved a tour of the courthouse
and discussions with court and GSA staff. During our meetings with
court officials, we discussed issues pertaining to all four of our
objectives, including the process for determining the size of the
courthouse needed, the planning and construction of the courthouse,
and the current uses of courthouse space, including courtrooms and
chambers, and we sought the officials' views on the potential for more
than one judge to share a courtroom.
In addition to these activities, we performed the following work
related to each specific objective:
To determine whether the courthouses contain extra space and any costs
related to it, we added together any extra square footage due to an
increase in the courthouse's gross square footage over the
congressional authorization, inaccurate judge estimates, and less
sharing than is supported by the judiciary's data, as described below
in the methodology for the other objectives. We consider the sum of
the extra space as calculated according to the method described in our
discussion of the following objectives to be the extra space for each
courthouse. We then discussed how to calculate an order of magnitude
estimate for the cost of increasing a courthouse's square footage with
construction experts within GAO, at the Construction Institute of
America, and at a private sector firm that specializes in developing
cost estimates for the construction of buildings. All agreed that in
order to develop with an order of magnitude estimate for such cost
implications, determining the cost per square foot for constructing
the building was the best methodology. Based on these conversations,
we estimated the cost per square foot through the following method:
* To determine the total construction cost of each courthouse, we
obtained from GSA the total net obligations, excluding claims, for
each of the 33 courthouses through September 11, 2009, and determined
that these data, which equal the total cost of each project as of
September 11, 2009, were sufficiently reliable for our purposes
through discussions with GSA officials and by reviewing information
related to the reliability of these data from a previous GAO
engagement. GSA officials told us that GSA could not break out the
construction costs from the total costs of courthouse projects.
Therefore, except for most annexes, we then subtracted from the total
project costs the estimates GSA had provided for site, design, and
management and inspection costs in its construction prospectuses to
congressional authorizing committees. We consider the resulting figure
to be an estimate for the total construction cost for each courthouse.
* We then calculated the construction cost per square foot by dividing
the construction cost of each courthouse, as calculated above, by the
gross square footage, as measured using ESmart and reported by GSA,
for each courthouse. For annex projects that involved substantial work
on older buildings, we used a different method to determine the
construction cost per square foot. GSA officials told us that for
those annexes that involved substantial costs both to renovate an
older building and to construct a new annex, they could not separate
the costs of work done on the annex from the costs of any work done on
the older building. Therefore, we used GSA's estimated cost per square
foot for constructing the annex, which was reported in the
construction prospectus, as our figure for the construction cost per
square foot.
* We then reduced the construction cost per square foot of each
courthouse or annex by 10 percent based on discussions with
construction experts to account for the economies of scale that cause
the construction cost per square foot to decrease slightly in larger
buildings.
* We removed the effect of inflation from the estimates by applying
two sources of information on annual increases in construction costs--
the Bureau of Economic Analysis's Office Construction Series for years
up through 2008 and the Global Insight Projections on Commercial
Construction Costs for 2009 to the present based on each courthouse's
completion date.
* Then, we multiplied the sum of the extra square footage by the
construction cost per square foot for each courthouse to estimate the
total construction cost implications for each courthouse.
To estimate the annual costs to rent or operate and maintain the extra
space, we took the following steps. To the extent practical, we
determined whether the costs of the extra space were directly passed
on to the judiciary as rent. If the costs of the space are passed on
to the judiciary as rent, such as for extra courtrooms, we calculated
the annual rental costs for the space to the judiciary. To do so, we
obtained information on the rent payments that the judiciary made to
GSA for fiscal year 2009, which we determined was reliable for our
purposes. Then, we multiplied the annual rent per square foot for each
courthouse by any extra square footage. If the costs of the space are
not directly passed on to the judiciary as rent (including the costs
of all the extra space, if any, due to construction above the
congressional authorization, which we did not attempt to allocate
between the judiciary, other tenants, and GSA), we calculated the
annual operations and maintenance costs of the space. To do so, we
obtained from GSA the total operations and maintenance costs for each
of the 33 courthouses for fiscal year 2009 and determined that these
data were sufficiently reliable for our purposes. For each courthouse,
we divided these costs by the actual gross square footage to come up
with an operations and maintenance cost per square foot. We then
multiplied the cost per square foot by any extra square feet. Finally,
we summed the extra operations and maintenance costs with the extra
rent costs for all 33 courthouses built since 2000.
To determine how the actual size of the courthouses compares with the
congressionally authorized size, we compared the congressionally
authorized gross square footage of each courthouse with the gross
square footage of the courthouse as measured by GSA's space
measurement program, ESmart. We determined that these data were
sufficiently reliable for our purposes through discussions with GSA
officials on practices and procedures for entering data into ESmart,
including GSA's efforts to ensure the reliability of these data. To
determine the extent to which a courthouse that exceeded its
authorized size by 10 percent or more had total project costs that
exceeded the total project cost estimate provided to the congressional
authorizing committees, we used the same information obtained from GSA
on the total net obligations (i.e., total project costs), excluding
claims, for each of these courthouses through September 11, 2009, as
described above. We compared the total project cost for each
courthouse to the total project cost estimate provided to the
congressional authorizing committees in the construction prospectus or
related fact sheets. We also examined GSA's communications to the
committees on appropriations for four courthouses that we found
exceeded the authorized size and estimated total budget by about 10
percent or more. To increase our understanding of how and why
courthouse size exceeds congressional authorized size, we reviewed
GSA's space measurement policy and guidance and discussed these
documents with GSA officials. We also discussed the reasons that some
courthouses are larger than congressionally authorized with GSA
headquarters and regional officials and reviewed written comments on
the size and space allocations for some of our case study courthouses.
In addition, for two of the case study courthouses, we contracted with
an engineer and architect to advise us on analyzing the extra space in
these courthouses.
To determine how courthouse space based on the judiciary's 10-year
estimates of judges compares with the actual number of judges, we used
courthouse planning documents to determine how many judges the
judiciary estimated it would have in each courthouse in 10 years. We
then compared that estimate with the judiciary's data showing how many
judges are located there including authorized vacancies identified for
specific courthouses and interviewed judiciary officials. We
determined that these data were sufficiently reliable for our
purposes. To determine the effects of any differences, we calculated
how much excess space exists in courthouses that were estimated to
have more judges than are currently seated there at least 10 years
after the 10-year estimates were made. We also discussed challenges
associated with accurately estimating the number of judges in a
courthouse with judicial officials and analyzed judiciary data where
available.
To determine whether the level of courtroom sharing supported by data
from the judiciary's 2008 study of district courtroom sharing could
have changed the amount of space needed in these courthouses, we also
took the following steps. We created a simulation model to determine
the level of courtroom sharing supported by the data. The data used to
create the simulation model for courtroom usage were collected by the
Federal Judicial Center (FJC)--the research arm of the federal
judiciary--for its Report on the Usage of Federal District Court
Courtrooms, published in 2008. The data collected by FJC were a
stratified random sample of federal court districts to ensure a
nationally representative sample of courthouses--that is, FJC sampled
from small, medium, and large districts, as well as districts with
low, medium, and high weighted filings. Altogether, there were 23
randomly selected districts and 3 case study districts, which included
91 courthouses, 602 courtrooms, and every circuit except that of the
District of Columbia. The data sample was taken in 3-month increments
over a 6-month period in 2007 for a total of 63 federal workdays, by
trained court staff who recorded all courtroom usage, including
scheduled but unused time. These data were then verified against three
independently recorded sources of data about courtroom use.
Specifically, the sample data were compared with JS-10 data routinely
recorded for courtroom events conducted by district judges, MJSTAR
data routinely recorded for courtroom events conducted by magistrate
judges, and data collected by independent observers in a randomly
selected subset of districts in the sample. We verified that these
methods were reliable and empirically sound for use in simulation
modeling.
To create a simulation model, we contracted for the services of a firm
with expertise in discrete event simulations modeling. This
engineering services and technology consulting firm uses advanced
computer modeling and visualization as well as other techniques to
maximize throughput, improve system flow, and reduce capital and
operating expenses. Working with the contractor, we discussed
assumptions made for the inputs of the model and verified the output
with in-house data experts. We designed this sharing model in
conjunction with a specialist in discrete event simulation and the
company that designed the simulation software to ensure that the model
conformed to generally accepted simulation modeling standards and was
reasonable for the federal court system. The model was also verified
with the creator of the software to ensure proper use and model
specification. Simulation is widely used in modeling any system where
there is competition for scarce resources. The goal of the model was
to determine how many courtrooms are required for courtroom
utilization rates similar to that recorded by FJC. This determination
is based on data for all courtroom use time collected by FJC,
including time when the courtroom was scheduled to be used but the
event was canceled within one week of the scheduled date.
The completed model allows, for each courthouse, user input of the
number and types of judges and courtrooms, and the output states
whether the utilization of the courtrooms does not exceed the
availability of the courtrooms in the long run. When using the model
to determine the level of sharing possible at each courthouse based on
scheduled courtroom availability on weekdays from 8 a.m. to 6 p.m., we
established a baseline of one courtroom per judge to the extent that
this sharing level exists at the 33 courthouses built since 2000. In
selecting the 8 a.m. to 6 p.m. time frame for courtroom scheduling, we
used the courtroom scheduling profile that judges currently use,
reflecting the many uses and flexibility needed for a courtroom.
Judges stated that during trials courtrooms may be needed by attorneys
before trial times in order to set up materials. This set up time was
captured in the FJC data; other uses of a courtroom captured by FJC
are time spent on ceremonies, education, training, and maintenance. We
differentiated events and time in the model by grouping them as case-
related events, nonjudge-related events, and unused scheduled time,
and we allotted enough time for each of these events to occur without
delay. Then we inputted the number of judges from each courthouse and
determined the fewest number of courtrooms needed for no backlog in
court proceedings.
To understand judges' views on the potential for, and problems
associated with, courtroom sharing, we contracted with the National
Academy of Sciences to convene a panel of judicial experts. This
panel, which consisted of seven federal judges, three state judges,
one judicial officer, one attorney, and one law professor and scholar,
discussed the challenges and limitations to courtroom sharing. Not all
panelists invited were able to attend the 1-day panel, and these
panelists were individually contacted and interviewed separately. We
also conducted structured interviews either in person or via telephone
with 14 federal judges, 1 court staff, 1 state judge, 2 D.C. Superior
Court judges, 1 lawyer, and 1 academic, during which we discussed
issues related to the challenges and opportunities associated with
courtroom sharing. Additionally, we used district courtroom scheduling
and use data to model courtroom sharing scenarios. We determined that
these courtroom data were sufficiently reliable for our purposes by
analyzing the data, reviewing the data collection and validation
methods, and interviewing staff that collected and analyzed the data.
Besides the 7 courthouses we selected as case studies, we visited 2
district courthouses that have experience with sharing--the Moynihan
U.S. Courthouse in Manhattan, New York, and the Byrne U.S. Courthouse
in Philadelphia, Pennsylvania. In addition, we visited the Roosevelt
U.S. Courthouse Annex in Brooklyn, New York, as an example of a
courthouse with a collegial floor plan.
We conducted this performance audit from September 2008 to June 2010
in accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives.
[End of section]
Appendix II: Comments from the U.S. General Services Administration:
Note: GAO comments supplementing those in the report text appear at
the end of this appendix.
GSA Administrator:
U.S. General Services Administration:
1800 F Street, NW:
Washington, DC 20405-0002:
Telephone: (202) 501-0800:
Fax (209) (210-1243):
[hyperlink,http://www.gsa.gov]
June 3 2010:
The Honorable Gene L. Dodaro:
Comptroller General of the United States:
Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Mr. Dodaro:
The U.S. General Services Administration (GSA) appreciates the
opportunity to review and comment on the draft report, "Federal
Courthouse Construction: Better Planning, Oversight, and Courtroom
Sharing Needed to Address Future Costs" (GAO-10-417).
GSA has serious concerns with this draft report and takes exception to
much of GAO's methodology and many of the report's conclusions. We
welcome the opportunity to clarify and correct the information
presented in this report, as much of this information is misleading:
[See comment 1]
* GAO has used a space measurement that assumes upper space in
building atriums is included in the gross square footage of an asset;
[See comment 2]
* GAO compounded this erroneous assumption by mistakenly ascribing
normal operating and construction costs to these empty volumes; {See
comment 3] and,
* GAO retroactively applies a methodology of "courtroom sharing" to
buildings designed in some cases more than a decade ago, prior to the
creation of the courtroom sharing policy, and then claims that the
buildings thus previously designed and built somehow violate this
retroactive standard. [See comment 4]
In the enclosed document, we address these concerns in greater detail
for your consideration in composing the final report. If you have any
questions or concerns, please contact me. Staff inquiries may be
directed to Mr. Ralph Conner, Acting Associate Administrator, Office
of Congressional and Intergovernmental Affairs. He can be reached at
(202) 501-0563.
Sincerely,
Signed by:
Martha Johnson:
Administrator:
Enclosure:
[End of letter]
U.S. General Services Administration's Response to the Government
Accountability Office's Draft Report:
Federal Courthouse Construction: Better Planning, Oversight, and
Courtroom Sharing Needed to Address Future Costs:
The GAO's draft report, titled "Federal Courthouse Construction:
Better Planning Oversight, and Courtroom Sharing Needed to Address
Future Costs" (GA0-10-417), determines that GSA has constructed 3.56
million square feet of extra and unauthorized courthouse space,
totaling $835 million in construction costs and $51 million annually
to rent, operate and maintain. GSA strongly disagrees with and
disputes most of the significant findings in this draft report.
The dollar amounts are contrived, largely based on phantom space and
faulty cost calculations. In fact, for 32 of the 33 courthouses
studied by GAO, total construction costs originally appropriated by
Congress were $3.05 billion; final costs were $3.32 billion. And the
additional $269 million was due largely to historically high
construction cost inflation. The remaining courthouse studied by GAO,
in Little Rock. Arkansas, is not yet completed. [See comment 5]
Most egregious is the report's suggestion that GSA and the Courts
flouted the intentions of Congress. On the contrary, all the spending
described above was approved in advance by Congress pursuant to
longstanding procedures. including the additional 258 million. [See
comment 6]
It is true that the courthouses built contained more square footage
than was originally requested by GSA in authorizing prospectuses.
However, those prospectuses are submitted when only a generic
courthouse program exists, prior to the detailed architectural and
engineering design that is necessary to flesh out the program and fit
it to a particular site. Still, the courthouses were built within
their authorized cost limits. Moreover, our courthouse projects are
managed to meet functional needs within budget limitations. [See
comment 7]
Background on the Courthouse Construction and Renovation Program - The
Federal Courts play a critical role in the constitutional framework of
American democracy. Local, state and Federal courthouses are a
traditional landmark, dating back to the founding of the Nation. As
the steward of federally owned buildings, GSA is proud to build
courthouses worthy of that role. GSA has compiled a solid track record
of delivering high quality buildings that support the Courts' unique
needs while enhancing the buildings' surroundings. We do so within
carefully considered design and budgetary guidelines and pursuant to
Congressional authorization and appropriations.
In this draft report, GAO asserts that GSA has constructed additional
space, costing taxpayers millions of dollars. GSA disagrees with GAO's
methodology and manner in which the auditors calculated extra space
built and the associated cost to construct, operate, and maintain this
space. GAO's assessment of these additional costs misleads Congress
and the American public.
Measuring Space - The amount of extra courthouse space constructed, as
cited in the GAO report, counted all of the square feet in the
building, including tenant floor cuts and vertical floor penetrations
[Footnote 1] in multi-story atriums and double height courtrooms that
are, in reality, "phantom floors." GAO used this phantom square
footage to calculate additional costs supposedly incurred to complete
the building. GAO divided the total cost of the facility, excluding
site costs, design fees and other soft costs, by the gross square
footage (GSF) of the building. GAO then used this grossly inflated GSF
number and multiplied it by the alleged amount of additional space GSA
constructed to determine the cost of the alleged overbuilt space.
These assertions and calculations are inaccurate and grossly
misleading. [See comment 8]
GAO assumes the costs to build and maintain tenant floor cuts and
multi-story atriums are the same as other building space, such as
hallways, courtrooms, Marshals holding facilities, or general office
space. This is an incorrect assumption and significantly overstates
the cost of constructing and maintaining this phantom floor space in a
building. Obviously, a square foot of air inside an atrium costs less
to build, maintain, and operate than a square foot of floor space
inside an office, courtroom or holding cell. [See comment 9]
The cost of constructing phantom space in an atrium or double height
courtroom is only a fraction of the cost of constructing occupied
space in the building. These phantom spaces do not require slabs of
concrete, nor do they have finishes such as carpeting or wood
paneling. The cost of maintaining and operating this type of space is
less compared to the rest of the facility. For example, the O'Connor
Courthouse in Phoenix, Arizona and referenced in the report, has an
atrium that is not air conditioned, so it is fallacious to assume
these operating costs are the same as the occupied space inside the
building. This type of space also requires little cleaning, repair or
maintenance, so operating costs are also minimal.
Alleged Cost Overruns — GAO also suggests that cost overruns were a
direct result of constructing this additional 1.7 million square feet
of space. The increases in construction costs were primarily due to
unprecedented increases in construction costs during GAO's audited
time period. This phenomenal cost growth was well documented and was
due to an industry worldwide building boom that resulted in acute
material and labor shortages. [See comment 10]
The Construction Cost Index, as published annually by RS Means,
reflects a cumulative escalation of 58 percent from October 1, 2000 to
October 1, 2008, which is during GAO's audit time period. GSA prepares
cost information years in advance of actual construction. The budget
inflation factors used to project future costs simply did not keep
pace with the real inflation happening across the globe. This was a
common occurrence across the construction industry and was not due to
a lack of planning foresight on the part of GSA. This too is well
documented. This industry cost increase, not the design and layout of
the courthouses, was the major driver for the increase in construction
costs found by GAO.
In addition to the unprecedented increase in construction costs,
during the period covered by the audit, the U.S. was attacked by both
domestic and international terrorism. As a result of those attacks,
both our building designs and projects under construction received a
tremendous increase in security requirements which had a direct impact
on construction costs and the resultant cost increases associated with
our projects.
Congressional Authorization of Additional Space —The GAO report
implies that GSA has willfully neglected Congressional direction in
the courthouse program. On the contrary, GSA has scrupulously sought
and followed regular Congressional authorizations and appropriations
and has been subject to strict Congressional oversight of the
courthouse program. We built only courtrooms requested by the
Judiciary and authorized by Congress. GSA has been forthright and
transparent in all of our documents, testimony, and briefings to
Congress throughout the history of our courthouse program. [See
comment 11]
GAO asserts that 27 out of the 33 Federal courthouses built since 2000
are larger than authorized by Congress. GSA disagrees with GAO's claim
that this additional space contributes considerably to the increase in
project costs since approximately 50 percent of the supposedly
additional 1.7 million square footage cited in this report is due to
vertical floor penetrations associated with atriums, according to
GSA's estimates. [See comment 12] For example, GAO stated that the
Springfield Courthouse in Massachusetts exceeded Congressional
authorization by 17,299 GSF, or 11 percent. GSA disagrees with this
assertion because 17,606 GSF of this courthouse is associated with
phantom floors or void space. [See comment 13]
Reasons for the remaining 50 percent of the alleged 1.7 million square
feet above authorized amount can be attributed to:
1) Site limitations and restrictions, such as site configurations and
grading, can result in less than optimal building construction,
resulting in design responses that provide less than optimal layout
for space;
2) Constructing connections for annexes. One third of the audited
projects were annexes connected to existing buildings; and;
3) New requirements not included in the space programming due to new
design standards, such as LEED and security requirements, as well as
expanding customer requirements.
GAO also suggests that GSA should notify Congressional authorizing and
appropriation committees if the size of a courthouse exceeds the
Congressional authorized GSF. GSA notifies the appropriate
Congressional committees when the cost of a project exceeds 10 percent
of the maximum identified in the prospectus and seeks further approval
in accordance with 40 U.S.C. § 3307(c). We have multiple levels of
management and system controls to ensure costs do not exceed this
threshold without Congressional approval.
When the original gross square footage is exceeded, GSA often has
pressing and logical reasons for doing so. For example, during design,
architects can develop more energy-efficient methods, such as creating
atriums or light wells to bring natural light into interior windowless
space within the building that could increase the building's total
square footage. GSA will ensure that Congress is notified of these
increases in The future, along with the rationale for the increase.
In estimating the cost of this additional space, GAO applies current
GSA policy retroactively in its analysis. Although GSA adopted the
American National Standards Institute and the Building Owners and
Managers Association (BOMA) measurement standards in 1997, GSA did not
establish formal national guidance to include atrium space in the
gross area calculation until fiscal year 2005. The 33 courthouse
projects under review by GAO were authorized prior to this policy, so
applying this policy retroactively inflates the gross area of the
building during the time of the projects. [See comment 14]
As discussed in 2009 in the BOMA publication of The Gross Areas of a
Building: Methods of Measurement, current industry standards exclude
atrium space in the gross square foot calculation. If GAO were to
apply this BOMA standard or analyze the 33 projects in context prior
to the issuance of the formal GSA guidance in 2005, the atrium voids
would be excluded from the gross square feet, resulting in more than a
50 percent decrease in square footage above authorized prospectus
levels. Courthouses such as Greeneville, Laredo, Wheeling, Springfield
and Richmond would be at or below the square footage given in the
authorized prospectus by approximately 10,000 — 20,000 square feet.
[See comment 15]
Oversight and Controls — GAO asserts that GSA needs additional
oversight and controls over the management of our courthouse program.
GSA has implemented additional oversight and controls. Policies are in
place that require GSA's Central Office and GSA's Regional Offices,
during the design process, to approve the facilities' measurements and
ensure they are in line with the appropriation and authorized
prospectus. Additionally, we have measurement experts, who provide an
independent evaluation of the design. This evaluation is done during
the development of the design and compliance with the square footage
given in the authorized prospectus is necessary to proceed with the
project. GSA continues to educate our project teams on these policies
and ensure our measurement experts are involved throughout the
project's phases to continually review the design and ensure the size
remains within the authorized amount. [See comment 16]
Judgeship Projections and Courtroom Sharing — GAO also discusses
overestimating judgeship projections and courtroom sharing in this
report. GAO recommends that the Judicial Conference of the United
States through the Administrative Office of the United States Courts
improve the accuracy of the planning currently done to estimate
courtroom needs over a 10-year time horizon. GSA agrees this issue
warrants further review, since these projections have been
overestimated in the past. GSA, the Judiciary, and Congress should
discuss a realistic approach for the future.
Regarding courtroom sharing, GSA works closely with the Judiciary to
develop their courthouse requirements. The Judiciary has developed and
implemented policies that require courtrooms to be shared among
judges. We commend the Courts for developing these new courtroom
sharing models, which were developed in recent years. GSA will
continue to work with the Judiciary on courtroom sharing alternatives.
GAO audited courthouses that were, in most cases, designed and built
before the Judiciary and GSA implemented the sharing models. Thus. GAO
retroactively applies a methodology of "courtroom sharing" to
buildings designed in some cases more than a decade ago and then
claims that the buildings thus previously designed and built somehow
violate this retroactive standard. [See comment 17]
The current sharing requirement, included initially in the 2007 design
guide, requires one courtroom for every two senior judges. In 2009, it
was updated further to require one courtroom for every two magistrate
judges. The Judiciary and GSA also implemented additional sharing
policies that were included for the first time for projects funded by
the American Recovery and Reinvestment Act of 2009. These new
courtroom sharing policies state that there should be no more than one
courtroom for every two district judges who are within 10 years of
their senior eligibility date. Additionally, GSA makes every effort to
more fully utilize any vacant space in a courthouse previously built.
GSA and the Judiciary are committed to the courtroom sharing policies
for current and future courthouse projects.
In conclusion, GSA will continue to work with the Judiciary in
designing Federal courthouses that meet the Courts' needs. GSA helps
the Judiciary shape their requirements and ensure buildings are
constructed efficiently, considering cost, space, and energy needs,
with sufficient controls and oversight. Working with the Courts, GSA
will use courtroom sharing practices and review judgeship projections.
As recommended by GAO, GSA will also notify the appropriate
Congressional committees when the square footage increase exceeds by
10 percent or more the maximum identified in the prospectus. [See
comment 18]
Footnote:
[1] Vertical floor penetrations are air space within a building
created by the absence of a floor slab Tenant floor cuts are the upper
portion of a tenant space that expands into the floor above, if a
floor were present in this upper area, it could be used for office
space. This space could also be the upper air space of a double-height
courtroom.
The following are GAO's comments on the U.S. General Services
Administration letter dated June 3, 2010.
GAO Comments:
1. GSA stated that it has serious concerns with much of our
methodology and many of the report's conclusions and that much of the
information in the report is misleading. As detailed in the next three
comments, our methodology applied GSA's policies and data directly
from original documents and sources. Our conclusions were meant to
improve courthouse planning and construction for future courthouses by
quantifying the costs related to GSA's lack of oversight on past
courthouse projects, not to suggest the methodology should have been
applied retroactively. We believe that our information is presented in
a fair and accurate way in illustrating how past problems with the
courthouse program could affect future courthouse projects.
2. GSA stated that GAO assumes that upper-level space in building
atriums is included in the gross square footage of an asset. This is
true. We included this space in the gross square footage calculation
because that is GSA's space measurement policy. Since at least August
2000, GSA's written policy has been and remains today to include all
levels of atriums and tenant floor cuts in measuring the gross square
footage of a building.
3. GSA stated that we mistakenly ascribed normal operating and
construction costs to the upper-level space in atriums. This is an
oversimplification of our cost estimation methodology, which balanced
higher cost space, such as courtroom and marshal space, with lower
cost space, such as the upper floors of atriums, to create a
conservative estimate of the costs associated with the extra space in
courthouses. Our report indicates that according to GSA, the upper
floors of atriums are less expensive to construct and operate.
However, these spaces represent only a portion of the 1.7 million
square feet built above congressional authorization and none of the
1.8 million extra square feet due to overestimating judges and not
sharing courtrooms. For example, GSA's analysis that appears later in
its comments on our report (see p. 61) indicate that about 850,000
square feet of the space constructed in excess of the congressionally
authorized gross square footage is upper-level space in atriums--
meaning that 2.7 million square feet--or about 75 percent--of the
extra space in courthouses may be higher-cost space.
4. GSA stated that we retroactively applied courtroom sharing policies
to courthouses. Our congressional requesters specifically asked that
we consider how a courtroom sharing policy could have changed the
amount of space needed in these courthouses. However, our draft and
final reports indicate that the judiciary's policy at the time was
largely to provide one courtroom per judge.
5. GSA stated that (1) our cost estimates for the extra space are
contrived and (2) the final construction costs for 32 of the 33
courthouses exceeded appropriations by $269 million. Our cost
estimates were based on GSA data and generally accepted construction
cost estimation methods, and appropriation levels are not relevant to
this discussion. We validated our cost estimation approach with a
number of construction industry experts. All agreed that in order to
develop an order of magnitude estimate for such cost implications,
determining the cost per square foot of constructing the building was
the best methodology. GSA's approach of comparing costs with
appropriations is not relevant for the following reasons:
* There are numerous reasons why construction projects can go over or
under budget. For this report, we did not conduct a detailed
examination of GSA's process of estimating courthouse construction
costs. However, it does stand to reason that the cost overruns would
have been lower or nonexistent if the courthouses had been constructed
within the congressionally authorized gross square footage limits. For
example, our report states that because the construction costs of a
building increase when its gross square footage increases, cost
overruns for the Coyle U.S. Courthouse in Fresno would have been
smaller or might have been eliminated if the courthouse had been built
within the authorized square footage. As discussed in the report, the
courthouse is about 16 percent larger than authorized and cost about
$13 million, or 11 percent, more than estimated when congressionally
authorized its construction.
* We suggest that the extra square footage due to GSA constructing the
courthouses larger than authorized may have contributed to cost
overages. However, about half of the extra square footage we found--
and therefore about half of our estimated construction costs--are
attributable to over estimating the number of judges and not sharing
courtrooms. This extra space was factored into the plans and, thus,
would be factored in to the appropriations, for the courthouses.
Reducing this space would, therefore, be likely to have led to a
corresponding reduction in the courthouses' appropriations.
* Even if relevant, GSA's estimate of $269 million spent over
congressional appropriations does not appear to have been adjusted for
inflation. Adjusting GSA's cost estimate for inflation would most
likely increase it significantly, since the courthouses we reviewed
were completed up to 10 years ago.
6. According to GSA, our report suggests that GSA and the judiciary
purposefully disregarded the intentions of Congress. This is not the
case. While it is unclear to what extent GSA was aware that the
courthouses we reviewed exceeded their authorized gross square
footage, the report does not indicate that GSA or the judiciary
purposefully disregarded congressional authorizations. Instead, we
found that GSA lacked sufficient oversight and controls to ensure that
courthouses were planned and built as authorized.
7. GSA acknowledged that the courthouses built since 2000 contain more
square footage than GSA requested in the prospectuses and
congressionally authorized. We understand that prospectuses are
submitted for courthouses before their detailed architectural and
engineering designs are completed, but the congressionally authorized
gross square footage is to be the maximum allowable gross square
footage. As we reported, GSA lacked the oversight and controls to
ensure that 27 of the 33 courthouses we reviewed were designed and
constructed within the authorized gross square footage.
8. GSA described the upper-level floors of atriums and "double-height
courtrooms" as "phantom floors" and stated that the incorporation of
these spaces grossly inflates the gross square footage amounts for
courthouses. These spaces are not phantom floors--they increase the
volume and cost of buildings, and it is GSA--not GAO--that chose to
count them as part of a building's gross square footage. As discussed
in comment 2, our calculations are based entirely on GSA's
longstanding space measurement policy.
9. See comment 3.
10. See the first bullet of comment 5.
11. See comment 6.
12. GSA questioned our finding that 27 of the 33 federal courthouses
built since 2000 are larger than congressionally authorized and that
this extra square footage has significant cost implications. The extra
1.7 million square feet of extra space built above congressional
authorization is substantial, representing 13 percent of all
courthouse space built since 2000, and was also expensive to construct
because gross square feet is a key construction cost driver. See
comments 2 and 3 for additional discussion of these issues.
13. Our report does not provide any data on the square footage of the
Springfield courthouse, other than its inclusion in Figure 3 as being
10-20 percent larger than authorized, because it was not one of the 7
courthouses we selected for case studies. GSA appears to have
calculated the overage for this courthouse as we did for the
courthouses in our review by comparing the congressional authorization
with the gross square footage measurement in GSA's ESmart database.
GSA's calculation of the overage--17,299 gross square feet, or 11
percent more than authorized--includes the square footage of the upper
levels of the atrium and tenant floor cuts, consistent with GSA's
policy. Moreover, the total project cost of the Springfield Courthouse
was about $65 million, more than 20 percent over the estimated total
project cost of about $53 million provided to congressional
committees. As discussed in comment 5, we did not fully analyze the
reasons for cost overruns in the courthouses we reviewed, including
the Springfield Courthouse. But because a building's construction
costs increase with its gross square footage, cost overruns for the
Springfield Courthouse would likely have been reduced if it had been
built with a smaller atrium or less void space. The extent to which
GSA overbuilt the public and nontenant spaces becomes clear through
the efficiency rating. GSA specifies that 67 percent of the space in
courthouses should be tenant spaces--or 67 percent efficient--but only
50 percent of the Springfield Courthouse is tenant space. In other
words, half of the courthouse's space is dedicated to public
circulation, mechanical, and other nonmission-related spaces.
14. GSA stated that we applied current GSA policy retroactively in
estimating the costs of additional courthouse space and maintained
that it did not establish formal national guidance to include atrium
space in the gross area calculation until fiscal year 2005. GSA
incorrectly represents the evolution of its policy. GSA's policy
manual dating from August 2000 instructs that all levels of atriums
and tenant floor cuts be included in the gross square footage of a
building. In our report, consistent with this evidence, we state that
GSA had this space measurement policy since at least 2000, but did not
ensure that it was understood and followed. Moreover, GSA has not
demonstrated it is enforcing this policy because all 6 courthouses
completed since 2007 exceed their congressionally authorized size.
15. GSA suggested that we should have applied 2009 Building Owners and
Managers Association (BOMA) standards to measure the gross square
footage of the courthouses we reviewed. We believe it is appropriate
to apply GSA's own policies to develop our estimates, and we,
therefore, used the square footage numbers GSA provided us from its
ESmart program and in blueprints.
16. GSA commented that it has implemented additional oversight and
controls over its courthouse program. However, as we state in our
report's conclusion, it is not yet clear whether GSA's recent steps to
better monitor the size of courthouse projects provide sufficient
oversight to ensure that courthouses are constructed within the
congressionally authorized square footage. The ongoing confusion that
we identified among some GSA regional staff about GSA's policies for
measuring atriums and the gross square footage of courthouses--and the
fact that the six most recently completed courthouses exceeded the
congressionally authorized size--raise questions about the sufficiency
of the steps GSA has taken to date to improve its oversight. Our
recommendation for GSA to establish sufficient internal control
activities to ensure that GSA space measurement policies are followed,
therefore, remains unchanged at this time.
17. See comment 4.
18. GSA agreed with our recommendation to notify congressional
authorizing committees when the design of a courthouse exceeds the
authorized size by more than 10 percent, including the reasons for the
increase in size. However, to ensure that future courthouses are built
within the congressionally authorized gross square footage, it is
important that GSA also implement our other two recommendations: to
establish sufficient internal control activities to ensure that
regional GSA officials understand and follow GSA's space measurement
policies throughout the planning and construction of courthouses; and
to establish a process, in cooperation with the Director of the
Administrative Office of the U.S. Courts, by which the planning for
the space needed per courtroom takes into account GSA's space
measurement policy related to tenant floor cuts if a courthouse is
designed with courtrooms that have tenant floor cuts.
[End of section]
Appendix III: Comments from the Federal Judiciary:
Note: GAO comments supplementing those in the report text appear at
the end of this appendix.
Administrative Office Of The United States Courts:
James C. Duff, Director:
Washington, D.C. 20544:
June 1, 2010:
Mr. Mark L. Goldstein:
Director, Physical Infrastructure Issues:
U.S. Government Accountability Office:
441 G Street, N.W.
Washington, DC 20548:
Dear Mr. Goldstein:
I write on behalf of the Federal Judiciary in response to the draft
report entitled, Federal Courthouse Construction. Better Planning,
Oversight, and Courtroom Sharing Needed to Address Future Costs (GAO-
10-417). The Judiciary takes its stewardship responsibilities
seriously and would welcome a fact-based and objective analysis as
well as constructive suggestions for improving our facilities planning
approach. It is regrettable at a time when the General Services
Administration (GSA) and the Federal Judiciary arc working closely and
effectively to control courthouse costs — including current and
planned courtroom-sharing measures adopted by the Judiciary — that GAO
has produced a misinformed report that distorts both the current
facilities planning process and prior projects.
In short, we have serious concerns about the accuracy of key data, the
misleading way in which information is presented, and the soundness of
methodologies employed to substantiate the draft report's conclusions.
We emphatically dispute the draft report's contention that the 33
federal courthouses completed since 2000 have 3.56 million square feet
of unnecessary and wasted space; and we have grave doubts about the
validity and viability of the courtroom-sharing model developed by
GAO. [See comment 1]
We are also deeply troubled that the draft report issued by the GAO
under strict disclosure restrictions was released to the public by GAO
as its testimony to Congress on May 25, 2010, before Judiciary and GSA
officials had provided comments. Additionally, after hearing GSA's and
the Judiciary's testimony before the House Subcommittee on Economic
Development, Public Buildings and Emergency Management of the
Committee on Transportation and Infrastructure disputing key facts
underlying the draft report's conclusions, you nevertheless discussed
those conclusions on Federal News Radio. [See comment 2]
This letter describes concerns related to those aspects of the draft
report that pertain directly to the Federal Judiciary's programs and
policies. A companion Judiciary response is enclosed in the form of a
letter from the Honorable Loretta A. Preska, Chief Judge. United
States District Court for the Southern District of New York. Chief
Judge Preska's letter decries GAO's misleading characterization of her
district's temporary experience with courtroom sharing as proof of the
long-term efficacy of sharing by district judges (as asserted by GAO
obliquely in the draft report and explicitly at the May 25 hearing);
and it refutes the accuracy of the draft report's portrayal of an
expert-panel discussion in which she participated. The draft report
also covers important issues that are under the purview of the GSA,
which will be responding separately. [See comment 3]
We appreciate that the internal review process within GAO strives to
ensure the objectivity and fairness of reports as well as the accuracy
of facts and analyses. It is worrisome, however, that a senior member
of the GAO audit team disclosed a predilection for a particular
outcome when he told a group of Judiciary officials that more
courtroom sharing would be coming and there would be no point in
arguing against it. It appears that the audit team's zeal to meet
certain objectives may have compromised its ability to be entirely
objective and fair. It may be too late to change false impressions
already generated by the premature disclosure and discussion of an
unreviewed draft report, but it is not too late to make corrections
and you expressed a willingness to do this during the May 25 hearing.
We hope these comments will be helpful to GAO to produce a final
product that will satisfy its high standards of quality. objectivity,
and fairness. Primary issues are outlined below, followed by more
detailed analysis. [See comment 4]
* For the 33 courthouses studied by GAO, the Judiciary's courtroom
policies in effect at that time were used to determine the number of
courtrooms needed in each facility and these numbers were authorized
by Congress. Those policies provided a courtroom for each judge.
Auditors typically review actions and operations against the policies
and rules in effect at the time. Instead, GAO has manufactured its own
rules in the course of this study regarding how many courtrooms it
thinks should be provided to judges, and it has applied these untested
and unapproved rules retroactively to the 33 courthouses that were
already built. The report attributes to this made-up concept 946,000
excess square feet. [See comment 5]
* Because of GAO's retroactive application of its notion about
courtroom sharing, this draft has defined as excess and wasted space
courtrooms that currently are assigned to and used daily by federal
judges. This is not reasonable. [See comment 6]
* It is misleading to suggest that 887,000 extra square feet exist
because of inaccurate estimates of judges for the 33 courthouses
studied. GAO's snapshot approach to counting heads simply does not
provide a complete picture. For example, the draft report supports
its conclusion that the Judiciary's planning process overstates the
need for judges by showing photographs of unassigned chambers' suites
in the Coyle Courthouse in Fresno, California (on p. 29). The Eastern
District of California is desperately in need of additional judges.
Its caseload per judge is the highest in the nation (with over 1000
cases per district judge, it has twice the national average caseload),
and additional judgeships arc currently pending approval by Congress.
To suggest that those empty chambers are because of poor planning or
are unneeded is absurd. [See comment 7]
* The draft report focuses a great deal of attention on courtrooms,
but nowhere in the report is a table indicating the numbers of
courtrooms and judges in the courthouses studied. [See comment 8] For
a fact-based analysis of courtrooms, the absence of such vital data is
surprising. The facts present a different picture than what has been
suggested. Our analysis of facts (actual data on courtroom numbers,
current judges, existing vacancies, soon-to-be vacant authorized
positions, and pending new judgeships) indicates that for most of the
33 courthouses studied, either all courtrooms are assigned now, or
they will be shortly or n the next few years. Moreover, these
courthouses must suffice for many decades of occupancy. [See comment 9]
* Based on the limited information provided about the simulation
model, it is highly doubtful that GAO's courtroom-sharing model is
sufficiently sound to he worthy of publishing, much less touted as an
alternative to the carefully studied courtroom-sharing policies that
have been promulgated over the last few years by the Judiciary.
Running a simulation model for courtroom sharing requires making a
large number of assumptions about case processing. It appears that the
model was developed without the involvement of any experts in the
judicial process and included some invalid assumptions. The draft
report does not describe this model in the level of detail typically
presented in research products to enable its assumptions and methods
to be critically scrutinized. GAO has steadfastly refused to provide
this information. Minutes after the May 25 hearing concluded, despite
the Subcommittee's request that the GAO work collaboratively with the
Judiciary and GSA and make available these assumptions, GAO pointedly
refused to share them. If the model is well-grounded, why has GAO
withheld this critical information? [See comment 10]
* GAO has suggested that a one-day confidential meeting of an expert
panel convened by GAO and the National Academy of Sciences helped to
develop assumptions used for the simulation model. All of the
Judiciary's participants in that panel have repudiated the
representation of the panel discussion that appears in the draft
report. A panel member's comprehensive and detailed critique is
enclosed with this response. [See comment 11]
* GAO's conclusions about feasible courtroom-sharing formulas do not
appear to be supported by the source data. For example, courtroom-
usage data provided by the Federal Judicial Center and used by GAO to
develop the model showed that courtrooms in the top quartile of use
during the study period had an average 6.6 hours of use per day. This
level of usage would appear to leave approximately one hour free in a
typical workday for other use. In a three-judge courthouse, for
example, if the judges each needed to use a courtroom for 6.6 hours
each day but had to share one or two courtrooms as suggested by GAO,
there clearly would be insufficient courtroom availability, and this
would result in serious delays in the administration of justice.
Additional details about these and other issues are provided below.
[See comment 12]
Evolution of the Judiciary's Facilities Planning Process:
The GAO report is critical of the Judiciary's planning process.
Predicting what will happen in the future is, to say the least,
challenging, and the GAO has recognized these challenges. A 1993 GAO
report titled, Federal Judiciary Space: Long-Range Planning Process
Needs Revision (GAO/GGD-93-132, Sept. 28, 1993), also noted that:
GAO recognizes that it is difficult to project future space needs with
precision. The projection of needs is not an exact science, and in the
final analysis, it is reasonable to expect some variation between the
estimate and what is actually needed. Space estimates are particularly
challenging for the judiciary because there are numerous factors that
cause changes in the workload, and therefore space needs, which are
beyond its control.
It can take upwards of 15-20 years from the time of initial planning
to occupancy of new federal courthouses. During that time
circumstances change: judgeship hills are not passed when anticipated,
judges do not take senior status when planned, and judges retire or
die. In addition, caseloads can fluctuate, prosecutorial policies
change, and federal jurisdiction can expand — all impacting the
workload of the federal courts. But once the decision is made to size
a building based on a certain set of assumptions, it becomes very
difficult and costly to change course mid-stream. To do so results in
expensive change orders and a building that is not likely to meet
longer-term needs.
The Judiciary was one of the first entities in government to establish
a systematic approach to space and facilities planning. In the mid-
1980s, the Judiciary began its formal facilities program to address
problems associated with outdated and antiquated courthouses, the need
for additional space to accommodate a growing Judiciary, and security
issues. We have continued to improve and refine our space-planning
process as additional data have been gathered and analyzed. Thus, the
methodologies used in planning the courthouses studied by GAO have
changed.
The Judiciary has been open to suggestions for improvements made by
outside entities, and has adopted recommendations previously made by
GAO and by private-sector consultants. Some of the improvements
include use of multiple forecasting methods, review of the accuracy of
the prior year's forecasts, and re-instituting the on-site planning
sessions in each district and comprehensive facility evaluations of
each courthouse. Perhaps most dramatically, the Judiciary stopped its
space planning process entirely in 2004 so that it could, once again,
re-evaluate its planning methodology with a view toward cost
containment. The Judicial Conference, the Judiciary's policymaking
body, determined that the long-range planning process should be
modified to ensure that the courts with the most urgent space needs
were highlighted. The courts now employ a new long-range facilities
management process known as Asset Management Planning to assess
facilities needs on a go-forward basis. The process was developed as
an objective methodology that identifies costs and benefits for
alternative housing solutions such as renovating existing space. We
have worked with the GSA to contain costs, including implementing cost
controls for the approval of deviations from space standards.
Amount of Excess Space:
The draft GAO report asserts that many courthouses have not been fully
occupied and it suggests that what it then deems to be "excess" space
constitutes a waste of funding. There arc several reasons to question
the validity of these conclusions. One key question concerns the
number of courtrooms and judges in these facilities. We analyzed the
33 buildings identified by GAO and found that in most of these
buildings, the number of courtrooms is either equal to the number of
judges in the building, or will be equal to or be very close to the
number of judges to be housed in the building once vacancies are
filled and required new judgeships are approved. [See comment 13] It
also appears from the draft report that GAO did not always take into
account congressionally authorized vacant judgeship positions in its
analysis. The building sizes authorized by Congress assumed that
vacant, congressionally authorized judgeship positions would be filled
at these locations, that senior district judges and magistrate judges
would not be sharing courtrooms, and that space would be provided for
future new judgeship positions. It is more appropriate to apply the
planning policies in place at the time to determine whether we met or
came close to our projections. [See comment 14]
Out of the 33 courthouses studied, GAO chose to highlight six (p. 28)
to demonstrate what appear to be large differences between planned and
actual numbers. It is not clear how GAO calculated the numbers in this
table. To provide a much simpler and understandable assessment of
whether there is excess space in these courthouses, we have produced a
table below that indicates for each courthouse the number of district,
magistrate and bankruptcy judges compared to the number of courtrooms
for these judges. The table below shows a very different picture. All
of the courtrooms in these facilities are expected to be assigned
within the next few years, and in three of the six courthouses there
will be fewer courtrooms than judges.
Table: Number of District and Bankruptcy Judges & Courtrooms at GAO's
Selected Courthouses (By 2016): [See comment 15]
Bryant/Prettyman CHs Washington, DC:
Current Number of Judges & Vacancies: 24;
Pending New Judgeships Anticipated: 0;
Judges Eligible for Senior Status by 2016: 9;
Possible Number of Judges by 2016: 33;
Current Number of Courtrooms: 27;
Surplus/Deficit Number of Courtrooms by 2016: (6).
Coyle CH, Fresno, CA:
Current Number of Judges & Vacancies: 10;
Pending New Judgeships Anticipated: 3;
Judges Eligible for Senior Status by 2016: 1;
Possible Number of Judges by 2016: 14;
Current Number of Courtrooms: 14;
Surplus/Deficit Number of Courtrooms by 2016: 0.
D'Amato CH Central Islip, NY:
Current Number of Judges & Vacancies: 15;
Pending New Judgeships Anticipated: 2;
Judges Eligible for Senior Status by 2016: 2;
Possible Number of Judges by 2016: 19;
Current Number of Courtrooms: 19;
Surplus/Deficit Number of Courtrooms by 2016: 0.
DeConcini CH Tucson, AZ:
Current Number of Judges & Vacancies: 12;
Pending New Judgeships Anticipated: 1;
Judges Eligible for Senior Status by 2016: 3;
Possible Number of Judges by 2016: 16;
Current Number of Courtrooms: 14;
Surplus/Deficit Number of Courtrooms by 2016: (2).
Eagleton CH St. Louis, MO:
Current Number of Judges & Vacancies: 19;
Pending New Judgeships Anticipated: 0;
Judges Eligible for Senior Status by 2016: 1;
Possible Number of Judges by 2016: 20;
Current Number of Courtrooms: 20;
Surplus/Deficit Number of Courtrooms by 2016: 0.
Ferguson/King Atkins CHs Miami, FL:
Current Number of Judges & Vacancies: 25;
Pending New Judgeships Anticipated: 1;
Judges Eligible for Senior Status by 2016: 7;
Possible Number of Judges by 2016: 33;
Current Number of Courtrooms: 27;
Surplus/Deficit Number of Courtrooms by 2016: (6).
Note: Our analysis includes all district, magistrate and bankruptcy
judge types and authorized vacancies not covered by recalled judges.
[End of table]
There are factual corrections previously provided to GAO in response
to a "Statement of Facts" that should be made. For example, GAO states
(on p. 31) that the U.S. District Court for the District of Columbia
had projected 14 senior judges by the end of the 10-year planning
period. [See comment 16] The correct projected number of senior
district judges is 7. Also, GAO incorrectly reports that the district
court currently has 9 fewer senior judges than estimated. The correct
number is I. Within the next 6 years, that district court will have 9
additional judges who will be eligible for senior status. On page 32,
the draft reports an incorrect figure. There are 5 not 4 pending new
district judgeships in the Eastern District of California. [See
comment 17]
As noted in the draft report, there are locations where we did not
meet our projections. Several of these buildings were planned at the
inception of our planning process -- a process that has evolved over
time. With the adoption of courtroom sharing policies for senior
district judges and magistrate judges approved by the Judicial
Conference in 2008 and 2009, many of these locations will now be able
to support the operations of the Judiciary and the U.S. Marshals
Service well beyond the initially planned 10-year time frame. It is
misleading to say that the space is "extra" because of incorrect judge
estimates. The space will be needed at some point in the
near future. It may not be needed until the 12th year or the 14th year
from the time design of the building started, but it will be needed.
[See comment 18]
The draft report charges that "the Judiciary's method of estimating
judges does not account for uncertainty in when judges will take
senior status and in how many new judgeships will be authorized." To
account accurately for "uncertainty" would seem to he an oxymoron. The
draft report states that the Judiciary's estimates were based on
"unsupported assumptions about the amount of time it would take to
obtain authorizations for new judgeships." This is false. When the
courthouses studied by GAO were planned, Congress regularly enacted
new judgeship legislation. In fact, up until 1990, Congress had passed
comprehensive judgeship legislation about every six years, including
1978, 1984, and 1990: These hills added hundreds of new judgeships to
the courts, and this history formed a reasonable basis for the
planning assumptions. Likewise, history regarding when eligible
judges, on average, tended to take senior status formed the basis for
the planning assumptions. [See comment 19]
Although Congress has not passed regular comprehensive judgeship
legislation in recent years, in the past two decades, the Judiciary
has gained 103 district judgeships, 61 bankruptcy judges, and 210
magistrate judges. The draft GAO report criticizes the Judiciary for
continuing to plan space for new judgeships — however, if Congress had
enacted our requests, as they had historically done, and we had not
planned chambers and courtrooms for these judges, there would have
been a critical shortfall of space around the country.
The draft report incorrectly characterizes space provided for visiting
judges by stating that it is a way of building "extra" space (p. 30).
In smaller courts with few judges, it is not unusual to have all the
Article III judges recuse themselves because of a connection or
conflict with one of the parties. In other courts, judges are assigned
from other districts or circuits to assist with a surge in workload.
And, in some courts, judges travel from one division within a district
to another because there are not enough judges at any one location to
handle the caseload. When these circumstances exist, smaller chambers
and sometimes a courtroom dedicated to use by visiting judges is
provided. Characterizing this space as "extra" space because it is not
assigned to a specific judge demonstrates a fundamental
misunderstanding of how the judicial system operates at some
locations. [See comment 20]
We are sensitive to the costs of constructing courthouses, and we are
willing to consider reasonable changes to our planning assumptions to
reduce the risk of significant over-projections of future needs.
Failing to take into account requested judgeships that are already
needed because of existing caseload, but that have not yet been
authorized by Congress, would he imprudent.
Most courthouses are occupied for many decades. To employ a planning
process that could never result in unassigned space would be extremely
shortsighted, would risk having inadequate capacity to house needed
judges and staff for the future, and would therefore reduce the useful
life of these courthouses. [See comment 21]
Courtroom Sharing:
The Judicial Conference has adopted several significant policy changes
that included a policy to provide one courtroom for every two senior
judges, and a policy to provide one courtroom for every two magistrate
judges. In addition, a courtroom usage study of bankruptcy courts is
currently underway and after a determination is made regarding the
bankruptcy courts, the Judiciary will consider a courtroom sharing
policy for courthouses with more than 10 active district judges. These
are major changes to the courtroom allocation policies for the Federal
Judiciary, which were made only after a great deal of consideration of
their impact on the litigation process and the delivery of justice.
While these policies were not in effect at the time the 33 courthouses
were planned, the Judiciary now applies its courtroom-sharing policies
to new planning efforts. These policies will result in substantial
cost savings. The draft GAO report proposes senior district judges and
magistrate judges sharing policies that differ from those endorsed by
the Judicial Conference. The draft GAO report also proposes a sharing
ratio for active district judges, a matter that the Judiciary is still
working on. The report provides practically no information about the
assumptions used to produce these results and nothing to support the
contention that a single ratio could apply in districts of all sizes.
Experience demonstrates that this cannot possibly work. [See comment
22]
The GAO proposals — articulated in a scant seven pages — are based on
two sources of information. One source is interviews of court
officials and an expert panel convened by GAO and the National Academy
of Sciences, which included federal judges and a court clerk who had
experience with courtroom sharing. GAO mischaracterizes many of the
participants' comments. [See comment 23] For example, the draft
asserts that a district court official said that "indicators of
courthouse efficiency ... increased when the judges of the court were
sharing." As noted in the enclosed comments from Chief Judge Loretta
A. Preska, this statement is completely contrary to what was said.
Chief Judge Preska's letter contains numerous examples of GAO's
misrepresentation of the panelists' views and GAO's interviews in that
district court. [See comment 24]
The other source of information is a computer model of the Federal
Judicial Center's study data that was developed for the GAO by a
contractor with no apparent claim to any particular expertise in
courts or the judicial system. As a result, the model does not reflect
the reality of what happens in the courtroom or the litigation
process. As with any type of modeling effort, the courtroom model must
be based on certain assumptions, the formulation of which requires
significant expertise and understanding of how courts actually work.
and the consideration of possible impacts on litigants, parties,
jurors and judges. The only key assumption identified by GAO in its
report that may have radically affected the outcome of the modeling is
noted in the appendix, i.e., that every courtroom should be in use for
10 hours every day. This is unrealistic and virtually impossible. It
inflates the work day by 25 percent. [See comment 25]
Federal employees of the court and DOJ are dedicated and may well work
long hours on a regular basis, but jurors, litigants, witnesses,
family members, and other parties would have trouble arranging their
schedules for the extra hours and may have difficulties arranging for
child care, or meeting other commitments that would be necessary if
normal work hours of 8:00 a.m. to 6:00 p.m. are assumed. This I 0-hour-
a-day assumption alone would have grossly distorted the resulting
courtroom sharing ratios. The draft report also contains incorrect
statements about trials (p. 42). Average trials per judge in 2008 were
20 trials.[Footnote 1] The median length of a trial was 3 days.
[Footnote 2] [See comment 26]
A courtroom is not simply a facility but an essential tool for the
delivery of justice. The application of courtroom usage data to
construct a simulation model may give the appearance of authentic
analysis, but the approach has serious logical and conceptual flaws,
primarily through what appears to be simplistic and unrealistic
assumptions. [See comment 27] An assessment of the need for courtrooms
was completed by Ernst & Young in 2000 as part of an Independent
Assessment of the Judiciary's Space and Facilities Program. That
report noted:
Planning for courtrooms and the impact of courtroom sharing is more
complex than a simple assessment of actual courtroom use would indicate.
Understanding the dynamics of the judicial process is fundamental to
any attempt to anticipate courtroom needs accurately and to use
courtrooms effectively. [See comment 28]
In describing factors that affect courtroom usage and needs, the 2000
Ernst & Young study concluded that it would be wrong to assume that
all of the hours spent by judges in a courthouse can be perfectly
redistributed across fewer courtrooms without adding a generous
allowance for flexibility. They indicated that such a factor is needed
because scheduling full utilization of courtrooms would require
conditions that do not exist in the judicial environment, namely,
greater certainty that scheduled events will occur; greater certainty
about event duration; adequate notice of all events; and the ability
to reschedule events to fill open courtroom time. [See comment 29]
As noted by Ernst &Young, it would be a false premise to assume that
judicial events are largely knowable and predictable. They are not. It
is one thing to plug into a mathematical model statistics about events
that have already occurred, but it is another matter altogether to
predict the duration of these events in advance. This would be
difficult, even for experts, because of the
inherent variability and uncertain nature of the judicial process.
Trial times can range significantly in length, and juries may
deliberate for minutes or many days. Not only is the duration of many
proceedings unpredictable, but only in a simulation model and not in
reality can a suddenly available courtroom be readily used for another
case. After the fact, one may know that a case concluded at noon and
the courtroom was free in the afternoon, but how foreseeable was that
circumstance? Perhaps it could have been foreseen the day before, but
probably not a month earlier. An average trial for a particular type
of case may take three or four days, but others will not. There is
considerable variability. A 1998 study by the National Center for
State Courts entitled On Trial: the Length of Civil and Criminal
Trials, demonstrated there were substantial differences in experienced
state court judges' and attorneys' estimates of trial length compared
to the actual length of the trials.
The draft report does not describe in any sufficient detail the
methodology and assumptions used to determine its recommended ratio of
judges to courtrooms. GAO did not provide the draft report to the
Federal Judicial Center, which is the Judiciary's research and
education entity, although GAO used the Federal Judicial Center's data
to develop its simulation model. [See comment 30] After review of
GAO's draft report, the Federal Judicial Center has provided the
following response:
The GAO's draft report provides little or no information about most of
the model elements....Thus, there is not enough information or details
about the simulation model, in general, or about the components of the
simulation, in particular, to allow the Center to make a constructive
technical assessment of the GAO's efforts to model and simulate
courtroom use in the district courts. It is possible, however, to
identify instances where this lack of detail raises questions about
the completeness and adaptability of the model and therefore the
ability of GAO's simulation to provide useful guidance for the
judiciary.
* According to the draft report (page 56 of Appendix l), the GAO used
discrete event simulation techniques, such as those discussed above,
to develop their simulation model of courtroom use. From the limited
information the report provides about the simulation, however, it is
difficult to determine exactly what elements were included in the GAO's
model. It is unclear, for example, what entities were defined (e.g.,
case proceedings, sessions of court) and whether different types of
entities were represented (e.g., were case proceedings differentiated
into trials and hearings). Decisions made about the elements of the
model are critical for the outcome of the modeling effort. The GAO
report provides little information about those decisions. [See comment
31]
* From the information given, it does not appear that the model
included the concept of cases or a caseload, either as a specific
entity of the model or as a parameter that could be varied in each
simulation. If the model does not include cases and caseloads, then
the simulation cannot estimate how changes in the model affect the
time to disposition for individual cases or how changes in caseload
affect courtroom use. The GAO report notes that the Center's study
"...showed no correlation between the number of weighted and un-
weighted cases filed in a courthouse and the amount of time courtrooms
are in use" (page 36). The study did, however, show a statistically
significant correlation between pending caseloads and courtroom use,
suggesting that cases and caseloads are important elements of a model.
(See the continuation of the Executive Summary table on page 4 of the
Center's report.) [See comment 32]
* The draft report notes that the model allowed for "...user input of
the number and types of judges and courtrooms," (page 56) so it seems
that both judges and courtrooms were identified as resources in the
model. But it is not clear how the coordination of judge and courtroom
availability was handled. In particular the report mentions that the
model was "...based on scheduled courtroom availability on weekdays
from 8 a.m. to 6 p.m." (page 56), but it does not mention what
schedules were used for judges. It also doesn't mention if those hours
of operation are typical for the federal courthouses they studied or
what the results would be if a typical operating schedule of less than
10 hours per day were assumed (e.g., if 8 hours per day were used).
[See comment 33]
* The draft report does not provide details on what processing
statistics were gathered during the simulation runs and only describes
the output measures of the simulation broadly ("...the output states
whether the utilization of the courtrooms does not exceed the
availability of the courtrooms in the long run." (page 56)). It is
unclear whether this means that all scheduled events were processed
each day as expected, or if it implies that events were sometimes
"bumped" from the day they were scheduled, but over the course of a
week or a month all events were eventually processed. Whether events
are processed on the same day as scheduled or over some longer period
is an important distinction decision makers would want to take into
account when determining the impact of changing the system. [See
comment 34]
* The draft report seems to imply that simulation runs were made for
different courthouse configurations and that these runs resulted in
different outcomes ("When using the model to determine the level of
sharing possible at each courthouse...(page 56)), but it provides no
specific information about what those outcomes were. The report also
recommends a single sharing configuration for each type of judge e.g.,
3 district judges to 2 district courtrooms — suggesting that level was
sufficient in every modeled situation. The report does not, however,
provide details that support a recommendation that a single ratio can
apply in districts of all sizes. [See comment 35]
* The draft report states that "The goal of the model was to determine
how many courtrooms are required for courtroom utilization rates
similar to that recorded by FJC." (page 56) The level of utilization
it seems to be referring to is the average use of a courtroom per day
based on actual use and unused scheduled time combined (e.g., 4.1
hours for courtrooms assigned to individual active district judges
(page 35)) reported by the Center in our report on Courtroom Use. The
average time per courtroom is not the only level of courtroom use that
was reported for the Center's study, however. In particular,
courtrooms in the upper quartile of use reported 6.6 hours per day on
average. (See the Executive Summary table on page 3 of the Center's
report on courtroom use.) [See comment 36] The draft report does not
appear to take into account the impact of a 3-to-2 courtroom sharing
ratio in situations where use is different than the average level of
use.
* The draft report describes GAO's efforts, with the assistance of the
National Academy of Sciences, to assemble a panel of judicial experts
to discuss the challenges to courtroom sharing (pages 40-41). However,
it does not appear that the expert panel had an opportunity to review
the GAO's model assumptions, decisions about entities and resources,
decisions about the processing statistics that should be collected and
reported, and so on. In other words, it does not appear that the
expert panel had an on-going role in development of the model. [See
comment 37]
Conclusion:
The Judiciary has already made great strides to reduce construction
and rent costs. We understand that we must use limited resources
wisely. The Judiciary and GSA will continue to work collaboratively as
we plan new court facilities with an emphasis on cost and function. We
will continue to look for ways to improve our planning methodologies.
We welcome constructive and feasible recommendations from the GAO and
will implement them as we have in the past. Also, the Judiciary will
continue to examine seriously courtroom needs based On a thorough and
considered analysis of data and its potential impact on the
administration of justice and the Judiciary's responsibility to
provide an impartial forum in which criminal prosecutions and civil
cases can be resolved in a just, speedy, and inexpensive manner.
GAO should consider carefully the Judiciary's comments (including
those of Chief Judge Preska and the Federal Judicial Center) as well
as those to be provided by the General Services Administration, to
make substantial, realistic, and informed modifications to the report.
Sincerely,
Singed by:
James C. Duff:
Director:
Enclosure:
Footnotes:
[1] Administrative Office of the United States Courts. 2008 Federal
Court Management Statistics, Washington, D.C., March 2009.
[2] Administrative Office of the United States Courts. 2008 Annual
Report of the Director: Judicial Business of the United States Courts,
Washington, D.C.: U.S. Government Printing Office, 2009.
United States District Court:
Southern District Of New York:
500 Pearl Street:
New York, New York 10007-1312:
Loretta A. Preska, Chief Judge:
212-805-0240:
Fax: 805-7941:
June 1, 2010:
Mr. Mark L. Goldstein:
Director, Physical Infrastructure Issues:
U.S. Government Accountability Office:
441 G Street, N.W.
Washington, DC 20548:
Re: Federal Courthouse Construction Draft:
Dear Mr. Goldstein:
Please accept this as a formal response to the draft report on Federal
Courthouse Construction (GA0-10-417) (the "Draft"). I request that
this letter be published in the final report. I participated in both
the Government Accountability Office ("GAO") visit to my courthouse
and the GAO/National Academy of Science panel discussion of September
14 on courtroom sharing ("Panel").
The Draft is disappointing in that it mischaracterizes, over-
simplifies, and omits important parts of the discussions that took
place at the Panel and at the meeting at the Moynihan Courthouse with
the GAO and members of the Third Branch. That the Draft relies on
those inaccuracies in reaching its conclusions is, I suggest, reason
to reject those conclusions. [See comment 38]
Panel of Experts:
As noted above, I participated in the "panel" of experts held in
Washington on September 14, 2009. I understand that the judiciary
panelists were selected as experts because of our practical experience
with courtroom sharing.
The Draft states as facts and relies on matters that, at least in this
district, are demonstrably incorrect. The Draft states at page 42 that
the median trial lasts one or two days. Using our district's jury
statistics for the six-month period from November, 2009 to April,
2010, the median civil trial lasted four days, and the median criminal
trial lasted seven days. The average civil trial lasted almost five-
and-a-half days, and the average criminal trial lasted eight days.
Indeed, trials in our district often last for weeks or months.
Statistics aside, in my seventeen years experience as a trial judge,
it takes a total of more than a full day to select a jury, sum up and
charge in the most simple criminal or civil case. Thus, the numbers
relied on in the Draft allow no time at all for the taking of evidence
in single-day jury cases and less than a day for the taking evidence
in two-day jury cases. For both reasons, these supposed statistics
about median trial length are demonstrably incorrect and thus provide
adequate grounds for rejecting the Draft. [See comment 29]
Even if these statistics were correct, the Draft oversimplifies the
facts by implying that trials are the only use for courtrooms. It
ignores conferences, oral arguments, evidentiary hearings, pleas and
sentencings. It is beyond peradventure that all these non-trial
activities, conducted in the courtroom, are necessary to the
disposition of any case. The incorrect implication that these
activities are not conducted in the courtroom infects the entire
analysis of the Draft. [See comment 40]
The Draft oversimplifies the disservice to the public of rescheduling
court proceedings by saying only that it costs the public time and
money (Draft at 41). While that is correct as far as it goes; it
ignores the severe difficulty, discussed at the Panel; that
rescheduling presents to our pro se litigants. Those litigants
generally are not easily reachable for notification of the
rescheduling and often must plan ahead to take a day off from work to
attend court proceedings. Rescheduling on the short notice apparently
contemplated by the "modeling techniques" employed by the Draft would
likely result in litigants' not receiving timely notice and thus being
required to take an additional day off. Unexpected changes in location
of a proceeding, even if on the same day at the same time, would
certainly result in pro se litigants' missing proceedings, causing
delay of the case and increasing the amount of pay lost to litigants
due to court appearances. On the criminal side, the Draft also omits
the damage (discussed at the Panel) that such rescheduling would cause
to transparency of criminal proceedings when a defendant's family and
friends are prevented from witnessing a trial, plea or sentencing.
[See comment 41]
The supposed mitigating effect of "coordination...as long as people
remain flexible and the lines of communication remain open" (Draft at
41) oversimplifies facts and ignores discussion at the Panel. It also
reflects a lack of understanding (or, in light of the specific
discussion at the Panel of these issues, a refusal to acknowledge) the
realities of what district judges do. As discussed at the Panel, a
great deal of time is expended in district judges' chambers attending
to scheduling and rescheduling of proceedings. Indeed, that activity
consumes much of the ordinary courtroom deputy's time—even without
courtroom sharing. What is unmentioned in the Draft, however, is the
unanimous view of the judges present at the Panel and at the Moynihan
Courthouse meeting that the kind of scheduling coordination that would
be necessary for substantial courtroom sharing would be entirely
unworkable and would result in serious disservice to the judicial
process and to the public we serve. While an easy palliative to
invoke, the call for increased coordination (and the observation at
page 41 that "court staff [in sharing arrangements] must work harder
than in non-sharing arrangements to coordinate with judges and all
involved parties to ensure that everyone is in the correct courtroom
at the correct time") fails (or refuses) to acknowledge the opinion of
the experienced judges in the trenches that it is easily said but
impossible to achieve on a long term basis. It is also remarkable that
factual information provided by a Clerk of Court on the Panel about
the negative effect of courtroom sharing on case disposition times has
been described in the Draft (at page 41) as an efficiency improvement.
The Draft cites only those "facts" that support the desired outcome
and ignores the impossibility imposed by reality and brought to the
drafters' attention by the judges who do this every day. [See comment
42]
The supposed mitigating effect of technology discussed at page 43
misstates what was said at the Panel and relates "facts" that show a
Serious lack of understanding of what goes on in a trial in a district
court. At the Panel, the participants discussed greater use of
videoconferencing in non-jury matters as a way to save courthouse
construction costs. For example, it was discussed that some courts
have eliminated the need for an additional place of holding bankruptcy
court by use of videoconferencing from a normal room in a remote
location to the bankruptcy courthouse. The Panel mentioned, as does
the Draft,[Footnote 1] the cost savings associated with conferences,
including Rule 16 conferences and other pretrial conferences with
incarcerated parties (although these savings are in time and travel
costs because these conferences also take place from the courtroom).
So far, so good. The unremarkable observation in the Draft that
"increased technology saves money, it expedites general processing
because documents can be submitted to the court electronically" (at
page 43) has nothing whatsoever to do with courtroom sharing. The
final observation in the Draft on this topic (at page 43) is "Another
judge said that if less money were spent on space, more could be spent
on technological upgrades to increase flexibility and increase the
ability to share space among judges." First, I do not recall hearing
that comment, but, of course, it could have been made at a session 1
did not attend. Second, the comment is a meaningless non-sequitur.
Third, and most importantly, by implying that technology will decrease
courtroom usage, the Draft is seriously misleading. The Draft fails to
mention that Rule 43 of the Rules of Criminal Procedure specifically
requires that the defendant be present in the courtroom at the initial
appearance, initial arraignment and every trial day. Indeed, in the
'Second Circuit, a plea and a sentencing NOT held in a courtroom (but
in the adjacent robing room) Were reversed. See United States v.
Alcantara, 396 F.3d 189 (2d Cir. 2005). Thus, the technology section
of the Draft is at least irrelevant and at worst misleading. [See
comment 43]
Discussion at the Moynihan Courthouse The Draft states categorically
that "judges with experience in sharing courtrooms said that they
overcame the challenges when necessary and trials were never postponed
because of sharing." I suggest that the authors are cherry-picking the
facts here. For example, the reason my court, the Southern District of
New York, was chosen for a site visit is that our court is
currently engaged in limited courtroom sharing (about ten judges
total) because of the on-going renovation of our second courthouse at
Foley Square, the Thurgood Marshall Courthouse, with the resulting
scarcity of courtrooms. Both at the Panel and during the interview GAO
personnel conducted in New York with judges who are sharing (at which,
as noted above, I was present), it was stated that this limited
sharing is only workable because of collegiality, that is, the sharing
pairs were carefully chosen for compatibility of workload and
personality. While the Draft does mention the word "collegiality,"
stating at page 41 that "[judges that share courtrooms in one district
also said that coordination is easier when there is a great deal of
collegiality among judges," it omits the point made at the discussion
in the Moynihan Courthouse. Perhaps the Draft is making reference to
remarks made in some other district, but, even if it is, it fails to
convey accurately the statements of judges in our district who
actually do share courtrooms and the statement that I made at the
Panel. The careful pairing of judges on which the temporary sharing in
the Moynihan Courthouse is proceeding cannot be replicated in the
widespread sharing urged in the Draft.
The Draft discusses alternating chambers with courtroom floors (Draft
at 41-42) stating that such design "may be more conducive to
collegiality and sharing." First, collegiality is not the issue here.
Second, courtroom floors and chambers floors DO alternate in the
Moynihan courthouse, and that has no effect on our view that courtroom
sharing to the extent contemplated in the Draft is not a viable option
among active judges and should be subject to local exemption for
senior judges. While some designs might, in fact, be more conducive to
courtroom sharing without unduly increasing security risks (for
example, perimeter chambers around several courtrooms of varying
sizes), alternating courtroom and chambers floors is not one of them.
The observation that "this design breaks the apparent association of
chambers with specific courtrooms without significantly increasing the
distance from chambers to courtrooms" is simply irrelevant. [See
comment 44]
The Model:
In support of its conclusion that "GAO's courtroom sharing model shows
that there is sufficient unscheduled time for 3 district judges to
share two courtrooms and 3 senior judges to share 1 courtroom" (Draft
at 1), the Draft relies on a computer simulation model. In describing
the creation of that Model, the Draft states:
To create a simulation model, we contracted for the services of a firm
with expertise in discrete events simulations modeling. This
consulting engineering services and technology firm uses advanced
computer modeling and visualization and other techniques to maximize
throughput, improve system flow, and reduce capital and operating
expenses. Working with the contractor, we discussed assumptions made
for the inputs of the model and verified the output with in-house data
experts. We designed this sharing model in conjunction with a
specialist in discrete event simulation and the company that designed
the simulation software to ensure that the model conformed to
generally accepted simulation modeling standards and was reasonable
for the federal court system. The model was also verified with the
creator of the software to ensure proper use and model specification.
Simulation is widely used in modeling any system where there is
competition for scarce resources. The goal of the model was to
determine how many courtrooms are required for courtroom utilization
rates similar to that recorded by FJC. This determination is based on
data for all courtroom use time collected by FJC, including time when
the courtroom was scheduled to be used but the event was canceled
within 1 week of the scheduled date. (Draft at 56.)
This description is, I suggest, merely gibberish and fails to inform
the reader about precisely what assumptions were made and the method
employed. To the extent that any assumptions are stated, the Draft
states that it is "based on scheduled courtroom availability on
weekdays from 8 a.m. to 6 p.m." (Draft at 56). First, these hours of
operation are wholly unrealistic. Assuming that jurors would not be
required to serve from 8 a.m. to 6 p.m., but only during a portion of
that time, it is unrealistic to expect any juror to appear ready to
start a trial by 8 a.m or to serve until 6 p.m. Many jurors have
children who need to be attended to and cannot appear in Court by 8
a.m. or sit until 6 p.m.[Footnote 2] [See comment 45]
Assuming that the Model contemplates jury trials running in shifts,
for example, 8 a.m. to 1 p.m. and I p.m. to 6 p.m., such shifts would
close to double the time it takes to try any case, thus vastly
increasing the cost to the litigants. There is already public outcry
over the cost of litigation,[Footnote 3] and doubling the cost of
trial would be a severe injustice to the public we serve. [See comment
46]
Finally, from the scant description of the Model presented in the
Draft and from the conversation at the Panel, I infer that the Model
assumes all court proceedings arc the same in kind and manner. Such
treatment is directly contrary to fact and, more importantly for these
purposes, contrary to the specific discussion at the Panel.
Participants of the Panel specifically stated that courtroom
proceedings are not interchangeable, especially trials and other
evidentiary proceedings. A preliminary injunction hearing, for
example, is by definition of great urgency and ordinarily must proceed
from day to day until complete. Also, considering all trials as
portable—subject to movement from courtroom to courtroom—is
inaccurate. Even the Draft acknowledges (at page 35) that some
courtroom use involves attorney set-up and break-down time (although
the Draft incorrectly considered this as an "event not related to case
proceedings"). These days, almost all trials involve the presentation
of some evidence by electronic means, and lawyers (more likely
computer contractors) spend time in advance of trial setting up their
equipment for presentation of evidence electronically and time after
trial taking it down. Most trials also involve boxes of files and
other materials that are stored in the courtroom or in the hall
outside the courtroom for ready access by counsel throughout the
trial. Counsel's need for electronic equipment for presentation of
evidence and for access to hard copy materials cannot be accommodated
when the courtroom changes during a trial. [See comment 47]
Conclusion:
The authors of the Draft have not reported accurately the statements
of even those they recognize as experts—the members of the Panel and
the participants in the site visit to the Moynihan Courthouse. To the
extent that the assumptions and techniques used in the modeling were
disclosed, they are counter-factual, according to the same experts.
Thus, the Draft is without foundation and, I suggest, should be
rejected.
Moreover, the Draft relics on only one metric—efficiency. While
efficiency is a fair factor to be considered, it is only one. Less
susceptible to quantitative measurement, however, is a more important
consideration—delivery of justice to the citizens of this country. 1
suggest that doing so in a user-friendly manner is inherently
inefficient and thus that efficiency is only one of many factors to he
considered. [See comment 48]
Very truly yours,
Signed by:
Loretta A. Preska:
Footnotes:
[1] On this topic, the Draft states: "Technology makes certain
conferences easier through the use of teleconferences and
videoconferencing. One judge said that videoconferencing with a
defendant who was being held in prison hundreds of miles away saved
potentially thousands of dollars." (Draft at 43).
[2] In New York State Courts, jurors generally commence service
between 8:30 and 9:00 a.m. and are generally dismissed between 4:00
and 4:30 p.m. The State Courts only draw jurors from a single county,
however, while the SDNY draws jurors from eight counties, including
from the cities of Poughkeepsie (85 miles) and Monticello (94 miles).
[3] See Institute For The Advancement Of The American Legal System,
Civil Litigation Survey Of Chief Legal Officers And General Counsel
Belonging To The Association Of Corporate Counsel 17 (2010), available
at [hyperlink, http://www.du.edu/legalinstitutelformchieflegal.html]
("An astonishing 97% of respondents responded that the system is 'too
expensive,' with 78% expressing strong agreement.").
The following are GAO's comments on the Federal Judiciary letters
dated June 1, 2010. stated:
GAO Comments:
1. In commenting on our draft report, the Administrative Office of the
U.S. Courts (AOUSC) stated that it has concerns about the accuracy of
key data, the presentation of information, and the soundness of the
methodologies used. We drew the key facts in our report--the size of
courthouses, the number of judges estimated, and the number of current
judges--from judiciary and GSA documents. In this report and all of
its Products, GAO adheres to generally accepted government auditing
standards, which ensure the accuracy and relevance of the facts within
this report. These standards include a layered approach to fact
validation that includes supervisory review of all work papers,
independent verification of the facts within the report, and the
judiciary's review of the facts prior to the draft report's release
for agency comment. For example, our conclusion that the 33
courthouses completed since 2000 contain 3.56 million extra square
feet was based on our analysis of the original documents related to
all 33 courthouses. The data supporting our analysis were traced and
verified, independently checked by analysts who were not part of the
engagement team, and reviewed and approved by experts in the relevant
methodologies. As a result of this strong fact checking and review
process, we are confident in our presentation of the facts in this
report. We will address AOUSC's additional points in the pages that
follow. However, we did not refer to this extra space as "wasted" in
our draft report as AOUSC indicates in its letter.
2. AOUSC indicated that it was troubled by our release of the report's
preliminary findings at a May 25, 2010, hearing and in a related media
report before the judiciary and the General Services Administration
(GSA) could comment. We were asked to testify on our preliminary
findings by the same committee that requested the report, which is
well within the committee's purview under GAO's Congressional
Protocols. We made it clear that these findings were preliminary
because AOUSC and GSA had not yet had an opportunity to comment on
them. We provided the draft report to the judiciary and GSA on April
29--almost a month before the hearing--and we notified them of the
hearing and invited the judiciary and GSA to provide comments before
the hearing. Both the judiciary and GSA declined. Responding to press
inquiries following a hearing is also a standard part of our work, and
in doing so we stated that our findings were preliminary at that time.
We do not have control over what media outlets choose to report.
3. AOUSC noted that Chief District Judge Loretta Preska indicated in
an attached letter that GAO misleadingly characterized her experiences
and the statements of the expert panel in which she participated. We
visited numerous courthouses in addition to the judge's, and Judge
Preska was present only for the 1-day portion of our panel, not the
subsequent interviews with experts who could not attend the 1-day
panel. As stated in the report, some experts were unable to attend the
1-day session, and we interviewed them separately.
4. AOUSC stated that a senior GAO team member revealed his bias toward
courtroom sharing with a group of judiciary officials (which was
during the 1-day portion of the expert panel). This is not the case.
In framing the discussion surrounding the issue of courtroom sharing
at the 1-day panel discussion, the GAO team member correctly cited the
Judicial Conference's new policy requiring courtroom sharing in future
courthouses, not his own views on the subject.
5. AOUSC said that at the time the 33 courthouses we reviewed were
planned, the judiciary's policy was for judges not to share courtrooms
and that it would be more appropriate for us to apply that policy. Our
congressional requesters specifically asked that we consider how a
courtroom sharing policy could have changed the amount of space needed
in these courthouses. However, our draft and final reports indicate
that the judiciary's policy at the time was largely to provide one
courtroom per judge.
6. AOUSC suggested that our report describes the extra space we
identified as wasted--a term that does not appear in either the draft
or the final report. We also indicated in the report that we did not
evaluate how much of the extra space was unused. We used judiciary-
generated data on courtroom scheduling and use to determine how many
courtrooms the judiciary actually needed in order to illustrate how
courthouses could support the same number of judges with fewer
courtrooms.
7. AOUSC indicated that some extra courtrooms exist because the
judiciary did not receive all the new judge authorizations it
requested. We recognize, and our draft and final reports indicate,
that some of the extra courtrooms reflect the historic trend that the
judiciary has not received all the additional authorized judges it has
requested.
8. According to AOUSC, the draft report does not indicate how many
courtrooms are in the courthouses we reviewed. This is correct. Our
report instead focuses on the number of square feet in the
courthouses, which includes all space, not just courtroom space.
9. AOUSC drew conclusions related to the accuracy of its judge
estimates that are very different from ours in several key ways and
may partly illustrate why the judiciary consistently overestimates its
need for judges.
* The judiciary used "soon-to-be vacant authorized positions" in its
analysis but provides no criteria for what constitutes such a
position. However, the judiciary's previous estimates showed that all
of the 28 courthouses that have met or exceeded their 10-year planning
window should now be fully occupied.
* The judiciary also included "additional pending judgeships" in its
count, which assumes immediate congressional approval of all requested
judgeships. Moreover, the judiciary inappropriately made assumptions
about where the new judgeships will be located. However, Congress has
not passed comprehensive judgeship legislation in 20 years, and new
judges are authorized for a district, not for a specific courthouse.
* The judiciary also implied that having a vacancy is equivalent to
having an authorized judgeship, which is not the case. The nomination
and confirmation process, as the judiciary agrees, can be lengthy.
10. AOUSC questioned the development of our courtroom sharing model
and what it said was our refusal to release critical elements for
review. Early in the engagement, we spoke with officials from the
Federal Judicial Center (FJC) about how FJC's data could be used to
develop a courtroom sharing model. Contrary to the judiciary's
contention, we have not withheld any information critical to
understanding or replicating the model. We carefully documented the
data and parameters throughout our report so that our model could be
replicated by anyone with access to the judiciary's data and
familiarity with discrete event simulation modeling techniques. We
confirmed this was the case with simulation model experts. We do not
recommend that the judiciary use our model, but, instead, institute
courtroom sharing policies that more fully reflect the actual
scheduling and use of district courtrooms. Our model provides one
option for how to accomplish this. In doing so, our model incorporates
the judiciary's courtroom sharing and usage data, and the model's
parameters are based on detailed discussions with judges, other
judicial experts whose views we obtained through a 1-day panel or
additional interviews, and visits to districts with experience in
sharing courtrooms. To date, the judiciary has not applied computer
modeling techniques for courtroom sharing in developing its sharing
policies, even though it gathered the data on courtroom scheduling
with that purpose in mind.
11. AOUSC questioned our characterization of the expert panel convened
by the National Academy of Sciences and their contribution to the
courtroom sharing model. As stated earlier, the panel consisted of a 1-
day session with experts and individual interviews with the remaining
experts who could not attend. We used an official transcript of the
statements from the 1-day panel to support the facts in our report,
and none of the experts at the 1-day session participated in the
individual interviews. As a result, none of the individual experts can
draw conclusions about our overall characterization of all panelists'
views.
12. AOUSC questioned the feasibility of our courtroom sharing model
based on the level of use of courtrooms in the top quartile of use. As
we state in the report, we did not analyze the usage data by
courtroom, but rather by courthouse, since courtrooms are used to
varying degrees. In that way, our model is based on the real use of
courtrooms in the courthouses where they are located and not on an
artificial collection of the most-used individual courtrooms
nationwide. In addition, the judiciary data incorporated variations
across the country and included some sensitivity analysis as noted in
our report.
13. AOUSC noted that it conducted its own analysis of the numbers of
courtrooms and judges in the 33 courthouses completed since 2000. The
judiciary's analysis was very different from ours and highlighted some
of the reasons the judiciary may overestimate the number of judges it
will have in a courthouse after 10 years.
* The judiciary counts judgeships that have not yet been authorized by
Congress. We chose to count only the judgeships that are currently
authorized because the judiciary has historically not received many of
the judgeships it has requested and new judges are authorized for
districts, which include multiple locations, not for individual
courthouses.
* The judiciary appears to count vacancies that are not linked to a
specific location. We chose to count only the vacancies that the
judiciary's data indicated were assigned to a specific courthouse
because the other vacancies are districtwide, making it inappropriate
to assume which specific courthouse a new judge would be assigned to
once the judge was appointed and confirmed.
14. See comment 5.
15. AOUSC produced a table showing that, according to its projections,
the six case study courthouses that have met or exceeded their 10-year
planning period will be fully utilized by 2016. AOUSC's analysis is
flawed in several important ways.
* The judiciary extended its own 10-year planning period to 2016--a
date that is 16 to 25 years after the planning of each courthouse. The
judiciary had projected, as part of its justification for a new
courthouse, that each of these courthouses would already be fully
utilized. Moving the deadline out to 2016 more than doubles the number
of years that the judiciary indicated it needed to fill some of these
courthouses.
* The judiciary counted judgeships that have not yet been authorized
by Congress. We chose to count only the judgeships that are currently
authorized because the judiciary has historically not received many of
the judgeships it has requested and new judges are authorized for
districts, which include multiple locations, not for individual
courthouses.
* The judiciary appeared to count vacancies that are not linked to a
specific location. We chose to count only the vacancies that the
judiciary's data indicated were assigned to a specific building. The
judiciary's data show that several vacancies are districtwide, making
it inappropriate to assume which specific courthouse a new judge would
be assigned to once the judge was appointed and confirmed.
* The judiciary assumed that all judges would take senior status as
soon as they were eligible, that no current senior judges would leave
the bench, and that all vacancies would be immediately filled by newly
appointed and confirmed judges. These assumptions are unlikely. As the
judiciary has told us, many judges do not take senior status
immediately, others leave the bench, and the nomination and
confirmation processes can take years.
The judiciary's methodological decisions led to counting the maximum
number of judges a courthouse could have by a certain date, not the
number it is likely to have by that date. As a result, the judiciary
has overestimated by 26 percent the number of judges it should have in
the courthouses completed since 2000.
16. AOUSC noted that it suggested changing the number of judges the
District of Columbia projected from 14 to 7 when it was planning what
would become the Bryant Courthouse Annex. However, we did not make
that change because the planning documents used to justify the new
building clearly indicate that the number of senior judges used to
develop the 10-year estimate for that location was 14, and the
judiciary did not provide any documentary evidence to support its
contention that the number was actually 7.
17. According to AOUSC, we incorrectly identified the number of
pending district judgeships in the Eastern District of California as 4
when, AOUSC says, the actual number is 5. AOUSC is incorrect. The 2009
Federal Judgeship Bill includes language that would, if passed as
currently written, increase the number of authorized judgeships in the
Eastern District of California by 4. The other judgeship, if approved,
would be temporary and would not increase the number of authorized
permanent judgeships in the district. We chose not to count temporary
judgeships as permanent, in part because the judges in the Eastern
District of California told us during our visit that the last
temporary judgeship in the district was lost because it was not
converted into a permanent judgeship through an act of Congress.
18. AOUSC noted that judges will eventually fill the vacancies within
the courthouses we identified. This may be the case, but the judiciary
has established the 10-year planning period as a reasonable time frame
for estimating its new courthouse needs. Many of the courthouses in
our study are well past the 10-year period and have still not met
their 10-year estimate for judges. For example, planning for the
Eagleton U.S. Courthouse in St. Louis, Missouri, began 16 years ago,
but the courthouse remains 9 authorized judgeships short of the
judiciary's 10-year estimate.
19. AOUSC stated that it expected Congress to approve new judgeships
on a regular basis because it had done so in previous years. Our
report acknowledges the challenges associated with estimating
judgeships and suggests that the judiciary incorporate some of the
realities of the current process into its estimates. One of those
realities is that Congress has not passed comprehensive judgeship
legislation for 20 years. The judiciary has, instead, planned for the
maximum number of possible judges after 10 years, which has led it to
overestimate the number of judges by 26 percent and to construct far
more courthouse space than needed.
20. AOUSC stated that we incorrectly characterize space for visiting
judges as extra. Our decision to refer to this space as extra is based
on the judiciary's policy, which is to exclude estimates of space
needs for visiting judges in courthouse planning.
21. AOUSC stated that it is prudent to plan for unauthorized
judgeships when caseloads support the need for a new judge. Our
conclusion is that the judiciary can improve its judge estimation
process for three reasons stated in our report: First, the judiciary's
caseload projections have not always been correct. Second, Congress
has not passed comprehensive judgeship legislation in the last 20
years and has recently questioned the reliability of weighted caseload
as a workload indicator. Third, in measuring the effectiveness of the
judiciary's space planning, we applied the judiciary's criteria, which
includes the number of authorized judgeships and senior judges that
will be located in a facility after 10 years.
22. According to AOUSC, our report provides practically no information
about the assumptions we used to produce the results of our sharing
scenarios. However, the report provides information about the
assumptions used to create the model in sufficient detail to replicate
the model. Both a senior methodologist and the contractor hired to
develop the model stated that the model could be replicated by an
expert in discrete event simulation with the information included in
the report.
* As noted in the report, we used data that were nationally
representative of courtroom use and scheduling, which the Federal
Judicial Center (FJC) collected for a discrete event simulation model.
When creating the simulation model, we used all data capturing the
time a courtroom was actually used, including time for education,
training, set-up and take-down, and maintenance, as well as for all
case proceedings. Above and beyond modeling all the time the
courtrooms were reported to be used, we also incorporated all unused
scheduled time. Thus, if an event was scheduled to take place over 4
days, but lasted only 2 days, the remaining unused scheduled time was
still included in the model as time a courtroom was not available for
other events. This was done in recognition of the experts' concerns
about the uncertainty involved in the judiciary's scheduling.
* As noted in the report, when modeling, we allowed the courtroom to
be in use for 10 hours a day. We do not presume that people could or
should work 10 hours a day, but rather that the courtroom is available
for a variety of uses between 8:00 a.m. and 6:00 p.m. We recognize
that judges hold events at various times throughout the day to best
serve the interests of parties and the public, and assuming that
courtrooms are available for 10 hours a day allows for activities in
addition to judicial proceedings. For example, materials may be
brought into a courtroom before trial, staff training and educational
tours may take place, and maintenance may be performed. We did not cut
the time in which a courtroom was in use for these types of activities
and, therefore, it would have been unrealistic to limit the time a
courtroom can be used to less than the 10 hours.
* For modeling purposes, we also developed two different sharing
scenarios. In the first scenario, dedicated sharing, specific judges
are assigned to courtrooms. In applying the model under dedicated
sharing, we considered several base levels of sharing that work in all
instances, according to the data. Please see table 5 in the report for
a list of these results. In the second scenario, centralized sharing,
all courtrooms are open to all judges, and significant efficiencies
are gained. We have included the following tables (tables 8-11) to
illustrate these efficiencies. The tables were prepared using our
courthouse sharing model at the request of the House Transportation
and Infrastructure Committee Subcommittee on Economic Development,
Public Buildings, and Emergency Management following a hearing on May
25, 2010. They show the efficiencies gained through centralized
sharing based on increases in the numbers of district judges, senior
judges, and magistrate judges, respectively. Table 11 provides the
results of our model for entire hypothetic courthouses, based on the
nationwide ratios of district judges to senior and magistrate judges,
when all judges have centralized access to all courtrooms. The tables
illustrate the potential of courtroom sharing to reduce the number of
courtrooms needed. It is up to the judiciary to determine how much
sharing is possible as indicated in our recommendation.
Table 8: Courtroom Sharing for District Judges Based on Centralized
Sharing:
Number of district judges: 3;
Number of district courtrooms needed: 2;
Courtrooms per judge: 0.67;
Per-room utility[A]: 89%.
Number of district judges: 4;
Number of district courtrooms needed: 3;
Courtrooms per judge: 0.75;
Per-room utility[A]: 78%.
Number of district judges: 5;
Number of district courtrooms needed: 4;
Courtrooms per judge: 0.80;
Per-room utility[A]: 74%.
Number of district judges: 6;
Number of district courtrooms needed: 4;
Courtrooms per judge: 0.67;
Per-room utility[A]: 88%.
Number of district judges: 7;
Number of district courtrooms needed: 5;
Courtrooms per judge: 0.71;
Per-room utility[A]: 84%.
Number of district judges: 8;
Number of district courtrooms needed: 5;
Courtrooms per judge: 0.63;
Per-room utility[A]: 94%.
Number of district judges: 9;
Number of district courtrooms needed: 6;
Courtrooms per judge: 0.67;
Per-room utility[A]: 89%.
Number of district judges: 10;
Number of district courtrooms needed: 7;
Courtrooms per judge: 0.70;
Per-room utility[A]: 85%.
Number of district judges: 11;
Number of district courtrooms needed: 7;
Courtrooms per judge: 0.64;
Per-room utility[A]: 92%.
Number of district judges: 12;
Number of district courtrooms needed: 8;
Courtrooms per judge: 0.67;
Per-room utility[A]: 88%.
Number of district judges: 13;
Number of district courtrooms needed: 8;
Courtrooms per judge: 0.62;
Per-room utility[A]: 95%.
Number of district judges: 14;
Number of district courtrooms needed: 9;
Courtrooms per judge: 0.64;
Per-room utility[A]: 91.
Number of district judges: 15;
Number of district courtrooms needed: 10;
Courtrooms per judge: 0.67;
Per-room utility[A]: 89%.
Number of district judges: 16;
Number of district courtrooms needed: 10;
Courtrooms per judge: 0.63;
Per-room utility[A]: 93%.
Number of district judges: 17;
Number of district courtrooms needed: 11;
Courtrooms per judge: 0.65;
Per-room utility[A]: 91%.
Number of district judges: 18;
Number of district courtrooms needed: 12;
Courtrooms per judge: 0.67;
Per-room utility[A]: 89%.
Number of district judges: 19;
Number of district courtrooms needed: 12;
Courtrooms per judge: 0.63;
Per-room utility[A]: 93%.
Number of district judges: 20;
Number of district courtrooms needed: 13;
Courtrooms per judge: 0.65;
Per-room utility[A]: 90%.
Source: GAO.
[A] 100 percent is full use.
[End of table]
Table 9: Courtroom Sharing for Senior District Judges Based on
Centralized Sharing:
Number of senior judges: 3;
Number of senior courtrooms needed: 1;
Courtrooms per judge: 0.33;
Per-room utility[A]: 81%.
Number of senior judges: 4;
Number of senior courtrooms needed: 2;
Courtrooms per judge: 0.50;
Per-room utility[A]: 52%.
Number of senior judges: 5;
Number of senior courtrooms needed: 2;
Courtrooms per judge: 0.40;
Per-room utility[A]: 67%.
Number of senior judges: 6;
Number of senior courtrooms needed: 2;
Courtrooms per judge: 0.33;
Per-room utility[A]: 81%.
Number of senior judges: 7;
Number of senior courtrooms needed: 2;
Courtrooms per judge: 0.29;
Per-room utility[A]: 94%.
Number of senior judges: 8;
Number of senior courtrooms needed: 3;
Courtrooms per judge: 0.38;
Per-room utility[A]: 72%.
Number of senior judges: 9;
Number of senior courtrooms needed: 3;
Courtrooms per judge: 0.33;
Per-room utility[A]: 81%.
Number of senior judges: 10;
Number of senior courtrooms needed: 3;
Courtrooms per judge: 0.30;
Per-room utility[A]: 91%.
Number of senior judges: 11;
Number of senior courtrooms needed: 4;
Courtrooms per judge: 0.36;
Per-room utility[A]: 75%.
Number of senior judges: 12;
Number of senior courtrooms needed: 4;
Courtrooms per judge: 0.33;
Per-room utility[A]: 82%.
Number of senior judges: 13;
Number of senior courtrooms needed: 4;
Courtrooms per judge: 0.31;
Per-room utility[A]: 86%.
Number of senior judges: 14;
Number of senior courtrooms needed: 4;
Courtrooms per judge: 0.29;
Per-room utility[A]: 95%.
Number of senior judges: 15;
Number of senior courtrooms needed: 5;
Courtrooms per judge: 0.33;
Per-room utility[A]: 81%.
Number of senior judges: 16;
Number of senior courtrooms needed: 5;
Courtrooms per judge: 0.31;
Per-room utility[A]: 86%.
Number of senior judges: 17;
Number of senior courtrooms needed: 5;
Courtrooms per judge: 0.29;
Per-room utility[A]: 91v.
Number of senior judges: 18;
Number of senior courtrooms needed: 6;
Courtrooms per judge: 0.33;
Per-room utility[A]: 80%.
Number of senior judges: 19;
Number of senior courtrooms needed: 6;
Courtrooms per judge: 0.32;
Per-room utility[A]: 85%.
Number of senior judges: 20;
Number of senior courtrooms needed: 6;
Courtrooms per judge: 0.30;
Per-room utility[A]: 90%.
Source: GAO.
[A] 100 percent is full use.
[End of table]
Table 10: Courtroom Sharing for Magistrate Judges Based on Centralized
Sharing:
Number of magistrate judges: 2;
Number of magistrate courtrooms needed: 1;
Courtrooms per judge: 0.50;
Per-room utility[A]: 75%.
Number of magistrate judges: 3;
Number of magistrate courtrooms needed: 2;
Courtrooms per judge: 0.67;
Per-room utility[A]: 55%.
Number of magistrate judges: 4;
Number of magistrate courtrooms needed: 2;
Courtrooms per judge: 0.50;
Per-room utility[A]: 76%.
Number of magistrate judges: 5;
Number of magistrate courtrooms needed: 2;
Courtrooms per judge: 0.40;
Per-room utility[A]: 92v.
Number of magistrate judges: 6;
Number of magistrate courtrooms needed: 3;
Courtrooms per judge: 0.50;
Per-room utility[A]: 75%.
Number of magistrate judges: 7;
Number of magistrate courtrooms needed: 3;
Courtrooms per judge: 0.43;
Per-room utility[A]: 86%.
Number of magistrate judges: 8;
Number of magistrate courtrooms needed: 4;
Courtrooms per judge: 0.50;
Per-room utility[A]: 75%.
Number of magistrate judges: 9;
Number of magistrate courtrooms needed: 4;
Courtrooms per judge: 0.44;
Per-room utility[A]: 85%.
Number of magistrate judges: 10;
Number of magistrate courtrooms needed: 4;
Courtrooms per judge: 0.40;
Per-room utility[A]: 93%.
Number of magistrate judges: 11;
Number of magistrate courtrooms needed: 5;
Courtrooms per judge: 0.45;
Per-room utility[A]: 83%.
Number of magistrate judges: 12;
Number of magistrate courtrooms needed: 5;
Courtrooms per judge: 0.42;
Per-room utility[A]: 88%.
Number of magistrate judges: 13;
Number of magistrate courtrooms needed: 6;
Courtrooms per judge: 0.46;
Per-room utility[A]: 79%.
Number of magistrate judges: 14;
Number of magistrate courtrooms needed: 6;
Courtrooms per judge: 0.43;
Per-room utility[A]: 86%.
Number of magistrate judges: 15;
Number of magistrate courtrooms needed: 6;
Courtrooms per judge: 0.40;
Per-room utility[A]: 92%.
Number of magistrate judges: 16;
Number of magistrate courtrooms needed: 7;
Courtrooms per judge: 0.44;
Per-room utility[A]: 85%.
Number of magistrate judges: 17;
Number of magistrate courtrooms needed: 7;
Courtrooms per judge: 0.41;
Per-room utility[A]: 89%.
Number of magistrate judges: 18;
Number of magistrate courtrooms needed: 7;
Courtrooms per judge: 0.39;
Per-room utility[A]: 95%.
Number of magistrate judges: 18;
Number of magistrate courtrooms needed: 8;
Courtrooms per judge: 0.44;
Per-room utility[A]: 83%.
Number of magistrate judges: 19;
Number of magistrate courtrooms needed: 8;
Courtrooms per judge: 0.42;
Per-room utility[A]: 88%.
Number of magistrate judges: 20;
Number of magistrate courtrooms needed: 8;
Courtrooms per judge: 0.40;
Per-room utility[A]: 93%.
Source: GAO.
[A] 100 percent is full use.
[End of table]
Table 11: Courtroom Sharing for Courthouses Using Nationwide Ratio of
District Judges to Senior and Magistrate Judges Based on Centralized
Sharing:
District judges: 2;
Senior judges: 1;
Magistrate judges: 1;
Total judges: 4;
Number of district courtrooms needed: 2;
Courtrooms per judge: 0.50;
Per-room utility[A]: 92%.
District judges: 3;
Senior judges: 1;
Magistrate judges: 2;
Total judges: 6;
Number of district courtrooms needed: 3;
Courtrooms per judge: 0.50;
Per-room utility[A]: 93%.
District judges: 4;
Senior judges: 2;
Magistrate judges: 3;
Total judges: 9;
Number of district courtrooms needed: 5;
Courtrooms per judge: 0.56;
Per-room utility[A]: 80%.
District judges: 5;
Senior judges: 2;
Magistrate judges: 4;
Total judges: 11;
Number of district courtrooms needed: 6;
Courtrooms per judge: 0.55;
Per-room utility[A]: 82%.
District judges: 6;
Senior judges: 3;
Magistrate judges: 4;
Total judges: 13;
Number of district courtrooms needed: 7;
Courtrooms per judge: 0.54;
Per-room utility[A]: 83%.
District judges: 7;
Senior judges: 3;
Magistrate judges: 5;
Total judges: 15;
Number of district courtrooms needed: 8;
Courtrooms per judge: 0.53;
Per-room utility[A]: 84%.
District judges: 8;
Senior judges: 4;
Magistrate judges: 6;
Total judges: 18;
Number of district courtrooms needed: 9;
Courtrooms per judge: 0.50;
Per-room utility[A]: 88%.
District judges: 9;
Senior judges: 4;
Magistrate judges: 7;
Total judges: 20;
Number of district courtrooms needed: 10;
Courtrooms per judge: 0.50;
Per-room utility[A]: 89%.
District judges: 10;
Senior judges: 5;
Magistrate judges: 7;
Total judges: 22;
Number of district courtrooms needed: 11;
Courtrooms per judge: 0.50;
Per-room utility[A]: 89%.
District judges: 11;
Senior judges: 5;
Magistrate judges: 8;
Total judges: 24;
Number of district courtrooms needed: 12;
Courtrooms per judge: 0.50;
Per-room utility[A]: 90%.
District judges: 12;
Senior judges: 6;
Magistrate judges: 9;
Total judges: 27;
Number of district courtrooms needed: 13;
Courtrooms per judge: 0.48;
Per-room utility[A]: 92%.
District judges: 13;
Senior judges: 6;
Magistrate judges: 10;
Total judges: 29;
Number of district courtrooms needed: 14;
Courtrooms per judge: 0.48;
Per-room utility[A]: 92%.
District judges: 14;
Senior judges: 7;
Magistrate judges: 10;
Total judges: 31;
Number of district courtrooms needed: 15;
Courtrooms per judge: 0.48;
Per-room utility[A]: 92%.
District judges: 15;
Senior judges: 7;
Magistrate judges: 11;
Total judges: 33;
Number of district courtrooms needed: 16;
Courtrooms per judge: 0.48;
Per-room utility[A]: 92%.
District judges: 16;
Senior judges: 8;
Magistrate judges: 12;
Total judges: 36;
Number of district courtrooms needed: 17;
Courtrooms per judge: 0.47;
Per-room utility[A]: 94%.
District judges: 17;
Senior judges: 8;
Magistrate judges: 13;
Total judges: 38;
Number of district courtrooms needed: 18;
Courtrooms per judge: 0.47;
Per-room utility[A]: 95%.
District judges: 18;
Senior judges: 9;
Magistrate judges: 13;
Total judges: 40;
Number of district courtrooms needed: 19;
Courtrooms per judge: 0.48;
Per-room utility[A]: 94%.
District judges: 19;
Senior judges: 9;
Magistrate judges: 14;
Total judges: 42;
Number of district courtrooms needed: 20;
Courtrooms per judge: 0.48;
Per-room utility[A]: 94%.
District judges: 20;
Senior judges: 10;
Magistrate judges: 15;
Total judges: 45;
Number of district courtrooms needed: 21;
Courtrooms per judge: 0.47;
Per-room utility[A]: 95%.
Source: GAO.
[A] 100 percent is full use.
[End of table]
* For the outcomes we reported, we also modeled centralized sharing
for magistrate judges separately because expert panel members stated
that magistrate courtrooms differ in size from district courtrooms and
would not be appropriate for district judges to use.
* As we stated in the report, our sharing model resulted in
approximately 18 to 22 percent of unused courtroom time. Our levels of
sharing resulted in events being completed as scheduled with extra
time to spare.
23. AOUSC highlighted Judge Preska's contention that the draft report
misrepresented panelists' views and included a partial quote from the
draft report. However, the whole quote was in agreement with Judge
Preska's view that the panelist was indicating it took longer to
resolve cases when judges were sharing courtrooms. We revised the
report to make this clearer.
24. We addressed Judge Preska's statements about our characterization
of the experts' views in our comments on her letter that is attached
to AOUSC's letter.
25. AOUSC indicated that an effective courtroom sharing model requires
an understanding of the litigation process. We incorporated these
elements into our model to the fullest extent possible. However, we
recognize that there are different approaches to computer modeling of
courtroom use and recommend that the courts expand nationwide
courtroom sharing policies to more fully reflect the actual and
scheduled use of courtrooms as demonstrated with the comprehensive
data collected by FJC.
26. See comment 22.
27. We clarified the report to indicate that there are different
definitions of what constitutes a trial; however, the median length of
trials identified in our report was taken from the 2008 Annual Report
of the Director: Judicial Business of the United States Courts,
published by AOUSC. Furthermore, this number was not inputed into the
model; the percentage of time spent on trials incorporated into the
model was taken directly from the specific courtroom scheduling and
use data gathered by FJC.
28. AOUSC cited a 2000 Ernst & Young report in describing the
complexities of courtroom sharing. In a 2001 report,[Footnote 46] we
assessed the sufficiency of Ernst & Young's data and analysis in
determining the feasibility of courtroom sharing and found that Ernst
& Young did not gather sufficient data or conduct the needed analysis
to resolve the courtroom sharing issue.
29. According to AOUSC, it is difficult to model judicial processes
because of its inherent variability and uncertain nature. Our model
addresses the uncertainty of courtroom scheduling by accounting for
unused scheduled time (see bullet 1, comment 22). We also note in our
report that, according to our model, the average time that remained
unscheduled for the mix of judges from the 27 courthouses was between
18 and 22 percent.
30. AOUSC questioned why we did not provide the draft report to FJC
for comment. We coordinated with FJC beforehand and agreed that we
would provide the draft report to our judiciary liaison and that, as
part of the judiciary, FJC would obtain a copy of the report and
provide comments through the central judiciary liaison, which they did.
31. FJC stated that it is unclear how we differentiated events in our
model. This information is not relevant, since we ensure that all
events are able to occur as scheduled. Nonetheless, we added the
following information to our report. We differentiated events and time
in the model by grouping them as case-related events, nonjudge-related
events, and unused scheduled time, and we allotted enough time for
each of these events to occur without delay (for further assumptions
in the model, see comment 22).
32. FJC stated that we did not incorporate caseload data into our
model. The data FJC provided to us did not include any additional
details about caseload, and FJC removed the identifiers from the data
as a condition of providing the data to us, precluding any caseload
analysis. However, we did note when the data were correlated and not
correlated to different caseload and case-filing measures, as FJC
noted.
33. For information on why we assumed a 10-hour work day, see bullet 2
of comment 22.
34. FJC noted that our model output might suggest that some events may
get bumped from their scheduled day. This is not the case. Our model
allows us to determine the fewest number of courtrooms needed for no
backlog in court proceedings.
35. FJC indicated that we provided little information on the outcomes
of our model. The dedicated sharing ratios identified in table 5
represent a lowest common denominator that can be calculated for
courthouses with any number of judges, and our model results under
centralized sharing are identified in table 6 for our case study
courthouses. However, we did not recommend the judiciary implement our
courtroom sharing model, but expand sharing based on actual courtroom
scheduling and use data. For additional model output for centralized
sharing, see the tables in comment 22.
36. FJC stated that we seem to use only average levels of courtroom
use in our model. This is not the case. We modeled the actual and
scheduled usage levels for all assigned courtrooms. Our statement
meant that our model assumes the data provided are representative of
the actual demand for courtrooms, which FJC indicated that it tried to
accomplish in its data collection.
37. FJC stated that our expert panel did not have an ongoing role in
the development of our model. We did develop the model, but the expert
panel provided input into the parameters of the model, as appropriate,
throughout our engagement.
38. Judge Preska indicated that our report mischaracterizes,
oversimplifies, and omits important parts of the discussions that took
place during our expert panel and at our visit to the Moynihan U.S.
Courthouse. We disagree. Our standards of evidence detailed in
generally accepted government auditing standards and outlined in
comment 1, ensure that our facts are sound. We visited numerous
courthouses, in addition to the judge's, and Judge Preska was present
only for the 1-day portion of our panel. As stated in our draft and
final reports, some of the invited experts were unable to attend the 1-
day session, and we interviewed them separately. Their views and our
analysis of all the experts' views were not available to Judge Preska.
39. Judge Preska disagreed with the statistics we used related to the
length of trials. We do not dispute that trial frequency and length
may differ across districts and Judge Preska's personal experience may
differ from other judges. However, we use AOUSC's statistics as cited
in the report. See comment 27 for additional information related to
this point.
40. Judge Preska stated that our model implies courtrooms are used
only for trials. This is incorrect. As noted in both the draft and
final versions of the report, all used and unused scheduled time
documented by FJC were considered use of a courtroom and included in
our model, not just trial time.
41. Judge Preska stated that our model contemplates rescheduling
events on short notice. Our model does not reschedule any unused time
for events canceled or postponed within a week of the event.
42. Judge Preska stated that our report does not cite the expert
panel's unanimity that courtroom sharing was unworkable. We believe
that our report does reflect the accurate views of the entire experts'
panel. In the report, we note that some judges remain skeptical that
sharing could work on a permanent basis. Nonetheless, all judges that
we spoke with who had sharing experience stated that a trial had never
been delayed because a courtroom was not available. Additionally, as
noted in comment 38, Judge Preska was only present for the 1-day
portion of our panel. Some experts were unable to attend the 1-day
panel session and were interviewed individually. Judge Preska did not
participate in these interviews.
43. Judge Preska stated that our discussion of the use of technology
in the judicial process demonstrates our lack of understanding of the
judicial process. In terms of increased technology, we reported what
the expert panel and other judges told us and our report consequently
reflects the expert panel's knowledge of the judicial process.
44. Judge Preska stated that designs of courthouses may be more or
less conducive to courtroom sharing, but disagreed with the
alternating courtroom and chamber floors that we present in the
report. We revised the report to include the idea that perimeter
chambers around several courtrooms of varying sizes could facilitate
courtroom sharing.
45. Judge Preska stated that courtroom availability from 8 a.m. to 6
p.m. is wholly unrealistic. See bullet 2 of comment 22 for our
discussion of why we assumed courtrooms would be available for
scheduling from 8:00 a.m. to 6:00 p.m.
46. Judge Preska stated that we assume that trials would run in
shifts. This is not the case. All that we assume is that the courtroom
is available for the 10 hours. According to judges we spoke with early
morning and late afternoon hours during trial time are used for set up
and take down. Other possible uses for hours judges do not wish to
hold case events are ceremonies, education, training, and maintenance.
How courts choose to use that time in practice is not addressed in our
report.
47. Judge Preska represented our model as treating all court
proceedings the same. We gave all scheduled events top urgency and
made time for all events because we did not have criteria for
prioritizing some areas over others. A different model could establish
a priority ranking for events and might allow for even more efficient
courtroom use. We recommended that the judiciary expand nationwide
courtroom sharing policies to more fully reflect the actual scheduling
and use of district courtrooms.
48. Judge Preska stated that our model relies on only one metric--
efficiency--at the expense of the delivery of justice. We understand
that providing one courtroom per judge is convenient for scheduling
purposes, but we remain confident that our model shows that the
efficiency of courtroom use can be improved through sharing without
harming the delivery of justice. We designed our courtroom sharing
model specifically to ensure more than sufficient court space would be
available to deliver justice. For example, not treating courtrooms as
available after events have been canceled or postponed greatly reduces
the amount of time courtrooms can be scheduled by leaving courtrooms
dark much of the time. Also, our model includes all of the time for
noncase-related uses, such as tours and other educational events that
could be scheduled on weekends and after 6 p.m. In addition, not
requiring district judges to share courtrooms with magistrate judges
reduces opportunities for efficiencies that could otherwise be
achieved (see table 11 in comment 22). That said, we continue to
believe that efficiency must enter into the equation of courtroom use.
Otherwise, the practices that resulted in the construction of 3.56
million square feet of extra courthouse space at a cost of $835
million will continue.
[End of section]
Appendix IV: GAO Contact and Staff Acknowledgments:
GAO Contact:
Mark L. Goldstein (202) 512-2834 or goldsteinm@gao.gov:
Staff Acknowledgments:
In addition to the contact named above, Tammy Conquest (Assistant
Director), Keith Cunningham, Bess Eisenstadt, Brandon Haller, William
Jenkins, Susan Michal-Smith, Steve Rabinowitz, Alwynne Wilbur, Jade
Winfree, and Sarah Wood made key contributions to this report.
[End of section]
Footnotes:
[1] An annex is an addition to an existing building.
[2] GAO, Federal Courthouse Construction: Estimated Costs to House the
L.A. District Court Have Tripled and There Is No Consensus on How to
Proceed, [hyperlink, http://www.gao.gov/products/GAO-08-889]
(Washington, D.C.: Sept. 12, 2008).
[3] See, for example, GAO, Federal Courthouse Construction: More
Disciplined Approach Would Reduce Costs and Provide for Better
Decision-making, [hyperlink,
http://www.gao.gov/products/GAO/T-GGD-96-19] (Washington, D.C.: Nov.
19, 1995) and GAO, Courthouse Construction: Information on Project
Cost and Size Changes Would Help to Enhance Oversight, [hyperlink,
http://www.gao.gov/products/GAO-05-673] (Washington, D.C.: June 30,
2005).
[4] An independent and comprehensive study of courtroom use in
district courts was conducted by the Federal Judicial Center (FJC) at
the request of the Judicial Conference of the United States, which,
after the study was completed, issued a report on the study. See
Judicial Conference of the United States, Report on the Usage of
Federal District Court Courtrooms, Sept. 16, 2008. The study served as
a basis for the Judicial Conference's adoption of several policy
changes related to the sharing of courtrooms by judges, which are
described later in this report.
[5] District judges who are eligible to retire may continue to hear
cases on a full-or part-time basis as senior judges.
[6] Before Congress makes an appropriation for a proposed project, GSA
submits to the Senate Committee on Environment and Public Works and
the House Committee on Transportation and Infrastructure detailed
project descriptions, called prospectuses, for authorization by these
committees when the proposed construction, alteration, or acquisition
of a building to be used as a public building exceeds a specified
threshold. For purposes of this report, we refer to these committees
as "authorizing committees" when discussing the submission of the
prospectuses and providing additional information relating to
prospectuses to these committees. Furthermore, for purposes of this
report, we refer to approval of these projects by these committees as
"congressional authorization." See 40 U.S.C. § 3307.
[7] There are also two trial courts (the Court of International Trade
and the United States Court of Federal Claims) and one court of
appeals (the Court of Appeals for the Federal Circuit) with nationwide
jurisdiction over certain types of cases.
[8] Temporary judgeships are those created by statute for a specified
minimum period of time because of an increase in workload that is
expected to be temporary (such as a large number of asbestos filings).
Temporary judgeships are temporary to the district court, not to the
judge. Judges appointed to temporary district judgeships hold lifetime
appointments. At the end of the period for which the temporary
judgeship was authorized, the temporary judgeship expires unless
Congress either extends the authorization or converts the position to
a permanently authorized one. If the temporary judgeship expires, the
judge who occupied that position does not leave the bench, and until
the next vacancy in that court occurs, the number of judges exceeds
the number of permanently authorized judgeships. When the next
judicial vacancy in that court occurs, the position is not filled and
the number of judges is thus reduced to the number of permanently
authorized judgeships.
[9] In these data, the judiciary includes the total numbers of civil
cases, criminal cases, and defendants; civil and criminal weighted
filings; weighted and unweighted bankruptcy filings; and appeals.
[10] Weighted filings statistics account for the different amounts of
time district judges take to resolve various types of civil and
criminal actions. Types of civil cases or criminal defendants whose
cases typically take an average amount of time to resolve each receive
a weight of approximately 1.0; for more time-consuming cases, higher
weights are assigned (e.g., a death-penalty habeas corpus case is
assigned a weight of 12.89); and cases demanding relatively little
time from judges receive lower weights (e.g., overpayment and recovery
cases, such as a defaulted student loan case, are assigned a weight of
0.10).
[11] The Judicial Conference standard for district court judgeships is
430 weighted filings per judgeship, except in the case of small courts
with fewer than five authorized judgeships, in which case the standard
is 500 weighted filings per judgeship.
[12] For the purposes of this report, we are referring to space
assigned both to a specific tenant and to joint use as tenant space.
[13] In line with GSA's method of calculating efficiency, this
category includes the space GSA categorizes as building common, floor
common, and unmarketable space.
[14] We did not evaluate how much of the extra space was unused.
[15] The estimated construction cost of the extra space was $640
million in nominal (unadjusted) dollars. We adjusted for inflation
using a price index for construction costs from the Bureau of Economic
Analysis and Global Insights. We adjusted expenditures to 2010
constant dollars.
[16] We did not attempt to calculate the rent attributable to the
extra square footage due to exceeding congressionally authorized gross
square footage because some of this extra square footage is for
tenants other than the judiciary or occurs in building common or other
space, the costs of which are not directly passed on to the judiciary
in rent. We therefore calculated the annual operations and maintenance
costs for all extra space due to exceeding congressionally authorized
gross square footage and for the extra building common and other space
due to overestimating the number of judges and judges not sharing
courtrooms.
[17] The remaining lifetime costs include land acquisition, planning,
renewal/revitalizations, and disposal.
[18] We chose the seven courthouses for case studies because they
provided examples of courthouses that exceeded the congressionally
authorized size and represented a wide distribution of courthouse
sizes, dates of completion, and geographical locations.
[19] For all 33 courthouses in our scope, we used the congressionally
authorized gross square footage for the construction of the
courthouse. We compared the authorized gross square footage, including
inside parking, with the actual gross square footage, including inside
parking.
[20] For the purposes of this report, we are using the term building
common and other space to include GSA's categories of building common,
floor common, and unmarketable space and the term tenant space to
include GSA's categories of tenant space, joint use space, and vacant
space.
[21] In a building with 67 percent efficiency, 67 percent of the total
gross square footage, excluding parking, consists of tenant space and
the remainder consists of building common and other space.
[22] GSA defines the gross square footage of a building as the total
constructed area of a building, which includes tenant spaces and
building common and other spaces, such as lobbies and mechanical
rooms--as well as indoor parking.
[23] The O'Connor Courthouse is 831,604 gross square feet (275,794
square feet over its authorized 555,810 gross square feet), the
Hammond, Indiana, Courthouse is 315,978 gross square feet (104,778
square feet over its authorized 211,200 gross square feet), and the
Arnold Courthouse Annex is 254,911 gross square feet (99,594 square
feet over its authorized 155,317 gross square feet).
[24] [hyperlink, http://www.gao.gov/products/GAO-05-673].
[25] See GSA's 2010 Fiscal Year Appropriations Act, Pub. L. No. 111-
117, Div. C. Title V, 123 Stat. 3034, 3187-3188 (2009). Every year
from fiscal year 1995 through fiscal year 2010, the GSA appropriations
act has contained this requirement except for fiscal year 1998, when
no appropriation was made for new construction or acquisition. For
fiscal years 1990 through 1994, the GSA appropriations acts stated
that these projects could not exceed their authorized cost by more
than 10 percent.
[26] For 8 of these 15 courthouses, the total project cost increased
by about 1 to 9 percent over the cost estimate provided to
congressional authorizing committees at the construction phase, while
for 3 of the 15 courthouses, the total project cost was at or slightly
under budget.
[27] According to GSA, the 67 percent efficiency target is intended
for application to standalone new courthouses, and application to an
annex is impractical because of the need for connections between the
courthouse and the annex. However, we consider the efficiency of the
Bryant Annex to be relevant because in the plans for this annex
provided to congressional committees for authorization, GSA based its
request for total gross square footage on an annex that would be 67
percent efficient.
[28] GAO, Internal Control: Standards for Internal Control in the
Federal Government, [hyperlink,
http://www.gao.gov/products/GAO/AIMD-00-21.3.1] (Washington, D.C.:
November 1999.)
[29] The ceilings of special proceedings courtrooms and appellate en
banc courtrooms (in which all the circuit's judges sit together on a
panel and decide a case) were to be 18 feet high.
[30] The judiciary makes the 10-year estimates during the planning
stages of new courthouses and major annexes. We did not include 5
courthouses in this section because they have not yet reached the end
of their 10-year planning period.
[31] Each of the five courthouses that met or exceeded their 10-year
estimates for judges projected increases of zero or one judge for
planning periods ending from 2004 to 2006.
[32] The Limbaugh, Sr., Courthouse in Cape Girardeau, Missouri, is not
included as a case study in this analysis because it has not reached
the end of its 10-year planning period.
[33] Courtroom space calculations include square footage for spaces
that are necessary for courtroom use, such as soundlocks (an entryway
designed to reduce sound), audiovisual storage space, and public
waiting areas. Additional spaces associated with courtrooms vary by
courtroom type and may include, among other things, coat closets,
judges' conference rooms, judges' robing rooms, exhibit storage
spaces, and offices for court reporters.
[34] GAO, Federal Judiciary Space: Long-Range Planning Process Needs
Revision, [hyperlink, http://www.gao.gov/products/GAO/GGD-93-132]
(Washington, D.C.: Sept. 28, 1993).
[35] GAO, Federal Judgeships: General Accuracy of District and
Appellate Judgeship Case-Related Workload Measures, [hyperlink,
http://www.gao.gov/products/GAO-08-928T] (Washington, D.C.: June 17,
2008).
[36] H.R. 3662, 111th Cong. (2009) and S. 1653, 111th Cong. (2009).
[37] Federal Judicial Center, The Use of Courtrooms in U.S. District
Courts: A Report to the Judicial Conference Committee on Court
Administration & Case Management, (Washington, D.C.: July 18, 2008).
[38] Our model does not reduce the number of courtrooms in six
courthouses for the following reasons: four already had sharing
between judges and the model did not find increased sharing
possibilities and therefore imposed no reduction in courtrooms; one
has only one district and one magistrate judge; and one courthouse has
only bankruptcy judges and is out of our scope for district and
magistrate sharing opportunities.
[39] This number also includes the support spaces directly related to
a courtroom, as applicable, such as jury rooms, evidence closets, and
lawyer conference rooms.
[40] GAO, Courthouse Construction: Better Courtroom Use Data Could
Enhance Facility Planning and Decisionmaking, [hyperlink,
http://www.gao.gov/products/GGD-97-39] (Washington, D.C.: May 19,
1997).
[41] Federal Judicial Center, The Use of Courtrooms in U.S. District
Courts: A Report to the Judicial Conference Committee on Court
Administration & Case Management (Washington, D.C., July 18, 2008).
[42] Marc Galanter, "The Vanishing Trial: An Examination of Trials and
Related Matter in Federal and State Courts," Journal of Empirical
Legal Studies, Vol. 1, Issue 3 459-570, November 2004.
[43] Sharing was not possible in some courthouses because there were
only one or two district and/or magistrate judges.
[44] The panel consisted primarily of judges and included other
judicial experts with experience in or knowledge of courtroom sharing.
Judges who were chosen for the panel but were unable to take part in
the 1-day discussion were contacted separately, and semistructured
interviews were conducted with them via telephone or in person.
[45] There are different definitions of what constitutes a trial. The
median trial length reported here reflects Table C-8 from the
Administrative Office of the United States Courts, 2008 Annual Report
of the Director: Judicial Business of the United States Courts.
(Washington, D.C., U.S Government Printing Office, 2009.
[46] GAO, Courthouse Construction: Sufficient Data and Analysis Would
Help Resolve the Courtroom-Sharing Issue, [hyperlink,
http://www.gao.gov/products/GAO-01-70] (Washington, D.C.: Dec. 14,
2000).
[End of section]
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