Federal Courthouse Construction: Preliminary Results Show Better Planning, Oversight, and Courtroom Sharing Could Help Control Future Costs
Published: 2010-05-25T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The federal judiciary and the General Services Administration (GSA) are in the midst of a multibillion-dollar courthouse construction initiative, which began in the early 1990s and 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. The findings in this testimony are preliminary because the federal judiciary and GSA are still in the process of commenting on GAO's draft report and did not provide comments on this testimony.
section_title: What GAO Found
paragraphs: The 33 federal courthouses completed since 2000 include 3.56 million square feet of extra space--28 percent of the total 12.76 million square feet constructed. The extra square footage consists 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--8 by less than 10 percent and 4 by 10 to 21 percent. There is no requirement to notify congressional committees about size overages, as is required for cost overages of more than 10 percent. A lack of oversight by GSA, including a lack of focus on not exceeding the congressionally authorized size, contributed to these size overages. The judiciary overestimated the number of judges that would be located in 23 of 28 courthouses whose space planning occurred at least 10 years ago, 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. A variety of factors contributed to the judiciary's overestimates, including inaccurate caseload projections and long-standing difficulties in obtaining new authorizations. 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. 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.

section_title: Letter
paragraphs: Thank you for the opportunity to testify before you today on the  preliminary findings from our work related to the federal courthouse  construction program. 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, with 29 additional projects in  various stages of development. However, rising costs and other federal  budget priorities threaten to stall the initiative. 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. We have also raised questions about  the accuracy of the judiciary’s long-term caseload projections— projections used to estimate the number of judges that 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—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 and magistrate judges.
Today, my testimony will provide, for the 33 federal courthouses  completed since 2000, preliminary results of our review of: (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. My statement is based  on a draft report that is currently out for agency comment and scheduled  to be released in June 2010. 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. (See table 5 in appendix I.) In addition, we selected seven of  the federal courthouses in our scope to analyze more closely as case  studies.
To estimate the cost of any extra courthouse space, we added together any  extra square footage we found through our analysis in objectives   (2) through (4). We then calculated the extra cost to construct, and rent or  operate and maintain this space based on a methodology we validated  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 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 authorized judges, we  compared the number of judges the judiciary estimated it would have in  each courthouse in 10 years to judiciary data showing the number of  judges or authorized vacancies 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 and convened a panel of judicial experts and  judges about the challenges and opportunities related to courtroom  sharing. We conducted this performance audit from September 2008 to  May 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. Our findings are  preliminary because the federal judiciary and GSA are still in the process  of commenting on GAO’s draft report and did not provide comments on  this testimony.
subsections: section_title: Background
paragraphs: 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. There are 94  federal judicial districts—at least 1 for each state—organized into 12  regional circuits.
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  under the supervision of the Judicial Conference. The Judicial Conference  of the United States, which serves as the judiciary’s principal policy- making body, 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.
GSA and the judiciary plan new federal courthouses based on the  judiciary’s estimated 10-year space requirements, which are based on  projections of each location’s weighted filings. It then uses this  information to determine how many judges to plan for. 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 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.
For courthouses that are selected for construction, GSA typically submits  two detailed project descriptions, or prospectuses, for congressional  authorization: one for site and design and the other for construction.  These prospectuses outline the scope, size, and estimated costs of the  project at each of the two project phases, and typically request  authorization and funding to purchase the site and design the building in  the site and design prospectus—and to construct the courthouse in the  construction prospectus. Typically, the total gross square footage of the  courthouses depicted in the construction prospectus or fact sheet is based  on factors that include the judiciary’s projected need for space, developed  from 10-year judge estimates, and the 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) and the rest  should be building common and other space.
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, non-rentable 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.
section_title: Extra Space in Courthouses Cost an Estimated $835 Million in Constant 2010 Dollars to Construct and $51 Million Annually to Rent, Operate, and Maintain
paragraphs: The 33 federal courthouses completed since 2000 include 3.56 million  square feet of extra space—28 percent of the total 12.76 million square feet  constructed. The extra square footage consists 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. 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 (see   fig. 1). More specifically, the extra space and its causes are as follows:    1.7 million square feet caused by construction in excess of congressional    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.
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.  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.
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.
section_title: Most Courthouses Exceed Congressionally Authorized Size Due to a Lack of Oversight by GSA
subsections: section_title: Most Courthouses Constructed Since 2000 Exceed Authorized Size, Some by Substantial Amounts
paragraphs: Twenty seven of the 33 federal courthouses constructed since 2000 exceed  their congressionally authorized size, and 15 of the 33 courthouses  exceed their congressionally authorized size by 10 percent or more. 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. As shown in figure 2, altogether, these 27  courthouses have about 1.7 million more square feet than authorized.
On the other hand, as shown in figure 3, 6 of the 33 courthouses are  smaller than congressionally authorized.
Twelve of the 15 courthouses that exceed 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. The total project costs for 8 of these 12  courthouses increased by between 1 and 9 percent over the cost estimate  provided to congressional authorizing committees at the construction  phase, while the total project costs for four of these courthouses increased  by between 10 and 21 percent over the cost estimate provided to  congressional authorizing committees at the construction phase. While  there is a statutory requirement that GSA obtain advance approval from  the Committees on Appropriations if the expenditures for a project exceed  the amount included in an approved prospectus by more than 10 percent,  there is no statutory requirement for GSA to notify congressional  authorizing or appropriations committees if the size exceeds the  congressionally authorized square footage. While GSA sought approval  from the appropriations committees for the cost increases incurred for the  4 courthouses whose size and costs increased by about 10 percent or  more, 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.
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. 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. According to GSA officials, a building’s efficiency is  important because, as it declines, less of the building’s space directly  contributes to the tenants’ 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. See table 1.
section_title: GSA Lacked Sufficient Oversight and Controls to Ensure That Courthouses Were Planned and Built According to Authorized Size
paragraphs: 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  the courthouse until 2007, even though, according to GSA officials,  controlling the gross square footage of a building is important to  controlling its construction costs.
subsections: section_title: Lack of GSA Oversight Contributed to More Building Common Space Than Planned
paragraphs: 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 percent increases 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. 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. Moreover, regional GSA officials  stated that they were unaware until we told them that the courthouse was  larger and less efficient than authorized.
Another element of GSA’s lack of oversight in this area was that GSA did  not ensure that the architect followed GSA’s policies for how to measure  certain commonly included spaces, such as atriums. 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 gross square  footage 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. 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.
section_title: A Lack of GSA Oversight Contributed to Some Courthouses Being Built with Larger Tenant Spaces
paragraphs: 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.
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 square footage attributable to each courtroom. 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, the 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 atriums,  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  attributable to the courtroom 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.
section_title: Recently, GSA Has Taken Some Steps to Improve Oversight of Courthouse Size
paragraphs: Recently, GSA has taken some steps to improve its oversight of the  courthouse construction process. In May 2009, GSA published a revised  space assignment policy to clarify and emphasize its policies on counting  the square footage of atriums and tenant floor cuts, among other things. In  addition, according to GSA officials, GSA established a collaborative effort  in 2008 between its Office of Design and Construction and its Real Estate  Portfolio Management to, among other things, use data management  software to ensure that GSA’s 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.
section_title: Estimated Space Needs Exceeded Actual Space Needs, Resulting in Courthouses That Were Larger than Necessary
subsections: section_title: Because the Judiciary Overestimated the Number of Judges, Courthouses Have Much Extra Space After 10 Years
paragraphs: Our analysis of construction plans for the 33 courthouses built since 2000  shows that 28 have reached or passed their 10-year planning period and  23 of those 28 courthouses have fewer judges than estimated. 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 fig. 4).
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. Table 2 compares the estimated and actual  numbers of judges for each of these courthouses and the space  consequences of overestimating the number of judges.
Figure 5 illustrates two unassigned chamber suites in the Coyle  Courthouse in Fresno, California.
section_title: Judiciary Planning Overstated the Need for Space through Inaccurate Caseload Projections
paragraphs: Inaccurate caseload growth projections 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. 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. 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 fig. 6).
section_title: The Judiciary’s Method of Estimating Judges Does Not Account for Uncertainty in How Many New Judgeships Will Be Authorized
paragraphs: 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 leading the judiciary to overestimate  how many judges it would have in courthouses after 10 years or more.  Determining how many requested judgeships will be authorized 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 caseload to question if all of the  requested judgeships are necessary. In a 2008 report, we found that  weighted caseload is not reliable because its accuracy for district and  appeals courts cannot be tested.
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, 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.
section_title: Low Levels of Use Show That Judges Could Share Courtrooms, Reducing the Need for Future Courtrooms by More Than a Third
paragraphs: Most courthouses constructed since 2000 have enough courtrooms for all  of the district and magistrate judges to have their own courtrooms. Using  the judiciary’s data, we designed a model for courtroom sharing that  shows that judges could share courtrooms at a high enough level to reduce  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. 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 (see fig. 7).
According to the judiciary’s data, 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. Figure 8 illustrates the average daily uses of courtrooms  assigned to single district, senior district, or magistrate judges.
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 weighed 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.
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.  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 (1) all case-related activities; (2) all time  allotted to non-case-related activities, such as preparation time,  ceremonies, and educational purposes; and (3) all events cancelled 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 non-case related events could be held outside of  normal business hours, and 60 percent of events are cancelled 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) dedicated sharing, in which judges are assigned to share  specific courtrooms, and (2) 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 3.
Our model shows that centralized sharing further 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 4  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.
subsections: section_title: Some Judges Said They Could Overcome the Challenges to Courtroom Sharing
paragraphs: 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. 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. 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.
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. 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.
To address panelists’ concern about sharing courtrooms between district  and magistrate judges, which stems in part from differences in  responsibilities that can affect courtroom design and could make formal  courtroom sharing inappropriate, 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.
section_title: The Judiciary Has Taken Some Steps to Increase Sharing in Future Courthouse Projects
paragraphs: 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 ten 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.
section_title: Concluding Observations
paragraphs: 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. We have draft recommendations related to  GSA’s oversight of courthouse construction projects and the judiciary’s  planning and sharing of courtrooms that we plan to finalize in our  forthcoming report after fully considering agency comments.
Madam Chairwoman and members of the Subcommittee, this concludes  my prepared statement. I would be pleased to respond to any questions  that you or the other Members of the subcommittee may have.
If you or your staff have any questions concerning this report, please  contact me on (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 testimony.
section_title: Contact and Acknowledgments
paragraphs: GAO staff who made major contributions to this testimony include Tammy  Conquest (Assistant Director), Keith Cunningham, Bess Eisenstadt,  Brandon Haller, William Jenkins, Susan Michal-Smith, Steve Rabinowitz,  Alwynne Wilbur, Jade Winfree, and Sarah Wood.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: 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 5.
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 during 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  courthouse 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 inform 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 facility 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 needed  for the courthouse, the planning and construction of the courthouse, and  the current uses of courthouse space, including courtrooms and chambers.  We also 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. 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 GSA’s measurement program, 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 cost to rent or operate and maintain the extra  space, we took the following steps. To the extent practical, we determined  whether the cost of the extra space is directly passed on to the judiciary as  rent. If the cost of the space is 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 number 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  usage. 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 cancelled 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 exceeds 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. Then we inputted the number of judges  from each courthouse and determined the smallest 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 live 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 member,   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 who collected  and analyzed the data. Besides the 7 courthouses we selected as case  studies, we visited 2 district courthouses where courtroom sharing has  been used—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 May 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.
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