Federal Judiciary: Progress Made in Reducing Appellate Space, but Innovative Practices Should Be Shared across Courts
Released: 2016-12-14T00:00:00

Letter

Background

As noted earlier, the federal judiciary consists of the U.S. Supreme Court, 12 regional circuit courts of appeals, the U.S. Court of Appeals for the Federal Circuit, 94 district courts, 90 bankruptcy courts, as well as courts of special jurisdiction. The 94 federal judicial districts are organized into 12 regional circuits, and each circuit has a court of appeals. Fig. 1 shows the areas that comprise the 12 regional circuits, which include the First through Eleventh circuits and the District of Columbia circuit. In addition, the Federal Circuit and U.S. Supreme Court are located in Washington, D.C.

The 12 regional circuit courts of appeals hear challenges to decisions made by district courts located within their respective circuits. Unlike trial courts, which determine the factual issues in a case and apply legal principles, in most situations, appellate courts determine only whether the lower courts correctly applied the law. There are no juries or witnesses in appellate courts. Rather, parties generally file written briefs and may present oral arguments to a panel of three judges focusing on the questions of law in a case. The court of appeals decision is usually the final word on a case, unless it sends a case back to the trial court or the case is heard by the U.S. Supreme Court. In some cases, a decision may be reviewed “en banc,” that is, by a larger group of appellate judges— typically all of the appellate judges in a particular circuit. Appellate caseloads vary by regional circuit, and most appeals filed are decided based upon written briefs as opposed to oral arguments. Appendix II provides information on case filings per regional circuit for fiscal year 2015.

Appellate judges are appointed by the President and confirmed by the U.S. Senate to serve in a federal judicial circuit. There are 179 authorized federal appellate judgeships nationwide, with each circuit having a statutorily authorized number of such judgeships. Appellate judges have life tenure and may retire on salary if they meet certain requirements; however, according to AOUSC, many appellate judges who are eligible to retire decide to continue to hear cases on a full- or part-time basis as “senior judges.” Appendix II provides information on the number of authorized appellate judgeships per circuit, as well as the current number of actual judges. Each regional circuit court of appeals has a courthouse that serves as the headquarters where appellate judges and staff conduct the business of the court, including preparing for and hearing oral arguments. Circuit headquarters house appellate courtrooms and judges’ chambers suites, as well as circuit libraries, court clerk’s offices, circuit executive’s offices, staff attorney’s offices, and other judiciary components. Some appellate courthouses are shared with other courts, such as the district or bankruptcy courts, while others exclusively house the U.S. Court of Appeals for a specific circuit. Most circuit headquarters house some appellate judges whose resident location coincides with the circuit headquarters—in what is commonly known as resident chambers. However, circuit headquarters also include visiting judges’ chambers—commonly known as non-resident chambers—for other appellate judges who must travel from their resident location to hear oral arguments. In addition to a circuit’s headquarters, some circuits have courthouses and other space within the circuit where appellate judges may have chambers and where judges and circuit officials conduct the business of the courts, including preparing for appellate proceedings and hearing oral arguments.

Governance of the judiciary is decentralized, and individual courts have discretion to organize operations, develop procedures, and make budgetary decisions within allotted funds to suit local needs. At the regional level, circuit judicial councils exercise administrative authority over all the federal courts within a circuit, and the circuit judicial council’s meetings provide a forum for judges and court staff to discuss the administration of federal justice within a circuit. At the national level, the Judicial Conference of the United States (Judicial Conference), presided over by the Chief Justice of the United States, is the judiciary’s principal policy making body. The Judicial Conference is supported by the Administrative Office of the U.S. Courts (AOUSC), which is responsible for administering the federal judiciary’s budget as well as performing other programmatic and administrative functions, such as paying the judiciary’s rent bill to GSA from its annual appropriations from Congress.

GSA manages real property for many federal agencies, as well as for the judiciary, and has a large inventory of federally owned and leased properties. GSA manages its inventory via 11 regional offices and the central office, located in Washington, D.C. GSA works with AOUSC and judicial circuits in addressing courthouse space needs and issues. In this role, GSA, in consultation with the judiciary, enters into lease agreements on behalf of the judiciary, executes major repair and alteration projects at existing courthouses and federal buildings in the federal inventory, and when necessary is responsible for managing construction of new courthouses. When the judiciary determines it no longer needs space in a courthouse or office building, it may return space to GSA, assuming the space meets certain criteria, such as marketability of the space, and subject to approval by GSA. Assuming the space is eligible for return in federally owned properties, GSA will assume responsibility for the space and determine plans for the space.

Federal entities that operate in facilities under the control and custody of GSA are required to pay rent for space they occupy. The federal judiciary is among GSA’s largest federal tenants and leases more space in federally owned buildings than any executive or legislative branch agency. GSA also leases space for the judiciary in private office buildings, as needed. Figure 2 illustrates the distribution of space, based on rentable square feet and rent costs, for the federal judiciary in fiscal year 2015. GSA uses “rentable square feet” to measure space occupied by federal tenants for billing purposes, as well as for annual reporting. According to GSA, rentable square feet represent space that is available for a tenant to occupy, plus common areas such as restrooms, lobbies, and hallways. In recent years, the judiciary has undertaken a rent validation initiative to ensure the rent the judiciary is paying to GSA for space occupied is accurate. As part of this effort, the judiciary has worked with GSA to review building plans and space assignment drawings—and compare them with space occupied by the judiciary in federally owned buildings.

While Appellate Space-Use Decisions Are Decentralized, They Are Guided by a Variety of Policies and Practices, Including National Policies to Reduce Space

A Variety of Policies Guide Appellate Space-Use Decisions

The appellate judges and officials we spoke with in the 12 regional judicial circuits and 11 GSA regional offices identified the following policies as essential in helping to guide appellate space-use decisions, as well as other court-related space decisions circuit-wide: U.S. Courts Design Guide (Design Guide): The Design Guide specifies the judiciary’s criteria for designing court facilities and sets the space and design standards that GSA uses for courthouse construction and renovation. Judicial staff with whom we spoke said the Design Guide is considered the authoritative source for criteria on designing new courthouses and for major renovations of existing space, including for appellate courtrooms, judges’ chambers, and circuit libraries. The Design Guide was recently revised to include a chapter on Alternative Workplace Strategies, which provides alternative designs that could result in more efficient use of office space compared with traditional office and cubicle layouts. This chapter of the Design Guide applies to court staff office space throughout the federal judiciary, such as Court of Appeals Clerk’s and Circuit Executive’s offices.

National space reduction policies: The Judicial Conference approved several space reduction initiatives to reduce future space and facilities costs in 2013. For example, the Judicial Conference set a national space reduction target in 2013, which aims to reduce the federal judiciary’s total space by 3 percent by the end of fiscal year 2018, as measured in usable square feet. According to GSA, usable square feet is defined as the space that is available for a tenant to occupy. The judiciary uses “usable square feet” to measure the space it occupies for its national space reduction policies, as well as for reporting its progress toward these goals. The national target has been prorated among the circuits based on the usable square feet occupied by each as of the beginning of fiscal year 2013, taking into consideration the amount of square footage allotted to the circuit under the current version of the Design Guide. In addition, the Judicial Conference adopted a “No Net New” policy in 2013, which is a national policy that requires circuits to offset any increases in square footage by an equivalent reduction in square footage identified within the same fiscal year. According to officials with whom we spoke, while the national 3 percent space reduction policy will sunset in fiscal year 2018, the No Net New policy will be in effect for the foreseeable future. Table 1 provides examples of policies and processes that appellate judges and judicial officials said help guide their appellate space-use decisions.

In addition, the judiciary has also put in place initiatives to reduce future space growth and facilities costs, such as the Integrated Workplace Initiative (IWI) which provides options for court units to reconfigure and reduce space, including work space sharing and mobile working situations. The objective of IWI is to reduce the judiciary’s footprint by taking advantage of the flexibility that technology allows, while creating a more efficient work environment. In addition, these projects are designed so that future increases in staff could be accommodated by increased mobility rather than space expansion. According to AOUSC, IWI is similar to efforts to implement shared workspaces in the private sector and across the executive branch.

Appellate Space-Use Decision Making Is Decentralized, and National Space-Reduction Policies Have Incentivized Circuits to Reduce Space

Governance of the judiciary is decentralized and appellate space-use decisions are generally made by appellate courts in conjunction with each circuit’s judicial council—which determines the need for all space accommodation within a circuit—in coordination with the Circuit Executive’s office. Within the circuit executive’s office, most circuits have an Assistant Circuit Executive (ACE) for Space, who works with the circuit judicial council, judges, and courts personnel to help them realize their space requests. In many cases, decisions about space use originate from requests from individual court units or judges. As previously mentioned, individual courts have the discretion to make budgetary decisions within allotted funds to suit local needs. If a space request requires a major renovation of space, or if the circuit wishes to release space, circuits will work with the GSA to execute those actions. According to judiciary and GSA officials with whom we spoke, GSA may play an integral role in executing space projects, including space reduction projects resulting from the national 3 percent space reduction target and No Net New policies, once the courts have made a decision on which projects to pursue. However, according to these officials, GSA’s role in actually determining circuits’ space projects and needs is minimal.

Circuit and GSA regional office officials we spoke with noted that national space-reduction policies (i.e., the 3 percent space reduction target and the No Net New policies endorsed by the Judicial Conference in 2013), have had a significant impact on how circuits manage and view their space and have spurred action on the part of the circuits to reduce space and make better use of the space they have. To implement the 2013 national space reduction policies, the Judicial Conference required that each circuit judicial council formulate a space and rent management plan, specifying how the new space reduction policies will be implemented. According to AOUSC, in the spring of 2014 each of the 12 regional circuits submitted its space and rent management plan, which articulates the circuit’s strategy for how they will achieve their circuit reduction goal by the end of fiscal year 2018. Judiciary officials noted that as circuits look to find ways to reduce space in response to the new national policies, they look across all court units within their circuits, and have not focused exclusively on appellate space. With this in mind, appellate space reduction projects are just one part of a much larger effort circuit- wide.

Appellate Rent and Space Occupied Have Decreased in Recent Years, While Courtroom and Chambers Use Varies by Circuit

Appellate Rent Costs and Space Occupied Have Decreased in Recent Years

In recent years, after trending upward, appellate rent costs and space occupied have begun to decrease. Specifically, over the course of the 7- year period between October 2008 and September 2015 (fiscal years 2009 through 2015), appellate rent costs rose from about $107 million in fiscal year 2009 to about $123 million in fiscal year 2014, but have since decreased to about $121 million in fiscal year 2015 (see fig. 3). During the same period, appellate space occupied grew from about 4.61-million rentable square feet in fiscal year 2009 to about 4.89- million rentable square feet in fiscal year 2013, but has since decreased to 4.63-million rentable square feet in fiscal year 2015, with a similar trend for usable square feet. As discussed above, according to officials from the judiciary we spoke to, the national space reduction target instituted in 2013, among other space reduction policies, have driven decreases in appellate rent and space occupied beginning in fiscal year 2013.

In addition to recent decreases in appellate rent costs and space occupied, leased space occupied by the courts of appeals decreased by about 28 percent from fiscal years 2009 through 2015, while the federally owned space occupied by these courts increased by about 3 percent, as measured in rentable square feet. According to GSA and circuit officials, the judiciary has worked with GSA to explore opportunities to save money by moving out of costly leased private space and into federally owned space, and these efforts have resulted in a decrease in privately leased space occupied by the appellate courts. For example, in January 2016, at the Lewis Powell U.S. Courthouse and Annex located in Richmond, VA, the Fourth Circuit’s Office of Staff Counsel moved out of leased space into 44 renovated offices within the existing, historic appellate courthouse and annex.

Space Distribution within the Appellate Courts

Distribution of Appellate Space, Fiscal Year 2015 Courtrooms, judges’ chambers, and circuit libraries accounted for more than two-thirds of appellate space in fiscal year 2015, as measured in rentable square feet (see fig. 4).

Distribution of Appellate Space, Fiscal Years 2009 through 2015 Similar to the overall trends for appellate space from fiscal years 2009 through 2015 discussed earlier, square footage across the largest five of the seven appellate space types (i.e., courtrooms and judges’ chambers, circuit libraries, clerk, central legal staff, circuit executive) trended upward until fiscal year 2013, as shown in table 2. However, since fiscal year 2013, the square footage for all types of appellate space occupied has decreased. The largest space type, courtrooms and judges’ chambers, grew from about 2.10-million rentable square feet in fiscal year 2009 to about 2.29-million rentable square feet in fiscal year 2013, but has since decreased by 58,360 square feet to about 2.23-million rentable square feet in fiscal year 2015. The second largest space type, circuit libraries, similarly trended upward until fiscal year 2013 (from about 950,000 rentable square feet in fiscal year 2009 to about 1-million rentable square feet in fiscal year 2013), and then experienced a decrease in space occupied between fiscal years 2013 and 2015 of 61,500 rentable square feet.

The amount of appellate space occupied within judicial circuits and the corresponding rent paid for this space varies widely, and the variation reflects differences among the circuits in geographic size and populations served, appellate case filings, number of facilities occupied, and rental rates. More specifically, figure 5 shows the space appellate courts occupied in fiscal year 2015 by regional circuit, along with associated rent costs for that fiscal year. For example, the geographic size and appellate case filings of the Ninth Circuit are the largest of all appellate courts, and the corresponding annual rent costs are the highest of the circuits. However, while the Second Circuit’s geographic area and appellate caseload are much smaller than those of the Ninth Circuit, the Second Circuit pays the second highest annual rent cost for its appellate space of all the circuits. These rent costs may be due, in part, to rental rates the circuit pays for appellate space in its lower Manhattan circuit headquarters, the Thurgood Marshall U.S. Courthouse.

Use of Appellate Courtrooms and Chambers Varies across Circuits, Reflecting Differences in Circuit Characteristics, and Library Use Has Decreased Courtrooms

While all circuits reported a decrease in the use of traditional library space due to digital technology, use of appellate courtrooms and chambers varies across circuits due to factors unique to each circuit—including geographic size, case filings, oral argument practices and tradition, and the space available for use in each courthouse.

Circuits’ use of appellate courtrooms depends upon a variety of factors, including the circuit’s caseload and traditional oral-argument-scheduling practices (e.g., how often sittings occur and the number of cases heard per sitting), as well as how many courtrooms are available to hear oral arguments. Table 3 shows for each regional circuit the number of appellate courtrooms, oral argument sittings, and cases heard by oral argument in fiscal year 2015. According to officials we interviewed, since most appeals filed are decided based upon written briefs as opposed to oral arguments, appellate judges generally spend less time in courtrooms than they do in chambers, and according to AOUSC officials, in recent years appellate case filings have remained relatively stable. For those appeals requiring a courtroom, appellate court staff schedule oral arguments before panels of at least three judges in courtrooms on schedules that are at the discretion of the circuit, and which therefore vary by circuit. Based on our review of data and interviews, the circuits’ scheduling of oral arguments affects how often appellate courtrooms are used. For example, the Second Circuit hears oral arguments every week except one for 11 months out of the year in one or both appellate courtrooms in its circuit headquarters in New York, NY. Other circuits may hear oral arguments less frequently, but typically run multiple oral argument sittings simultaneously in one courthouse, such as the Fourth Circuit, which holds multiple oral argument sittings simultaneously in up to six courtrooms during six regularly scheduled “court weeks” in its circuit headquarters in Richmond, VA. Still other circuits may hear oral arguments in various courthouses located throughout the circuit at various times throughout the year. The Ninth Circuit operates this way and holds varying numbers of sittings in appellate courthouses in San Francisco, CA; Pasadena, CA; Seattle, WA; and Portland, OR, as well as in bankruptcy and district courtrooms in Hawaii and Alaska, respectively. Some circuit space- planning officials told us their circuits have considered seeking changes in the way oral arguments are scheduled for various reasons, including improving the utilization of appellate courtrooms, as discussed later in the report. However, AOUSC officials noted that some circuits have a small number of appellate courtrooms, therefore adjusting oral-argument-scheduling practices may not enable these circuits to reduce courtroom space. For more detailed information about how different circuits use their courtrooms for oral arguments, see appendix III.

According to judicial staff and judges with the U.S. Courts of Appeals, judges spend most of their work time outside appellate courtrooms in their chambers. However, typical use of resident and non-resident chambers depends upon a number of factors, such as the geographic size of a circuit and where its appellate judges are located, as well as how a circuit operates and what chambers space is available in appellate courthouses. As previously mentioned, according to the judiciary’s AMP Business Rules, each appellate judge is allocated one dedicated chambers at his or her resident location in either a courthouse or leased space. In addition, depending upon where a judge’s duty station is located and where that location fits into the geography of the circuit, an appellate judge’s resident chambers might not be located within the appellate courthouse in which oral arguments are heard. In these cases, appellate judges may also have non-resident (i.e., visiting) chambers available for use at one or more courthouses within their circuit. Whether these non-resident appellate chambers are assigned to specific visiting judges or shared among visiting judges is up to the discretion of the circuit. For example, a circuit’s space-planning official said appellate judges in his circuit do not share visiting chambers; while in another appellate courthouse in San Francisco, CA, visiting judges use a row of nine small visiting chambers shared by 11 non-resident judges, who request them as needed. Table 4 shows the resident and non-resident chambers in the courthouses that house appellate courtrooms.

As previously mentioned, all circuits have central libraries in headquarters courthouses and satellite libraries elsewhere in the circuit for court staff, judges, attorneys, and, in some cases, the public to use. Appellate staff we spoke with at all circuits said that circuits are monitoring how their library collections are used in order to determine the materials they need to retain, as library users increasingly access materials electronically and therefore no longer need access to as much paper material. As previously mentioned, according to our analysis of GSA’s rent data, circuit library space experienced a decrease in space occupied between fiscal years 2013 and 2015 of 61,500 rentable square feet. Appellate staff we spoke with at all circuits around the nation said they have been working to decrease their circuit library space, as discussed later in the report.

Circuits Have Reduced and Improved Appellate Space Use despite Challenges; However, Additional Information Could Help Guide Space Decision Making

Circuits Have Taken Actions to Reduce Libraries and Other Appellate Space

All 12 regional circuits have taken actions to reduce and improve the use of appellate space throughout the nation since the judiciary established the national space reduction target in 2013—with the largest share of space reduction projects occurring in circuit libraries. As of March 2016, according to the most recent AOUSC data available and our interviews with all 12 regional circuits, circuits have completed 60 appellate space- reduction projects and begun an additional 22 projects—for a total of 82 projects. In total, these account for approximately 252,643 usable square feet that have already been, or will be, taken off the judiciary’s rent bill, according to AOUSC. More specifically, the 60 completed appellate space-reduction projects account for 169,231 usable square feet that have been taken off the judiciary’s rent bill since fiscal year 2013 and appellate space-reduction projects planned or under way account for an additional 83,412 usable square feet that will be taken off of the judiciary’s rent bill by fiscal year 2018, according to AOUSC’s March 2016 data. Library reductions accounted for approximately 55 percent of the 82 appellate space reduction projects completed or under way since 2013, as measured in usable square feet. According to AOUSC, in recent years, the Judicial Conference has approved several cost-saving initiatives relating to libraries and legal research resources that have resulted in reductions in library space throughout the regional circuits. The remaining projects consist of reductions of courtrooms and judges’ chambers (about 25 percent) and appellate staff offices and storage (about 20 percent).

Appellate space reduction projects range in size from the release of 37 usable square feet of storage space in the E. Barrett Prettyman U.S. Courthouse in the D.C. Circuit, to a series of three reductions totaling 18,213 usable square feet at the Fifth Circuit’s Homer Thornberry Building located in Austin, TX. The reductions included the closure of a satellite library and—due to fluctuations in the number of appellate judges—the release of appellate judges’ chambers. Table 5 provides other examples of appellate space reduction projects completed and planned as of March 2016.

Some Circuits Have Taken Innovative Approaches to Reducing or Improving Courtrooms’ and Chambers’ Use; Others Expect To Do So

Some circuits had already begun to reduce or better use their existing appellate space through innovative courtroom and judges’ chambers design prior to the 2013 national space-reduction policies; other circuits said they anticipate making reductions in, or changes to, how they use appellate courtrooms or judges’ chambers space as they look to further reduce space.

Innovative Approaches to Appellate Chambers and Courtrooms’ Design and Use

The following two projects are examples of innovative approaches to using appellate courtroom and judges’ chambers space, including designs that employed unique space reduction tactics.

Shared non-resident appellate judges’ chambers: At the James A. Byrne U.S. Courthouse located in Philadelphia, PA, the Third Circuit’s space- planning officials have reconfigured three existing non-resident appellate judges’ chambers so that more appellate judges and their staff can use this space when they are visiting the headquarters to hear oral arguments. In order to implement this configuration, the appellate judges within the circuit agreed that they would be willing to use less chambers space when visiting the headquarters than provided for in the Design Guide. Each re-configured non-resident chambers suite will be able to accommodate four visiting judges (as opposed to 1) and their staff (up to 4 staff for each judge) in the same footprint of what was previously one non-resident appellate chambers suite (see fig. 6).

Shared appellate courtroom: The Seventh Circuit’s headquarters in Chicago features an appellate courtroom with a sliding seal, supporting shared use by both the court of appeals and the district court. A space planning official with the Seventh Circuit said that different court units should be encouraged to share courtrooms when they are collocated and can be physically configured properly for both types of proceedings (see fig. 7).

Most circuit officials with whom we spoke said they expect changes may be necessary in how they use appellate courtrooms or judges’ chambers as they look to further reduce space as part of the space offset requirements of the No Net New policy. With regard to appellate courtrooms, as previously mentioned, two circuits said they are considering, or have discussed, seeking changes in the way oral arguments are scheduled in order to use appellate courtrooms more efficiently and reduce the need for space. For example, space planning officials for the Fourth Circuit said that their appellate court has considered scheduling oral argument sessions more often throughout the year and rotating appellate judges’ participation in oral arguments, a change that would decrease the number of courtrooms needed for oral arguments in the circuit’s Richmond, VA, headquarters. In another example, a space planning official for the Ninth Circuit said that the appellate court has considered extending the length of oral argument sessions, which would allow panels of judges to hear more oral arguments per sitting, potentially resulting in higher appellate courtroom utilization rates and reduce the need for space. However, as previously mentioned, AOUSC officials noted that some circuits have a small number of appellate courtrooms; therefore, adjusting oral-argument- scheduling practices may not enable those circuits to reduce courtroom space. With regard to appellate judges’ chambers, while the Third Circuit is the only appellate court to have renovated the layout of existing non- resident judges’ chambers to better utilize existing space, 7 of the remaining 10 circuits that have non-resident chambers (excluding the D.C. Circuit, which has none) reported viewing the sharing of non- resident appellate chambers as likely in the future, based on anticipated space needs and the need to essentially freeze the footprint, as required by the No Net New policy. For example, the chief judge of the First Circuit told us that while a large number of appellate judges are, or will soon be, eligible to take senior status, the circuit is already using all its appellate chambers space in the Moakley courthouse located in Boston, MA. He said that appellate judges in the circuit are considering whether to begin sharing non-resident chambers among its visiting judges as appellate judges take senior status. Some circuits have already begun to share non-resident appellate chambers. For example, the Ninth Circuit’s space- planning officials demonstrated how they use removable, magnetic nameplates to assign 11 non-resident appellate judges to nine visiting chambers.

Circuits Face a Variety of Challenges to Reducing and Improving Use of Appellate Space

Circuits’ space-planning officials stated that they face a number of challenges to reducing and improving the use of their appellate space. These challenges include: Obstacles to releasing space: GSA and circuit officials with whom we spoke noted that GSA has recently implemented a standardized process for agencies that wish to release space prior to the end of the occupancy term and said that assuming appropriate criteria are met, GSA regions have generally been timely in doing so. However, space-planning officials from six circuits said that security and traffic pattern requirements at courthouses can put certain appellate spaces off-limits for release, since GSA must consider marketability and suitability of released space for other potential tenants. In addition, if a circuit’s appellate space is not marketable in its existing configuration but could be made so through renovation, then the space may be released to GSA only if the judiciary funds the needed alterations. Such an expense can prove challenging if the circuit does not have the needed funds.

Uncertainty of judicial appointments and senior judges: Officials we spoke to at nine circuits expressed concerns about making space-planning decisions in the face of uncertainty about (1) when appellate judges will be appointed to fill vacant seats and (2) when appellate judges will take senior status and replacement judges for them will be appointed. In both cases, circuit space-planning officials at nine circuits said they could suddenly be faced with needing significant chambers space in a short amount of time. For example, the Second Circuit’s space-planning officials noted that between vacancies and judges eligible to retire, they could, at any time, need to find chambers space for up to seven additional judges.

Historic buildings limit potential for space reductions: Space-planning officials we spoke to at seven circuits noted that appellate courthouses are typically older buildings and said that renovating historic buildings can be costly, highly regulated, and often limited in scope by antiquated space configurations. For example, the Second Circuit’s space-planning officials said at the historic Thurgood Marshall U.S. Courthouse in New York, NY, the projected high cost of removing walls to modernize office space has caused them to leave the walls in place. Also, according to officials at six circuits, high costs for extensive renovations often lengthen return-on- investment calculations.

Appellate space reductions will become increasingly difficult: While circuits have made progress reducing appellate space as part of the judiciary’s national 3 percent space-reduction target, most circuit officials we spoke to said future appellate space reductions required by the No Net New policy will become increasingly difficult, in part, because circuits have focused on appellate space that has been easier to reduce to date—such as circuit libraries and unneeded storage or office space, as discussed later in the report.

AOUSC Is Working to Provide Information to Circuits to Assist in Space Reduction Efforts

The AOUSC, under the direction of the Judicial Conference’s Committee on Space and Facilities, is working to assist the circuits’ space reduction efforts by sharing information on space reduction with court staff. Specifically, AOUSC officials reported sharing information and providing support through a variety of means, including: (1) providing guidance in the Design Guide on alternative workplace design options; (2) providing information on space reduction strategies and options through the judiciary’s intranet, including policies, informational articles, case studies, and video presentations; (3) providing staff program support to circuits; and (4) through presentations at meetings of Judicial Councils and committees, advisory councils and groups, and other events. For examples of space reduction information and support provided to circuits by AOUSC, see table 6.

Most Circuits Believe Appellate Space Reductions Will Become Increasingly Difficult; However, Additional Information Could Help Guide Circuits

As previously discussed, while circuits have made progress reducing appellate space, most circuit officials we spoke to said future appellate space reductions required by the No Net New policy will become increasingly difficult. As circuits have focused on appellate space that has been easier to reduce to date—such as circuit libraries and unneeded storage or office space—GSA regional and circuit officials noted that national space-reduction policies have had a positive impact in incentivizing circuits to reduce appellate and other space. However, circuit officials said that remaining space types, such as appellate courtrooms and judges’ chambers, may be more difficult to reduce or reconfigure. While appellate courtrooms and judges’ chambers made up about half of all appellate space in fiscal year 2015, as previously mentioned, space reduction projects involving courtrooms and judges’ chambers made up about a quarter of all appellate space reduction projects, completed and under way, from fiscal year 2013 through March 2016. Also, as discussed, most circuit officials with whom we spoke said they expect changes may be necessary in how they use appellate courtrooms or judges’ chambers as they look to further reduce space as part of the No Net New policy. However, AOUSC and circuit officials noted that making changes to courtrooms and judges’ chambers may require adjustments in appellate culture and established patterns of how judges use these spaces, when and how often they meet, and how much chambers space they expect to receive. According to judicial and GSA officials, appellate judges and staff traditionally expect the square footage allocated in the Design Guide for space they occupy—such as for appellate judges’ chambers suites—and these expectations play a role in space allocation decisions. Ultimately, according to AOUSC and circuit officials, it is the appellate judges themselves who must determine whether these changes are appropriate for their circuit. AOUSC officials added that since the amount of space dedicated to appellate courtrooms and judges’ chambers differs from circuit to circuit, the ability to reduce space requirements by making changes to appellate courtroom or chambers use will vary.

While circuits’ space-planning officials discuss various types of space reduction projects and have access to space-reduction project information provided by AOUSC on its intranet, with the exception of the project described below, there is currently no additional information available to circuits on innovative or cost-effective appellate courtroom and chambers design or use. After assessing the information described earlier that AOUSC provides to circuits, we found limited information specifically addressing judges’ chambers design and use, and no information that addressed courtroom designs that could facilitate courtroom sharing between courts or potential changes to oral arguments’ scheduling that could improve use of appellate courtrooms. For example, while AOUSC has provided information to circuits on the one completed project involving shared non-resident appellate judges’ chambers, it has not provided further information that could help circuits explore whether other types of innovative approaches could be feasible or appropriate—such as design options or strategies for sharing or better using appellate judges’ chambers space and courtrooms. In addition, while the recently published chapter of the Design Guide provides information on Alternative Workplace Strategies and designs, these concepts are typically not applied to appellate courtrooms or judges’ chambers, as the Design Guide states these space-saving design approaches are specifically applicable to court office space.

AOUSC officials agreed with GAO’s assessment that limited information is available concerning innovative appellate courtroom and judge’s chambers design or use options. However, AOUSC officials noted that if regional circuits are interested in such options, they could ask AOUSC or other circuits for this information. As previously discussed, while AOUSC has shared project information on the Third Circuit’s non-resident appellate judges’ chambers project with circuits, we found there was at least one additional innovative design option for which there was no shared information—the shared appellate courtroom in the Seventh Circuit. We also found examples of alternative oral arguments’ scheduling practices that could help reduce the need for appellate courtroom space, as mentioned above. AOUSC officials agreed that appellate space reductions will become increasingly difficult and said that, moving forward, they could provide additional information for circuits considering reductions in, or changes to, appellate courtrooms or judges’ chambers design and use.

Federal standards for internal control recognize that communicating quality information that is gathered and shared internally is vital for an entity to achieve its objectives. As government-wide efforts continue to focus on the need to better utilize existing real property assets in order to promote efficiency and leverage limited government resources, one way agencies can become better stewards of government resources is through enhancing information sharing and coordination. We have previously noted the importance of information sharing among federal entities and identified various practices for enhancing coordination among entities, such as through frequent communication. As a 2014 memorandum to all U.S. judges from the Judicial Conference made clear, the judiciary has solicited new ideas for reducing space, and encouraged communication about new ideas between circuits and AOUSC. Reducing the judiciary’s rent by reducing space in order to save jobs is the top space-related priority for all circuits, according to the Judicial Conference. Consequently, according to the 2014 memo, judges, circuits, local courts, and court units are all encouraged to communicate and share information on new ways to reduce the judiciary’s rent by reducing space.

Given the decentralized nature of the judiciary’s decision making for appellate and other space use and needs, and the array of challenges the circuits reported facing in reducing space now and in the future, AOUSC could serve a unique role moving forward in gathering and sharing information from various circuits specifically on unique practices or strategies circuits could use to successfully reduce or better use existing appellate courtroom and judges’ chambers space through innovative courtroom and judges’ chambers design or use. As circuits across the country have searched for additional ways to reduce space, they could benefit from the AOUSC’s leading a concerted, centrally managed information-sharing effort that could: Help circuits determine feasibility: By fully documenting and sharing additional information on innovative courtroom and judges’ chambers designs, scheduling practices, or sharing arrangements, including ways circuits can evaluate whether shared non-resident appellate judges’ chambers could work for them, AOUSC could assist those circuits that are considering the feasibility of these strategies as a way to meet future space-reduction requirements in their circuit. Further, this information could assist the Judicial Conference in determining if additional guidance on appellate courtroom and judges’ chambers design or use is needed.

Assist circuits’ space-planning staff: In an environment in which decision making is decentralized—as it is in the federal judiciary—and space- planning staff typically make recommendations to appellate judges, who may not have previously considered innovative space-saving options for appellate courtrooms and judges’ chambers, having access to well- organized information provided by AOUSC on innovative or successful practices could strengthen the ability to pursue new approaches and options. Some officials with whom we spoke noted that changes to appellate courtroom or judges’ chambers design and use may, in some cases, also require a change in the culture of the court along with changes in the way these spaces are used by appellate judges and their staff.

Prevent missed opportunities: According to AOUSC, given anticipated funding levels and space reduction initiatives, serious consideration needs to be given to reconfiguring and re-purposing space already in the judiciary’s space inventory. Especially in an environment of limited resources, without additional information, circuits may miss opportunities to explore innovative or cost-effective appellate courtroom and judges’ chambers design or uses as circuits plan to meet future space-reduction requirements, such as space offset requirements of the No Net New policy. As one circuit’s space-planning official noted, while the potential exists to reduce appellate courtrooms and judges’ chambers space in his circuit, there is no incentive to do so on the part of the judges, in part, because no national direction or guidance exists to suggest specifically directing circuits to share or reduce appellate courtrooms or chambers. Instead, AOUSC data show that the circuit has focused primarily on library and staff office space to meet national space-reduction policies.

Conclusions

As the judiciary’s overall rent costs hovered near $1 billion, the Judicial Conference and circuit judicial councils put into place policies and practices that now provide circuits with tools and incentives to reduce space—and circuits have made progress in reducing appellate space. Many of the actions taken so far for appellate space have been to reduce and reuse circuit libraries due, in part, to changes in technology and use of these spaces over time. However, given the ways appellate judges use courtrooms and non-resident judges’ chambers, there may be an opportunity for circuits to consider other types of non-traditional or innovative strategies for projects that save appellate space or use existing space better. The Third Circuit’s shared non-resident appellate chambers project, the Seventh Circuit’s shared appellate courtroom design, and appellate discussions on potentially changing scheduling methods to increase efficient courtroom use indicate that there is room for circuits to explore further options of how they can reduce or make better use of appellate space. As each appellate court explores its options, and makes decisions concerning its own space needs, additional information that could assist them in rethinking their existing practices for space use and configuration could help the judiciary realize additional savings in a time where its resources are limited and it faces an array of challenges to reducing space. To date, while AOUSC has played an important role by sharing information with circuits on space reduction strategies, there has been no centrally managed effort on the part of the judiciary to document and share practices for innovative space-saving design and use practices for appellate courtrooms and judges’ chambers. As circuits’ space- planning staff and appellate judges consider the steps they will take to achieve remaining space reductions—which officials said will become increasingly more difficult over time as easier projects are completed— such additional information sharing could help circuits consider all appellate space reduction options available to them, some of which they may not be aware of.

Recommendation

To provide circuits with information needed to help guide future space- reduction and use decisions, we recommend that the Director of AOUSC document and share additional practices on innovative and cost-effective use or design of appellate courtrooms and judges’ chambers, such as scheduling, redesign, and sharing arrangements, and any other potential approaches, with all regional circuits in order to help them determine the feasibility of these options for their circuit.

Agency Comments

We provided a draft of this report to AOUSC and GSA for review and comment. AOUSC provided written comments on the draft, which are reprinted in appendix IV. In commenting on a draft of this report, AOUSC stated that the judiciary appreciates and takes seriously the recommendation and findings in the report and will give them careful consideration. AOUSC and GSA also provided technical clarifications that we incorporated as appropriate.

We are sending copies of this report to the appropriate congressional committees, Director of AOUSC, and the Administrator of GSA. In addition, the report is available at no charge on our Web site at http://www.gao.gov.

If you or your staff have any questions about this report, please contact me at (202) 512-2834 or shear@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Staff who made key contributions to this report are listed in appendix V.

Appendix I: Objectives, Scope, and Methodology

Our objectives were to examine: (1) policies and practices that guide space use decisions for federal courts of appeals; (2) trends in rent, space occupied, and use of courtrooms and other space for federal courts of appeals; and (3) actions the judiciary has taken to reduce or improve use of appellate space, including any related challenges and the extent to which it has shared information to support such efforts.

To understand how federal courts of appeals use their courtrooms and other space, what policies and practices guide their space use decisions, as well as to identify actions taken to reduce or better use appellate space, any challenges faced, and the extent to which the judiciary has shared information to support its efforts, we reviewed relevant statutes, GSA and judicial space policies and guidance, information on the judiciary’s appellate space-reduction projects, and our prior reports related to the federal judiciary. We also interviewed officials from all 12 of the judiciary’s regional circuits, including appellate judges, court staff, and space- planning officials, and visited a non-generalizable sample of seven appellate courthouses in the Third, Fourth, Seventh, and Ninth circuits and the District of Columbia. We chose site visit locations based on various factors, including characteristics of the circuits and appellate courts, such as number of case filings, location and number of appellate courthouses, and the scale of appellate space-reduction projects—in order to include courts in diverse locations with a variety of caseloads, space reductions, and other characteristics. We also interviewed relevant officials with GSA’s 11 regional offices who work with the judiciary on space needs and issues and officials from GSA’s central office and the Administrative Office of the U.S. Courts (AOUSC) about space use policies and appellate decision making. We assessed the judiciary’s efforts to share information and achieve desired results for reducing its space, including its appellate space, against pertinent federal standards for internal control—standards that include plans, methods, and procedures used to meet missions, goals, and objectives.

To examine the rent and space occupied by the U.S. Courts of Appeals, we analyzed nationwide judiciary rent data generated from GSA’s billing system from fiscal years 2009 through 2015. These data consist of monthly billing information, such as rent paid, rentable square feet, and assigned court unit from GSA’s “Rent on the Web” system and additional information, such as usable square feet, from GSA’s “Occupancy Agreement Tool.” In order to analyze trends over time, we used unique occupancy agreement numbers to examine monthly inventory snapshots from GSA’s Rent on the Web—one for each month between October 2008 and September 2015—to provide information on the characteristics of space occupied by the U.S. Courts of Appeals during each fiscal year under review. Using unique occupancy agreement numbers, we matched these rent data with GSA’s Occupancy Agreement data to provide information on usable square feet. We analyzed data on appellate space from fiscal years 2009 through 2015, including rent paid, square footage, court unit, and whether space was federally owned or leased. We reviewed GSA’s information on the judiciary’s Agency/Bureau code designations to provide information related to various court units (e.g., Circuit Executive, Central Legal Staff, and Circuit Libraries). To determine whether these data were of sufficient reliability for our analysis, we reviewed the paperwork associated with the databases and discussed various data elements with GSA staff responsible for the data. We also conducted our own electronic testing to check the consistency of the data and to reconcile the accuracy of certain occupancy agreement numbers. We did not attempt to evaluate or test all of the aspects of the GSA data files, but instead focused on data related to the U.S. Courts of Appeals. As a result of our review and discussions, we determined that the data were sufficiently reliable for the purposes of examining the rent and characteristics of the space occupied by the appellate courts from fiscal years 2009 through 2015.

We conducted our work from November 2015 to December 2016 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.

Appendix II: Case Filings and Authorized Judges by Circuit for U.S. Courts of Appeals

Appendix III: Courtrooms’ and Oral Arguments’ Scheduling Practices for U.S. Courts of Appeals

Typical oral arguments’ scheduling practices 289 Term: Aug. – June (11 mos.)

Sitting Schedule: 1 week per month (11 weeks) Courtrooms used: 1-2 Term: November and March (2 mos.) Sitting Schedule: 1 week per month (2 weeks) Courtrooms used: 1 (shared with district court) 786 Term: Aug. – June (11 mos.)

Sitting Schedule: daily, with the exception of one week in December Courtrooms used: 1-2 221 Term: Sept. – June (10 mos.)

Sitting Schedule: 34 weeks Courtrooms used: 2 293 Term: Sept. – May (9 mos.)

Sitting Schedule: 6 weeks Courtrooms used: 6 Term: Sept. – May (9 mos.)

Sitting Schedule: Oral arguments are not typically heard in Baltimore, MD. Courtrooms used: 1 801 Term: Jan. – Dec. (12 mos.)

Sitting Schedule: 15-20 weeks Courtrooms used: 3 Term: Jan. – Dec. (12 mos.) Sitting Schedule: 1-5 weeks Courtrooms used: 1 (shared with district court) 590 Term: Jan. – Dec. (12 mos.)

Sitting Schedule: 14 weeks Courtrooms used: 3 613 Term: Jan. – Dec. (12 mos.)

Sitting Schedule: 26 weeks Courtrooms used: 1-2 (1 courtroom shared with district court)

U.S. Court of Appeals

Courthouse location(s)

Typical oral arguments’ scheduling practices 427 Term: Sept. – June (10 mos.)

Sitting Schedule: 6 weeks Courtrooms used: 1-4 Term: Sept. – June (10 mos.) Sitting Schedule: 7 weeks Courtrooms used: 1-3 Term: Sept. – June (10 mos.) Sitting Schedule: 2 weeks Courtrooms used: 1 Term: Sept. – June (10 mos.) Sitting Schedule: 2 weeks Courtrooms used: 1 1,507 Term: Oct – Sept. (12 mos.)

Sitting Schedule: 1-2 weeks per month Courtrooms used: 4 Term: Oct – Sept. (12 mos.) Sitting Schedule: 1-2 weeks per Month Courtrooms used: 3 Term: Oct – Sept. (12 mos.) Sitting Schedule: 1 week approx. 6 times per year Courtrooms used: 1 Term: Oct – Sept. (12 mos.) Sitting Schedule: 1 week approx. 8 times per year Courtrooms used: 3 347 Term: Sept., Nov., Jan., Mar., May (5 mos.)

U.S. Court of Appeals

Courthouse location(s)

Typical oral arguments’ scheduling practices 414 Term: Oct. – Sept. (12 mos.)

Sitting Schedule: 14 weeks Courtrooms used: 2 Term: Oct. – Sept. (12 mos.) Sitting Schedule: 3 weeks Courtrooms used: 1 Term: Oct. – Sept. (12 mos.) Sitting Schedule: 4 weeks Courtrooms used: 1 Term: Oct. – Sept. (12 mos.) Sitting Schedule: 10 weeks Courtrooms used: 1 288 Term: Sept. – May (9 mos.)

Sitting Schedule: throughout the month Courtrooms used: 1 (plus 1 courtroom on loan from the district court, used as needed)

There are also 2 courtrooms assigned to the U.S. Court of Appeals for the Tenth Circuit in Kansas City, KS. However, these courtrooms are rarely used by the appellate court, according to circuit officials, but instead are used as district court special proceedings courtrooms and rent for these courtrooms is paid by the district courts.

Appendix IV: Comments from the Administrative Office of the U.S. Courts

Appendix V: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, David Sausville (Assistant Director), Jean Cook (Analyst in Charge), Melissa Bodeau, Gary Guggolz, Geoffrey Hamilton, Terence Lam, SaraAnn Moessbauer, Malika Rice, Minette Richardson, and Kelly Rubin made key contributions to this report.