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June 2010

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This article is in the news archives --- for current news go to the Third Branch News.


Judiciary Counters GAO's Courthouse Assessment

Cites Good Stewardship and Efficient Delivery of Justice in Planning Federal Courthouses

A draft Government Accountability Office (GAO) report asserting there were significant amounts of wasted space and excessive costs in the construction of federal courthouses was the subject of a House subcommittee hearing last month, where representatives of the Judicial Conference and the General Services Administration contested the validity of GAO’s findings.

Judge Michael A. Ponsor (D. Mass.) and Judge Julie A. Robinson (D. Kan.) presented the Judiciary’s policy on courthouse planning at last month’s congressional hearing.

Judge Julie A. Robinson (D. Kan), chair of the Conference Committee on Court Administration and Case Management and Judge Michael A. Ponsor (D. Mass), chair of the Conference Committee on Space and Facilities testified before the House Transportation and Infrastructure Subcommittee on Economic Development, Public Buildings, and Emergency Management. The General Services Administration’s (GSA) Commissioner of Public Buildings Service, Robert A. Peck, also testified. The Judiciary and GSA witnesses expressed concerns about the accuracy of GAO’s analysis and conclusions.

Commissioner Peck expressed “serious concerns” with the draft report and took exception to much of GAO’s methodology and many of the report’s conclusions. He pointed out that supposed discrepancies in square footage between planned and constructed buildings appeared to be largely due to differences in how GSA and GAO calculated square footage. In particular, Peck disavowed GAO’s assertion that $835 million was overspent on courthouses. He noted that all of the courthouses were constructed within congressionally allowable cost margins and that cost differences GAO inaccurately attributed to overbuilding were instead “primarily due to unprecedented increases in construction costs during GAO’s audited time period. This phenomenal cost growth was well documented and was due to an industry worldwide building boom that resulted in acute material and labor shortages.”

Robinson also countered GAO’s findings in her testimony: “Judges are good stewards of the taxpayers’ money,” she said. “But we also want to determine cases in a just, efficient, and inexpensive manner… An uninformed or hasty courtroom sharing policy will cause delay. It will increase costs. It will impair our ability to administer justice…,”

Peck noted that all of the courthouses were constructed within congressionally allowable cost margins and that cost differences GAO inaccurately attributed to overbuilding were instead “primarily due to unprecedented increases in construction costs during GAO’s audited time period.

In the past, the Judiciary planned one courtroom for every judge. That is no longer the case. Robinson briefed the Subcommittee on the results of an independent study by the Federal Judicial Center of courtroom usage which led to the Judicial Conference’s recent courtroom sharing policies of one courtroom for every two senior judges, one courtroom for every two magistrate judges, and a review of potential sharing for bankruptcy judges and in courthouses with more than 10 active district judges.

Subcommittee Chair Eleanor Holmes Norton (Del. DC), said the Subcommittee will “withhold authorizing new additions to the courts’ inventory until we are convinced that the Federal Courthouse Construction program is satisfactorily reformed. There will be courtroom sharing where it is appropriate, and every courthouse on the courts’ Five Year Courthouse Project Plan will be reconsidered under new sharing guidelines. We do not plan to authorize any new courthouses without details on real savings and programs to control spending.”

GAO’s Director of Physical Infrastructure, Mark L. Goldstein, testified on the draft report’s conclusion that 33 federal courthouses completed since 2000 are over-built by 3.6 million square feet of unnecessary space. Goldstein criticized the GSA for exceeding authorized courthouse sizes and for inadequate oversight of the courthouse construction program. He criticized the Judiciary’s planning projections of the number of judges expected to be in the facilities, and also asserted that space is wasted because of inadequate courtroom sharing. Goldstein explained that GAO used a computer simulation model to conclude that two courtrooms should suffice for every three active district judges and that only one courtroom should be allowed for every three senior district judges. GAO retroactively applied these untested formulas to 33 already built courthouses that were congressionally authorized and constructed under a policy of one courtroom per judge, and deemed the differences in actual courtroom numbers compared to GAO’s “model” to be unnecessary and wasted space. The draft report also counted courtrooms and chambers slated for pending new judgeships as excess space.

 “The Judiciary has made great strides in reducing its construction and rent costs by sharing,” Robinson said. “These recently enacted policy changes and our continued study of these matters are based on thorough and considered analysis of the data and its potential impact on the Judiciary’s responsibility to provide an impartial forum in which criminal prosecutions and civil matters can be resolved in a ‘just, speedy, and inexpensive manner,” Robinson said. “These changes reflect—as a computer modeled simulation simply cannot—the real-world experiences of litigants, parties, and judges who sit in these courtrooms regularly. They also take into account the legitimate concern of your Subcommittee and all of us that the taxpayer’s money be wisely spent. Fundamentally, we believe the policy changes we are adopting strike the correct balance between costs and ensuring a high quality of justice.”

“An uninformed or hasty courtroom sharing policy will cause delay… It will impair our ability to administer justice.”

Judge Julie A. Robinson (D. Kan.)

Chair of the House Judiciary Subcommittee on Courts and Competition Policy and a member of the Subcommittee on Economic Development, Public Buildings and Emergency Management, Representative Hank Johnson (D-GA) defended the Judiciary’s perspective. “No judicial officer took part in deciding how much space we need for a committee room, no executive officer,” he said. “Everybody respected the fact that the Legislature should control its use of the space that it decided to build.” Citing his long professional experience as a lawyer and his respect for the judicial system, Johnson questioned whether anyone but the Third Branch could determine courtroom needs.

Ranking Subcommittee member, Representative Mario Diaz-Balart (R-FL) also criticized the Judiciary for “basing space decisions on bad projections,” saying that “while it is important for the Judiciary to have appropriate space to carry out its constitutional functions, we also must ensure that we are good stewards of taxpayer dollars.”

House Transportation and Infrastructure Committee Chair Ja mes L. Oberstar, who did not attend the hearing, submitted a written statement. Although he expressed concern that the courthouse construction program “had not been administered well by GSA and that the Judiciary had played a significant contributory role in the construction of courthouses that are larger than needed,” Oberstar also said that the calculation by GAO of the unnecessary construction due to the failure of the Judiciary to share courtrooms is an “aggressive estimate: it reaches back in time to say what might have been, had people known then what they have only recently come to know.”

Ponsor told the Subcommittee that the Judiciary was one of the first entities in federal government to establish a systematic approach to space and facilities planning, and in doing so, has implemented GAO’s previous recommendations. He noted, however, that forecasting future caseloads and projecting the number of judges in a single location precisely is challenging, and that the Judiciary uses the best methods available, but the projections are made long in advance of occupying a courthouse. It is “not an exact science,” Ponsor admitted, but he noted that most of the courtrooms in the 33 courthouses studied by GAO are already assigned or will be assigned in the next few years.

From the time of initial planning
to occupancy of new federal courthouses, “circumstances change,” Ponsor said, including changes in caseloads, federal jurisdiction, prosecutorial policies, and in the number of judges because of delays in filling judicial vacancies, delays in approving judgeship bills, decisions made by judges who are eligible for senior status, and because judges die or retire.

“But once the decision is made to size a building based on a certain set of assumptions, it becomes very difficult and costly to change course mid-stream. To do so results in costly change orders and a building that is not likely to meet longer term needs,” Ponsor told the Subcommittee. He also noted that because real property cannot easily expand or contract as circumstances change, the capacity for future growth needs to be included in a new courthouse.

“If Congress had enacted our [judgeship] request, as they had historically done, and we had not planned chambers and courtrooms for these judges, there would have been a critical shortfall of space around the country.”

Judge Michael A. Ponsor (D. Mass)

“If Congress had enacted our [judgeship] request, as they had historically done, and we had not planned chambers and courtrooms for these judges, there would have been a critical shortfall of space around the country,” Ponsor said. He stated that “to say that the space is ‘extra’ because of incorrect judge estimates…is misleading” because the space will be needed at some point in the near future, and courthouses are likely to be used for 50 years or longer.

Subsequent to the hearing, on behalf of the Judiciary, Administrative Office Director James C. Duff submitted extensive comments rebutting GAO’s conclusions. He wrote that “The Judiciary takes its stewardship responsibilities seriously and would welcome a fact-based and objective analysis as well as constructive suggestions for improving our facilities planning approach. It is regrettable at a time when the General Services Administration (GSA) and the Federal Judiciary are working closely and effectively to control courthouse costs—including current and planned courtroom-sharing measures adopted by the Judiciary—that GAO has produced a misinformed report that distorts both the current facilities planning process and prior projects. In short, we have serious concerns about the accuracy of key data, the misleading way in which information is presented, and the soundness of methodologies employed to substantiate the draft report’s conclusions. We emphatically dispute the draft report’s contention that the 33 federal courthouses completed since 2000 have 3.56 million square feet of unnecessary and wasted space; and we have grave doubts about the validity and viability of the courtroom-sharing model developed by GAO.”