By Manny Marotta and Gabe Roth

The Judicial Conference’s policies on waste, fraud and abuse (new ones | old ones | comparison), which were updated earlier this month, appear to be a marked improvement over the previous policies, particularly regarding investigator independence and investigation procedures.

But it’s still not a complete response to the 2022 GAO recommendations (scroll to bottom).

While the new policy substantially addresses recommendations 5 and 6, recommendations 1–4, 7 and 8 remain unaddressed or only partially addressed.

Though the judiciary has strengthened the independence of individual investigators, the new regulations don’t fully establish the institutional independence that GAO sought. The new policy requires an investigator to be “outside the chain of command of the subject(s) of the investigation,” but the investigation is still initiated, assigned, supervised and resolved within the judiciary’s existing management structure.

The GAO specifically recommended an independent office within the AO outside its ordinary reporting structure to carry out the waste, fraud and abuse oversight program. The new policy appears not to have created such an office.

Our recommendation by recommendation assessment:

1. GAO’s first recommendation was that the AO should work with the JCUS to ensure that all relevant judicial components have documented processes for addressing waste, fraud and abuse allegations.

The report explicitly identified the old policy’s reliance on voluntary local procedures as deficient. Under the old JCUS policy, court units and FPDOs were merely “encouraged to establish” waste, fraud and abuse reporting procedures.

The new chapter requires court units and FPDOs to adhere to Ch. 14, but continues to say that judiciary organizations may establish separate procedures (see §1410(c)).

In our view, that’s too permissive and inadequate for the GAO recommendation.

While the national policy is now considerably more detailed, it still does not require each component to maintain and document its own procedures, which is the specific deficiency GAO identified. GAO wanted institutional documentation, and the new policy isn’t equal to the task.

Further, the AO told the GAO it was planning on establishing a waste, fraud and abuse working group comprised of judges and judiciary executives, but as of Aug. 2024 (the last time the GAO checked, though we have an inquiry out to GAO to see if there’s been a more recent review), it had not been established.

2. GAO’s second recommendation was that the AO should track, or otherwise ensure it knows, what documented waste, fraud and abuse procedures each component has established.

But nothing in the revised Ch. 14 requires the AO to maintain an inventory of local waste, fraud and abuse procedures or otherwise verify that every component has documented procedures, so the recommendation wasn’t addressed.

3. GAO’s third recommendation was that the AO should analyze the consistency of the documented processes used throughout the judiciary.

The new JCUS policy establishes minimum investigative standards, which should reduce some variation. But it doesn’t require the AO to compare local procedures or determine consistent application. So this recommendation is partially addressed at most. While the national minimum standards are a meaningful improvement, they don’t constitute the consistency review that GAO recommended.

4. GAO’s fourth recommendation was that the AO should establish an independent office within the AO to administer the waste, fraud and abuse program and investigate AO staff and operations, while ensuring that the office has no other responsibilities creating management-participation threats.

GAO specifically explained that such an office could remain within the AO while being outside its reporting structure, which addresses independence concerns without compromising the independence of the judiciary.

Under the old policy, the Deputy Director oversaw the waste, fraud and abuse program, and his/her staff conducted fact-finding involving the AO. Allegations concerning court units were referred to the responsible chief judge or other judiciary official.

Under the new policy, the same basic structure remains. The Deputy Director continues to oversee the program and the Deputy Director’s staff investigates AO allegations. So the GAO’s recommendation hasn’t been implemented at all; the structure is essentially the same as the old policy.

Further, as of Aug, 2024, the AO had not provided documentation demonstrating it had hired investigator(s) solely responsible for looking into waste, fraud and abuse, as it had intimated it would do back in 2023. This is the headline, in our view, and it shows why efforts to establish an IG are so critical.

5. GAO’s fifth recommendation was that the AO should work with the Judicial Conference to identify and implement solutions ensuring that relevant components conduct independent waste, fraud and abuse investigations.

Under the old policy, there was no express requirement for independent investigations (to the subject being investigated), which is why the GAO found that the policies didn’t ensure investigative independence.

Under the new policy’s §1445, an investigator is required to be explicitly independent and outside the subject’s chain of command. The policy prohibits the subject from conducting or overseeing the investigation, and it directs officials to consider an investigator from outside the subject’s organization, which means that the GAO’s recommendation has been substantially addressed here.

But there’s still a distinction between investigator independence and institutional independence. The investigator must be outside the subject’s chain of command, but the official responsible for appointing and overseeing the investigator is still a member of the judiciary’s leadership team. The new JCUS policy explicitly defines that official as potentially the chief judge, circuit judicial council, FPD, bankruptcy administrator or AO Deputy Director.

6. GAO’s sixth recommendation was that the AO update its policies to provide specific details for conducting and documenting investigations and specify what allegation and investigative data should be tracked and how.

The old JCUS policy contained broad responsibilities but relatively little detail concerning how investigations should actually be conducted. The new policy, §1445.50, is much more prescriptive: it establishes screening procedures; requires documentation of decisions not to investigate; provides standards for investigative planning, interviews, evidence collection, chain of custody, documentation and timeliness; specifies the contents of investigative reports; requires official case files; and calls for supervisory review.

So the new JCUS policy comprehensively and substantially addresses the GAO recommendations and improves upon the old policy.

7. GAO’s seventh recommendation was that the AO should consider solutions for storing waste, fraud and abuse allegation data and implement efficient and effective analysis.

The new JCUS policy (§ 1445.50) requires investigative activity to be maintained in official case files and requires information to be reported to the AO and AAOA Committee, but these requirements do not establish a centralized analytical system or specify how data should be stored in a manner permitting efficient analysis.

What’s more, the GAO also recommended that the AO procure software to manage this work, but as of Aug. 2024, the AO said it lacked funding to purchase and implement the new software.

So the GAO recommendations are partially addressed; the new JCUS policy improves collection and reporting of information but does not clearly implement GAO’s recommendation for a system designed for analysis.

8. GAO’s 8th recommendation was that the AO should analyze waste, fraud and abuse allegations and investigation data to identify patterns and trends.

Under the new JCUS policy, the  Judicial Conference Committee on Audits and Administrative Office (AAOA Committee) has an expanded role, so it now receives confidential summaries of allegations and final investigative reports. But the policy does not require the AO to analyze the data for recurring problems, patterns or trends. So the GAO’s recommendations are not adequately addressed. Receiving reports is not the same as analyzing them.

Overall impressions

Regarding concerns over judicial independence and whistleblower protection, the new Judicial Conference policy appears stronger.

It prohibits personnel with authority over employment actions from retaliating against employees who make waste, fraud and abuse disclosures and expands the list of officials to whom such disclosures can be made. It also strengthens confidentiality requirements and permits anonymous allegations. Investigator independence is now expressly required, conflicts are largely addressed, investigative standards are substantially more detailed, additional reporting is required and whistleblower and confidentiality protections are somewhat stronger.

While those protections are useful, they don’t eliminate or fully address the underlying structural concern. An employee can have protection against retaliation while still having to report misconduct into a system controlled by the institution being accused of that impropriety.

In sum, the judiciary hasn’t fully addressed GAO’s concerns about who controls the investigative system. It has not created the independent waste, fraud and abuse office GAO recommended; it has not required, tracked or analyzed local waste, fraud and abuse procedures; it has not established a clear system for analytical use of waste, fraud and abuse data; and it has not expressly required trend analysis.

The resulting system is more insulated at the investigator level but remains embedded in the judiciary’s existing management structure. That distinction matters when the subject of an investigation is itself a senior judiciary official or where the allegation concerns management practices of the organization responsible for overseeing the investigation.

GAO’s proposed independent office (recommendation four or an IG) would address that structural problem without placing the judiciary’s internal administration under a non-third-branch agency.

We believe an inspector general would address that gap more directly. Such an office could independently receive waste, fraud and abuse allegations; select investigators without involvement from officials responsible for the affected organization; maintain independent investigative files; investigate AO management itself; and report findings to an oversight body (and Congress) rather than to the management chain implicated by an allegation.

This is a developing story, and we’ll continue to follow it.