U.S. GOVERNMENT PRINTING OFFICE

68–412 DTP WASHINGTON : 2001

S. HRG. 106–999

GSA’S FISCAL YEAR 2001 CAPITAL

INVESTMENT AND LEASING PROGRAM

HEARING

BEFORE THE

SUBCOMMITTEE ON TRANSPORTATION

AND INFRASTRUCTURE

OF THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

MARCH 21, 2000

Printed for the use of the Committee on Environment and Public Works

(

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: (202) 512–1800 Fax: (202) 512–2250

Mail: Stop SSOP, Congressional Sales Office, Washington, DC 20402–0001
(II)

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

BOB SMITH, New Hampshire, Chairman

JOHN W. WARNER, Virginia

JAMES M. INHOFE, Oklahoma

CRAIG THOMAS, Wyoming

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

MICHAEL D. CRAPO, Idaho

ROBERT F. BENNETT, Utah

KAY BAILEY HUTCHISON, Texas

LINCOLN CHAFEE, Rhode Island

MAX BAUCUS, Montana

DANIEL PATRICK MOYNIHAN, New York

FRANK R. LAUTENBERG, New Jersey

HARRY REID, Nevada

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

RON WYDEN, Oregon

DAVE CONOVER, Staff Director

TOM SLITER, Minority Staff Director

SUBCOMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

GEORGE V. VOINOVICH, Ohio, Chairman

JOHN W. WARNER, Virginia

CHRISTOPHER S. BOND, Missouri

JAMES M. INHOFE, Oklahoma

CRAIG THOMAS, Wyoming

LINCOLN CHAFEE, Rhode Island

MAX BAUCUS, Montana

DANIEL PATRICK MOYNIHAN, New York

HARRY REID, Nevada

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut
CONTENTS

Page

MARCH 21, 2000

OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana .............................. 19

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 2

Graham, Hon. Bob, U.S. Senator from the State of Florida ................................ 21

Moynihan, Hon. Daniel Patrick, U.S. Senator from the State of New York ...... 20

Voinovich, Hon. George, U.S. Senator from the State of Ohio ............................. 1

Warner, Hon. John W., U.S. Senator from the Commonwealth of Virginia ....... 46

WITNESSES

Peck, Hon. Robert, Commissioner, Public Building Service, General Services

Administration ..................................................................................................... 22

Prepared statement .......................................................................................... 46

Written responses to questions from:

Senator Baucus .......................................................................................... 36, 59

Senator Graham......................................................................................... 41, 42

Senator Smith ............................................................................................ 59

Senator Reid .............................................................................................. 60

Senator Voinovich...................................................................................... 44, 57

Roth, Jane R., U.S. Judge, Third Circuit Court of Appeals, Chairman, Judicial

Conference Committee on Security and Facilities ............................................. 28

Prepared statement .......................................................................................... 62

Responses to additional questions from Senator Voinovich .......................... 67

ADDITIONAL MATERIAL

Article, Federal Times ............................................................................................. 61

Statements:

Berne, Bernard H., M.D., Ph.D. ...................................................................... 86

Conway, John E., U.S. District Judge, District of New Mexico, ................... 73

Coyle, Robert E., U.S. District Judge, Eastern District of California .......... 81

Davis, Edward B., Chief U.S. District Judge, Southern District of Florida 71

Edwards, Harry T., Chief Judge, U.S. Court of Appeals for the D.C.

Circuit ............................................................................................................ 68

Hatter, Terry J., Chief U.S. District Judge, Central District of California . 5

Skretny, William M., Judge, U.S. District Court, Western District of

New York ....................................................................................................... 77

(III)

(1)

GSA’S FISCAL YEAR 2001 CAPITAL

INVESTMENT AND LEASING PROGRAM

TUESDAY, MARCH 21, 2000

U.S. SENATE,

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS,

SUBCOMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE,

Washington, DC.

The subcommittee met, pursuant to notice, at 10:05 a.m. in room

406, Senate Dirksen Building, Hon. George V. Voinovich (chairman

of the subcommittee) presiding.

Present: Senators Voinovich, Baucus, Moynihan, Graham, and

Boxer.

OPENING STATEMENT OF HON. GEORGE VOINOVICH,

U.S. SENATOR FROM THE STATE OF OHIO

Senator VOINOVICH. Good morning. This hearing will come to

order.

I’d like to thank Robert Peck, Commissioner of the Public Building Services of the General Services Administration and Judge

Jane Roth, U.S. Court of Appeals for the Third Circuit and chair

of the Committee on Security and Facilities of the Judicial Conference for appearing today to discuss GSA’s fiscal year 2001 capital investment and leasing program, including the courthouse construction program.

The fiscal year 2001 program before the committee requests authorization for 54 projects in various stages of development, totaling $1.167 billion; repairs and alterations include 13 projects, $365

million; design, 11 projects, $20.5 million; construction, 18 projects,

$701 million; and leases, 12 projects, $80 million in annual costs.

It is my hope that we will be able to operate within the constraints of the budget resolution to approve these resolutions early

this year, prior to the Treasury, Postal, and general government

appropriations bill moving through the Appropriations Committee.

Our job is made easier by the fact—hooray—that the Administration has included in the President’s budget for fiscal year 2001 a

request of $488 million for seven new courthouse construction

projects. For the past 3 years, the Office of Budget and Management has refused to include a request by the General Services Administration on behalf of the Federal Judiciary for funds and

budget authority to construct new Federal facilities.

I and others on this committee wrote to the Office of Budget and

Management last fall stating that the Federal Government has the

responsibility to see that adequate, secure facilities are provided to
2

the Judicial Branch of Government, as well as the executive and

legislative branches.

I pretty well made it clear that if we didn’t get some type of request from the Office of Budget and Management, that the legislation pending by Senator Cochran, which had bypassed OMB and

this committee, might have passed.

Courthouse construction is a Federal responsibility. Unlike many

other initiatives that the Administration is proposing, like school

construction, this is something that Congress should be funding.

The problem around here is that we have expanded this Federal

Government into a lot of areas that are, in my opinion, the responsibility of State and local government, and, as a result of that,

haven’t got the money to do the things that the Federal Government has primary responsibility for. We need to remember around

here what the Federal Government is responsible for and what the

States are responsible for.

I am pleased that the Senate budget resolution is moving one

step further in meeting the needs of the Federal Judiciary. It is my

understanding that the Senate budget resolution will assume $700

million for courthouse construction. This will allow us to potentially

authorize more than the $488 million proposed by the Administration to accommodate for the backlog of projects that are in the pipeline, and there are lots of them.

The judiciary has a continuing need to have additional court

space available so it can do business and move cases to settlement

in a timely manner.

While saying this, the Office of Budget and Management’s approach this year to courtroom sharing is one which I would like to

explore. I would like to receive more information on the model that

OMB used to derive the increase in courtroom sharing at a ratio

of two courtrooms for every three judges.

While we need courthouses, we also need to do more with less.

We can ill afford, with limited Federal dollars, to build courthouses

in the future which accommodate a courtroom for every single

judge.

I look forward to your testimony on this proposal.

We’ll start our hearing, but prior to doing that we have several

Senators here today that would like to make statements. Our first

Senator that arrived was Senator Boxer.

OPENING STATEMENT OF HON. BARBARA BOXER,

U.S. SENATOR FROM THE STATE OF CALIFORNIA

Senator BOXER. Well, Mr. Chairman, you’re very gracious to permit me this very short period of time. I will conclude my remarks

in 1 minute.

I’d ask unanimous consent that I may place in the record my full

statement and a statement of Terry Hatter, Jr., Chief U.S. District

Judge of the Central District of California.

Mr. Chairman, let me just say, in summarizing my statement, I

am very distressed, having followed two particular courthouses now

for years—Los Angeles and Fresno—as to what has happened to

these projects in the President’s budget and what GSA is recommending.
3

To put it succinctly, I believe that the record would show that the way they are reconfiguring the Los Angeles courthouse, which

is so desperately needed, would compromise security and efficiency,

and it calls for two buildings to be used instead of one. We’d have

to require links for prisoner, public, and staff circulation. We don’t

know where a companion building could be erected. We’re very distressed. We thought we had this all done, and now this has come up.

Second, the situation in Fresno, where we have a design, every- body is happy, and there’s not a penny in there. I would conclude by just saying this—because I, again, don’t want to take the subcommittee’s time—this is really serious business in my State. We are growing now from 34 million people to

more than 50 million people, Mr. Chairman, by the year 2020, and

if GSA thinks this is going to resolve it by having people sharing

courtrooms, this is much bigger than that. We need justice for the people, and we’re not going to have it if we start cutting back these buildings and putting two buildings

linked by a bridge or something. It’s not going to work in the long

term. We’re going to find ourselves where we find ourselves now all

over the country with buildings that are built that are inadequate. I am really distressed about it, so I’ll stop, because I don’t want to get myself worked up. It’s too early. But I wanted to thank you for this opportunity, and I hope that we can work together, Mr. Chairman. You and I may have a different view about sharing space. I know if we suggested two Senators in one office, I don’t think it would work really well, as far

as the efficiency of our office. And they have things that they do.

They are backlogged as it is. But that’s another conversation. So thank you, again. I hope to work with you to remedy these two glaring problems in my State.

Senator VOINOVICH. Thank you, Senator.

[The statements of Senator Boxer and Judge Hatter follow:]

STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE

STATE OF CALIFORNIA

Thank you. Today, I am here to request the construction of courthouse buildings

in Fresno and Los Angeles. Both cities’ courthouses are decrepit and filled beyond

capacity. New facilities are desperately needed. I have raised this point many times,

and I think that the circumstances warrant our support for new facilities.

Los Angeles clearly requires a new and larger courthouse. Today, the population

of Los Angeles is 3.7 million people, making it the second most populous city in the

United States. The Central District of California’s Los Angeles division is considered

the largest district court operation in the nation. The existing U.S. Courthouse on

North Spring Street opened in 1938 with 8 courtrooms. Although more courtrooms

were added by converting offices into courtrooms, our magistrate judges currently

share two courtrooms while two senior judges and one new active district judge rotate among available courtrooms. A second courthouse site was created three blocks

away in the Roybal Federal Building, and this facility also is filled to capacity. We

simply do not have enough space for our judges.

And the situation will only worsen. The Los Angeles court currently has vacancies

for three district judges and one magistrate judge. Two more district judgeships will

be vacant by the end of the year. When these vacancies are filled, the court will

not have the facilities in either building to house these judges.

As originally planned, the new Los Angeles courthouse would include thirty-three

new courtrooms and would consolidate all District Court operations into a single

building. Built in downtown Los Angeles, this facility would meet the space requirements of the Federal courts in Los Angeles for 30 years. This project would cost approximately $379 million.
4

I was disappointed in the President’s budget request that reduced funding for the planned Los Angeles courthouse. The budget recommended $32 million for site and

design, less than the $37 million recommended by GSA. I also disagree with OMB’s demand to downsize the scope of the project limiting it to a small, companion building next to the Roybal Federal Building. By reducing

the size of the new courthouse, OMB would force the District Court to continue to

operate out of two buildings greatly diminishing the benefits provided by the original courthouse. Two buildings would require links for prisoner, public, and staff circulation. Furthermore, it is unclear as to where a companion building could be

erected. No space exists on the same block as the Federal building, and no adjacent

sites are viable. OMB’s project would compromise security and efficiency and would

require extensive and costly duplication in building infrastructure and support services.

It also disturbs me that OMB deleted GSA’s proposed high security, multi-defend- ant courtroom. This courtroom was approved by the Judicial Council and the Administrative Office of the Courts because high security, multi-defendant trials occur

regularly in Los Angeles. For safety and security reasons, such a courtroom is vital

to the operations of the District Court.

During a conference call with Chief Judge Terry Hatter, I was amazed to hear that OMB required judges to share courtrooms. The judges fear that OMB’s mandate to share courtrooms represents an unwarranted intrusion by the executive

branch into the Judicial Branch, violating the doctrine of separation of powers. While the OMB recommendation would reduce the cost of the project to $266 mil- lion, I strongly believe that the detriments would far outweigh the benefits. This

courthouse’s value extends well beyond mere cost-benefit analysis. As originally designed, the Los Angeles courthouse would provide the judiciary with a quality facility and would ease the burdens created by Los Angeles growing population. By consolidating the District Court’s operations into one large building, the courthouse

would eliminate the need for people to travel between two court buildings, reduce

the number of staff currently required by the two buildings, permit district and

magistrate courtrooms to use one central cell block, and diminish the confusion inherently created by two courthouses. The new courthouse, as originally designed, is

not a luxury. It is a necessity. Fresno suffers many of the problems currently plaguing the Los Angeles judicial system. The San Joaquin Valley area where Fresno is located is the fastest growing

area in the state, and it has been predicted that one-fifth of the state’s population

will reside in the Valley in a very short period of time. The court’s caseload reveals

this population growth. Bankruptcy filings increased from 6,679 in 1995 to 11,749

in 1999 (a 76 percent growth). The court currently is housed in the B.F. Sisk Federal Building and Courthouse. This building, originally constructed in 1965, includes eight courtrooms (three district, three magistrate, and two bankruptcy). This space currently is occupied by

four district judges, three magistrate judges, and two bankruptcy judges. Within 10

years, the court projects that the courthouse will hold eight district judges, four

magistrate judges, and four bankruptcy judges. The current facilities simply cannot

accommodate such anticipated growth. In fact, five of the existing courtrooms were

converted from office spaces and are already substandard in size.

Because the building was not originally designed for use as a courthouse, it fails

to meet minimum security requirements for court operations. Judges and prisoners

intermingle in the same basement corridors along with GSA contractors and delivery persons. The noise created by prisoners in holding cells (containing dozens of

prisoners each day) often disrupts the court. A seismic evaluation was conducted,

and it determined that the courthouse is seismically unsound and that retrofit was

necessary. The cost of such repairs far exceeds the value of the building itself. Finally, this building is a firetrap because grates cover the windows greatly diminishing ingress or egress in case of fire or other emergency. The current building simply

is a travesty.

I am deeply concerned about this situation, and I had hoped that the President’s

budget would reflect the severity of the problem. Although the project was overlooked by the FY2001 budget, I strongly believe that we must provide funding for

a new Fresno courthouse. GSA confirms that the project is fully ready for construction and that a construction contract could be awarded early in FY2001 if funded

this year. The new courthouse would cost approximately $111 million. This 360,000

square-foot, 8 story building would be built on 4.5 acres in downtown Fresno. This

glass edifice would revitalize the downtown area and would ensure a Federal presence that will help to make downtown business districts a top priority.

Our economy is stronger than ever. To use a cliche, we should fix the roof while

the sun is shining. Well, my friends, the courthouses in Los Angeles and Fresno
5

1The results of the studies are documented in the Suitability of the Roybal Building for U.S.

Court Expansion, dated August 1996 by Abide International, Inc.; the U.S. Courts Feasibility and Master Plan, dated June 24, 1997 by Kaplan, McLaughlin, Diaz; the Roybal Study; a Sup- plement to the Feasibility Study/Master Plan, dated November 1997 by Kaplan McLaughlin Diaz; the Prospectus Development Study; Alternative 4, dated March 31, 1998 by Kaplan McLaughlin, Diaz; Prospectus Development Study; Alternative 5, dated March 27, 1998 by Kaplan, McLaughlin, Diaz; and the U.S. General Services Administration Courthouse Reinvestment Project; Los Angeles Courthouse Analysis, dated November 1998 by Ernst & Young.

have much more than roofs to fix. I think that these courts deserve facilities that

will advocate, not impede upon, justice, and today, we can do much to provide those

very buildings.

STATEMENT OF TERRY J. HATTER, CHIEF U.S. DISTRICT JUDGE, CENTRAL DISTRICT

OF CALIFORNIA

I appreciate the opportunity to submit to the subcommittee this statement regard- ing the construction of a new U.S. Courthouse in Los Angeles. Given its extremely

heavy caseload and insufficient facilities, the Federal court in Los Angeles desperately needs a new courthouse. After extensive study, the General Services Administration forwarded to the Office of Management and Budget a proposal for a

stand-alone courthouse that would house the District Court and related facilities.

GSA determined that a stand-alone structure would alleviate the inefficiencies and

security risks currently caused by housing the Court in two separate buildings several blocks apart. However, as discussed below, OMB has drastically changed that

proposal. It would now require the new building to connect to one of the existing

courthouses, and would mandate that active district court judges share courtrooms.

I. BACKGROUND

Los Angeles is the only major city in the country that does not have a new court- house in planning or recently constructed. Indeed, after evaluating all proposed

courthouse projects in the country, the Administrative Office of the Courts and the

Judicial Conference ranked a new courthouse in Los Angeles as the No. 1 funding

priority in the Judiciary’s 5-year courthouse construction plan. This was due in

large part to our steady growth and also to the fact that the 49 judicial positions

located in Los Angeles (23 district judges, 12 senior judges, and 14 magistrate

judges) and the court-related agencies are interspersed among two federally owned

facilities in downtown Los Angeles (the Spring Street Courthouse and the Roybal

Building), as well as leased facilities. The result is split operations, which creates

severe administrative inefficiencies and security risks.

II. THE GENERAL SERVICES ADMINISTRATION’S PROPOSED PROJECT

In 1996, the Court updated its Long Range Facility Plan and identified the need for a new courthouse in downtown Los Angeles. In response, GSA, in cooperation

with the Court, undertook extensive studies, identifying and evaluating over a dozen

alternatives.1 Ultimately, GSA and the Court jointly concluded that the needs of the Federal community would best be met by constructing a new stand-alone facility to

house the entire District Court, including district, senior and magistrate judges, the

clerk’s office, and related agencies. This would allow the Bankruptcy Court (currently divided between the Roybal Building and the Federal Building) to be consolidated in the Roybal Building; the Office of the U.S. Attorney (currently divided between the Federal Building and the Spring Street Courthouse) to be consolidated

in the Spring Street Courthouse; and the Federal Building to be dedicated to Executive agencies. This alternative, described in the GSA prospectus (attachment #1),

would maximize the efficient use of existing facilities. GSA estimated the total cost of the proposed project to be $379.5 million. It has requested that $36.2 million be included in the fiscal year 2001 budget for the site

acquisition and design of the facility, as described in attachment #1.

III. THE OFFICE OF MANAGEMENT AND BUDGET’S PROPOSED, REVISED PROJECT

The OMB has substantially changed the proposed project for Los Angeles, and now estimates the total cost to be $266 million, $31.5 million of which is allocated

for site and design (attachment #2). According to the budget documents, OMB’s proposed project would require that: (1) A companion building be constructed adjacent to and connected with the Roy- bal Building. The new building would be sized to house only the district judges, the

clerk’s office, and some Court-related agencies. Magistrate judges, who are also part
6

of the district court, and the remaining court agencies would be housed in the Roybal Building. (2) The number of new courtrooms be reduced by one third, requiring district court judges to share courtrooms. (3) Anything considered an exception to the U.S. Courts Design Guide be elimi- nated, regardless of the need for such exceptions, and despite the fact that several

exceptions already have been justified and approved by regional and national oversight committees. The most important of these is a high security courtroom for

multi-defendant trials.

IV. THE COURT’S CONCERNS WITH OMB’s PROPOSED PROJECT

The Court is extremely concerned that OMB’s proposed revised project disregards the findings of 3 years of extensive studies by GSA and the Court.

A. A Companion Facility for the Roybal Building Is Not Feasible

The Court and GSA already have considered alternatives—like OMB’s current proposal—that would connect the Roybal Building to a new companion building. In

order to meet the Court’s functional requirements, a new companion facility would

have to connect to the Roybal Building in a way that would allow both buildings

to act as a single facility. This would require numerous short links between the

buildings, at various floors, to accommodate the unique types of circulation required

in a courthouse—prisoner circulation, public and staff circulation, and separate secured circulation for judges. The failure to provide such links would compromise security and efficiency, and would require extensive and costly duplication in building

infrastructure and support services. There are only two ways to provide such links—

building the companion building in the same block as the Roybal Building, or building it across a city street. Neither is practical.

1. Building a Companion Building in the Same Block Is Impractical

While the entire block that houses the Roybal Building is under Federal owner- ship, it is densely developed, and building a companion building would require the

demolition of one of the existing facilities in the block—the Veterans Administration

Building, constructed in the early 1990’s; the Federal Building, constructed in the

1960’s; or the Metropolitan Detention Center, constructed in the early 1990’s. Demolishing the Veterans Administration Building would yield a small, roughly triangular site, that would be ill-suited to accommodate even the minimum footprint

required for a courthouse. Partial or total demolition of the Federal Building could

provide a suitable site; however, according to GSA, it would be prohibitively expensive due to the high cost of relocating tenants, and the long-term negative impact

to the Federal Building Fund. Demolishing and relocating the Metropolitan Detention Center would also be cost-prohibitive, and would defeat one advantage of locating a new building in downtown Los Angeles—the convenience and security of having the courthouse in close proximity to the detention center.

2. Building a Companion Building in an Adjacent Block Is Impractical

It is highly questionable whether any sites would be available on blocks adjacent to the Roybal Building. The closest sites front on Temple Street. They are owned

by the city government, and already are developed, or planned for development.

Moreover, even the closest site is too distant. The studies clearly indicate that links,

whether by bridge or tunnel, are not feasible for any site across the street from the

Roybal Building, due to excessive distances, extensive underground utilities, and the

City’s reluctance to allow bridges across public streets (see attachment #3).

3. Building a Companion Building Elsewhere Is Impractical

Given the above problems, the Court is concerned that a proposal might be made to build a separate facility not connected to the Roybal Building, and sized to house

only the district and senior judges, leaving the magistrate judges in the Roybal

Building. Such a scenario again would force the clerk’s office, the court agencies and

the U.S. Marshals to run split operations, thereby duplicating cost and creating security hazards. Such a proposal would be totally unacceptable. The District Court

has confronted exactly these difficulties for 9 years. Building a new facility that duplicates these same problems makes little sense. (See attachment #4, Impact to the

Court of Working in Multiple Locations.)

B. The Courtroom Sharing Proposed by OMB Is Contrary to Judicial Conference

Guidelines

Current policy of the Judicial Conference calls for only senior judges to share

courtrooms. The proposal submitted by GSA and this Court adhere to these Guidelines. However, in contravention of the Guidelines, OMB would require all district
7

court judges to share courtrooms. Setting aside the issue of whether OMB has any

constitutional authority to dictate the Court’s usage of courtrooms, it is absolutely

clear that the massive caseload in the Central District demands that each active

district and magistrate judge have their own courtroom. There is simply too much

activity for courtroom sharing to be feasible.

Moreover, it should be noted that even the original GSA prospectus for this

project was based on extremely conservative growth projections which were made

4 years ago. Only two additional district and four additional magistrate judge positions were projected over the next 7 years. Recent growth trends in California lead

the Court to anticipate far greater growth than previously projected. The imposition

of courtroom sharing would not allow room to accommodate that growth.

C. OMB Deleted Important Program Requirements That Were Justified and Approved by the Judicial Council

Under the GSA proposal, the new facility would include a high security, multidefendant courtroom. This courtroom was approved by both the Judicial Council and

the Administrative Office of the Courts, and with good reason: high security, multidefendant trials occur regularly in Los Angeles. In the current courthouses, one of

the larger courtrooms must be modified with platforms to hold a large number of

defendants and to allow for additional security. After the trial, the courtroom must

be restored to its original configuration. Each modification costs $50,000 or more.

OMB has deleted this aspect of GSA’s proposal.

V. SUMMARY

The Court urges the subcommittee to reject OMB’s proposal to build a companion

facility to the Roybal Building. Three years of extensive studies concluded that such

a proposal was neither feasible nor practical. OMB’s proposal would lock the Court

into a construction project that does not meet the needs of the Court or the Los Angeles community not even for a 10-year span, let alone the 30-year plan.

The Court also strongly opposes OMB’s proposal to reduce the number of courtrooms for this project. The project submitted by the GSA comported with all courtroom sharing guidelines that are currently in effect.

As proposed by OMB, this project would leave fewer courtrooms than we presently

occupy, as well as continue to leave us in the same split court operation that we

find ourselves in presently.

A high security courtroom is an essential component of the project, as it is desperately needed by the Court. Failing to build such a courtroom would not remedy

our security issues, would be fiscally imprudent, and will not accommodate the large

number of defendants, lawyers and court attaches (court reporters, experts) involved

in multi-defendant trials.

In conclusion the Court requests the support of this subcommittee in restoring

this project to its original scope as proposed by GSA.
8
9
10
11
12
13
14
15
16
17
18
19

Senator VOINOVICH. Senator Baucus.

OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR

FROM THE STATE OF MONTANA

Senator BAUCUS. Thank you, Mr. Chairman.

First, I want to thank both the witnesses who are here today,

Mr. Bob Peck, who has been to Montana, and I would like to say,

as a former associate to the great Senator from New York, is a superior public servant. I’ve dealt with Mr. Peck, and I can tell you,

Mr. Chairman, he is tops.
20

Also, Judge Jane Roth, who has been before the committee several times, has done a great job of explaining the courts’ and judiciary’s view on courthouse construction.

I want to thank you again, Judge Roth, for all the work that

you’ve done on behalf of the judiciary. I’m looking forward to hearing your testimony.

I personally believe, Mr. Chairman, that the partnership between

GSA and the courts is a crucial one, and, to their credit, they have

both put a lot of effort into making this partnership work.

This cooperation has, over time, restored my confidence, I must

say, in the courthouse review process. They’ve come a long way.

I want to stress one thing, though—and I’ve said this before—

it is vital to our legal system that we do provide proper space,

proper security, and proper facilities for judges and the courts. And

I’m not talking about Italian marble corridors or golden chandeliers, but I am talking about the proper stature of courthouse

buildings that befit our judicial system and assist our distinguished

judges in their crucial constitutional responsibilities.

I might say to you, Judge Roth, that, frankly, I am sitting here

as a Senator in large part because of the civil liberties courses I

took in college. I learned to revere our judicial system. I became

more cognizant of the impact on our democracy that Supreme

Court cases produced in the hallmark civil liberties trials in our

country’s history. I have a very high regard for the judiciary.

I am very pleased that the President has included new courthouse funding in his fiscal year 2001 budget. It was very distressing that the Administration did not include such funding for the judiciary in its budget for the past 3 years.

I understand how distressed and frustrated the courts are about

this past omission; however, I do not believe that proposed legislation that would circumvent the cornerstone of the current review

process is in order. I have spoken to Judge Roth and to Judge Stahl

before her about my concerns. I am committed to helping them attain their budget goals, but I believe we need to work within the

current review system, which we all spent a lot of time on in this

committee. The broader the review of courthouse construction, the

broader will be the support for the program.

I would say to both Judge Roth and Mr. Peck that the courthouse

program now has very strong support in this committee. Virtually

all members of this committee wrote to the President last fall supporting funding for priority courthouse construction. And, while the

Administration did not include full funding for the courts’ priority

list, I hope that this committee and the Budget Committee can explore how best to accommodate the fiscal year 2001 Judicial Conference requests.

Thank you, Mr. Chairman.

Senator VOINOVICH. Thank you, Senator Baucus.

Senator Moynihan.

OPENING STATEMENT OF HON. DANIEL P. MOYNIHAN,

U.S. SENATOR FROM THE STATE OF NEW YORK

Senator MOYNIHAN. Mr. Chairman, thank you.

Welcome, Major Peck and Judge Roth.
21

I would open, sir, with only a general observation, which is that

for the nearly 24 years I have served on this committee, during

part of which we had the great services of Robert Peck, we have

been dealing with this bizarre problem that OMB and we impose

on ourselves, which is the requirement that any Federal building

be financed entirely in one budget year, and that the building that

might have an 80-year use span or 180-year is paid for in year one.

One of the results of that policy has been, over time, is that, instead of building new courthouses, we’ve leased them. And at several points I can think—my memory is getting vague—we tried to

set a ratio that we would get occupancy of 60 percent in owned facilities. Is that about right, sir?

Mr. PECK. We started at 80, came down to 60.

Senator MOYNIHAN. Yes, we started at 80 and came down to 60.

But I don’t think we ever got to 60. We’ll hear, no doubt, from Mr.

Peck about that. So what you get is rent stubs. It is just not logical.

I mean, no business would operate this way. They would capitalize

their capital investments over time.

Then we came up with the idea of lease to own, and, if I can

say—and I’m sure that Judge Roth would agree—we have a very

happy instance of this in the Thurgood Marshall Building across

the street here, which was the third building in the complex that

was designed by the McMillan Commission after they took the

Pennsylvania Railroad Station from the bottom of Capitol Hill and

moved it down to its present site, and two buildings meant to flank

it. One was the Post Office, now the Postal Museum. Then there

was an empty lot on the other flank.

The Judiciary needed an administrative building, and we were

able to get a brilliant design, and it was built for us by Boston

Properties. We have 24 years to go until we own it completely. In

the meantime, we brought people in from rented space at a lower

rent in this lease-to-own space, because owning the land you get so

much of an advantage.

Then, just as we were beginning to think that was working out,

the Budget Enforcement Act of 1990 said you have to put all leaseto-own costs in one budget. That’s bizarre. I don’t think there

would be any real estate business in the world that would operate

that way. All it does is raise our costs needlessly and irrationally,

and it has, among other consequences, that courthouses don’t get

built. You can’t quite rent a courthouse; you have to build it. You

may end up renting it after it has been built.

And that’s our case, and it is a long history, but I think it is

central to the concerns you have been showing.

I thank you.

Senator VOINOVICH. Thank you, Senator.

Senator Graham.

OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR

FROM THE STATE OF FLORIDA

Senator GRAHAM. Thank you very much, Mr. Chairman.

I won’t belabor the point, but I very much appreciate what Senator Moynihan has just said about the issue of exercising fiscal

pragmatism in how we go about financing Federal buildings.
22

I’m concerned about another pragmatic aspect that relates to

what goes on inside the buildings—the purpose for which we construct them in the first place.

This year the Office of Management and Budget is recommending a new approach to Federal courthouses in terms of the relationship of judges to courtrooms. Frankly, this has caused a great deal

of concern in the rapidly expanding areas of my State, where there

are unusually heavy caseload demands upon the judges, witnessed

by the fact that last year the Congress expanded by four the number of Federal district judges in our State, and there’s great concern among the judiciary that these changes in the relationship of

courtrooms to judges will have an adverse effect on the Administration of justice. So I am going to be interested in understanding

what the rationale of the change in the position is and what its implications in terms of constructing courthouses, cost to construct,

and the ultimate use of the courthouses for their intended judicial

purpose.

Thank you, Mr. Chairman.

Senator VOINOVICH. Thank you, Senator.

Mr. Peck.

STATEMENT OF HON. BOB PECK, COMMISSIONER, PUBLIC

BUILDING SERVICE, GENERAL SERVICES ADMINISTRATION

Mr. PECK. Thank you, Mr. Chairman, and thank you, Senator

Baucus and Senator Moynihan and Senator Graham.

I would like to summarize my statement, and if I may have it

placed in the record and, if it is possible—I think GPO can do

this—including the graphs and charts at the back, because they are

important to the way we run our business.

I would also like to say this is the first time I have been in front

of this committee since Senator John Chafee passed away, and I

had 41⁄2 very educational and happy years in this committee working for Senator Moynihan, but also working very closely with the

staff of Senator Chafee, and was also fortunate to be here when he

was chairman of this committee for so long. He was a great Senator, I thought, and a great patriot, and I am very sorry he is no

longer with us.

To put our program in perspective—and I think it is important

to do so, because the committee reviews only our major capital

projects—I would like to talk a little bit about GSA and GSA’s

building function in the larger context.

GSA is, in fact, the largest owner/operator of commercial real estate in the United States. We manage 350-million square feet. I recently saw that the largest real estate investment trust is now up

to about 100-million square feet. We have about 185 or 190 million

that we own, and the remainder we lease, as Senator Moynihan

started to talk about.

We house one million Federal employees, and that’s our job—to

provide them with productive workplaces and places where the

American public can feel proud of their government and can be

well-served by those employees.

Approximately 55 percent of the space we manage is in nearly

2,000 government-owned buildings, the remainder is in 6,400 privately owned buildings in which we lease space.
23

Our funding comes principally from the rents we charge to the

more than 100 Federal agencies we house, and that’s the important

thing about our budget. The thing to know is that, unlike so many

other Federal agencies, we not only can talk about running in a

business-like way, we, in fact, are a business. We collect rents, we

have expenses, and, as I always say to our employees, that means

we have a bottom line which we can track.

More than 90 percent of the $5.5 billion we will spend in this fiscal year is paid out in the form of contracts to the private sector,

so we are, as they say in business, highly leveraged. We are contracted out. Our people, I believe, are the best, most competent contract supervisors in the U.S. Government. We are fast in contracting and we are very good superintendents of work.

It is important to note, however, that in fiscal year 2000 and

again in fiscal year 2001, more than half of the expenditures that

we make will simply go in the form of lease payments to private

buildings.

When I worked here in the late 1970’s and early 1980’s, we were

approaching a $1 billion rent bill. We now have a $3 billion rent

bill. But, as I say, that affects our net income.

We are operating more like a business than we have before. As

I mentioned last year, Mr. Chairman, we have established nine

performance measures, much like those used in the private sector,

which have quickly become known as the ‘‘Big Nine’’ in our organization, and they are not just talking points to our staff. They have

allowed all 11 regions to compete with each other, and we have

begun giving out awards to our employees. Let me be clear—we

give out financial bonuses to our employees based on whether they

are meeting performance improvement goals or not.

I would just note that I have copies of an article that appeared

in the ‘‘Federal Times’’ on March 6. It says, ‘‘Rewards for Employees Reap Rewards for Agency.’’ That’s exactly the case. Rewarding

our employees for doing a better job managing our buildings means

that we have more net income at our disposal for the important

things that we have to do.

In business they say you get what you measure, and we have

found that. If you will refer to the charts at the end of my testimony, you can look for yourself. Our funds from operations—a

business measure which really means net income—have increased

approximately 38 percent from fiscal year 1998 to 1999. We did

that in about six quarters.

We reduced non-revenue-producing space in our total inventory

from 13 percent to 10 percent in just the last fiscal year. And if

you look at the graph, you will note that the number is down actually to 4 percent vacancy in leased space where we can, by consolidating vacancy, get out of a lease altogether, if we don’t need the

space.

In Government space we are having a tougher time that’s because we need more money for the repairs and alterations that

make government-owned space—some of it, in old buildings—ready

and available for new tenancies. I’ll talk about that a little bit more

later.

Our operating costs per square foot in government-owned space

are approximately 13 percent lower than the private industry aver-
24

age. So when people ask me if we should simply turn our management operation over to the private sector, I say, ‘‘Well, not until

they can do it as well as we can.’’

The average rents we pay in our leased buildings across the

country are at or below the average rate that private sector tenants

pay, as they should be. We are a great tenant and we pay on time

and we always pay. We’ve not gone bankrupt, have no prospect of

it, and we avoid cost to the Government in the tens of millions of

dollars for that.

We’ve reduced by 38 percent—a magic number for us, it looks

like—the amount of time it takes us to lease space for our client

agencies.

Our customer satisfaction measures, which are important because you can save a lot of money at the expense of your customers, have actually increased. We started counting in 1993 in a

poll that we take with the Gallup organization, so that we are honest—we don’t do the numbers, they do. We’ve increased from 74

percent to 80 percent in 1998, and you’ll see in the chart at the

back also that this percentage has gone up steadily every year, and

it’s because our people focus on those numbers.

As I said, the net income that we produce has a direct bearing

on the capital program we are proposing. By pricing more realistically and reducing expenses, we’ve produced more net income,

which is our only available source to upgrade our buildings. The

only money we requested for repairs and alterations to existing

Government buildings is money that we generate ourselves.

Now, as Senator Moynihan says, no real estate business in the

world operates this way. Many State and local governments don’t

operate this way. We have unique budget scoring rules in the Federal Government which may or may not, depending on whose interpretation you believe, prevent us from leveraging the value of our

real estate.

To be clear, there are other Federal agencies that have been authorized by Congress to engage in public/private partnerships in

which they are able to leverage a piece of Federal ground, have a

private sector developer either build or renovate buildings, as the

military is doing in military housing, and then lease them back to

the agency. This is something which this committee has talked

about for a long time.

I will note that we are proposing some new construction funding

out of our net income this year, and I will talk about that later.

Costs is not the only consideration. As Senator Moynihan and

Senator Baucus have talked about, we believe that the American

people deserve quality when we build. Quite honestly, we believe

that they deserve a quality building when we lease a building and

cause it to be built for the Government to lease for a long time. In

fact, that was one of the issues we dealt with in Helena, MT, Senator. Approximately 20 years ago we built a building, or caused a

building to be built which is not as high a quality building as the

Government or the people of Helena deserve. So, we have improved

the way we do design.

Last month, the ‘‘Architectural Records’’ magazine had an article

noting that GSA has really turned itself around and is a leader in

high-quality design and not lavish design, as Senator Moynihan, I
25

believe, once said. There’s a difference between grand and grandiose, and we believe we have stuck to the grand, meaning buildings that reflect the dignity of the U.S. Government.

We have improved the way we integrate our site and design decisions with local planning and development needs—by the way,

something else we learned in Helena, MT, and Billings, as well.

Finally, we have kicked off what we call a ‘‘First Impressions

Program,’’ because many of the experiences that the American public has with the Federal Government and the impression they have

of how well we do our job is the impression they gain when they

walk into a Federal building. We believe that those building lobbies

and entryways should be clear, crisp, and informative, and not, as

they are in too many cases, I believe, dark and confusing.

But, to get to our capital investment and leasing program, as you

noted, we have a substantial new construction program and a substantial repair and alteration program. I’ll just note for you that

here, too, we have brought in business-like measures. When we decide how to allocate the money that we are permitted to spend in

the President’s budget, we have set some business-like criteria, including the use of a private sector method in which we determine

a return on investment, which basically means if we put a certain

amount of money into a building to be repaired, we expect to see

a certain return in the level of rent we charge. This approach is

similar to the way that private sector people decide whether or not

to do a project. It’s the way we do it, as well.

We have a particular problem with our owned inventory. More

than half of our buildings are more than 50 years old. Nearly a

quarter of the inventory is historic. Although we are proposing a

very substantial budget this year of $721 million for major and

minor repairs, an 8 percent increase over the year 2000, I will just

note that the amount of money we allocate for repairs and alterations is about 2 to 2.5 percent of the market value of our inventory. The private sector benchmark is to spend 2 to 4 percent of

that value on an inventory.

When you have an old and aging inventory, you should probably

be at the high end of that range, rather than at the low end, as

we are.

Moreover, if we don’t fix up our buildings, when we go to set

rents, we have to lower them. As a building deteriorates, you have

to charge lower rents. If you charge lower rents, you have less

money available to repair, and then, again, you charge lower rents

and you can get yourself into a real vicious cycle.

Again, we are proposing what we believe is an adequate repair

and alteration program to keep up with needs, but I note that we

have a significant backlog, which I don’t think we are yet addressing, although we are working on it.

For new construction, we are proposing to fund seven border stations through revenues generated by the building fund—in other

words, out of our net income. We are proposing demolition and construction of the new U.S. mission to the United Nations, and the

acquisition of a site and design for a new FBI building.

And I will note again, this is a bit of a departure. Although we

had funded border stations out of our net income before, we have

not, in the past several years, in my memory, proposed funding out
26

of our net income for major projects like the U.S. mission to the

U.N. and the FBI field office. We believe that some projects like

that which are of urgent security needs should be funded immediately out of net income.

But we do, as we have always said in the past, believe that most

new construction needs to be funded out of direct appropriations.

The Congress has acknowledged this over the last 10 years or so

with several billion dollars worth of appropriations for new buildings.

As you noted, Mr. Chairman, we are requesting funding for

seven courthouse projects. We are also requesting funding for the

Food and Drug Administration consolidation in Montgomery County, Maryland, and a new building for the Bureau of Alcohol, Tobacco, and Firearms in Washington.

Finally, I’ll just note that we have requested authorization for a

new construction project in Suitland, MD. The Department of Commerce last year was provided an appropriation for a new building.

It is very important for the National Oceanic and Atmospheric Administration and it is critical to the Nation’s weather forecasting.

We need an authorization to be able to actually spend that money.

A number of Senators have already talked about our courthouse

program, and I will note that the Administration’s view is that

courtroom sharing can be a cost-effective means for providing space

needed by the courts. By going to a courtroom sharing model, we

have eliminated 22 courtrooms in the seven courthouse projects

that were proposed in the budget from what we had originally

studied.

The savings in fiscal year 2001 budget from the reduction in

courtrooms is approximately $25 million, and we believe that that

could save another $33 million in future years.

Again, in the project that Senator Boxer referred to in Los Angeles, we believe we can save about $85 million by constructing a

companion building to the Roybal Building in Los Angeles.

Courtroom sharing is something that has been discussed for

many years. The issue is fundamentally this: where there is a large

courthouse with many judges, we are proposing a separate office

for each judge. Let me be clear that we are doing that. But not

every courtroom is in use every time, and I do believe that it is possible to share courtrooms in large courthouses. In some cases

judges do this already, not necessarily because they want to, but

because we simply don’t have enough room.

Now, I have to be honest with you. We don’t have clear and convincing evidence, as the lawyers would say, of what the right ratio

might be once you start talking about sharing. However, neither do

we have clear and convincing evidence that it is necessary to have

one courtroom for every active judge. There is, however, a tradition

that this is the case.

The courts have undertaken a utilization study—which unfortunately is not yet ready—to determine whether sharing is feasible.

I will say that the Office of Management and Budget and GSA

have talked for years about what the sharing ratio might be.

This year the Administration proposed a ratio of two-thirds. I believe—although I was not privy to the final decision on what ratio

of sharing would be used—that this two-thirds ratio was based on
27

a GAO study of several years ago which suggested that courtrooms

are in use about 65 percent of the time.

As I said, we are all new to this issue, and that’s the ratio we

have proposed for this year.

Finally, we have proposed to you 12 lease prospectuses which are

over the threshold limit. This is a bit misleading in the sense that,

although they total approximately $80 million in obligations in fiscal year 2001, this is just the tip of the iceberg. Once you start

leasing you lease for a long time.

I suspect, although I have not run the numbers on these particular leases, we are talking about at least $500 million in total Federal cost just on the period of those leases to which we are currently obligated.

We are working to control the growth of our leased inventory. We

have sort of leveled off at about a 55/45 government-owned to lease

ratio, in part because we are building new courthouses.

Interestingly enough, our focus on net income has forced us to

look at this issue. When we lease a building we basically pass

through the cost to our tenants. It generates no net income for us.

It is not a good fiscal contributor to our program, so we have an

added incentive to move toward government-owned buildings.

I have only two more points.

We do believe that it would be useful to take a look at raising

the threshold limit. We have noted that if we were to increase the

threshold limit to about $5 million, you would see only three fewer

construction prospectuses and a few fewer lease and repair and alteration prospectuses. The latter two tend to be somewhat routine.

We believe that you would still be able to focus on large construction projects, which have traditionally been the concern of this committee and that in the House.

My final point is this: we have, since the Oklahoma City bombing, doubled our rate of spending on security. It is a very serious

topic for us. Our security people, as we discussed last fall at a conference that Senator Moynihan was kind enough to keynote, we

have a very difficult mission in the Public Building Service. Our job

is to protect the people who work in the building, the people who

visit it, and, at the same time, to keep our buildings from becoming

fortresses that are foreboding, forbidding, and unwelcoming to the

American public for whom they are built.

In order to do that, we have, in the past several years, refocused

the mission of the Federal Protective Service. We have increased

cross-training so that eventually every uniformed officer will also

be an expert in physical security. We have intensified our intelligence efforts. We have intensified training of every part of the organization, and we have just upgraded the contracts for the private

security guards.

I have to tell you, I am very concerned that a bill that was just

approved by the House Transportation and Infrastructure Committee would jeopardize security by making the Federal Protective

Service, which is currently an arm of the Public Building Service,

a separate agency within GSA.

Here is my concern in a nutshell: security is not something you

can do in a vacuum. The design and management of our buildings

need to be welded with the security force. They need to be fused
28

and seamless, not polarized; I believe a separate security service

would be a huge mistake. It is a solution to a problem that does

not exist.

Some in the ranks in the Federal Protective Service possibly

would like to see a separate service. I think those are some of the

members who are still going on a model which should have gone

out the window when Oklahoma City happened.

I need your support if this bill comes to the Senate. I hope I can

talk to you further about this very serious issue.

That concludes my prepared statement, and I will be happy, obviously, to answer any questions you might have.

Senator VOINOVICH. Thank you, Mr. Peck.

At the request of the members of the committee, we’d like to

hear from Judge Roth, and then have the two of you, if you would,

be kind enough to respond to our questions.

Judge Roth, we are very happy to welcome you again this year.

As I mentioned to you earlier, we have made some progress.

STATEMENT OF HON. JANE R. ROTH, U.S. JUDGE, THIRD CIRCUIT COURT OF APPEALS, CHAIRMAN, JUDICIAL CONFERENCE COMMITTEE ON SECURITY AND FACILITIES

Judge ROTH. Thank you, Mr. Chairman.

It is a pleasure for me to be here on this very rainy morning. I

will summarize my statement. I will touch upon courtroom sharing,

but if there are any additional questions from the members of the

committee, I will be very happy to answer them.

My name is Jane Roth. I serve as a judge on the Third Circuit

Court of Appeals and as chairman of the Judicial Conference’s

Committee on Security and Facilities.

I appreciate the opportunity to appear before the subcommittee

today to discuss the courthouse projects scheduled for fiscal year

2001 under the Judiciary’s prioritized 5-year plan, and also to summarize the Judiciary’s continuous efforts to review and improve

management of the courthouse construction program.

We appreciate the continued willingness of this subcommittee, of

the full committee, and of your staff to work with us to make improvements. In particular, we hope you will authorize projects at

the levels originally submitted by GSA to the Office of Management

and Budget, which will incorporate all projects that can be ready

for design, site, or construction contract award in fiscal year 2001.

President Clinton’s fiscal year 2001 budget request includes $488

million for seven new courthouse construction projects. This request for courthouse projects is the first since fiscal year 1997. The

President’s request does not, however, include all the projects

which GSA proposed to OMB.

We are concerned by the Administration’s failure to include

funds for all the projects which need site, design or construction

funding in fiscal year 2001.

We are also concerned by OMB’s reduction of the size of the

projects which were submitted to you. We are informed that the

funding levels for these seven projects is based on an assumption

that only two courtrooms will be provided for every three active

district, senior magistrate and bankruptcy judges.
29

We ask that you take action to restore the levels of funding for

the courthouse program to those proposed by GSA prior to OMB’s

arbitrary action.

The shortsightedness of OMB’s actions is obvious when the

courts are experiencing an ever-increasing work load.

Statements from Judge Edwards in Washington, DC.; Judge

Conway in Las Cruces, NM; and Judge Sretney in Buffalo, NY

have been provided, and I would also like to present at this time

statements from Judge Hatter in Los Angeles, CA and Judge Davis

in Miami, FL. I ask that they be included in the record to help you

appreciate the impact of OMB’s reduction.

Judge ROTH. The Administration chose not to request funding for

courthouse construction in the budget for the previous 3 years.

Congress was able to appropriate funds for courthouses in only one

of these years. This lack of funding has created a backlog of

projects and has placed GSA woefully behind schedule in delivering

needed space for the courts. The courts, therefore, must continue

to operate in facilities that are unsafe, overcrowded, and substandard.

The Judicial Conference’s fiscal year 2001 request includes 19

projects which are ready to go. The total cost of these projects is

about $800 million, based on GSA’s September 1999 estimates.

Seventeen of these projects were included in GSA’s original request

to OMB.

In addition, based on current information, two more projects

should be ready for construction contract award in fiscal year 2001.

All of these projects are needed and will only fall further behind

schedule if not funded. A listing of these projects in priority order

is attached to my statement.

The work load of the Federal courts has grown tremendously

over the past 10 to 15 years, largely as a result of legislative efforts

to wage a Federal war on crime and the illegal drug trade.

The courthouse projects on the list for funding in fiscal year 2001

are in areas of the country where there is dynamic population

growth combined with an increase in law enforcement activities.

I have attached to my written statement fact sheets that describe

the current situation and the need for the fiscal year 2001 projects

in the Judicial Conference’s 5-year courthouse project plan.

In recent years, the judiciary has continually reviewed and significantly improved the operation of the courthouse construction

program. As part of our ongoing commitment to cost containment

and program assessment and evaluation, we contracted with the

consulting firm of Ernst & Young to review our entire space and

facilities program. The study, which is close to completion, will address courtroom sharing and utilization, our long-range planning

process, courthouse design assumptions, internal space management policies, business practices, funding mechanisms, and resource allocations strategies.

We expect a final report at the end of April for review by the

Conference’s Committee on Security and Facilities. In the meantime, however, it is critical that the courthouse construction program continue to move forward.

Ernst & Young has reported to the judiciary that the court

projects requested by GSA in the fiscal year 2001 budget are the
30

result of methodical planning and review processes put in place by

the Judiciary and GSA.

On courtroom sharing, for the past few years this topic has been

in the forefront of congressional and executive branch inquiry. It

has been suggested that, because most courts are not in use 100

percent of the time, Federal judges should be able to share courtrooms in order to save the cost of construction.

The GAO report, which estimated 65 percent actual use of courtrooms, did not have a recommendation on courtroom sharing. The

Rand Report did not have a recommendation on courtroom sharing.

Both reports advised that further study should be done. It was for

that reason that the Judiciary has contracted with Ernst & Young

to provide the report that they are presently preparing.

Ernst & Young will recommend that every active district judge

have a courtroom for that judge’s use; that there are possibilities

for courtroom sharing among senior judges, depending upon the

work load involved, but that sharing of courtrooms by active judges

under the circumstances of the judiciary is not possible.

If you conclude that 65 percent use of one courtroom by one

judge should be upped to 100 percent use of two courtrooms by

three judges sharing the two courtrooms, you are, in effect, saying

that a courtroom must be used 100 percent of the time. This is an

impossibility in the judicial system, where you cannot predict the

length of a trial, you cannot predict whether a trial will take place

in the first place, or whether a trial will be settled on the courthouse step. If it were, you can’t plug a new trial into the courtroom

for that day. There is a certain lead time that is required, there’s

certain notice necessary in order to move one trial up to replace a

trial which did not take place. You must consider these factors in

courtroom scheduling. You must consider the cost and expense of

delays in trial.

When I was a lawyer practicing in Wilmington, DE, the Delaware State courts for a while were unable to provide a courtroom

for the scheduled trials. I had the experience of arriving in the

courthouse with my clients to take a case to trial to be told at the

courthouse door that, ‘‘We’re very sorry. We don’t have a courtroom

for you today. Go home. Come back again when we can reschedule

you.’’

This is not justice. This is not just to the litigants, it is not to

the system of administration of justice.

It is factors like this which Ernst & Young are taking into account in their recommendation. The Judiciary very strongly supports the position that the Judicial Conference took in 1997 that

administration of justice requires one courtroom for every active

district judge.

In Federal courts, moreover, the cost of a courtroom, when compared over its lifetime to the overall cost of the courthouse, is not

substantial. In Federal courts where courtroom sharing among active judges has occurred out of necessity, judges have reported serious difficulties. For example, the 3 to 2 ratio of courtrooms to

judges suggested by OMB is currently in effect in the Federal District Courthouse in Brooklyn, NY, while a new facility is under construction.

Senator MOYNIHAN. Exactly so. That has been a disaster.
31

Sorry, Mr. Chairman.

Senator VOINOVICH. That’s all right.

Judge ROTH. The judges, staff, and others affected have struggled to make it through this temporary situation, but, as Senator

Moynihan said, it has been a disaster. They have maintained the

operation of their court, but it has been at a very serious toll on

the stamina and the whole structure of the court system in that

district to keep the court going.

The judges in Brooklyn are uniform in concluding that courtroom

sharing has strained the operational effectiveness of the court, and

that courtroom sharing, as a permanent policy, would be counterproductive.

A 3 to 2 judge-courtroom ratio causes chaos in a system that requires an orderly process in order to be fair and just.

The judiciary continues to review and update its prioritization of

courthouse projects using a weighted scoring methodology. I am

very concerned, however, that continued delays in funding courthouses or reductions in the sizes of the buildings could result in a

breakdown of this prioritization process, with individual districts

attempting to fulfill their needs without regard to the established

process.

We ask that you take action to authorize the new construction

projects on the attached list in fiscal year 2001 at the levels originally calculated by GSA in September 1999.

Thank you for the opportunity to testify before the subcommittee.

I would be pleased to answer any questions that you might have.

Senator VOINOVICH. Thank you, Judge Roth.

If I am not mistaken, this list that I have before me that starts

with Los Angeles and goes down to Erie, PA—there are 18 projects

on this list—the projects submitted by OMB, but for Buffalo, and

I think Springfield is left off the list because it is not ready—does

that reflect your priority list?

Judge ROTH. Yes, it does, Mr. Chairman.

Senator VOINOVICH. Which I think is pretty significant. In fact,

in effect, your process of going through and ranking, and you’ve

come back and said these are the priority projects, which is comforting.

Mr. Peck, I want to congratulate you on doing an outstanding

job. I echo the comments of Senator Moynihan. I had an opportunity to observe carefully the job that your folks are doing in

Cleveland, and also have been impressed with your testimony last

year in terms of empowerment of your employees and incentive

systems and your performance standards. It would be comforting to

know that other Federal agencies did adopt performance standards

and that they had some meaning in terms of their compensation.

That would, I think, go a long way to improve the delivery of services and the quality of services in the country.

Since this issue of two courtrooms for three judges is on the

table, the question I have is: did the Office of Management and

Budget consult with the General Services Administration in making their recommendation, or did they make this recommendation

based on something that someone else had submitted to them?

Mr. PECK. It depends on what the meaning of ‘‘consult’’ is.
32

Senator VOINOVICH. Well, they’re putting their budget together,

and ‘‘consult’’ means they sat down with you, and either you suggested to them, when they put their budget together, that they

ought to give consideration to this option, or, in the alternative,

after you submitted it they came back to you and said, ‘‘You know,

we have a new idea or a good idea, and we can cut our costs and

get more done.’’

Mr. PECK. That’s not exactly the way it happened.

We had, over the past several years, talked to them about the

possibility of courtroom sharing. And I have to say, we do agree

that it must be possible to share courtrooms in some instances, and

here are the instances. If one were to have a courthouse in which

there were, say, 44 judges, I think it would be safe to assume you

could probably do with 40 courtrooms, perhaps 38. On any given

day, some of the judges are on vacation or at a conference, for instance.

If you have four judges in a courthouse, which is the case in a

number of courthouses, it is not as clear to me, just intuitively,

that you can make do as well with three. It’s quite conceivable that

all four are there a good measure of the time.

The problem is that none of us quite know what the right number would be or where the cutoff would be.

We had talked to OMB in years past about, at some point, sort

of forcing the issue by saying we should probably take some money

off the table in a couple of courthouses, and we never quite got to

where we might be.

I will just tell you, quite candidly, this year we submitted a

project list, as everyone knows, that included basically the design

guide requirements, which is one courtroom per active judge, and

actually revised our list a second time, when asked by OMB to

come back with one that would allow no departures from that

guideline. In some courthouses, there have been requests for even

additional courtrooms.

So we came back with what was called a ‘‘departure list,’’ and

OMB then came back with the list that was based on the twothirds sharing.

As I said, I was not privy to the coming up with that number,

and it’s hard to know what the scientific number would be. So I

don’t want to fault OMB for coming up with a number, which one

could at least say is something that you might try. On the other

hand, I can’t really say with great confidence that I know that this

ratio will work in every single instance.

Senator VOINOVICH. Well, would you conclude that maybe in

some instances that system would work and other circumstances it

wouldn’t?

Mr. PECK. My hunch—and we’re all going on hunches—is that

this system could work on very large courthouse projects—and I

don’t know what ‘‘very large’’ means. In my mind, projects having

more than 25 or 24 courtrooms could accommodate sharing. In

courthouses smaller than that level, I’m not sure. I suspect you

could in one with 16 or 12, but I don’t know. We don’t really know

enough.

And I was hoping the Ernst & Young study would be available

by now, quite honestly, because you need to look at what kinds of
33

things judges do in their courtrooms, how often do they need a

large well, as opposed to not needing it, and all those kinds of issues.

Senator VOINOVICH. Will the Ernst & Young study come back,

and was that the question that was asked of them to come back

with the recommendations?

Mr. PECK. Yes, sir, and at the urging of the Congress. So it has

been going on for a while.

Senator VOINOVICH. Because I know that, according to—65 percent of the courtrooms—the courtrooms were utilized 65 percent of

the time, according to this.

Mr. PECK. I have to say, I mean, Judge Roth said that. It is true

that, to some extent, a judge having a courtroom available for

court—I have been a lawyer—the judge saying, ‘‘I’m ready to go to

trial’’ does force people to settle, and knowing that the courtroom

is available is significant. And, as she noted, too, sometimes you

have it scheduled, and the day of the trial everybody says, ‘‘I really

don’t want to go through with this,’’ so the courtroom is then vacant for that day or several days. It is therefore not quite fair to

say that this was a total waste of space.

The other thing to put in perspective, I previously noted some

numbers. We save about $1.9 million, on average, by cutting out

a courtroom and its ancillary spaces, such as a holding cell. We

have to put that in the context of the larger projects. When we

build a courthouse, we’re building space for the clerks, often the

probation office, the U.S. Attorneys, and sometimes the U.S. Marshals, so there are lots of other spaces. It is a marginal cost reduction.

On the one hand, it is not that much per courtroom. In the total

program, however, significant sharing would generate a lot of savings. But whether you can get significant sharing and still carry

out the functions of the court I still think is an open question.

Senator VOINOVICH. Well, it is interesting that the GSA estimate

was $714 million, and then the OMB came back with theirs and

it was 675. You’re talking $39 million. I don’t know what the percentage is, but that doesn’t seem to be such large savings as a result of going to this new system.

One last question, and that is technology. Does that have any impact at all, in terms of, let’s say, the subject that we’re talking

about now, in terms of courtrooms?

I know in our county, Cuyahoga, Cleveland, we have some really

outstanding work being done by judges using technology. Does that

at all impact on the size of courtrooms or needs or anything of that

sort?

Mr. PECK. It has not had an impact on the size of the courtrooms. It does, to a certain extent, on the expense. But I have to

say, most of the expense is not in the cost that you are seeing

here—the actual cost of construction—although we’re doing a lot of

what are called ‘‘raised floors’’ so you can easily get to the cabling

below. The courts are spending a lot of money on technology in the

courtroom and on visual displays.

Senator VOINOVICH. But it has got no impact on space or anything of that sort?
34

Mr. PECK. It hasn’t yet. We have found that there is enough

space so far in the wells of the courtroom to accommodate the

equipment, and so it has not. We have a 2,400-square foot standard

courtroom size, which seems to be adequate to accommodate this

at the moment.

And remember, too, we build courtrooms with higher ceilings,

which are basically a floor-and-a-half or close to a two-story space,

compared to the normal office floor. So you have a little bit of room

to play with there, getting your cabling underneath the floor without adding any more space.

Senator VOINOVICH. Judge Roth, would you like to comment?

And then I’ll ask Senator Baucus if he has any questions.

Judge ROTH. Yes, I would. Thank you, Mr. Chairman.

I think another factor to take in mind, which you pointed out, is

that the cost of the extra courtrooms is not that significant. Our

figures indicate to us that, over the lifetime of a courthouse, the

cost of a courtroom and its ancillary rooms, like holding cells, is

$50,000.

If these courtrooms are not built, it is going to be that much

sooner that the judiciary is going to have to come back to you and

say, ‘‘We are busting at the seams of this courthouse. We need a

new courthouse built.’’

So I think when you balance the cost of the courtroom against

the greater need we’re going to have at a sooner time for more

courthouses, that is a counter-balance.

I think there is a cost to the whole litigation process if you are

attempting to utilize courtrooms 100 percent of the time, because,

as I said, you can’t predict how long a trial is going to last. In a

criminal trial you can’t force the defense attorney to commit up

front whether his client is going to testify or not, so that in scheduling for trials you have to estimate the amount of time.

In civil trials you have a little more control over the length of the

trial, but even then, with a juror or a witness who can’t appear as

scheduled, you simply cannot say, ‘‘This trial will begin at this moment and end at that moment.’’

The GAO study did not include the scheduling of the courtrooms

that were examined. It did not determine that the lights were off

in Courtroom A because there was nothing to be done or because

there had been a scheduled procedure which had been canceled at

the last minute.

Ernst & Young has taken all these factors into account, has

interviewed judges, has interviewed people involved in the whole

process, and, as I mentioned, we understand that their report will

support the position that there should be one courtroom for every

active district judge.

Senator VOINOVICH. Thank you, Judge.

Senator Baucus.

Senator BAUCUS. Yes. Thank you very much, Mr. Chairman.

We’ll all be looking at that report when it comes out, obviously.

I understand, too, that the Appropriations Committee has requested a report, and that, too, will be interesting when it is available.

I’m just wondering, Judge, is there any trend over the number

of either civil or criminal cases that are brought as to whether they
35

actually go to trial? Is there a trend? Is it the same percent filed

go to trial on the civil side as indictments on the criminal?

Judge ROTH. Most civil cases get settled, most criminal cases result in a plea agreement. The Administrative Office of the U.S.

Courts keeps statistics on that. I certainly can provide the committee with those statistics if you would be interested in having them.

I know that the Federal sentencing guidelines have, I believe, resulted in a higher percentage of pleas in criminal cases because of

the acceptance of responsibility benefits that a defendant can receive.

Frequently, there is no plea until the defendant sees that the

trial is imminent in a criminal case. There is no settlement in a

civil case until there is a courtroom where the trial will be scheduled, the lawyers know that the scheduling is firm, and that on

that day they are going to have to appear with their client and go

to trial. That’s when the lawyers really sit down and think about

what is the likely outcome of this case. Am I better off making an

offer, accepting an offer? Many, many cases, settle within the last

week before the trial.

Senator BAUCUS. Right. Now, this 65 percent figure, has that

been static the last 10 years, or is that also an evolving figure?

Judge ROTH. That is a one shot, a GAO team saying——

Senator BAUCUS. Is that one shot over a year, over a month,

or——

Judge ROTH. I don’t think it was that. I’m not sure of the period.

It was one shot in 12 courts. Looking at that one shot, they said

further study is required. Rand said further study is required.

That’s why we contracted with Ernst & Young.

Senator BAUCUS. I see. That was just a snapshot taken of 12

courts?

Judge ROTH. Exactly.

Mr. PECK. That’s my understanding, too. They just walked

through and saw if the courtroom was in use or not. They didn’t

ask—I don’t think—many questions about why.

Senator BAUCUS. It was a very comprehensive study.

[Laughter.]

Senator BAUCUS. Nevertheless, Judge Roth, I mean, I do think

what Mr. Peck said has some ring of truth to it. That is, there may

be a very large courthouse where it might be reasonable to schedule rooms—and whether the ratio is not 2 to 3, or it may be 44 to

45, or something like that. Who knows? I mean, why are you saying that absolutely, categorically in no case can there be fewer

courtrooms than judges in a courthouse?

Judge ROTH. Senator Baucus, I think we should keep in mind,

too, that the areas with large courthouses are the very busy areas.

Los Angeles, CA, and Miami, FL are, for instance, two courthouses

which are affected on the list this year. They are among the busiest

courts in the country. The courtrooms there are very busy.

If you cut down on the number of courtrooms in those buildings,

because of the nature of the business there, the large percentage

of criminal cases which are being tried there, the growing population and the expanding case load, I think that you are going to

find yourself, in a very short time, needing a new building in such
36

an area if you attempt to shortchange a large building by one or

two or four courtrooms.

The building is estimated for 10 years out. By the time the building gets built, we’re already 7 years out, so that we are almost at

the full capacity of the building. In some areas with a high case

load, as you have in Florida, and California, when you are 7 years

out you have already bypassed your 10-year-out forecast.

I think one can say theoretically that it is easier to share in a

large building, but when you take the practicality of where these

large buildings are, I don’t think it is a wise decision to say we

should reduce the courtrooms in these projects.

Senator BAUCUS. You make some very good points. I appreciate

that.

I have a couple other questions. No. 1, Mr. Peck, there is a discrepancy in the funding of border stations in the north compared

with the funding of border stations in the south. For example, the

station in Raven, MT, is $577,000. Well, three border stations in

Texas cost in the neighborhood of $2 million each—four times,

roughly. Why?

Mr. PECK. It is a fair question. Your numbers are about right.

Senator BAUCUS. I hope so.

Mr. PECK. Our budgets for the border stations are based on the

requirements that are given to us by what are collectively known

as the ‘‘inspection agencies,’’ such as Agriculture, Immigration, and

Customs. Although you should really talk to them, the real answer

is that the requirements for inspection tend to be more onerous on

the southern border than on the northern border. I don’t want to

speculate on that, particularly, so that I don’t cause an international incident.

There are more-intensive secondary inspections, for example, on

the southern border than on the northern border when you have

truck traffic coming through, and that seems to be the case when

we took a look at it. This seems to be what is driving the cost right

now, the cost differential right now.

[The information referred to follows:]

RESPONSE BY ROBERT PECK TO A QUESTION FROM SENATOR BAUCUS

Question. Please explain the discrepancies in funding for the Northern border versus the Southern border projects.

Response. The following projects were proposed in the fiscal year 2001 budget:

Southern Border

Eagle Pass, TX, Phase II Expansion ........................................................................................................................ $28,108,000

Del Rio, TX, Phase III Expansion ............................................................................................................................. 22,144,000

Fort Hancock, TX ...................................................................................................................................................... 2,400,000

Northern Border

Jackman, ME ............................................................................................................................................................ $7,053,000

Raymond, MT ............................................................................................................................................................ 6,544,000

Sault Sainte Marie, MI ............................................................................................................................................. 12,465,000

Roosville, MT ............................................................................................................................................................ 7,645,000
37

Border stations are built to meet the needs and requirements of the Federal inspection agencies. The higher overall costs of proposed facilities along the Southern

border is attributed to a number of factors:

• Inspection of commercial and non-commercial traffic is different along the

southern border due to required immigration and drug interdiction efforts.

• Site development costs is substantially more costly at southern border stations

than northern border stations. This cost differential is primarily due to amount of

land area needed. Less dock space, queuing, and secondary inspection area, for example, are needed at the northern border. The average land area at stations on the

northern border is 7 acres. Along the southern border, this land area is 26 acres.

• Traffic volumes for commercial and non-commercial vehicles, buses, and pedestrians are often substantially higher at southern border stations. For instance at

Eagle Pass and Del Rio, TX, the non-commercial traffic totals nearly 2,000,000 vehicles a year at each station, while the traffic count for Jackman, ME, Raymond, MT,

and Roosville, MT, does not reach 100,000 vehicles a year per station. In addition,

the commercial traffic at Del Rio and Eagle Pass (59,000 and 105,000 respectively)

exceed the commercial traffic at Raymond and Roosville (17,000 and 25,000, respectively). The larger traffic volumes are reflected in larger facilities, resulting in a

higher project cost.

There are cases along the southern border where smaller facilities are required,

such as the Fort Hancock, TX, project. Along the northern border, we are developing

projects of a larger scope, such as one at Ambassador Bridge, Detroit, MI.

Senator BAUCUS. OK. I’d appreciate it, though, if you would take

a look at that. And we will, too.

I want to thank you, Judge, as the chairman has said, for ranking courthouse construction. That has been a matter that we have

been talking about over the last couple years, and I deeply appreciate that Judiciary has ranked.

A question I have for the Administration is: here I have this list

of construction projects, courthouse construction projects that the

Judiciary has ranked, and the Administration has agreed with this

ranking on No. 1, No. 2, No. 3, No. 4, No. 5, and then suddenly

things change. The Administration slips down to—bypasses Buffalo, NY, and it bypasses Springfield, which apparently is not

ready, and it goes to eight. Then it bypasses El Paso, Mobile, Fresno, Norfolk, Las Cruces, and ends up at Little Rock, AR. What happened?

Mr. PECK. I know that last one looks strange. Let me explain.

[Laughter.]

Mr. PECK. I have an answer. Let me start at the top.

Eugene and Springfield were simply dropped out because of site

issues. In one case at least, the site we originally thought we were

going to get for a courthouse has turned out not to be a site we’re

going to get, for various local community reasons. In Springfield,

also, we’ve had trouble getting a site, so we’re just not ready to go

forward with construction in fiscal year 2001.

Miami, which was also funded—you have to remember that OMB

decided on an overall amount of discretionary spending it was prepared to put into this program. This is where I was not consulted

and, quite honestly, would not expect to be. I mean, they moved

some mountains internally to make the funding available that they

did.

Miami was the next one ready to go as a construction project,

and it fit within the cap.

The other projects, starting with Buffalo and running through

Nashville onsite and design, at least, and some additional design

for Erie, PA, were just beyond the point. OMB decided on what

their overall spending limit was going to be and knocked out every
38

project beyond that except for Little Rock. In Little Rock, we have

already done a design, unlike all the other projects where we

haven’t even started a design. The scope of the project changed a

bit, and so we just needed $1.8 million more to finish the design

and then be ready to move forward with construction. I mean, this

was the justification for Little Rock.

On Little Rock I have to say, I can’t say this is categorically the

rationale I’m pretty certain that this is the answer on Little Rock

and not anything that might otherwise strike you.

To be perfectly blunt, I think the President in Little Rock is concerned with construction of the Presidential Library and not with

the renovation of this courthouse.

But there, too, I have to say there are a couple of other projects.

Buffalo was the next one onsite and design that was in priority

order. There was a $3.6 million number, and just, whatever the

cutoff was, it didn’t make the cutoff. We haven’t started the design

process on Buffalo. We all do recognize that Buffalo and the others

are necessary projects.

Senator BAUCUS. Judge, do you have any comments on this

change in priority from the Judiciary’s point of view?

Judge ROTH. No, I don’t, Senator Baucus.

Senator BAUCUS. OK. I thank the chairman.

Senator VOINOVICH. Thank you.

Senator Moynihan.

Senator MOYNIHAN. Mr. Chairman, may I just add to the comments that Judge Roth has made and volunteer that we’ve had a

test of the two courthouses for three judges in Brooklyn, the eastern district of New York, which involves lots of the issues of war

on crime and illegal drugs that you speak of and has Kennedy Airport and all those things.

Sir, the judges—it is beyond us. We have a court. It has been financed and not asking for anything. I’m just reporting they just

found it was very difficult.

Among other things, as the judge says, the fact that there is a

courtroom there ready for a trial is a huge inducement to settlement, and if you know that, well, OK, the next thing is you’re going

to be sitting in front of a Federal judge and think about that, it’s

just—and part of the dignity of the judiciary, a judge has his courtroom.

The last 15 years, we have been adding two death penalties a

year to the Federal code, and putting them into these courthouses.

In 1955, we made a certain amount of history by restricting habeas corpus so we could get to, you know.

I think it is fair to say, if you had to pick a country in which

they had free elections as against a country in which they had habeas corpus, pick habeas corpus every time. But we got rid of that

so there would be more.

And OMB has advised the President to sign all these bills, both

kinds of Presidents. It comes with ill grace, it seems to me, at this

point, to say, ‘‘But we don’t want to have enough courtrooms to try

the cases.’’

But I would like to ask, if I can, Major Peck, what is this business of taking the Protective Service out of the Public Buildings,
39

which puts up the buildings with those services in mind and having another bureaucracy and another—what’s going on there?

Mr. PECK. Well, I have to say——

Senator MOYNIHAN. Surely it is not going to be cost effective.

Mr. PECK. Right. The bill that has passed the House Committee

actually has some beneficial provisions in it that would increase

pay for the Federal Protective Service officers and clarify their jurisdiction, which is important. This idea, however, of separating the

Service, I’m not quite sure where it came from or why it was considered a good idea. But you are right; there would be additional

administrative costs.

But, for me, the fundamental issue is that it is a simplistic response. Some sense that if one simply makes an agency independent, it will be more effective. In this case, it seems that just the

opposite is true. For the people who do security, this is a service

which is not in business to serve warrants or to enforce the drug

laws in our communities. It is in existence solely and its jurisdiction is restricted to defending Federal property, and the Federal

property under the jurisdiction of GSA.

So it seems quite logical that you would want them to be joined

at the hip with the people who decide whether the door is going

to be fixed, whether a security alarm which is broken will be made

to work.

That is, in fact, what we have. But, I mean, obviously, ideas don’t

come out of nowhere. I think there has been on the part of people

in the Federal Protective Service a sense that they were somewhat

neglected. I think the opposite has now happened. Some of the

members I believe now believe that they, at least from me, are

being too closely scrutinized, having been left on their own to define the mission, themselves. I do know a little bit about security

and defining mission from the military, and I have defined the mission, and perhaps in a way that some don’t like.

The mission is security in the buildings, and some would prefer

to chase speeders down Interstate 95, a jurisdiction we don’t have,

and shouldn’t have, and don’t need to be expert in because others

do it and do it better.

So, you could say, we have a little internal family argument.

We have devoted, as I’ve noted, more resources to training and

to technology, and I believe we are doing a great job; I worry that

some of the impetus for this separate service is, in fact, to get out

from under some of these reforms, and I’m quite concerned about

what the result could be.

Senator MOYNIHAN. Well, I couldn’t more agree. The idea that

you have put up buildings with security in mind, you run them

with security in mind, and that security involves the specific officers who are assigned it.

Judge ROTH. Excuse me, Senator Moynihan, could I add something to what Mr. Peck has said?

Senator MOYNIHAN. Your Honor?

Judge ROTH. The security of the courts is the responsibility of the

U.S. Marshals Service, and under them the court security officers,

and we are very concerned about this legislation because it does

not define how the Federal Protective Service’s jurisdiction would

line up with the Marshals Service.
40

Senator MOYNIHAN. Yes.

Judge ROTH. We tried to get an amendment in to clarify that this

legislation would in no way impinge upon the legislative responsibilities of the Marshals Service. We were unable to get that

amendment in, and for that reason we have very serious concerns

about this legislation.

We also feel that the more cooks you have providing security—

and my committee is involved with court security—the more cooks

you have, the more problem you’re going to have getting a good

soup out, and for that reason we think we have enough chefs.

Senator MOYNIHAN. I will stop right there, Mr. Chairman, and

suggest to you that when that bill comes over here we let it go nowhere. I just offer that as a thought.

Thank you very much.

Senator VOINOVICH. Senator Graham.

Senator GRAHAM. Thank you, Mr. Chairman.

I share what I think is the feeling of this committee that the idea

of having a policy which restricts the number of courtrooms to less

than the number of active judges is wrong-headed, but I would

even go beyond that and say the idea of having a single policy for

every one of the 95 Federal districts is also nonsensical.

If I could use as an example the situation in the southern district

of Florida, which is one of the districts affected by this judgment,

of the 95 U.S. Federal districts, last year the No. 2 district in terms

of jury trials was the southern district of Texas, with 293 jury

trials. The No. 1 district was the southern district of Florida, with

375 jury trials, approximately 80 jury trials more than No. 2.

Second, it has an overall per-judge caseload which is 30 percent

higher than the national average.

Third, this is a courthouse which started planning in 1993, the

10-year window being, therefore, to the year 2003. Under the current construction standards, it won’t be open until the year 2004,

and if it has to undergo redesign it might be 2005 or later, so we

are already at least 1 year, and with this at least 2 years behind

the 10-year window.

So, for all of those reasons, this seems to me to be a peculiarly

inept policy, and then to attempt to apply it as if all of the 95 Federal court districts were homogenous adds to the absurdity.

You indicated that the Office of Management and Budget, Mr.

Peck, had not consulted with you before they made this change.

Judge Roth, was there any consultation with the Judiciary before

this recommendation was made?

Judge ROTH. There was none at all, Senator.

Senator GRAHAM. This would also seem to me analogous, if you

had a school that you were about to build and you felt that it might

be over cost, to have as the only way to reduce cost to cut out the

classrooms, as opposed to maybe reconsider whether you wanted to

put in parquet floors in the gymnasium or something maybe less

expensive. Was there any consultation—if the goal was to reduce

the cost of courthouses, was there any consideration of what the

range of alternatives would be, or was the only alternative that

was considered by OMB to reduce the number of courtrooms?

Mr. PECK. Senator Graham, I think that the OMB was starting

from the assumption which is right, that we have a fairly sophisti-
41

cated benchmark system for deciding on the basic costs for a courthouse, given the amount of square footage we have. It allows for

a certain quality level and then adjusts for labor markets and construction costs. Once you’re there, the only way to reduce the cost

is to reduce the scope of the building, or the size that you are going

to build, and I think that is where they were going.

Having said that, I have to say I do fundamentally agree with

you that on this issue of courtroom sharing, if it is to be done at

all and done in an intelligent way, you would have to do it on a

case-by-case basis, and you would have to look at the kind of cases

that are in a courthouse. Some courts, like in Miami, have a lot of

multi-defendant cases, which drives you also to different decisions

about what kinds of courtrooms and how many courtrooms you

have.

If one would ask me, that’s how I would go about trying to decide

where I would support sharing.

Senator GRAHAM. There’s one other factor that I would like to request to get numbers analogous for those I’m about to give for the

southern district of Florida. The estimate is that this courthouse,

which has been under planning and design, as I indicated, since

1993, will cost $2.5 million to redesign the building that is already

just about construction-ready, and if there is a 6-month construction delay, the estimate is there will be an additional cost of $1.6

million, and, as the chief judge feels, there, in fact, will be a 12-

month delay, that number will double to 3.2 million. So somewhere

between a third and a half of the projected savings is going to be

eaten up in the cost of redesign and the additional construction

cost incident to delay.

I’d be interested in your evaluation of those numbers for the

southern district of Florida, as well as the other courthouses which

are on the list. How much is the real savings after you take into

account the consequences of redesign and delay?

Mr. PECK. I can’t vouch for those numbers. We could provide you

with an estimate.

There are a couple of projects on the list that were far enough

into design and approvals—the Washington Courthouse comes to

mind, too—that there will be both a time and fiscal cost to going

back and redesigning. Whether that eats up the savings you’d have

otherwise, I don’t know. We’ll have to take a look at that. We could

provide that if you want.

[The information referred to follows:]

RESPONSE BY ROBERT PECK TO AN ADDITIONAL QUESTION FROM SENATOR GRAHAM

Question. What is the ‘‘real’’ savings for the projects on the priority list?

Response. The real savings from the fiscal year 2001 courthouse construction program will be $140 million. Of the seven projects in the President’s budget, Los Angeles and Richmond are new design starts, and Little Rock is the continuation of an

on-going design project. Consequently, there will be no redesign cost impact on these

projects. The courtroom sharing policy has no impact on the Gulfport, MS, project.

The policy has a minimal effect on the Seattle project; the elimination of one courtroom will not affect the construction schedule for the courthouse.

The Miami and Washington, DC courthouse projects will require significant redesign to accomplish courtroom sharing, and the following describes the cost impact

on each project.
42

COURTROOM SHARING IMPACT ON THE MIAMI, FL, PROJECT

The Miami project was suspended at about 40 percent of the total design effort

for a 16-courtroom courthouse during the month of March 2000. GSA’s redesign

strategy assumes a simple scope reduction by removing 1 of the 4 courtroom floors

and adapting another courtroom floor to accept additional chambers. The building

reduction redesign will cost approximately $1,000,000 and take an estimated 3

months to accomplish. The construction cost savings achieved by removing departures from the U.S. Courts Design Guide and sharing courtrooms is approximately

$12,000,000. Therefore, the total net savings to the project will be approximately

$11,000,000.

Any delay in issuing clear direction beyond August 2000 will translate into higher

costs than reported in the fiscal year 2001 construction prospectus, regardless of the

pursued option, including the full 16 courtroom courthouse. Depending on which option is exercised, 16 or 8 courtrooms, construction costs due to inflation are estimated to be up to $260,000/month. Additionally, delay beyond this date will also slip

the construction award into fiscal year 2002.

COURTROOM SHARING IMPACT ON THE WASHINGTON, DC, PROJECT

GSA estimates that the redesign (including management fees) of the DC Courthouse will cost approximately $1,200,000 and can be completed within 11 months.

The construction cost savings achieved by sharing courtrooms is approximately

$6,700,000. Therefore, the total net savings to the project will be approximately

$5,500,000. Any delay in issuing clear direction beyond June 2000 will translate into

higher costs than reported in the fiscal year 2001 construction prospectus. Additionally, delay beyond this date will also slip the construction award into fiscal year

2002.

The concept for the redesign proposes the elimination of the northern portion of

the building above the loading dock. The loading dock, chambers and offices within

this space would be reprogrammed within the remaining annex, from space made

available from the reduction of four courtrooms. In the future, the northern portion

of the building can be constructed and the building concept completed.

Senator GRAHAM. I’d like to move to a different topic with my remaining time, if I’ve got some remaining time, Mr. Chairman, and

that is the issue of security that you referred to, Mr. Peck.

I recently visited Jacksonville, FL, where there is a Federal

building under construction, and the comments that were made to

me were that the security standards that GSA is requiring are

making it very difficult to build Federal buildings inner city, that

they are almost forcing construction to go to suburban locations in

order to be able to get the amount of setbacks and other security

requirements.

In the case of Jacksonville, where they are building a building

downtown, because of security reasons they were disallowed the request to connect to a light rail system which serves downtown

Jacksonville so that people could go directly off the light rail into

the Federal courthouse.

It seems to me that we have one Federal policy of security that

is undercutting important Federal interest in terms of enhancing

the quality of our inner cities and older downtowns and effectively

using public transportation.

Mr. PECK. I know the Jacksonville project and I know of its potential connection with the light rail system. I didn’t know that in

the last design I had seen, there was a connection. I’ll have to go

back and take a look.

[The information referred to follows:]

RESPONSE BY ROBERT PECK TO AN ADDITIONAL QUESTION FROM SENATOR GRAHAM

Question. Please followup on the connection between the light rail system and the

new courthouse under construction in Jacksonville, FL.
43

Response. GSA and local civic leaders from Jacksonville did discuss creating a secondary entry directly from the public transit station early in the design process.

However, we decided that a connection would be inappropriate for the following reasons:

• Aesthetics.—The building is set back from the station to create a public plaza

in front of the courthouse. This provides a sequence of urban space starting at the

transit station, then proceeding through a public plaza, and ending, finally, in the

Federal Courthouse. GSA felt strongly that this would provide a more pleasing effect to the pedestrian than a direct entry—elevated above the courthouse plaza—

into the building. Moreover, the pedestrian traffic to and from the transit station

and the courthouse animates the public plaza, which would be missing with a direct,

elevated connection.

• Security.—U.S. Marshals and the local court considered a second entry unacceptable because it would have increased security risks.

• Expense.—A second entry would have required an additional U.S. Marshals

entry station—fully equipped and manned with its costly personnel.

We believe the single entry design in Jacksonville is an example of GSA’s commitment to creating urban spaces that are both inviting to the public and secure for

the building tenants.

You have put your finger on a very important issue for us.

One, some happy news: in Miami, the courthouse we have designed does have a significant setback on all sides. We are trying

to turn that into an amenity for the city, a pleasant place, by turning the area into a park. We’ve even talked to the judges with some

support about having a little cafe, a place that you can actually attract people.

I have to say, some of the security folks, both in the Marshals

Service and I think some of my own, are aghast at the suggestion

that you might actually have people in their security setback. But

one of the lessons of security is the more people there are, the more

good people you attract to an area, the harder it is for the bad people to have their way.

This is a real difficult issue. I mean, we have done the following

things: we are re-evaluating our security criteria and rewriting

them. There has been a tendency, since Oklahoma City—and, in

fact, with respect to the embassy program, as well—again to have

a one-size-fits-all policy that, for instance, a 100-foot setback is absolutely necessary. Well, without getting into the real numbers, we

know if 100 feet is good, 200 feet is probably better and 500 feet

is better still, and you wonder where that number quite comes

from.

There are other ways to provide security. Some of them, however,

are expensive. If we really believe that there is, as there is in some

cases, a risk of an explosion near a building, you either need a setback, or you need to strengthen the structure of the building, which

adds expense. But at least there is that alternative.

We are quite concerned, because we are pushing hard on the

downtown policy. As I think you know, we have an Executive order

from two Presidents, Carter and Clinton, that we are abiding by,

and we are concerned that we might not be able to get sites.

With respect to the courthouse program, it is almost a given that

you have to be downtown. Very few courthouses have strayed out

to the suburbs, and we don’t see that happening.

We also believe there are lots of ways you can be creative and

provide security and do it in downtown areas. Some of it, I have

to say, is going to take some leadership on the part of all of us in

recognizing that there are some risks, no matter what you do, that
44

you do the best you can to deal with the most-likely risks, and that

all of us in the public service have to live with perhaps a little bit

more than people in the private sector do.

Senator GRAHAM. If I could just close, Mr. Chairman, I think at

some appropriate time a hearing on this specific subject of the effect of GSA policies, including security policies, on the desire to

have the Federal Government with a presence in our major downtown areas, would be a valuable contribution to this dialog.

Senator VOINOVICH. A good suggestion.

It would be interesting if you could give us some information

about where they are being built and if there is a movement toward moving things toward the suburbs. Just take the last 3 years.

That would be interesting just to see what the statistics are.

[The information referred to follows:]

RESPONSE BY ROBERT PECK TO A QUESTION FROM SENATOR VOINOVICH

Question. Please provide information related to the courthouse construction program for those that are being built in downtown areas and those that are moving

toward the suburbs.

Response. GSA has reviewed the locations for the courthouse projects that are

currently under construction. Of the 14 projects that will be completed in Fiscal

Years 2000, 2001, and 2002, 13 courthouses are in their city’s Central Business Districts: St. Louis, MO; Tucson, AZ; Hammond, IN; Omaha, NE; Montgomery, AL;

Phoenix, AZ; Albany, GA; Las Vegas, NV; Cleveland, OH; Corpus Christi, TX;

Greeneville, TN; Jacksonville, FL; and Brooklyn, NY.

One courthouse project is in a suburban location on Long Island, Central Islip,

NY. The courthouse is being built on a donated site adjacent to a county courthouse

to form a judicial center in the community. Congress amended Title 28 of the U.S.

Code to designate Central Islip, NY, as a place for holding court.

Mr. PECK. Interestingly, I believe we are connecting the Cleveland Courthouse with a pedestrian walkway to Tower City, aren’t

we?

Senator VOINOVICH. Yes, you are. Yes. And that’s a public/private

partnership, and I congratulate——

Mr. PECK. We may have an inconsistency going on here. We’ll

take a look.

Senator VOINOVICH. OK.

I’ve got a couple more questions.

First of all, if we continue to Federalize crime in this country,

which seems to be the tendency, you won’t have enough courtrooms. You’re going to be squashing judges in because you’re just

not going to have the space. This is not a good idea because you’re

going to need more space. By the time you build the new ones, they

will be obsolete. So that’s one argument, logical one, common-sense

one.

The other is I’m pleased that you are finding that your employees in the Federal service can do a good job of maintaining your

buildings, which I have contended. There’s always a tendency to

think that the only way to get anything done properly is to privatize. I think you are finding that you’ve got good employees in

the Federal Service, and if they are given the training and the

empowerment, that they can get a job done. I think this needs to

be said more often, because there is a feeling about that the only

way you can get anything done is to send it out to someone else.

I think that our Federal employees can do a darned good job if they
45

are given the training and the tools and the empowerment to get

the job done.

And the last thing is that—maybe Senator Moynihan might be

interested in this—you’re asking for money for authorization to

build the U.S. mission to the United Nations. It is my understanding that we haven’t been able to even appropriate enough money

to tear the building down. I wonder if we ought not wait for that

to happen before we authorize the construction of the building.

Senator MOYNIHAN. Mr. Chairman, if I could interject, the building is falling down, so there really won’t be——

[Laughter.]

Senator BAUCUS. While we’re on foreign buildings, Mr. Chairman, what is the status of their embassy in Beijing?

Mr. PECK. Fortunately, I don’t have to do the embassies. The

State Department does those. I can find out.

Senator BAUCUS. I can tell you it is a mess.

Mr. PECK. Interestingly, there is a security issue that we can’t

build a building in Berlin because our security standards don’t

mesh with the city plan for Berlin. They gave us one of their great

sites. In Beijing I know it is an old building and also great security

concerns, probably made all the stronger by Ambassador Sasser’s

having been nearly held captive in his building.

Senator BAUCUS. To say it is an old building is an understatement. It was given to us many, many years ago by Pakistan. It is

an embarrassment to America.

Mr. PECK. A great legacy.

Senator VOINOVICH. Can you comment on that U.N. question,

please?

Mr. PECK. Yes, sir, on the U.S. mission, it is true that I believe

the appropriators last year did not appropriate. We have a design.

We are ready to go. Obviously, we are not going to demolish without approval.

I mean, we could get stuck in this who goes first issue, and, obviously, we urge the committee to approve this project in full and let

us go ahead as we get the funding.

It really is necessary. The building is old. You can hear from my

comments, I am not an alarmist on security, but this is a building

that really has no security. It is not adequate to the size of the U.S.

mission.

No matter how one feels about the United Nations, we clearly

have a presence there. We are the host country. The U.S. mission

building is across from the U.N. Building. It is just in a terrible

state, and we think the project is needed.

I’d suggest going—obviously, it is your call. I’d suggest going

ahead and approving it and letting us go and talk to the appropriators and see if we can get the funding.

Senator VOINOVICH. OK. Are there any other questions?

[No response.]

Senator VOINOVICH. Well, we’d like to thank you very much for

being here.

Mr. PECK. Thank you.

Senator VOINOVICH. The meeting is adjourned.

[Whereupon, at 11:40 a.m., the subcommittee was adjourned, to

reconvene at the call of the chair.]
46

[Additional statements submitted for the record follow:]

STATEMENT OF HON. JOHN W. WARNER, U.S. SENATOR FROM THE COMMONWEALTH

OF VIRGINIA

Thank you, Mr. Chairman, for holding this hearing on GSA’s fiscal year 2001

Capital Investment and Leasing Program including the courthouse construction program.

I am pleased that the President’s fiscal year 2001 budget request includes seven

new courthouse construction projects, the first such request since fiscal year 1997.

Congress has recognized the need to provide the judiciary with adequate, secure

space for courts and I am happy that the Administration has followed suit to acknowledge this need.

The absence of courthouse funding in the budget for 3 years, with Congress only

able to appropriate funds in one of those years, has placed GSA behind schedule

in delivering needed space for the courts and created a lengthy backlog of projects.

Although, the Administration’s fiscal year 2001 proposal still falls short of funding

the courthouse projects which this committee has already authorized, it is a good

first step.

There are two courthouse projects which I would like to bring to the committee’s

attention.

First, the current space and security situation at the Richmond, Virginia, courthouse facility is inadequate and warrants action. The court complex is operating at

full capacity and most court and court- related components are experiencing operational difficulties. There is no room within the existing facility to accommodate any

growth. Any further delay of the project would impede greatly the court’s ability to

accomplish its work. Thankfully, the site and design for the Richmond Courthouse,

housing the entire District Court and Bankruptcy Court, is among the seven courthouse projects in the budget proposal.

Second, I am concerned that the existing courthouse at Norfolk has run out of

space and presents serious security concerns. It is one of the 18 projects which this

committee has authorized and identified by the judiciary as one of the most crucial

needs. Prisoners, litigants, jurors, public and judges share the same elevators and

hallways. Funding for the annex project is needed to remedy the existing problems

and provide for the 10-year needs of the court. The current problems and inadequacies have reached a critical level and immediate funding is needed for construction

of the annex project, which will allow the courts to meet their mission in the Eastern District of Virginia. Unfortunately, the present budget does not include funding

for this necessary project.

I also have two concerns over the present courthouse proposal.

My first concern is over the ranked priorities for courthouse construction in the

President’s budget. After much deliberation this committee recognized that a priority order established by the judiciary would be the most fair solution in ranking

which of the many courthouse projects would begin site, design or construction

work. Although the Administration budget does provide funds for six of the top

seven projects identified by the judiciary, it does not strictly follow the order prescribed and deviates in one case. I suspect my colleagues from New York will bring

this issue up in greater detail but I wanted to register my concern as I do not wish

there to be precedent established that would delay projects identified as necessary

in my state or in my colleague’s districts.

Lastly, I wanted to bring attention to the courtroom sharing issue. A number of

Federal judges in the Commonwealth of Virginia have brought to my attention the

decision by OMB to have all judges share courtrooms contrary to established Judicial branch policies. Although no representative of OMB is here to explain their rationale, I wanted to let the committee know that I am concerned with this decision

on many fronts and am eager to understand the rationale.

Thank you, Mr. Chairman.

STATEMENT OF ROBERT A. PECK, COMMISSIONER, PUBLIC BUILDINGS SERVICE,

GENERAL SERVICES ADMINISTRATION

Good morning, Mr. Chairman and Members of the Subcommittee, my name is

Robert A. Peck and I am the Commissioner of the Public Buildings Service. Thank

you for inviting me here today to discuss the Fiscal Year 2001 Capital Investment

and Leasing Program. Before I discuss the specifics of our program, I would first

like to give you an overview of our overall responsibilities and highlight a number

of Public Buildings Service initiatives that are improving the way we do business.
47

BACKGROUND

GSA’s Public Buildings Service is the largest owner/operator of commercial-style

real estate in the United States, managing 350-million square feet of space in office

buildings, courthouses, laboratories and border stations, and housing one million

Federal employees. Approximately 55 percent of that space is in 1,993 governmentowned buildings, housing nearly 500,000 employees. The remainder of the space and

employees is housed in approximately 6,400 privately owned leased buildings. Our

customers include all Federal departments, independent agencies and commissions,

the Judiciary, and Members of Congress.

Our funding comes principally—in fiscal year 2000 it is coming exclusively from

the rents that we charge to the more than 100 Federal agencies. The rent revenues,

expected to amount to approximately $5.5 billion in fiscal year 2000, are deposited

into the Federal Buildings Fund (FBF) and are used to operate the government’s

buildings, pay rent to the private sector for our leased space, provide security, and

fund our administrative costs. More than 90 percent of the $5.5 billion we plan to

spend in fiscal year 2000 will be paid out in the form of contracts with the private

sector. More than half of the fiscal year 2000 expenditures, $3 billion, will go toward

lease payments in private buildings.

Since the Oklahoma City bombing, we have doubled our rate of spending on building security, doubled the size of our uniformed force, and improved our security organization to upgrade its capabilities and focus it on the violent threats we face.

Improved Performance through Businesslike Measures

While we carry out the public buildings program in accordance with government

contracting procedures and socio-economic preferences, we are now operating more

like a business. Our performance measurements link our budgeting process to performance in tangible ways. We have established nine performance measures, which

have quickly become known as the ‘‘Big Nine’’ in our organization. These measures

have allowed our 11 regions to compete among each other to do our business in the

cheapest, best, and fastest manner possible. Regional budget allocations and even

individual bonuses are tied directly to a region’s ability to meet specific performance

improvement targets.

In business, they say you get what you measure and we have found that, too.

Since we began our ‘‘Linking Budget to Performance’’ program, we have had the following results:

• Our funds from operations have increased approximately 38 percent from fiscal

year 1998 to 1999.

• We have reduced the non-revenue producing space in our total inventory from

13 percent to 10 percent in just the last fiscal year.

• Our operating costs per square foot in government-owned space are approximately 13 percent below the private industry average; in the past 3 years, our cleaning costs per square foot have actually gone down, while the private industry average has gone up.

• The average rents we have paid in our leased buildings across the country have

been at or below the average rate that private sector tenants pay, with a cost avoidance to the government in the tens of millions of dollars.

• The average time it takes us to negotiate new leases for client agencies is down

from 244 days in 1996 to 152 days in 1999, a decrease of 38 percent.

• Our energy consumption was reduced 17.3 percent from 1985 to 1999. Our goal

is to further reduce this another 2.7 percent by the end of fiscal year 2000 and an

additional 10 percent by the end of fiscal year 2005.

• Our customer satisfaction scores, measured in hundreds of buildings by the Gallup organization, have improved steadily from 74 percent in 1993 to 80 percent in

1998. Our long-term customer satisfaction goal is 85 percent.

These results are depicted graphically in an attachment to my statement.

This improved financial performance has a direct bearing on the capital program

we are proposing. By pricing more realistically and reducing expenses, we have

produced more net income, which for us is the only available source of funding to

upgrade our aging buildings, and thus provide Federal workers the productive workspace they need. Increased net income allows us to propose more capital improvement projects. We are proposing some new construction funding from the FBF, as

well. We consider this to be a secondary priority for FBF net income and are recommending it for some urgent security and law enforcement projects only.

Improving the Public Quality of Public Buildings

In addition to focusing on our bottom line, the Public Buildings Service has a

broader goal of improving the benefits that Federal buildings bring to local commu-
48

nities across the country, recapturing the tradition of quality and vitality in Federal

buildings that was begun by Washington and Jefferson.

• We are designing and constructing landmark public buildings that are efficient

and dignified, sources of community pride, and positive government investments in

their localities.

• Our urban livability program has improved the way we integrate our site and

design decisions with local planning and development needs. We are making public

building plazas centers of downtown activity, in the tradition of the American courthouse square.

• We have kicked off a First Impressions program to redesign the entry and lobby

areas of our Federal buildings, making them more welcoming and functional as well

as secure for the public and employees.

THE CAPITAL INVESTMENT AND LEASING PROGRAM

This month we submitted to Congress the GSA Fiscal Year 2001 Capital Investment and Leasing Program, which you have before you today. We are pleased to

note our proposed budget request this year includes a substantial new construction

program as well as an increase in the amount proposed for critical repair and alteration projects.

The highlights of the program include:

Projects Funded from the FBF

• 9 prospectus-level (non-courts) design and new construction projects estimated

at $82,351,000;

• 14 prospectus-level repair and alteration projects budgeted at $349,278,000;

• 12 prospectus-level repair and alteration designs for future projects at

$21,915,000;

• An ongoing chlorofluorocarbon reduction and energy-saving programs budgeted

at $10,000,000 and $20,000,000, respectively; and

• A glass fragmentation program budgeted at $30,000,000.

Projects Funded from a Direct Appropriation to the FBF

• 2 new construction projects—the FDA consolidation in Montgomery County,

MD, for $101,239,000 and ATF Headquarters project in Washington, DC, for

$83,000,000; and

• 7 new courthouse construction projects totaling a budget request of

$488,464,000.

Capital Planning

Our Capital Investment and Leasing Program plays a key role in providing the

necessary resources to maintain the current real property assets and acquire new

or replacement assets. Our proposed projects are evaluated in the context of the entire national portfolio. We consider three options when evaluating our client agency

requirements: construction and acquisition, repair and alteration, or leasing space

from the private sector. When evaluating and prioritizing our capital program, we

consider a number of factors:

• Economic justification in terms of financial return and present value cost;

• Project timing and execution;

• Physical urgency based on building conditions;

• Customer urgency; and

• Historic preservation and community considerations.

Repair and Alteration Program

More than half of our government-owned buildings are older than 50 years and

nearly a quarter of the inventory bears historic designation, so we have a particularly significant need for funds to maintain and renovate our existing inventory. Our

first capital program priority therefore must be repair and alteration of our existing

inventory to ensure that its value and condition do not decline. For fiscal year 2001,

we are proposing a budget of $721.2 million, an 8 percent increase over $665.6 million received in fiscal year 2000. Our annual repair and alteration program is approximately 2.5 percent of the inventory’s replacement value, which falls within the

range (2–4 percent) of private sector practice. However, given the age of the inventory, we are currently studying what is an appropriate level of funding.

To help allocate the limited resources of the FBF for repair and alteration

projects, we use a Return on Investment (ROI) methodology—in addition to the criteria highlighted above. ROI determines if a project adds or detracts from the net

income the building contributes to the FBF after project completion. Simply stated,

if we invest dollars in a building, we want to make sure that the investment will
49

bring increased revenues. Using a ROI approach in evaluating projects assists our

efforts in strengthening the long-term fiscal health of the FBF.

New Construction and Acquisition

Through revenues generated by the FBF, we are proposing to fund 7 border stations; demolition and construction of a new U.S. Mission to the United Nations; and

the acquisition of a site and design of a new Federal Bureau of Investigation (FBI)

Field Office. By increasing our net income—through new pricing policies and our

focus on performance measures—we have released some of that net income for modest, yet urgent, security-related new construction projects. Nonetheless, we continue

to have unmet needs in our existing buildings and our first priority for the use of

net income is for building repairs and alterations.

Through a direct appropriation, we are requesting funding and authority for 7

courthouse projects across the nation, the FDA consolidation in Montgomery County, MD, and the ATF Headquarters project in Washington, DC. You will also notice

a request for your Committee to authorize the Suitland, MD, NOAA project. Design

funds for this urgently needed facility, which will house some of the nation’s most

important weather satellite technology, was provided in the Department of Commerce’s fiscal year 2000 appropriation. Our request for authorization, along with an

advance appropriation requested in the Fiscal Year 2001 President’s Budget, will

allow GSA to proceed expeditiously with the design and construction of this important facility. Our fiscal year 2001 budget request also includes advance appropriations in fiscal years 2002, 2003, and 2004, which will complete funding of the FDA

consolidation in Montgomery County, MD.

As you know, this is the first year the Administration has requested a courthouse

program since 1997. The fiscal year 2001 funding request for new courthouse construction reflects the Administration’s view that courtroom sharing is a cost effective

means for providing the space needed by the courts. This has resulted in the elimination of 22 courtrooms in the 7 new courthouse projects proposed in the budget.

Although some redesign will be required, GSA’s fiscal year 2001 budget request was

reduced by approximately $25 million as a result. Our projections indicate that the

expenditure of almost $33 million will be avoided in future years as these projects

move from the design phase into construction. Additional significant cost savings of

approximately $85 million will result, for instance, from the construction of a companion courthouse to the Roybal Building in Los Angeles, as opposed to a new

stand-alone courthouse.

The following table summarizes the status of the courthouse construction program:

Project Stage Number of Projects

Completed ............................................... 25 9 completed in 1999

Construction Funded:

Under Construction ............................. 15 9 to be completed in fiscal year 2000*

Construction Pending ......................... 6 Fully funded and authorized

Partially Funded:

Site Acquisition .................................. 3 Received only site funding/authorization

Design ................................................. 1 Received only design funding/authorization

Site and Design** .............................. 12 Received only site and design funding/authorization

Total Projects ................................. 62

Total Dollars ................................... $3.5 Billion

*Albany, GA; Central Islip, NY; Hammond, IN; Las Vegas, NV; Montgomery, AL; Omaha, NE; Phoenix, AZ; St. Louis, MO; Tucson, AZ

**The Seattle, WA, Courthouse project is an example where GSA is in the site acquisition and design process. GSA will not proceed with

construction until such funding and authorization are obtained.

The 25 projects that have already been completed provide 244 courtrooms for the

Judiciary’s use. The 9 projects that will be completed this fiscal year will add 123

courtrooms to the inventory.

The remainder of the new courthouse construction program is projected to cost approximately $4.5 billion. This amount includes construction funding for the 16

projects that have received only partial funding and also includes full funding for

the 97 projects that have received no funding to date.
50

Leasing Program

This year we have also submitted for your consideration 12 lease prospectuses.

These 12 leases total approximately $80 million in obligations in fiscal year 2001.

These prospectus-level leases represent a small percentage of our $2.94 billion rental of space budget request for fiscal year 2001.

By managing ourselves in a more business-like manner, we are working to control

the growth of our leased inventory. As mentioned previously, one of our performance

measures is the amount of vacant space in our inventory. We focus on reducing vacancy in both owned and leased space by renovating and backfilling vacant-owned

space, realigning space assignments to consolidate vacant space, and where possible,

buying out leases and moving tenants from leased to vacant-available space in Government-owned buildings. We believe our efforts have been successful. The proposed

$721.2 million repair and alteration program, for instance, will allow us to backfill

more than 1.1 million square feet of vacant space in our owned inventory, which

in many cases involves moving client agencies back into government-owned buildings from leased space.

CONCLUSION

While the FBF can support maintaining our existing inventory and a modest new

construction program to fund border station needs and specialized law enforcement

needs, such as the occasional FBI building, it cannot support a large-scale new construction program, such as that needed by the U.S. courts. This is evidenced by the

$3 billion Congress has appropriated to the FBF between fiscal years 1990–2000.

To propose a large new construction program as we have this year, it is necessary

for us to ask for an appropriation to the FBF. We have found, however, that our

business-like approach has helped us maximize the net income from our portfolio,

and in turn, invest more in our existing inventory. The higher our net income, the

higher the number of prospectus-level repair and alteration projects we are able to

submit to Congress. A higher net income also allows us to fund more new construction projects within the FBF, which is evidenced by the $102,194,000 we submitted

in the fiscal year 2000 budget and the $107,085,000 we are proposing for fiscal year

2001.

Last year marked the 50th anniversary of the founding of the General Services

Administration. We were created as an outgrowth of the Hoover Commission in

1949. Over the past year we have been evaluating the impact that additional asset

management tools would have on the Government’s management of real estate. We

are working closely with the Administration, and hope in the near future to submit

a proposal that Congress agrees will allow us to operate our real property inventory

even more effectively. Finally, we are also evaluating the need to increase the prospectus threshold above the fiscal year 2001 level of $1.99 million. We believe a

higher threshold would enable us to meet agencies’ space needs—such as replacing

a single building systems or backfilling vacant space—more rapidly than the current

threshold allows, and would still provide for the Committee’s review the significant

capital improvement and construction projects that Congress has traditionally been

concerned about.

Mr. Chairman, this concludes my formal statement. I would be glad to answer

any questions that you may have about our proposed Fiscal Year 2001 Capital Investment and Leasing Program, or any other aspects of the public buildings program.
51
52
53
54
55
56
57

RESPONSES BY ROBERT PECK TO QUESTIONS FROM SENATOR VOINOVICH

Question 1. If you would please explain for the committee the current status of

the U.S. Mission lo the United Nations. (NOTE: There was no funding available for

the demolition of this building in the fiscal year 2000 Treasury, Postal Appropriations bill.)

Response. The U.S. Mission to the United Nations project requires demolition of

the existing U.S. Mission building and the construction of a new U.S. Mission building on the existing, government-owned site. Congress authorized $3.163 million for

design and $4.3 million for demolition. P.L. 105–277 (FY 1999 appropriations) including $3,163,000 for design of the new building.

The project’s architectural design contract was awarded in June 1999; design will

be completed in December 2000. GSA requested $4.022 million for demolition in fiscal year 2000, and as you note, we did not receive that appropriation. The GSA fis-
58

cal year 2001 budget includes a request for $58.3 million for the demolition and construction phase of the project. As we testified, to correct serious security and functional inadequacies in the ex- isting building, we need the new U.S. Mission building. With design nearing completion, it becomes more critical that we proceed to demolition and construction. Delaying construction once design is complete always increases cost. We are preparing to

move U.S. Mission staff to temporary leased space during the demolition and construction. GSA is currently conducting a solicitation for this leased space.

Question 2. What are your views regarding S. 1564, the Cochran, Federal Courts Budget Protection Act? Response. S. 1564 would require the Administrative Office of the U.S. Courts to

submit the Judiciary’s annual budget request directly to Congress, bypassing the

regular Federal budget review process. The Judiciary’s submission would include

funding requests for new construction, site acquisition, and repair and alteration activities for courthouses and other space occupied by Judicial branch agencies. GSA opposes S. 1564 for the following reasons:

• A primary role that GSA serves within the Government is to consider the total

housing needs of all Federal agencies within a community. This bill would allow the

Judiciary in isolation, i.e., without considering the needs of other agencies, such as

the U.S. Marshals Service and U.S. Attorneys office, or even non-court-related agencies that may have a housing need, to develop courthouse projects. When looking

at the space requirements of the Federal community, we also survey the existing

GSA inventory for vacant or underutilized space. Under S. 1564, the Judiciary could

potentially request construction funds for new court space even if we have available

space in existing Federal facilities. This is clearly not the most financially prudent

way to obtain maximum value from the Federal real estate portfolio. • GSA’s benchmarking system allows us to set an appropriate, objectively deter- mined budget for each proposed courthouse project. This benchmark takes into account the unique needs of the courts and is adjusted for the variation in construction costs in different parts of the country, Although S. 1564 would have GSA provide estimates to the courts, the process contemplated by the bill would compromise

the independence and credibility of our benchmark estimates. • S. 1564 also complicates funding for courthouse construction, site acquisition,

and renovation projects. For instance, GSA performs many preliminary studies and

analyses, such as environmental impact studies, prospectus development studies,

and site acquisition analyses, before requesting funding for capital projects. GSA

funds these studies from an account within the Federal Buildings Fund that is separate from the construction account to which the Judiciary’s appropriated funds

would be deposited. It is unclear in S. 1564 how such studies would be funded. • GSA would also lose reprogramming flexibility, including (1) reprogramming funds among other GSA new construction projects and court new construction

projects; and (2) reprogramming from other budget activities within the Federal

Buildings Fund. Our ability to shift funds to compensate for up to 10 percent escalations in construction costs—funds which have to come out of economies in our

other projects or programs—is key to the effective and timely completion of projects.

In summary, we believe the current system is one that is highly objective and allows for the necessary checks and balances against which the courts’ assessment of

its space needs are evaluated.

Question 3. Could you please explain the model that OMB used to determine

courtroom sharing at a ratio of 2 courtrooms for every 3 judges? Do you agree that

in some instances, like in the case of Miami and DC, that changes to the design

may increase the total cost of construction of these projects?

Response. OMB asked GSA to identify the total number of resident district

judges, including senior judges, who would sit in each of the seven courthouse locations. OMB then calculated two-thirds of that number, and rounded up, if necessary,

to the next highest whole number to determine the number of district courtrooms

to be provided. For example, if there would be 8 district judges in a location, 6 district courtrooms would be constructed: (8 x 2⁄3 = 51⁄3, rounded to 6). The number of

magistrate courtrooms and bankruptcy courtrooms to be constructed in each location

was calculated in the same way.

With regard to Miami and Washington, DC, both projects would require redesign

to accomplish the necessary reductions in project scope. However, the total cost of

the projects, including redesign costs, will be reduced by eliminating departures

from the U.S. Courts Design Guide and following the courtroom sharing model. The

total estimated project cost for Miami will be reduced from $148,068,000 to

$137,072,000. This reduction is a result of eliminating 4 courtrooms that are departures from the U.S. Courts Design Guide and 4 courtrooms as a result of the shar-
59

ing policy. The total estimated project cost for Washington, DC will be reduced from

$115,201,000 to $109,153,000 due to courtroom sharing. We estimate the costs of redesigning to be $1.5 million in Miami and $1.2 million in Washington. The additional design costs for both courthouse projects are included in the above estimated

project costs.

RESPONSE OF ROBERT PECK TO QUESTION FROM SENATOR SMITH

Question. I am interested in the development of the Southeast Federal Center

property next to the Washington Navy Yard. This is property owned by GSA, and

I would like to know what plans if any, GSA is considering for its future use?

Response. The Southeast Federal Center (SEFC) comprising 55 acres on the Anacostia waterfront, is the largest federally owned tract in Washington, DC, suitable

for development. The site is a historic district eligible to be listed on the National

Register of Historic Places. GSA has included a $5 million request in its fiscal year

2001 budget to complete construction of the SEFC seawall and to accomplish additional environmental assessments. The total remediation cost for the SEFC is $35

million.

GSA has had various plans in the past to develop the property. In fiscal year 1991

and fiscal year 1993, Congress appropriated $198 million to construct new headquarters buildings at the SEFC for GSA and for the Army Corps of Engineers. In

fiscal year 1994 and fiscal year 1995, Congress rescinded that appropriation. In fiscal year 1999, GSA proposed an appropriation of $14 million for design of a $294

million DOT headquarters on the site. In conjunction with the request for design

funds, a prospectus requesting authorization of the DOT headquarters as a new construction project was submitted to the House Committee on Transportation and Infrastructure and the Senate Committee on Environment and Public Works. The

Committees declined to approve the prospectus for a construction project, and instead authorized GSA to lease space for DOT.

We are investigating alternatives to develop the SEFC and are reviewing authorities proposed in the House legislation regarding the site’s development. Because of

past development funding constraints and recent rethinking of planning objectives

for the area, and because GSA has become more knowledgeable about urban redevelopment strategies that have worked around the country, GSA favors mixed-use

development (i.e., a mix of office, retail, housing and possibly other uses) for the

site, rather than the exclusive Federal office construction envisioned in earlier GSA

plans. Moreover, the move of some 6,000 personnel of the Naval Sea System Command into the Navy Yard next door, bringing employment at the Navy Yard to more

than 11,000, increases the desirability of the SEFC as a mixed-use location.

Last fall, GSA retained a real estate consulting firm to evaluate mixed-use development opportunities at the SEFC. The consulting firm has determined that there

are a number of development opportunities, which include office space, approximately 500 housing units, a 200-room hotel, and limited retail.

One potential development opportunity for a portion of the SEFC remains the

headquarters for the Department of Transportation (DOT). Currently, GSA is procuring 1.35-million square feet of leased space to consolidate DOT in downtown

Washington, DC. We are employing a two-step procurement to consolidate DOT. As

part of the procurement, GSA is offering for sale at fair market value an 11.7-acre

parcel at the SEFC. Two developers who took us up on the offer to use that site

to construct a DOT headquarters, were invited to participate in phase 2 of the procurement; two offerors proposed building onsites elsewhere in the city, and one

offeror is proposing to retain DOT at its current location. GSA plans to make an

award for the DOT headquarters project in September 2000.

GSA also believes that the SEFC and the Anacostia waterfront area in general

would be a likely place for and would benefit from having on the site what developers refer to as a ‘‘destination’’ use: a cultural or entertainment facility that draws

large numbers of people, both residents of the city and tourists. One such destination use that has been suggested might be an expanded Navy Museum, relocated

from its current building in the Navy Yard, and possibly a separate Navy Museum,

with display areas and a parade ground, as well. We believe these uses would stimulate development of the SEFC and surrounding area, as well as fulfilling an important public purpose.

RESPONSE OF ROBERT PECK TO QUESTION FROM SENATOR BAUCUS

Question. The courts and OMB seem to be at opposite ends of the spectrum on

this issue. What factors should be considered in an effective courtroom sharing

model?
60

Response. Ideally, a courtroom sharing model should analyze the local court’s current and projected workload and courtroom utilization as well as the current and

projected numbers of judgeships, including senior and visiting judges, for that location. OMB requested this information and similar data from the Administrative Office of the U.S. Courts as long ago as the fall of 1998, but it was not provided.

RESPONSES BY ROBERT PECK TO QUESTIONS FROM SENATOR REID

I was very disappointed to learn that the Office of Management and Budget did

not include in the President’s budget request funds in the amount of $24 million

for repairs and alterations to the Foley Federal Building and United States Courthouse in Las Vegas, Nevada. I have been informed that the General Services Administration did, in fact, request OMB to include this funding in the President’s

budget request, but that OMB failed to act upon this request. I was even more disappointed to learn that the repairs and alterations request for the Foley Federal

Building and Courthouse was the only GSA courthouse R&A not included by OMB

in the President’s budget request.

Question 1. What reason or reasons did OMB provide as to why this R&A request

in the amount of $24 million was not included in the President’s budget request?

Response. OMB’s overall framework for developing the fiscal year 2001 program

is that capital projects not scheduled for award until late fiscal year 2001 or early

fiscal year 2002 are not proposed for funding. This project’s design is scheduled for

a late fiscal year 2001 design completion and a construction award for December

2001. Consequently, this project was not included in our fiscal year 2001 program.

Question 2. What reason or reasons did OMB provide as why this was the only

R&A courthouse request not included in the President’s budget request?

Response. OMB did not single out this project. As explained above, the proposed

renovation has a fare estimated design completion and a construction award date

of early fiscal year 2002. Given this late construction award date, this project was

not included in the President’s budget request.

Question 3. Why, in the opinion of GSA, was this funding not included in the

President’s budget request?

Response. As previously explained, OMB’s framework for developing the capital

program is that projects not scheduled for award until late in the fiscal year, or

early in the following fiscal years are not proposed for funding. Because the project

is not scheduled for construction award until December 2001, this project was not

included in the President’s budget request.

Question 4. Why, in the opinion of GSA, was this the only R&A courthouse request not included in the President’ budget request?

Response. The Foley FB-CT project has a late estimated design completion and

an estimated construction award that slips into early fiscal year 2002. The schedule

was the reason this project was not included in the President’s budget request.

Question 5. Upon examining the 13 projects, which were included for Repairs and

Alterations, OMB is requesting funds greater than $24 million for eight of those

projects (an additional request is for $23 million). Clearly Las Vegas was not excluded because it is the most expensive project. Would you please address this discrepancy?

Response. The schedule, not the cost of this project relative to other renovation

projects, was the reason this project was not included.

Question 6. I would also like to remind you that the district court will be moving

into the George (new) Federal Building and Courthouse in just a few months. What

will happen with the Foley Building if funds are not appropriated until Fiscal Year

2002? Will we have an unusable building for more than a year? What additional

costs would this incur? Please address these concerns as well.

Response. The U.S. Bankruptcy Court, the Small Business Administration, and

other executive agencies will remain in the building. Vacant space in the building

will either be altered first or used as swing space for building tenants to facilitate

the renovation of their current space. Vacant space not required by current building

tenants will be backfilled by executive agencies relocated from leased space.

Since The project is not scheduled to begin until fiscal year 2002, delaying the

appropriation of construction funds until fiscal year 2002 will not impact the project

costs.
61

[From the Federal Times, March 6, 2000]

REWARDS FOR EMPLOYEES REAP REWARDS FOR AGENCY

(By Renee McElveen)

You will not find the agency’s stock listed on the New York Stock Exchange.

But that does not stop managers and employees at the General Services Administration’s Public Buildings Service from sharing in the agency’s financial gains.

Last June, 518 employees of PBS’ Northeast/Caribbean region received cash

awards totaling $538,000 for improving their region’s performance.

And in mid-February, 201 employees of the New England region won cash awards

totaling $322,000.

PBS executives say a 2-year-old bonus program that rewards high performers is

paying off. In short, they say, the culture of the Public Buildings Service is changing: Employees are thinking more creatively about their jobs, trying innovative

ideas to better their performance at the agency, which is charged with buying, leasing and maintaining office space across the country for Federal agencies.

Satisfaction among PBS customers has risen from 74 percent in 1994 to 80 percent in 1998. Vacant rental space has decreased from 12.3 percent in 1998 to 9 percent in 1999. The time it takes to sign a lease has been reduced from 250 days in

1996 to 150 days in 1999.

For PBS Commissioner Robert Peck, the bonus program he helped create in 1998

has not only improved performance at his agency but also has generated millions

of dollars in savings that he has plowed back into PBS operations. ‘‘We are rewarding people for the right things,’’ Peck said.

And this is reflected in the agency’s bottom line.

In fiscal 1999, PBS generated $5.4 billion in rent revenues and is projected to top

that with $5.6 billion in 2000. Peck estimates rent revenues will reach $5.8 billion

in 2001.

Under the program, called ‘‘Linking Budget to Performance,’’ employees and regional bureaus are rewarded for exceeding performance goals. Peck said employees

refer to the program as the ‘‘Big Nine,’’ after the nine performance areas that employees from GSA’s 11 geographic regions strive to exceed by the end of the year,

in competition with each other.

Agency employees can earn performance awards—and regional offices can earn

bigger shares of the PBS budget—by increasing net income, improving customer satisfaction, decreasing administrative costs, decreasing the amount of vacant space,

reducing the cleaning costs of buildings, reducing building maintenance costs, reducing lease costs and keeping construction costs within budget and keeping construction projects on schedule.

When Peck joined PBS in 1995 there were 38 performance measures in place for

the agency’s employees.

STREAMLINED PERFORMANCE GOALS GET RESULTS

‘‘You can’t manage to 38 performance measures,’’ he said. ‘‘You can’t even remember 38 performance measures.’’

Jan Ziegler, then-acting assistant commissioner for PBS’ Office of Business Performance, was charged with building the program. To develop a smaller, more effective set of performance measures, Ziegler looked to the private-sector real estate industry, studying its best business practices in 60 markets across the country.

One key national goal of the PBS program is achieving an 85 percent customer

satisfaction rate. To qualify for an award, a region must exceed the national goal.

For fiscal 1995, the Northwest/Arctic Region had scored 83 percent on its customer satisfaction survey, conducted by the Gallup Organization. The 1998 survey

results indicated a score of 87 percent—two percentage points over the national

goal—making it eligible for a bonus.

Another performance measure is financial performance, which is measured by

such criteria as cleaning costs of buildings per square foot.

In 1998, the Northeast/Caribbean Region achieved building cleaning costs averaging $2.01 per square foot, compared with the industry average of $2.22. By the end

of the performance period, the region had reduced cleaning costs to $1.98 per square

foot, beating the industry average by 24 cents. For 1999, those costs increased six

cents in the same region, compared with an industry increase of four cents, but the

region still beat the industry average by 22 cents. On order to be effective, a measure has to be something that the people who get measured have some influence

over,’’ Peck said.
62

1The Judicial Conference of the United States is the judiciary’s policymaking body.

Although the PBS awards program is only 2 years old, top agency managers are excited about the results and the changes they see in employee performance. ‘‘It’s really profoundly changed behavior out in the field,’’ said Paul Lynch, assist- ant commissioner for the agency’s Office of Business Performance. He said he sees employees working together to meet the performance goals. They view the buildings they are responsible for as assets, Lynch said. Tony Costa, assistant regional administrator for public buildings in the National Capital Region, is responsible for 1,700 employees. Since the awards program was

instituted, he has seen significant changes in the way business is conducted on a

daily basis. He said employees are now focused on how their performance contributes to the achievement of regional goals. During his weekly business meetings with staff, discussions center on the numbers—why performance is improving or declining in a

particular area, and how they can fix problem areas. ‘‘The employees recognize that the things they do every day have an impact on the department,’’ Costa said.

In addition to changing employee behavior, the awards program has brought out a sense of competition among the Public Buildings Service’s 11 regions, Peck said. The region achieving best overall performance in the nine categories wins custody of a traveling trophy until the next winner is announced. The first overall winner in 1998 was the Northeast/Caribbean Region. With that honor, the region—which includes New York, New Jersey, Puerto Rico and the U.S.

Virgin Islands—received a $6.2 million award. Of that, $5.7 million was available

to be reinvested in repairs and upgrades to the 560 buildings overseen by the region. The remaining $538,000 was distributed as awards to 518 employees. On Feb. 14, the New England Region won PBS’ best overall performance award for 1999. The region, which includes Connecticut, Maine, Massachusetts, New

Hampshire, Rhode Island and Vermont, was awarded $2 million. Of that, $1.68 million can be reinvested in the 388 buildings the region oversees. The remaining

$322,000 was distributed among 201 employees as cash awards ranging from $360

to $2,400.

Peck plans to present the awards later this month.

‘‘If you want to change the culture of an organization, you don’t do it by putting up glitzy posters and conducting teleconferences,’’ Peck said. Instead, he said, motivate employees to think how they will accomplish the agen- cy’s mission from the moment they leave home in the morning. This bonus program

has done that, he said.

STATEMENT OF JUDGE JANE R. ROTH, U.S. COURT OF APPEALS FOR THE

THIRD CIRCUIT

Mr. Chairman and Members of the Subcommittee: My name is Jane Roth. I serve as a judge on the Third Circuit Court of Appeals and as chairman of the Judicial

Conference’s Committee on Security and Facilities.1 I appreciate the opportunity to

appear before the Subcommittee today to discuss the courthouse projects scheduled

for fiscal year 2001 under the judiciary’s prioritized Five-Year Plan and also to summarize the judiciary’s continuous efforts to review and improve management of the

courthouse construction program.

For the past several years we have worked closely with the Congress and the

General Services Administration (GSA) on the courthouse construction program. We

appreciate the continued willingness of this Subcommittee, of the full Committee,

and of your staff to work with us to make improvements. We look forward to working with you on the projects for fiscal year 2001. In particular, we hope that you

will authorize all projects that can be ready for design, site or construction contract

award in fiscal year 2001 at the levels originally submitted by GSA to the Office

of Management and Budget (OMB).

President Clinton’s fiscal year 2001 budget request includes $488 million for seven

new courthouse construction projects. This request for courthouse projects is the

first since fiscal year 1997. The judiciary appreciates the fact that the Administration has acknowledged the need to provide adequate, secure space for courts. The

President’s request does not, however, include all the projects which GSA proposed

to OMB. We are concerned by the Administration’s failure to include funds for all

the projects which need site, design or construction funding in fiscal year 2001. We

are also concerned about actions taken by OMB to reduce the size of the projects.

We are informed that the funding levels for these seven projects are based on an
63

assumption that only two courtrooms will be provided for every three active district,

senior, magistrate, and bankruptcy judges.

The Judicial Conference, at its March 14, 2000 meeting, considered the unilateral

efforts of the Office of Management and Budget to impose a courtroom sharing policy on the judicial branch, and the Conference condemned these efforts as an unwarranted and inappropriate intrusion into the constitutionally mandated independence

of the judiciary. By statute, the judicial councils of the circuits have the authority

to determine the need for court accommodations. (See 28 USC 462 (b)). Once the

need for accommodations is approved by the council, the Director of the Administrative Office of the United States Courts requests the GSA Administrator to provide

them. The Administrator is directed by law to do so. Any action, taken by the Office

of Management and Budget (OMB) to reduce the scope and size of the projects, as

approved by the councils and GSA, would appear to violate the governing statutes.

We ask that you take action to restore the levels of funding for the courthouse program to those proposed by GSA prior to OMB’s arbitrary action.

The shortsightedness of OMB’s actions is obvious. The courts are experiencing an

ever-increasing workload. To delete courtrooms from buildings that should last for

decades will only cause the judiciary to come back to this Subcommittee shortly

after a building is occupied in order to seek funding for expansion or major alterations to a brand-new facility. I will further address the actions taken by OMB and

the concept of ‘‘courtroom sharing’’ later in my testimony.

CURRENT STATUS OF THE PROGRAM

The Administration chose not to request funding for courthouse construction in

the budget for the previous 3 years. Congress was able to appropriate funds for

courthouses in only one of those years. This lack of funding has created a backlog

of projects and has placed GSA woefully behind schedule in delivering needed space

for the courts. The courts, therefore, must continue to operate in facilities that are

unsafe, overcrowded, and substandard. The Judicial Conference’s fiscal year 2001

request includes 19 projects which are ready to go. Eighteen of the projects require

authorization by this Subcommittee. The Environment and Public Works Committee

previously authorized construction of the Savannah project. The total cost of these

projects requiring authorization is about $750 million, based on GSA’s September

1999 estimates. Seventeen of these projects were included in GSA’s original request

to OMB. In addition, based on current information, one more project (in Fresno,

California) should be ready for construction contract award in fiscal year 2001. All

of these projects are needed and will only fall further behind schedule if not funded.

A listing of these projects in priority order is attached to this statement.

Our prioritized list of courthouse projects was established with the goal of requesting approximately $500 million for site, design and construction in each fiscal

year. The judiciary would have kept to such a schedule if our construction budget

requests had been recognized by the Administration in the fiscal years in which

they were presented. In fact, if our projects had received funding in this manner,

the cost of the fiscal year 2001 projects would have been closer to $500 million than

the $800 million that we are asking for.

In addition to creating backlogs, delayed funding of scheduled courthouse projects

can result in significant cost increases. Although at one point GSA estimated that

construction costs were increasing an average of 3–4 percent for each year of delay,

there have been several situations where the escalation factors have been significantly higher. For example, in Seattle it appears that costs increased in 1 year by

about 8 percent due to the rising construction market costs—not because of any

change in the project.

The workload of the Federal courts has grown tremendously over the past 10 to

15 years, largely as a result of legislative efforts to wage a Federal war on crime

and the illegal drug trade. The courthouse projects on the list for funding in fiscal

year 2001 are in areas of the country where there is dynamic population growth,

combined with an increase in law enforcement activities. Moreover, as the criminal

caseload has grown in number and complexity, the civil jurisdiction of the Federal

courts has also broadened and the number of bankruptcy filings has risen substantially. Finally, we have seen major growth in probation and pretrial services, with

a staff of over 7,000 supervising about 30,000 pretrial defendants and 100,000 released offenders a number roughly equal to the inmate population of the Federal

prison system.

Court facilities must keep pace with the need for additional judges and court employees to handle these increased workloads. The same Administration that proposes shrinking courthouses is also asking for increased funding this year for additional border patrol agents and U.S. Attorneys and for the construction of Federal
64

prisons. Such law enforcement activities inevitably result in an increase in the judicial actions that must be handled in the Federal courts.

Many of the existing court facilities were built over 50 years ago and have not

been or cannot be altered to meet the needs of a modern day justice system. Generally, older courthouse structures cannot accommodate the technological advances

necessary for a modern court. Security for jurors, witnesses, court employees,

judges, and the public is compromised as they use the same hallways and elevators

through which the Marshals bring individuals who have been charged with or

convicted of serious crimes. In addition, problems with deteriorating heating and

cooling systems as well as other building infrastructure problems will persist unless

action is taken to fund the projects. Without the necessary funding, the Federal judiciary will continue to face serious space and security concerns. We have provided

subcommittee staff with a fact sheet on each courthouse project that describes the

current housing situation and the need for a project at that location.

As I noted earlier, this is the first time in the past 4 years that funding has been

included in the President’s budget request for courthouse projects. The fact that a

request was submitted to the Congress this year is a result of efforts made by this

Committee, other Members of Congress and the judiciary to impress the importance

of a courthouse construction program upon key White House decisionmakers. The

Committee’s letter last year to the President was undoubtedly very helpful. We also

met with the White House Chief of Staff during the fall of 1999, and he assured

us that consideration would be given to a program in fiscal year 2001. As I noted

earlier, however, the Office of Management and Budget unfortunately chose to reduce the number of courtrooms in each of the projects. OMB in fact developed its

own courtroom sharing policy which is contrary to the policy approved by the Judicial Conference in 1997. This was done without any study, analysis, or understanding of the judicial system.

THE JUDICIARY’S EFFORTS TO STRENGTHEN THE COURTHOUSE PROGRAM

Independent Review of the Judiciary’s Space and Facilities Program

In recent years the judiciary has continually reviewed and significantly improved

the operation of the courthouse construction program. Workforce growth and

changing security and operational requirements pose significant challenges for this

important program. It has been nearly 12 years since the judiciary last conducted

an independent management review of its facilities program. As part of our on-going

commitment to cost containment and program assessment and evaluation, we contracted with the consulting firm of Ernst and Young to review our entire space and

facilities program. The study, which is close to completion, will address courtroom

sharing and ‘‘utilization,’’ our long-range planning process, courthouse design assumptions, internal space management policies, business practices, funding mechanisms, and resource allocation strategies. A critical dimension of the study involves

having Ernst and Young solicit the views of interested parties such as the relevant

congressional committees and others in the Congress, GSA, OMB, the General Accounting Office, judges, attorneys, the United States Marshals Service, and other

court users. Ernst and Young is using teams of experts in architecture, construction,

economics, and other areas to explore the issues raised and to develop recommendations.

We expect a final report at the end of April for review by the Conference’s Committee on Security and Facilities. After our Committee considers the consultant’s

recommendations, we will have to seek approval of any policy changes from the Judicial Conference. In the meantime, however, it is critical that the courthouse construction program continue to move forward. It makes no sense to delay action on

the courthouse program because of an ongoing study—such a policy would hamper

innovation throughout the government. Moreover, Ernst and Young has reported to

the judiciary that the court projects requested by GSA in the fiscal year 2001 budget

are the result of methodical planning and review processes put in place by the judiciary and GSA.

Courtroom Sharing

For the past few years, the topic of courtroom sharing has been in the forefront

of Congressional and executive branch inquiry and media speculation. It has been

suggested that because most courtrooms are not in use 100 percent of the time, Federal judges should be able to share courtrooms in order to save the cost of constructing courtrooms. Recognizing these concerns, in 1997 the Judicial Conference thoroughly reviewed the matter and adopted a policy on courtroom sharing. This policy

balances the essential need for judges to have an available courtroom to fulfill their

responsibilities with the economic reality of limited resources. It provides one court-
65

room for each active district judge and for each senior judge who maintains a substantial caseload. For senior judges, who do not carry a caseload requiring substantial use of a courtroom, and for visiting judges, the policy sets forth a non-exclusive

list of factors for circuit councils to consider when determining the number of courtrooms needed at a facility. Each of the projects on the attached list incorporates this

policy. Notwithstanding the Conference’s policy, I would like to emphasize that there is no research which supports courtroom sharing. In addition, the doctrine of separation of powers creates serious constitutional concerns if the executive branch should

attempt to establish courtroom usage policy. Finally, it should be noted that none

of the 50 state-court systems has ever adopted a policy of sharing courtrooms. Simplistic approaches to the assessment of courtroom needs, such as the use of

queuing theory, might suggest that one can simply add up the average number of

hours that judges spend in courtrooms and then calculate the number of courtrooms

that would be needed if all of those courtroom hours were perfectly distributed.

There are many fundamental flaws with this notion, the foremost of which is the

assumption that a court is akin to a post office or bank, where litigants, witnesses,

jurors, probation officers, interpreters, court reporters, prisoners, and others are

lined up and waiting outside the courthouse door for the next available courtroom.

Under these conditions, due process, public openness, security, and notification requirements would be essentially abandoned.

Additional costs and delays for litigants, including the largest litigant in the Federal courts—the Federal Government itself, would also be significant. Delays in

criminal proceedings will cause potential problems with the Speedy Trial Act and

increase expenses for the Department of Justice’s U.S. Attorneys and U.S. Marshals

and for Federal public defenders. The last-minute cancellation of even one civil jury

trial due to the lack of a courtroom can result in many thousands of dollars in legal

fees and expert witness costs for the litigants.

The actual cost of a courtroom is an extremely small portion of the construction

budget for a courthouse. The courtroom, however, is the essential tool used by the

judge to accomplish his or her work, which is the timely disposition of cases pending

before the court. Certainly, the minimal savings that might be realized from deleting one courtroom from a courthouse is not worth the resulting loss of efficiency in

the judicial process. Moreover, when compared over its lifetime to the overall cost

of the courthouse, the courtroom cost is insignificant. The General Services Administration has estimated that it costs about $1.5 million to construct a courtroom and

its associated spaces (including jury rooms, attorney conference rooms, public waiting areas, and prisoner holding cells). With use of these facilities expected for at

least 30 years, this equates to a construction cost for the courtroom of $50,000 per

year.

In Federal courts where courtroom sharing among active judges has occurred out

of necessity, judges have reported serious difficulties. For example, the 3 to 2 ratio

of judges to courtrooms suggested by OMB is currently in effect in the Federal district courthouse in Brooklyn, New York, while a new facility is under construction.

The judges, staff, and others affected have struggled to make it through the temporary situation. Last minute changes, events that go over schedule, and other difficulties have resulted in wasted time for judges and other participants. Recently,

a magistrate judge canceled a civil jury trial the week before its scheduled start because the court could not guarantee an available courtroom and the attorneys did

not want to incur the potentially exorbitant expert witnesses’ fees. The earliest date

for rescheduling the trial was 2 months later. In another situation, a defendant

seeking a hearing to determine whether he should remain in custody spent longer

in detention than necessary because a courtroom was not available for his hearing.

One judge, frustrated by his inability to obtain a courtroom, held a proceeding in

a public park outside the courthouse. These actual experiences demonstrate the

problems associated with courtroom sharing.

According to Ernst and Young, the judges in Brooklyn are uniform in concluding

that courtroom sharing has strained the operational effectiveness of the court and

that courtroom sharing as a permanent policy would be counterproductive. A 3-to

2 ratio causes chaos in a system that requires orderly process in order to be fair

and just.

Prioritizing Courthouse Projects

The judiciary continues to review and update its prioritization of projects using

a weighted scoring methodology. By continuously reviewing our priorities, we are

able to ensure that changing circumstances at a particular location are taken into

account so that necessary adjustments can be made. I am pleased to report that the

process we established in response to Congress’s suggestion that all projects be
66

ranked in order of priority has worked quite well. I am very concerned, however,

that continued delays in funding courthouses or reductions in the sizes of the buildings could result in a breakdown of this prioritization process with individual districts attempting to fulfill their needs without regard to the established process. A courthouse project is not proposed for consideration unless the district’s long- range facility plan indicates that there is no more room for district judges in the

existing facility. In virtually every proposed project, this determination is made

after all executive branch agencies and court-related units (probation, pretrial services, the bankruptcy court) have been moved from the existing building. In this

sense, the expansion capacity of the building is the primary consideration in determining the need to take some action. The lack of sufficient space can cause great waste and inefficiency in court oper- ations. In worst case scenarios, trial courts are split into separate facilities causing

the dual management of records, prisoners, and duplicate security screening. In addition, security risks are a grave concern in all public buildings, including Federal

courthouses. Tragic events in Oklahoma City, Oklahoma, shootings in courthouses

in Topeka, Kansas, and Chicago, Illinois, and serious threats on the lives of judges

who are trying international terrorists underscore the need for proper security arrangements.

SUMMARY

A number of new courthouses have been occupied over the past few years. Public reaction has been very favorable. The courthouses being delivered by GSA today are

high quality, operationally efficient buildings that should last well into this century. Many lessons have been learned as the Congress, GSA and the judiciary have worked together over the past several years on the courthouse program. We have

incorporated many of the recommendations made by this Committee into our planning process and design standards in order to improve management of the program.

We will be studying whether there are additional ways to control costs and make

the program even more effective in the months ahead. Security considerations continue to be a major concern. The judiciary hopes the Committee will recognize the

actions taken by the Judicial Conference as evidence of the judiciary’s commitment

to a productive and cooperative working relationship. It is imperative that the integrity of the judiciary’s rightful role in determining courtroom usage remains intact;

the constitutional rights to trial and due process are too important to be risked on

whim. Nor should the guarantees of these constitutional rights, which rest upon the

presumption of adequate, dedicated courtroom space, be held hostage to such uncertain, untested, and untried cost-saving schemes. We ask that you take action to authorize the new courthouse projects on the attached list in fiscal year 2001 at the

levels originally calculated by GSA in September 1999. We are also committed to

working with you on adopting appropriate recommendations from Ernst and

Young’s final report.

Thank you for the opportunity to testify before the Subcommittee. I would be

pleased to answer any questions you might have at this time.

FY 2001 Courthouse Construction Projects—Judiciary Prioritized Plan

[In Millions of Dollars]

GSA Estimate President’s Budget

Request

1. Los Angeles, CA—S&D .......................................................................................... $36.203 $31.523

2. Seattle, WA—C ...................................................................................................... 179.365 177.93

3. Richmond, VA—S&D .............................................................................................. 19.581 19.476

4. Gulfport, MS—C ..................................................................................................... 42.715 42.715

5. Washington, DC—C ............................................................................................... 109.498 104.050

6. Buffalo, NY—S&D .................................................................................................. $3.599

7. Springfield, MA—C ................................................................................................ 41.378

8. Miami, FL—C ......................................................................................................... 121.946 $110.950

9. El Paso, TX—S&D .................................................................................................. 7.208

10. Mobile, AL—S&D .................................................................................................. 8.123

11. Fresno, CA—C ...................................................................................................... 111.783

12. Norfolk, VA—S&D ................................................................................................. 9.593

13. Las Cruces, NM—D ............................................................................................. 1.900

14. Little Rock, AR—D (addtl. design funds) ........................................................... 5.428 1.82

15. Rockford, IL—S&D ............................................................................................... 2.837

16. Cedar Rapids—S&D ............................................................................................ 13.606

17. Nashville, TN—S&D ............................................................................................. 13.784
67

1The fact that a courtroom is readily available facilitates settlement because parties then seri- ously consider the risks and benefits of going to trial. This is known as ‘‘latent’’ use of a courtroom.

FY 2001 Courthouse Construction Projects—Judiciary Prioritized Plan—Continued

[In Millions of Dollars]

GSA Estimate President’s Budget

Request

18. Erie, PA—C .......................................................................................................... 27.013

19. Savannah, GA—C ................................................................................................ 46.462

Total ................................................................................................................... $801.239 $488.464

RESPONSES OF JUDGE ROTH TO ADDITIONAL QUESTIONS FROM SENATOR VOINOVICH

Question. The courts and OMB seem to be at opposite ends of the spectrum on

this issue. What factors should be considered in an effective courtroom sharing

model?

Response. The judiciary has taken definitive steps to respond to the issues raised by the Congress about the number of courtrooms needed in new facilities. At its

March 1997 session, the Judicial Conference adopted a policy on courtroom sharing

that balances the essential need for judges to have an available courtroom to fulfill

their responsibilities with the economic reality of limited resources. The policy is

based on a judge’s need for a courtroom rather than the particular status of the

judge. It continues the standard of providing one courtroom for each active district

court judge. In addition, with regard to senior judges who do not carry a caseload

requiring substantial use of a courtroom and visiting judges, the policy sets forth

a non-exclusive list of factors for circuit councils to consider when determining the

number of courtrooms needed at a facility. Such factors include an assessment of

workload anticipated to be carried by a senior judge and the number of years a senior judge is likely to carry such a caseload, as well as evaluation of the complement

of courtrooms throughout the entire district. Courts are encouraged to provide for

flexible and varied use of courtrooms.

Moreover, the Conference asked the judicial councils, which have the statutory authority to determine the need for court accommodations (28 U.S.C. sec. 462(b)),

to develop a policy on sharing courtrooms by senior judges when a senior judge does

not draw a caseload requiring substantial use of a courtroom, and for visiting

judges. These circuit-wide policies assist the judiciary with containing the costs of

court facilities, while assuring the appropriate number of courtrooms necessary to

fulfill its constitutional mission.

The judiciary’s policy of providing a courtroom for every active judge is well sup- ported by scholars and others in the legal community. A 1996 study by an expert

consultant, entitled Courtroom Sharing Practices Among State and Local Trial

Courts, found that it was the policy in all 50 states to provide one trial courtroom

for each judge. Studies, reports and standards produced by the Rand Institute for

Civil Justice, the Brookings Institution, the National Center for State Courts, and

the American Bar Association support the idea that reducing the number of courtrooms would result in trial delays and increased costs. Any short-term savings to be achieved by building too few courtrooms will not be worth it in the long run. In addition to the grave risks to our system of justice,

when all of the attendant costs are considered, it is doubtful that building fewer

courtrooms will bring a long-term economic benefit to the government and the public. Given the expected continued growth of Federal cases in most districts, it will

shorten the useful life of a courthouse and simply escalate future costs for needed

expansion of courthouses that would be under-built for today’s needs, much less the

needs of the future.

Determining the number of courtrooms needed in a facility or whether a facility is needed at all are complex issues which defy simplistic answers. Courtroom time

measurement studies do not provide the complete picture of courtroom utilization.

Courtroom usage cannot be adequately addressed by simply counting the hours that

the lights are ‘‘on’’ or ‘‘off’’ in the courtroom. Cases are assigned to judges, not courtrooms. Having an available courtroom is necessary to assure firm trial dates and

a coherent approach to scheduling. This approach to courtroom usage appropriately

takes into account the scheduled use of the courtroom or the ‘‘latent’’ use 1 of the

courtroom. Firm trial dates promote settlement in civil cases and pleas in criminal
68

cases, thereby avoiding the need for and cost of trials. An available courtroom also

permits timely handling of unanticipated emergency matters, such as requests for

injunctions, grand jury problems, contempt hearings, and detention and bail appeals. Moreover, providing each active district judge a courtroom accommodates unscheduled opportunities to settle large multi-party cases, opportunities that may be

lost without the immediate access to a courtroom. This practice also ensures that

cases that go to trial are handled expeditiously, as encouraged by the Speedy Trial

Act of 1974 and the Civil Justice Reform Act of 1990.

Courtrooms are scheduled for trial long before the actual trial date. If a case settles on the eve of trial, that courtroom is suddenly empty and cannot be rescheduled

immediately due to basic due process noticing requirements. The empty courtroom

is a sign that the judiciary is working (not that the courtroom is unnecessary), that

trial has been avoided, and moneys have been saved by the courts, the litigants, and

the public.

Courtroom scheduling is a dynamic part of a judge’s case management activities

to control hundreds of cases. In our judicial system, individual judges are accountable for the management of cases assigned to them and for the movement of their

dockets. Research and practice have demonstrated the importance of setting a certain trial date to the expeditious disposition of cases. Many courtroom events are

scheduled months in advance, and it is common to schedule more than one event

to occur at the same time because of the uncertainties of the adversarial process.

Taking the risk of conflicting dates is a close matter, even for a judge with an assigned courtroom, because cases and related events do not always play out as envisioned. With no guarantee of a courtroom, the risk is considerably higher.

Simply stated, courtroom-sharing is too important to be implemented based on a

whim or speculation. In Federal courts where courtroom sharing among active

judges has occurred out of necessity, the judges have reported serious difficulties.

For example, the 3/2 ratio of courtrooms to judges suggested by OMB is currently

in effect in the Federal district courthouse in Brooklyn, NY, while a new facility is

under construction. The judges, staff, and others affected have struggled to make

it through the temporary situation. Last minute changes, events that go over schedule and other difficulties have resulted in wasted time for judges and other participants. Recently, a magistrate judge canceled a civil jury trial the week before its

scheduled date because the court could not guarantee an available courtroom and

the attorneys did not want to incur the potentially exorbitant expert witnesses’ fees.

The earliest date for rescheduling the trial was 2 months later. In another situation,

a defendant seeking a hearing to determine whether he should remain in custody

spent longer in detention than necessary because a courtroom was not available.

One judge held a proceeding in a public park outside the courthouse. These actual

experiences demonstrate the practical effects of courtroom sharing. According to

notes from Ernst & Young, the Brooklyn judges are uniform in concluding that

courtroom sharing has placed a constraint on the operational effectiveness of the

court and that courtroom sharing as a permanent policy would be counterproductive.

The judiciary strongly objects to OMB’s recent action of applying its courtroom

sharing policy. At its March session, the Judicial Conference took a position strongly

condemning the unilateral efforts of the Of flee of Management and Budget to impose a courtroom sharing policy on the judicial branch, as an unwarranted and inappropriate intrusion into the constitutionally mandated independence of the judiciary. The judiciary was neither consulted nor informed by the President’s budget of

lice of its actions which impinge on the independence of the judiciary and raise serious questions of both the constitutional separation of powers and statutory law.

STATEMENT OF HARRY T. EDWARDS, CHIEF JUDGE, U.S. COURT OF APPEALS FOR THE

D.C. CIRCUIT

For the past 7 years, the courts of the District of Columbia Circuit have worked

diligently with the General Services Administration to develop plans for annex construction and renovation of the E. Barrett Prettyman U.S. Courthouse. Michael

Graves/SHG, Inc. will complete the architectural drawings on May 15, 2000. As of

that date, the project will be ready for the construction bid process. Several independent studies have verified that the annex project is the most efficient and costeffective way to solve the serious safety, security, and space problems endemic to

the existing courthouse.

In short, there is no dispute over the justifications supporting the annex project.

The United States Judicial Conference, the Office of Management and Budget, the

General Services Administration, the Administrative Office of the U.S. Courts, and
69

the courts of the D.C. Circuit all agree that an annex should be constructed and

the courthouse renovated. The only question is whether the annex project should be

funded as presently designed or whether funding should be cut pursuant to an astonishingly misguided budget submission from OMB.

I. OMB’s PROPOSAL WOULD ACTUALLY INCREASE THE COST OF THE ANNEX PROJECT

WHILE DECREASING THE SIZE AND FUNCTIONALITY OF THE BUILDING

The courts of the D.C. Circuit, with endorsements from the Judicial Conference

of the United States, and the Administrative Office of the U.S. Courts, are seeking

$109,498,000 to complete the annex construction project. OMB, on the other hand,

has submitted a budget proposal to Congress seeking only $104,050,000 for the

annex project. OMB’s budget figure is premised on the assumption that $5.4 million

would be saved by the application of a new ‘‘courtroom sharing’’ policy that would

eliminate four courtrooms from the project design. OMB is wrong. In fact, if the

courts were required to redesign the annex project to satisfy OMB’s specious courtroom sharing policy, the construction project would end up costing $4.3 million more

than the current design. In other words, OMB’s proposal would result in the government paying substan- tially more for a smaller, less functional building. Paying more for less normally defies good business judgment and common sense; and it is completely inexcusable

when, as with OMB’s proposal, it will result in a waste of taxpayer dollars.

A. OMB’s Proposal Would Add $3 Million, Not $940 Thousand, to Design Costs

As currently designed, $109,498,000 is needed to construct the annex and ren- ovate the courthouse. OMB, however, has requested only $104,050,000 for the annex

project, on the erroneous assumption that the elimination of four courtrooms would

save $5.4 million. OMB has estimated that $924,000 would cover the total amount

required for the redesign effort. This figure reflects an unfathomable miscalculation.

Indeed, according to GSA officials at the regional office responsible for managing the

annex project, architectural redesign costs, alone, will exceed $3,000,000 if OMB’s

design is adopted. OMB officials obviously do not understand what is at stake with

the annex project. The $109 million annex project for which construction funding is being sought is

the product of 7 years of exhaustive effort by countless people in numerous institutions. It is preposterous for OMB to suggest that the courts of the D.C. Circuit abandon the architect’s work at this late date, especially when the construction of a redesigned (and less functional) building will cost more than the current design. The

simple truth that escapes OMB is that a redesign effort would be a massive and

costly undertaking, and to no good end.

First, the redesign effort would affect virtually every aspect of the completed

Graves/SHG architectural design. This is so because the number and location of the

courtrooms dictate the building massing and the exterior design. Furthermore,

chambers, office, support, and mechanical space are inextricably linked to the location and placement of the courtrooms. There is simply no easy way to extricate four

courtrooms from the project. OMB’s proposal would necessitate a costly reconsideration and redesign of almost all annex floor plates, as well as the basic organization

of the building.

Second, because the courthouse is situated on the Pennsylvania Avenue corridor

in Washington, D.C., the exterior design and massing are subject to review and approval by the Commission on Fine Arts and the National Capital Planning Commission. These review processes are lengthy. Preliminary approval of the current design

took more than a year to secure. If the exterior is reduced or reconfigured, as it necessarily must be under the OMB proposal, the approval processes must start anew.

This adds additional time and cost to the redesign effort.

B. OMB’s Proposal Would Produce $7 Million in Escalated Costs

OMB’s proposal, if implemented, would result in an extremely costly two and a

half year delay. Currently, construction costs are estimated to escalate by 3 percent

per year. For a project this size, the escalation costs alone are estimated to be

$7,000,000.

The Graves/SHG design was completed months ago and, under the current schedule, the construction documents will be finalized in May. If construction funds are

approved by October 2000, a construction contract will be awarded shortly thereafter and groundbreaking will take place in January 2001. On this timetable, the

annex will be completed in June 2003, and the renovations to the existing building

will be completed by July 2004.

If the proposed OMB redesign is mandated, the entire schedule would be pushed

back by more than two and a half years. The redesign effort could not start until
70

January 2001, when redesign funds would become available. It would then take a

minimum of 2 years to complete the revised design; thereafter, it would take at

least four to 5 months to procure a construction contract. At best, construction

would begin in June 2003 and would be concluded in December 2006.

C. OMB’s Proposal Involves Hidden Expenses of More Than $681,000

In addition to the redesign and escalation costs, there are hidden expenses not

reflected in the OMB calculations. There would be additional personnel costs associated with the government’s management of the project during the two and a half

year delay. The GSA regional office estimates that its share of the personnel costs

would be at least $390,000. And, this does not account for the time that would be

contributed by judges and court staff members. For more than 2 years, the courts

have spent thousands of hours working with the architects to ensure that the current design met the Circuit’s operational requirements and complied with every national standard applicable to courthouse construction projects. This time and cost

factor would be doubled if a redesign is required.

Finally, there would be increased costs for management and inspection services

performed by consultants. These costs are estimated by the GSA regional office to

be $291,500.

Overall, implementation of the OMB proposal would cost the government and the

taxpayers $9,757,500 more than the $104,050,000 OMB has estimated would be

needed to construct the annex with four fewer courtrooms. In return, the taxpayers

and the government would receive a smaller and less functional building that would

not adequately address the Circuit’s future space needs.

II. OMB’s PROPOSAL FAILS TO ADDRESS LONG-TERM PLANNING CONCERNS

A. The OMB Proposal Would Eventually Necessitate a Costly and Inefficient Dispersal of Circuit Operations

Quite apart from its faulty financial assumptions, OMB’s proposal ignores the

unique composition of the D.C. Circuit that, of necessity, must drive any responsible

long-term building plan. In contrast to other Federal circuits, all courts of the D.C.

Circuit—including the Court of Appeals, the District Court, the Bankruptcy Court,

and the Magistrate Judges—together with their associated support units—the Circuit Executive’s Office, Circuit Library, Clerks’ Offices, Probation Office, Court Reporters’ Office, as well as the U.S. Marshals Service and the Court Security Officers—are all housed in a single courthouse. This facilitates efficient court operations

and convenient access for the bar and public.

The annex project, as currently designed, is the only viable means of maintaining

all of these entities in one facility; it is also the only fiscally responsible option for

accommodating the Circuit’s future growth. The Circuit’s growth projections are

very conservative and they have been studied continuously throughout the life of the

annex project. The project has been carefully designed to meet these needs. If the

size of the annex is reduced pursuant to the OMB proposal, future growth cannot

be accommodated on the current site. And court entities eventually would have to

move from the existing courthouse site.

As demonstrated by the Feasibility and Prospectus Development Studies for the

project, alternative housing options, including moving the various units to leased

space and/or the construction of a new building on a separate site, are far too costly

to be seriously considered. The studies found that by renovating and expanding the

existing courthouse, the annex project provided the most cost-effective solution and

the only one that would allow all Circuit operations to remain together for the long

term.

B. The OMB Proposal Invites a Fiscally Unsound Use of the Limited Space Available

for Long-Term Development

The Graves/SHG design makes maximum use of a very small but extremely valuable site. Given the physical limitations of the property and the height restrictions

imposed on all Washington buildings, it is critical that the size of the annex shell,

as originally authorized by Congress, remain unchanged. As currently designed, the

project utilizes all of the remaining space on the site of the current courthouse. The

intention is to build once and only once to meet all of the Circuit’s needs well into

the future. To do otherwise, as OMB proposes, would be fiscally irresponsible. Once

construction is completed on the annex site, it would be virtually impossible to add

to the site. And even if some design could be conceived to build out the annex, the

redundant costs would be extraordinary. Thus, even if the redesign resulted in

short-term savings, which it does not, it would make no fiscal sense in the long

term. The annex project, as currently designed, is the Circuit’s single best oppor-
71

tunity to address its current and future needs on the site of the E. Barrett

Prettyman U.S. Courthouse.

Furthermore, maximizing use of this particular property, which is the last

buildable site available on the Pennsylvania Avenue corridor, is consistent with

good real estate management practices. As the land owner, the government is responsible for developing the property to its ‘‘highest and best use.’’ The annex

project, if executed as currently planned, will result in the best use of this unique

site and will provide the highest return on the investment.

C. OMB’s Proposal Will Delay the Remedy of Existing Security and Safety Problems

If the OMB proposal is implemented, the security and safety problems that the

annex project is designed to remedy will go unanswered for 6 years due to the extended timetable. These problems have grown worse in the time that has elapsed

since the planning and design process began and will only be exacerbated by continuing delays. These serious deficiencies demand immediate action. Failure to act

in a timely fashion on this particular project could prove dangerous for those who

must occupy and visit the building.

III. CONCLUSION

We strongly urge Congress to approve the $109 million that the courts of the D.C.

Circuit are seeking to construct a new annex and renovate the existing courthouse.

OMB’s proposal to redesign the annex project should be rejected. As already shown,

the application of OMB’s courtroom sharing policy to the annex project would

produce absurd results, requiring taxpayers to pay more for a smaller, less functional building. The annex project is well beyond the point at which significant

changes to the core design can be justified.

Throughout all phases of the annex project, the judges of the D.C. Circuit have

made a concerted effort to ensure that the project yields a functional, cost-effective

facility appropriate for modern court operations for many years to come. We have

been purposely modest in our expectations and have required that the architects

create a no-frills design which adheres strictly to every national standard, requirement, and policy adopted by the U.S. Judicial Conference.

The only responsible way to conclude the annex project is to proceed with the construction as currently planned. To do otherwise would result in a terrible misuse

of government funds. We therefore look for the annex project to continue as originally authorized by Congress; and, to this end, we respectfully request that the full

amount of funding needed to complete the construction—$109,489,000—be provided.

STATEMENT OF EDWARD B. DAVIS, CHIEF U.S. DISTRICT JUDGE, SOUTHERN DISTRICT

OF FLORIDA

I appreciate the opportunity to submit to the Subcommittee this statement relative to the construction of a new Federal courthouse for the Southern District of

Florida in Miami.

The Miami courthouse was one of the seven courthouse projects included in the

President’s budget submittal for fiscal year 2001. GSA estimated the cost to complete the Miami project would be approximately $122 million. However, OMB reduced the funding estimates requested by GSA to approximately $111 million. According to the notes in the budget documents, these reductions assume courtroom

sharing by all judges. As far as we are aware, no one in the Judiciary has ever discussed, much less consented to, the development of such a policy for this project,

and its inclusion in the budget comes as a complete surprise. It is contrary to the

Judiciary’s current policy for courtroom sharing involving active and senior district

judges. The effect of this sharing on the Miami courthouse will reduce the number

of courtrooms planned by half, from 16 to 8.

Our Court urges the Subcommittee to overturn OMB’S decision for the following

reasons:

1. Our needs for courtrooms and chambers have been consistently underestimated.—We have been the country’s leader in trying criminal cases involving drugs

since the mid-1970’s. Our ability to dispose of drug cases, while maintaining a reasonably current calendar with civil cases, has been hindered by a lack of proper facilities.

As an example of this shortsightedness, when an Annex to our original Courthouse (the Tower annex) was finally erected in 1983 with 9 courtrooms and chambers, we had 10 United States District Judges residing in Miami. The chief judge

volunteered to stay in the old Post Office facilities while the rest of us moved into
72

the Tower Building. This courthouse was inadequate to serve our then current

needs, much less the 30-year requirements projected by GSA at that time. We realized that additional space would be needed as projected by extremely high population growth, no letdown in the drug trade coming through South Florida, and

an ever-increasing civil caseload. Ultimately, GSA suggested that two new 11-story

buildings be erected on the block north of the current courthouses: one for the District Court containing 16 chambers and courtrooms, an Eleventh Circuit courtroom,

and chambers for 5 United States Court of Appeals Judges; and another 11-story

building to house the U.S. Attorney and his staff. The Bureau of Prisons, however,

purchased one-half of the full city block, which the Courts had intended to use, for

a much needed metropolitan correctional center. That facility is the largest in the

United States.

Since both buildings could not be constructed side by side as originally planned, and as a stopgap measure, we agreed with GSA in 1993 to use the top four floors

of the first building then under construction, the Federal Justice Building (subsequently renamed the James Lawrence King Federal Justice Building). It was originally intended to be an office building housing the U.S. Attorney and his staff. This

allowed the 12th floor for the Eleventh Circuit Court of Appeals, the 10th and 11th

floors for our United States District Court’s courtroom functions, and a jury assembly room and Grand Jury facilities on the 9th floor of the building. The balance of

the building (8 floors reduced from the 11 floors needed by the U.S. Attorney) was

assigned to the Department of Justice for U.S. Attorney use. Although this has been

an extremely helpful interim measure, since we had six new District courtrooms

filled with judges taking full caseloads, we have already been requested to release

space as soon as possible to the U.S. Attorney who has an overcrowding problem,

and to consider giving certain space to the Eleventh Circuit Court of Appeals which

is outgrowing its own space.

2. The Southern District of Florida is the busiest trial court in the Federal System [continuing]. The effort to reduce courtrooms obviously has a greater impact on a

trial court burdened with extremely heavy trial schedules compared to courts that

are not located in this sensitive part of the country where the drug trade imports

so much of its illegal substances for further distribution. For example, this Court

has tried more criminal jury trials than any court in the country, regardless of size,

in each of the last 6 years. In addition, over that same period it has tried more combined civil and criminal jury trials per judge than any metropolitan court in the

country. When you compare its trial activity to those of other busy Federal Courts

in other large metropolitan areas, our Court more than doubles the criminal jury

trial activity.

3. The need for two large courtrooms.—We have also requested two special proceeding courtrooms for judges to try multiple defendant cases. We try more long,

multi-defendant criminal trials by far than any other court in the country. GSA’s

1992 prospectus provided for six oversize courtrooms. We only requested two. OMB,

without explanation, decided this second courtroom was not necessary.

4. Savings by backfilling.—We agreed that the old Post Office and Tower buildings be backfilled with Magistrate Judges and the Bankruptcy Court and the Federal Public Defender’s Office taking over the old Post Office building, thereby saving

substantial funds from currently leased facilities. Without sufficient courtrooms in

the new courthouse, these savings will not be realized.

5. The reduction is not cost effective.—The design for our new courthouse has already been approved; is over 50 percent complete; and was scheduled to be 100 percent complete by mid-March, 2000. The absurd cost of redesign is certainly fiscally

irresponsible. GSA estimates the cost of a complete redesign to be approximately

$2,300,000, and a 1-year delay could result in additional costs of over $4 million.

We are currently on schedule to break ground in March of 2001, and any delay will

simply drive up costs and put scarce resources into the hands of contractors, suppliers and architects instead of much needed courtrooms.

6. No space available for visiting judges.—We have judges residing in Fort Lauderdale and West Palm Beach that receive Miami cases under our blind random filing system. Although this represents a limited number of cases, all judges have

agreed to try cases where venue lies. These judges would have no space available

to try the cases if this limitation on space occurred.

7. The concept of locating all active judges in one building.—Housing all active

district judges and senior judges carrying large caseloads in the same building will

lead to better performance and more efficiency. New judges will be able to seek immediate advice from more experienced judges. It will ease the transfer of hearings

and other legal matters on short notice.

The inefficiency and cost of continuing to move judges, staff, jurors, prisoners and

the public between two or three buildings are substantial.
73

Our studies, which we believe to be conservative, project 14 active district judges

and 5 senior judges when the courthouse becomes available for occupancy in 2004.

Our estimate is for 21 judges in 2015. By 2022, the projections show 31 judges (active and senior) located in Miami.

I believe no active district judge would move into a building where he or she

would not be able to carry out his or her constitutional responsibilities of professionally disposing of caseloads that are overwhelming. Our courtroom is our office.

Its lack of availability greatly impacts not only trials, but settlements as well.

8. We believe that this action by OMB is impermissible as both a violation of constitutional separation of powers and statutory law.—Under the current statutory

scheme adopted by Congress, 28 U.S.C. § 462 provides that the Director of the Administrative Office shall provide accommodations, including chambers and courtrooms for the judiciary, but only if the Circuit’s Judicial Council has approved the

accommodations as necessary. GSA is authorized and directed to provide the accommodations requested by the Director.

The Court recognizes that Congress also has the exclusive power of the purse and

the power to regulate property owned by the United States. In our case, the reduction of courtrooms does not involve an Executive agency carrying out the will of

Congress, but rather an Executive agency performing a unilateral act that directly

intrudes in the internal affairs of the Judiciary. We believe that to allow the executive branch to arbitrarily limit present and future courthouses to three judges for

every two courtrooms would violate the separation of powers provisions of the Constitution as the Executive has no role in the provision of accommodations to the Judiciary beyond that provided by Congress.

In addition, the executive branch’s actions in this instance has intruded not only

on the Judicial Branch, but on the legislative branch prerogative whose 1993 prospectus called for the construction of 16 District courtrooms.

Mr. Chairman, I thank you for giving the Southern District of Florida the opportunity to express our views on this very important matter and urge that the full

$122 million be authorized for construction of the Miami courthouse.

STATEMENT OF JOHN E. CONWAY, CHIEF U.S. DISTRICT JUDGE, DISTRICT OF

NEW MEXICO

Thank you, Mr. Chairman and members of the Subcommittee, for the opportunity

to submit for the hearing record this statement regarding the Las Cruces, New Mexico courthouse construction project. In its fiscal year 2001 submittal to the Office

of Management and Budget, the General Services Administration (GSA) requested

$1.9 million to design an annex to the Harold L. Runnels Federal Building and

United States Courthouse, located at 200 East Griggs in Las Cruces. Unfortunately,

the final budget did not include any funding for the Las Cruces project. I would like

to explain to the Subcommittee today the current plans and need for space in the

Las Cruces Division of the District of New Mexico.

DESIGN

As I just stated, the original request by GSA this year was for funding to design

an annex to our existing facility. In March 2000, however, GSA conducted a feasibility study to determine the best alternatives to satisfy the 10-year projected space

needs for the Runnels Building. Four alternatives were considered, and a preliminary decision has been made in the region that the preferred alternative is now to

build a free-standing new courthouse, instead of an annex. I want to make you

aware of this today, although a final decision at GSA headquarters has not yet been

made. Under this plan, the new courthouse would be constructed just south of the

existing Runnels building on land which is already federally owned and currently

serves as an employee parking lot. The existing courthouse then would be backfilled

with non-court agencies and serve as a Federal building for Las Cruces until such

time as it would be needed for overflow from the newly constructed building.

DESCRIPTION OF THE EXISTING AND PROPOSED SPACE SITUATIONS

The existing Runnels Federal Building (Runnels Building), built in 1974, presently provides space for the U.S. District Court which includes district and magistrate judge functions, the Clerk’s Office, the U.S. Marshals Service and the U.S.

Probation Office. A further delay in the building project would require the U.S. Probation Office to move out of the Runnels Building into leased space and possibly

even into modular facilities. U.S. Pretrial Services, the Federal Public Defender and

the U.S. Attorney’s offices have already been moved out and are housed in leased

space apart from the Runnels Building. The Runnels Building has 2 district judge
74

courtrooms, 2 magistrate judge courtrooms, 1 small courtroom and 1 very small

hearing room. Currently this space is utilized by:

• 5 district judges and 2 circuit judges (they will be assisting the district court

with our caseload) who rotate from Albuquerque, Santa Fe and Roswell on a monthly basis;

• 2 magistrate judges, 1 recalled magistrate judge and magistrate judges who rotate from Albuquerque twice a month for 2–3 days;

• 2 bankruptcy judges, who take turns visiting from Albuquerque every 4–6

weeks, usually for a week at a time. (In addition, a bankruptcy trustee holds hearings in the Runnels Building if space is available, but the trustee often has had to

use space in a nearby hotel for court proceedings).

• Various visiting senior district judges from districts outside the District of New

Mexico (Judges from the Eastern District of Louisiana, the Western District of

Michigan, the Western District of Texas and the Districts of Connecticut and Nebraska have held court recently at the Runnels Building).

• Numerous Federal agencies who use court space for administrative hearings

and other official meetings include The Office of Hearings and Appeals (Social Security Administration), the Railroad Retirement Board, the Equal Employment Opportunity Commission, the Department of Energy, and the Immigration and Naturalization Service. This saves rental moneys for these agencies.

• Upon completion of the new courthouse, the current Runnels Building would be

backfilled with non-court Federal agencies as previously stated. This will fill space

needs for these agencies, as adequate office facilities in Las Cruces do not currently

exist.

The new courthouse would have 6 courtrooms and 8 chambers for 2 district

judges, 3 magistrate judges, 1 senior judge, the rotating judges and 1 bankruptcy

judge. The building will house the grand jury room, a petit jury assembly area, the

Clerk’s Office, U.S. Probation and U.S. Pretrial offices. The U.S. Marshal’s Service,

sally port, holding cells and secure parking will also be part of the facilities.

SECURITY AND SPACE ISSUES UNIQUE TO THE LAS CRUCES DIVISION

Many of the space and security problems of the existing facility are related to the

fact that the Runnels Building was not designed or intended to be used primarily

as a courthouse. The Las Cruces Division of the District of New Mexico currently

operates under substandard conditions and serious security deficiencies. The original occupants in the Runnels Building included the Federal Bureau of Investigation,

the Internal Revenue Service, the Social Security Administration, the Department

of Labor, the Bureau of Land Management, U.S. Soil Conservation, and congressional staffs, all of which have moved out to accommodate the court’s dramatically

increased space needs. The Runnels Building originally had a single courtroom

which was used infrequently because there was no district judge residing in Las

Cruces when the Runnels Building opened and only a part-time magistrate judge

who operated out of his law office which was not located in the Runnels Building.

As a consequence, the Runnels Building does not have separate entrances and

vertical circulation (stairs and elevators) for prisoners and judges and the public.

Moreover, there has never been any secured parking. The U.S. Marshals Service

does not have a secured sallyport for the delivery and intake of prisoners. Prisoners

are driven into and unloaded in the small outdoor surface parking lot used by the

judges and court personnel (see attached photos). This often results in judges, staff

members, and other court personnel encountering prisoners being loaded or unloaded in the parking lot or awaiting entry at the same courthouse entrance used

by both prisoners and judges. Also, the U.S. Marshal’s Service does not have adequate holding cells inside the Runnels Building. This situation severely limits the

ability of the U.S. Marshal’s Service to safely process prisoners and to provide security to the judges, their staff, other building occupants and the public. There is a

single elevator that is used by the judges, jurors, court personnel, criminal defendants, witnesses and the general public. This elevator is also used for building services, including deliveries and freight. Due to the lack of adequate space in the

Runnels Building, defendants, their family members, and witnesses are forced to

stand next to each other in the hallway awaiting the commencement of proceedings,

often creating hostile and potentially dangerous situations.

The Runnels Building is set close to three public streets and has been subjected

to a number of acts of vandalism including broken windows in a magistrate judge’s

chambers suite and the grand jury room. Judges’ chambers on the 2nd and 3rd

floors lack adequate security measures such as protective window glazing. The security of this facility was recently reclassified by the Tenth Circuit Council to a ‘‘highly critical’’ level.
75

Due to the shortage of adequate space in the Runnels Building the magistrate

judge who was appointed in 1995 has been using the grand jury suite as his chambers and a converted conference room as a courtroom for almost 4 years. Two of the

three courtrooms with full-sized jury boxes were constructed in space designed for

office use and have columns that obstruct views. The petit jury assembly room,

which is also used for other purposes such a training, meetings, etc., is severely undersized at 700 square feet. The heating and air conditioning system has been

‘‘piece-meal’’ in design and installation. This results in annoying temperature differences and uneven airflow throughout the entire building. Las Cruces experiences

temperature extremes with many summer days having highs in excess of 100 degrees. At least two times during the past 6 months the roof has leaked above one

of the courtrooms, causing significant water damage. GSA had indicated in 1994

that major systems in the Runnels Building were near the end of their useful lives.

Since that time, modernization of the Runnels Building’s systems has been on hold

awaiting the pending building project.

CASELOAD

The District of New Mexico is ranked fourth nationally among the 94 Federal districts in criminal felony filings per judgeship. As of December 1999, about 65 percent of the district’s criminal caseload was originating at the Runnels Building in

the Las Cruces divisional office. The criminal caseload greatly increased over the

prior year; i.e., 47 percent, and has almost doubled since 1995. In 1999 a total of

3,197 hearings were conducted before Article III judges in the entire district. Of

those, 1,557 (49 percent) were held at the Runnels Building in the Las Cruces division. To accommodate the high number of hearings at the Runnels Building, judges

have, on occasion, been forced to ask permission to use State court facilities when

all of the courtrooms at the Runnels Building were occupied. During 1999 the magistrate judges of the district reported 8,048 preliminary felony proceedings (including initial appearances, attorney appointment hearings, detention hearings, bail reviews, preliminary examinations and arraignments). The two resident magistrate

judges in Las Cruces handled 5,287 cases or 63 percent of this workload. The district is also currently ranked fifth in the Nation for trials completed per judgeship.

Las Cruces is the second largest city in New Mexico and is located 225 miles

south of Albuquerque and just 45 miles north of the border of The Republic of Mexico. The population at Las Cruces has increased significantly over the past 5 years;

Las Cruces is the ninth fastest growing city in the United States. Recently Congress

funded substantial increases in the personnel of law enforcement agencies operating

along the Mexican border. This soon will result in a rapid and even larger increase

in the number of criminal cases that must be handled in the Las Cruces division.

Based on the court’s caseload projection, it is anticipated that within the next 10

years accommodations will be needed at the Las Cruces Division for 2 new district

judges, 1 new bankruptcy judge, and 2 new magistrate judges in order to handle

the anticipated caseload growth.

BANKRUPTCY CONCERNS

The bankruptcy judges routinely rotate to Las Cruces to hear cases. In addition,

meetings of creditors convened by the bankruptcy trustees are also held in Las

Cruces. Las Cruces and the southern end of the State are drawing a large influx

of retirees which spawns service businesses, and due to low commodity prices, the

copper industry is laying off large numbers of people. Las Cruces is the site of 20–

50 percent of the creditors’ meetings and a great deal of judicial workload originates

in the southern part of the State as indicated by county code. There is a high emotional factor related to bankruptcy cases, but there is no security presence at the

creditors’ meetings when held in Las Cruces. Bankruptcy caseload filings for Albuquerque from 1995 through 1999 have increased by approximately 90 percent

throughout this 5-year period. Bankruptcy reform legislation, which is currently

pending in Congress, could have an impact on the future workload for the bankruptcy court.

CONCLUSION

If this project does not proceed as planned, the court will be forced to move judicial officers to leased buildings outside the existing facility. This will result in high

costs to the government for leased space and will multiply security costs. Moreover,

by leaving unaddressed the immediate space and security problems, the court operations at the Runnels Building would be further compromised. In closing, the court

requests that the Subcommittee authorize the funds for this courthouse project.
76
77

STATEMENT OF WILLIAM M. SKRETNY, JUDGE, U.S. DISTRICT COURT, WESTERN

DISTRICT OF NEW YORK

I appreciate the opportunity to submit a statement to the subcommittee for the hearing record to explain the need for a new Annex to the United States Courthouse

Building in Buffalo, New York. My name is Bill Skretny and for the last 6 years I have been a member of the Judicial Conference’s Security and Facilities Committee, now chaired by Judge Roth

whom you heard from earlier, and additionally I am Chairman of its Subcommittee

on Space Management and Planning. In part, it has been our job to assess needy

courthouse construction projects. It is from this experience that I make the following

comments.

The Buffalo Courthouse Annex project, for which the General Services Administration (GSA) has asked $3.599 million to purchase a site and to hire an architect,

now is No. 6 on the Federal judiciary’s list of prioritized projects for fiscal year 2001.

Initially, we were very pleased to hear that after a 3-year hiatus, the President

this year chose to include a funding request for the GSA’s courthouse construction

program in his budget submittal to Congress. That was short-lived, however, because we soon learned that the President’s Budget skipped over the Buffalo Annex

project, while funding other projects further down on the list.

More specifically, the President’s budget included funding for construction projects

numbered one through five (LA, Seattle, Richmond, Gulfport & DC) from the judiciary’s prioritized list. But then, it skipped Buffalo at No. 6 and went on to No. 8

(Miami). It also added some design money for No. 14, Little Rock, Arkansas. To assist you, I have included a copy of the list of prioritized projects with my statement

for your reference.

Frankly, this hasn’t been all that good a year for Buffalo. If you are a sports fan,

you probably know about the no-goal goal that cost the Sabres a chance for the

Stanley Cup, and the miracle forward-pass lateral that eliminated the Bills from the

playoffs. It’s kind of like falling victim to Gaffuso’s extension to Murphy’s Law, that

is, ‘‘nothing can be so bad that it can’t get worse’’. Now this!

Honestly though, I am not discouraged because I truly believe justice is on our

side and that with your enlightened intervention, it will come to fruition. For your

edification, let me briefly explain ‘‘why’’ and three brief reasons for my optimism:

(1) Putting aside for the moment that additional delays inevitably will increase

the cost of the Annex project, GSA is asking for a very modest $3.599 million for

site and design.

When the Buffalo Courthouse project first made the priority list approximately 4

years ago, it initially was for an entire new courthouse. At that time, the projected

construction cost was approximately $85 million. Today, ours is an Annex project

which we expect to come in at a cost of approximately $44 million.

From the outset we have been well aware of Congress’ concern with fiscal responsibility and the reality that available dollars for national construction projects are

finite. In a sense, we went back to the drawing boards with GSA, and after some

serious soul searching and creativity, we ttled upon an Annex, rather than an entire

new courthouse building. This should result in the dramatic cost savings that I just

mentioned. And importantly, it will still adequately meet our court and security

needs. Thus, a very modest $3.599 million is critically needed for site and design.

(2) The Annex design contemplates an over-the-street link from the main courthouse to the Annex. This is what makes our proposed Annex structure suitable, and

obviates the need for an entire new courthouse. As I speak, there is one site and

only one site that makes this project possible. It presently is available, but if the

opportunity to acquire it now is lost, it may be irreparable.

(3) Finally, the Western New York community and the judiciary truly need this

Annex project. For one thing, it will result in the preservation and full utilization

of the present historic courthouse building in downtown Buffalo where it has served

since 1938. For another, the Annex will remedy presently existing dangerous conditions that affect both the public and courthouse employees on almost a daily basis.

Specifically, the Dillon Courthouse is a historical building which cannot be altered

to any major degree. As such, it has no separate elevators for transportation of prisoners, judges and the public. All users of the building must mingle, to some degree,

on elevators and in hallways. This puts a great strain on the United States Marshals Service and others charged with providing security not only for the judiciary

but also for litigants, witnesses, jurors, court staff and the public generally.

More to the point is a condition that involves my own courtroom. Virtually every

time there are multiple-arrest roundups, prisoners are detained in holding cells immediately adjacent to the entrance ways to my courtroom and chambers. This often

requires that courtroom proceedings be interrupted and staff alerted to warn of the
78

presence and transporting of prisoners. The inherent problems with this are self evident. Realistically, in a sense, we are on borrowed time. Something has to be done

and the Annex is the answer.

I have attached a fact sheet which provides greater detail on the Buffalo Annex

Project. On behalf of my Chief Judge, David Larimer and the other members of the

bench in the Western District of New York, I want to thank the subcommittee for

considering these comments and urge that $3.599 million be authorized for site and

design of the Buffalo Annex Project.

FY 2001 Courthouse Construction Projects—Judiciary Prioritized Plan

[In Millions of Dollars]

GSA Estimate President’s Budget

Request

1. Los Angeles, CA—S&D .......................................................................................... $36.203 $31.523

2. Seattle, WA—C ...................................................................................................... 179.365 177.93

3. Richmond, VA—S&D .............................................................................................. 19.581 19.476

4. Gulfport, MS—C ..................................................................................................... 42.715 42.715

5. Washington, DC—C ............................................................................................... 109.498 104.050

6. Buffalo, NY—S&D .................................................................................................. 3.599

7. Springfield, MA—C ................................................................................................ 41.378

8. Miami, FL—C ......................................................................................................... 121.946 110.950

9. El Paso, TX—S&D .................................................................................................. 7.208

10. Mobile, AL—S&D .................................................................................................. 8.123

11. Fresno, CA—C ...................................................................................................... 111.783

12. Norfolk, VA—S&D ................................................................................................. 9.593

13. Las Cruces, NM—D ............................................................................................. 1.900

14. Little Rock, AR—D (addtl. design funds) ........................................................... 5.428 1.82

15. Rockford, IL—S&D ............................................................................................... 2.837

16. Cedar Rapids—S&D ............................................................................................ 13.606

17. Nashville, TN—S&D ............................................................................................. 13.784

18. Erie, PA—C .......................................................................................................... 27.013

19. Savannah, GA—C ................................................................................................ 46.462

Total ................................................................................................................... $801.239 $488.464

UNITED STATES COURTHOUSE, BUFFALO, NY

SITE AND DESIGN

The proposed project is for the site acquisition and design of an annex to the Michael J. Dillon U.S. Courthouse (Dillon Courthouse) in Buffalo, New York. Following

completion of the annex construction, the entire District Court and most court-related functions will be housed in the Dillon Courthouse and armex. The Judiciary’s

Five-Year Plan for 2000–2004 included site acquisition and design of a new courthouse annex in Buffalo, in fiscal year 2000. However, the President’s fiscal year

2000 budget did not include funds for any courthouse projects. While the President’s

fiscal year 2001 budget does include funding for some courthouses, it does not include funds for the Buffalo site and design project.

The Judicial Conference’s policy on courtroom sharing, which balances the essential need for judges to have an available courtroom to fulfill their responsibilities

with the economic reality of limited resources, was incorporated in the initial planning stages for this project. That policy provides one courtroom for each active district judge and for each senior judge who maintains a substantial caseload. For senior judges who do not carry a caseload requiring substantial use of a courtroom and

visiting judges, the policy sets forth a non-exclusive list of factors for circuit councils

to consider when determining the number of courtrooms needed at a facility.

Description of the Existing and Proposed Housing Situation

The Dillon Courthouse was constructed in the mid-1930’s and has been at full capacity since 1993. The historic facility is unable to satisfy the current and projected

space and technology requirements of the court. To accommodate the immediate

need for space, the District Court has expanded into former bankruptcy courtrooms,

pending completion of the annex. The Bankruptcy Court has been relocated to

leased space. Other court-related functions, such as the U.S. Trustee and the U.S.

Attorney, are also housed in leased space.
79

The annex will provide courtrooms and chambers for the District Court and Magistrate judge functions, the Court of Appeals, and part of the U.S. Marshals Service.

It will also provide much needed grand jury space, prisoner processing and holding

areas. Upon completion of the project, the Dillon Courthouse will be used for the

Bankruptcy Court, jury assembly, the District clerk, the Probation Office, the U.S.

Marshals Service, the U.S. Trustee’s Office and other court-related functions. The

following chart displays the current and proposed complement of courtrooms and

judges for the Buffalo project.

Current Prosposed

Judges

Courtrooms and Judges Courtrooms and Judges

Judges

Ctrms Judges Ctrms

Dillion Dillion Annex Total

District ............................................................................ 2 2* 4044

Senior .............................................................................. 2 2* 3101

Magistrate ...................................................................... 4 3** 4044

Bankruptcy ...................................................................... 0 2*** 2202

Circuit ............................................................................. 001000

Total ....................................................................... 8 9 14 3 8 11

*Most of the courtrooms in the Dillon Courthouse are significantly undersized and functionally inefficient.

**One of the magistrate judges requires chambers only.

***Bankruptcy court is currently in leased space. The courtrooms vacated by the Bankruptcy Court are too small and inefficient. These

rooms will be converted to office space for use of the District Court.

In addition to addressing the immediate and projected space needs of the court,

completion of the annex will allow the government to relinquish the leased location

resulting in significant savings in lease payments. The chart below shows the current housing for the court and court-related activities located in leased facilities in

Buffalo. These functions will be consolidated in the Dillon courthouse complex avoiding the expenditure of approximately $693,886 annually.

Current Leases Current Occupant Government’s Annual Rent

Delaware Avenue ................................................ Truestee .............................................................. $81,894

Olympic Towers ................................................... Bankruptcy ......................................................... 611,992

Total Rent ...................................................... $693,886

SECURITY AND SPACE ISSUES

The completion of the annex project will resolve significant security and space

problems currently with the Dillon Courthouse. Security is a major concern for the

court in Buffalo. There is no secure parking area for judges; they must park either

on the street or in an unsecured public parking ramp across the street from the

courthouse. There is no secure circulation in the courthouse; the public, judges,

staff, jurors, and prisoners all use the same corridors throughout the courthouse.

There are no secure elevators for the movement of judges or prisoners. There is no

sallyport for the movement of prisoners; therefore, the U.S. Marshals must bring

prisoners into the courthouse from the street and escort them through the public

lobby and onto the public elevators for transport to courtrooms located on five different floors of the Dillon Courthouse. The U.S. Marshals Service, in a recent survey

of prisoner handling facilities nationwide, gave the Dillon Courthouse a score that

is sigruficantly below the minimally acceptable security and safety standards.

Due to these security problems, judges frequently have been approached by criminal defendants and their families and friends on the way to court appearances.

These contacts are inappropriate and create a serious risk to the judges involved.

Juror movement within the building is another concern. Although courtrooms are

located on five of the seven floors, the jury deliberation rooms are all located on the

fifth floor. Jurors, therefore, must use the public elevators when moving from the

courtroom to the jury deliberation rooms. In addition to creating a risk for mistrial,

this situation leaves the jurors vulnerable to contact by criminal defendants and

their associates, the public and the media. On several occasions, jurors themselves

have expressed concern regarding such exposure. These security threats for jurors
80

as well as the threat to the integrity of the judicial process occur almost daily; however, the current housing situation precludes virtually all mitigating measures.

The current facility also has functional problems that have a negative effect on

court operations. For example, some of the courtrooms have visual obstructions such

as structural columns that interfere with the jurors’ ability to view litigants, attorneys or physical evidence introduced throughout a trial. Due to the age of the Dillon

Courthouse, much work has been done on a piecemeal basis to maintain the building systems, including improvements to the heating and air-conditioning systems,

installation of modern aluminum windows, and other necessary modifications. Also,

a significant amount of asbestos abatement work has been required to ensure the

building’s safety. The building does not have the infrastructure necessary to support

the introduction of new technologies; costly building upgrades would be needed to

support the required technologies used by courts nationwide.

CASELOAD

The Buffalo Division serves as the headquarters location for the Western District

of New York. The latest available statistics demonstrate the significance of the

pending civil and criminal caseload in the Western District of New York and the

growth of filings overall. The District has the 3rd highest rate of civil filings per

judgeship of the entire 2nd Circuit. The District ranks 1st in the Circuit and 26th

nationally with regard to the rate of criminal filings per judgeship. The pending

caseload (both civil and criminal) renders the District 6th per judgeship out of the

94 district courts nationwide. A significant portion of the criminal caseload growth

may be attributed to the ongoing drug enforcement initiatives by the U.S. Attorney’s

Office. In order to manage this growth, the court routinely assigns almost all felony

and pretrial matters to the Magistrate judges. In addition, the Magistrate judges

are responsible for a significant number of felony preliminary proceedings, civil pretrial matters and settlement conferences.

The following chart illustrates the civil, criminal and bankruptcy case filings for

the Buffalo Division from 1995 to 1999. As shown in the chart, bankruptcy filings

have grown remarkably from 4,292 in 1995 to 7,492 in 1999. This reflects a growth

of nearly 74 percent. After experiencing a slight decrease between 1995 and 1996,

civil filings grew substantially from 955 in 1996 to 1,022 in 1999. The court expects

this steady rise in filings to continue. Total criminal and civil filings in the district

increased 15 percent from 1998 to 1999.

CONCLUSION

The court’s housing situation in Buffalo has become critical due to security concerns and operational difficulties arising from the split facilities and the age of the

building. In addition, there is no room within the existing courthouse facility to accommodate the projected growth of the court. Due to these factors, construction of

an annex to the existing Dillon Courthouse has become essential. Completion of the

annex project will centralize all of the court functions in one efficiently organized

court structure eliminating many of the current security and space concerns in the

Buffalo Division.
81

STATEMENT OF ROBERT E. COYLE, U.S. DISTRICT JUDGE, EASTERN

DISTRICT OF CALIFORNIA

I appreciate the opportunity to submit to the Subcommittee the following state- ment regarding the need for a new courthouse in Fresno, California and ask that

it be included in the hearing record.

1. STATUS OF CURRENT COURTHOUSE

The present courthouse was originally constructed as an office building, with the courts occupying two courtrooms and a small amount of support space. Since that

time, the court-related agencies have expanded to occupy 95 percent of the 137,000

sq. ft. building. The court-related agencies are literally scattered throughout the

building, with portions of the Clerk’s Office located on four separate floors and the

basement. There is no further expansion space for either the court or the agencies

presently located in the building. The court currently occupies three full-sized courtrooms and five under-sized courtrooms built from what originally was office space. The five small courtrooms

have low ceilings, obstructing columns, inadequate sightlines, security and acoustical problems. In the magistrates’ courtrooms, prisoners must be taken down public

hallways to get to two of their three courtrooms. There are presently two active district judges, two senior judges, three magistrate judges, two bankruptcy judges and a visiting magistrate judge from Yosemite who

assists us with the caseload in Fresno every other week. Current caseload statistics

show that two additional judges should be authorized for the District, both destined

for the Fresno Division. The Judicial Conference of the United States has approved

these two judgeships and they are currently before Congress. However, there is no

room for the two additional judges in our current location nor is there any space

for additional magistrate and bankruptcy judges that are anticipated in the near future. We are also finding that the growth of the Fresno Division’s weighted caseload

is growing far beyond the projections or expectations in our long-range plan.

Listed below are the ten top districts in the United States for weighted caseload

per judge for the calendar year 1999:

1. CA (S) 1,018

2. TX (W) 911

3. NM 764

4. NC (W) 686

5. AZ 655

6. CA (E) 619

7. FL (S) 609

8. TX (S) 603

9. NY (E) 597

10. VA (E) 590

You will note that the Eastern District of California is sixth on the list at 619.

The weighted caseload per judge in the Fresno Division of the Eastern District of

California is 862 and continues to increase dramatically each year. There is nothing

to indicate that the rapid increase in caseload and filings will abate. During the first

2 months of the year 2000, we were 151 civil cases and 53 criminal cases ahead

of the filings for the same period of time in 1999.

A. Security

The physical design of the current building creates security concerns as well as

the inability for expansion. The building does not meet minimum security requirements as the building was designed primarily to house office space and not function

as a courthouse. The circulation paths of the public, judges and prisoners are not

only in violation of the Marshal’s security procedures and the judiciary’s design requirements, but are also in violation of all the rules of common sense.

In order for members of the court to reach their courtrooms each day, the judges

enter and park in their own sallyport, but then must pass through the prisoner

sallyport in order to enter the building at the basement level. They must then travel

the same route used to transport prisoners, past the maintenance office and storage

area, the maintenance shops, down a long hall and ultimately into what is commonly called the freight elevator. This elevator is also used by the prisoners, construction workers, and the GSA maintenance and janitorial staff and is therefore

not available much of the day. This means the judges often ride with the public and

the prisoners must be transported in the public elevators. When exiting the building, the judges leave their chambers, pass through the public hallways and the public waiting area for the courtrooms in order to enter the freight elevator and then

pass through the same circuitous route to reach the basement level exit. Attached
82

to my statement are pictures of the prisoner sallyport area, first showing the prisoners going through in shackles and then our clerk walking through the same area

on the way to her car. Also attached is a picture of prisoners being jammed into

the freight elevator for transport to the fourth floor to the Marshal’s main holding

cells.

As a matter of interest, recently Judge Sandra Snyder exited the prisoner elevator

in the basement to go to her car and promptly ran into a string of shackled prisoners being brought into the building for court appearances. The Marshals quickly

lined the prisoners up against and facing the wall while she passed through the

area. I have personally found myself, while entering or exiting the elevator and

while in the sallyport, staring into the face of hardened criminals whom I have either just sentenced or had appeared before me.

The present prisoner population of the Fresno Division of the Eastern District is

495. Many times there are 30 to 80 prisoners delivered at a time to the courthouse,

depending upon the size of the bus and the institution from which the prisoners are

being transported. They must be brought into the building in groups and then

placed in the main holding cells. The Marshals have no way of bringing them from

the main holding cells on the fourth floor up to the fifth floor courtrooms except by

going up a narrow, steep stairway from the Marshal’s office. The prisoners are

shackled while in the stairwell as if it were, in essence, a holding cell which creates

a danger and a disturbance at the same time. At times as many as a dozen prisoners will have to be moved at a time to the temporary holding cells adjacent to

the courtrooms. These holding cells were built to hold only two prisoners. Sometimes

the prisoners intentionally provoke each other or are just noisy, causing disruption

of the proceedings in the courtrooms on either side of the holding cells. On a law

and motion day, there can be over 200 prisoners to be delivered for various motions,

trials, etc. Many times the holding cells are so full that the Marshals have to place

prisoners in the jury box in the courtroom, mixing male and female prisoners, who

are supposed to be separated.

B. Condition of the Building

A seismic evaluation was performed on the building and a determination was

made that the building was seismically unsound and that retrofit was necessary. It

was determined that the cost of seismic retrofit would result in expenditures greater

than the value of the building and the court would have to be located elsewhere during such retrofit. In addition, the court spaces are not up to code in fire safety. On

the exterior of the building, the windows are actually covered by metal grates and

therefore not accessible for ingress or egress in the case of fire or other disaster.

2. THE PROPOSED NEW FRESNO COURT PROJECT

As a result of the need for additional space and adequate security, GSA conducted

a feasibility study which determined the necessity of a new courthouse and developed a prospectus which has been accepted by GSA with the approval of the Central

Office and OMB. The city of Fresno demonstrated its strong support for the new

courthouse by donating four-plus acres of land for the site on which the courthouse

will be constructed. The city of Fresno has also agreed to build a 500-car parking

structure for the new courthouse, as well as building a ‘‘people park’’ on one square

block within walking distance of the new courthouse. Attached to my statement is

an editorial which appeared in yesterday’s Fresno Bee, describing the widespread

local support for the project. An Environmental Impact Study has been completed

and accepted. The architect, Moore Ruble Yudell, has completed Final Concepts

which were presented to the General Services Administration on December 10, with

approval given to proceed with final design and construction documents.

Groundbreaking is anticipated in mid to late Fall of 2000.

3. BUSINESS OF THE COURT

Of the 94 districts, the Eastern District of California, Fresno Division, stands as

follows in those statistics that are important concerning caseloads:

A. Weighted filings—862 weighted filings per judgeship in the Fresno Division.

This would be the third highest in the United States and twice the national average.

B. The district-wide filings have increased an average of 18 percent per year, considerably higher in the Fresno Division. The district is the third fastest growing district in the Ninth Circuit and the eighth fastest growing district in the United

States. Population statistics show that the San Joaquin Valley is the fastest growing

area in the State with the assumption that one-fifth of California’s population will

be located in the Valley in a short period of time.
83

District Wide

Ranking

National Circuit

Filings per judge: 717 .................................................................................................................... 3 2

Weighted filings: 619* ................................................................................................................... 6 3

Pending per judge: 770 .................................................................................................................. 4 1

*Weighted filings per judge for Fresno is 862. Compared to other districts nationally, the Fresno Division ranks third in weighted filings per

judge.

C. Number of pending cases—4th.

D. Total filings—3rd.

Unfortunately, the Fresno area is known as ‘‘the meth capital of the world’’ because of the many isolated locations in the area available to those persons who wish

to manufacture methamphetamine. The Eastern District has the eleventh worst

crime rate of the 94 districts, worse even than the Central and Northern Districts

of California as set forth in the FBI Crime Rates by Districts, 1994.

As you can see, there is an urgent need for a new facility for the Fresno court.

I urge the Subcommittee to authorize $112 million for the construction of the Fresno

courthouse. The $112 million will permit GSA to build the project as planned and

designed. Thank you for your consideration of this important construction project.
84
85
86

STATEMENT OF BERNARD H. BERNE, MD., PH.D.

I am a resident of Arlington, Virginia. I serve the Food and Drug Administration

(FDA) as a Medical Officer and as a reviewer medical device approval applications.

I am submitting this statement as a private individual and not as a representative

of FDA or of any other organization.

I ask you to reject a proposal in the Fiscal Year 2001 Capital Investment Program

for the U.S. General Services Administration (GSA) that would make a total of

$544,640,000 available to GSA’s Federal Buildings Fund for an FDA consolidation.

GSA proposes to receive these funds through four appropriations in the Treasury

and General Government Appropriations Act, 2001. GSA would use these funds to

award contracts to design and construct an FDA consolidation at the former White

Oak Naval Surface Warfare Center in suburban Montgomery County, Maryland.

No legislation authorizes the requested appropriations. GSA has never transmitted a prospectus to Congress that describes this project. Your Committee has never

approved any such prospectus.

The Capital Investment Program proposes that, of the above total, $101,239,000

would be made available to GSA in Fiscal Year 2001. The remainder would become

available to GSA in Fiscal Years 2002, 2003, and 2004. The Capital Investment Program does not provide the estimated maximum cost of this costly and unjustified

project.

In 1999, Congress appropriated $35,000,000 to GSA in the Treasury and General

Government Appropriations Act, 2000 (Pub. L. 106–58, Sept. 29, 1999) for an FDA

consolidation in Montgomery County, Maryland. GSA is now illegally using these

funds to construct this wasteful and environmentally unsound project at White Oak.

Pub. L. 106–58 contains a provision that specifically restricts GSA’s use of any

of the appropriated funds to the ‘‘development of a proposed prospectus’’ for any construction project that had lacked an approved prospectus when Pub. L. 106–58 became law. Despite this provision and the fact that GSA has never even transmitted
87

a prospectus to Congress, GSA is now using these funds to enter into contracts for

the design and construction of the White Oak facility. White Oak is a very poor location for the FDA consolidation. Your Committee should not permit FDA to consolidate at that site.

The following points summarize the reasons to oppose the White Oak FDA con- solidation. They also provide the reasons for your Committee to give immediate and

intensive oversight to GSA’s activities relating to the FDA’s consolidation: Congress has not approved a prospectus for any part of the FDA consolidation. GSA is using the funds appropriated in Pub. L. 106–58 for construction purposes

without ever submitting a prospectus to Congress. GSA’s actions are violating a provision in Pub. L. 106–58 that prohibits the use of these funds for construction purposes in the absence of an approved prospectus.

These actions are illegal and constitute a misuse of Federal funds. FDA does not need to consolidate its facilities.

• The FDA consolidated facility at White Oak will be a white elephant that will cost at least $600,000,000. It will be a country club that will have a golf course adjacent to FDA’s offices. • The FDA consolidation is nothing more than a pork barrel project for Maryland. • Nearly all current FDA buildings are in good condition. Few are unsatisfactory. GSA often misleads readers by describing these buildings as being unsatisfactory.

It does this by selectively quoting parts of sentences in various documents without

providing the entire sentence. • FDA offices that work together are already close to each other. Few FDA em- ployees need to travel long distances between work sites. There is now no clear need

to expend Federal funds to consolidate FDA. • Many FDA employees work at home part of the time. Few travel between work sites. An FDA consolidation will not increase FDA’s ability to approve new drugs and medical devices in a timely manner. • The Government does not save money by building a new Federal facility rather than by leasing. The Federal Government gains income tax revenues from owners

of leased buildings. It receives nothing from federally owned buildings. An FDA consolidation at White Oak is environmentally unsound.

• White Oak is outside of the Beltway and is three miles from the nearest Metro- rail station. • Many FDA buildings, including the largest ones, are now near Metro stations. Metro will lose riders if FDA consolidates at White Oak. • Public transportation to White Oak is and will be inadequate. Few FDA workers will take buses to White Oak. For economic reasons, buses will be infrequent. • Roads and highways near White Oak are already heavily congested. They don’t need more traffic and air pollution. Nearly all FDA workers would drive to work

at White Oak.

• Many FDA workers would drive to White Oak on the congested Capital Beltway

during rush hour.

• An FDA consolidation at White Oak would replace over 125 acres of open space

with a sprawling campus filled with buildings and large paved parking lots.

• An FDA consolidation at White Oak will accelerate urban sprawl. If FDA consolidates at White Oak, other Federal agencies will follow. This will eventually fill

a 750-acre Federal property.

• GSA’s White Oak property is heavily forested. An FDA consolidation at White

Oak would begin the destruction of this woodland, which could otherwise be a national, regional, or local park.

• There are a number of federally owned sites near Metro stations that are available for the FDA consolidation. These include the Southeast Federal Center and the

west campus of St. Elizabeth’s Hospital in D.C. and the Suitland Federal Center in

Prince George’s County, Maryland. GSA has refused to evaluate any of these.

• GSA is planning to construct some of FDA’s buildings at White Oak on top of

a former Navy dump site. This site is contaminated with PCBs, which cause cancer,

and with mercury, which causes birth defects. Navy contractors have stated that the

site is too contaminated for residential use. There is no assurance that GSA or the

Navy can decontaminate the site sufficiently to protect the health of FDA employees.

An FDA consolidation at White Oak would hurt the District of Columbia.

• The Council of the District of Columbia has approved a resolution that objects

to GSA’s selection of the White Oak site and that asks GSA to work with D.C. officials to identify a suitable site in D.C., consistent with Federal laws and executive

orders.

• The White Oak facility is one of two FDA facilities that would consolidate in

Maryland. The two facilities would together remove over 900 Federal jobs from D.C.
88

• D.C. has lost many Federal jobs in recent years. This project will accelerate

such losses. Further, it will encourage other Federal agencies to locate outside of

D.C.

• Many FDA workers now live in D.C. and take Metro to work. These will leave

D.C. if FDA consolidates at White Oak.

GSA violated Federal laws and policies when it selected the White Oak site.

• President Carter’s Executive Order 12072, which President Clinton has reaffirmed in Executive Order 13006, requires Federal agencies to locate their facilities in cities (with preference to large central cities) when locating their facilities

in urban areas, such as the Washington Metropolitan Area. Federal courts have

found that Executive Order 12072 has the full force and effect of law. White Oak

is not in or near any city.

• GSA refused to evaluate any potential sites in any city.

• GSA has refused to consult with District of Columbia officials regarding the

availability of suitable sites within the District. This violated Executive Order 12072

and the Federal Buildings Cooperative Use Act, which require such consultation

with local city officials.

• Washington, D.C. has a number of suitable vacant federally owned sites, such

as the Southeast Federal Center and the campus of St. Elizabeth’s Hospital. Unlike

White Oak, these sites are near Metro stations. GSA has refused to evaluate any

of these sites.

• GSA informed D.C. officials that the Southeast Federal Center can not accommodate the FDA consolidation. This is untrue. GSA’s plans for The Southeast Federal Center anticipate the construction of nearly twice the amount of occupiable

space than FDA needs.

• GSA incorrectly informed the D.C. officials and the public that Congress had

mandated FDA to consolidate in Montgomery County. This was a misrepresentation

of fact. There is no such mandate.

• Federal laws promote development in economically distressed areas, such as

Southeast D.C. However, White Oak is an affluent residential suburb in one of the

richest Counties in the Nation. White Oak does not need or deserve Federal assistance to help its economy.

• The Environmental Protection Agency has formally informed GSA that GSA did

not adequately evaluate alternative sites on public and private lands when it prepared its Environmental Impact Statement for FDA consolidation. GSA violated the

National Environmental Policy Act (NEPA) when it selected the White Oak site.

• GSA did not attempt to acquire properties in D.C. by donation. The FDA Revitalization Act (Pub. L. 101–635) requires such attempts, since it is more costeffective for the government to acquire properties by donation than by using existing

Federal property.

EXPLANATION OF POINTS

Suburban White Oak is a very poor site for this massive ‘‘consolidated’’ Federal

administrative and laboratory facility. Metrorail is three miles away.

White Oak is located a mile outside of the Capital Beltway. Nearby highways and

roads, including the Beltway, are already heavily congested.

An FDA facility at White Oak would increase the Washington Metropolitan Area’s

traffic congestion, air pollution and urban sprawl. Further, the new construction

would require Congress to appropriate additional funds to ‘‘improve’’ the highways

and roads that serve the White Oak area.

GSA is planning to construct some FDA’s buildings on top of a contaminated Navy

dump site. Toxic wastes on the FDA site include PCBs, which cause cancer, and

mercury, which causes birth defects. GSA and Navy contractors have found the FDA

site to be unfit for residential uses.

The FDA Revitalization Act (P.L. 101–635; 21 U.S.C. 379(b)), (see Exhibit 1)

which amended Chapter VII of Federal Food, Drug, and Cosmetic Act by adding a

new Section 710 (21 U.S.C. 379(b)), only authorizes appropriations that the Secretary of Health and Human Services (HHS) can use to enter into contracts to design, construct, and operate a consolidated FDA laboratory and administrative facility.

P.L. 101–635 does not authorize any appropriations that GSA can use to enter

into any contracts of any kind. P.L. 101–635 clearly and specifically restricts the

role of GSA in the FDA consolidation to ‘‘consultation’’ with the Secretary of HHS.

Specifically, Section 101(d) of P.L. 101–635 authorizes appropriations only to

‘‘carry out this section’’. ‘‘This section’’ (Section 710 of the Federal Food, Drug, and

Cosmetic Act) states ‘‘(a) Authority.—The Secretary, in consultation with the Administrator of the General Services Administration, shall enter into contracts for the de-
89

sign, construction, and operation of a consolidated Food and Drug Administration

administrative and laboratory facility.’’ ‘‘This section’’ does not authorize GSA to take

any actions. Congress cannot presently appropriate any funds to GSA under the authorization

of appropriations specified in P.L. 101–635.

Further, the FDA Revitalization Act authorizes appropriations for only one FDA consolidated facility. Despite this, GSA has used funds appropriated for an ‘‘FDA

Consolidation’’ to design and construct three separate FDA administrative and laboratory facilities in Beltsville, College Park, and White Oak, Maryland. GSA’s actions have contradicted the intent and language of the FDA Revitaliza- tion Act. GSA will not use the proposed appropriation to consolidate all FDA headquarters facilities in a single location. Therefore, the FDA Revitalization Act is irrelevant to the proposed appropriation.

GSA has claimed in reports to Congress that the FDA Revitalization Act author- izes appropriations to both the Secretary of HHS and to the Administrator of GSA

to design and construct the FDA consolidation. This self-serving claim is incorrect. I am not aware of any law that authorizes two separate government officials (such as the Secretary of HHS and the Administrator of GSA) to perform the same activities and to receive appropriations for such identical activities. Any such law could

produce duplications of efforts and the endless shifting of blame for irresponsible actions. For this reason, when it wrote P.L. 101–635, Congress assured that the FDA

Revitalization Act would only authorize appropriations to HHS and would not au- thorize any appropriations to GSA. According to Section 7(a) of the Public Buildings Act of 1959 (see Exhibit 2), as amended, Congress can only legally appropriate funds to GSA to construct any pub- lic building whose cost exceeds $1.5 million if the GSA Administrator transmits a

prospectus to Congress and if the Committee on Transportation and Infrastructure

of the House of Representatives and the Committee on Environment and Public

Works of the Senate (GSA’s Senate authorizing committee) both pass resolutions

that approve this prospectus.

On March 7, 2000, GSA submitted a report on the FDA consolidation to the Committee on Transportation and Infrastructure of the U.S. House of Representatives

in response to a resolution that the House Committee had approved more than 3

years ago in accordance with Section 11(b) of the Public Buildings Act of 1959, as

amended. GSA’s 11(b) report contains a substantial amount of misinformation. Your

own Committee may have received a copy of this report. Rule 7(c)(2) of your Committee’s Rules of Procedure prohibits your Committee from considering an 11(b) report as being a prospectus subject to approval by committee resolution in accordance with section 7(a) of the Public Buildings Act. Your

Committee should not therefore consider GSA’s 11(b) report to be a prospectus.

Your Committee needs to assure that Congress does not appropriate any funds

for this or any other GSA construction project until your Committee approves a prospectus that describes the particular project. If GSA repeats its past practices, GSA

will misuse the funds from any appropriation for the FDA consolidation that Congress may provide to GSA without an approved prospectus.

GSA has illegally used $55,000,000 appropriated in the Treasury, Postal Services,

and General Government Appropriations Act, 1996 (P.L. 104–52, 109 Stat. 482), to

award contracts to construct a so-called FDA ‘‘consolidation’’ in College Park, Prince

George’s County, Maryland.

GSA is further now illegally using $35,000,000 appropriated in the Treasury and

General Government Appropriations Act, 2000 (P.L. 106–58, 113 Stat. 450) (See Exhibit 3) to award contracts to design and construct another so-called ‘‘FDA consolidation’’ at White Oak in Montgomery County, Maryland.

Provisions in both appropriations acts (P.L. 104–52 and P.L. 106–58) specifically

prohibited GSA from expending any funds appropriated therein for the design and

construction of any project for which a prospectus, if required by the Public Buildings Act, had not been approved. The Public Buildings Act requires the approval of

a prospectus because, (1) the FDA ‘‘consolidations’’ will cost more than $1.5 million,

and, (2) the FDA Revitalization Act does not authorize any appropriations that GSA

can use to award design or construction contracts.

GSA is therefore clearly misusing appropriated funds. Congress has never enacted

any legislation that has authorized GSA to construct the College Park and White

Oak FDA facilities.

President Carter’s Executive Order 12072 (see Exhibit 4), requires all Federal facilities and Federal use of space in urban areas to ‘‘serve to strengthen the Nation’s

cities and to make them attractive places to live and work’’, and to ‘‘encourage the

development and redevelopment of cities’’. When he issued this Order, President

Carter stated that the Order was intended ‘‘to strengthen the backbone of our major
90

cities and to buildup jobs and further investments there.’’ (Public Papers of the

Presidents: Jimmy Carter, 1978, Book II, p. 1429).

Present Carter promulgated Executive Order 12072 pursuant to the authority

granted to the President in the Federal Property and Administrative Services Act

of 1949 (40 U.S.C. § 486(a)). Federal courts have found that this Executive Order

has the full force and effect of law.

White Oak is not in or adjacent to any city. An FDA consolidation at White Oak

would draw jobs and investments out of Washington, D.C. The requested appropriation serves to further weaken this economically troubled major city. Any appropriation to support an FDA consolidation at White Oak would violate Executive Order

12072 and 13006.

In Executive Order 13006 (See Exhibit 5), President Clinton reaffirmed Executive

Order 12072 and made it a policy of his Administration. His own Administration

is now proposing this appropriation in violation of the President’s own policies and

established law.

Section 12(c) of the Public Buildings Act states: ‘‘The (GSA) Administrator in carrying out his duties under this Act shall provide for the construction and acquisition

of public buildings equitably throughout the United States with due regard to the

comparative urgency of the need for each particular building.’’

Despite this requirement, GSA is requesting an appropriation to construct a major

Federal facility in affluent Montgomery County, Maryland. Unlike Maryland in general and Montgomery County in particular, the District of Columbia is economically

depressed.

The National Capital Planning Commission has recommended that Federal agencies increase the percentage of the National Capital Region’s Federal employees that

work in D.C. from 52 percent to 60 percent, to restore the historic percentage of

Federal jobs in the District. It is thus clear that the District of Columbia has a far

greater ‘‘comparative urgency of need’’ for the FDA consolidation than does Montgomery County, Maryland.

Thus, GSA is violating Executive Orders 12072 and 13006, as well as Section

12(c) of the Public Buildings Act, by proposing this appropriation. Your Committee

should not endorse these violations by appropriating further funds for this project.

It is important for your Committee to recognize that no law directs or requires

GSA to consolidate FDA in Montgomery County. In 1992, Congress appropriated

funds to begin constructing an FDA consolidation in Montgomery County, Maryland.

However, in 1995, P.L. 104–19 rescinded all of these construction funds (See Exhibit

6). P.L. 104–19 removed any Congressional directive or requirement for FDA to consolidate in Maryland.

The Treasury and General Government Appropriations Act, 2000 (P.L. 106–58)

appropriated $35 million for an FDA consolidation in Montgomery County. However,

as noted above, P.L. 106–58 contains a provision that states (113 Stat. 451): ‘‘Provided further, That funds available to the General Services Administration shall not

be available for expenses in connection with any construction, repair, alteration, or

acquisition project for which a prospectus, if required by the Public Buildings Act

of 1959, as amended, has not been approved, except that necessary funds may be

expended for each project for required expenses in connection with the development

of a proposed prospectus.’’ (See Exhibit 3).

No prospectus has ever been approved for this project. Since the Public Buildings

Act requires prospectus approval for all GSA construction projects costing more than

$1.5 million, GSA cannot legally use the $35 million to construct anything at White

Oak. Therefore, the FDA consolidation can still occur in the District of Columbia

rather than in Montgomery County, Maryland.

Rule 7(a) of your Committee’s Rules of Procedure State that no project or legislation may be approved or otherwise acted upon unless the committee has received

the written comments of the EPA Administrator, in accordance with section 309 of

the Clean Air Act. You may therefore wish to consider the following EPA letter as

representing the most recent comment from the EPA Administrator on this matter.

In a letter dated January 5, 1999, Mr. William Hoffman, NEPA/404 Program

Manager, U.S. Environmental Protection Agency (EPA), Region III, informed GSA

that GSA’s Environmental Impact Statement (EIS) for the White Oak project did

not comply with the regulations of the Council on Environmental Quality (See Exhibit 7). The EPA letter states that GSA had not adequately compared an FDA consolidation at White Oak with a consolidation at alternative locations on public and

private lands.

The letter formally encouraged GSA to perform the required comparison in a future proposed EIS. However, GSA has not prepared any new EIS since receiving the

EPA letter.
91

The federally owned Southeast Federal Center and St. Elizabeth Hospital sites in D.C., can accommodate the FDA consolidation. The federally owned Suitland Metro

Station in Prince George’s County, Maryland, may also be able to accommodate

FDA. All of these sites are near Metro stations.

Your Committee needs to assure that Congress does not appropriate any funds for the FDA consolidation until GSA evaluates these alternatives and until both the

House Committee on Transportation and Infrastructure and the Senate Committee

on Environment and Public Works approve a prospectus for the project and certify

the project’s need.

On December 15, 1998, the Council of the District of Columbia approved a resolution (See Exhibit 8) that asked The President, GSA and Congress to give preference

to D.C. sites, consistent with Executive Orders 12072 and 13006. The Council found

that the FDA consolidations would remove 800 FDA employees from the District.

The President and GSA disregarded the D.C. Council’s request. GSA has refused

to consult with D.C. officials (as required by Executive Order 12072) regarding this

project.

FDA does not need to consolidate at White Oak. The Capital Investment Program

violates laws, Executive Orders, and EPA regulations.

LIST OF EXHIBITS

1. The Food And Drug Administration Revitalization Act (P.L. 101–635, Nov. 28,

1990): The authorizing legislation for that authorized the Secretary of Health and

Human Services to enter into contracts to design, construct and operate a single

consolidated FDA administrative and laboratory facility. The GSA Administrator

was only authorized to consult with the Secretary of HHS.

2. Public Buildings Act of 1959 (P.L. 85–249, Sept. 9, 1959): The Public Buildings

Act requires the GSA Administrator to transmit a prospectus for large building

projects to Congress. Sec. 7 states that approval of the prospectus is required ‘‘in

order to insure the equitable distribution of public buildings throughout the United

States with due regard for the comparative urgency of need for such buildings.’’

3. Treasury and General Government Appropriations Act, 2000 (P.L. 106–58,

Sept. 29, 1999): The Fiscal Year 2000 Act that appropriated $35,000,000 to GSA’s

Federal Buildings Fund for an FDA consolidation in Montgomery County, Maryland.

A provision in the Act restricts expenditures of these funds to the development of

a proposed prospectus for the project in accordance with Public Buildings Act of

1959.

4. Executive Order 12072: Federal Space Management (President Jimmy Carter,

Aug. 16, 1978; 43 F.R. 36869; 40 U.S.C. § 490; 3 CFR, 1979 Comp., p. 213): Executive Order stating that the process for meeting Federal space needs in urban areas

shall serve to strengthen the Nation’s cities, shall give first consideration to a centralized community business area and adjacent areas of similar character, and that

the heads of Executive agencies shall economize on their use of space.

5. Executive Order 13006: Locating Federal Facilities on Historic Properties in

Our Nation’s Cities (President William J. Clinton, May 21, 1996; Federal Register,

Vol. 61, No. 102, May 24, 1996, pp. 26071–26072): Executive Order reaffirming the

Administration’s commitment to Executive Order 120072 and encouraging the location of Federal facilities in historic buildings in central cities.

6. P.L. 104–19 (Rescissions Act, 1995). The 1995 Act that rescinded $228,000,000

of the funds previously appropriated for the Montgomery County, Maryland, FDA

consolidation. The Act rescinded all construction funds for the facility.

7. Letter from U.S. Environmental Protection Agency to Mr. Jag Bhargava, General Services Administration, January 5, 1999. Letter informs GSA.—Letter from

EPA that formally encourages GSA to compare alternative sites on public as well

as non-public lands in the proposed Environmental Impact Statement (EIS) for the

FDA Consolidation. The letter states that EPA had already informed GSA that a

previous FDA consolidation EIS had not adequately compared the White Oak alternative to alternatives on non-public lands, thus making a comparison of environmental impacts difficult with anything other than the no action alternative.

8. Council of the District of Columbia, Resolution No. R12–834, (Location of Federal Facilities in the District of Columbia Sense of the Council Resolution of 1998;

December 15, 1998. D.C. Council Resolution that requests the President, the VicePresident, the GSA Administrator, the GSA Regional Administrator, the FDA Commissioner, the OMB Director, the heads of all other Federal executive agencies,

other Federal officials, and Members of Congress, to identify and give preference to

District of Columbia sites when meeting Federal space needs in the Washington

Metropolitan Area, consistent with Executive Orders 12072 and 13006.
92

EXHIBIT NO. 1.—THE FOOD AND DRUG ADMINISTRATION REVITALIZATION ACT

P.L. 101–635

104 STAT. 4583–4585 (21 U.S.C. 379B)

NOVEMBER 28, 1990

An authorizing statute for the FDA consolidation. P.L. 101–635 authorizes the

Secretary of Health and Human Services to enter into contracts to design, construct

and operate a single consolidated FDA administrative and laboratory facility. P.L.

101–635 authorizes the Administrator of General Services to consult with the Secretary of HHS, but does not authorize the GSA Administrator to enter into any contracts for the facility.

P.L. 101–635 authorizes appropriations ‘‘to carry out this section’’. The Secretary

of HHS can thus expend any funds appropriated pursuant to this law to enter into

contracts for the consolidated facility. The GSA Administrator does not have this authority. P.L. 101–635 does not authorize any appropriations to GSA.

Other statutes, including the Public Buildings Act of 1959, authorize the Administrator of General Services to enter into contracts to acquire property for and to construct Federal facilities, in accordance with provisions (such as prospectus submission requirements) that such legislation contains. It is important to recognize, however, that P.L. 101–635 does not provide the GSA Administrator with any such authority.

P.L. 101–635 authorizes only one consolidated FDA administrative and laboratory

facility. GSA is currently planning to ‘‘consolidate’’ FDA’s facilities in three separate

locations (Beltsville, College Park, and White Oak, Maryland). P.L. 101–635 does

not authorize this type of ‘‘consolidation’’.

P.L. 101–635 does not specify any location or political jurisdiction for the consolidated facility.

EXHIBIT NO. 2.—PUBLIC BUILDINGS ACT OF 1959

P.L. 85–249

SEPTEMBER 9, 1959

The Public Buildings Act authorizes the GSA Administrator to construct public

buildings in accordance with the provisions of the Act. Sec. 7(a) requires the Administrator to transmit a prospectus for any large building project to Congress. Sec. 7(a)

states that approval of the prospectus is required ‘‘in order to insure the equitable

distribution of public buildings throughout the United States with due regard for

the comparative urgency of need for such buildings.’’

Sec. 12(c) requires the Administrator to ‘‘provide for the construction and acquisition of public buildings equitably throughout the United States with due regard to

the comparative urgency of need for each particular building’’.

Note: In recent years, GSA has transferred thousands of Federal employees from

the District of Columbia to Virginia and Maryland. GSA has accomplished this by

constructing and leasing buildings for a number of Federal agencies in suburban

areas that are outside of the District, without constructing and leasing a comparable

number of buildings within the District.

The District’s current financial status is currently less favorable than the statuses

of suburban Maryland and Virginia. There is thus a greater comparative urgency

of need for public buildings in the District than in its Maryland and Virginia suburbs.

Despite the requirement in Sec. 12(c), GSA has not relocated many Federal agencies from Maryland and Virginia into the District. It is continuing to delineate areas

for Federal leasing and construction in the National Capital Region to exclude the

properties located within the District.

As an example, GSA is planning to construct new facilities for FDA in College

Park and White Oak, Maryland. This would move approximately 900 Federal employees from the District. It would further increase the inequitable distribution of

Federal facilities that is present in the National Capital Region.

The National Capital Planning Commission currently defines an ‘‘equitable distribution’’ as distributing 60 percent of the Region’s Federal employees within the

District of Columbia and 40 percent in Virginia and Maryland. The District presently contains only 52 percent of such employees.
93

EXHIBIT NO. 3.—TREASURY AND GENERAL GOVERNMENT APPROPRIATIONS ACT, 2000

P.L. 106–58 (113 STAT. 430)

SEPTEMBER 29, 1999

The Fiscal Year 2000 Act that appropriated $35,000,000 to GSA’s Federal Buildings Fund for an FDA consolidation in Montgomery County, Maryland. A provision

in the Act restricts expenditures of these funds to the development of a proposed prospectus for the project in accordance with Public Buildings Act of 1959.

Note: GSA has allocated these funds for the design and construction of FDA’s proposed White Oak facility. However, the $35,000,000 appropriated in P.L. 106–58 can

only be used for the ‘‘development of a proposed prospectus’’ because no prospectus

for the project had been approved prior to September 29, 1999, when P.L. 106–58

became law.

A provision in the P.L. 106–58 states that the funds available to GSA shall not

be available for expenses in connection with any construction or acquisition project

for which a prospectus, if required by the Public Buildings Act, has not been approved, except that necessary funds may be expended for required expenses in connection with the development of a proposed prospectus. GSA therefore cannot use

these funds to award contracts to develop construction plans or to construct any

buildings at White Oak or anywhere else.

Any Congressional committee approval of a prospectus for the White Oak facility

after September 29, 1999, can only allow future appropriations acts to make new

funds available to GSA to construct the facility. Because of the language in the restrictive provision, Congressional committee approval of a project prospectus after

September 29, 1999, cannot give GSA the authority to use the funds appropriated

in P.L. 106–58 for expenses related to construction and property acquisition.

The National Capital Planning Commission currently defines an ‘‘equitable distribution’’ as distributing 60 percent of the Region’s Federal employees within the

District of Columbia and 40 percent in Virginia and Maryland. The District presently contains only 52 percent of such employees.

EXHIBIT NO. 4.—EXECUTIVE ORDER 12072: FEDERAL SPACE MANAGEMENT

PRESIDENT JIMMY CARTER, AUG. 16, 1978

43 F.R. 36869; 40 U.S.C. § 490; 3 CFR, 1979 COMP., P. 213

Executive Order stating that the process for meeting Federal space needs in

urban areas shall serve to strengthen the Nation’s cities, shall give first consideration to a centralized community business area and adjacent areas of similar character, and that the heads of Executive agencies shall economize on their use of

space.

EXHIBIT NO. 5.—EXECUTIVE ORDER 13006: LOCATING FEDERAL FACILITIES ON

HISTORIC PROPERTIES IN OUR NATION’S CITIES

PRESIDENT WILLIAM J. CLINTON, MAY 21, 1996

FEDERAL REGISTER VOL. 61, NO. 102, MAY 24, 1996, PP. 26071–72

Executive Order reaffirming the Administration’s commitment to Executive Order

12072, defining the improvement of ‘‘central cities’’ as the purpose of Executive

Order 12072, and encouraging the location of Federal facilities in historic buildings

in central cities.

EXHIBIT NO. 6.—RESCISSIONS ACT, 1995

P.L. 104–19 (109 STAT. 194)

JULY 27, 1995

1995 Act that rescinded $228,000,000 of the funds previously appropriated for the

Montgomery County, Maryland, FDA consolidation. The rescission removed all construction funds for any FDA consolidation in Montgomery County.
94

EXHIBIT NO. 7.—LETTER FROM U.S. ENVIRONMENTAL PROTECTION AGENCY, REGION

III

TO MR. JAG BHARGAVA, GENERAL SERVICES ADMINISTRATION—NATIONAL

CAPITAL REGION

January 5, 1999.—Letter from EPA that formally encourages GSA to compare alternative sites on public as well as non-public lands in the proposed Environmental

Impact Statement (EIS) for the FDA Consolidation. GSA has not responded to this

letter.

The letter states that EPA had already informed GSA that a previous FDA consolidation EIS had not adequately compared the White Oak alternative to alternatives on non-public lands, thus making a comparison of environmental impacts

difficult with anything other than the no action alternative.

The letter states that a comparative analysis is the heart of an EIS and that the

Council on Environmental Quality (CEQ) regulations require that the details of

each alternative be presented in a comparative form. The letter cites CEQ’s regulations in § 1502.14(a), which states that agencies shall ‘‘Rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated’’.

EXHIBIT NO. 8.—COUNCIL OF THE DISTRICT OF COLUMBIA

RESOLUTION NO. R12–834

LOCATION OF FEDERAL FACILITIES IN THE DISTRICT OF COLUMBIA SENSE OF THE

COUNCIL RESOLUTION OF 1998

DECEMBER 15, 1998

D.C. Council resolution that requests the Mayor, the Financial Recovery and Management Assistance Authority, the District’s Delegate to Congress, and the National

Capital Planning Commission to take all appropriate actions to assure that the GSA

Administrator and the heads of all other Federal executive agencies will comply

with Executive Orders 12072 and 13006 and give preference to locations within the

District when meeting their needs to house their facilities and to utilize leased and

federally owned space in the Washington Metropolitan Area.

The resolution also requests the D.C. Corporation Counsel to investigate immediately any enforceable actions and recognize any causes for action that may be necessary to direct the GSA Administrator, the HHS Secretary, and the FDA Commissioner to consult with appropriate local officials to identify a site within the District

of Columbia that is suitable for the proposed FDA consolidated headquarters facility

and to prevent the relocation from the District of any Federal employees associated

with the FDA.

The resolution further requests the President, the Vice-President, the GSA Administrator, the GSA Regional Administrator, the HHS Secretary, the FDA Commissioner, the OMB Director, the heads of all other Federal executive agencies,

other Federal officials, and Members of Congress, to identify and give preference to

District of Columbia sites when meeting Federal space needs in the Washington

Metropolitan Area, consistent with Executive Orders 12072 and 13006.

Æ