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22–504 PDF 2005

THE JUDICIARY’S ABILITY TO PAY

FOR CURRENT AND FUTURE SPACE

NEEDS

(109–25)

HEARING

BEFORE THE

SUBCOMMITTEE ON

ECONOMIC DEVELOPMENT, PUBLIC BUILDINGS AND

EMERGENCY MANAGEMENT

OF THE

COMMITTEE ON

TRANSPORTATION AND

INFRASTRUCTURE

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

JUNE 21, 2005

Printed for the use of the

Committee on Transportation and Infrastructure

(
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

DON YOUNG, Alaska, Chairman

THOMAS E. PETRI, Wisconsin, Vice-Chair

SHERWOOD L. BOEHLERT, New York

HOWARD COBLE, North Carolina

JOHN J. DUNCAN, JR., Tennessee

WAYNE T. GILCHREST, Maryland

JOHN L. MICA, Florida

PETER HOEKSTRA, Michigan

VERNON J. EHLERS, Michigan

SPENCER BACHUS, Alabama

STEVEN C. LATOURETTE, Ohio

SUE W. KELLY, New York

RICHARD H. BAKER, Louisiana

ROBERT W. NEY, Ohio

FRANK A. LOBIONDO, New Jersey

JERRY MORAN, Kansas

GARY G. MILLER, California

ROBIN HAYES, North Carolina

ROB SIMMONS, Connecticut

HENRY E. BROWN, JR., South Carolina

TIMOTHY V. JOHNSON, Illinois

TODD RUSSELL PLATTS, Pennsylvania

SAM GRAVES, Missouri

MARK R. KENNEDY, Minnesota

BILL SHUSTER, Pennsylvania

JOHN BOOZMAN, Arkansas

JIM GERLACH, Pennsylvania

MARIO DIAZ-BALART, Florida

JON C. PORTER, Nevada

TOM OSBORNE, Nebraska

KENNY MARCHANT, Texas

MICHAEL E. SODREL, Indiana

CHARLES W. DENT, Pennsylvania

TED POE, Texas

DAVID G. REICHERT, Washington

CONNIE MACK, Florida

JOHN R. ‘RANDY’ KUHL, JR., New York

LUIS G. FORTUN ̃ O, Puerto Rico

LYNN A. WESTMORELAND, Georgia

CHARLES W. BOUSTANY, JR., Louisiana

VACANCY

JAMES L. OBERSTAR, Minnesota

NICK J. RAHALL, II, West Virginia

PETER A. DEFAZIO, Oregon

JERRY F. COSTELLO, Illinois

ELEANOR HOLMES NORTON, District of

Columbia

JERROLD NADLER, New York

ROBERT MENENDEZ, New Jersey

CORRINE BROWN, Florida

BOB FILNER, California

EDDIE BERNICE JOHNSON, Texas

GENE TAYLOR, Mississippi

JUANITA MILLENDER-MCDONALD,

California

ELIJAH E. CUMMINGS, Maryland

EARL BLUMENAUER, Oregon

ELLEN O. TAUSCHER, California

BILL PASCRELL, JR., New Jersey

LEONARD L. BOSWELL, Iowa

TIM HOLDEN, Pennsylvania

BRIAN BAIRD, Washington

SHELLEY BERKLEY, Nevada

JIM MATHESON, Utah

MICHAEL M. HONDA, California

RICK LARSEN, Washington

MICHAEL E. CAPUANO, Massachusetts

ANTHONY D. WEINER, New York

JULIA CARSON, Indiana

TIMOTHY H. BISHOP, New York

MICHAEL H. MICHAUD, Maine

LINCOLN DAVIS, Tennessee

BEN CHANDLER, Kentucky

BRIAN HIGGINS, New York

RUSS CARNAHAN, Missouri

ALLYSON Y. SCHWARTZ, Pennsylvania

JOHN T. SALAZAR, Colorado

(II)
SUBCOMMITTEE ON ECONOMIC DEVELOPMENT, PUBLIC BUILDINGS AND EMERGENCY

MANAGEMENT

BILL SHUSTER, Pennsylvania, Chairman

JIM GERLACH, Pennsylvania

KENNY MARCHANT, Texas, Vice-Chair

CHARLES W. DENT, Pennsylvania

JOHN R. ‘RANDY’ KUHL, JR., New York

DON YOUNG, Alaska

(Ex Officio)

ELEANOR HOLMES NORTON, District of

Columbia

MICHAEL H. MICHAUD, Maine

LINCOLN DAVIS, Tennessee

JULIA CARSON, Indiana

JAMES L. OBERSTAR, Minnesota

(Ex Officio)

(III)

(V)

CONTENTS

TESTIMONY

Page

Goldstein, Mark L., Director of Physical Infrastructure Issues, U.S. Government Accontability Office .................................................................................... 9

Mecham, Leonidas Ralph, Director, Administrative Office of the U.S. Courts

and Secretary to the Judicial Conference of the United States ....................... 9

Moravec, F. Joseph, Commissioner, Public Building Services, U.S. General

Services Administration ...................................................................................... 9

Roth, Hon. Jane R., Judge, U.S. Court of Appeals for the Third Circuit,

and Chair, Judicial Conference Committee on Security and Facilities ........... 9

PREPARED STATEMENT SUBMITTED BY A MEMBER OF CONGRESS

Oberstar, Hon. James L., of Minnesota ................................................................. 89

PREPARED STATEMENTS SUBMITTED BY WITNESSES

Goldstein, Mark ....................................................................................................... 39

Mecham, Leonidas Ralph ........................................................................................ 56

Moravec, F. Joseph .................................................................................................. 79

Roth, Hon. Jane ....................................................................................................... 92

SUBMISSIONS FOR THE RECORD

Mecham, Leonidas Ralph, Director, Administrative Office of the U.S. Courts

and Secretary to the Judicial Conference of the United States:

How the Judiciary Budgets for its Needs, report .............................................. 67

GSA Rent as a Percentage of the FY 2004 Budget, chart ................................ 69

FY 2004 Rent Cost Comparison (in millions), chart ......................................... 70

Owned and Leased Office Area by Agency Within the United States, September 2003, chart ........................................................................................... 71

Response to a question from Rep. Shuster ........................................................ 72

Clerks’ Offices Reporting a Schedule of Reduced Hours in Effect, chart ........ 75

Unscheduled Temporary Office Closings and Other Reduced Hours Reported by Clerks, chart .................................................................................... 77

Roth, Hon. Jane R., Judge, U.S. Court of Appeals for the Third Circuit,

and Chair, Judicial Conference Committee on Security and Facilities, response to a question from Rep. Norton concerning the Design Guide ............. 33

ADDITIONS TO THE RECORD

Letters ...................................................................................................................... 99

Present Value Analysis of West Palm Beach/Ft. Lauderdale Combined Courthouse, chart .......................................................................................................... 105

(1)

THE JUDICIARY’S ABILITY TO PAY FOR

CURRENT AND FUTURE SPACE NEEDS

Tuesday, June 21, 2005

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON

ECONOMIC DEVELOPMENT, PUBLIC BUILDINGS AND

EMERGENCY MANAGEMENT, COMMITTEE ON

TRANSPORTATION AND INFRASTRUCTURE,

WASHINGTON, D.C.

The subcommittee met, pursuant to call, at 1:00 p.m., in Room

2167, Rayburn House Office Building, Hon. Bill Shuster [chairman

of the subcommittee] presiding.

Mr. SHUSTER. The Subcommittee will come to order.

I would like to welcome you all here today. Before we begin today’s topic, I want to express concerns that I have with the events

of last week. Our hearing and markup was canceled for one significant reason, and that is the apparent inability of GSA to deliver

the capital investment and leasing program in a timely and accurate fashion. This includes the late delivery of the capital program

itself, answers to written questions, and the agency’s testimony.

About half of the program was officially submitted to the Committee on May 13, 2005. According to GSA’s own records, this is

the second latest submission in the last ten years. This is unacceptable, especially when you consider that those projects were identified in the President’s budget submission in February. We only just

received the leasing portion of the capital program last week and

there are still going to be more lease prospectuses sent up later

this summer.

On May 26, members of our staff met with GSA to review the

capital program. And following this meeting, a number of questions

were submitted to the agency to clarify the scope, cost, and need

for several projects, as well as to clarify some apparent errors and

omissions. The answers to these questions were slow in coming,

were in some instances incomplete or themselves inaccurate, and

in one instance an answer was not received until just yesterday

morning, nearly three and a half weeks after the initial request

was made.

Finally, the testimony we were supposed to receive for last

week’s hearing was not submitted until the day before the Subcommittee was to meet. This, despite the fact that GSA was notified of the hearing informally more than three weeks before the

hearing and formally over a week before the hearing.

We do not take our role in this process lightly. It is very important that we have sufficient time to review information submitted

to the Committee before we act, and before we ask others to act.
2

The system of checks and balances begins to break down when this

Committee is not afforded full opportunity to conduct oversight and

become fully acquainted with the business before it.

I am very concerned over what is happening at the GSA that

would allow such a late submission of basic information. We should

not have to hound the agency for answers to very simple questions,

like how much space is in a proposed building project, or how much

is the project going to cost. While I am aware that there is a bureaucratic process that must be followed for information to be submitted formally, it seems that when the issue is one that is important to the GSA you can turn it around very quickly.

I am going to work with Ms. Norton, whom I know is just as

upset about this as I am, to see if we cannot figure out a solution

that will ensure that we receive this important information much

earlier in the year which will give us ample time to review proposed projects, ask questions, and have our questions answered in

time to act on them.

I would now like to turn to the topic of today’s hearing, which

is the ability of the judiciary to pay for its current and future space

needs.

Historically, this Committee has been very accommodating to the

judiciary. It has been, and continues to be, a priority for this Subcommittee to build and maintain courthouses to ensure that the judiciary has the space it needs to fulfill its mission. We have worked

with the judiciary and the GSA to bring 46 new courthouses and

annexes on line in the last 10 years, at a cost of $3.4 billion. We

also have 14 projects funded or in progress, at an additional cost

of nearly $2 billion. We have done so with the firm expectation that

the judiciary, like every other Federal tenant, will continue to pay

for the space that they occupy so that we may meet the space

needs of every participant in the Federal Buildings Fund.

The Federal Buildings Fund was created not only to maximize efficiencies in construction and maintenance of buildings, but also to

ensure that the occupants acquired new space in a responsible

manner. By requiring tenant agencies to pay for the space that

they occupy, we encourage the kinds of hard choices that the judiciary and the Committee are discussing today. In this fashion, the

Federal Buildings Fund is designed to balance the desire for more

and nicer space with the financial interests of the taxpayer.

We are here today to discuss the judiciary’s request to GSA for

a waiver of nearly $500 million in annual rental payments. The judiciary is making this request based on the argument that it is facing a financial crisis. However, unlike many other Federal agencies

that have had to endure actual cuts over the last several years, the

judiciary has continued to receive annual increases in its budget.

According to its own testimony, the judiciary received a 4.7 percent

increase for fiscal year 2005, including specific money to ensure

that the judiciary could meet its obligations to GSA.

To me, a fiscal crisis is a situation where you cannot pay your

bills. That does not seem to be the case here. Over each of the last

four fiscal years, the judiciary has continued to receive budgetary

increases. While I am aware that you have been forced to let some

staff go, I am also aware that you indicate in your testimony that

you have brought back a significant number of those employees.
3

The relevant appropriations subcommittee marked up your budget last week and it appears that you have received a 5.4 percent

increase over your fiscal year 2005 levels. Additionally, this mark

also included a specific increase in money to meet your obligations

to GSA, reflecting a conscious decision by the appropriators to ensure that you can meet these obligations.

Over the last 30 years, the judiciary’s rentable square footage,

that is the space that it is actually charged rent for, has grown

from 9.7 million square feet in 1976 to the current level of 39.5 million square feet, an increase of almost 400 percent. At the same

time the amount of space occupied by you is increasing, the space

of other agencies, while also increasing, has increased at a significantly lower rate.

Over the past five fiscal years, while the judiciary’s space has increased over 17 percent, the seven other largest GSA tenants have

seen a net increase of only 8.9 percent, and that includes Homeland Security which is just being stood up as an agency with large,

new space needs. Without Homeland Security, the six other largest

tenants have seen a net decrease of 6.9 percent.

Currently, the judiciary pays about $940 million for the space it

occupies. While the judiciary is the second largest GSA tenant and

pays the second highest amount in rent in absolute numbers, its

average cost per rentable square foot is relatively low, only about

$23.60, placing it 34th out of the 58 GSA tenant entities.

Without question, the continued construction of newer and larger

courthouses has contributed significantly to the judiciary’s escalating rental cost. I read with great interest Mr. Mecham’s testimony

where he mentioned that the judiciary’s unusable space has increased by 250 percent over the last 20 years. Unfortunately, over

the same time period the rentable space has increased by 280 percent.

I look forward to your testimony where, hopefully, you can provide more information on this. As I said before, it is not clear to

me that this is an urgent crisis that requires us to take drastic action that endangers the health of the Federal Buildings Fund. Despite the written testimony and other information provided by you,

the current budget situation is still not that clear. While the judiciary is facing some relatively lean times, it seems to be faring relatively well by continuing to receive annual increases in its appropriations.

I do believe that we must take our time and carefully examine

what options are available to reduce the cost of space. While I applaud the initial efforts you have made, I believe that further

changes may be necessary. I understand that GSA has offered a

number of proposals, and while they do not solve the long term

problem, they do provide some measure of temporary relief.

This cost-cutting review must occur with all the parties involved—the judiciary, the GSA, and Congress. Ultimately, the true

drivers of Government’s space costs for the judiciary are the

amount and quality of space it occupies. I am concerned that the

judiciary’s rent waiver request does not address either of these root

causes of its rent increases, but instead transfers the cost to other

Federal entities.
4

In doing our part, we are holding this hearing, we have requested a GAO audit, and we will again examine measures that

have previously been put on the table, including redesigning current projects, courtroom sharing, reforming the Design Guide, and

closing additional under-utilized space. I do not put all the responsibility on the judiciary, however. I am also interested to hear from

the GSA regarding what they can do to control the growth in rent

costs which have increased dramatically during this most recent

property market expansion. I support the notion of commercially

equivalent rent, but it may still be appropriate to review the current rent pricing policy to determine if this is the most efficient

way of achieving that goal.

This is a very important issue, and I look forward to hearing

from our witnesses today.

And with that, I would like to recognize our Ranking Member,

Ms. Norton from the District of Columbia, for any opening statement she might have.

Ms. NORTON. Thank you, Mr. Chairman. And I begin by associating myself entirely with your opening remarks. I would like to lay

out my concerns as a member of this Committee, however, for 15

years.

I appreciate that you have been able finally to schedule this

hearing because this topic is of concern to all Members of Congress,

not simply to this Subcommittee, because it concerns the cost of

running Government. At a time when the Administration and the

Congress have put themselves under a very strict discipline that in

fact is eliminating costs and cutting programs, about the last thing

we would want to do, of course, is to do anything that would increase the deficit or bankrupt the Fund. It is difficult to imagine

that the Fund itself would be viable if this huge amount of money

were somehow exempted, this huge cost or amount was taken out

of the Fund.

As members of this Committee, we authorize appropriations for

the GSA for a variety of real estate transactions, including building

operations, repairs, alterations, construction of public buildings,

and leasing of projects to house the Federal workforce. The complaints are endless from Federal agencies about how backlogged

the Federal Government is in dealing with precisely these concerns

for Federal workers, 200,000 of them in my District, but spread

throughout the United States of America. These expenditures created Federal obligations of almost $7.8 billion in fiscal year 2006.

To help fund these real estate expenditures, in 1975 Congress

passed the Public Buildings Act Amendments of 1972 that created

and established the Federal Buildings Fund. The Fund is the critical intergovernmental revolving fund that finances the cost of acquiring and managing Federal Government real estate and real

property activities for those properties under the custody and control of the GSA.

The Fund receives its revenue from rental charges assessed to

Federal Government occupants for space they occupy in public

buildings. By law, the Administrator of GSA sets the rates to approximate commercial rates for comparable office space. It is a tremendous hardship on many Federal agencies but it applies across
5

the board. Tenants pay a user charge which reflects the value of

the space.

While this approach may seem prudent and businesslike to us

now, in 1975 it was considered revolutionary for the Government

to adopt a way to pay for its space in a businesslike fashion that

took into account the needs and the rising costs. By having each

agency budget and pay for its own space, the Public Works and

Transportation Committee brought to the House floor a bill that

would establish more stringent controls over space usage. Thus, the

Fund replaced direct appropriations.

Imagine, if you are paying for space out of your budget, then, of

course, like paying for space in your home, you have an incentive

to do what is necessary to conserve the space for the least cost; for

example, sharing space. That is why families have two kids in one

bedroom when they would really like to have every child with her

own bedroom. Although a series of caps imposed both by Congress

and various Administrations over the past 30 years have cost the

Fund approximately $4 billion in loss of revenue, and thus impeded

the Fund’s ability to be as robust as envisioned by Congress when

it passed the Act, in fact, the Fund has performed well and as intended under the circumstances.

To operate the Fund, GSA has established a system to appraise

comparable properties, estimate rent, bill agencies, collect the rent,

resolve rent problems, process the bills, and deposit revenues. The

agency also established in its pricing policy for Government-owned

space a rent guarantee. Further, GSA advises its tenants a full two

years in advance of the agency’s expected rent charges.

Mr. Chairman, I present this information in the context of today’s hearing in which the Subcommittee will hear why the Administrative Office of the United States Courts has petitioned GSA to

waive $483 million in real estate charges incurred by the courts.

On December 3, 2004, Mr. Mecham and Judges Roth and King sent

a letter to Administrator Perry requesting that the Administrator

use his authority ‘‘to exempt the Judicial Branch from all rental

payments except for those required to operate and maintain Federal Government buildings and related costs, to defray the cost of

tenant improvements in buildings 25 years or older, and to defray

any required lease payments for court facilities.’’

Since the December request, it is my understanding that both

GSA and OMB has rejected the request for a waiver. Thus, it

would be necessary, if the Committee were to act in favor of a

waiver, for us to overcome extraordinary circumstances and continue a harmful precedent, which, according to GAO, is one of the

primary reasons why the Federal Buildings Fund cannot meet its

construction obligation requests for Federal buildings now.

The courts are concerned that their rent bill is excessive and

growing. And since their salaries and expenses come out of the

same account, employees are being laid off. Mr. Chairman, from

1983 until 2005 the court’s rent bill has escalated from approximately $108.5 million to $938.5 million, and their space has increased over the same period from approximately 10.8 million

square feet to 39.9 million square feet in 2005.

By way of comparison, if the Legislative Branch had increased its

space as much, we would have about a dozen new Rayburn Build-
6

ings, including parking. The GSA will present information to justify why the agency has not granted the request and will discuss

their suggestions for long term and short term solutions, and we

welcome their testimony on these subjects.

The Committee did not hear or know about this extraordinary request until early January 2005. Chairman Shuster, I would like to

point out that one of the inequities mentioned by the courts in

their testimony in support of their request is that Congress does

not pay rent to GSA. This is astonishing to me. As an eight term

member of this Subcommittee and participate literally in dozens of

AOC budget hearings, that the AOC does not know that the Public

Buildings Act applies only to activities in the public buildings a defined by the Act under the custody and control of the General Services Administration.

Additionally, any member who leases space from GSA in Federal

buildings in his or her district certainly knows that Members of

Congress definitely do pay into the Fund. I pay into the Fund every

year. We do not get a free ride, nor do we petition for exemptions.

Another notion introduced by the courts is the idea that somehow the rent payments are mortgage payments and at the end of

a specified time the courts will ‘‘own the buildings.’’ Nothing could

be further from the intentions of the 1972 Act. Congress clearly intended for real property activities to be funded from a revolving

fund, not funds appropriated to each agency. That is what we reformed from.

In fact, Congress intended that real property be owned and operated in the name of the Federal Government alone, not individual

agencies. Moving away from individual ownership to a more general ownership was intended to create economies of scale and better management.

Mr. Chairman, as you are aware, in March 2005, you and I and

Chairman Young and Ranking Member Oberstar wrote to GSA

urging them not to grant any such waiver. Further, on April 4,

2005, we wrote to the General Accounting Office and requested

that they conduct a review to determine how the AOUSC plans and

accounts for rent, the reasons for the rent increase, including how

GSA calculates rent, and the impact a permanent rent exemption

would have on the Federal Buildings Fund. Committee staff has

met with GAO and they are proceeding with the assignment.

Mr. Chairman, as I previously mentioned, I have served on this

Subcommittee since being elected to Congress in 1990, I came in

1991. Prior to my congressional service, I served as chair of the

United States Equal Employment Opportunity Commission. One of

the first things I learned was not to budget by caseload. And one

of the first things we got when I came to the Agency that was

drowning in backlog was a one-time increase to deal with that

backlog and with the institution of efficiencies.

I promised not to ask for another increase during my entire time

in the Agency, and did not do so, because we then proceeded to

wipe away the notion that increase in caseload produces the need

for increase in space, which of course would be a never ending expense to the Federal Government and just the wrong way to force

efficiencies on agencies and on branches of Government. With a

growing population, expanding definition of Federal crimes, and
7

limited resources, the courts must quickly learn that there need to

be other ways to be inventive and efficient.

Since coming to this Committee I have seen first-hand how involved the Committee has been with court issues. During the early

1990s the Committee was instrumental in forcing the AOC to

change the statistical model it used to calculate its space requirements. The Committee supported and applauded GSA’s effort when

the agency set up an office devoted specifically to courts management. During the latter part of the Clinton Administration, when

the courts received no Administration funding requests, we worked

closely with the appropriators to maintain a modest level of funding to keep projects moving in the pipeline.

Over the last decade, we have tried mightily to correct and control spending on court projects. Gone are the projects that built private kitchens for judges, excessive chamber space and lavish interior finishes, and infamous private boat docks. However, this recent

request for such a considerable rent waiver raises again significant

policy issues of how much space GSA is building for the courts,

how often courtrooms are in actual use, what the caseload justification is to acquire new space, how electronic filings and other technology have impacted on space requests, and how much space has

been saved due to sharing of courtrooms.

This request raises again legitimate issues regarding checks and

balances in processing requests for court construction. How often

does the Administrative Office deny a request for deviation from

the Design Guide to provide additional ceremonial courtrooms?

Who views or reviews the Design Guide for reasonableness regarding space and interior finishes? Is there a series of checks and balances that can assure the taxpayers’ money is well spent? And if

I may say to the GSA, the GSA has a long history of giving special

treatment to the courts and allowing the courts to essentially run

itself. I wonder how much of this is due to the way GSA has handled, and perhaps continues to handle, the courts.

The courts are a separate branch of Government. My background

is as a constitutional lawyer and as a law professor at Georgetown

University Law Center who is fully tenured. I have very great appreciation for the separation of powers. I submit that the separation of powers has nothing to do with the rental of space. It has

to do with policy matters and constitutional matters committed to

courts in cases and case law, not on rent.

For example, Mr. Chairman, I regret to say, we have seen very

little, if any, savings due to sharing. Because even after 15 years

of bipartisan Committee support for this common-sense suggestion,

there still is no support within the courts to implement it that we

have been able to see.

In 1997, in a GAO report to this Committee, the GAO recommended that the judiciary establish criteria for determining effective courtroom utilization and a mechanism to collect data and

then use this data and analysis to explore where the one judge, one

courtroom practice is needed to promote efficient courtroom management. Again, in 2002, the GAO found that the judiciary’s policies recognized that senior district judges with reduced caseloads

were the most likely candidates to share courtroom. But, unfortunately, the courts decided to do nothing.
8

Judge Roth, in testimony on Page 4, links efficiency with the one

judge courtroom concept. Yet, according to the GAO, the courts

have no data to support the link. It is confounding to me to imagine any legitimate effort to control space will succeed if there is no

effort to collect and analyze data on such an apparently simple but

effective suggestion. In fact, some data suggests we are over-building with some courthouses having excess capacity the day they are

occupied. Mr. Chairman, none of us want to see slippage back to

the excesses of the past. But it does not take much to see links between the amount and quality of space and an increasing rent bill.

I am very eager to hear from our witnesses this afternoon. I especially want to hear from GSA about its suggestions to control

court costs, and a reaction from the courts to these specific suggestions. I will have, Mr. Chairman, several suggestions of my own

and documents I would like to insert into the record. I have some

suggestions regarding remedial action.

I would finally like to note that I am disappointed that the Administrator did not see fit to appear before the Subcommittee today

on this issue which is essential to the well-functioning of the Federal Buildings Fund. It is my understanding that the Administrator and the agency were notified almost a month in advance of

this hearing, and I believe there was ample time for him to afford

his schedule. Thank you, Mr. Chairman.

Mr. SHUSTER. I thank the Ranking Member. I appreciate your

knowledge and experience and insight on the issue. I know we will

be relying heavily on that as we move forward.

I just want to alert everybody that we are going to probably have

a vote in five minutes. So we will have to take a recess when we

do that, about a 15 minute recess. But I will finish up with the

opening statements.

I recognize Mr. Michaud.

Mr. MICHAUD. Thank you very much, Mr. Chairman. I want to

once again congratulate you on assuming the Chairmanship of this

Subcommittee. I have the greatest confidence in your leadership,

working with our Ranking Member, that we will have a very productive year and am anxiously awaiting working with both of you.

I also want to say I associate myself with both your remarks and

the Ranking Member’s remarks, and would ask unanimous consent

to have my opening statement submitted for the record.

Mr. SHUSTER. So ordered. Mr. Davis.

Mr. DAVIS OF TENNESSEE. I, too, applaud the accolades that my

good friend Mike has given. We do have a different language that

we speak, obviously, as you can tell, at least our dialect is somewhat different. Mr. Chairman, I look forward to your leadership of

this Committee and have been very much pleased so far with your

willingness to let each of us have our say during the Subcommittee

meetings.

I look forward with great anticipation to the testimony that we

are about to hear. I was a Federal employee once. I worked with

the Soil Conservation Service and Farmer’s Home and we rented

office space. And I am just kind of waiting on the information you

are about to give us and how you can relate to what my experience

has been up until 1977, shortly after college in 1966, with eleven

years that I worked with an agency of the Federal Government.
9

And now I work with another agency called the U.S. House. One

of the reasons we do not lease from the local Federal courthouse,

we find our space is much more reasonable, larger than some other

area. So I look forward to hearing the comments that you make.

Mr. SHUSTER. Thank you, Mr. Davis.

They are saying we are going to have a vote momentarily. So

what I would like to do is recess now. That would give us the opportunity to head over there and vote real quick and then come

back. So we will take about a 15 or 20 minute recess and we should

be right back. I would encourage the members to head over now

so we can vote and get back here. Thank you.

[Recess.]

Mr. SHUSTER. The Subcommittee will come back to order.

First, I want to apologize to our witnesses. We got a

miscommunication from the floor, so it obviously was not 15 minutes, it was about 45 minutes. So my apologies for delaying the

continuation.

We will now turn to our witnesses for today’s hearing. So that

each witness will have the opportunity to both hear from and respond to everyone else, we will only have one panel of today’s witnesses.

Appearing on our panel, we have Mr. Mark Goldstein, the Director of Physical Infrastructure Issues at the General Accounting Office; the Honorable Jane Roth, a judge who sits on the United

States Court of Appeals for the Third Circuit, and also serves as

the Chair of the Judicial Conference’s Committee on Security and

Facilities; and Mr. Joe Moravec, Commissioner of Public Buildings

Service of the General Services Administration; and Mr. Ralph

Mecham, Director of the Administrative Office of the United States

Courts and Secretary to the Judicial Conference.

I would like to welcome Judge Roth, Mr. Goldstein, and Commissioner Moravec back, and also welcome Mr. Mecham, his first time

before the Committee. I would ask unanimous consent that our witnesses’ full statements be included in the record. And without objection, so ordered. And since your written testimony has been

made part of the record, the Subcommittee requests that you limit

your summary to five minutes.

We will proceed in order and we will start with Mr. Goldstein.

You may proceed.

TESTIMONY OF MARK L. GOLDSTEIN, DIRECTOR OF PHYSICAL

INFRASTRUCTURE ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE; HON. JANE R. ROTH, JUDGE, U.S. COURT OF

APPEALS FOR THE THIRD CIRCUIT, AND CHAIR, JUDICIAL

CONFERENCE COMMITTEE ON SECURITY AND FACILITIES;

F. JOSEPH MORAVEC, COMMISSIONER, PUBLIC BUILDING

SERVICES, GENERAL SERVICES ADMINISTRATION; AND LEONIDAS RALPH MECHAM, DIRECTOR, ADMINISTRATIVE OFFICE OF THE U.S. COURTS AND SECRETARY TO THE JUDICIAL CONFERENCE OF THE UNITED STATES

Mr. GOLDSTEIN. Thank you, Mr. Chairman, Ranking Member

Norton, and members of the Subcommittee. Thank you for the opportunity to testify on our work related to Federal courthouse construction. My testimony today will summarize some of our previous
10

work on this topic and provide information on the Federal Buildings Fund, and our ongoing work related to the Federal Judiciary’s

request for a permanent annual exemption of $483 million from

rent that the General Services Administration charges to the judiciary to occupy space in courthouses.

GSA owns Federal courthouses and funds courthouse related expenses from the Fund, which is the revolving fund used for GSA

real property services, including space acquisition and asset management activities for Federal facilities that are under GSA control.

The exemption the judiciary is seeking would represent about half

of its 2004 rent payment of $909 million. My testimony today will

highlight the following points:

First, GAO’s courthouse construction work to date has focused

primarily on courthouse costs, planning, and courtroom sharing. In

the 1990s, we found that the wide latitude in choices made by GSA

and the judiciary often resulted in expensive features in some

courthouse projects. Since then, the judiciary has placed greater

emphasis on cost consciousness in its guidance for GSA.

In the 1990s we also found that the judiciary’s long-term space

projections were not sufficiently reliable, and that its five year plan

did not reflect all urgently needed projects. Since then the judiciary

has made some changes we recommended in an effort to improve

projections and planning.

With regard to courtroom sharing that could help reduce cost by

limiting space requirements, we found that the judiciary did not

collect sufficient data to determine how much sharing could occur.

The judiciary disagreed with this finding and the related recommendation.

Second, GSA has historically been unable to generate sufficient

revenue through the Fund and has struggled to meet the requirements for repairs and alterations identified in its inventory of

owned buildings. By 2002, the estimated backlog of repairs had

reached $5.7 billion, and consequences included poor health and

safety conditions, higher operating costs, restricted capacity for

modern information technology, and continued structural deterioration.

GSA charges agencies rent for the space they occupy, and the receipts from the rent are deposited in the Fund and used for the

purposes of the Fund. Restrictions imposed on the rent GSA could

charge Federal agencies have compounded the agency’s inability to

address its backlog in the past. Consequently, we recommended in

1989 that Congress remove all rent restrictions and not mandate

any further restrictions. And most rent restrictions have been lifted

since that time.

The GSA Administrator has the authority to grant waivers, and

all the current exemptions are limited to single buildings or were

granted for a limited duration. Together, these current exemptions

represent about $170 million, roughly one-third of the $483 million

permanent exemption that the judiciary is requesting from GSA.

The judiciary has requested the exemption because of budget problems that it believes its growing rent payments have caused. GSA

data show that one reason the judiciary’s rent is increasing is that

owned space it occupies is also increasing, about 15 percent in just

the last five years.
11

Since the early 1990s, GSA and the judiciary have been carrying

out a multibillion dollar courthouse construction initiative to address the judiciary’s growing needs. In 1993 the judiciary identified

160 court facilities that required either the construction of a new

building or a major annex to an existing building. From fiscal year

1993 through fiscal year 2005, Congress appropriated approximately $4.5 billion for 78 courthouse construction projects. Since

fiscal year 1996, the judiciary has used the five year plan to

prioritize new courthouse construction projects. Its most recent five

year plan, covering fiscal year 2005 through 2009, identifies 57

needed projects that are expected to cost $3.8 billion.

It is important to note that the Public Buildings Amendment of

1972 made several important revisions to the Federal Property Administrative Services Act. The 1972 law created a new revolving

fund, later named the Federal Buildings Fund. Moreover, it required agencies that occupy GSA-controlled buildings to pay rent to

GSA, which is to be deposited in the revolving fund to be used for

GSA real property and services. GSA charges agencies for space

based on commercial rents from appraisals of facilities it owns, and

the actual lease amounts for facilities it leases on the tenant’s behalf. Rent is not generally charged on a cost recovery basis in order

to provide sufficient monies for the purposes of the Fund. The rent

requirement is intended to reduce costs and encourage more efficient space utilization by making agencies accountable for the

space they use.

GSA proposes spending from the Fund for courthouses as part of

a President’s annual budget request to Congress, and in most years

Congress has also provided the Fund with additional funding to

cover additional property portfolio needs, including construction,

repairs and alterations, and other activities.

Courthouse projects continue to be costly, and increasing rents

and budgetary constraints have given the judiciary further incentive to control its costs. According to the judiciary, rent currently

accounts for just over 20 percent of its operating budget and it is

expected to increase to over 25 percent of its operating budget in

fiscal year 2009, when the rental of new court buildings are included. In September 2004, the judiciary announced a two year

moratorium on new courthouse construction projects as part of an

effort to address its increasing operating costs and budgetary constraints.

In February 2005, the GSA Administrator declined the judiciary’s request for a rent exemption because GSA considered it unlikely that the agency could replace the lost income with direct appropriations to the Fund. In April of 2005, this Subcommittee requested that GAO examine issues associated with the judiciary’s

request for a rent exemption, including how rent payments are calculated by GSA and planned and accounted for by the judiciary,

what changes, if any, has the judiciary experienced in rent payments in recent years, and what impact would a permanent rent

exemption have on the Fund. Our work on this request is underway.

Mr. Chairman, this concludes my prepared statement. I would be

happy to answer any questions that you or members of the Subcommittee may have. Thank you.
12

Mr. SHUSTER. Thank you, Mr. Goldstein.

Now, Judge Roth, you may proceed.

Judge ROTH. Thank you, Mr. Chairman, and members of the

Subcommittee. 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 issue of the judiciary’s

ability to pay for current and future space needs.

Director Mecham will discuss the financial hardships facing the

judiciary and the adverse impact of rent on court operations. I

would like to focus on the multiple cost-containment initiatives

being pursued by the Committee on Security and Facilities in order

to control the building program and reduce the amount of rent the

judiciary pays to GSA both now and in the future.

One of the major components of a cost-containment strategy approved by the Judicial Conference of the United States in September 2004 in an attempt to gain greater control over the judiciary’s

budget was to control space and facilities costs for the judiciary.

The courts recognized the significant impact rent was having on

the judiciary’s overall budget. Several initiatives have been pursued by the Committee on Security and Facilities: a two-year moratorium on the courthouse construction program, including a request

that the GSA cease the preparation of new feasibility studies; a review of the standards in the U.S. Courts Design Guide; a reevaluation of the long-range planning process; and a request to chief

judges and circuit judicial councils to cancel pending space requests

and to recommend the closure, whenever possible, of visiting facilities without a full-time resident judge.

First, let me explain the moratorium. In September 2004, the Judicial Conference approved a two-year moratorium on the planning,

authorizing, and budgeting for courthouse construction projects and

new prospectus-level repair and alteration projects to enable a reevaluation of the long-range planning process. This reevaluation includes an assessment of the underlying assumptions used to project

space needs and how courts can satisfy those needs with minimal

costs in a short-and long-term constrained budgetary environment.

The Judicial Conference applied the moratorium to 35 courthouse

projects on the judiciary’s five-year plan for courthouse construction

that had not received any funding, and to 7 projects with congressional appropriations and authorizations that were not yet in design. Eight projects on the five-year plan were not subject to the

moratorium because they were in the midst of design. They were

permitted to proceed with design but only after the courts involved

entered into discussions with their circuit judicial councils and the

Administrative Office of the U.S. Courts about ways to reduce the

scope of the projects. The only projects not subject to the moratorium are the four emergency projects—Los Angeles, California; El

Paso, Texas; San Diego, California; and Las Cruces, New Mexico.

The only one of these emergency projects for which the judiciary is

seeking construction funding in fiscal year 2006 is San Diego, California.

In March of 2005, the Judicial Conference also voted to extend

for one year a moratorium it had approved in March 2004 on nonprospectus space requests.
13

As to the Design Guide, the Committee on Security and Facilities

is reviewing the space standards within the Design Guide with an

emphasis on controlling costs, examining existing space standards

to determine if they are still appropriate, meeting the functional

space needs of the courts, and space- sharing arrangements. The

Committee met last week and considered several initial amendments to the Design Guide. If approved by the Judicial Conference,

these changes would save the judiciary rent on new buildings that

would be designed according to these new design standards. In the

months to come, the Committee will be examining technical aspects, such as lighting and acoustics, atrium sizes, and other areas

that will save the judiciary additional money in rent.

Turning to long-range planning, in September 2004, the Committee on Security and Facilities began a reevaluation of the longrange planning process, including a reexamination of assumptions

regarding staff and judgeship growth as well as the space standards used for estimating square footage needs. The Committee

plans to review the current criteria for scoring new courthouse

projects and develop new criteria, if needed. The current scoring

process, which uses four Judicial Conference approved criteria—

year out of space, security concerns, judges impacted, and operational concerns—will be reviewed to consider personnel, workload,

operational hot spots, and extended occupancy.

Let me add that I think the incident yesterday in Seattle demonstrates very well the importance of the security requirements in

building new courthouses. As reported in the Seattle Times today,

from the cameras that detect visitors even before they enter the

building to the bomb-proof glass in the lobby, to the redundant

structural system that prevents collapse, Seattle’s new federal

courthouse was designed with threats in mind. Yesterday’s incident, in which a man armed with an inactive hand grenade was

fatally shot, was the first real test of the new building’s security,

and according to an initial review, the system worked.

Finally, we are considering the release of unneeded space and

cancellation of pending space requests. In October 2004, in order

to immediately contain space rental costs, I wrote all chief judges,

requesting that they cancel pending space requests whenever possible. Recognizing the dire financial straits faced by the courts,

chief judges did in fact cancel or defer $6 million in space requests.

In addition, the Committee initiated its biennial review of nationwide space assignments that set forth specific criteria to examine

the need for non-resident visiting judge facilities and release of

space in probation and pretrial services offices.

As you can see from the litany of cost-containment initiatives

currently being studied by the Committee on Security and Facilities, controlling the judiciary’s current and future space costs is an

issue that my committee takes very seriously. There is no question

that the Judicial Conference recognizes the significant impact the

buildings program is having on the judiciary’s budget and the need

to control rental costs both now and in the future. While the initiatives I have described are a good start, rental relief from GSA,

which will be described more fully by Director Mecham, is critical

to the continued functioning of the courts both now and in the future.
14

I thank you for the opportunity to testify before the Subcommittee today. I would be happy to answer any questions.

Mr. SHUSTER. Thank you, Judge.

Mr. Moravec, you may proceed.

Mr. MORAVEC. Thank you, Mr. Chairman, Ms. Norton, members

of the Subcommittee. First, I want to apologize to you, Mr. Chairman, on behalf of the General Services Administration, for not living up to your expectations of us, and indeed, not living up to our

own expectations of ourselves. We understand very well the vital

importance of the due diligence process that the Committee engages in in connection with the prospectus review. We know that

you need time to do your work and you need accurate answers and

timely responses from us in order to do that. I agree that this is

unacceptable and I personally pledge that we will do much better

in the future.

Thank you for the invitation to speak with you for the record in

response to the judiciary’s request to reduce by more than half

their rental obligation to the General Services Administration. Let

me first say how proud GSA is of our historic institutional relationship with the courts. In general, it has been, especially in recent

years, a highly productive and cordial relationship.

The courts are by space occupied among our largest and certainly

our fastest growing customer. For the past ten years, we have supported the judiciary in the delivery of 46 new courthouses or annexes, representing 17 million square feet of new space. We have

an additional 34 new courthouse projects representing an additional 10 million square feet in the pipeline, 11 under construction,

3 funded for construction, and 11 in design development. These

structures are aesthetic, functional, secure, and sustainable additions to our inventory and a source of pride to their communities.

But along with growth and improved quality of space has come

increased costs in the form of a higher rent bill, not just proportionately higher either in actual or relative terms, but higher. That is

the way our market based system works. We are sympathetic to

the spending constraints being placed on the judiciary by the

present austere budget climate. But, of course, all of our Federal

customers, given the current pressure on civilian discretionary

spending, are experiencing their own form of this pain, and we are

doing our best to respond to support them.

Although no one really loves their landlord, it is simply not fair

to blame GSA for these circumstances, and we strongly oppose the

judiciary’s request for a permanent rent exemption. Insolvency in

one branch of Government cannot be cured by creating it in another. If Congress directs us to grant the courts, as they have requested, unilateral relief of nearly half a billion dollars in the first

year alone, it will seriously impair our ability to serve them and

the dozens of other agencies that depend on us for their workplace.

The deterioration of Government housing stock will accelerate,

agency missions will suffer, and the taxpayers’ equity value in Government buildings will shrink. Additionally, other agencies would

doubtless be encouraged to seek similar legislative relief or withdraw from the system completely, and the Federal Buildings Fund,

which has served Government so well for over 30 years, would ulti-
15

mately collapse, leading to much higher costs for the taxpayer. A

real mess.

We thank the Subcommittee for your support in urging appropriators to exercise extreme caution in evaluating this proposal, and

for requesting that the GAO report on an independent analysis of

the relevant issues. We welcome the study and we are confident

that the results will support a denial of the judiciary’s request.

The Federal Buildings Fund is an ingeniously conceived intergovernmental revolving fund created by Congress in the early 1970s

that, by replicating the conditions of the open market, has served

Government and the taxpayer very well. It is good public policy. It

is the envy of governments of other industrialized democracies. The

Federal Buildings Fund provides a consistent and sustainable

source of funding for the construction, repair, operation, and lease

of space, and it encourages agencies to hold down costs by enabling

them to plan for their future needs and allocate resources more efficiently. By requiring GSA to charge our tenants commercially

equivalent rents and fees, the Fund emulates best industry practice

and enables a businesslike approach to life cycle real property asset

management.

It is important to note that the Fund was intended by Congress

to produce cash flow for reinvestment in the upkeep of Government

buildings and the construction of new buildings, and to reduce, as

it has over the years to under 5 percent, the need for direct appropriations to the Fund by Congress. It is specifically not a simple

cost recovery system. It was intended by Congress to produce funds

for reinvestment.

It is also important to note that the Federal Buildings Fund is

not the real open marketplace. It is a quasi-market mechanism, a

system that supports leveraging the entire Government’s buying

power, consolidation of real estate acquisition and management expertise, and the maintenance of some consistency across Government in the quality of the workplace. It must be remembered that

it is a system that we are charged with operating with professionalism and integrity that requires 100 percent participation to

be fully effective in delivering value. Because it is a system, it does

not provide the full flexibility of the open market and customers

cannot always see a direct benefit between what they are paying

and what they are getting, which we understand can be frustrating

to them.

We believe the GAO report when completed will attribute the

growth in the court’s rent primarily to their rapid growth in space

occupied, to improvements in the quality of space, the amortization

of their tenant improvement costs, and to market based increases

in rent as the economy has recovered from the real estate depression of the early 1990s. Except for the increase in market rents,

which we are required by law to charge, these factors are subject

to management by the judiciary at their discretion. They pressure

they are feeling in one sense simply proves that the system is

working.

One of the ironies of the court’s request is that the Federal

Buildings Fund has been serving the judiciary, if anything, disproportionately well, especially in recent years. In the last 10

years, while the courts have paid about 12 percent of the rent flow-
16

ing into the Federal Buildings Fund, they have received, on average, over 40 percent of new obligational authority for new construction, and for major repair and alterations funding, sometimes as

much as 60 percent in a single year, and about 20 percent, on average, of the minor repairs and alterations funding.

While we have been delivering four or five new courthouses a

year, over a million square feet on average of new upgraded space,

the courts’ rent has been increasing by about 6 percent a year.

Fairly modest, especially given the growth. On average, a pretty

modest increase. The average rent for all the space we provide the

judiciary, as noted in your opening remarks, both owned and

leased, is $23.60, which is only about $1 a square foot more than

the average of $22.58 which applies to all of our customers, which

places them as an agency in the mid-range of rent paying tenants.

In fiscal year 2005, with no direct appropriation to the Fund, we were given authority to obligate $548 million for new courts construction and major repair and alterations, and another $65 million

for minor repair and alterations. In fiscal year 2006, the President’s budget requests $360 million for courts construction and another $65 million for minor alterations, again against no anticipated direct addition by Congress to the Fund. Over $1 billion in

court construction funding straight out of the working fund for the

benefit of the judiciary in two years. It would seem to me that the

Federal Buildings Fund is working pretty well for the judiciary.

What can be done to reduce the rent pressure on the courts? A

number of things. We are committed to doing everything in our

power so long as it does not impair our ability to fulfill our mission

to lower the courts’ rent bill. Since last September when the courts

declared a moratorium on new courthouse construction, we have

been closely engaged with them in support of their effort to fundamentally reassess their facilities planning and budgeting process

and to redefine their Design Guide, which governs the size, shape,

and attributes of new courthouses. Judge Roth discussed these efforts in her testimony.

We have voluntarily hired a third party consultant to verify the

accuracy of the rent we are charging them, an analysis of about

2,700 billing records, which will be complete this summer. And although we do not expect there to be much of an impact, we will

immediately adjust for any errors or anomalies, and there are sure

to be some. We have already detected some.

We have offered to aggressively dispose of unused or under-utilized courthouses, to consolidate courts requirements wherever feasible, reduce the scope of new projects, reduce the level of finishes,

to spread out the impact of tenant improvement amortization costs,

to renegotiate existing leases in buildings we lease from the private

sector for the courts to take advantage of the favorable market

trends, and to reduce our fees on lease space that the courts agree

is non-cancelable. We estimate the savings to be obtained by these

measures to be in the tens of millions of dollars. These are the

kinds of activities which we are engaged with with our other customers.

These measures will not of course produce the immediate and

massive reductions in rent that the courts are looking to Congress

to provide them through legislation, but they are a start. We are
17

committed within our system to take every defensible measure to

assist our customer. That has been the pattern of our relationship.

I will be pleased to answer any questions you may have for me

this afternoon on this matter or on any other subject related to our

operations. Thank you.

Mr. SHUSTER. Thank you, Mr. Moravec.

Mr. Mecham, you may proceed.

Mr. MECHAM. Thank you very much, Mr. Chairman, Representative Norton, members of the Committee. First of all, thank you for

giving us this hearing. We consider this to be a great step forward

and we appreciate it. This Committee has been a long-standing

friend of the Judicial Branch of Government. Through your good efforts, when you recognized the Federal Buildings Fund was not

working, in 1991 you got behind the effort to fund buildings

through direct appropriations because there was only, according to

GAO, about $90 million a year available for construction and there

was a backlog of billions of dollarsin projects, including in the judiciary. So we thank you very much for your leadership in ensuring

that from fiscal year 1991 through 2004 courthouse construction

projects were funded largely from direct appropriations, not by Federal Buildings Fund revenue.

For the 20 to 30 years prior to 1991, we received virtually nothing from GSA for new buildings. It was only in fiscal year 1991

that we finally got the breakthrough, and we thank you for your

help.

I would also join Congresswoamn Norton in expressing appreciation for the fact that your Committee worked with us and with others during four years when funds for new buildings were not included in the President’s budget request. We worked very hard

with the Appropriations Committees and worked in tandem with

your Committee as well. During two of those years, no money was

appropriated. During the other years, however, $680 million was

appropriated for buildings through your good help, despite the opposition of GSA and the White House.

However, GSA still charges us rent on that $680 million even

though they did not do a thing to raise it. The same is true with

respect to the appropriations from fiscal years 1991 through 2004.

Our appropriations during that period were a wonderful $5.2 billion, as I recall, of which virtually all of it was funded through direct appropriations, because of inadequate money in the Federal

Buildings Fund.

Another thing I would like to thank this Committee for is the

Thurgood Marshall Building, where I work. It was back in 1990

that I actually made my first appearance here, Mr. Chairman, before Mr. Boscoe of California, who was Chairman at the time, and

Mr. Tom Petri of Wisconsin. We talked then about legislation on

this very same subject, because Mr. Boscoe had introduced a bill

to modify substantially our arrangement with GSA which would

have, had it and Senator Moynihan’s bill been approved, eliminated

the problem we now have on rental costs. We would have been in

much better shape.

But your Committee did authorize the Thurgood Marshall Building. It is one of the great buildings in Washington. We were in ten

buildings before that time; seven for the AO, three for FJC and the
18

Sentencing Commission, which was grossly inefficient. But your

Committee and your staff---I remember particularly Dick Sullivan

and Nancy Vitale---played a very important role with regard to this

building.

The financial crisis of the judiciary really began to hit in fiscal

year 2002 rather than 2004, because at that time we were already

running short of what we needed and we had to cut substantially

that administrative portion of the budget that we could cut. We are

labor intensive. Almost 62 percent of our budget goes to personnel

and 22 percent goes to rent, the highest of anybody in Government.

Congress pays about half a percent for rent.

The Executive Branch, on average, pays about two-tenths of one

percent of its budget for space. We pay 22 percent. We pay 39

times more for rent on a percentage basis than Congress does. So

rent is a big factor for us because of its sheer size. We recognize

it is based upon buildings that have been built, and we are grateful

for those buildings, which are really important to us.

By fiscal year 2004, we were really hit hard, because we had already cut our administrative areas---that 16 percent of our budget

where we could really make cuts---right to the bone for three years

in a row. That left us with only personnel to cut in order to pay

for rent. As a result, we lost 1,350 people, or 6 percent of our staff

in fiscal year 2004.

Because of the delay in Congress in passing a fiscal year 2005

appropriations bill, it took four months more before we had an appropriations bill, and we got it in an omnibus bill in late January

2005. Then, an across-the-board cut was made against us in our

appropriations bill. So, in fact, we lost 8 percent of our court staff,

amounting to 1,800 people. We are the only organization in the

United States Government that took that kind of cut, according to

Mr. Josh Bolten, the head of OMB. GSA was not cut. So it was a

very serious matter.

Mr. Chairman, may I comment for one second on the statement

that you made, correctly so, by the way, that our appropriations

have been increasing at about 4.5 percent. That is quite true. The

only trouble is we need over 5 percent just to stay even because

of built-in costs, such as COLAs, new judges coming on, changes

in judges, benefits costs, and substantial increases in GSA charges.

They hit us with an inflationary increase almost every year of

about 2 percent.

So all of these increases are built in and GSA money comes right

off the top. We cannot cut a nickel of that. Then Congress hit us

with about a 1 percent across-the-board cut in the fiscal tear 2004

appropriations bill, which took us down to where we had to start

firing people. We really took a double hit on the across-the-board

because the Congress insisted that we not cut the GSA appropriation for rent; we had to pay the full rent amount to GSA. So it is

an unfortunate situation that occurred. And frankly, it is not getting much better.

We were very pleased that the House Appropriations Subcommittee approved about a 5.4 percent increase for us for fiscal rear

2006. Our experience in recent years has been that the House is

the high water mark for us. That is where we do our best. We go

down in the Senate. And lately we have been going down in con-
19

ference because of these across-the-board cuts. So we are going to

work hard. What we do know right now is that $980 million in rent

will come right off the top for GSA. We cannot do a thing about

that.

So if we actually get down below our costs again, what are we

going to cut? We are going to be cutting people. I will be pleased

to show how many people were cut out of the staffs of each of your

courts. For example, Ms. Norton lost 13 percent of the people out

of her court because of the cuts that had to be made. And threr are

similar figures for every one of you, up or down, most of them

slightly below that, because we had to cut from personnel in order

to stay within budget.

So the financial crisis is with us and it looks like it is still going

to be with us. And even if it is not, the current Federal Buildings

Fund system is fatally flawed and ought to be radically changed.

It has never really worked. Back in 1980, all of our buildings were

given as sort of a free gift to GSA and Congress said, okay, these

are all fully paid for, but now you can charge rent on these anyway.

So then we had to start paying rents on buildings that had been

fully paid for. This was a completely new charge for us. But despite

that, there was not enough money available to take care of the

Federal Buildings program. So we literally had no buildings built

until fiscal year 1991 when you and the appropriators went to direct appropriations instead of using the Federal Buildings Fund

revenue to fund these buildings.

As I say, it is a fatally flawed program because it is not yielding

the revenue that is required to have a construction program. We

might as well be going for our own direct appropriations as to have

to go through GSA all the time because we can control that. We

cannot control what GSA does. I say that as an admirer of Mr.

Moravec and Mr. Perry, because we have had a good working relationship with them. We just happen to disagree on this particular

issue.

As we look now at the rental relief required, it would come to

about $483 million a year. If you compare that with the Federal

Buildings Fund, that would be 6.2 percent of its budget. We just

took an 8 percent cut in our staffing and had to fire people. So a

6.2 percent cut does not seem like a very big decrease to us. If you

look at it in terms of the total budget of the GSA, it is only 2.0 percent. We took an 8 percent cut in staff. So I cannot develop too

much sympathy for somebody who is taking less of a cut than we

have had to take in order to get us back in the financial arena that

we ought to be in.

As I say, we have to pay for buildings. We have to pay for amortization on these buildings---buildings that have been paid for one,

two, three, four, five times---GSA still factors it into our rent. The

latest thing we just discovered is that we are now charged the

equivalent of state and local property taxes on our buildings. Even

though GSA does not pay a nickel to those local governments, we

are forced to pay the equivalent of taxes in our rental payment. We

should not have to pay that. That costs us tens of millions of dollars a year for a fictitious payment for taxes because that is sought

as part of the commercial equivalent of rent.
20

As I said, we have to pay 22 percent of our court’s budget for

rent, contrasted to the Executive Branch which pays, on average,

less than 1 percent, and Congress, which pays less than 1 percent.

We recognize that we have only two tenths of one percent of the

frderal budget, yet we pay more money into the building fund than

any agency of Government except for Justice. They beat us by a

few million dollars, but that is only 3 percent of their budget. It

is 22 percent of our budget. So the entire system is fundamentally

unfair for the Judicial Branch.

We ought to change the program because the Federal Buildings

Fund, while it may have worked in some areas, certainly has not

worked for us and I do not think it is working for the system generally. We feel that the Federal Buildings fund needs to be radically changed. And certainly the Government Accountability Office

statement would lead one to think that as well.

Mr. SHUSTER. Could I get you to sum up here because we want

to get to the questions.

Mr. MECHAM. I am summing up right now. I get the signal. We

hope you will approve our rental request and that you will reform

the Federal Buildings Fund to really make it workable and fair for

the Judicial Branch of Government and for the rest of the people

who participate in it. Thank you.

Mr. SHUSTER. Thank you very much. That is what the hearing

is all about is to try to figure out fact from fiction and which information is the best on which to make these decisions. I appreciate

your talking about the Committee in years past. I, unfortunately

or fortunately, was not here in the past, so I can take neither credit

nor blame. I can only do that going forward.

I have several questions, as I am sure other members do, so we

will do five minutes and then we can go back with another couple

of rounds.

The first question that I have is to the GAO. Mr. Goldstein, could

you please give us your perspective, the judiciary has done a number of things to reduce their costs, both good and bad, can you sort

of give us your thoughts on what they have done. Has it been good?

Has it been bad? Has it been a mixed bag?

Mr. GOLDSTEIN. Certainly, Mr. Chairman. To use your words, I

would say it has probably been a mixed bag. The judiciary has over

the years improved how they do some planning activities. They

have instituted a five year plan; they have worked pretty closely

with GSA in helping GSA understand its needs and working to improve the utilization of the Design Guide, which is how they determine finishes and that kind of thing; and they have become more

cost-conscious in recent years as their budgets have become more

constrained.

But there certainly are other things that have been left undone,

based on the work that we have done in the past, including a development of information criteria and an analysis of data that

would help them understand how to better utilize their space, including the possibility of sharing courtrooms.

Mr. SHUSTER. I am sorry, did you do a study on space utilization?

Mr. GOLDSTEIN. We have done a number of studies on courtroom

sharing at the request of Congress over the years. We have had a

number of conclusions from that. We have done four reports here,
21

one in 1997, one in 2000, and one in 2002, those are the principal

ones.

In 1997, we indicated that the judiciary did not compile data on

how often and for what purposes courtrooms are used. They did not

have analytically based criteria for determining how and what

types of courtrooms are needed. They did not have sufficient data

to support their practice of providing a trial courtroom for every

district judge. And we recommended that they fully examine the

courtroom usage issue.

Mr. SHUSTER. Excuse me for interrupting you there. So you have

not done an analysis on space utilization, is that what you are saying?

Mr. GOLDSTEIN. We went in in 1997 and we took a look at the

kind of data that the judiciary did or did not have.

Mr. SHUSTER. Right. You attempted to do it but you did not have

the data?

Mr. GOLDSTEIN. The data did not exist.

Mr. SHUSTER. Right. So what you are telling me is we need to

get that data so that you can take a good look at space utilization.

Is that a correct statement?

Mr. GOLDSTEIN. That would be helpful. In fact, Mr. Chairman,

what we did is we recommended in 2000, after the courts did try

to do a study, they used a private contractor to try to develop a

study, but the study was not adequate, we disagreed generally with

them, and we recommended at that time that they develop the

data, and had recommended for Congress, actually a matter for

consideration, that Congress require the courts to develop this

data.

Mr. SHUSTER. Thank you. And either Judge Roth or Mr.

Mecham, could you describe the changes to the Design Guide that

are being proposed? And is the result going to be smaller courthouses or courtroom sharing? Is that in that review of the Design

Guide?

Judge ROTH. The Design Guide of course is directed at building

new courthouses, not the use of current courthouses. One of our

concerns in building a new courthouse, particularly in a growing

area, is to make sure there is going to be enough courtroom capacity in that building for ten years after the building is occupied and

to ensure the building has a permanent presence in the community. To build a courthouse with insufficient courtrooms in it to last

over a certain period of time would be a mistake. Another issue discussed in our meeting last week, for instance, was whether the

number of conference rooms we are planning are needed.

The proposals will be presented to the Judicial Conference. We

are looking at ways of using our space effectively and efficiently.

Until, however, these are approved by the Judicial Conference,

they would not be an official position of the courts.

Mr. SHUSTER. Judge, with all due respect, how can you determine the needs of your courthouses if we do not have a utilization

study being done on the courtrooms? What I continue to hear out

there is courtroom sharing is rejected by the judiciary. I have

talked to some judges who have said that is something we have got

to consider.
22

But once again, you are talking about the Design Guide and looking at effectively and efficiently using the courthouse space. It is

impossible to make those kinds of decisions without having somebody come in and say our courtrooms are utilized 100 percent capacity, 40 percent capacity, or whatever the number is. So is that

something that you are going to look at? I would encourage you not

only to look at it but get the numbers or get the figures, and we

have got to get the GAO in there to do a study on this. Because

that is critical to what we are talking about.

We can talk about a whole lot of things, but the numbers do not

bear out. We are spending more money for courthouses, I have got

numbers here that I alluded to in my opening statement, the judiciary’s personnel in 20 years has doubled, yet the total space you

occupy has almost tripled, but the useable space has only gone up

by 2.5 percent. That is an indication to me, and I am not an architect, I am not an engineer, I am not a guy from GAO who studies

these things, but it says to me that we are building these grand

courthouses and we are not utilizing them the way we should. So

could you comment on that, Mr. Mecham or Judge Roth?

Judge ROTH. If I could, an approach to the assessment of courtroom needs, such as the use of a queuing theory, might suggest

that one can simply add up the average number of hours that

judges spend in the courtroom and then calculate the number of

courtrooms needed if all of these courtroom hours were perfectly

distributed among fewer courtrooms. However, there are fundamental flaws with this notion. The complexity of the judicial

process and our adversarial system of justice, including very important unmeasurable factors such as the quality of justice, makes it

virtually impossible to quantify a judge’s need for a courtroom. Several studies have been attempted but none has reached a firm conclusion, and for good reason. The degree of independence and flexibility necessary for and inherent within the judicial process precludes an engineered solution.

When all the analysis is done, what remains is a fundamental requirement for judges to have ready access to a courtroom in order

to carry out their mission. And our policy of providing a courtroom

for every active judge is well-supported by scholars and others in

the legal community. A 1998 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 Institute, 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.

Mr. SHUSTER. I understand what you are saying and I understand all these smart people have put together these theories. But

the reality is we do not know how you are utilizing these courthouses today. That is a study we have to conduct to find out that

information. That is the first thing.

Second is, we here in the United States Congress have an adversarial relationship, too, and on top of that, we do things inefficiently. They call votes and we have to walk out of here. This Committee started at 1:00, it is now 3:00, I had hoped to be out of here
23

by now but here we are. And we are going through this without

anything terrible happening with our legislation moving forward to

the floor.

I just do not buy that justice is going to be delayed or justice is

going to be impeded in any way because we do a standard space

analysis on utilization of courtrooms. Until you can give me that

fact, I have got to sit up here and say I just do not buy it.

We have got to look at that. These are taxpayers’ dollars and

they are spending millions, billions of dollars on courthouses. We

have got to make sure we are doing the right thing and using these

buildings efficiently, because even in the judicial system we can

still look at efficiency. And who knows, maybe the system will improve because we are causing people to sit down and manage time

a little better and utilize their buildings and their time more wisely. I do not know the answer to that. But I cannot sit here and

make a judgement unless I see an analysis done.

I have gone over my five minutes. I am going to come back to

questions, but I am going to yield to the Ranking Member for her

questions.

Ms. NORTON. Thank you, Mr. Chairman. My goodness, where to

begin. Well, I guess I should begin, since Judge Roth just read so

extensively about the fallacy of using how often the courtroom is

used, her study was at least ten years old. Let me just say the notion of the flexibility a judge needs, who can predict about trials,

who they will be assigned to, is something that, in that respect I

want to associate myself with your remarks on that.

Unfortunately, in the real world all of us live with means averages, granting exceptions where necessary perhaps. But it is almost impossible to live any other way. A notion of a system so

flexible that each woman is an island unto herself has never been

the case in business, once was the case here, is no longer the case.

I just want to respond to your notion that you read so extensively

from, because a more recent study of the American Bar Association

looked at utilization and they found, for example, that in 1962 the

average Federal judge had 39 trials a year, and that was if you put

civil and criminal trials together. By 2003, this is a fall off that we

rarely see in any statistic in the United States, by 2003, the number had fallen from 39 trials, civil and criminal, to 13.

And I congratulate the courts because I know exactly what you

are doing. You are using alternative dispute resolution, you are settling cases. You are really making progress and moving caseload,

and you deserve a great deal of credit for that.

You spend a lot of your time in that work; deciding pretrial motions, approving settlements, and I do not need to spell them out

to you. This is a very steep decline. It shows what courts can do

when efficiency becomes important to the courts. In light of that

decline over a period of 40 years, very laudable decline, I would

simply like to have you comment on the notion that, despite that

decline, formal courtroom space on a judge by judge basis is still

needed and indeed, in spite of this decline, should be expanded.

Judge ROTH. Yes, thank you. I was a district judge for five and

a half years, so I have my own personal experience in the use of

a courtroom. And the fact that a case does not actually go to trial
24

does not mean that the courtroom has not been used in fact or implicitly.

There are aspects of the settlement of a case that require a courtroom---arguments on motions and conferences with attorneys sometimes are held in courtrooms. In criminal cases, if the case does not

go to trial, of course the plea will be taken in the courtroom. And

so that aspect of the case, although it uses less courtroom time, is

very much as important to the case as a full trial.

And one of the things that you never know ahead of time is

whether a case is going to trial or not. The threat of a trial, the

scheduling of a fixed trial date, is one of the most effective means

to getting a case to settle or of getting a guilty plea.

So the availability of the courtroom is a very important aspect

in caseload management by a district judge. And if you schedule

a trial and the lawyers suspect that there will not be a courtroom

available, they are not pushed to settle. You will not get the settlement of that case without a trial that you would have had if there

were a courtroom available.

Ms. NORTON. I can understand the what-ifs. And Judge Roth, if

I might say so, I clerked for a very distinguished judge on the

Third Circuit

Judge ROTH. A colleague of mine with whom I enjoyed serving.

Ms. NORTON. And I liked nothing better than going to trial. I

must say, I certainly would not want to put my experience as a recent graduate of law school clerking for a judge up against yours.

But frankly, the use of the formal courtroom was so rare that I

relished it. You know, he was awfully good at doing precisely what

you all have done so well, settling cases, not using the courtroom.

At to the threat, the threat was awesome. But I think all Judge

Higgenbotham had to say is now, if you want me to take this to

trial, I would be happy to do that. He had been a distinguished

trial lawyer and I think everybody recognized what that might

mean.

Let me just ask you and Mr. Mecham—and Mr. Mecham, we are

going to have your remarks, since we saw so many fallacies in the

review, I do not want to take the time to go toe to toe with you

on those, we are going to have your remarks submitted to real

cross examination by giving them to GAO and others.

Mr. MECHAM. Please.

Ms. NORTON. But this is what I want to ask you and Judge Roth,

with the preface that watch what you ask for. When I joined this

Committee, I am trained the way you are as a lawyer, I did not

know beans, and I am still learning beans. So the whole notion of

let us do it, ask the Department of Homeland Security about let

us do it. Congress gave them the right to do it, they came running

back to GSA and said do it, please do it, take this out of our hands.

All right.

But let us say you get what you ask for, and I can see this windfall, $400 million, we can use it to hire people in Congresswoman

Norton’s court here which had an 11 percent reduction. Of course,

if you were in a Federal agency, you would have known how to

keep that reduction from occurring because you would have been

practiced at making efficiencies to maintain the most precious

thing any agency can have, which is people.
25

But let us say you see this windfall. Let me tell you what the

statistics show, since you complain about the fund. Over the past

10 years, the courts have contributed approximately 15 percent of

the benefit. Now, understand what this means. The courts, with its

kitchens, atriums, ceremonial courtrooms as big as you want to get,

nevertheless, 15 percent is what you contributed. Benefit: 40 percent of the benefits.

Let us see did you get what you want. You take your $400 million. When it comes time to build you are subjected to the annual

appropriations process. That is a discretionary process. You then

have to trek up here and convince the appropriators when they are

looking at the biggest deficit in memory, which makes the appropriations and this Committee be reluctant to do bricks and mortar

at all, you are looking at the appropriators and asking for discretionary money to build courthouses.

And Judge Roth has been at this for some time. Judge Roth

showed what one President by himself can do when he looks at his

priorities and says you get nothing, what was it, for four years. Do

you really believe that you would continue to build courthouses,

that you would be able to do the repairs on these courthouses

throughout the United States at various stages of disrepair, keep

them going, keep them renovated all by yourself with sufficient appropriations from the Congress of the United States in which the

Chairman and I now sit?

Judge ROTH. Let me say, if I could, I think our moratorium on

courthouse construction demonstrates that we do have the sense of

responsibility and of the need for constraint in an era when there

are budget constraints. And yes, we could hold back when there are

budget constraints.

Ms. NORTON. That is a moratorium. All that means is that it is

going to happen. Are you willing to cut back on that altogether, say

some of those just should not be built?

Judge ROTH. Absolutely. Absolutely.

Ms. NORTON. Why do you not tell us about those?

Judge ROTH. That is the process that I mentioned in our determination of the five year priority list—the factors that we consider

in creating that list, the number of judges affected, the year out of

space

Ms. NORTON. Judge Roth, my question was very specific. You

would have to come here and ask for funds from the Congress to

do things like build new courthouses or else take it out of your existing $400 million. And Mr. Mecham seems very anxious to say

yes.

Mr. MECHAM. We have to do that now. We have to defend our

buildings appropriations, both before the authorizing and the appropriations committees. We have had to do it as long as I have

been here, for the 20 years that I have been here.

Ms. NORTON. I said you got 40 percent of the benefit from the

fund. Perhaps you did not hear my figures—15 percent of what

goes in, 40 percent of what comes out. You have benefitted extraordinarily from somebody else’s money, sir, not your own.

Mr. MECHAM. We went for 40 years paying in, we have spent a

lot of money on rent and we got virtually nothing from GSA.
26

Ms. NORTON. So has the rest of everybody spent all that time

paying in. You are no different from people in the Justice Department and other people whose building has been there forever.

Mr. MECHAM. Back to your question. We are prepared to come

to the Hill requesting appropriations for buildings. We think there

would be $500 to $550 million available for construction for whatever had to be done in the building program. We do not particularly want to get out from under any responsibility with respect to

GSA. We would anticipate paying them for operation and maintenance and repairs, and then seek our own appropriations for buildings.

This is precisely the kind of plan that we worked out with the

former head of the General Services Administration. I think Terry

Golden, whose chief of staff sits on your left, was the finest Administrator they ever had. We worked out an arrangement where we

would go after the money for the buildings and GSA would take

care of the operations and leasing. We would get the money for

buildings, if our rent payments did not cover the construction costs,

and then reimburse GSA for actual lease costs and for operation

and maintenance.

Ms. NORTON. All of this money goes into the Building fund. Mr.

Chairman, I do not want to go over my time.

Mr. SHUSTER. Let me ask a couple of questions. I will come back

to you. You just seem like you are getting warmed up.

Commissioner Moravec, you have been sitting there quietly and

patiently. Can you eliminate any of the confusion on the issue. Is

the judiciary treated any differently than anybody else out there

that is leasing buildings from GSA?

Mr. MORAVEC. No, Mr. Chairman, I do not believe they are. As

I say, we have enjoyed a very good, even a model relationship with

them, the kind of relationship which we really strive to have with

all of our customer agencies. We have multiple points of contact

with them. We have a very clear understanding of what their priorities are. We have a general agreement as to the kinds of facilities

they are looking for. Our mission is to support the mission of other

Government agencies.

So although we often disagree with them and have sometimes a

very interactive and dynamic relationship and challenge each

other, as we should in a good healthy process, at the end of the day

we really are responsive, to the greatest extent possible, to their

stated needs and we try to deliver the best results.

Mr. SHUSTER. But specifically, are they treated any differently

than any other department that leases space from you? You calculate the leases the same way?

Mr. MORAVEC. Yes, sir.

Mr. SHUSTER. The question about taxes

Mr. MORAVEC. We are completely consistent, at least in theory,

we are completely consistent in terms of how we charge rent to all

of our tenants. As I have acknowledged earlier in my testimony,

sometimes we do not do it as well as we should. I mentioned in

connection with this court request, we are taking it upon ourselves

to do in effect an internal due diligence of whether we are following

our own rules in terms of the way we charge rent to the courts.

Mr. SHUSTER. What about the tax situation?
27

Mr. MORAVEC. Again, that is fundamental to the nature of the

way the Federal Buildings Fund works.

Mr. SHUSTER. Everybody is charged taxes?

Mr. MORAVEC. Absolutely. In owned facilities. Not only do we not

pay taxes, we do not pay depreciation, we do not pay liability insurance, we do not pay management fees, we do not service debt typically, but we also include the commercial equivalent of those

charges in figuring the operating costs of rent in a federally-owned

building.

The reason is, the fundamental driver there is to be commercially

equivalent, to charge as best as we can determine, actually as best

as an appraiser, an independent third party appraiser can determine, what a private landlord would charge the courts for exactly

the same facility. That is the philosophy.

Mr. SHUSTER. And that is what enables the fund to build up. And

as Ms. Norton pointed out, the courts have paid in 15 percent of

the total and they get a 40 percent return or 40 percent of the benefit.

Mr. MORAVEC. Right. Because they have been the fastest growing

of our tenants.

Mr. SHUSTER. What would happen if that $480 million was

pulled out? How significantly would that affect the total program?

Mr. MORAVEC. As I say, it would have an almost immediate and

deleterious impact on our operations. We would have to start cutting back across the board in every respect. Right now, the Federal

Buildings Fund, as Congress intended, is generating a positive cash

flow of about $1.5 to $1.6 billion a year and we are reinvesting that

money directly in our inventory.

Our highest priority during this Administration has been reinvestment in our existing stock of owned buildings, to the tune of

about $1 billion, and again this year that is our request. In the last

few years, we have been spending about $500 to $700 million a

year for new construction without direct appropriation from Congress.

Mr. SHUSTER. Mr. Mecham, you might want to get in on this. The $680 million, I did not quite follow that. I missed something

there. You paid in $680 million for what?

Mr. MECHAM. There were four years during the Clinton Administration when the White House requested no money for court buildings. During two of those years, as Ms. Norton pointed out, Congress, and we soundly supported this---indeed we took the initiative

on it---sought the funding for these buildings. Congress added

money to the appropriations bill to the tune of $680 million over

those two years and that money was then used to build court buildings. Essentially, that is pretty much what we have done from fiscal year 1991 up through 2004.

Also, we are treated much differently from most other agencies.

At least 55 percent of major agencies’ office space does not have to

go through GSA. These agencies run their own building programs.

They are out from under GSA’s building program.

If you add in the embassies and military bases and so on, GSA

control a lot smaller percentage than that. We would like to be

treated the same as the 55 percent of the Executive Branch who

are not paying rent to GSA. They are taking care of their own
28

building program out of direct appropriations. We would like to join

them and Congress.

Mr. SHUSTER. Again, I think Ms. Norton makes a very good

point, watch what you wish for. Because when those folks come up

for appropriations, they are under great scrutiny. The numbers

that I have shared with you, maybe you could respond to some of

those numbers, your personnel in the last 20 years has doubled,

you have tripled your total space, but you only have useable space

of 2.5. What I am getting at is, are you building courthouses that

are too big, that are too grand, too opulent?

Mr. MECHAM. I do not think so. Maybe you can find an exception

here or there out of 90 or so new courthouses, but I do not think

so.

Mr. SHUSTER. Again, I think we need to look at those numbers.

I also come to the conclusion that if the judiciary is not willing to

work with the GAO and do a space utilization analysis, then we

are going to have to insist that that is the only way we can move

forward.

And it has been reported to me, and I have not heard anything

different here today, you have not stood up and said, by gosh, we

are going to do that. Let us get together with GAO and figure out

the information they need. Because every time we move forward,

every time that you come to me I am going to say the same thing,

I am going to sound like a broken record, tell me how you are utilizing your space.

Mr. GOLDSTEIN. Mr. Chairman, if I may, could I add one comment quickly?

Mr. SHUSTER. Yes.

Mr. GOLDSTEIN. I would add one thing. Even if the courts did receive funds, they would still have to create an organization that

they really do not have today that would have to manage their facilities. That does not exist. So at any point in time, they are starting from square one.

The other point just goes to the one you made. I think it is important to note that there was a standing recommendation that the

courts do evaluate their space utilization with respect to courtroom

sharing. They declined to do so. They have never taken on that

issue. We are not suggesting that is the approach. We are certainly

not predetermining that they need to do it. But there is no data,

unfortunately, to support even Judge Roth’s contention that the approach they have taken is appropriate. There is simply no data to

go in any direction.

Mr. SHUSTER. Do you agree with me that they need to do a space

utilization to understand

Mr. GOLDSTEIN. It has been our standing recommendation for a

number of years now.

Mr. SHUSTER. As I said, until I see those numbers, until you can

make the case, I ran a business for 14 years, you run an organization, you run a business, you have a facility, you have to look at

those things. You have to understand them whether you are pushing cattle through a barn or whether you are administering the justice in this country. At the end of the day, these are taxpayers’ dollars, it is not your money, it is not my money, it is from hard-
29

working people and we have got to make sure that they are getting

the most out of the money.

And once again, when I look at numbers like I see here, I see

that number and I see also that when you took over the Design

Guide the space for judges went up 23 percent. A judge ought to

have nice quarters. But up here on the Hill, first of all this Committee room, there are five Subcommittees plus the full Committee,

we have got to figure out how to all be in here and use this place.

The other point is that when you look at the average space a

judge’s chambers has it is 2,800 square feet. In Congress we have

1,200 square feet and I have got more people working out of my

office. I can tell you it is pretty cramped quarters. Now, I am not

suggesting that you go to 1,200 square feet. I am suggesting that

you need to look at the space. That is the only way we can really

move forward here in this situation.

Judge ROTH. Mr. Chairman, if I could simply add, this is one of

the calculations that are made up of so many indeterminant factors

that you cannot defelop an exact formula for the use of courtroom

space. Case management is a judicial and not an administrative

function. Courtroom scheduling is a dynamic part of a judge’s case

management activity to control hundreds of cases.

In our judicial system, individual judges are accountable for

cases assigned to them and for the movement of their dockets.

They need the availability of the courtroom but that does not necessarily result in so many minutes in the courtroom. And you cannot determine that ahead of time. You cannot with hindsight go

back and say that you did not need the courtroom because the case

did not go to trial.

I am not trying to push against what you are asking for. I am

simply trying to say that research and practice have demonstrated

the importance of setting a trial date, the importance of having the

availability of a courtroom, that many court events are scheduled

months in advance, and it is common for judges to schedule several

trials for the same day, knowing that the availability of the courtroom is going to result in cases settling, in cases not going to trial.

But it is an art, not a science.

Mr. SHUSTER. Judge, with all due respect, I understand what you

are saying, but we do that here. It is not a science here either. We

have to go through this process. And you can continue to make this

argument to me, but until you can tell me your courtrooms are

being utilized at 70 percent, and my guess is they are not being

utilized over 50 percent, and that is a shot in the dark, but you

have nothing to refute me.

I guess when you come into court you want your attorneys to

argue their case with facts. So let us look at some facts and then

you can sit here and say we are utilizing them at 70 percent or

whatever, it is very difficult for us to do more than that, and I may

buy that. But today, you are scheduling cases, you put down on

paper when you are going to do it, when you are going to utilize

them. And there are some courtrooms in this country that I know

are built specifically for national security cases and things like that

where they have got to have soundproofing and those types of technology. You are scheduling them.
30

We can go round and round, but until the judiciary stands up

and says we will figure out if we are utilizing our facilities—again,

the numbers I keep coming back to are you doubled your employees, you tripled your space, and you only have two and a half times

more space utilized. That is telling me pretty clearly that you are

building grand buildings. And when you get under those numbers

and see what the utilization is, it is not going to be there. I have

gone over my time.

Mr. MECHAM. Can I give you just one comment on that?

Mr. SHUSTER. Sure.

Mr. MECHAM. Our staffing has gone up just over 100 percent

since 1984. The workload has gone up about 200 percent. It seems

to me that ought to be weighed in the equation as well. And then

with respect to the comment from Mr. Goldstein, we do not wish

to set up a real estate business in the judiciary. We would like to

contract the work out to GSA and pay them. If they do not want

to do it, then we will go to the Army Corps of Engineers, the Postal

Service, or we will contract it out. We simply do not want to set

up a big staff but we do want to run our own show and be able

to control it. Prior to 1939, the Justice Department told the judiciary how to run its affairs, the Bureau of the Budget did its budget.

Congress got us out from under those two Executive Branch organizations. We would like to have the same privilege with GSA and

it would be fair to do it because we are discriminated against now.

Mr. SHUSTER. And all I would say is be responsive. If you want

to do something, you have got to show us the facts first.

I will yield to the Ranking Member.

Judge ROTH. Mr. Chairman, could I comment on the 70 percent?

Mr. SHUSTER. The Ranking Member might have a question that

you might be able to answer her question.

Ms. NORTON. Mr. Mecham, look, do not talk workload to us. We

are talking trials using formal courtroom space and you give us

workload figures. It is not very helpful.

Judge Roth, you have got to understand this, both you and Mr.

Mecham, coming to the Congress in the 21st century and arguing

that there is no way to figure out using any statistical measures,

any probability measures how to do space so that it does not in fact

interfere with trials gets you from Congress go get yourself a better

statistician, somebody who is better at probability. Let me just say,

I did not even understand what you said—you have the trial a certain day, you tell them there is going to be a trial at a certain day,

it has got to be a courtroom at a certain day. Nonsense. You tell

them there is going to be a trial at a certain date. If the courtroom

is not available, that trial date stands. And you say the courtroom

is not available, given the figures that I quoted here and all the

under-utilization, that does not in fact take away from the definite

notion he got off by luck, that he did not have to go that he. He

is going to have to go very soon. So the notion that somehow that

has to be razor focused.

But what we are asking, which is simply to use probability and

statistics to figure out if only X number of trials, cases go to trial,

given the mean, given the average, use some other probability

standard, it follows that with respect to courtroom space we can expect this. This kind of expectation of the use of resources is the way
31

the world operates today. Yes, even courts. Citing to us State

courts which have to do with a self-contained system and not with

a nationwide system is not very helpful to the Congress. I understand, for example, as a lawyer that there are certain kinds of

trials that are so routine they could be scheduled just like this—

bankruptcy, magistrates, it has been some time since I have been

in the courtroom, senior judges who are sometimes, not always,

given matters that are not as long as others. This is not beyond the

capacity of the courts to do.

I want to say, because I think I am reflecting what the Chairman

and I have been saying, there is no chance of changes if the courts

do not come forward with at least some of what the Congress has

asked you to do, but instead come forward with we are courts, what

in the world can you expect of us, we are going to continue to do

exactly what we have been doing, and by the way, give us control

of our budget to boot. It is an amazing set of expectations you have.

Let me ask a question. I do not want to let GSA think that we

think they have been hunky-dory here. We have tried to take GSA

to task for the entire 15 years I have been in Congress. GSA is very

responsible for the fact that courts thought that atriums were a

part of rendering justice, that kitchens were a part of that. There

were literally, and I do not exaggerate, there were chief judges that

designed whole courthouses. And that is the fault of the GSA. I am

not convinced that that is not happening now.

We said to GSA, hey, look, let me tell you what separation of

powers means. It does not mean you give over your statutory responsibility which has nothing to do with cases and controversies

to the Federal courts. In light of that, Mr. Moravec, I have to ask

why you downgraded at least one tool you had, the court management group, which was an independent office established in 1995,

reporting directly to the Commissioner no less, to now an office reporting to the chief architect. That is four levels removed, as far

as I understand. I do not understand why, given the trouble we

have had historically with the courts, I do not understand why you

would not want to take more personal responsibility for what has

happened here and why a less independent court management

group helps you to make your case.

Mr. MORAVEC. I would not necessarily characterize the reorganization of the central office of the Public Buildings Service as having resulted in a downgrading of the courts management group. In

fact, Ms. Norton, I take very personal and direct interest in our

courts program because they are one of our largest and most important customers.

Ms. NORTON. Why is it an independent office now?

Mr. MORAVEC. Because, frankly, its work is important, and as

broad an expanse as it has, it is not big enough to justify an independent office. It should be included, and this is consistent with

the Chairman’s question, it should be included as part of the way

we deal with all of our customers. The Office of the Chief Architect

is the source of design and construction expertise for our entire $10

billion construction program. So it makes logical sense to me that

the courts management group, which is only one of the kinds of

buildings that we are building these days, should be included

there.
32

Ms. NORTON. Look, Mr. Moravec, I respectfully disagree. It seems

to me the management folks ought to be in charge of the architects,

not the other way around, sir. You tell me as an artist, I consider

architects something of that kind, hey, here you control the management, I would think I had died and gone to Heaven. I do not

understand your thinking here. You ought to be

Mr. MORAVEC. Ms. Norton, they are a technical resource to the

Commissioner and to the Administrator. They do not control anything. What they do is they provide the benefit of their professional

expertise in the creation of these very complex buildings.

Ms. NORTON. I do not want to get into a bureaucratic—I do not

think it makes sense for the Chief Architect to control the managers rather than the other way around. He ought to have to make

his

Mr. MORAVEC. With all due respect, I think you misunderstand.

I would be delighted now or at some future point to come and talk

to you about exactly what the role of the Chief Architect is. I think

you have a misapprehension as to what the scope of that office’s

responsibilities are.

Ms. NORTON. I would be very glad to get that briefing.

Just let me say, Mr. Mecham, when you talk about DOD, yes,

DoD can build bases, housing on bases, but surely you know that

DoD comes to GSA for general office space the same way you do,

and they have got lots of office space in lots of places. So I think

as long as you talk about DoD you ought to separate out their function which has to do with what they do from the function that has

to do with what GSA does.

Mr. MECHAM. Less than 1 percent of DOD’s budget is paid in

rent to GSA. It is 22 percent of ours.

Ms. NORTON. Yes. What does that tell us though? First of all, you

have to look at the size.

Mr. MECHAM. It tells you we are taking it in the neck.

Ms. NORTON. You are going to get into a statistical dialogue. Let

us get into it then. First of all, let us look at what the DoD budget

goes for, and you certainly would expect, I would hope, that less

than 1 percent goes to the GSA. And if it does not, I want to go

to the Armed Services Committee and find out why. If they are

spending anything more than a tiny amount for office space, I want

to know why, especially in the middle of a war. But look, I just

wanted to correct the record on that.

I have some questions that I need clarification on and I want to

make sure I get that clarification. Judge Roth, for example, cites

kind of going to do things here. We kept looking in your testimony

for things that had been done to control costs. So I said to the staff

go get me an example. Law professors are just hopeless, they reason from hypotheticals. So they found me one.

So perhaps I can put this to you and ask how you would respond

to it. It is a proposal apparently by the GSA to consolidate the Ft.

Lauderdale and the West Palm Beach courthouses. GSA comes

with the notion of one consolidated facility. And they have one very

good idea that this Committee loves, it would be constructed on a

site that the Federal Government owns. So we did the math on

that one. We found that if you looked over 30 years, you would get

an almost $400 million saving.
33

And if you look right now in present value of money, and remem- ber, you are talking about a windfall of almost $500 million, right

now if you did it that way, you would have something over $221

million in savings. So I put that hypothetical to you, how will or

how do you think the Administrative Office should treat the consolidation idea, especially given the budget constraints you have

testified to this afternoon?

Judge ROTH. We very strongly support the idea. In fact, it was

Judge Zloch and myself conferring together who initiated this idea.

We have since then proposed it to GSA and we are working together now with GSA to accomplish this. Yes, we think is absolutely the sort of thing that should be done.

Ms. NORTON. So I am going to take that as a will happen. Or will

the judges have a veto on that?

Judge ROTH. Oh, no, no, no. The judges are for it. It was initiated

by the judges.

Ms. NORTON. They want to consolidate it?

Judge ROTH. They want to consolidate.

Ms. NORTON. I wish you had cited that. Because we think that

is the kind of efficiency we are talking about.

Judge ROTH. We do too.

Ms. NORTON. Not only here we have a whole courthouse to share,

we would like the sharing to occur with courtrooms as well. Let me

ask a question about the Design Guide because that has interested

me for some time. Judge Roth has testified that they want to review the Design Guide. I indicated earlier that I understand the

position you are put in, you are put in the same position I am and

Federal agencies are, you are looking at the Design Guide, you are

a Federal judge looking at a Design Guide. Who is going to do this

review? Tell me, who will do the review you have in mind?

Judge ROTH. The review is being done by the committee.

Ms. NORTON. And who is on that committee? I am trying to figure out who does this work.

Judge ROTH. There is a judge representative of every circuit in

the country on the committee. We consult with staff at the AO, we

consult with consultants, we use our own personal knowledge of

court function to review the Design Guide and to determine where

we think there can be effective savings made that will not impinge

on the proper function of the courts but will permit us to be more

economical.

Ms. NORTON. So they are using the very same criteria you outlined before about flexibility by a judge. Do you consult GSA or any

third party not connected with you and the AO?

Judge ROTH. We have consulted with a number of third parties

in the review.

Ms. NORTON. For example?

Judge ROTH. You know, I will have to get with you on that. I do

not have it on the tip of my tongue. But I can supply that information.

[The information follows:]

The Design Guide review included comments and input received in October

and November 2004 from the General Services Administration’s (GSA) Center

for Courthouse Programs and the GSA regions’ Public Buildings Service court

liasons. All GSA respondents have worked on planning, design and construction

of new courthouse construction projects and repair and alteration projects. Com-
34

ments range from space programming changes and suggestions to updates

based on current construction practices, building codes and new technology. The

focus is on balancing cost containment with the functional space needs of the

court.

In addition to GSA, we solicited comments (either orally or in writing) from private architectural and engineering firms (like Phillips Swager Associates,

Gruzen Samton, LLP, H3 Hardy Collaboration Architecture), the US Marshals

Service, and the Government Accountability Office (GAO) on the current Design Guide. Neither GAO nor the USMS have provided any comment to date.

Based on the comments received, our Committee members thought further

study into specific areas needed to be completed before considering them as revisions to the Design Guide. The National Institute of Building Sciences, with

major assistance from Jacobs Facilities, Inc., coordinated this effort. The consultants had experience working with other government and private space planners and were required to compare current Design Guide standards with other

public and private organizations. In addition, the consultants developed proposals for a collegial model where chambers and courtrooms are placed on separate

floors; technical areas such as lighting, acoustics, heating, ventilation and air

conditioning; the impact of electronic case filing on space; and ballistic glazing

and other security design guidelines, among othe areas. GSA will review and

comment on technical revisions to ensure there is no conflict in guidance between the judiciary’s Design Guide and their Facilites Standards Design

Guide.

The results of these independent studies on various aspects of the Design

Guide will be considered by the Committee on Security and Facilities later this

year.

Ms. NORTON. Let me just say, Judge, that also would increase

the credibility of the executive office. We all profit by having somebody who is not in our own brain, and then if they come back with

something that you disagree with, then of course you can say but

have you factored in this, that, or the other. It is very important

to us that the Design Guide mean something.

Mr. Moravec, I cannot understand what you have to do with the

Design Guide any more, what GSA has to do with any of that. It

just seems to me that if they have got the Design Guide and you

get to build whatever they say, you are pretty much out of it.

Mr. MORAVEC. I would not necessarily agree with that, Ms. Norton. I would say that we are certainly one of the partners that are

consulted with by the courts.

Ms. NORTON. You notice she did not put your name in there as

to who she consulted, because she was being truthful. See, the

Judge knows how to offer truthful testimony. She did not put GSA

right up there at the top. She is under oath, or did we swear her

in? We did not need to, she is a judge.

[Laughter.]

Ms. NORTON. But I did not hear her say, well, there is GSA, and

then there is consultants. I just never heard your name. Nobody

called your name. You ought to be insulted if you in fact have

something to do with it.

Mr. MORAVEC. I am not in any way insulted.

Ms. NORTON. What do you have to do with it, Mr. Moravec?

Mr. MORAVEC. I know very well how intimately engaged GSA is,

specifically the courts management group, in the process of reviewing the Design Guide. We have been encouraged by them to be a

full participant in that review.

Ms. NORTON. I am trying to understand the specific nature of

your involvement one, in the Design Guide; and two, particularly

in this review, that the Judge does not quite know who will be the
35

outside third parties, dare I suggest that you might be one of

those?

Mr. MORAVEC. I am affirming that we are.

Ms. NORTON. Well, she did not mention your name. And I have

to tell you, if you are, then I have to ask you, where is the professionalism that you demand of other agencies in the way in which

they have gone about the Design Guide process? If you have been

involved, that means you are taking responsibility for some of the

criticisms that have come forward here today.

Mr. MORAVEC. We accept that responsibility.

Ms. NORTON. What are you going to do about it? How are you

going to get enough involved in the design process so that they can

call your name out first rather than leave it off the list altogether

the next time we ask?

Mr. MORAVEC. Well, as I say, we are involved. We continue to be

involved. But at the end of the day, we are trying to be as responsive as we can to what we understand to be our customer’s needs.

We have and do attempt to respond to those needs as they are presented to us by our customer.

Ms. NORTON. Mr. Chairman, I have only one more question. It

is really for Mr. Goldstein, because their report has been continually helpful to us. Mr. Goldstein has said that GAO, in doing its

report, just had no data to work with, no data on the overall utilization of the courts. And Judge Roth has said she does not think

that is appropriate, that is why you do not have any data. It looks

like somebody is going to have to go around and do data but not

through the courts.

On the data and the unavailability of the data, is it that it is just

not gathered, that it is not available, does somebody have it, there

was not enough available for you to extrapolate from? Because normally of course you do not do the data yourself, but most Federal

agencies have enough so you can then proceed. What is the nature

of the data deficit please?

Mr. GOLDSTEIN. I think there are a number of things, Ms. Norton. I think the first is that the judiciary did not, when we did our

report in 1997 where we first brought this up, they did not compile

data. They did not have data.

Ms. NORTON. When?

Mr. GOLDSTEIN. In 1997. They did not have data on how often

and for what purposes courtrooms were actually used. They did not

have criteria for determining how many and what type of courtrooms would be needed. They did not have sufficient data to support the practice of providing a trial courtroom for every district

judge.

One of the things I think it is important to note in a report we

did in 2002, there is some courtroom sharing, there is not a lot but

there is some, it is mainly by senior judges.

But one of the things that is interesting is when we went out and

we talked to a number of judges in different parts of the country

a couple of things came up. While a number of judges cited negative experiences with courtroom sharing, a number of them had

very positive things to say. A court in Sioux City, Iowa, had four

judges that had been sharing three courtrooms for five years. They

reserved courtrooms through computers.
36

In Nashville, Tennessee, you had three senior judges that effectively shared two courtrooms for a number of years without delays.

And in Illinois, you had sharing that occurred without any problems for nine years. District judges used magistrate and bankruptcy courtrooms and things like that.

So again, it is something that it is possible that could be done.

We are not saying that it should be done, but it is something that

we feel that they ought to look at a lot more closely, and obviously

there is some experience that shows that it can be successful.

Ms. NORTON. Finally, you talk about the need in your report for

some kind of systematic oversight and management of court

projects. From what exists at least now without creating something, how might that be done?

Mr. GOLDSTEIN. What we were talking about in that report, this

was principally related to how the courts went about planning

what their needs were and how they were projecting some of their

space needs, and what we found at the time was that there were

just disparate set of needs being put forward and there did not

seem that there was a consistent approach by the executive office

of the courts to examine across the board and provide any transparency for how courtrooms would be utilized, for how court building usage would be developed, even to the extent of you had at the

time different uses of the Design Guide, you had finishes coming

in in various ways at different places, you had something like Foley

Square in Boston that had extremely expensive finishes and others

that did not.

There was not any consistency how the courts were approaching

their overall management of these kinds of things. Some of these

things they have improved. They do have a five year plan. They do

have a more consistent approach that they feel they have developed. They have discussed with us over the years in how we have

looked at the recommendations we have put in place were followed.

We have not gone back in to look at this holistically. At some point

that may be a useful endeavor.

Ms. NORTON. So in terms of recognizing that this is an independent branch of Government, do you think that deeper involvement

of GSA in what you call the systematic process of helping them to

manage projects would be useful?

Mr. GOLDSTEIN. It might be. I think GSA is fairly involved. I

would actually agree with Mr. Mecham. I think they have had a

very good relationship over the last couple of years particularly.

Ms. NORTON. I am sure they love each other. I am trying now

to find evidence of the professional hand of real estate people, of

people who understand land and construction management on the

courts, and we have a problem finding it.

Mr. MORAVEC. If I may respond to that. That is our responsibility. It is our responsibility to manage the site acquisition, the design, the project management of the construction, the delivery, and

then ultimately the operation of every courthouse. That is not the

courts’ responsibility. That is our responsibility in service to their

mission.

Ms. NORTON. Mr. Moravec, after they give you the design in one

courthouse there are elaborate finishes, in another courthouse people are perhaps more considerate and there are not. Does the GSA
37

then say if you look across the board at the finishes that we have

been using in courthouses around the country, we would strongly

suggest, and we will certainly have to tell the Committee about

this, that these finishes, these atriums be excluded from your

project?

Mr. MORAVEC. Ms. Norton, that is a part of every process. That

is part of every courthouse that we have been involved in the design of. We are very involved in that process.

Ms. NORTON. That is going to be the end of what I say because

if we were to listen to Judge Roth and Mr. Moravec, what we got

is that the system works pretty well. And since it works pretty

well, then I think we better leave it just like it is and see if we

can improve it from here.

Mr. SHUSTER. I agree with you, we probably should leave it the

way it is. Although I agree with Ms. Norton that GSA, when you

gave up the Design Guide control, when you see judges gaining 23

percent more space, I do not believe you were managing the process. You ought to look at the Federal courts not so much as customers, but your charge should be looking after the taxpayers’

money and managing the taxpayers’ money. Because when you see

that kind of increase in office space, somebody was not watching

the store.

Mr. MORAVEC. We take that responsibility very seriously. Our job

is to provide a superior workplace for the Federal worker, including

the judiciary, and superior value for the American taxpayer. I know

that everybody on our staff takes that charge very seriously.

Mr. SHUSTER. I am not sure we got the superior value part of it.

The other thing that I would encourage, and I am going to sound

like a broken record, but the Federal judiciary ought to figure out

how you are going to get those numbers together so we in Congress

can look at the utilization. I can assure you, Mr. Mecham, if you

go before the Appropriations Committee and do not have some

numbers to justify why you think you need to build, they are not

going to give you the money. And I would just repeat what Ms.

Norton said, watch what you wish for, because if it happens, I do

not think it is going to be a happy day for the courts.

And finally, just a final question I have, and this is just a yes

or no question to Mr. Goldstein, is the Federal court system in crisis as Mr. Mecham said, yes or no?

Mr. GOLDSTEIN. I cannot answer that, sir, not at this point. We

have not done enough work. I do not know if they are in crisis.

Mr. SHUSTER. Then as a professional for the GAO, is it your

sense that they are in crisis? Or is it your sense—I think what you

are saying is you just do not have the facts, you have not been able

to get at the facts to make a determination.

Mr. GOLDSTEIN. That is correct.

Mr. SHUSTER. Okay.

Ms. NORTON. Mr. Chairman, could I just leave for the record, because I think it is only fair to let you know, at least the kinds of

potential remedial actions I would like to discuss with the Chairman. I do not hear a remedy coming from the judiciary except give

us a budget. So these are the kinds of things I would like to discuss. This is not to say this is going to happen, but these are the

kinds of issues I would like to discuss with the Chairman.
38

I do not think there should be any new starts until the GAO

audit that the Committee has requested is in. I do think that the

GSA should finish the design contracts in the pipeline of course,

but I do not believe it would be prudent to sign any new contracts

until we get some accountability. I am very reluctant, Mr. Chairman, and I will have to speak with you, to vote for a new authorization, including the fiscal year 2006 program, until the GAO report is done.

On the Design Guide, I believe a way must be found to formally

insert the GSA into the guide revision process so that we can know

that they are there by what they tell us as well as by what the

courts tell us. I believe that the testimony on sharing policy has

been what amounts to a defiance of this Committee and of the Congress of the United States.

And I believe by statute we should require senior judges to share

a courtroom with available exceptions where necessary. There are

senior judges, for example, who work virtually full time or who

handle the most complicated cases. And I believe we should require

the AOC, in consultation with the GAO and the GSA, to develop

criteria to measure the utilization of courtrooms, as the Committee

has endlessly asked for.

All of these are debatable, Mr. Chairman, and obviously subject

to your ultimate approval or disapproval. But I did want to show

just how troubled I am not only by today’s testimony, but about the

cumulative effect of having what Congress has asked both the administrative office, and if I may say so, Mr. Moravec, and the GSA,

and has been ignored. And after a while when Congress is ignored

enough, it seems to me that Congress has to take action to show

that it means what it says. Thank you very much, Mr. Chairman.

Mr. SHUSTER. Thank you, Ms. Norton. We certainly will take

those under serious consideration as we move forward.

I want to thank the witnesses for being here today.

I want to ask unanimous consent that the record of today’s hearing remain open until such time as our witnesses have provided

answers to any questions that may be submitted to them in writing. And I ask unanimous consent that during such time as the

record remains open additional comments offered by individuals or

groups may be included in the record of today’s hearing. Without

objection, so ordered.

With nothing further, the Committee stands in adjournment.

[Whereupon, at 3:58 p.m., the committee was adjourned.]
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