[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]


 
    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


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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                      DON YOUNG, Alaska, Chairman

THOMAS E. PETRI, Wisconsin, Vice-    JAMES L. OBERSTAR, Minnesota
Chair                                NICK J. RAHALL, II, West Virginia
SHERWOOD L. BOEHLERT, New York       PETER A. DeFAZIO, Oregon
HOWARD COBLE, North Carolina         JERRY F. COSTELLO, Illinois
JOHN J. DUNCAN, Jr., Tennessee       ELEANOR HOLMES NORTON, District of 
WAYNE T. GILCHREST, Maryland         Columbia
JOHN L. MICA, Florida                JERROLD NADLER, New York
PETER HOEKSTRA, Michigan             ROBERT MENENDEZ, New Jersey
VERNON J. EHLERS, Michigan           CORRINE BROWN, Florida
SPENCER BACHUS, Alabama              BOB FILNER, California
STEVEN C. LaTOURETTE, Ohio           EDDIE BERNICE JOHNSON, Texas
SUE W. KELLY, New York               GENE TAYLOR, Mississippi
RICHARD H. BAKER, Louisiana          JUANITA MILLENDER-McDONALD, 
ROBERT W. NEY, Ohio                  California
FRANK A. LoBIONDO, New Jersey        ELIJAH E. CUMMINGS, Maryland
JERRY MORAN, Kansas                  EARL BLUMENAUER, Oregon
GARY G. MILLER, California           ELLEN O. TAUSCHER, California
ROBIN HAYES, North Carolina          BILL PASCRELL, Jr., New Jersey
ROB SIMMONS, Connecticut             LEONARD L. BOSWELL, Iowa
HENRY E. BROWN, Jr., South Carolina  TIM HOLDEN, Pennsylvania
TIMOTHY V. JOHNSON, Illinois         BRIAN BAIRD, Washington
TODD RUSSELL PLATTS, Pennsylvania    SHELLEY BERKLEY, Nevada
SAM GRAVES, Missouri                 JIM MATHESON, Utah
MARK R. KENNEDY, Minnesota           MICHAEL M. HONDA, California
BILL SHUSTER, Pennsylvania           RICK LARSEN, Washington
JOHN BOOZMAN, Arkansas               MICHAEL E. CAPUANO, Massachusetts
JIM GERLACH, Pennsylvania            ANTHONY D. WEINER, New York
MARIO DIAZ-BALART, Florida           JULIA CARSON, Indiana
JON C. PORTER, Nevada                TIMOTHY H. BISHOP, New York
TOM OSBORNE, Nebraska                MICHAEL H. MICHAUD, Maine
KENNY MARCHANT, Texas                LINCOLN DAVIS, Tennessee
MICHAEL E. SODREL, Indiana           BEN CHANDLER, Kentucky
CHARLES W. DENT, Pennsylvania        BRIAN HIGGINS, New York
TED POE, Texas                       RUSS CARNAHAN, Missouri
DAVID G. REICHERT, Washington        ALLYSON Y. SCHWARTZ, Pennsylvania
CONNIE MACK, Florida                 JOHN T. SALAZAR, Colorado
JOHN R. `RANDY' KUHL, Jr., New York
LUIS G. FORTUNO, Puerto Rico
LYNN A. WESTMORELAND, Georgia
CHARLES W. BOUSTANY, Jr., Louisiana
VACANCY

                                  (ii)

  


 Subcommittee on Economic Development, Public Buildings and Emergency 
                               Management

                  BILL SHUSTER, Pennsylvania, Chairman

JIM GERLACH, Pennsylvania            ELEANOR HOLMES NORTON, District of 
KENNY MARCHANT, Texas, Vice-Chair    Columbia
CHARLES W. DENT, Pennsylvania        MICHAEL H. MICHAUD, Maine
JOHN R. `RANDY' KUHL, Jr., New York  LINCOLN DAVIS, Tennessee
DON YOUNG, Alaska                    JULIA CARSON, Indiana
  (Ex Officio)                       JAMES L. OBERSTAR, Minnesota
                                       (Ex Officio)

                                 (iii)

  
                                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


   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. 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.
    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.
    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 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 Buildings, 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 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.
    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. 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 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.
    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.
    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 non-prospectus space requests.
    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 long-range 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.
    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 ultimately 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 flowing 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 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 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 conference 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.
    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, 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.
    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 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 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.
    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.
    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?
    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 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 hardworking 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.
    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 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.
    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.
    And if you look right now in present value of money, and 
remember, 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. Comments 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 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.
    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 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.
    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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