[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
ELIMINATING WASTE AND MANAGING SPACE IN FEDERAL COURTHOUSES:
GAO RECOMMENDATIONS ON
COURTHOUSE CONSTRUCTION,
COURTROOM SHARING, AND
ENFORCING CONGRESSIONALLY
AUTHORIZED LIMITS ON SIZE AND COST
=======================================================================
(111-115)
HEARING
BEFORE THE
SUBCOMMITTEE ON
ECONOMIC DEVELOPMENT, PUBLIC BUILDINGS, AND EMERGENCY MANAGEMENT
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
May 25, 2010
__________
Printed for the use of the
Committee on Transportation and Infrastructure
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56-725 PDF WASHINGTON : 2010
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COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
JAMES L. OBERSTAR, Minnesota, Chairman
NICK J. RAHALL, II, West Virginia, JOHN L. MICA, Florida
Vice Chair DON YOUNG, Alaska
PETER A. DeFAZIO, Oregon THOMAS E. PETRI, Wisconsin
JERRY F. COSTELLO, Illinois HOWARD COBLE, North Carolina
ELEANOR HOLMES NORTON, District of JOHN J. DUNCAN, Jr., Tennessee
Columbia VERNON J. EHLERS, Michigan
JERROLD NADLER, New York FRANK A. LoBIONDO, New Jersey
CORRINE BROWN, Florida JERRY MORAN, Kansas
BOB FILNER, California GARY G. MILLER, California
EDDIE BERNICE JOHNSON, Texas HENRY E. BROWN, Jr., South
GENE TAYLOR, Mississippi Carolina
ELIJAH E. CUMMINGS, Maryland TIMOTHY V. JOHNSON, Illinois
LEONARD L. BOSWELL, Iowa TODD RUSSELL PLATTS, Pennsylvania
TIM HOLDEN, Pennsylvania SAM GRAVES, Missouri
BRIAN BAIRD, Washington BILL SHUSTER, Pennsylvania
RICK LARSEN, Washington JOHN BOOZMAN, Arkansas
MICHAEL E. CAPUANO, Massachusetts SHELLEY MOORE CAPITO, West
TIMOTHY H. BISHOP, New York Virginia
MICHAEL H. MICHAUD, Maine JIM GERLACH, Pennsylvania
RUSS CARNAHAN, Missouri MARIO DIAZ-BALART, Florida
GRACE F. NAPOLITANO, California CHARLES W. DENT, Pennsylvania
DANIEL LIPINSKI, Illinois CONNIE MACK, Florida
MAZIE K. HIRONO, Hawaii LYNN A WESTMORELAND, Georgia
JASON ALTMIRE, Pennsylvania JEAN SCHMIDT, Ohio
TIMOTHY J. WALZ, Minnesota CANDICE S. MILLER, Michigan
HEATH SHULER, North Carolina MARY FALLIN, Oklahoma
MICHAEL A. ARCURI, New York VERN BUCHANAN, Florida
HARRY E. MITCHELL, Arizona BRETT GUTHRIE, Kentucky
CHRISTOPHER P. CARNEY, Pennsylvania ANH ``JOSEPH'' CAO, Louisiana
JOHN J. HALL, New York AARON SCHOCK, Illinois
STEVE KAGEN, Wisconsin PETE OLSON, Texas
STEVE COHEN, Tennessee VACANCY
LAURA A. RICHARDSON, California
ALBIO SIRES, New Jersey
DONNA F. EDWARDS, Maryland
SOLOMON P. ORTIZ, Texas
PHIL HARE, Illinois
JOHN A. BOCCIERI, Ohio
MARK H. SCHAUER, Michigan
BETSY MARKEY, Colorado
MICHAEL E. McMAHON, New York
THOMAS S. P. PERRIELLO, Virginia
DINA TITUS, Nevada
HARRY TEAGUE, New Mexico
JOHN GARAMENDI, California
HANK JOHNSON, Georgia
(ii)
Subcommittee on Economic Development, Public Buildings, and Emergency
Management
ELEANOR HOLMES NORTON, District of Columbia, Chair
BETSY MARKEY, Colorado MARIO DIAZ-BALART, Florida
MICHAEL H. MICHAUD, Maine TIMOTHY V. JOHNSON, Illinois
HEATH SHULER, North Carolina SAM GRAVES, Missouri
RUSS CARNAHAN, Missouri SHELLEY MOORE CAPITO, West
TIMOTHY J. WALZ, Minnesota Virginia
MICHAEL A. ARCURI, New York MARY FALLIN, Oklahoma
CHRISTOPHER P. CARNEY, BRETT GUTHRIE, Kentucky
Pennsylvania, Vice Chair ANH ``JOSEPH'' CAO, Louisiana
DONNA F. EDWARDS, Maryland PETE OLSON, Texas
THOMAS S. P. PERRIELLO, Virginia
HANK JOHNSON, Georgia
JAMES L. OBERSTAR, Minnesota
(Ex Officio)
(iii)
CONTENTS
Page
Summary of Subject Matter........................................ vi
TESTIMONY
Goldstein, Mark, Director, Physical Infrastructure, Government
Accountability Office.......................................... 7
Peck, Hon. Robert, Public Building Service, Commissioner, U.S.
General Services Administration................................ 7
Ponsor, Judge Michael A., Chairman, Committee On Space and
Facilities, Judicial Conference of the United States........... 7
Robinson, Judge Julie A., Chair, Committee on Court
Administration and Case Management, Judicial Conference of the
United States.................................................. 7
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Norton, Hon. Eleanor Holems, a Representative in Congress from
the District of Columbia....................................... 58
Oberstar, Hon. James L., a Representative in Congress from the
State of Minnesota............................................. 63
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Goldstein, Mark Director......................................... 66
Peck, Hon. Robert................................................ 116
Ponsor, Judge Michael A.......................................... 123
Robinson, Judge Julie A.......................................... 133
SUBMISSIONS FOR THE RECORD
Goldstein, Mark Director, Physical Infrastructure, Government
Accountability Office, response to request for information from
the Subcommittee............................................... 108
Ponsor, Judge Michael A., Chairman, Committee On Space and
Facilities and Robinson, Judge Julie A., Chair, Committee on
Court Administration and Case Management, Judicial Conference
of the United States, supplemental information................. 14
ADDITIONS TO THE RECORD
Administrative Office of the U.S. Courts, James C. Duff,
Director, letter to Mark Goldstein, Director, Physical
Infrastructure, Government Accountability Office............... 150
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
ELIMINATING WASTE AND MANAGING SPACE IN FEDERAL COURTHOUSES: GAO
RECOMMENDATIONS ON COURTHOUSE CONSTRUCTION, COURTROOM SHARING, AND
ENFORCING CONGRESSIONALLY AUTHORIZED LIMITS ON SIZE AND COST
----------
Tuesday, May 24, 2010
House of Representatives,
Subcommittee on Economic Development, Public
Buildings and Emergency Management,
Committee on Transportation and Infrastructure,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:02 a.m., in
room 2167, Rayburn House Office Building, Hon. Eleanor Holmes
Norton [Chairman of the Subcommittee] presiding.
Ms. Norton. Good morning. And welcome to today's hearing on
the Government Accounting Office's draft report entitled
Eliminating Waste and Managing Space in Federal Courthouses,
GAO Recommendations on Courthouse Construction, Courtroom
Sharing, and Enforcing Congressionally Authorized Limits on
Size and Cost.
We are pleased to have two Federal judges with us this
morning, the Honorable Michael Ponsor, chair of the Judicial
Conference Committee on Space and Facilities, and the Honorable
Julie Robinson, chair of the Judicial Conferences Court
Administration and Case Management Committee, as well as the
Honorable Robert Peck, commissioner of the GSA Public Building
Service, and Mark Goldstein, GAO director of physical
infrastructure.
Today's hearing is one of several hearings that meet the
oversight requirements under clause 2(n), (o), and(p) of rule
11 of the Rules of the House of Representatives, which requires
each Subcommittee to have at least one hearing annually
dedicated to providing oversight on waste, fraud, and abuse.
We convene this morning primarily to hear from GAO
regarding a January 24, 2008, bipartisan request from the
Committee on Transportation and Infrastructure that the GAO
examine courthouse planning and construction, including
courthouse construction, management, and cost.
The draft GAO report contains astonishing and serious
findings about how the courthouse program has been managed and
the amount of money that has been wasted. GAO determined that
the 33 courthouses completed by GSA since 2000 include 3.56
million square feet of extra space, consisting of space that
was constructed above the congressionally-approved size, with
no notice to this Committee or Subcommittee; consistent
overestimation of the number of judges that courthouses would
be required to accommodate; and, failure to implement courtroom
sharing, despite the mandate of the Committee.
The total value of the unneeded extra space is $835 million
in construction costs and $51 million in annual costs in rent
and operating expenses, according to GAO. The amount of money
that GAO reports was wasted in overbuilding alone demands
address by Congress, because GAO has calculated that it is
equivalent to the cost of nine additional mid-sized
courthouses.
As the Nation is emerging from the greatest economic crisis
of our generation with unemployment at 9.9 percent and a
growing $12 trillion deficit, it is imperative that waste in
Federal spending be eliminated. The American taxpayer has no
stomach for such waste when services are being cut in Federal
programs and others are being scaled down or eliminated across
the entire country. Yet, criticism of a Federal construction
program is neither new nor misunderstood.
As far back as 15 years ago, this Committee asked the
Judicial Conference of the United States to address the issue
of cost containment. The hesitance in decision and absence of
resolve led to the draft GAO report we are considering today.
The report cites three principal forms of waste in the
Federal courthouse construction program. The construction of
1.7 million square feet--that is 1.7 million square feet--in
excess of congressional authorization. Of that number,
construction of 887,000 extra square feet was caused by
overestimating the number of judges the courthouse would have
in 10 years, and the construction of 946,000 square feet
because of lack of sharing in courthouses across the country.
Remarkably, a report prepared in 1996 by the Administrative
Office of the U.S. Courts, at the direction of the Judicial
Conference, entitled, ``Space Management Initiative in the
Federal Courts'', asked the judiciary to begin a process of
sharing. A segment of the report of the Administrative Office
of the U.S. Courts bears hearing. And I am quoting.
``Courtroom Sharing. The Congress has asked the Judiciary
to consider sharing courtrooms, and to determine the impact on
a judge's ability to try cases if courtroom sharing were
implemented. The Court Administration and Case Management
Committee, working in conjunction with other appropriate
committees, should be tasked by the conference to determine
what policy on courtroom sharing for active and senior judges
should be adopted, and whether the impact of any delays that
would result from sharing courthouses will adversely affect
case processing.''
This was the same conversation we were having with GSA and
the AOUSC 4 years ago. However, only in the last 2 years has
the Judicial Conference agreed to a very modest courtroom
sharing policy for senior and magistrate judges. Consequently,
today there are empty courtrooms across the country because of
resistance to the congressional directive to share courtrooms
whenever possible.
GAO's report states that the Judicial Conference also has
consistently overprojected the number of judgeships and the
number of senior judges that would be appointed 10 years from
the point of courthouse design. For 28 of the 33 courthouses
the GAO studied, at least 10 years have lapsed since design. Of
these 28 courthouses, 23 had extra courtrooms and auxiliary
space associated with empty courtrooms, space such as jury
deliberation rooms, attorney conference rooms, holding cells,
et cetera.
For at least two of these courthouses, the number of judges
required to be housed was overestimated by 10. Because approval
of new Article 3 judgeships and judge appointments relies on a
political process, we certainly can appreciate the difficulty
in making accurate predictions. However, with overestimations
of 887,000 square feet of wasted courthouse area, the Committee
intends to require the necessary expertise to account for
probable growth with sufficient accuracy to assure sound fiscal
stewardship of the government's resources.
The Judicial Conference appears to have taken leadership of
a major GSA construction program, rendering the public building
service of the GSA all but a nominal partner in the management
of the program.
With 3.56 million square feet of wasted space, GSA is
responsible for 1.7 million square feet of the overbuilt space,
nearly half of the total because the Public Building Service
provided poor oversight of the design and construction process.
This Committee, in deliberate and careful review, examined
each prospectus submitted by GSA and made an affirmative
decision to authorize each of these courthouses by resolution
at a certain square footage. Yet GSA exceeded the limits of the
Committee resolutions in 27 of the 33 courthouses completed
since 2000. In the case of the O'Connor Courthouse in Phoenix,
Arizona, and the Arnold Courthouse Annex in Little Rock,
Arkansas, GSA overbuilt the courthouses by over 50 percent,
creating several hundred thousand square feet of wasted space.
For some time now, GSA has considered not only the courts,
but Federal agencies to be GSA's coustomers rather than the
American taxpayer. Time and again, over the past decade, the
Agency has allowed the courts and Federal agencies to redesign,
reassign, and rethink space decisions with apparently no
thought of the financial considerations. The number of amended
resolutions has grown steadily, as has the cost of the court
program.
Twice in the last 6 years, this Subcommittee has heard
testimony regarding the judiciary's inability to pay for its
future and current space needs and the problems of the
courthouse construction program. Today, the draft report from
GAO finds that the Federal courthouse construction program has
been undisciplined and out of the control of the GSA, the
Agency charged by statute with administration of the program.
Not the courts, it is the GSA that is charged by statute of the
Congress of the United States with administration of this
program.
In the 2005 hearing, the judiciary as well as the GSA,
committed to a series of actions each entity would undertake to
control the court's runaway rental costs. The Committee did its
part by asking the GAO to review how the courts budget for
rent, how GSA accounts for rents, and what impact the court's
rent relief request of nearly $500 million would have on the
Federal building fund. GAO's review came in a June 2006 report
on courthouse rent increases and mismanagement, and contained
findings of multiple instances of unused or underutilized
courtrooms, chambers and support spaces, that there is no
criteria in the design guide to assign space to appeals courts,
even after 15 years of the Committee requesting such criteria,
and that judges have exclusive access to facilities in multiple
buildings.
In March 2004, the courts essentially imposed a 2-year
moratorium on courthouse construction because of the escalating
rental costs. Also in 2005, the Judiciary Space and Facilities
Committee committed to reviewing the space standards of the
U.S. Court's Design Guide with ``emphasis on controlling
costs.'' First, the Space and Facilities Committee began a
revamping of its long-range facilities planning process to
include ``examining staff and judgeship growth as well as the
space standard use for estimating square footage needs.''
Although GSA knew that the judiciary had difficulty paying
its rent bills, GAO reports that GSA overbuilt 9 of the 33
courthouses after the 2006 hearing. At least three courthouses
were more than 25 percent over the congressionally authorized
limit without any notification to this Subcommittee even after
we made certain that both the AOUSC and GSA knew that we were
deeply concerned about the issue of space saving and adherence
to the Committee's direction on cost containment.
In effect, GSA to some measure, turned a deaf ear not only
to this Committee's concerns, but also to the judiciary's
concerns about the inordinate rent costs associated with new
courthouses. GSA ran up the tab with overbuilding, apparently
oblivious of any hardship this might create for the judiciary
in funding its burgeoning rent obligation to GSA.
Moreover, several of the courthouse prospectus requests
submitted since that hearing still do not include courtroom
sharing on the scale that this Subcommittee has consistently
required. In surprising disregard of the Committee's mandates,
nearly every courthouse has continued to have a one to one
ratio of judges to courtrooms. The prospectus requests do not
reflect the level of sharing that GAO now finds has been more
than possible using the judiciary's own data produced by the
Federal Judicial Center.
It is fair to ask where GSA has been throughout this
process, why did the GSA not notify the authorizers that these
problems were continuing even after our hearings when the
judiciary continued to submit projects that were inconsistent
with our direction.
The conclusion is unavoidable: That little if any progress
has been made in controlling costs or managing the Federal
courthouse construction program after a decade of scrutiny.
This Subcommittee will withhold authorizing any new additions
to the court's inventory until we are convinced that the
Federal courthouse construction program is satisfactorily
reformed. There will be courthouse sharing where it is
appropriate and every courthouse on the court's 5-year
courthouse project plan will be reconsidered under new sharing
guidelines.
We do not plan to authorize any new courthouses without
details on real savings and programs to control spending. We
will need a list from GSA of all court projects that are
currently appropriated and designed so they can be evaluated to
ensure that they do not include the type of waste identified by
the GAO in its draft report.
This Subcommittee has a long history of bipartisan and
actually nonpartisan action, particularly when it comes to the
courts. Today, we will hear from all of the parties, and in
collaboration with them, we will begin a process of problem-
solving reform of a major Federal program. We intend to work
with the GSA and the courts to ensure good management decisions
on behalf of the American taxpayer. Legislation will be
necessary, and we look forward to working with the minority
towards a bipartisan solution to ensure significant savings for
taxpayers.
We appreciate the testimony of each of our witnesses today,
and we welcome your thoughts and suggestions.
It is now my pleasure to ask our Ranking Member if he has
an opening statement.
Mr. Diaz-Balart. Thank you very much, Madam Chairwoman. I
could almost repeat what you have just said. You mentioned,
among the things that you talked about, the fact that this
Committee works in an nonpartisan way. And it is true, very few
Committees work the way this one does. And it is because,
frankly, the leadership of the Committee. It has been that way
regardless of who is in control, and it remains that way with
you as Chairwoman and with Mr. Oberstar as Chair of the Full
Committee.
This is one area where we absolutely speak with one voice.
I want to thank you for holding this hearing. This is a key
hearing, and I know one that you have been talking about for a
long time, and we have just never had all of the right
information until now. Now we have it. For almost two decades,
this Committee has been one of the few voices talking about
this issue. We have argued for smaller courthouses and for
courtroom sharing and for stronger GSA management of the
program. And again, we suspected that courthouses were
overbuilt, but we didn't have the actual data.
Today the Government Accountability Office is going to
present its review of every courthouse constructed in the last
decade. Findings of government waste and mismanagement and
disregard for the congressional authority and authorization
process are, frankly, unacceptable and appalling.
First and foremost, there appears to be a complete and
absolute breakdown in the management and oversight of the
courthouse planning and construction. And as a result, GSA
built, as the Chairwoman said, 3.5 million square feet of
courthouses costing over $800 million, almost a billion dollars
which we just don't need and should never have been built.
Let's put that in perspective. That is as if we built three
House office buildings, including the one that we are in, three
of them, and left them empty. Think of that concept when you
are walking through this building and you see the size and
scope of this building. Think of three of these buildings
empty. That is what we have built using taxpayer money,
precious taxpayer money. It is totally unacceptable.
According to the GAO, the three main factors the Chairwoman
already talked about: construction of courthouses that exceeded
authorized size; the overinflated projections for future
judges; and the lack of courtroom sharing.
I was just reminded a little while ago that this Committee
has six Subcommittees. I don't believe we have six meeting
rooms. We share the meeting rooms. I know a lot of people will
argue that Congress is necessarily the most efficient
institution on the planet. However, that illustration alone
will tell you how problematic this overbuilding of courthouses
has been because they do not share. Even Congress shares, but
courthouses do not.
Again, the GAO reviewed 33 courthouses since 2000 and found
28 exceeded their authorized size limit. To add insult to
injury, GSA officials responsible for the construction of
several of the courthouses didn't know they were overbuilt
until the GAO mentioned it to them.
I think I need to repeat. Again: GSA officials responsible
for the construction of several courthouses did not know they
were overbuilt--these are the people responsible for them--
until GAO told them. That is what my understanding is, and I
hope to hear about that.
Again, on top of this mismanagement, the courts continued
to base their space decisions on projections that have been
shown to be flawed, to be unreliable.
Another 887,000 square feet of unneeded space was built
because U.S. court models for projections projecting the
numbers of future judges were overestimated by 35 percent. We
are not talking about a small margin of error here, we are
talking about huge percentages: 35 percent. For example, in
1995, the Long Island, New York, courthouse had 14 judges and
the courts estimated 25 judges by 2005. After building a brand
new courthouse, there are now only 15 judges at the courthouse,
one more than was previously there.
Today the courts continue to base their space decisions on
those bad projections despite nearly two decades of experience
that have shown us those are wrong assumptions and failed
experiences. More space and money could have been saved had the
courts instituted a courtroom-sharing policy. I mentioned that
a little while ago. The Chairwoman has mentioned that, and I
want to reiterate what she said.
A sharing model developed by the GAO clearly indicates that
sharing could have reduced the number of courtrooms by about 40
percent. 40 percent. Or 950,000 square feet of space. Those are
serious increases of space that taxpayers should not have to
pay for. These estimates are based on the court's own data of
courtroom usage, including cancelled events and nonjudicial
ceremonial uses.
We hold the trust for the American people, and it seems
that trust has been broken.
Courthouses have been built way too big for way too long
and for more money than ever needed, and that is the taxpayer's
money. They have the right to expect that their money is being
used efficiently and effectively. Here is a case where we can
demonstrate that has not been the case. This Committee has been
mentioning that for a long, long time. We have been
stonewalled, but now we have the information that proves it. It
is clearly appropriate that the judiciary have the appropriate
space to carry out its constitutional functions, and we all
support that, we must ensure that we are good stewards of
taxpayer dollars and we are not just throwing money away for no
good reason.
I hope today we can hearing from the witnesses to examine
those issues more closely. I also hope that the Committee will
use this information that we have gathered today to better
inform our decisions on current and future courthouse
authorizations. Again, this Committee has been mentioning this
for a long time. We have the data, and I want to thank, once
again, the Chairwoman not only for the hearing we are having
today, but also for Chairwoman's steadfast leadership on this
issue.
This is not new for you, you have been talking about this
for a long time. You have been right, the Committee has been
right, and the data is there to prove it and now we need to
take it to its next logical conclusion. I thank you for the
hearing, and I want to thank the witnesses for being here
today.
Ms. Norton. Thank you very much, Mr. Diaz-Balart.
TESTIMONIES OF MARK GOLDSTEIN, DIRECTOR, PHYSICAL
INFRASTRUCTURE, GOVERNMENT ACCOUNTABILITY OFFICE; HON. BOB
PECK, PUBLIC BUILDING SERVICE, COMMISSIONER, U.S. GENERAL
SERVICES ADMINISTRATION; JUDGE MICHAEL A. PONSOR, CHAIRMAN,
COMMITTEE ON SPACE AND FACILITIES, JUDICIAL CONFERENCE OF THE
UNITED STATES; AND JUDGE JULIE A. ROBINSON, CHAIR, COMMITTEE ON
COURT ADMINISTRATION AND CASE MANAGEMENT, JUDICIAL CONFERENCE
OF THE UNITED STATES
Ms. Norton. Let us begin with Mark Goldstein, director,
physical infrastructure, Government Accountability Office.
Mr. Goldstein. Thank you, Chairwoman Norton, and Members of
the Subcommittee. Thank for the opportunity to appear before
the Subcommittee this morning to discuss Federal courthouse
construction. The Federal judiciary and the GSA are in the
midst of a multi-billion-dollar courthouse construction
initiative which began in the early 1990's, and has since faced
rising construction costs.
As requested by this Subcommittee, for 33 Federal
courthouses completed since 2000, GAO examined: (1) whether
they contained extra space and any costs related to it; (2) how
their actual size compares with the congressionally authorized
size; (3) how their space based on the judiciary's 10-year
estimates of judges compares with the actual number of judges;
(4) whether the level of courthouse sharing supported by the
judiciary's data could have changed the amount of space needed
in these courthouses.
GAO analyzed courthouse planning and use data, visited
courthouses and modeled courtroom sharing scenarios and
interview judges, GSA officials, and other experts. The
findings in this testimony are preliminary because the Federal
judiciary and GSA are still in the process of commenting on
GAO's draft report and did not provide comments on this
testimony.
Our preliminary findings in this report are as follows:
First, the 33 Federal courthouses completed since 2000 include
3.56 million square feet of extra space; 28 percent of the
total, 12.76 million square feet constructed. The excess square
footage consists of space that was constructed above the
congressionally authorized size due to overestimating the
number of judges the courthouses would have, and without
planning for courtroom sharing among judges.
Overall, this space represents about nine average size
courthouses. The estimated cost to construct this extra space
when adjusted to 2010 dollars is $835 million approximately,
and the annual cost to rent, operate and maintain it is
approximately $51 million a year.
Second, GAO found that 27 of the 33 courthouses exceeded
their congressionally authorized size by approximately 1.7
million square feet; 15 exceeded their congressionally
authorized size by more than 10 percent; and 12 of these 15
also had total project costs that exceeded the estimates
provided to congressional committees, eight by less than 10
percent and four by 10 to 21 percent.
There is no requirement to notify congressional committees
about size overages, as is required for cost overages more than
10 percent. A lack of oversight by GSA, including a lack of
focus on not exceeding the congressionally authorized size
contributed to these overages.
Our third finding is that the judiciary overestimated the
number of judges that would be located in 23 of the 28
courthouses whose space planning occurred at least 10 years
ago, causing them to be larger and costlier than necessary.
Overall, the judiciary has 119 or approximately 26 percent
fewer judges than the 461 it estimated it would have. This
leaves the 23 courthouses with extra courtrooms and chamber
suites that together total approximate 887,000 square feet.
A variety of factors contributed to the judiciary's
overestimates, including inaccurate caseload projections and
long-standing difficulties in obtaining new authorizations and
filling vacancies. However, the degree to which inaccurate
caseloads projections contributed to inaccurate judge estimates
cannot be measured because the judiciary did not retain the
historic caseload projections used in planning the courthouses.
Finally, using the judiciary's data, GAO designed a model
for courthouse sharing which shows that there is enough
unscheduled time for substantial courtroom sharing. Sharing
could have reduced the number of courtrooms needed in
courthouses built since 2000 by 126 courtrooms, about 40
percent of the total, covering about 946,000 square feet. Some
judges GAO consulted raised potential challenges to courtroom
sharing, such as uncertainty about courtroom availability. But
other judges indicated they overcame these challenges, when
necessary, and no trials were postponed.
The judiciary has adopted policies for future sharing for
senior magistrate judges; but GAO's analysis shows additional
sharing opportunities are available. For example, GAO's
courtroom sharing model shows that there is sufficient
unscheduled time for three district judges to share two
courtrooms and for three senior judges to share one courtroom.
GAO has developed draft recommendations related to GSA's
oversight of construction projects ask the judiciary's planning
and sharing of courtrooms that we will finalize in our
forthcoming report after fully considering agency comments.
That concludes my statement. I would be happy to take any
questions that the Committee may have.
Ms. Norton. Thank you, Mr. Goldstein.
Our next witness if Robert Peck, Public Building Service
commissioner of the GSA.
Mr. Peck. Madame Chair Norton, Ranking Member Diaz-Balart
and Members of the Subcommittee, thank you for inviting me
today to discuss GSA's Federal courthouse construction program.
The Federal courts play a critical role in the
constitutional framework of American democracy. Local, State
and Federal courthouses are a traditional landmark dating back
to the founding of the Nation. As a steward of federally own
buildings, GSA is proud to build courthouses worthy of that
role. Federal courthouses must maintain the judiciary's mission
of ensuring fair and impartial administration of justice for
all Americans, while providing security for judges, jurors and
others engaged in the judicial process.
I want to thank you and the Members of this Committee and
the Congress for the authorization and funding we have been
given to construct this inventory. GSA has serious concerns
with this draft GAO report, and takes exception to much of its
methodology and conclusions. We welcome the opportunity to
clarify and correct the misinformation presented in the report.
One, GAO has used a space measure that assumes upper space
in building atriums and courtrooms is included in the gross
square footage of an asset when it is typically not.
Two, GAO compounded this erroneous assumption by mistakenly
ascribing normal operating and construction costs to these
empty volumes.
Three, GAO retroactively applies a methodology of courtroom
sharing to buildings designed in some cases more than a decade
ago, and then claims that the buildings thus previously
designed and built somehow violate this retroactive standard.
Most egregiously, one reading of the GAO report might
assume that GSA has willfully neglected congressional direction
in the courthouse program. On the contrary, GSA has
conscientiously sought and followed regular congressional
authorizations and appropriations, and has been subject to
strict congressional oversight of the program. We built only
courtrooms requested by the judiciary and authorized by the
Congress. GSA has been forthright and transparent in our
documents, testimony, and briefings to Congress.
GAO also discusses overestimating judgeship projections in
this report. GSA agrees this issue warrants further review
since these projections have been off the mark in the past.
This is a complicated issue, and we believe that GSA, the
judiciary, and the Congress should discuss a realistic approach
for the future.
GSA has concerns over the data in this report, as I noted,
and we dispute many of the findings. To be a little more
precise, when calculating the amount of extra space constructed
in courthouses, GAO counted the square feet in the building,
including tenant floor cuts and vertical floor penetrations in
multi-story atriums and double-height courtrooms that are in
reality phantom floors. We have included a diagram on page 6 of
the written statement that show graphically how this works.
GAO uses phantom square footage to calculate additional
costs supposedly incurred to complete the building. GAO divided
the total cost of the facility by the building's gross square
footage, multiplied it by the alleged amount of additional
space GSA constructed to determine the cost of the alleged
overbuilt space. These assertions and calculations are
inaccurate and grossly misleading. Costs for vertical space are
not the same as typical building or office space. The cost of
constructing, maintaining and operating this type of space is
significantly less compared to the rest of the facility, not
the glaring cost exaggeration in the GAO report.
For example, the O'Connor courthouse in Phoenix referenced
in the GAO report has an atrium that is not air conditioned. So
to assume these operating costs are the same as the space
inside other occupied parts of the building is inaccurate. GAO
also suggests that cost overruns were the direct result of
constructing additional space. These increases were actually
primarily due to unprecedented increases in construction costs
which escalated by 58 percent during GAO's review period.
Additionally, during the period covered by the audit, the
U.S. was attacked by terrorists which resulted in increased
costs for enhanced security.
In fact, only four of the 33 courthouses focused on by GAO
were over 10 percent of their cost authorizations and
appropriations. For the 33 as a whole, final costs were 8.8
percent over the original appropriated amounts which confirms
that in fact the gross overbuilding that GAO alleges did not
occur.
GAO asserts that 27 out of the 33 Federal courthouses built
since 2000 are larger than authorized by Congress. GSA
disagrees with GAO's claims since 50 percent of this square
footage is due to this atrium and tenant cut space that I have
noted. GSA bases our measuring standards on private industry
standards. If GAO applied that current private industry
standard, the atriums in all 33 products audited would be
excluded from the calculation, as I said, resulting in over a
50 percent decrease in square footage. Reasons for the
remaining 50 percent of the alleged 1.7 million square feet can
be attributed to site limitations, which requires us to alter a
design from the initial very conceptual design presented in
prospectus authorizations and constructing connections for
annexes and some of the space and connections resulting
therefrom, and new requirements including new design energy and
security standards.
GAO suggests that GSA should notify congressional
authorizing and appropriation committees if the size of a
courthouse exceeds the congressionally authorized gross square
footage. We will notify the appropriate congressional
committees when the square footage increase exceeds 10 percent.
We always ensure our projects stay within the statutory 10
percent of the appropriated and authorized amounts of dollars;
or we notify Congress accordingly and apply for either
escalation or reprogramming authority. We have multiple levels
of management and system controls to ensure costs do not exceed
this threshold.
GSA often has pressing and logical reasons to exceed the
original gross square footage. For example, during design,
architects can develop more energy-efficient methods, including
creating atriums and light wells to bring natural light into
interior, windowless space within the building that could
increase the building's square footage, but in the long run,
reduce energy costs. GSA will ensure that Congress is notified
of these increases in the future, as I said, along with the
reasons for the increases.
In estimating the cost for this additional space, GAO
applies current GSA space measurement policy retroactively in
its analysis. Although GSA adopted the American National
Standards Institute and Building Owners and Managers
Association measurements standards in 1997, GSA did not
establish formal national guidance to include atrium space in
the gross area calculation until fiscal year 2005. The 33
courthouse projects under review by GAO were authorized prior
to this policy.
So in other words, some of the confusion about measurement
is as a result of our having brought in one measurement
standard when we did the prospectuses, and another one later
when we actually measured the space and then did include the
atrium, the empty atrium and courtroom volumetric space in our
calculations.
GAO also asserts that GSA needs additional oversight and
controls over the management of our program. We already have
policies that require central office of GSA and the regions
during the design process to approve facility measurements and
ensure they are in line with the appropriation and
authorization. Additionally, we have measurement experts who
provide an independent evaluation of the design. Compliance
with the prospectus building size is necessary to proceed with
a project, and GSA will continue to educate our project teams
on these policies and ensure our measurement experts are
involved throughout the project phases.
We work closely with the judiciary to develop their
courthouse requirements. The judiciary has developed and
implemented policies that require courtrooms to be shared among
certain classes of judges. We commend the courts for developing
these new courtroom sharing models which were developed in
recent years.
GAO audited courthouses that were designed, and in some
cases, built before the judiciary and GSA implemented these
newer sharing models. It is important to note that this sharing
requires one courtroom for every two senior judges, and one
courtroom for every two magistrate judges. The judiciary and
GSA also implemented additional sharing policies for American
Recovery and Reinvestment Act projects of no more than one
courtroom for every two senior district judges who are up to 10
years in advance of their senior eligibility date.
It is important to note that GAO's findings were based on
projects designed before these sharing models were implemented.
We in the judiciary are committed to these courtroom sharing
policy for new courthouse projects with future plan designs.
This concludes my testimony. I appreciate the opportunity
to discuss the draft report and clarify the assumptions and
statements made in it. Thank you for inviting me to appear. I
am happy to answer your questions.
Ms. Norton. Thank you, Mr. Peck.
Ms. Norton. We will hear next from Judge Michael Ponsor,
chairman of the committee on space and facilities of the
Judicial Conference of the United States.
Judge Ponsor. Thank you, and good morning, Madam Chair and
Members of the Subcommittee. I am Michael A. Ponsor. I am a
United States District Court Judge for the district of
Massachusetts western division. Since last October, I have
served as chair of the Judicial Conference Committee on Space
and Facilities, and I am very honored to be appearing before
you for the first time today in that capacity.
Before my brief remarks, I do want to take the opportunity
to thank the Subcommittee for its support of the judiciary's
courthouse construction program. I have special reason to
express my gratitude since my community has benefited from this
Subcommittee's assistance and oversight in the form of
Springfield's new much-needed courthouse which opened in
October 2008 and which I work in every day.
I will be commenting on the GAO report, and I have two
points to make in my brief time: the first to praise; and the
second to demur.
First of all, the six recommendations offered at pages 47
and 48 of the GAO report are, in my opinion, sensible and
helpful. I welcome them. I believe they will mesh comfortably
with the efforts that the judiciary is making in this area, and
I look forward to working with this Subcommittee toward their
implementation. Some aspects of the recommendation regarding
courtroom sharing need more discussion and refinement, and my
committee looks forward to playing a role in these discussions.
My colleague, Judge Julie Robinson of Kansas, will be
addressing this topic in a few minutes.
Second, and less happily, I must say that the suggestion in
the draft report that the judiciary overspent to the tune of
$835 million in its courthouse construction program during the
period 2000 to 2010 is both unfounded and quite unfair and
distorts what actually happened. None of the three reasons
offered to support the draft report's claim of this kind of
overspending can withstand fair scrutiny.
The first explanation by GAO for the alleged excessive
cost--that we spent beyond Congressional authorization--is
particularly disturbing. As Commissioner Peck has pointed out,
supposed discrepancies between square footage contained in
courthouse prospectuses and the ultimate size of the courthouse
can largely be explained by differences between the GSA and the
GAO in how gross square footage has been calculated and
certainly not by any intent to evade or thwart the will of
Congress. The report's chart on page 15 identifies the
Springfield courthouse as having exceeded its authorization by
10 to 20 percent. I have not had access to the GAO's work
papers, but based on the documents I have seen, this is simply
untrue.
Between the design and construction phases in Springfield,
we actually deleted one of the five courtrooms originally
approved for the project. The construction prospectus predicted
a total 157,750 gross square footage for our courthouse. As the
building went up, I visited the site regularly and participated
in monthly construction meetings for more than 3 years with
representatives of the GSA, the architect, the contractor and a
senior staff member from Congressman Richard Neal's office. The
building's total square footage when it opened in October 2008
was 162,000 square feet, about 2 percent, not 10 or 20, percent
over prediction. If numbers for the other courthouses are as
far off as they appear to be for Springfield, the GAO overall
estimate of 1.7 million in excess square footage is not worthy
of credit.
[Additional information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The GAO's second explanation--that we planned for too many
judges--while true to some extent, is unfairly exaggerated. We
all have 20/20 hindsight. Between 1970 and 2000, the Federal
court's civil and criminal caseload skyrocketed. Congress
authorized more than 400 new district court and circuit court
judges over those 30 years, plus scores of new bankruptcy and
magistrate judge positions. It would have been irresponsible
not to plan for comparable growth in 2000 to 2010. The 119
judges that they say were excessively planned for, fall easily
within the average over the previous 30 years for congressional
authorizations. That the caseloads flattened out in some areas
of the country between 2000 and 2010, and almost no new
judgeships were approved by Congress during that time, does not
undercut the reasonableness of the planning decision in the
year 2000.
Predicting the number of judges necessary in a planning
horizon of 10 years or more is hard. We have welcomed the input
of the GAO in tackling this difficult problem, and we welcome
it today. Indeed, of the six recommendations about planning
offered by the GAO back in 1993, the courts by 2000 had fully
adopted five and partially adopted the sixth, which was largely
superseded.
As with the current recommendations, these GAO
recommendations served to complement the efforts we are already
taking in the judiciary. A 2-year moratorium on courthouse
construction starting in 2004, which has been noted by the
chair, gave the courts a chance to take a hard look at our
planning methodology and soon afterwards a new planning method,
asset-management planning (AMP), emerged. AMP gives us the most
accurate yardstick to date to identify courts and districts
that truly need new courthouses and major renovations.
The draft GAO report overlooks the fact that while it is
unfortunate to overestimate necessary court capacity, it can be
catastrophic to underestimate it. We simply can't shoot low.
New judges or senior judges will have no place to work or will
have to be farmed out into expensive leased space. Moreover,
while our planning horizon is 10 years, we all know courthouses
will be with us far longer. Where a courthouse is not full
within the 10-year planning horizon, it will inevitably be full
within a relatively short period afterwards.
The third explanation by GAO for the court's alleged
overbuilding is the failure to apply courtroom-sharing
policies, and it is similarly unfair. As I have noted, my
colleague, Judge Julie Robinson from Kansas, will address this
topic in detail. I will only say that it does not make sense to
criticize the courts for failing in the year 2000 to follow
courtroom sharing policies that were only recently adopted by
the judiciary after careful study and consideration.
The conclusion of the GAO report begins with a sentence
that I heartily agree with, and I believe all of us in this
room concur in: ``It is important for the Federal judiciary to
have adequate, appropriate, modern facilities to carry out
judicial functions''. As the committee chair tasked with
ensuring that the court's physical facilities are adequate to
perform our critical role, I find this sentiment somewhat
understated. The Judicial Conference has a very serious
obligation to ensure that the citizens of our country have
access to adequate, safe, and well-functioning Federal court
facilities.
I look forward to working with this Subcommittee on this
important but difficult task. I also look forward to a
continued discussion this morning, and am happy to entertain
questions.
Ms. Norton. Thank you, Judge Ponsor.
Ms. Norton. Finally, we will hear from Judge Julie A.
Robinson, chair of the Committee on Court Administration and
Case Management of the Judicial Conference of the United
States. We also welcome her mother, who has accompanied her
here as well.
Judge Robinson. Thank you, Madam Chair, and Members of the
Committee. My name is Julie Robinson, and I am honored to be
here this morning and thank you for inviting me. I am
accompanied by the lady who put me through law school, Charlene
Robinson. I am glad she is here with me.
I am a United States district judge in the district of
Kansas, and since 2005, I have been a Member of the Committee
on Court Administration and Case Management (CACM) for the
Judicial Conference of the United States.
Since October, like my colleague, Judge Ponsor, who is the
new chair of his committee, I became chair of the CACM
committee in October. I have been asked to testify today
regarding our committee's work in developing the Judicial
Conference's new courtroom sharing policies and share the views
of the judiciary on the recent report from the Government
Accountability Office on the planning and construction of court
facilities.
The primary responsibility of my committee is to ensure the
just, speedy, and inexpensive determination of cases;
inexpensive for the litigants, taxpayers, citizens, and others
who come before our court to take advantage of our core
mission. The availability of a courtroom is one of the
judiciary's most important tools in meeting this goal. As a
result, the Judicial Conference asked the Court Administration
and Case Management Committee rather than its Space and
Facilities Committee to take the lead in developing an
appropriate courtroom sharing policy for the Federal courts.
Thus, my testimony pertains exclusively to the sharing policy
and not to other issues involving the planning and construction
of court facilities.
My written testimony contains an overview of how we
developed the new courtroom allocation policies and the
judiciary's response to the GAO's report. But in my statement
to you today, I wish to emphasize some key points about our new
courtroom sharing policies and the problems with the GAO's
proposed report.
As you know, our committee asked the Federal Judicial
Center, FJC, to conduct the courtroom use study requested by
your House Subcommittee. The FJC conducted this study
independently by surveying 26 randomly selected districts
representing various-sized courts.
The committee based significant changes to the judiciary's
courtroom allocation policies on the findings of the FJC study,
but it also noted the limitations in applying the findings too
broadly or too literally. The FJC's findings provide national
averages, distorting the picture of the courtroom use in any
given court. If taken as an average, the existence of
underutilized courtrooms in some locations would negate the
need for courtrooms in other busier locations; or provide an
incorrect picture of the real number of courtroom hours in very
busy courts or for courts experiencing peak workloads. Thus,
the study's findings must be applied carefully.
The committee also noted that many courthouses were built
in a different era when demographics supported the facilities.
Even if no longer fully utilized, those facilities are an
important link to the judiciary and the national government in
those areas.
The committee cautioned that the courtroom usage data was
collected over two 3-month periods. Thus, it may not be a
complete picture of all courtroom use. For all these reasons,
care must be used in applying these national findings to local
projects.
We were careful in crafting the new policies to ensure that
courtroom sharing would not unduly impede current cost savings
or efficient case management. For instance, we accounted for
the impact that delayed justice has on litigants, attorneys,
crime victims, and others. We noted the cost savings of having
an available courtroom and its effect in encouraging the
parties to either be ready for trial or to settle their case.
And we tried to ensure some certainty in the prosecution of
criminal cases, costs such as travel and housing for defendants
in criminal cases, and we have worked with Congress to reduce
delay and cost in litigation.
The Civil Justice Reform Act of 1990, for instance,
required all district courts to implement plans to reduce civil
litigation delays. Those changes increased efficiency for the
courts, but imposed costs that have been borne by the
judiciary, including the need for immediate and certain access
to a courtroom.
With these considerations in mind, our committee devoted a
great deal of time and effort in developing an appropriate
balance between meaningful courtroom sharing and effective case
management. This effort included the FJC's comprehensive study,
our negotiations with other Judicial Conference committees, and
consultations with the House Subcommittee by my predecessor and
the predecessor of Judge Ponsor on his committee. As a result,
the Judicial Conference adopted a policy to provide one
courtroom for every two seniors judges and one courtroom for
every two magistrate judges. We currently have underway a
courtroom usage study of bankruptcy courts, and my committee
will consider a sharing policy for courthouses with more than
10 active district judges after the bankruptcy study is
complete. We expect the bankruptcy study to be complete this
summer, and we will be working on its findings this fall.
The draft GAO report proposes a number of sharing policies
that are very different from those endorsed by the Judicial
Conference, and include sharing policies that are still being
studied or considered by my committee. These proposals are
based on two sources of information. The first is a computer
model of the FJC study data that was developed by a contractor
for the GAO with no apparent claim to any particular expertise
in the judicial system. Any model must be based on certain
assumptions formulated by those with great expertise and
understanding. The GAO does not describe the assumptions used
to develop the model. Moreover, the GAO's recommendations,
which may well have been part of the assumptions, are highly
questionable.
For example, GAO asserts that the Nation's border courts
and those with higher pending caseloads do make greater than
average use of courtrooms, but other courthouses in those same
districts offset that higher use, they assume. Yet it is
entirely unrealistic to say that all courtrooms in a district
are fungible, no matter where they are located. Proceedings
cannot be easily transferred from one division to another, and
it is not good stewardship of taxpayer money to transfer cases
long distances and pay travel costs for U.S. attorneys,
assistant public defenders, marshals, prisoners, court staff,
and witnesses simply to find an available courtroom.
The GAO also assumes that every courtroom can be used for
10 hours each day. This is totally unrealistic and virtually
impossible. Aside from the fact that it inflates the workday of
a Federal employee by 25 percent, it assumes that jurors and
litigants and witnesses and family members can be present for
10 hours at a time. Those people would have trouble arranging
their schedules to spend the extra hours in the courtroom. This
assumption alone grossly distorts the GAO's resulting courtroom
sharing ratios.
I would also note that the GAO incorrectly assumes that
criminal hearings can be accomplished by videoconferencing.
Aside from the other participants that participate in criminal
hearings, this assumption dismisses the rights of a defendant
to have a criminal case hearing held in open court. I question
the wisdom of basing courtroom planning assumptions that are
premised on a waiver of a constitutional right and contrary to
the requirements for the presence of the defendant set forth in
Federal rules and case law.
The second source of information used by the GAO to support
its proposals is a set of comments elicited from a 1-day
confidential panel of individuals, a panel whose selection and
agenda were greatly influenced by the GAO itself, but who found
that courtroom sharing presented a number of problems that
would adversely affect the administration of justice.
Nonetheless, the GAO report discounts these judges' skepticism
over long term courtroom sharing, the disservice of
rescheduling an event due to lack of space, and the importance
of having a courtroom available to encourage resolution of
cases.
Let me share with you briefly from personal experience why
the quick and rudimentary modeling program employed by the GAO
would have disastrous results for the judiciary. If I am in
trial, my courtroom is not being used 2.7 hours a day. It is
being used at least 8 hours a day. In fact, I am in a heavy
season of trials right now. For the last 7 months, I have been
in trials almost back to back until last month--not unique, not
unusual, all judges go through heavy seasons, as well as light
seasons. There is no such thing as an average workday or an
average workload or an average work week for any of us.
The judges in my court use courtrooms heavily because when
we are in trial, we schedule other criminal hearings. We try to
sandwich those in at the beginning of the day or the end of the
day. Or we are in trial for perhaps only 4 days a week so that
we can set aside a full day to handle other matters. Even with
this scheduling, we have to overlap the scheduling of criminal
trials and civil trials. If I didn't overlap or stack set, as
we call civil trials, right now I would be giving litigants
trial dates for their civil cases in 2017 or 2018, instead of
2011 or 2012, if I were to specially set every civil trial that
needs to go to trial in my caseload.
We also have latent use of courtrooms, meaning courtrooms
that aren't in use because many scheduled trials settle once
they are given a firm date for trial. But this is unavoidable.
For example, I am starting a civil trial early next month. I
originally had 10 civil trials scheduled to start during that
same time frame. Nine of them have settled; I am scheduled to
go on the tenth. If that case were to settle today, I can't
fill that estimated week long period of time with another
trial. It is not enough notice to the parties and their
witnesses and their attorneys who likely are scheduled to be in
another courtroom during that time period.
In a courtroom sharing scenario, particularly for small and
medium-sized courthouses, we simply cannot insert another trial
at the last minute. And it is not only the tax dollars at
stake, we see litigants who are almost bankrupted by the costs
of litigation and discovery. Many of our cases that go to trial
involve small businesses who cannot bear the heavy costs of
litigation and the attendant costs of delay and rescheduling.
And also individuals pursuing their civil rights and their
rights under title 7 or other important rights.
An uninformed or hasty courtroom sharing policy will cause
delay, it will increase costs, and it will impair our ability
to dispense justice.
The key point I do want to make on behalf of the committee
and the Judicial Conference is that we have taken our
responsibility to examine courtroom utilization very seriously.
We have made significant changes in the courtroom sharing
ratios that we have adopted, and in our ongoing work with
bankruptcy courts and beyond to the larger courthouses
involving district judges. The judiciary has made great strides
in reducing construction and rent costs by sharing. The
policies reflect what the model simply cannot--the real world
experiences of litigants, parties, and judges who sit in these
courtrooms regularly. They also take into account the
legitimate concerns of your Subcommittee, that the taxpayer
money be wisely spent. Fundamentally, we believe that the
policy changes we are adopting strike the correct balance
between controlling costs and delivering justice.
I thank you, and I am open for any questions.
Ms. Norton. Thank you, Judge Robinson.
Well, Mr. Goldstein, since it has been three against one,
perhaps we ought to give you the opportunity to respond to some
of the testimony before we go forward with our own questions.
But before I do that, I was informed only after testimony began
that Mr. Johnson has some opening comments. Do you want to do
those now.
Mr. Johnson of Georgia. Thank you, Madam Chair.
Just briefly, I would like to say as a practicing lawyer
for 27 years, running between courthouses, both State and
Federal, trying mostly criminal cases but some civil, some
civil litigation as well, I do first of all appreciate the
Constitution for having set up the three legs of the stool, if
you will, of government. It is a three-legged stool, coequal
branches, coequal legs. If one of those legs should be chopped
off in any fashion whatsoever, then the stool starts to lean.
And if you cut it off altogether then, what you have is a leg
that is not able to function and you don't have a functioning
stool at that point.
So I think it is important that we remember that the
coequal branch, the judiciary, has to have resources to
function efficiently and effectively. And if judges are
underpaid, and I know that we are not talking about that today,
but if they are underpaid, overworked and are homeless, with
not having a courtroom or an office to work from where, you
know, where you are supposed to be at all times, it makes for a
judiciary that is not functional. And thus, it lays the
groundwork for the destroying of our great country which is
dependent on this coequal branch of government system.
Mr. Johnson of Georgia. Now, I realize Congress has
responsibility for funding the operations, and Congress needs
to be concerned about how the taxpayers' money is being spent
and making sure that it is wisely spent, but we should spare no
resource to support that third leg of the stool and to make
sure that it does what it is supposed to do.
And so I view--I have a strong suspicion that any
courtroom-sharing advice coming from outside of the court
itself is--and produced, I would assume, by nonpracticing
lawyers without an appreciation for juries, for pretrial
issues, for motions, for the expediency that criminal laws
require in the criminal law process, and some understanding of
the civil justice system and how judges play an intricate role
in terms of how those cases are decided either through pretrial
motion or through things like trial settings, setting dates
which encourage people to engage in either alternative dispute
resolution or just plain settlement-- there is so many niceties
that go into this, and I am not sure lay people can appreciate.
So thank you, Madam Chair, for allowing me to make this
statement. I will ask some questions, of course, to gain more
knowledge about these issues. Thank you.
Ms. Norton. I thank the gentleman. And I remind the
gentleman that this hearing is not about cases and
controversies, and that the Committee has always been
respectful of the independence of the judiciary. And we want to
make it clear again, the judiciary is not independent when it
comes to building space. That is the province of this Committee
and the Congress, which authorizes the money and is going to
see to it that the money is spent. This hearing is about $835
million in taxpayers' money that was spent beyond the
authorization of this Committee. This is a Committee that
abides by the law, and the courts are going to abide by the law
when it comes to space and the authorization of this Committee.
Now, I had asked you, Mr. Goldstein, since it was three on
one on the GAO report, whether we should allow you to respond
to some of the challenges to the GAO draft report. And it is a
draft report. And Mr. Peck and all others are going to have the
opportunity to respond in writing, but perhaps you would like
to respond to their criticism of the report.
Mr. Goldstein. Thank you, Madam Chair. Just a few comments
at this point.
I very much appreciate the panelists' comments because, as
we have said, it is a draft report. And we use a draft report
to be able to engage and obtain comments and try to come to
greater agreement, which we will do once this report is
finalized.
Just a few real quick comments. I think I would hope that
Judge Robinson particularly might read the report again,
because I feel that a number of the issues that she raised
today, she made assumptions that she took out of the report
that aren't quite accurate, as well as I think there are some
things that she mischaracterized and did not fully explain. So
I hope that she will reread the report before the judiciary's
comments are provided to us in full.
With respect to Commissioner Peck, GAO and GSA have long
had a very strong relationship and have worked together very
well over the years. We can have honest differences, and it
appears in this case we do. But I would make a few comments
regarding Mr. Peck's charges where he feels that we did not--
where our calculators were wrong. So let me make a few
comments.
First of all, GAO relied on GSA to provide us all the
information in the report. All the numbers we used are GSA
numbers. GAO did not independently measure anything; we did not
make any independent policy decisions. We used the policy
guidance and standards that GSA has had in place.
For the 33 courthouses in the scope of our engagement, GSA
provided us the total gross square footage via its E-Smart
measurement database. This total gross square footage, in line
with GSA's policy, includes the upper level of atriums and
tenant floor cuts as part of gross square footage. So I don't
know why Mr. Peck is saying that is not the case.
For our seven case study courthouses, GSA provided us with
the blueprints with the space already measured and classified
according to GSA policy. We verified that these measurements
were equivalent to the measurements in E-Smart, but made no
independent measurements or space classifications on our own.
Therefore, the extent to which the upper level of the atrium
floors and tenant floor cuts are counted as useable space are
determined by how GSA classified them. Upper levels of the
atrium floors are counted as part of the gross square footage,
but not as usable space. Tenant floor cuts for courtrooms are
counted as usable space for the most part and included in
rental calculations to the judiciary, unless the tenant floor
goes up to the penthouse, in which it is not included.
GSA's current policies on how to classify and count this
space have been in existence since at least 2000. Mr. Peck's
description of 2005 is not correct. During the course of our
engagement, we received the GSA policy provided to regional
offices in 2000 that describes the equivalent policies
regarding the measurement of atrium and tenant floor cut space
as GSA's current policy. Atrium and tenant floor cuts are not
the only reason that these courthouses are larger than
authorized. For example, the Ferguson Courthouse in Miami has
more than 50,000 square feet of tenant space, and planned each
of its 14 district courtrooms are about 17 percent larger than
design guide standards.
Of the seven courthouses we examined in case studies, three
of the seven had atriums large enough to be major contributors
to the size overages. And we certainly don't dispute that large
atriums push gross square footage. That is obvious. But the
other four had no atriums or had atriums too small to be major
contributors to size overages. On these four, the size overages
were largely caused by other issues such as extra tenant spaces
or extra mechanical or common spaces. These four courthouses
were all larger than authorized by percentages ranging by 5
percent in Tucson to 26 percent in St. Louis. Furthermore, of
these four, only St. Louis had tenant floor cuts. So that issue
is only a small part as well.
So those are just some of the things that obviously we will
talk about more in our final formal comments once we receive
GSA's comments. Thank you, ma'am.
Ms. Norton. Thank you, Mr. Goldstein.
Mr. Peck, you can see the Committee is concerned that the
authorizing committee was not informed. You talk about
informing the appropriate committees. Do you understand that to
mean the authorizers as well as the appropriators?
Mr. Peck. Yes, ma'am. Absolutely. And let me just make a
point about the difference of measurements.
This is a complicated issue in the private sector as well
as in the public sector, because it is always hard to explain
to someone how a given floor plate, a floor of an office
building, much simpler than a courthouse, can have different
measurements. But whether or not you count the cuts in the
floor for elevator shafts or even for electrical conduits and
water pipes, whether those count as gross or net square footage
to be charged to a tenant are issues of significant debate, in
the private sector as well as in the public sector.
So what we have here is a situation that works like this:
When we come to you for a prospectus authorization, and, as you
know, we have detailed discussions with your staff and with the
Committee about almost every one of those, we come to you at
the beginning of a design process for an authorization.
At the beginning of that design process, we take the
generic requirements of a court, which is done by multiplying
the amount of square footage that you need for the number of
courtrooms, the associated circulation space; ancillary spaces
like attorney conference rooms, jury rooms, jury assembly
rooms; plus space of other agencies that typically go with
courthouses, like the marshals, sometimes parole and probation,
and we give you a generic square footage and an estimate of the
dollar amount that will be required to build the courthouse.
During the course of detailed design and construction,
however, we make decisions about how we will align the
courtrooms within the building, whether there will be an
atrium, for what purposes they are. And so at the end of the
process, we have built a building, and we have focused very
much on our overall dollar authorizations and appropriations.
Square footages can vary. And as I can tell you, in the
Miami courthouse, a huge amount--I am sorry, the Phoenix
courthouse, a huge amount of the extra footage is accounted for
by a very large covered atrium, which we and the designer might
have made the decision to keep as an open courtyard, but we
enclosed it, and that adds to the gross square footage of the
building.
The problem I have with the GAO calculations is that GAO
then takes that empty square footage, multiplies it by the
dollars per square foot that you normally apply to building
enclosed courtroom, corridor, jury room space, and says all of
that money is wasted. So this $835 million estimate is just
flat out wrong. And it is----
Ms. Norton. Mr. Peck, I think that is a fair point. But we
are still left with 50 percent overbuilding. Let us give you
your atriums. And I don't want to see any more atriums.
Taxpayers are paying for space. Programs are being cut across
the United States, and nobody knows when this economy will come
back. The President has put a freeze across the board. Do you
think we are not going to freeze here as well?
Even if I give you those points, let us say 50 percent of
this space is attributed to atriums and tenant floor space,
that leaves 800,000 square feet overbuilt for other reasons.
Now, I mean, all we want--we are not playing a game of
gotcha here. We are trying to find a way to make sure this
doesn't happen again. And with that much overbuilt space,
wasn't there a legitimate reason to come back to the Committee
for additional congressional authorization? You act as though
once you give it to us, these things happen. Do you really
expect us to sit here and take that?
Mr. Peck. Because we have mostly in hearings here and in
the authorizing committees on both sides of the Hill and in the
Appropriations Committee focused very much on the cost of our
buildings, as I know you all want us to. We haven't focused as
much on whether the square footage during the course of
detailed design, both because of measurement anomalies and
because of changes in the scope or design standards, add square
footage so long as it doesn't add to the overall cost of the
project.
Ms. Norton. Square footage equals costs. Square footage and
costs cannot be disaggregated that way.
Mr. Peck. No, they can, because there are gross square
footages. For example, the empty square footage of the top 30
feet of space in this room doesn't cost anything to build.
Ms. Norton. I granted you that. And we still find 50
percent overbuilding. And you say that the standard for
reporting square footage overages are to be 10 percent. Let us
just look at that for a moment.
While the costs may not completely be within your control,
Mr. Peck, certainly the design should be substantially, if not
completely, in your control. Wouldn't GSA task its architects
to design to the authorized square footage of this Committee,
period?
Mr. Peck. We certainly could, but that would be a mistake.
Ms. Norton. And if so, why would we need more than 5
percent leeway?
Mr. Peck. I know, but here is what happens. May I give you
a current example of how this can come about, how the square
footage doesn't necessarily increase the dollar amount?
We are--on one courthouse project we are undertaking now
under the Recovery Act, I believe it is Recovery Act funding,
we are going to add a security pavilion to an historic
courthouse.
Ms. Norton. What is that? What is a security----
Mr. Peck. A security pavilion means that we are going to
build out from the front entrance an enclosed space for the
marshals and the court security officers to process visitors so
that they don't actually get into the more seriously intense
part of the building.
Ms. Norton. Sort of like the visitor center here?
Mr. Peck. Yes, ma'am, Although it is much smaller.
Ms. Norton. Yeah.
Mr. Peck. No comment. It is, however--in that case, we are
going to be able to build that space within the budget that we
already provided for the renovation, because we found ways to
save money on the rest of it. We are adding square footage.
I will grant you, and I will tell you the judges have said,
I have said, we should come back to you, We have not done it
before. I would like to say it hasn't occurred to us because
we've been so focused on costs. We will get back to you when we
are getting square footage increases as design occurs. But one
thing I will note to you that atriums in many cases, atriums
sometimes called light wells, are a feature of many historic
buildings and many current buildings in the interest of saving
energy. So rather than have a strict standard when we are just
coming to you for the first authorization and saying, let us
never build a square foot more than we first anticipate, I much
prefer the approach of coming back to you and saying, here is
why we believe the square footage is going to increase, and
particularly is that square footage going to increase the scope
of the project beyond what the Committee intended, and is it
going to increase cost. That is something we certainly want to
come back and discuss with the Committee.
Ms. Norton. Well, of course. As you know, Mr. Peck, this
Committee has the greatest respect for the flexibility that is
necessary in any and all building. What we don't respect is our
authorizations being ignored. Yes, we are indeed--as long as we
can have a discussion about increases in square footage given
what the GSA has found, we will be fine. And there may be
perfect reasons to increase. We just need to know it, because
ultimately we are accountable, too.
We know that--we don't believe that you are building
atriums in large open spaces any longer. Are you?
Mr. Peck. Not as large as some we have seen in the past.
But, again, I don't want to rule them out in----
Ms. Norton. The first time that I ever heard that an atrium
saves energy. I would be most interested in that.
Mr. Peck. Remember, the difference between an atrium and a
light well, which we don't count as gross square footage, is
whether you put a roof over it. And the point of an atrium, the
point of buildings like our headquarters building that is in
the shape of an E, was that in the old days when you couldn't
get so much lighting and air conditioning and mechanical
ventilation into a building, you need to have areas that were
open. Getting daylight into a building reduces the energy that
you require to put in artificial lighting. So that is one
reason.
Ms. Norton. And as GSA has made some good progress on green
roofs of various kind, if this is a variation on a green roof
and you can show us that it saves energy, that is precisely
what we are after.
We are aware that the largest expense in building
construction is the external skin, the curtain wall. So if
buildings are, by volume, larger, they will be more expensive.
And we believe we have a mandate not to--Mr. Peck, I have been
on this Committee for 20 years. You haven't been here all the
time I have been on this Committee. When I came to this
Committee, there was scandalous things being done to build
courthouses. There were all kinds of--at taxpayers' expense,
there was overbuilding welcomed, given the kind of luxurious
spaces, extra kitchens, extra lavatories, extra gyms. I mean,
this was a scandal in the courthouse.
Now, that has been drawn in. Now we are in overbuilding. I
think I should be grateful, having been on this Committee for
so long, that we are not building luxurious courthouses. There
were actually judges who sat here who said that it was
necessary for the administration of justice to have high
ceilings, as if they had calculated in some way that justice
would fall down if the ceilings were beneath a certain height.
It was absurd. And it came from GSA--and here is where you need
statutory help--GSA buying what some judges were saying. And,
you know, we are Article 3 judges. We have to deal with cases
in controversy; ergo, we have to do with everything about the
courthouse.
Absolutely not. When judges begin to collect the money to
build the courthouses, they will have that responsibility. As
long as the Constitution gives us that responsibility, they are
not going to peel off from the Congress the responsibility to
stay within the mandated authorization of this Committee and of
the Congress of the United States.
So I am pleased we are where we are, given that I know
where we have been before.
I am going to ask the Ranking Member, before I proceed with
further questions, if he has any questions.
Mr. Diaz-Balart. I do, Madam Chairman. Thank you very much.
Mr. Peck, you just mentioned that you would rather come
back to the Committee as opposed to just not allow you to do it
for any cost increases, projection increases. Are you telling
us now that before 2007, that was the case, and anything over
10 percent you would come back to this Committee? Are you
committing now to do that again, to start doing that again;
that if GSA sees that the cost is going to be 10 percent or
above, that you would come back to this Committee as opposed to
just move forward on it?
Mr. Peck. Yes. Mr. Diaz-Balart, what I was referring to was
the requirement we have in appropriations. If we go over 10
percent, we have to ask for a reprogramming.
What I am saying is that if we think the square footage is
going to go over 10 percent or whatever percent you choose,
could be zero percent, on the square footage that we initially
report, we are happy to come back and describe it to you and
tell you the costs, obviously.
Mr. Diaz-Balart. I think what you need to do is come back
and request an amendment of that authorization. And is that
what I am hearing is that you would come back and request an
amendment of the authorization?
Mr. Peck. What I would prefer in the interest of management
that is more efficient is some percentage of flexibility,
because before we have to come back and get an amended
prospectus, and here is why.
Here is why, when we first come back to you with a design
prospectus, it is based on a very generic program for a
building. We then have to apply it to a site that we acquire.
All kinds of things come in. And things can move up and down in
the square footage we need. And rather than have to come back
to you, because then we have to wait for you to have a hearing
and a markup, I would rather have some leeway in there, but
with the understanding that we would always report a square
footage and perhaps have your staff at least have some leeway
in there before we have to amend the prospectus.
Mr. Diaz-Balart. We are now--just to make sure we are
understanding each other, what used to be the case was over 10
percent is when you would come back. Ten percent leeway is
leeway. Now, even for Federal standards, 10 percent leeway is a
heck of a lot of leeway.
What I am asking you is do you not think--which is what you
used to do before 2007--that you would come back to the
Committee to ask for an amendment if it is above 10 percent?
What is the right number? How much leeway; is it 30 percent, 20
percent, 50 percent? You don't think 10 percent is enough
leeway?
Mr. Peck. I think 10 percent--like I said, 10 percent would
be enough leeway to not have to come back to the Committee. And
anything, if we hit 10 percent, we should have to come back to
the Committee.
Mr. Diaz-Balart. For an amended authorization. All right. I
just want to make sure, because--again, I want to make sure of
that. Our frustration, and that is why we speak with one voice
here, is because we keep hearing--I hate to say this, with all
due respect--a lot of excuses du jour. Again, you are saying
that you want leeway. I ask you 10 percent; I got your answer.
I am not going to hound on that. So we do expect, because, as
you just said right now, that you would have to come back to
this Committee for authorization, for an amendment
authorization of anything over 10 percent, correct?
Mr. Peck. Yes, sir.
Mr. Diaz-Balart. OK. Great.
Now, Mr. Ponsor, we all understand the importance of making
sure that judges have the space they need. But regardless, it
is very difficult to argue, and this report confirms it, that
there are not empty spaces and courtrooms that are overbuilt.
And yet when I heard your testimony, it was--and, again, very
respectfully, I want to make sure I didn't misunderstand. I am
almost hearing the fact that, yes, you said there are six
suggestions that you like, but almost kind of justifying this
overbuilding as if it really wasn't happening.
And let us focus on some outcomes, specific outcomes. Let
us focus, for example, on in Long Island or Washington, D.C.,
or even in Miami where I am from. Are you going to tell me that
those are not seriously overbuilt?
Judge Ponsor. I am not going to tell you that there isn't
overbuilding in those three courthouses that you just
identified. I have been to the Islip courthouse. It was built
larger than it should have been. I agree with you.
There are specific reasons with regard to the Miami
situation that I think help to explain what happened. I am not
going to sit here and try and justify it to you. When I read in
the report, I will tell you frankly, that they have 2,800-
square-foot district courtrooms in the Miami courthouse, I was
like the cartoon character whose hat flies up in the air with a
big exclamation mark next to it. We have 2,400-square-foot
courtrooms. That would not happen today. We are tightening
things down. Those courtrooms should not be 2,800 square feet,
and I am committed to controlling that. We were talked into
that, I am told, historically--it was not on my watch--by
judges saying that they need 2,800 square feet because they
have multidefendant trials. I have a 27-defendant drug gang
coming before me. Don't tell me that Miami needs extra big
courtrooms because they have multidefendant trials. We have an
obligation to control that.
Now, we do have the building there that is contaminated
with mold. That is no longer on our rent rolls. We have had to
take it off the rent rolls. The Ferguson Building does have
problems. There is a complex there that has difficulties. But I
am not going to sit here and tell you that the building in
Miami was one of our good planning days.
As far as the Prettyman Building here in Washington, D.C.,
I am frightened to even get into a conversation with you about
it because you know it much better than I do. The only thing
that I can say about the building is that it is one of those
situations where our resources really can't be overwhelmed. We
are maxed out on that site. That is going to be the courthouse
for the next generation. We have got to have the resources to
deal with what is going to be thrown at that court. We have
nine judges in that court right now who are very close to
coming into senior status; they are going to keep working, we
are going to need space for them. They have a high security
courtroom there with the plexiglass security screen. They have
an Internet hookup with Gitmo for some of the proceedings
related to Guantanamo.
That is a court that is very heavily used. It is also being
used by the Washington Superior Court. It is being used by the
Court of International Claims. It is one of those courts that,
like my good friend Judith Resnik talks about wanting to use,
we want to use the courtrooms more. We don't want them to be
empty.
But let me say one thing about capacity and the fact that
some of the courtrooms are not always being used. I know this
may be an awkward analogy, but it occurs to me. My son, who I
am very, very proud of, is on his third deployment in Iraq
right now. He is up in a helicopter. They send the resources
over there not to deal with averages. They don't send the
resources over there to deal with minimal demands. They have to
deal with anything that is thrown at them, and they have to
have the capacity for the peak demands.
We know these peak demands are going to be coming along. We
need our courthouses. We are the institution that cannot be
overwhelmed. We have to have the resources.
If I can shift my analogy, it is like a power grid. The
power grid is not designed to deal with averages; it is
designed to deal with peak demands. We know the Augusts are
going to come along, the hot weather is going to come, and we
have to have the resources.
Mr. Diaz-Balart. But, sir, with all due respect, we can all
start talking about in general terms about where, what we need.
But when you look at the actual facts on the ground, we are way
beyond that. We are way beyond that. You know, the D.C. One, it
was designed for 41; 10 years later we are, what, 39 judges.
So I don't care what analogy you use, sir, power outages,
power companies, you are way beyond that, you know. And I am
glad, by the way--and let me first thank your family for its
service to the country. Yours, but also your son's, which is
important to know, and it is important to recognize it.
Judge Ponsor. Thank you.
Mr. Diaz-Balart. But using that in context, $800 million in
overspending, that is a heck of a lot of armor for helicopters
that we are not funding, et cetera. So let us put it in
perspective.
Here is the bottom line, because we can talk about
specifics all day long. I think the report has a lot of
specifics. I would respectfully ask also what Mr. Goldstein
said, that you all reread that report and look at the bottom
line. And as opposed to coming up with all sorts of reasons why
the overbuilding took place and all sorts of excuses as to why
the overbuilding took place, that we figure out and we find
ways to stop it. Not to just look at, oh, yeah. No. How do we
stop it? Because you are looking at real numbers here, real
money. And as the Chairwoman said, particularly in tough times,
we have to be even more conscious of that.
Judge Ponsor. If I could respond for a minute and a half.
It is a painful accusation.
Mr. Diaz-Balart. It is not an accusation.
Judge Ponsor. In my mind, most respectfully, it is an
accusation that is not fully supported. And I agree that there
should be no overbuilding, and I agree that individual courts
can be criticized. But the criticism contained in this report
is very substantially exaggerated, in my opinion. And I
understand, anyone would be concerned at an $835 million waste
of taxpayer money.
In my opinion, the amount was nothing like that. And that
number, to allow it to hang in the air without response is
something that I really can't do. That number is an unfair and
exaggerated number, in my opinion. Let me give you a specific
example.
Mr. Diaz-Balart. You will have the opportunity to respond.
Judge Ponsor. And we will. In my courthouse they say we are
10 to 20 percent over the authorization. I asked my people to
pull the construction prospectus. The construction prospectus
is 158,755 gross feet. The final courthouse is 162,000 gross
square feet. I am surprised we went over even by that much,
because we cut one courtroom out of the process when we were
going through it. We were really killing ourselves to try to
keep this courthouse down to what it should be, and I think we
succeeded. We are 2 percent over, not 10 to 20 percent over.
That is the fact. And I don't know about these other numbers. I
don't have the GAO working papers. And we have been given
nothing from them to work with.
Mr. Diaz-Balart. And I think it would be unfair now to go
into the specifics of every single issue, and obviously you are
going to have the opportunity to look at that, to review that,
and to get back.
I do want to, though, mention another issue. I understand,
for example, the L.A. courthouse, which is something this
Committee has been dealing with for a long time, supposedly--my
understanding is there are fewer judges today in L.A. than
there were over 10 years ago, which is when the courthouse was
proposed. Is that L.A. courthouse still a huge priority for the
judiciary? Number one priority, is my understanding. Is it
still designated as a space emergency?
Judge Ponsor. Yes.
Mr. Diaz-Balart. Can you explain why?
Judge Ponsor. First of all, I want to compliment you,
because you are doing a very good job of putting your finger
right on our sore spots. The L.A. courthouse, as you know as
well as I do, has been a huge difficulty for all of us. It
remains our number one priority. It is a very important
courthouse. It is, what, the second largest city in the United
States, I guess. It is an important facility. I think the Chair
has visited it. I have visited it. I have walked around the
courthouse.
It is a dangerous courthouse. It is a courthouse that is
falling apart. It is a courthouse that is hard to try cases in.
And we need a solution in Los Angeles. We do not have that
solution right now. And we are going to work closely with you
on anything that happens in Los Angeles.
Mr. Diaz-Balart. I appreciate that.
Judge Ponsor. If you don't want to call it a space
emergency, it is an emergency. It is a very nonfunctional
situation that is hard on the courts. I cannot comment on
whether the number of judges has gone down. I just don't know
that.
Mr. Diaz-Balart. Well, again, here is where we are having a
hard time understanding. This Committee authorized $400
million. Now, $400 million in anybody's book is real money.
Judge Ponsor. Yes, it is.
Mr. Diaz-Balart. I understand that. I guess the request is
$1 billion. You know, when we are dealing with--there are still
unutilized--there is unutilized space there. Already you have
fewer judges today than there were 10 years ago, my
understanding. You have $400 million that has been sitting
there. And the attitude is we have less judges, we have
unutilized space, we have $400 million sitting there, and that
is not enough. Now, you see that that is our frustration.
Judge Ponsor. I can understand it.
Mr. Diaz-Balart. So I am not trying to pick on a specific
issue, but here is what I think we need to see. We have a
report that shows that there are serious problems. You have
mentioned some specifics; you are saying that those numbers may
not be quite right. Nothing is perfect in life, I understand
that; however, I am telling you right now one case that we are
familiar with, that this Committee is familiar with, L.A., I am
not quite sure what the report says about L.A., but I don't
know if it is underreporting, overreporting. What I am telling
you is that it is hard to argue the case of L.A., and yet it is
still a huge priority. And you have $400 million sitting there,
and that is not enough. Don't you understand where our
frustration comes from?
Judge Ponsor. I certainly do.
Mr. Diaz-Balart. And do you not understand, sir, why the
American people have to be saying this is totally broken? Four
hundred million dollars is not enough in a situation where you
have, again, less judges today than when this thing was planned
for. You have $400 million in the bank, you have unutilized
court space, and it is still not enough. And people are losing
their jobs.
Judge Ponsor. Mr. Peck may want to comment on that. He may
know better than I.
Mr. Peck. Two things. One is on Los Angeles, I understand
before I came back to GSA that there was an estimate at some
point of a $1 billion project. We are trying to rescope the
project; we will be nowhere near $1 billion, I can tell you
that. I am aware of how much money we have in bank, and we are
going to try to bring in that project as close to that number
as we can. But it has not been built. So we have not overbuilt
it yet.
Ms. Norton. Would the gentleman yield for a moment? When it
was authorized, it was not $1 billion. But because you have let
the money sit in the bank with costs, of course, construction
costs, going up, somehow the people think this Committee--I
regard this as nothing--it is not a stalemate, it is a strike.
Congress said $400 million it has got to be 10 years ago. They
decided that wasn't enough then. You come back. Yes, I
understand you, Mr. Peck. It is $1 billion; it is probably more
than that now. Does anybody really think we are going to get up
off of more money for the L.A. courthouse? It can just sit
there as far as we are concerned.
Mr. Peck. Well, what I was going to respond to, we need to
take a look at--I have heard this, too, that there are fewer
judges than there were before. Normally when we hear that, it
is because some judges who were on senior status have retired
or have passed away or something has happened. But we will get
back to you on that.
But one thing I do want to clarify again. There is a
bottom-line number here that I have alluded to that I want to
say again so that we can get over the $835 million number. We
added up the appropriations that we got for the 33 courthouses
studied by GAO. The total appropriated dollar amounts--and
these are completed buildings--was $3,046,000,000. And the
funding required for completion was 3,314,000,000. So that was
an increase overall of about 8.8 percent.
So just so we don't--just so we get out of this sense that
there has been some huge overbuilding of the program, I am just
telling you that we held to within 8.8 percent of our budget.
And I have to tell you, having just come out of the private
sector projects, that is a pretty good record as well.
Mr. Diaz-Balart. Again, a couple things. There seems to be,
however, a consensus--and nobody is denying that we are
overbuilt, number one. Number two is almost 9 percent--being
within 9 percent of the budget is not exactly something that I
think any of us should be proud of.
Mr. Peck. No, sir. But in a period in which construction
costs escalated for various reasons in this country, because we
were building in a period generally of an industry boom,
construction costs escalated by about 58 percent during that
period, and we held our costs to an 8 percent overage. So I am
just telling you there are reasons. I am only--when I say I am
really proud of our project is when it is on time, on budget,
and now as we now say on green.
Mr. Diaz-Balart. And I agree, that is when we should be
proud. Again, there will be ample opportunity to discuss the
real specifics of the report.
Let me just go to another issue, if I may, Madam Chair. The
issue of how--the estimates of how many judges are going to be
there in the future, and that is obviously something that has
not worked. I am not pointing fingers or blaming anybody. It
was not done on purpose, but we know it doesn't work. We know
those estimates have not been accurate. Are you looking at
changing that? Are we throwing that out finally because we know
it is not working, and coming up with a more accurate way of
determining, of making those estimates?
Mr. Peck. I think we have already thrown it out. We at the
beginning of this program back in 1993, 1994, whenever you
count the beginning, I believe we were looking at 30-year
requirements on the court. We were assuming that there would be
judgeship bills coming rather regularly. That has not been the
case, but we have not made those kinds of projections on recent
courthouse designs.
But as I said in my testimony, we are in conversations with
the courts, and we would--I believe all of us, including you
and the Members of the Committee, need to come together and
reach an agreement on how we do project needs for courthouses
as we go forward, because all of us, it is not an easy
business, but we sure ought to have an agreement on how we are
going to go about doing it.
Mr. Diaz-Balart. We have a long list of knowing that it is
not working.
Mr. Peck. That is correct.
Mr. Diaz-Balart. And that is not recent. That is 20 years
or whatever that may be.
Now, the issue of courtroom sharing. You know, I do want to
just very briefly--I mentioned a little bit at the beginning,
it makes no sense to me why we are not doing a lot more of
that. A lot more of that. Is it a little bit more difficult to
share? Maybe. But, you know, there seems to be a trend now
around the country where we have to more thoroughly utilize the
people's assets, and this is one where we clearly can do a much
better job. The report shows it. The Committeehas been saying
it. The Chairwoman has been saying it for a long time. And I
hope that is not something that is also swept under the table,
and that we don't just look at ways why it cannot be done as
opposed to look at ways how we are going to get it done and how
we are going to figure out how to get it done.
If the report's actual way of getting it done does not
fulfill your needs, then I would like to see how you are going
to get it done, not how you are not going to get it done and
why it is impossible to do it, as opposed to, all right, that
may not be the right way. Let us figure out a way to make sure
we utilize those courtrooms, that they are shared, because that
is happening throughout the country in schools and in public
buildings, and it makes no sense that we cannot do it with the
courtrooms. I mean, I don't know if--I think the American
people are just fed up from Congress, from the administration,
and from every other segment of government with bureaucratic
answers as to why we can't share space, why we can't do these
things, as opposed to figuring out ways to get it done.
Are we expressing that? Is that getting across today?
Judge Robinson. Congressman, we agree. We agree that we
should be good stewards of taxpayers' money, and that
contemplates that we seriously consider courtroom sharing. And
we have been responsive, the Judicial Conference has been
responsive, and are now being proactive in that effort.
When we first started talking about this issue in 2005--and
I understand there were many years of talking about it before
that. But in 2005, when Congressman Shuster really charged us
to go back and start studying this, we did that. And we have
enacted a 2-1 sharing ratio for senior judges, a 2-1 for
magistrate judges, a careful and considered study of bankruptcy
judges. And we are going to go beyond that and try to determine
what kind of economies of scale we can accomplish, particularly
in the larger courthouses with more than ten district judges.
So we take this very seriously.
But there are so many things in the balance that's what I
want to suggest to you and to tell you today, and one is that
we also have a duty to taxpayers and citizens or noncitizens,
whoever they are, who come into our courtrooms, to give them a
place where they can resolve their situations without too much
undue expense. And for every time we reschedule something or
continue something, not to mention any talk about moving a
trial or a hearing some distance away, we are talking about
real costs shouldered by the very people that you are talking
about as well. They are paying their own expenses, but they are
paying their attorneys' fees and attorneys' expenses. And
oftentimes all of it is at the taxpayer's expense.
I think Representative Johnson spoke of being a litigator
both in criminal and civil cases. And I don't know if any of
his cases involved appointed cases, but oftentimes it is the
taxpayers that are shouldering the entirety of the criminal
case. So when you talk about rescheduling or moving, you are
talking about real dollars and lots of dollars. That is part of
the balance that we are attempting to strike.
We could look at averages, and we can look at models, but
it doesn't replicate what goes on in the real world. And that
is why we have to consider the experience that we continue to
have in litigating these cases. And I have read the GAO study.
I take issue with Mr. Goldstein. I have read it, and I have
read it again, and I can read it right now. And what it will
not tell you is what their assumptions are.
There are underlying assumptions for that modeling. In my
remarks I tried to glean what some of those assumptions would
be based on some of the things in the report, such as 1- to 2-
day average trials. I have never had an experience of having a
1- to 2-day criminal trial. I think most district judges will
tell you that it takes the good part of 1 day to select the
jury in even a small, short-term criminal case. The defendant
has a right to a jury trial, both sides have a right to select
a jury, a jury that is going to be of their peers, but also a
jury that is going to be objective and impartial. There is no
such thing, in my experience, as a 1-day criminal trial for
that reason, or even a 2-day criminal trial.
Similarly, with civil jury trials, even though they may be
short, to say that any modeling is based on that assumption--
and I don't know that it is. Again, I don't have their
assumptions. To say that it is a 10-hour trial day doesn't
replicate what goes on in the real world. We are talking about
human beings. Jurors can't sit there and listen to evidence for
10 days and process it. The court reporters can't report for 10
days straight and process it, even with an hour off for lunch.
I mean, there are limitations. And that is why I
appreciated what Congressman Johnson had to say for those of us
in the field, if you will, who are on the ground. Our
experience matters, and that is why my committee, along with
the--well, the FJC is the one that conducted the study. But
those findings have to be evaluated in the context of human
nature and the experiences that we have had in our many years
of collective judging experience.
Mr. Diaz-Balart. And nobody is arguing that. Nobody is
arguing against that.
On that point, though, by the way, let me just ask GAO, in
some of the courthouses, a few of the courthouses where there
is sharing, do we know if there has been a horrible issue of
delays or moved cases, et cetera?
Mr. Goldstein. I would raise a couple points, sir. First of
all, Judge Robinson is again not correct about the assumptions
she is making in her report. And so I can only reiterate that
she is misreading it, and I would encourage the judiciary in
their comments to read it carefully, because what she is saying
is simply not accurate. She is mischaracterizing our report in
many regards.
With respect to the question you are raising, sir, we had
numerous interviews with judges, with clerks and others across
the country in this report in our work. We went out into the
field and we went to many different courthouses, particularly
courthouses that have shared. Combination of real-life
experience as well as the models that we developed show that
there have been no delays. The model shows that there will be
no delays.
If you look and recall page 24 of our report, the Federal
Judicial Center's own data shows that, on average, a district
courtroom is used by a judge for court-related purposes 2 hours
a day. The rest of it is either not used or used for other
purposes.
Mr. Diaz-Balart. Where do those numbers come from?
Mr. Goldstein. The FJC, based on the study they did. On its
face sharing can be accomplished. The degree to which sharing
is accomplished should be up to the judiciary. We are not
suggesting that they follow our model exactly. They can develop
their own model, their own parameters, their own assumptions.
But I would add, the parameters by which our model was
developed was not done by GAO. The parameters of our model was
based on the National Academy of Sciences panel that we put
together that we asked the National Academy to do. It consisted
of a 1-day session as well as numerous other interviews that we
did with roughly 24, 25 panel members. It was a discussion of
conditions of and challenges to sharing, and it is from there
that the parameters were developed. They weren't developed by
GAO.
Mr. Diaz-Balart. Here is the issue. I mean, again, and I
keep saying, I don't think this is the moment to start talking
about the specifics of every single issue of every single
detail. However, I am not a lawyer, but I know that for lawyers
in particular, words matter. And I would just like to say, as
opposed to consider sharing, no; that you look at ways to make
it happen, to figure out ways to make it work, as opposed to
you are going to consider whether there should be sharing.
There is a consensus on this Committee, and, you know, I
understand that there may be and there is going to be ample
opportunity to review the numbers, and there may be some
discrepancies, and there may be some differences of opinion as
to if the model is perfect, if it works. But as you just heard,
nobody is saying that you follow that particular model.
But I think what you are hearing, and I just want to make
sure that it is clear, is not that you should consider whether
courtrooms should be shared, but you should find ways to share
courtrooms. And I just want to make sure that I am not--that
that word was not used--how you are using that word.
Judge Robinson. You are exactly right, Congressman Diaz-
Balart. And you are right, we are wordsmiths. And the point I
want to get across is that we are not considering sharing--we
have been considering sharing ratios. We have been sharing. I
think if GAO or anyone else went across the country and talked
to judges--and the study encompassed a much broader
questionnaire and requests for experiential information--you
would find that many of us, I would say most of us, at one time
or another have shared courtrooms either because a courtroom is
out of commission, or there was a shortage of courtrooms, or we
were in an historical courthouse where there simply weren't
enough courtrooms, or one of us was engaged in a particularly
long trial. I have actually had to take another trial to
another division in my district because of high-profile
concerns and because of the length of the trial and because my
courtroom wasn't large enough to accommodate it. We do share.
What we have been trying to do and study very deliberately
and with great consideration is what the appropriate ratio
ought to be, particularly as we are looking forward. But to say
that we are only considering sharing is not correct.
And I do take issue with the comments made about the
judiciary not appropriately reading the GAO report. We are
hampered by the fact that we don't have the assumptions
underlying this modeling. I wish we did. And if we did, I would
be here to address them more specifically. I have tried to
glean what I think some of those assumptions might be from
certain statements made in the GAO report. And some of those
statements, I think, in fact, come from comments that were made
by the select group of judges that the GAO talked to. And it is
interesting, because I have talked to some of those judges, and
they are very upset because their statements and views were
misrepresented. All of them said, yes, short-term or as-needed
courtroom sharing can be accomplished. We know this because
that is our experience. We have done it. But to say that that
does not result in longer delays is not at all consistent with
any of our experience.
If we have to all share 2-1 going forward from here on out,
you can bet that at some point you are going to be wanting to
conduct a hearing because there are going to be a lot of
litigants that are going to be costed out of our system when
they have to wait twice as long to get to trial. That has been
our experience, and that will continue to be our experience,
because that is the way this works.
Now, and to talk about collegiality and the sharing of
courtrooms and scheduling of courtrooms, that is a small piece
of the algorithm of all the variables that we have to consider
when we are trying to get our 300 or 400 or how many cases it
is into trial within a 3-year period. Congress has tasked us
with getting a civil case to trial within 3 years. Under the
Constitution, and as augmented by the Speedy Trial Act, we are
tasked with getting a criminal case to trial--jury trial--
within 70 days with some exceptions. And these are things that
are part of our critical mission, but also among the so-called
variables that we deal with on a daily basis when we are trying
to get these courtrooms scheduled and ready for trial.
Does that mean our courtrooms always have the lights on and
are used every minute? That does not mean that, because, as you
know and I know, with civil cases and criminal cases,
ultimately the large percentage of them do settle. But we need
the readiness of the courtroom. And it is because of the
readiness and availability of the courtroom that we are able to
even get those cases in that posture.
A lot of this has to do with human behavior. A case is not
going to settle if the lawyers know that you don't have a
courtroom ready and available for them to go to trial, because
they are going to be working on their other 50 cases that they
have got in their quiver or their inventory.
I see Congressman Johnson laughing; it is because he has
been in the trenches and he knows that is how it works. You
work on the thing that is the most pressing and the highest
priority in your inventory.
So it is an important tool. Whether it is latent use or
actual use, the availability of a courtroom is what makes our
system work.
Mr. Diaz-Balart. When you all come forward to us and asking
for additional space, do you put in there latent use of space?
Is that part of it? Or is it--I have never heard that.
Judge Robinson. That was part of the FJC study. By that we
mean the example I gave you earlier, that when I have 10 civil
cases set for trial, I stack them. That is the only way I know
how to efficiently do this. All but nine have settled. If that
last case settles, and it is about 2 or 3 weeks out from going,
then I am going to have a 5-day period of latent use, meaning
that that case was scheduled for trial, but for whatever reason
they have now settled it. And I can't move another week-long
trial in there.
Now, I can fill part of that time. I can find some criminal
hearings where the parties are ready, and I am not going to be
violating due process to move them into a slot, because I have
to take those things into consideration. I can't force people
to go to trial before they are ready because there are due
process considerations. I can't force them to go to a hearing
before they are ready, sometimes because there are due process
considerations. But I can find some time to fill part of that,
but I cannot move another week-long trial and fully fill that
space. That is what we call latent use of a courtroom, knowing
that it is scheduled, but it may not ultimately be used.
Mr. Diaz-Balart. I understand that, and I think the model
did account for that. But however, look, again, I just want to
make sure that you understand. You can't take humans and human
nature out of this process. I understand that. I do think,
however, that there is a pretty strong case that we have
clearly overbuilt. There is a very strong case, I think hard to
argue against the fact that--which you all agreed to, that the
process that we have been using to determine what the needs are
is not accurate.
I would tell you that those two issues are, as the report
said, and something that this Committee is arguing for a long
time, we haven't had cooperation, frankly, of people agreeing
with us until now. But I am glad that people are now agreeing
with us.
So is there a possibility that the models are not accurate?
Yes, of course, because of human nature. However, I would
respectfully tell you and I would like to say that it is very
difficult to believe, to understand from our perspective that
we cannot do a much better job, we cannot do more sharing, et
cetera.
And because the Chairwoman has been too generous with our
time----
Judge Ponsor. May I say something to reassure you,
Congressman Diaz-Balart? We aren't considering sharing. We are
sharing. All of the courts on our current 5-year plan have
sharing. Anniston, Alabama--sharing. Charlotte, North
Carolina--sharing. Greenbelt, Maryland--sharing. Greenville,
South Carolina--sharing. We have sharing. We are applying our
sharing policies for magistrate judges and senior judges in all
of those courts that are on the 5-year plan. It is not under
consideration; it is happening.
Mr. Diaz-Balart. I understand that. There is no doubt that
we can always do better, and I think this report shows
potential ways to do better, and I hope that we take those
seriously.
I do want to end with one point, however, going back to the
L.A. courthouse. I think you heard from the Chairwoman and you
hear from me, and I think you have heard from this Committee
and the Full Committee, that this constant request to go from
$400 million to $1 billion or whatever it is----
Judge Ponsor. That is not happening.
Mr. Diaz-Balart. OK. And I just hope that we don't see that
again. Thank you. That alone would be a huge step in the wrong
direction.
Judge Ponsor. That is not happening.
Mr. Diaz-Balart. Thank you.
Ms. Norton. Well, I appreciate that Mr. Diaz-Balart wanted
to clarify that. If you hear some exasperation here, it is not
because of the witnesses before us; it is because this issue
has plagued this Committee for so long. For example, the L.A.
courthouse. What a thorn in our side the L.A. courthouse has
been. You all want to let the $400 million rot, so be it. But
we could not in good conscience say, well, since they delayed
10 years, let us throw $1 billion at them.
And also, before I go on to Mr. Johnson, I want to clarify
this notion of the trenches, the notion that you are before
people who don't understand the practice of the law. The
Committee is full of lawyers, and the Subcommittee, including
your chair, not only is an attorney who practiced before the
Federal district courts, the courts of appeals, and the Supreme
Court of the United States before she was elected; your chair
also clerked for a very distinguished district court judge and
saw up close how the system operates.
I am now a Member of the United States Congress. Above all,
I understand the separation of powers, and I understand the
difference between our responsibility and yours. I have the
utmost respect for the judiciary, but I ask you to respect the
separation of powers as well and to understand that this
Committee, which enjoys the broadest consensus on this issue,
will be held accountable if we do not hold the courts and the
GSA accountable as well.
Mr. Johnson, have you any questions?
Mr. Johnson of Georgia. Thank you, Madam Chair.
I would let you all know that, no, it was not any appointed
cases that I tried. They were all paid, private-paid cases. And
never did any advertising, you know, maybe other than an
occasional Yellow Page ad that really didn't work, or in a
local newspaper, something like that. But my 27 years of
practice in private practice--I opened up my law office when I
got out of law school, literally hung a shingle up and started
practicing law.
So I am proud of my humble beginnings, and I am proud of
how far I came. And I got there based on word of mouth and
reputation, and so my reputation among those who employed me
and recommended me, and who I tried cases in front of and
opposing counsel, they all know that when you have got Hank
Johnson in the room, that he was going to be prepared. He was
going to know what the issues are or were. So I bring that same
skillset to this position. I am very proud to serve on the
Transportation and Infrastructure Committee. It is a very
important Committee.
Another one of my assignments as a congressman is as the
chair of the Courts and Competition Subcommittee of the
Judiciary Committee. Wearing the hat as chair of the courts,
let's leave off the other part of it, let's just deal with the
court's aspect of the Judiciary Subcommittee, I work closely
with judges.
Now I know why the judges in the Judicial Conference are so
enthralled with the fact that I am there. It is not because I
am me, Hank Johnson, it is because they have a lawyer who has
actually practiced and yes, in the trenches, who can utilize
that expertise to assist our judiciary, which, quite frankly,
has been under attack in this country since the 1980's due to
decisions such as Brown v. Board of Education and others where
politicians who sit in these great big, hundred-foot ceilinged
committee rooms that are humongous in size, but yet not very
often do we have the Full Committee meet. And when we do, it
might be for 2 or 3 hours.
No judicial officer took part in deciding how much space we
need for a committee room. No executive officer, the President
didn't come in and say I am going to tell you how much space
you need and when you will have to share. Everybody respected
the fact that the legislature should control its use of the
space that it decided to build. And I will tell you, we have a
lot of space in this building where there are committee rooms
set up that we don't even use. And if we had somebody to take a
look at that, they could always sling arrows at us. Every
Committee Chairman wants to have a hearing room that he or she
can call home, and every Subcommittee Chair has a room that
they can call home. It is the committee room.
So a lot of those Subcommittee rooms don't end up being
utilized very much, but I am going to shift now from my
perspective on the issues that we are dealing with here today,
having given my experience and having shared with you my frame
of reference for making the comments that I make, and also
making sure that people understand that I said at the end I am
going to ask questions, I am going to learn more.
I have never been to the Los Angeles courthouse before. I
have no idea about that, but I will tell you I do have an idea
about one branch of government dictating to another branch what
that branch thinks it needs without having a good appreciation
of the real world. And so I will always be standing up for the
third branch of government, the third equal branch of
government.
I will say this: When I was practicing law, Monday morning,
8:30 a.m., going to the courthouse, driving by the courthouse,
I would see a long line of people, jurors, litigants,
witnesses, some law enforcement waiting outside in the cold and
in the wind and in the rain trying to get into the courthouse.
That is one of the big reasons why atriums are a great idea.
Those people have to be afforded some kind of comfort. That is
why we have a justice system as the third branch of government,
and we should not dog the people out who we are dispensing
justice to. And I fight for that.
I am going to ask a couple of questions. Mr. Peck, your
role at GSA public building services is to overseeing Federal
courthouse construction; is that right?
Mr. Peck. Yes, sir, and management.
Mr. Johnson of Georgia. And management.
Now, with respect to the 33 courthouses completed since the
year 2000, including 3.56 million square feet of extra space
that has cost the government an extra $835 million we are told
to construct, and an extra $51 million to rent, operate and
maintain, can you tell the Subcommittee how those figures were
arrived at?
Mr. Peck. Again, it is the GAO's report. But what they did,
they estimated the amount of square footage due to various
causes that they felt was overbuilt in the courthouse,
including, as I noted, atrium space, double height courtroom
space, that counts as gross square footage technically. They
multiplied that, what they calculated as gross square footage,
by the average dollar amount it costs per square foot to build
a courthouse, and calculated that as the excess cost, that plus
some other scope increases.
As I noted, that may be an interesting calculation, but we
do have real numbers on how much it cost us to build the
courthouses. And the real number that we had, as I noted, and
my numbers are based on 32 of the 33 courthouses, I am noting,
is that we appropriated $3.46 billion and change, and we built
them for $3.314 billion. The difference there is $268 million.
So in other words, the calculation that GAO made was a
theoretical calculation, and we are saying that the assumptions
on which they were made were erroneous.
Mr. Johnson of Georgia. So you disagree with GAO's findings
in that regard?
Mr. Peck. Yes, sir.
Mr. Johnson of Georgia. To the tune of about $268 million?
Mr. Peck. Yes, sir.
Mr. Johnson of Georgia. That is a lot of disagreement; $268
million worth of disagreement right there.
When did GSA adopt a policy for measuring gross square
footage of courthouses?
Mr. Peck. Well, we have adopted different measures,
different ways of measuring square footage. I am going to have
to go back and see. My information is that we formally adopted
a new measure somewhere in 2005, 2007. Mr. Goldstein says it
was back in 2000.
The point I would make is that the way of measuring what
counts, it is not how big the building is. The building is as
big as it is; anybody can see it by looking at it. The question
is what counts as square footage for various purposes. And the
issue we have had before the Committee, Congressman, is when we
first bring a proposed authorization to the Committee, we have
only a very generic program for a courthouse. And as we build
it out, we come up with more detailed square footages. What we
have a good record of doing in most instances, I will say Los
Angeles is an exception, is holding fairly rigorously to the
budget, the dollar budget we first came up to, and the square
footage tends to move around.
Mr. Johnson of Georgia. According to GAO, GSA relied on the
architect of the building to verify the size of the building
and did not expect its regional or headquarter's officials to
monitor or check whether the architect was following GSA
policies. Is this an accurate assessment of GSA policy at the
time?
Mr. Peck. I think in many cases it is, yes, sir. The
architects and engineers, as I said, there are various
standards that people use to decide what counts as gross square
footage and what counts as rentable square footage, and net
square footage is an entirely different measure in many cases.
So in a lot of cases, we asked the architects to measure the
square footage. We changed that so we now do our own
independent evaluation.
So what happened here is that the square footage that an
architect reported may not have been the same as our standard,
and so what got counted as square footage for various purposes
can be different even though obviously the size of a building
is the same.
To make a long story short, I think in some cases, the
architects and engineers whom we hired and said give us your
calculation of the gross square footage did it on a commercial
standard that they are used to, and may not have been the
standard we were reporting to the Congress and in fact using
ourselves.
Mr. Johnson of Georgia. Judge Ponsor, to what extent are
you or your office consulted by the GSA during its construction
and operation of courthouses?
Judge Ponsor. We work very closely with GSA, particularly
in the areas where judges have special expertise. It is GSA's
responsibility, and they are the ones who are in charge of the
construction project; but they consult closely with judges as
the construction unfolds. And I played a part in that process.
For example, when we were designing the courtrooms, GSA built a
plywood mock-up, a very inexpensive mock-up of the courtroom
which I visited along with lawyers and assistant U.S.
Attorneys, and we scoped out the sight lines in the courtroom
to make sure that I would be able to see the witness from where
I was sitting and the jurors could see the attorneys. We played
a role in that manner. I did participate in discussions as the
courthouse was being built.
Now the people in charge were GSA, but they were open to
listening to us and listening to our suggestions. I would add
that part of the meetings were also attended by a senior
staffer of Representative Richard Neal's office who ultimately
had an office in the building and had an interest from the
point of view of the community in making sure that the process
moves along in a measured way and that we had a courthouse that
corresponded with the original concept.
Mr. Johnson of Georgia. Are you saying that you had a
legislator in there helping to determine the use of courtroom
space?
Judge Ponsor. No. Let me make that very clear; no, we did
not. But we had a GSA representative, an architect
representative, and a contractor representative and various
other people. We were interested in knowing the timing of how
fast things were going along, whether there were going to be
delays, what the courthouse ultimately was going to look like,
and whether we were going to vindicate the architect's design
concept that had been approved and authorized by this
Committee.
Mr. Johnson. So there was no nefarious intent on the part
of the legislator?
Judge Ponsor. None whatsoever.
Mr. Johnson. And certainly the Judicial Conference and the
GSA have not been involved in a conspiracy to defraud the
taxpayers by overbuilding courthouses; have they?
Judge Ponsor. Absolutely not. I think that is the most
painful thing to read about in the GAO report. I can tell you,
we were honestly not trying to deliberately mislead Congress at
any point. You build a building out in the open. We were very
transparent. I think we came in with a really tight project.
There was no effort, no desire, no intent to horn-swaggle
anybody as we were building our buildings.
I am pleased, and I embrace the recommendation, and I know
Commissioner Peck embraces the recommendation that we will
inform you, we should inform you when we go more than 10
percent over the approved prospectus. I think that is a fair
and a good suggestion, and it is a way that we can tighten up
the process. But really, we were not trying to mislead Congress
or thwart any intent of this Committee or of Congress. We
understand that you have that sphere of responsibility, and we
have every interest in making sure that you can do your job.
Mr. Johnson of Georgia. Thank you, Judge Ponsor.
Judge Robinson, what is your committee's role in
assessing--well, let me ask the question like this: At least 10
years ago, caseloads were projected. The number of judges
projected, the number of courtrooms to serve those judges
projected. How do we go about making those projections?
Judge Robinson. The projection for number of courtrooms or
judgeships?
Mr. Johnson of Georgia. Both.
Judge Robinson. My committee does not have a role in that.
Court Administration and Case Management, CACM, has the
broadest jurisdiction of all of the committees in the sense
that it deals with any issues that deal with court
administration or case management. The reason we are taking the
lead in terms of the courtroom sharing ratio is all about case
management because we understand that we need to strike a
balance between sharing and cost containment. Those are very
important objectives. But at the same time, we must have
effective case management, ensuring constitutional rights,
statutory rights, that the litigant's expenses are not out of
control because of our delays or because of the requirements we
place on them, in terms of moving from one place to another. So
it is our role in case management that causes us to be the lead
committee on this particular issue.
Mr. Johnson of Georgia. Do you agree with the GAO's
findings that question the judiciary's caseload projection
methods?
Judge Robinson. Again, that is not something with which I
have particular familiarity. It is our Judicial Resources
Committee in part that looks at that and does statistical
analysis. But understand that we project on the basis of a
number of things, and some are assumptions based on demographic
shifts and those sorts of things. We would expect that they
wouldn't be perfect projections.
For example, I was a bankruptcy judge for 8 years before I
became a district court judge, and I don't think any one of us
could have projected 10 years ago what the bankruptcy filings
would be now with any accuracy because we couldn't have
projected that the economy would be in the state where it is
now with any accuracy.
So many of these projections are based on things that none
of us can predict, and all of those have very direct effects on
caseloads, weighted caseloads, filings, the need for
judgeships, and all of those things.
Judge Ponsor. If I can just chime in on that since the
Space and Facilities Committee does do some projections, I
guess I can put it this way. If anybody has a crystal ball, we
could use it. If anybody can see perfectly where we will be 10
years from now, we would be happy to know. If anyone has a
method to help us do that, we are constantly trying to refine
our methods. We use different statistical approaches to try to
triangulate to make our projections as accurate as we can.
We don't want resources we don't need. We are not trying to
get resources that can't be used. But this process of
projecting is very, very difficult. For example, between 1970
and 2000, there were over 400 new judges authorized, a little
over 100 a decade.
In the 10 years between 2000 and 2010, Mr. Goldstein
criticizes us by saying we were 119 judges over in our
estimate. If we had congressional judgeship authorization bills
during that 10 years that were even the average of the
preceding 30 years, we would have been received 100 additional
new judges. That didn't happen.
Mr. Johnson of Georgia. In fact, the numbers requested by
the Judicial Conference were more than what was actually
approved by Congress; isn't that correct?
Judge Ponsor. Far more.
Mr. Johnson of Georgia. Four to one?
Judge Ponsor. I would say that it would be that in that
neighborhood. There are judgeship authorization bills pending
now before the House and the Senate. I believe there is a bill
that would authorize 51 new district and circuit court
positions that is now pending before the Senate. We don't know
when there is going to be a new judgeship bill. We do know some
day there will be a judgeship bill; and if there had been a
judgeship bill and 100 new judgeships had been authorized
between 2000 and 2010, as they were between 1970 and 2000, and
we hadn't planned for them, we would be sitting here and people
would be saying: What on earth were you thinking by not
planning for those additional judges? You could look at the
figures for the past 30 years, it was plain as day, and you did
nothing.
Judge Robinson. If I can just illustrate how that affects
courtroom sharing ratios in our consideration of what the
appropriate ratio might be, we have unfilled needs in terms of
judgeships. But we also have a labor force called senior
judges, and that is the first population that we looked at in
determining what is an appropriate sharing ratio.
To call one senior judge the same kind of person as the
next senior judge is not giving them the tribute that they
deserve. Our senior judges today span the age ranges of 65 to
102. I happen to know the 102-year-old. We are going to
celebrate his 103rd birthday next month in Wichita, Kansas, and
he is still showing up for work every day and hearing cases.
So when we talk about projecting the needs of senior
judges, we have outliers, and we have had some problems in
estimating. But we have to understand that senior judges vary
from district to district and courthouse to courthouse. Some of
them have the same caseload as the active district judges. Some
of them have full caseloads. Some of them have 50 percent
caseloads or 25 percent caseloads. Some of them hear
specialized cases. Some of them take the whole panoply of
cases. So when we talk about what a senior judge needs in terms
of courtroom space, we have to consider they are different
people and they have different workloads.
Nonetheless, we determine that a 2 to 1 sharing ratio would
be appropriate considering this vast array of individuals that
we are considering and the outliers, and there really is no
average. So I say all of that to say that when we talk about
projections--again Judge Ponsor was illustrating that the
projections were based on a history of having filled
judgeships--and at the same time we are looking at courtroom
sharing ratios that we hope reflect the fact that we have this
active labor force in senior judges that are helping us get
through our caseloads despite the shortage we have in unfilled
judgeships.
Mr. Johnson. Because your caseloads are going up in both
civil and criminal litigation?
Judge Ponsor. They skyrocketed between 1970 and 2000. We
had about a tripling of our civil caseloads in that 30-year
period. We had a 50 percent increase in our criminal law
filings during that period. During the last decade, we had, in
some parts of the country, a flattening out of that explosive
growth.
But if you are sitting in the year 2000 and you are looking
back and trying to plan, that is what you would have seen. It
is true and I have to concede that some of our filings have
begun to flatten out in some areas of the country in the past
decade.
Mr. Johnson of Georgia. Let me tell you something, just
like your son would agree with this maxim that I am getting
ready to lay out, I agree with it also, and that is it is
better to have and not need than it is to need and not have.
With that, I will yield the balance of my time.
Ms. Norton. Some statistics for the record. Since senior
judges have been mentioned here, senior judges for the most
part, do not wish to sit and don't have to sit in criminal
cases and most of them choose civil cases, according to our
statistics, and only two in 100 civil cases are tried.
I want to correct, since Mr. Johnson is a new Member of the
Committee, I want to correct your notion that there is a room
for every Subcommittee. There is one Committee room for all six
Subcommittees. We all share this one room. All six of us, and
we have to bid and we do cooperate and bid in order to have a
hearing. So I may have to postpone a hearing because someone
from transit says he has something more urgent and that occurs.
So I do not want to leave the impression that we are trying to
put you under a standard that we ourselves do not conform to.
That is not the case.
I also want you to know that in the last decade, according
to the statistics reported to the Committee in both civil and
criminal cases in the Federal courts has been flat. That is 10
years. That means it gives us some basis to look forward based
on the way statistics are handled in the first place.
Judge Robinson, you say on page 14 of your testimony that
we should not adopt the GAO recommendations because they are
based on a flawed understanding of the judicial process. So
let's see what your recommendations for sharing are based on.
Has the judiciary ever modeled the Federal judiciary center
data with computer software of any kind to determine how much
courtroom sharing the empirical evidence actually supports?
Judge Robinson. Madam Chair, I think there may be a role in
modeling, use of modeling in making forward projections,
particularly as they pertain to a particular courthouse or a
particular area for which a courthouse is being constructed.
But to say that modeling is a tool that should be used to try
to develop some kind of national average on sharing ratios and
without considered and great attention paid to what the
experience has been, I think is a flawed analysis.
Ms. Norton. Well, a model, of course, would take into
account the experience. That is what a model does. A model is
not just statistics, Judge Robinson. If you have not modeled--
and that is the way we do things today-- experience is a
factor, and a very important factor for a correct model. If you
look at how we do economic models, nobody just adds up,
multiplies and subtracts.
It is very complicated how to do a model, so complicated
that we use computer models. If you have not modeled the data
to determine how much sharing is possible, how did the Judicial
Conference determine that two senior judges can share one
courtroom?
Judge Robinson. Well, we based that on a very intense look
at caseloads, a variety of factors--caseloads, number of
judges, age of judges, use of the courtrooms. I shouldn't say
we, because it was the FJC. In the courthouses and the
courtrooms that were studied, it was a very complicated process
of measuring every minute that a courtroom was used and how it
was used, to determine what these averages might look like.
That was then supplemented by a questionnaire that was sent to
all district judges and magistrate judges and senior judges, as
well as to a great number of attorneys, to get that
experiential piece.
Ms. Norton. Can you demonstrate that the GAO's
recommendation of three senior judges to one courtroom, which
they report is supported by their modeling program, is wrong?
Judge Robinson. What I can tell you is that a 2-to-1 ratio
for senior judges is a dramatic increase from the 1 to 1 ratio
traditionally that we have. We agree.
Ms. Norton. We agree on that one, so let's not go back
there.
Judge Robinson. But to go beyond that, the GAO study
doesn't tell us what their assumptions are. We don't know what
those assumptions are underlying the modeling. All we can do is
glean that from certain information.
Ms. Norton. What you need from the GAO is an opportunity to
look at their model so you can understand the assumptions
underlying their model?
Judge Robinson. I look forward to doing that because what I
can tell you is there are a number of misstatements in their
study that do not at all represent, one, the things that they
were told during their experiential so-called piece of study
when they talked to the panel judges; and, two, some of the
other statements in their report are not correct or consistent
with what any of us believe or what the FJC study would show. I
mean, the length of trials, the average length of trials, for
example, is a huge component that one must consider, and there
is no such thing as a one to two day trial.
Mr. Goldstein. That number comes from the AOUSC itself,
ma'am. Second of all----
Ms. Norton. Mr. Goldstein, would you hold for a second.
Judge Robinson, over and over again, and I think this needs
to be on the record, you have acted as if he is using one set
of statistics and you are using another. Would you clarify
that, Mr. Goldstein. The data you used came from where?
Mr. Goldstein. The data we used came from the FJC. We are
using the judiciary's own data. It is completely modeled. As
you yourself have said, ma'am, you can model, and the
government models all the time, extremely complex things:
nuclear fallout; we model global warming. We model all sorts of
things in America today. To say we can't model Federal
courtrooms when they are not being used half the time is
preposterous on its face, I am sorry.
Judge Robinson. If I can respond. My guess is, and again,
if I can see all of the GAO's assumptions and how they used
this data, I think I would be able to answer this question
better, so I am somewhat hampered here. But I think when they
came up with that average of 1 to 2 days, they were talking
about all court events, or at least hearings and trials. But
there are lot of hearings that take 30 minutes or an hour, but
not trials.
For some purposes you may want to look at those as one set
of data, but for others purposes it doesn't make sense to;
particularly when you are modeling the use of courtrooms for
trials, it would be flawed to consider all of the other types
of hearings that go on in courtrooms.
Ms. Norton. That is a fair point. Mr. Goldstein, did you
consider hearings, trials, all manner of things that go on in a
courtroom?
Mr. Goldstein. The model includes everything that occurs in
a courtroom, including all unscheduled events and cancelled
events for a previous week.
Ms. Norton. Her point is a trial can take days, and an
unscheduled event doesn't happen.
Mr. Goldstein. Absolutely. I agree with that. But the point
is trials generally take 1 to 2 days. That is the average time.
That information was provided by the Administrative Office of
the U.S. Courts. If that is not correct, then we will have to
take up that issue with the AO.
Ms. Norton. So we are dealing with common data there. Mr.
Peck.
Mr. Peck. Madam Chair, may I suggest, as you know, we are
all commenting on a draft GAO report. Normally there is a
period in which we talk to GAO about the report. We don't
always agree, and we submit our agency comments. Sometimes they
are in the nature of a dissent. Sometimes it is to clarify. I
have been involved in computer modeling, and one of the issues
is that you do need to know what all of the assumptions are. I
would suggest that you might ask us, I don't know if we need to
come back, but I think we ought to sit down and see what the
assumptions are, see what alternate assumptions the courts
might make, and see how the model comes out.
Ms. Norton. I think that is precisely what Judge Robinson
is very justifiably saying, that she doesn't understand the
assumptions. And as you say, the normal way, now that the draft
report is out, is for her to respond, for all of you to
respond, and then of course, the twain shall meet. And I think
from the report will come some essential good. I can already
see that from the testimony here today.
But I do want to clarify the notion that we are not dealing
with some kind of mysterious science here. For example, quoting
from Judge Robinson's testimony: We would love someone to write
an algorithm that really works.
Let me ask whether you know about the experience of
courtroom sharing in the Southern District of New York which I
think we all would agree is one of the busiest district courts
in the country. A case study in the FJC report shows that they
share one active and one senior judge. This has been deemed a
success in that no trial was delayed and no judge lacked for a
courtroom when he or she needed one because, guess what, they
decided they wanted to make it work.
So they weren't dealing anecdotally with what would happen
if we had witnesses waiting and they come from across the
country, they wanted to make it work and that is one senior to
one active. Existing experience that I would commend both of
you and Mr. Peck to take a look at if you want to look at a
busier court than probably most of you see that has made
something work of a sharing nature that we are after. We are
not laying down a rule of sharing here today. We have already
gotten your understanding that some sharing, particularly given
what we understand about the economy and about the expectations
of the public, is in order. The only question is to get
together and to figure out how to make that work.
In your testimony, Judge Robinson, on the availability of
courtrooms, you say many judges argue that the advantages of
certainty, efficiency in cost savings gained, and let me say
that again, advantages of certainty, efficiency and cost
savings gained far outweigh the cost of additional courtrooms.
Has the judiciary ever attempted to quantify the cost
associated with sharing versus nonsharing? How could you arrive
at the notion that it far outweigh? It sounds like you are
talking about some set of data that has not been described here
this afternoon.
Judge Robinson. The costs we speak of are not costs to the
judiciary, they are costs to the litigants. And we are charged
with the just and inexpensive and efficient determination and
resolution of cases, understanding that we serve litigants,
American people who come into our courtroom. So it is those
costs we are trying to strike in the balance.
Ms. Norton. So are we, Judge Robinson. With all due
respect, as I tried to make clear, we are not sitting here as a
bunch of nonjudicial imbeciles not taking into account the rule
of law and the importance of the system of law we operate
under. I have tried to make that clear. You used the word
``costs,'' and yet you have not done any study that shows what
the cost would be.
At least GAO has done a study. You may disagree with the
underlying assumption, and you are going to find out what they
were. But when you come before us and make a statement that is
as bald as this, many judges you say argue, you don't say a
study finds, the advantages of certainty, efficiency and cost
savings gained far outweigh the cost of additional courtrooms,
I have to shake my head.
Judge Robinson. Madam Chair, what I will say in response is
that I think Congress understood that the costs were
significant when they held us to a standard of completing a
civil case within 3 years because they understood that the
average case ought to be finished, whether tried or settled, in
less than 3 years because of the attendant cost to the
litigants--not just their emotional or their psychological
cost, but the real dollars that they pay in terms of attorney
time and expenses. So that is what I was speaking to, and that
is the balance we are trying to strike.
Ms. Norton. We have to find that balance, understanding we
all are looking for that balance and we do not want to polarize
this search. It is not the judiciary versus the Congress who
can't find a balance. We believe that all of us working
together can find a balance. The tone you hear from us really
has to do with 20 years of no sharing, no balance, and
overspending. We finally have come to a point where we have had
to throw up our hands; but that does not mean that we do not
intend to adopt the kind of problem solving that I think will
come out of this hearing.
Mr. Goldstein, your recommendations we understand are based
on sharing by judge type as, for example, Article III judges
sharing among themselves and magistrate judges sharing among
themselves; is that right?
Mr. Goldstein. That is correct. The reason we separate
Article III judges from magistrate judges is because that is
among the parameters that our national academy panel suggested
were appropriate.
Ms. Norton. Because magistrate judges don't handle jury
trials; is that it?
Mr. Goldstein. The kind of trials they handle are
different. They are certainly different durations. They don't
tend to interact all that much. These are some of the things we
heard, and they felt it would be appropriate to model them
differently.
Ms. Norton. Have you modeled what courtroom sharing might
be possible if all Article III judges were to share all
courtrooms as a common resource, the way we do here, under the
assumption that all courtrooms are built to the same size and
with the same features so that they are indeed a fungible
resource of some kind?
Mr. Goldstein. We modeled all district judges and we also
modeled senior judges and all magistrate judges separately. We
also, just to see what it would look like, we did run a model,
taking a look at if you had all judges on sort of a fungible
level where any judge could use any courtroom. So yes, we did.
Ms. Norton. You have to forgive me if I don't see that as
more efficient.
Mr. Goldstein. It is more efficient. We were following
parameters that we felt were useful because they were developed
through the panel process that we went through when we brought
together judicial experts. But you are absolutely right, it is
more efficient.
Judge Ponsor. Let me say that magistrate judges do try jury
trials. They don't try criminal felony trials, but magistrate
judges do try lengthy civil jury trials.
Ms. Norton. I was trying to take away all the differences
and put all Article III judges in the same category. If you did
all of that, why won't there just be a pool for centralized
sharing? What would be wrong with that?
Judge Robinson. That is the next thing that we are going to
look at because we think that there are economies of scale that
can be achieved. But understand that a number of courthouses
are small to medium. Whether we can achieve economies of scale
is questionable when you are talking about only two active
district judges, or one. I sit in a division, I am the only
active district judge, and I have two senior judges along with
me who work full-time. So there are those differences.
But magistrate judges also have a much more immediate need
typically for a courtroom because they don't know when someone
is going to be arrested. People are arrested and they are
brought in for that initial appearance in short measure. So
they need ready availability, but they do not need a 12-box
jury.
And bankruptcy judges, it is a different study. And I have
been a bankruptcy judge. I have been in the trenches, if you
will forgive me. It is very different. And they are in a period
where they are experiencing a heavy caseload and a great number
of filings. They are in the courtroom a lot is what I can tell
you anecdotally. So I think there is a value by measuring by
judge type because our work tends to differ. Although I will
say this, looking at case management, case management is really
a function of a district-by-district or courthouse-by-
courthouse thing. There is no uniform national standard and
that is because we are all trying to be as efficient as
possible.
There are districts where magistrate judges, except for
criminal jury trials, are doing all of what Article III judges
are doing. There are other systems or places where magistrate
judges are not doing very many civil trials. It is all a matter
of how can we effectively organize our work pool, our labor
force, in a particular courthouse to handle the caseload that
we are dealt.
Ms. Norton. The differences you describe are real. But
aren't there, in the interest of cost savings and efficiency,
aren't there some standards that you think would work across
the board for, for example, Article III judges, magistrate
judges? No one is trying to custom-make courthouses the way we
have before. If you don't custom-make them, then you have got
to have some standard that everybody agrees to as a minimal
standard. Maybe you rise above it on some occasion, otherwise
we are back to where we were, custom-made courthouses, and why
have we bothered in all of this.
Judge Ponsor, how does the judiciary select its courthouse
projects for your 5-year plan?
Judge Ponsor. We have a number of steps that we go through.
We start with a feasibility study when it is requested, and we
look at the courthouse and we project forward as to whether we
need that courthouse. We have had, since about 2007, a new
process called asset management planning, which is an
extraordinarily detailed very, very thorough analysis of all of
our courthouse inventory that allows us to develop yardsticks
to measure the urgency of the need of particular courthouses.
And interestingly, as a result of that AMP process, which
we are about a third of the way through now, we have actually
eliminated a fairly large number of courthouses that were
lining up on our 5-year plan for new courthouses. In other
words, we have gone to these courthouses and said, We don't
think that you need a new courthouse. We think you can deal
with a renovation.
So the fact that we are able to take a clear picture of
what the courthouse actually needs and what it looks like, and
to some extent sometimes, and I will be honest with you, pry
the information out of the courts to get the information about
what they have got there, how many people and courtrooms they
have, and the data that we need to really plan, it has allowed
us to begin to sequence the courts and deal with the
courthouses that have the very greatest need.
Ms. Norton. In other words, number one will be the
courthouse that is most decrepit, shall we say, in greatest
need and you have developed a system for deciding which
courthouses get precedence for construction?
Judge Ponsor. We have four criteria which are scored in the
AMP process. First of all we look at the court systems. Is the
air conditioning working? Are the windows leaking? We had a
judge in North Carolina who was in the process of sentencing a
defendant when a piece of the ceiling broke out and hit the
defendant on the head. That is really adding insult to injury.
So how is the physical plant holding up?
Second, do we have enough space for all of the judges in
the courthouse?
So you have systems, you have space, and then we used to
make this our primary consideration, and in fact, we have
diminished it by a few points, and that is security. We look at
how the judges, the public, the litigants, the lawyers are at
risk when they come into the courthouse. What we have found is,
if we make that qualification too far up on the scale, frankly,
everybody is worried about security. There is hardly a judge
anywhere who is not going to say we people in Chicago, we
people in Puerto Rico, we people in Miami, we people in San
Antonio, we people in Los Angeles, we have the worst security.
And Detroit. We should get a new courthouse right away because
somebody is going to get hurt. That is the hardest.
It is not exactly a threat, but it is the hardest thing to
hear: ``Somebody is going to get hurt and it is going to be on
your head if you don't give us a new courthouse''. So we have
had to step back from the security issue. It is now 25 percent.
We have a 30-30-25 percent to try to make that just a little
bit less and look at how is the court functioning, is it big
enough, and secure enough? Then we look at the design guide and
try to figure out whether we have problems with courtrooms that
are tiny little courtrooms and are way below the design guide,
way below what anyone in this room would want a judge to have
to cope with. And we put that all together and it allows us to
score all of the various courthouses and determine where in the
sequence they should come.
It is a refinement that has had a lot of very intelligent,
hardworking and resourceful people putting a lot of time in on
it, and which we continue to be committed to, and which will
allow us, I think, to do our job a lot better.
Frankly, it used to be back in the old days, and you
probably know this better than I do, the district that could
make the biggest noise, the district that had the biggest clout
in some arena or other was the squeaky wheel that got the oil.
That is what we are trying to get away from. We are trying to
adopt an objective measure that will allow us to say to certain
courts, I am sorry, you are just not in line right now. There
are too many courthouses ahead of you.
And believe me, in my role, I get calls from other judges.
They accuse me of being a toady for the AO and not getting out
and fighting for their courthouse. ``What is wrong with you? It
is your job to deliver the goods''. We have to say to them: ``I
am sorry, let me compare your courthouse to the other
courthouses that are ahead in line''.
So we are working hard to develop an objective yardstick
that will allow us to prioritize these courthouses and put them
in order.
Ms. Norton. Judge Ponsor, while we may have differences on
the number of square feet that we end up with or we are
sharing, it looks like you have a fairly rational model for at
least deciding which courthouse goes first and the like. But
the Ranking Member couldn't resist saying, I wonder if, and I
wonder right alongside him, if L.A. went through this rather
rational process you are describing.
Judge Ponsor. I don't know if it was part of our literal
AMP process because it was selected prior to the time that
process was really in gear. I can be corrected on that.
Ms. Norton. I would bet that it would fit in terms of need.
Judge Ponsor. Having been there, I think physical plant,
and I have to look into this issue that Congressman Diaz-Balart
mentioned about the number of judges going down and fitting
them all in the courthouse. You are a step ahead of me.
Ms. Norton. That is over time; it has been so long. What he
is saying is now the number of judges have been reduced.
Judge Ponsor. But its score as a physical facility has got
to be really low, and certainly the security worries me a lot
there. They have some of the toughest cases in the country.
They have Mexican drug cartels cases with 30 and 40 defendants.
I went into their high security courtroom. They have benches
that will cover up the defendant's feet because they are
shackled while they are in the courtroom. And I have to say, I
almost never shackle defendants in a courtroom. But sometimes
they have to do that during trials. They have got some really
serious situations there. We are not going to be talking about
a billion dollars, but we have to come up with some kind of
solution for Los Angeles.
Ms. Norton. We note that there is a funding for the
Lancaster courthouse. Why is that not in the 5-year plan?
Judge Ponsor. I believe that Lancaster was going to be a
lease construct at one point. We had this tool, which the OMB
has now told us they do not want us to use any more, where we
could ocasionally do a lease construct project, and I think
Lancaster was going to be a lease construct.
Yes, it was not going to be a federally-owned building. It
was going to be built and owned by a private entity and leased
to the government. It was a tool that we could occasionally use
in situations where you had a very small courthouse and very
unique situations. OMB came to us, I think, a year ago and said
we are not going to allow that any more, no more lease
constructs, and that is the end of lease constructs. So we had
just a little exception, kind of rotating out there where we
would occasionally do lease constructs, and we got caught in
the middle by a change in policy where OMB said you can't do
lease constructs any more.
So, we said if you say we can't do lease constructs, we
won't do lease constructs. We are going to do all federally-
owned buildings. But Lancaster was kind of hanging out there. I
am not quite sure how far I should go with the Lancaster
courthouse, but I guess I would have to say as tactfully as I
can, that was a courthouse that was not driven by our AMP
process but was prioritized as a result of external pressures,
which I hope we will not be subject to much longer in
developing our courthouse program.
Ms. Norton. I am glad OMB got there before we did. This was
below the prospectus level, and I understand there have been
two built a year.
Judge Ponsor. Very few. We had one in Yuma which we were
hoping to build, and that was a lease construct.
Mr. Peck. And that is now federally constructed.
Ms. Norton. Imagine leasing a courthouse; suppose they
decided to put you all out; my, my, my.
I have another question for you, Judge Ponsor. Thirteen
courthouse projects and the most recent 5-year courthouse plan
have an aggregate of 33 new judgeships not as yet authorized.
Do you think it is reasonable for the judiciary to expect the
Congress to authorize this many judgeships for the 13 locations
when the number constitutes roughly the same number of
judgeships that the Congress has authorized during the last 20
years for the entire country, for all 94 districts and some 550
locations?
Judge Ponsor. I was not aware that the number was that
high. I have before me my own notes on all of the projects in
our 5-year plan. I have a proposed new magistrate judge and a
new bankruptcy judge in Charlotte--that is two, three. One new
district court judge, a proposed new magistrate judge, and a
proposed new bankruptcy judge--another three in Greenbelt. In
Greenville, South Carolina, we have one new district court
judge we are planning for who has already been approved by the
Conference. In Harrisburg, we have one new magistrate judge
already approved and one bankruptcy judge proposed.
They go on. But I didn't think the numbers went up that
high. In Mobile we have one proposed new judge and one
bankruptcy and one circuit judge. We have two in Nashville, one
district and one magistrate. We have one in Norfolk, Virginia,
one bankruptcy judge. I am not doing the arithmetic as I am
talking, but I agree with you that there are a number of judges
that are planned for in our 5-year plan that have not yet been
approved by the conference but which are statistically----
Ms. Norton. How could you plan for more judges than have
been authorized by the Congress over 20 years for the entire
country? That is concerning. The figures we have, and we have
them here, 32 new, 19 senior, adding up to 52. So I wonder how
you ever got to such an overestimation of judgeships given the
fact that amounts to the number that Congress has authorized
for the entire country for a generation.
Judge Ponsor. First of all, if that is how high the numbers
are, they are higher than I have calculated, and I have to
agree with you, that number is too high. And we are certainly
willing to work with you in collaboration to make sure that as
these courthouses are authorized, that we aren't too high.
There are people who say something else to me, and this
maybe is a topic upon which reasonable people may differ. I
have judges who are moving into new courthouses or are in the
planning stages of their courthouses who say to me: How can you
insist that we enter a courthouse that is full the day we move
in?
Ms. Norton. How often does that happen?
Judge Ponsor. At least half a dozen times that I can think
of.
Ms. Norton. If that is the case, how do these poor judges
make due? I bet they share courtrooms, Judge Ponsor.
Judge Ponsor. Well, certainly under our policy, senior
judges and magistrate judges will be sharing courtrooms. Let me
say about courtroom sharing, I have no objection in principle
to the notion of appropriate courtroom sharing, even by some
district court judges. It is hard. I know it is going to sound
whiny for me to give you anecdotal evidence about just how
tough it is, but I think what really bothered me about Mr.
Goldstein's suggestion was a cookie cutter 3-for-2 solution
across the country, which would be in certain courts--and I
don't want to sound melodramatic--but it would be something
close to a catastrophe to make district court judges work under
those circumstances.
I agree in certain circumstances maybe----
Ms. Norton. Why would it be a catastrophe? I express no
opinion, but somebody who tells me it would be a catastrophe,
you must be basing that on something, and I would like to know
what.
Judge Ponsor. I will tell you what it is based on. And I am
afraid I just have to break down to anecdote and 26 years of
experience. Let me just tell you where I am right now.
I started a 5-day nonjury race-discrimination case
involving a man whose liquor license was turned down. I got 5
days into it. I had to suspend because I am now in the fourth
day on a hearing of a motion to suppress on a criminal case
that is going to trial later in June. It happens to be three
young white kids who are charged with burning down an African
American church in Springfield the day after President Obama
was elected. It is a case that has gotten national attention.
It is very high profile.
So I have got one civil case I have stopped, a motion to
suppress that I have tucked in there. I have had to bump a
civil trial involving a local guy named Berkshire Blanket from
Palmer, Massachusetts, who has a little blanket company, and he
is suing his IT man. That case had to be postponed after they
were all set to go so that I could make room for my hearing
on----
Ms. Norton. In your courtroom?
Judge Ponsor. I am the only frog in the pond. If I were
trying to share that courtroom, if all three judges were trying
to----
Ms. Norton. Just a moment. There wasn't another courtroom
in the entire courthouse, sir?
Judge Ponsor. In my courthouse?
Ms. Norton. No. You have a courthouse.
Judge Ponsor. Yes.
Ms. Norton. You have a courtroom.
Judge Ponsor. I have one courtroom.
Ms. Norton. Suppose you had access to other courtrooms.
Judge Ponsor. If there are three district court judges--I
am doing a bad job of expressing this, and I am sorry. I will
just step back and see if I can make it clear.
If you have three judges trying to coordinate access to two
courtrooms with that kind of complicated docket, it is an
impenetrable----
Ms. Norton. I would agree with you. That is why I want Mr.
Goldstein to share with me his modeling for centralized
sharing. I think--and I think there has been some agreement
here. I don't know how these two judges get together with three
cases. Who in the world wants to put you through that? If there
is centralized sharing--there might be problems with your time,
Judge Ponsor, and I can understand that, but it seems to me it
would be far less problems with courtroom assignments than if
three judges have to get together and have a little conference
every time they have to decide which of them gets to use a
courtroom. That seems, to me, to build inefficiency into
inefficiency.
So as long as we are doing it, why don't we just say, look,
we are one big family of Article III judges. None of us is
better than the rest. And when one brother judge or one sister
judge needs a courtroom, she ought to have it, especially if it
is not being used. There is no ownership of something within a
courthouse that belongs to the people of the United States. A
judge cannot be assigned ownership of a courtroom.
Judge Ponsor. I couldn't agree with you more.
Judge Robinson. Madam Chairman, I think what Judge Ponsor
was illustrating--and it is my experience, too, because I come
from a small courthouse in a small district, that I am the only
active district judge in my division. So if I am sharing my
courtroom with a senior judge or a magistrate judge, and I have
a schedule like Judge Ponsor has--and I have had that very
experience--and the senior judge is in a trial session as well
and also has strong needs and considerations to have his case
or cases go to trial, now we have a problem. And there have
been times that I have moved a case primarily because it was
high-profile, and there were going to be a lot of people
involved, and I have a courtroom that is small and can't
accommodate a great number of people. I have moved that case 60
miles, but with attendant costs and more delays.
And I say all that to say that we do share, and we do
accommodate, and we are collegial, and we do step up and help
each other. But sometimes--for example, if I can give you one
more anecdotal piece of evidence, I twice have tried a 3-month
trial in another division 60 miles away, and I needed a
courtroom for 3 months. It was a 3-month criminal jury trial.
It just so happened both of the times that I was there, all of
the other judges in that division had heavy trials, back-to-
back criminal or civil, and we were vying for limited court
space, and it was difficult. And to try to choose between the
small business owner who is being costed out by attorney fees
and the criminal defendant that has speedy trial rights is a
difficult thing. And when I spoke of the algorithm, that is
what I was talking about. It is those sorts of real-world
difficulties. And I am not suggesting it is like this all the
time.
Ms. Norton. And when I spoke of the experience--in response
to your algorithm concern, when I spoke of the experience of
the Southern District of New York and cited to you how they
made it work, I was speaking from real-life experience, too,
not anecdotes about having to move one trial, but about one of
the busiest district courts in the United States. And the
reason it works is because they made it work.
You have indicated you want to make it work. Frankly, that
is all we need to hear. We understand there are extraordinary
differences, even hardships. The greatest hardship of all at
the moment is on the taxpayers of the United States. And,
frankly, that is the hardship that most concerns us at the
moment. We will not be able to go before the Congress to get
additional money for courthouses if this is all we have to
show.
Mr. Peck.
Mr. Peck. You know, I think I have now been a party to
these conversations with a break in service, obviously, for 14
years, and we have had a lot of conversations over courtroom
sharing.
One, I want to say that the judiciary presents a different
face to GSA than they have before, because I want to make clear
we have not abdicated our responsibility to build appropriate
courthouses within the budget, and as much as we can, we have
had a lot of conversations with the judiciary.
And I want to make a suggestion, because I think we are
getting to an important point. The judiciary under the
leadership of Judge Bataillon and now Judge Ponsor and the
space committee have, I think, been much more realistic about
prioritizing courthouses in the first place.
Second, I think they are much more open to looking at
modern management and how we might do things differently. And
so the suggestion I would make is that we look at actual data.
I think Congressman Diaz-Balart suggested we see if we can make
this work. Why don't we look at real data that we have on
caseloads in different courthouses--I suspect we are going to
find different answers in different places, and with different
sizes of courthouses, and with different mixes of magistrate
and bankruptcy and district judges--and then come up with some
real data based on real facts that will tell us how and whether
this could work, and what obstacles we would face if we went to
a different kind of a policy.
I think it would be instructive. I suspect that we will
validate some of the concerns that the Committee has typically
had, and I think we will validate some of the concerns that the
judges have had about the hardships. But I think we could come
up with a research model and run data fairly quickly if we all
got together and did it.
Ms. Norton. Well, I am certainly with you, Mr. Peck, that
the judiciary is far more open to change. We have not heard the
kind of stonewalling about a kind of virtual Article III right
to build courthouses here. We have heard none of that from our
witnesses today. The witnesses are open to sharing.
I must say that I am dubious about your last suggestion. We
are not going to customize courthouses based on docket, which
changes from time to time.
And if you want some real-life experience, Mr. Peck, I want
you to study what the Southern District has done. Look at--if
you want to talk about somebody who has spent some of her--
native Washingtonian, but spent some of the best years of her
life in New York City, you want to talk about a courthouse that
has complicated trials, that has a horrendous caseload, take
that as a case in point and see if you can extrapolate from
that. Because I can tell you right now, we are not going to be
able to customize courthouses to dockets. There is no way to do
that.
Now, if--when you read Mr.--have a chance to study the
assumptions behind what Mr. Goldstein has done, if you have
differences with it, it is there that you ought to start to
make changes. But I find it amazing to think about dockets as a
way of doing this. We have got to--if we are going to be
efficient, there are some models that have got to take into
account most of what we are talking about. And if I may say so,
this is not the most complicated model that we deal with in the
Congress.
So where you have differences, if you can, if you find a
caseload isn't built in enough, even given the Southern
District model where they have had no delays, where they have
had no backup, if you are not satisfied with that, fine. If you
are not satisfied with Mr. Goldstein's model, fine. But I tell
you one thing, the courts have come up with no model, nor has
GSA. So let us at least compare apples to apples, models to
models.
I am going to ask Mr. Diaz-Balart if he would finish.
Mr. Diaz-Balart. I will be brief.
Let me also then, since this will be my final one as well,
let me thank all of you. And I agree, we have not heard the
stonewalling we have heard in the past. So it has been very
refreshing, and I want to thank all of you for being here
today. I think this has been very helpful.
Mr. Peck, your last recommendation, you know, Mr. Shuster
pretty much did that 4 years ago. I thought that is what we did
4 years ago when he said we are not going to fund anything new
until we have a study. We have a study. So I thought that is
what already had been done. And I guess now it is your
recommendation to do it again because we don't like the result
of it or what? I thought that had already been done.
Mr. Peck. No, sir. I am much more on the--what I was trying
to say was that we can take real-life data. We are talking
about trying to come up with a model. That is what GAO is
trying to do. And I was saying there is real-life data. We
don't quite know what assumptions GAO used. We can use data in
various courthouses and see what works, have it worked out with
the courts on what they think is usable and doable, and come
back to you with a suggestion on what works. I am not talking
about customizing for every courthouse. I am talking about
coming up with a model.
We need a policy. We need in GSA to have an agreement,
because, as you can tell here, we catch the spears when there
is disagreement over the policies. And we are tough, we can
take it, but we would like everyone to have an agreed-upon
policy as well.
Mr. Diaz-Balart. I understand that. But I thought that is
what was asked for 4 years ago; the FJAC then came up with the
numbers, and then GAO used those numbers to come up with this.
But I think it is already there, is my understanding.
Mr. Peck. Like I said, we don't know how GAO took those
numbers and turned them into their model.
Mr. Diaz-Balart. FJAC also did their part, is my
understanding.
Mr. Peck. Thats right, they have. But I don't think what we
ever came up with was the final analysis on what courtroom
sharing could look like if you are talking about sharing beyond
what the courts already have done.
Mr. Diaz-Balart. Well, you have one model at least now. And
I think what the Chairwoman is saying is we haven't gotten
anything other than the GAO--thank God for them. But--all
right. I just want to make sure that we are on the same page
here.
Look, a couple issues. We have heard no stonewalling, and I
think it has been refreshing. However, there are a couple
things that make us pause. We keep going back to the L.A.
model. That is like a bad penny that keeps turning up. And I
understand there is obviously a lot of issues. L.A. is a huge
area with huge issues. My understanding is that when there are
issues of security, that there is I guess two now, they use the
one that is newer that has, my understanding, some very good
security measures. And this Committee has never been shown any
compelling reason why anything above that needs to be done.
I think it would be a step in the right direction to show
that things are different, that we all--we all have learned our
lessons, our collective lessons, that that one, frankly, just
is looked at, and that reality hit; and that look at the
security steps that have been taken with the newer of the two
courthouses that are down there, and that that one just finally
gets real. Number one.
Number two is it is not the only one. You know, there is
the issue of, as was mentioned, the one in Pennsylvania. I
guess now there is one in Redding. Now there is another small
courthouse that was going to be put together and built in
Pennsylvania, in, I guess, Lancaster, Pennsylvania.
You know, those things have to start--if we are serious
about changing the way we do business, which we all have to do,
you know, things like that have to, frankly, go away. They have
to get real. They have to start--we need to start to see some
serious changes in the way we have been doing business.
Judge Ponsor. Lancaster is a valid criticism.
Mr. Diaz-Balart. Well, I think L.A.--by the way, I am sure
there are some good ones and some bad ones. That is just life.
I understand that. The reality is those that we know are bad--
bad is not the right term. I mentioned to you about what words
mean. I shouldn't say ``bad.'' Ones that clearly are not the
best way to spend taxpayers' money, those have to be corrected.
They have to go away. They have to drop off the lists. And they
shouldn't be around anymore. And I think that will show a lot
of--that we are moving in the right direction.
So I want to thank you all for your testimony. It has been
very helpful. I want to thank you all for being very open and
allowing us to do the same thing, and appreciate your service.
Thank you.
Ms. Norton. Let me say we do have one model. I suggest
everybody look at that model and try to see if there are
changes should be made in that model, because I want to say
this: We are not going through a whole set of hearings on
different models. We are going to change this program by law.
So the kind of collaboration that would have everyone agree
would be helpful to us, and if we don't get it, we are just
going ahead anyway, because we have got to show in the Congress
that we are taking care of this problem. This is one of the
major construction projects or divisions of the GSA.
I have to ask a final question of Mr. Peck. Given the
extent to which judiciary has been given the last word often on
courthouses, is the GSA fully willing and able to again take
charge of a major Federal construction program as mandated by
law?
Mr. Peck. I would--first, I would not say that the
judiciary has had the last word. But I think that we prove
every day with the projects that we manage, the buildings we
manage, the leases that we negotiate that we are a supremely
competent public real estate agency, and that we certainly
welcome the opportunity to work on the courthouses, and we
welcome the opportunity with the Congress to put some bright
policy parameters around this program and manage to them. We
would welcome that. Yes, ma'am.
Ms. Norton. And I do believe that the ball really is in our
court. I think we have put GSA to a disadvantage, first of all,
even within the executive branch, of dealing with peer
agencies. Now, when they deal with another branch of government
through administrations of all kinds, we have found GSA to be
at a disadvantage. And we think the only way to correct that
advantage, given the fact that this part of what the courts do
has nothing to do with cases and controversies and has
everything to do with what Mr. Peck just said--Mr. Peck and the
GSA are experts in construction. They know how to do it. Judges
don't know how to do it, aren't paid to know how to do it, and
deal in the case in controversy business. They are absolutely
indispensable advisers to GSA.
This Committee will hold GSA responsible for the final
product. I want that understood. I think Mr. Peck is very
experienced, knows how to do it. I believe that we have short-
changed him and the GSA in not putting more teeth in the law,
because we believe that judges will follow the law. And if the
law makes clear that GSA, and only GSA, is accountable when it
comes to construction, with the advice of the judiciary in
language that cannot be gainsaid, if we make it clear, then I
think we will straighten out part of this problem.
And we do intend to do this. We intend to change the law.
And we believe that we put GSA at a disadvantage if we don't.
And while we have had two very reasonable judges before us,
they know well that others of their colleagues often see
themselves as in charge of this process. And we think the only
way to disabuse them is by something all judges respect, by
law, and that is the change we intend to make.
Your testimony, the testimony of all four of you, has been
extremely helpful to us. I hope you don't mistake, judges won't
certainly, the kind of cross examination, if I may say so, that
we do here. That is how we are trained to extract from our
witnesses the best testimony that will get--the deeper the
cross examination, the better the answer, because the witness
will defend her or his view. And then it will make us
understand whether we have--the question posed, in fact,
reflects or does not reflect what the facts are.
So we have found you to be very good witnesses of great
help to this committee, and you have given us a head start on
what our part of the problem will be. We are especially--what
our part of the mission is. And we are especially encouraged by
the willingness of all four witnesses to work together to
advise GSA and to advise this committee on how to proceed.
Thank you very much. And this hearing is adjourned.
[Whereupon, at 1:25 p.m., the Subcommittee was adjourned.]
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