‘‘(C) If a claim in a complaint filed under subsection
(b) alleges that a joint committee of Congress, an agency
established in the legislative branch of the Federal Gov-
ernment (other than an agency established in a House of
Congress), or any individual on the staff of such commit-
tee or agency has failed to make available information,
records, or other material required by this section to be
made available, then the Speaker of the House of Rep-
resentatives shall select a member of the Board to hear
and determine such claim.
‘‘(4) The offices of the Board shall be in the District
of Columbia. There shall be detailed to the Board such
employees of the Congress as the Board may require to
carry out its duties under this section.
‘‘(h)(1) The Board shall designate one of its members
(other than any Special Hearing Member) to serve for a
term of 1 year as the Complaint Referral Officer. The
Complaint Referral Officer may not hear or determine any
claim in a complaint referred under paragraph (2) to such
Officer.
‘‘(2) Except as provided in subparagraph (B), each
complaint filed with the Board in accordance with sub-
section (b) shall be referred immediately to the Complaint
Referral Officer.
‘‘(3) Not later than 15 days after a complaint filed
in accordance with subsection (b)(4) is received by the
Board, the Complaint Referral Officer shall appoint an in-
dividual (other than a member of the Board) to serve as
the Investigating Counsel with respect to such complaint
and shall refer such complaint to such Investigating Coun-
sel.
‘‘(i)(1) Each individual appointed under subsection
(d)(3) as Investigating Counsel shall meet the qualifica-
tions for appointment as a United States magistrate speci-
fied in subsections (b), (c), and (d) of section 631 of title
28.
‘‘(2)(A) An Investigating Counsel shall comply with
the requirements for service applicable to part-time United
States magistrates specified in section 632(b) of title 28.
‘‘(B) If the appointment of an Investigating Counsel
is terminated by reason of resignation, death, or removal
from office, the Complaint Referral Officer shall appoint
another individual as Investigating Counsel to complete
the work of the Investigating Counsel who so resigned,
died, or was removed.
‘‘(C) An Investigating Counsel may be removed from
office only by the Complaint Referral Officer and only for
good cause, physical disability, mental incapacity, or any
other condition that substantially impairs the performance
of such Investigating Counsel’s duties.
‘‘(3) Not earlier than 45 days, and not later than 90
days, after receiving a complaint referred under paragraph
(2), the Investigating Counsel involved shall conduct a
thorough investigation of each unresolved claim therein al-
leging a failure to make available material required by this
section to be made available and shall determine whether
there is reasonable cause to believe any such claim is true.
For purposes of conducting such investigation, such Inves-
tigating Counsel shall have investigative powers of the
types vested in the Equal Employment Opportunity Com-
mission by section 709(a) of the Civil Rights Act of 1964.
‘‘(4)(A) If such Investigating Counsel determines
that there is reasonable cause to believe any such claim
is true, then such Investigating Counsel shall attempt to
secure from the defendant and the person that filed the
complaint making the claim, during the 30-day period be-
ginning on the date of such determination, an agreement
to make available the material that is the subject of the
complaint.
‘‘(B) If such Investigating Counsel is unable to secure
such agreement with respect to any such claim, then such
Investigating Counsel shall certify to the Board for hear-
ing and determination each claim with respect to which
such reasonable cause is found.
‘‘(5)(A) Each Investigating Counsel appointed under
this subsection shall be paid at the daily equivalent of the
annual rate of basic pay payable from time to time for
level IV of the Executive Schedule under section 5315 for
each day (including traveltime) during which such Inves-
tigating Counsel is engaged in the actual performance of
duties under this subsection.
‘‘(B)(i) If the complaint with respect to which an In-
vestigating Counsel is appointed is based on an alleged
failure by the Congress to make available material, then
the Investigating Counsel shall be paid compensation in
connection with such complaint from the contingent fund
of the House of Congress (upon vouchers approved by the
Clerk of the House of Representatives or the Secretary
of the Senate in which the failure occurred.
‘‘(ii) If the complaint with respect to which an Inves-
tigating Counsel is appointed is based on an alleged failure
to make available material by an agency or unit of the
legislative branch of the Federal Government (other than
the Congress), then the Investigating Counsel shall be
paid compensation in connection with such complaint by
such agency or unit from funds available to such agency
or unit.
‘‘(j)(1) The member of the Board, to whom a claim
is referred under subsection (g) for hearing and deter-
mination shall make such determination as promptly as
possible and, insofar as practicable, not later than 180
days after the date the Board received the complaint in-
volved.
‘‘(2)(A) Each determination made by the Board or
a member of the Board shall be in writing. In the case
of a determination made by a member of the Board to
dispose of any claim in such complaint, such member shall
file with the Board a written report containing such mem-
ber’s findings of fact and conclusions of law with respect
to such claim.
‘‘(B) If such member finds that the defendant has
failed to make available material that is required by this
section to be made available, then such member shall sub-
mit to the Board, and the Board shall issue, an order for
relief which compels the defendant to do one or more of
the following, as appropriate, for the benefit of the person
that filed the complaint:
‘‘(i) Make available the information, record, or
other material that is the subject of the complaint,
on such terms and conditions as determined to be
appropriate.
‘‘(ii) Pay compensatory damages.
‘‘(iii) Pay the fees and allowances of witnesses
in the same manner as is provided in section 1821
of title 28, and pay a reasonable attorney’s fee.
‘‘(C) Any payment ordered under subparagraph (B)
with respect to a violation of this section by a Member
of Congress, a committee of Congress, or an officer or em-
ployee of Congress shall be paid from the contingent fund
of the appropriate House of Congress, upon vouchers ap-
proved by the Clerk of the House of Representatives or
the Secretary of the Senate, as the case may be.
‘‘(3)(A) Any member of the Board may issue subpoe-
nas requiring the attendance and testimony of witnesses
and the production of any evidence that relates to a com-
plaint pending before the Board. Such attendance of wit-
nesses and production of evidence may be required from
any place within the United States. Any member of the
Board may administer oaths and affirmations.
‘‘(B) If a person issued a subpoena under subpara-
graph (A) refuses to obey such subpoena or is guilty of
contumacy, the district court of the United States for the
District of Columbia or the district court of the United
States for the judicial district within which such person
is found or resides, or transacts business may, upon appli-
cation by the Board, order such person to appear before
the appropriate member of the Board to produce evidence
or to give testimony relating to such complaint. Any fail-
ure to obey such order of the court may be punished by
such court as a contempt thereof.
‘‘(C) Subpoenas issued by members of the Board
shall be served in the manner provided for subpoenas is-
sued by a United States district courts under the Federal
Rules of Civil Procedure.
‘‘(D) All process of any court to which application
may be made under this subsection may be served in the
judicial district in which the person required to be served
resides, is found, or transacts business.
‘‘(E) For purposes of sections 6002 and 6004 of title
18, the Board shall be considered to be an agency of the
United States.
‘‘(4)(A) Except as otherwise provided in this section,
rules 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21,
24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 43,
and 50 of the Federal Rules of Civil Procedure shall apply
with respect to complaints filed under subsection (b)(1).
‘‘(B) The Federal Rules of Evidence shall apply with
respect to the hearing and determination of claims by the
Board.
‘‘(5)(A) Notwithstanding any other provision of law,
none of the records of the Board relating to a complaint
filed under subsection (b)(1) may be disclosed to the pub-
lic by the Board or by any court or agency of the United
States until the conclusion of any judicial review of the
order issued by the Board disposing of such complaint or
the expiration of any period allowed by law to seek such
review, whichever occurs later.
‘‘(B) No determination made by the Supreme Court
of the United States, the Court of Appeals for the District
of Columbia Circuit, the Board (or any member of the
Board), or the Investigating Counsel with respect to any
claim alleging a violation of this section is admissible in
evidence in any administrative or judicial proceeding other
than a proceeding authorized by law to review a deter-
mination made under this section by the Board (or any
member of the Board) or the Court of Appeals for the
District of Columbia Circuit.
‘‘(6)(A) Any person who files a complaint under sub-
section (b)(4)(B) may attend, and may be represented by
an attorney at, any hearing conducted under this sub-
section with respect to such complaint.
‘‘(B)(i) Except as provided in clause (ii), if such indi-
vidual resides more than 100 miles from the place where
such hearing is held, then such individual shall be reim-
bursed by the defendant for any actual and reasonable
costs incurred by such individual to attend such hearing.
‘‘(ii) If such complaint is filed with respect to a fail-
ure by the Congress to make available materials, then such
reimbursement shall be paid from the contingent fund of
the appropriate House of Congress, upon vouchers ap-
proved by the Clerk of the House of Representatives or
the Secretary of the Senate, as the case may be.
‘‘(k)(1) Chapter 7 shall apply with respect to judicial
review of orders of the Board.
‘‘(2) The United States Court of Appeals for the Dis-
trict of Columbia Circuit shall have jurisdiction to review
and to enjoin, set aside, suspend, modify, and enforce the
orders of the Board.
‘‘(3) Any person who is a party to a proceeding in
which the Board issues an order may seek review of such
order by filing in the United States Court of Appeals for
the District of Columbia Circuit (hereinafter in this sub-
section referred to as the ‘court’), not later than 60 days
after the date such order is entered by the Board, a writ-
ten petition for review. A copy of the petition shall be
transmitted by the clerk of the court to the Board, and,
upon receipt of such copy the Board shall file with the
court the record in the proceeding, in the manner provided
in section 2112 of title 28.
‘‘(4)(A) In any judicial proceeding to review an order
of the Board, if any party—
‘‘(i) applies to the court for leave to adduce ad-
ditional evidence; and
‘‘(ii) shows to the satisfaction of the court
that—
‘‘(I) such additional evidence is material;
and
‘‘(II) reasonable grounds exist for the fail-
ure to adduce such evidence in the proceeding
before the Board;
the court may order such additional evidence (and evi-
dence in rebuttal thereof) to be taken before the Board,
in such manner and upon such terms as the court consid-
ers to be appropriate.
‘‘(B) The Board may modify its findings of fact, or
make new findings of fact, by reason of the additional evi-
dence so taken, and shall file any such modified or new
findings, together with any recommendations for the modi-
fication or setting aside of the original order of the Board.
‘‘(C) The findings of fact of the Board may be set
aside only if not supported by substantial evidence.
‘‘(5) In any judicial proceeding to review an order of
the Board, the court may remand, on its own motion, the
case to the Board for such further action as the court may
require.
‘‘(6) In any action or proceeding under this section
the court, in its discretion, may allow the prevailing party,
a reasonable attorney’s fee as part of the costs, and the
United States shall be liable for costs the same as a pri-
vate person.
‘‘(l) Each member of the Board appointed under this
section shall submit written reports at least annually to
the Committee on Standards of Official Conduct of the
House of Representatives and to the Senate Select Com-
mittee on Ethics describing the pending complaints re-
ferred to such member for determination and any deter-
minations made by such member disposing of complaints
during the reporting period involved.
‘‘(m) The Board may issue rules of practice and pro-
cedure to carry out this section.
‘‘(n)(1) Any right to relief under this section shall
be in addition to, and not in lieu of, any right to relief
under any other law.
‘‘(2) No claim arising with respect to conduct which
if true would constitute a violation of this section may pro-
ceed in any court of the United States if with respect to
such conduct a claim by the same claimant then is pending
before the Board.’’.
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HR 3394 IH——2