The Office of Compliance and a Mysterious Rule VIII Notice

In case you forgot, Rule VIII is the House rule that governs when a judicial or administrative subpoena is served on a member, officer or employee for documents or testimony relating to the official functions of the House.  The rule requires that notice be given to the House, through the Speaker, whenever such a subpoena is properly served. Under paragraph 3 of the rule, the subpoena recipient is required to make three determinations regarding the subpoena: (1) whether it is a proper exercise of jurisdiction; (2) whether it seeks information that is material and relevant; and (3) whether it is consistent with the rights and privileges of the House. These determinations are also supposed to be provided to the Speaker and spread upon the Congressional Record.

Sometime this spring a subpoena from the Office of Compliance was served upon the “House Office of Payroll and Benefits” in the Chief Administrative Officer’s office. The OOC is the entity established to administer and enforce the employment laws as they apply to Congress under the Congressional Accountability Act. OOC administrative proceedings are confidential so there is no publicly available information as to the case that precipitated this subpoena. Nor is there any publicly available information as to what documents were sought by the subpoena.

Although Rule VIII provides that the Speaker “shall generally describe the records or information sought” when informing the House of a subpoena, this provision is routinely ignored. Instead, when a subpoena is initially received, it is forwarded to the House Counsel’s office, which provides written notice to the Speaker, the Minority Leader and the Parliamentarian. When the subpoena was addressed to a House officer, the notice (known as a “3 amigos,” don’t ask me why) will attach a copy of the subpoena. Thus, while the bipartisan House leadership will be informed of the nature of the documents requested, the House at large is not.

We can surmise that the subpoena in question stemmed from an administrative proceeding brought against a House employing office under the CAA. Such proceedings are fairly rare. According to the most recent OOC report, for example, there were a total of 14 requests for administrative hearings in FY 2012. That total includes complaints filed against both House and Senate employing offices, as well as congressional support agencies like the Capitol Police and the Architect of the Capitol. There are probably only a handful of administrative complaints filed each year against a House employing office.

Even if a case proceeds to an administrative hearing (i.e., it is not settled or dismissed), discovery is not automatic. The CAA provides that “[r]easonable prehearing discovery may be permitted at the discretion of the hearing officer.” 2 U.S.C. § 1405(e). It also permits, but does not require, the hearing officer to issue subpoenas at the request of a party. 2 U.S.C. § 1405(f) (1). In this case, therefore, the hearing officer approved the subpoena to the House Office of Payroll and Benefits at the request of a party, presumably the employee.

On May 9, the Chief Administrative Officer informed the House that the subpoena had been received. In accordance with normal practice, he provided no information about the nature of the proceeding or the documents requested. He did, however, indicate that the subpoena would not be complied with by stating the following:

          After consultation with the Office of General Counsel regarding the subpoena, I have determined under Rule VIII that the subpoena appears (i) not to be “a proper exercise of jurisdiction,” (ii) to seek information that is not “material and relevant,” and/or (iii) not to be “consistent with the privileges and rights of the House.”

This language doesn’t tell us very much, particularly with the “appears” and “and/or” language suggesting a degree of uncertainty in the determinations. Presumably the subpoena would not have issued unless the hearing officer believed the OOC had jurisdiction over the employee’s claims. Its not clear how seriously the House is questioning that jurisdiction, but it is at least reserving its right to challenge jurisdiction before the Board of Compliance (which can rule on objections to subpoenas issued by a hearing officer) or in court (where the OOC would have to go to enforce a subpoena if the House refused to comply with an administrative ruling on its objections by the hearing officer or the Board).

It is reasonable to surmise that the documents sought by the subpoena are sensitive in some way (think, for example, of information relating to congressional healthcare under the Affordable Care Act), but it is not obvious what kind of privilege the House might be raising. One would not normally associate the Office of Payroll and Benefits with a congressional privilege claim. Moreover, the Speech or Debate privilege is inapplicable to an OOC subpoena because OOC is not “any other place” within the meaning of the Speech or Debate Clause. Nothing in the Rule VIII notice tells us how the subpoena might be inconsistent with the “rights and privileges of the House.”

No doubt the House’s position is spelled out more clearly in objections filed with the OOC. Unfortunately, that document is not available to the public. If the employee decides to pursue the subpoena further, the objections would be ruled on by the hearing officer and then perhaps by the Board of Compliance itself. See 2 U.S.C. § 1405(f) (2). Even then, though, the proceedings would presumably remain confidential. Only if the OOC ultimately decided to bring an enforcement action in federal court under  § 1405(f)(3) (something that has never happened, as far as I know) would the matter presumably be made public.

So at the end of the day all we know is that the House leadership, presumably on a bipartisan basis, objects, for undisclosed reasons, to complying with an OOC subpoena for undescribed documents in a case where neither the identity of the parties nor the nature of the claims is known. Maybe this is a minor matter of little consequence, but there is no way to say from the information that the House provides.

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