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BERGMAN v. SENATE SPECIAL COMM. ON AGING

February 6, 1975

Bernard BERGMAN et al., Plaintiffs,
v.
SENATE SPECIAL COMMITTEE ON AGING et al., Defendants


Gagliardi, District Judge.


The opinion of the court was delivered by: GAGLIARDI

GAGLIARDI, District Judge.

Plaintiffs bring this action to declare invalid, and to enjoin compliance with, a subpoena issued by the Special Committee on Aging of the United States Senate ("Special Committee"). The subpoena was served upon the American Bank & Trust Co. ("American Bank") and was signed by The Honorable Frank E. Moss as Chairman of the Subcommittee on Long-Term Care ("Subcommittee") of the Special Committee. Jurisdiction is predicated upon 28 U.S.C. ยงยง 1331 and 1346(a)(2). Plaintiffs have moved pursuant to Rule 65(b), Fed.R.Civ.P., for a temporary restraining order enjoining American Bank from complying with the subpoena.

 The Special Committee was created by S.Res. 33, 87th Cong., 1st Sess. (1961) and has been continued in existence by subsequent resolutions passed by each Congress. It was made a "permanent special committee" by S.Res. 267, 93rd Cong., 2d Sess. (1974), which contains the following mandate:

 
The committee shall make a full and complete study and investigation of any and all matters pertaining to problems and opportunities of older people, including, but not limited to, problems and opportunities of maintaining health, of assuring adequate income, of finding employment, of engaging in productive and rewarding activity, of securing proper housing, and, when necessary, of obtaining care and assistance.

 On May 22, 1963, the Subcommittee on Rules of the Special Committee recommended to the full committee that two subcommittees be established. Barkan Affidavit, Exhibit E. The first, a Subcommittee on Housing and the Residential Environment of the Elderly ("Subcommittee on Housing"), was empowered, inter alia, to

 
inquire into and report on matters including but not limited to . . . the relationship between housing for the elderly and the provision of nursing homes and other health facilities of importance to the elderly; methods of developing more effective cooperation between Federal, State and local governmental units, voluntary organizations and private industry with respect to the development of optimum residential environments for the elderly. . . .

 The second, a Subcommittee on Health of the Elderly ("Subcommittee on Health"), was empowered, inter alia, to

 
inquire into and report on any and all matters relating to the physical and mental health of our older people including but not limited to such subjects as the availability and utilization of health facilities and services; the availability, quality of care and financing of nursing homes and other facilities primarily devoted to the care of the elderly; the costs and methods of financing health services for the elderly and their impact on the elderly and their families; the adequacy and efficacy of existing programs for financing the provision of health services for the elderly including . . . Federal and other governmental programs; proposals designed to replace, modify or expand on existing methods of providing and financing health facilities, personnel and services for the elderly. . . .

 On June 12, 1963, the recommendations of the Subcommittee on Rules relating to the establishment of the two subcommittees were accepted by the Special Committee. It appears that the two subcommittees were consolidated into a joint subcommittee on Long-Term Care in September of 1963. On February 23, 1965, the Special Committee established the Long-Term Care Subcommittee as a full and permanent subcommittee with jurisdiction the same as originally delegated to the Subcommittees on Health and Housing. Barkan Affidavit, Exhibit H. That jurisdiction continues to date.

 The subpoena in question was issued in connection with a Subcommittee hearing held in New York City on February 4, 1975. It was served upon American Bank on February 3 and called for the production of the following records on February 4:

 
Any personal or corporate loan agreements or secured instruments between your Bank and Dr. Bernard Bergman, Anne Weiss Bergman, Amram Kass, and Miriam Kass along with all personal or corporate balance sheets, financial statements or statements of net worth supplied to your Bank by these persons from 1969 through the present.

 An earlier subpoena, calling for essentially the same records and served upon American Bank on January 21, has been withdrawn by the Subcommittee.

 Plaintiffs contend that the request for these documents by the Subcommittee amounts to unauthorized action without valid legislative justification, in violation of certain of their constitutional rights. On February 4, when the subpoenaed documents were to be produced, plaintiffs submitted to the Subcommittee an application to intervene and to withdraw the subpoenas. The application was denied by Senator Moss after conferring with Senators Percy and Domenici. However, compliance with the subpoenas was delayed for 24 hours to allow plaintiffs time to seek court relief. Senator Moss has agreed to a further delay until the evening of February 6 to give this court time to consider and rule upon plaintiffs' motion.

 The plaintiffs have standing to challenge the legality of the subpoenas on the ground that the forced disclosure of the materials requested would allegedly violate their federal constitutional rights under the First, Fourth, and Ninth Amendments. United States Servicemen's Fund v. Eastland, 159 U.S.App.D.C. 352, 488 F.2d 1252, 1261 (1973), cert. granted , 419 U.S. 823, 95 S. Ct. 288, 42 L. Ed. 2d 46 (1974); see United States v. Miller, 500 F.2d 751 (5th Cir. 1974). No other alternative means of challenging the subpoenas is available to the plaintiffs. They cannot force American Bank to refuse ...


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