Brennan v. DOJ ( 2019 )

18-2569
Brennan v. DOJ
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 28th day of May, two thousand nineteen.
PRESENT: JOHN M. WALKER, JR.,
JOSÉ A. CABRANES,
PETER W. HALL,
Circuit Judges.
KEVIN P. BRENNAN,
Plaintiff-Appellant, 18-2569
v.
UNITED STATES DEPARTMENT OF JUSTICE, UNITED
STATES SECURITIES AND EXCHANGE COMMISSION,
FEDERAL BUREAU OF INVESTIGATION,
Defendants-Appellees.
FOR PLAINTIFF-APPELLANT: Kevin Brennan, pro se, Pittsburgh, PA.
FOR DEFENDANTS-APPELLEES: Benjamin H. Torrance, Chief Appellate
Attorney, for Geoffrey S. Berman, United
States Attorney, Southern District of New
York, New York, NY.
Appeal from June 28, 2018 judgment of the United States District Court for the Southern
District of New York (Colleen McMahon, Chief Judge).
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UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED.
Plaintiff-Appellant Kevin P. Brennan (“Brennan”) appeals the District Court’s dismissal of
his complaint with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). Brennan sued the United States
Department of Justice (“DOJ”), United States Securities and Exchange Commission (“SEC”), and
Federal Bureau of Investigation (“FBI”) for allegedly violating his constitutional rights in connection
with his conviction for securities fraud. We assume the parties’ familiarity with the underlying facts,
the procedural history of the case, and the issues on appeal.
We review a district court’s sua sponte dismissal of a complaint pursuant to § 1915(e)(2) de
novo. See Zaleski v. Burns, 606 F.3d 51, 52 (2d Cir. 2010) (per curiam). Under § 1915(e)(2), a district
court must dismiss a complaint filed in forma pauperis if it “(i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). We afford a pro se litigant “special solicitude”
by interpreting the pro se complaint “to raise the strongest claims that it suggests.” Hill v. Curcione,
657 F.3d 116, 122 (2d Cir. 2011) (internal alterations and quotation marks omitted).
Brennan argues that the District Court erred in holding that the DOJ, SEC, and FBI were
immune from suit. The District Court correctly held that the doctrine of sovereign immunity bars
lawsuits for damages against federal agencies, unless immunity is waived. See F.D.I.C. v. Meyer, 510
U.S. 471, 475 (1994). To the extent that Brennan intends to argue that this immunity is waived under
the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671–80, Brennan failed to allege that he satisfied
the preconditions necessary for such waiver, including filing “an administrative claim with the
appropriate federal agency before suing for relief in federal court.” Adeleke v. United States, 355 F.3d
144, 153 (2d Cir. 2004). Additionally, to the extent that Brennan intends to bring claims under Bivens
v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), such claims cannot be
brought against federal agencies. See F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994). Accordingly, the
District Court did not err in finding that the DOJ, SEC, and FBI were immune from Brennan’s
lawsuit and dismissing the complaint.
CONCLUSION
We have reviewed all of the arguments raised by Brennan on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the June 28, 2018 judgment of the District
Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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