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Sprecher v. Graber

United States Court of Appeals for the Second Circuit

March 24, 1983, Argued ; August 26, 1983, Decided

No. 82-6188, No. 685 -- August Term 1982

Opinion

 [*970]  WINTER, Circuit Judge:

Benjamin G. Sprecher, an attorney appearing pro se, appeals from the dismissal of his complaint alleging various instances of individual and official misconduct on the part of Securities and Exchange Commission officials and the Securities and Exchange Commission ("SEC"). The seven counts of the complaint allege seriatim: (1) that the SEC investigation of Sprecher's activities in relation to American Technical Resources, Inc. ("ATR") violated an earlier [**2]  agreement under which the SEC purportedly agreed not to subpoena Sprecher absent notice and good cause; (2) that the SEC subpoena in the ATR investigation constituted harassment; (3) that the ATR investigation trenched upon the attorney-client privilege; (4) that the actions of the SEC and individual defendants caused Sprecher loss of business and damage to reputation; (5) that SEC staff attorney Jacob Graber defamed and harassed Sprecher during the course of the ATR investigation due to Graber's prejudice against Orthodox Jews; (6) that an affidavit of Assistant Regional Administrator of the SEC New York Regional Office, Andrew E. Goldstein, which formed a partial basis for the ATR investigative order, was "false and perjurious" and "intended to injure" Sprecher; and (7) that Graber attempted to suborn perjury on the part of a former president of ATR. The complaint seeks declaratory and injunctive relief as well as monetary damages.

The district court dismissed Counts 1-3 and 5 on the ground of collateral estoppel arising from Sprecher's litigation of the same claims in SEC v. Knopfler, Civ. No. M-18-304 (April 28, 1981 S.D.N.Y.), aff'd, 658 F.2d 25 (2d Cir. 1981). [**3]  It also dismissed Counts 4 and 5, which alleged constitutional  [*971]  torts, for failure to state a claim and Counts 4-7, which alleged common law torts, on grounds of official immunity as to the named plaintiffs, sovereign immunity as to the SEC, and witness immunity as to defendant Goldstein. We adopt the district court's reasoning regarding the dismissal of Counts 3-7. However, we conclude that Counts 1, 2 and 5 were not barred by collateral estoppel. Rather, we believe that Counts 1 and 2 should be dismissed on grounds of sovereign immunity and Count 5 on grounds of official immunity and failure to state a claim. Accordingly, we affirm.

BACKGROUND

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716 F.2d 968 *; 1983 U.S. App. LEXIS 24477 **; Fed. Sec. L. Rep. (CCH) P99,476

Benjamin G. SPRECHER, Appellant, v. Jacob GRABER, Andrew E. Goldstein, Stanley Sporkin, Phillip A. Loomis, John R. Evans, Barbara S. Thomas and Steven J. Friedman, Individually and in Their Capacities as Officers and/or Commissioners of the United States Securities and Exchange Commission, and the United States Securities and Exchange Commission, Appellees

Prior History:  [**1]   Appeal from a final judgment of the United States District Court for the Eastern District of New York (Bramwell, Judge), dismissing a multiple count complaint alleging misconduct on the part of named Securities and Exchange Commission officials, both in their individual and official capacities.

Disposition: Affirmed.

CORE TERMS

subpoena, sovereign, estoppel, collateral, discovery, harass, issuance, waive, evidentiary, defamation, perjury, proviso

Governments, Courts, Authority to Adjudicate, Securities Law, US Securities & Exchange Commission, Administrative Proceedings, General Overview, Regulators, Authorities & Powers, Special Powers, Civil Procedure, Discovery & Disclosure, Discovery, Protective Orders, Subpoenas, Preclusion of Judgments, Estoppel, Collateral Estoppel, Judgments, Summary Judgment, Burdens of Proof, Torts, Intentional Torts, Malicious Prosecution, Pretrial Judgments, Judgment on Pleadings, Entitlement as Matter of Law, Administrative Law, Judicial Review, Remedies, Mandamus, Federal Government, Claims By & Against, Sovereign Immunity, Preliminary Considerations, Federal & State Interrelationships, Courts of Claims, Federal Tort Claims Act, Exclusions From Liability, Discretionary Functions, Liability, Claim Presentation, Environmental Law, Administrative Proceedings & Litigation, Judicial Review, Reviewability, Standing, Investigative Authority, Public Entity Liability, Immunities, Scope of Authority, Methods of Investigation, Defenses, Demurrers & Objections, Affirmative Defenses, Criminal Law & Procedure, Trials, Witnesses, Presentation