As a follow up to our July 6th blog post in which we detailed United States District Court for the Eastern District of New York Judge John Gleeson’s granting an Expungement/Sealing Motion, this post will focus on the United States Circuit Court of Appeals circuit split regarding Federal Courts’ inherent power and ancillary jurisdiction to expunge criminal records.
There is no statute creating a general federal expungement remedy, and several Courts of Appeals have held that there is no judicial authority to expunge an individual’s criminal records absent extremely rare and extraordinary circumstances or Congressional legislation. However, some Federal Courts have held that expungements may be granted through a court’s inherent powers or through a court’s ancillary jurisdiction.
In Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. (1994), the United States Supreme Court held the two purposes for which a court can assert ancillary jurisdiction:
1. To permit disposition by a single court of claims that are, in varying respects and degrees factually dependent; and
2. To enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.
As a result of the Kokkonen decision, the First, Third, Sixth, Eighth, Ninth, and Eleventh Circuits have declined ancillary jurisdiction for expungement of an individual’s federal criminal records based solely on equitable grounds.
In United States v. Lucido, 612 F.3d 871 (6th Cir. 2010), the Sixth Circuit reversed the District Court and remanded the case for dismissal for lack of jurisdiction holding that the Federal Courts lack ancillary jurisdiction to consider expungement motions directed to the Executive Branch.
In applying the Kokkonen ancillary jurisdiction categories, the Sixth Circuit held that Lucido’s expungement motion fails under both categories – (1) there are no factually dependent claims, and (2) the criminal case has been resolved for eighteen (18) years, and there is nothing left to manage, vindicate or effectuate.
The Sixth Circuit further held that,
“The power to expunge an indictment is the power to undermine a web of federal (and state) laws designed to collect and preserve such information for law enforcement purposes…To the extent, a federal court has the power to nullify this rules to erase indictments and convictions that Congress had commanded the executive branch to preserve-it hardly seems unfair to insist that Congress, not a court’s inherent equitable power, be the source of that authority.”
The Sixth Circuit reaffirmed its Lucido holding in U.S. v. Field, 756 F.3d 911 (6th Cir. 2014).
However, the Second, Fourth, Fifth, Seventh, Tenth, and D.C. Circuits continue to permit District Courts to exercise jurisdiction over expungement motions.
In U.S. v. Flowers, 389 F.3d 737 (7th Cir. 2004), the Seventh Circuit, following Kokkonen, applied a balancing test:
“…unwarranted adverse consequences must be uniquely significant in order to outweigh the strong public interest in maintaining accurate undoctored records…to outweigh that interest, “unwarranted adverse consequences” must be truly extraordinary…it is possible, even likely, that any person with an arrest or conviction record may well be impeded in finding employment…if employment problems…were sufficient to outweigh the government’s interest….expunction would no longer be the narrow, extraordinary exception…”
Despite the fact that the Second, Fourth, Fifth, Seventh, Tenth, and D.C. Circuits consider expungement motions on equitable grounds, expungement motions filed in these circuits are rarely granted by the District Court or affirmed on appeal.
For a more in depth discussion regarding Expungement of Federal Criminal Records and the United States Circuit Court of Appeals circuit split please review “In Search of Redemption: Expungement of Federal Criminal Records”, Raj Mukherji, Seton Hall Law Review (2013).
If you or someone you care about has any questions regarding Criminal Justice System expungement/sealing eligibility, please contact Attorney Michael C. Hennenberg to schedule a consultation.