Sealed Appellant v. Sealed Appellee

Decision Date04 December 1997
Docket NumberNo. 97-30160,97-30160
Citation130 F.3d 695
PartiesSEALED APPELLANT, Plaintiff-Appellant, v. SEALED APPELLEE, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Stephen A. Higginson, Assistant U.S. Atty., New Orleans, LA, for Plaintiff-Appellant.

Sealed Appellee, Kenner, LA, pro se.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REYNALDO G. GARZA, SMITH and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The United States appeals an order commanding all executive branch agencies to expunge the records of a particular defendant's overturned convictions. We reverse.

I.

In 1986, the defendant (designated in the caption as "Sealed Appellee") was convicted of wire fraud and conspiracy, and we affirmed. Before the appeal became final, however, the Supreme Court decided McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), which foreclosed one avenue for obtaining a wire fraud conviction. See McNally, 483 U.S. at 359-61, 107 S.Ct. at 2881-82. Because the jury instructions had not excluded the possibility that the fact-finder could have found the defendant guilty of both conspiracy and wire fraud under the now-prohibited theory, we set aside the conviction in a subsequent action brought under 28 U.S.C. § 2255. 1

Six years later, the defendant returned to the court of conviction and filed a petition for "expunction" of the records of his now-overturned convictions. Citing interference with his professional law-enforcement activities, he prayed for an order expunging all the federal judicial records of the conviction and forcing all executive branch agencies having a record of the charges to do the same.

The district court granted the request, reasoning that it had jurisdiction to enter an expungement order against the executive branch:

While the Fifth Circuit has questioned in dictum whether the constitutional separation of powers would permit a district court to order expungement of the records of the executive branch, it has not addressed the question. United States v. Scott, 793 F.2d 117, 118 (5th Cir.1986). Most federal courts to address the issue have found that the district court has such equitable power. See United States v. Janik, 10 F.3d 470 (7th Cir.1993) (dissent collecting cases) (Janik is the only case to find that courts have no such authority because of the separation of powers.).

On the merits, the court held:

Pursuant to Fifth Circuit precedent, the Court may not order expungement of records if the facts show a violation of the charged crime, but the conviction was overturned on constitutional grounds. Rogers v. Slaughter, 469 F.2d 1084 (5th Cir.1972) (defendant clearly violated state law, but he was not advised of his right to counsel). The Court may not order expungement of arrest records where a conviction was validly obtained. United States v. Scott, 793 F.2d 117 (5th Cir.1986).

The court distinguished these precedents, stating: "More than being presumed innocent or found innocent of a valid crime, [defendant] was charged with and convicted of crimes which did not exist." Id. Thus, the court entered an order compelling all federal agencies with a record of the conviction to expunge their records.

The government now appeals, arguing that federal courts lack jurisdiction to enter expungement orders against executive branch actors. In the alternative, the government maintains that the defendant failed to make the showing needed to obtain expungement.

II.

We review jurisdictional issues de novo. See, e.g., Robinson v. TCI/US West Communications, Inc., 117 F.3d 900, 904 (5th Cir.1997). Challenges to subject matter jurisdiction can be raised at any time and sua sponte. See, e.g., Johnston v. United States, 85 F.3d 217, 218 n. 2 (5th Cir.1996).

We review the decision to grant expungement for an abuse of discretion. See United States v. International Harvester Co., 720 F.2d 418, 419 (5th Cir.1983). We evaluate the district court's legal determinations de novo and its factual determinations for clear error. Cf., e.g., Squires-Allman v. Callahan, 117 F.3d 918, 920 (5th Cir.1997) (award of attorneys' fees under the Equal Access to Justice Act).

III.

The government correctly argues--but not entirely for the right reasons--that the district court lacked jurisdiction over the defendant's petition. The government maintains that, absent statutory or constitutional commands, federal courts are powerless to employ the expungement remedy against the executive branch. Because this conflicts with our caselaw--and courts' traditional ability to fashion remedies in the face of rights violations--we disagree.

To have standing, a party claiming expungement of executive branch records must make a showing of more than mere burden. Unlike a person asking for expungement of judicial records--over which the court has supervisory powers 2--the claimant must show an affirmative rights violation by executive branch officers or agencies to justify the intrusion into the executive's affairs. 3 This injury must be such that no other remedy would afford relief.

The defendant has not asserted any violation of rights by executive branch officers or agencies. For him to have standing, 4 therefore, we would have to find an independent "right to expungement." No court, however, has ever held expungement to be a "right." Rather, courts have used expungement as a remedy for other constitutional or statutorily-created rights that have been violated by a state or other governmental agency.

A.
1.

The Seventh Circuit has held that federal courts have no jurisdiction to enter an expungement order against the executive branch: "To obtain expungement of records maintained by the FBI or any other Executive Branch agency, [the claimant] (or anyone else) must go directly to the Executive Branch." United States v. Janik, 10 F.3d 470, 473 (7th Cir.1993). The court found no constitutional basis for granting such relief: "[T]here is nothing in the Constitution that provides jurisdiction to grant or deny motions for expungement. Certainly, the Constitution does not prohibit the government from maintaining what are admittedly accurate records of [the claimant's] indictment and conviction." Id. at 471. 5

The court also held that it lacked a statutory basis for providing the claimant such relief, rejecting the contention that 18 U.S.C. § 3231, which grants the federal courts jurisdiction over federal crimes, was sufficient. Section 3231 "does not vest the federal district courts with authority to invade the Executive Branch of government, in particular the Attorney General and, through her, the FBI. In fact the Attorney General is required by at least one statute, 28 U.S.C. § 534, to collect criminal records...." Id. at 471.

2.

Janik elucidates the limits of the expungement remedy. Because it is so intrusive on those agencies that enforce and administer the law, expungement should rarely, if ever, be employed by the courts against executive agencies. 6 The expungement remedy is burdensome on the executive because it imposes a cost--in terms of both money and lost information that could be useful in the future--and it subverts Congress's otherwise express desire to preserve and maintain all criminal records. 7

Yet, in the end, the Janik court went too far, in our view. Essentially, it held that courts are entirely without power to use the expungement remedy against the executive branch until and unless Congress so permits. See Janik, 10 F.3d at 471. This conclusion is troublesome for two reasons.

First, courts--not legislatures--have historically crafted remedies when a claimant has demonstrated that his rights have been violated. 8 The classic case of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803), is a notable example: "The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." Id. In the main, courts have not restrained their remedial powers on account of the wrongdoers' affiliation with the executive branch. See, e.g., Bivens, 403 U.S. at 395-96, 91 S.Ct. at 2004-05; Marbury, 5 U.S. at 163.

More importantly for our purposes, our circuit has employed the expungement remedy before--in the absence of specific congressional permission--when no other remedy existed to vindicate important legal rights. For example, in United States v. McLeod, 385 F.2d 734, 750 (5th Cir.1967), we ordered expungement in a civil rights/voting rights case because state officials were intentionally arresting blacks to prevent them from voting. No other remedy presented the court with a way to vindicate the wrongly charged individuals' rights.

3.

The Janik court maintained that in the absence of congressional authority, it did not have the right to use the expungement remedy. 9 Because this characterization is overly broad--especially in light of McLeod 10--we adopt a narrower focus: In order to have standing to seek expungement, the party seeking expungement against executive agencies must assert an affirmative rights violation by the executive actors holding the records of the overturned conviction.

B.

Thus, McLeod supports our contention that outside the sphere of the court's own records, the petitioner must assert a specific rights violation--one that cannot be remedied by the relief otherwise provided for by the courts or by Congress--in order to qualify for expungement. In McLeod, the wrong was not the independent lack of expungement by the state officials; rather, we used expungement as a remedial measure for the state officers' civil rights violations. See McLeod, 385 F.2d at 750. The remedy was a direct and proximate result of those violations. See also Doe v. Webster, 606 F.2d 1226, 1231 (D.C.Cir.1979) (requiring a nexus between the injury and the expungement...

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