606 F.2d 1226 (D.C. Cir. 1979), 77-2011, Doe v. Webster

Docket Nº:77-2011.
Citation:606 F.2d 1226
Party Name:John DOE, Appellant, v. William H. WEBSTER, Director, FBI, et al.
Case Date:July 24, 1979
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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606 F.2d 1226 (D.C. Cir. 1979)

John DOE, Appellant,


William H. WEBSTER, Director, FBI, et al.

No. 77-2011.

United States Court of Appeals, District of Columbia Circuit

July 24, 1979

Argued Oct. 3, 1978.

Rehearing Denied Oct. 17, 1979.

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K. Peter Schmidt, Washington, D. C., with whom Bruce L. Montgomery, Washington, D. C., was on the brief, for appellant.

John W. Polk, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Alice P. Frohman, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before ROBINSON and WILKEY, Circuit Judges, and HAROLD H. GREENE, [*] United States District Judge, United States District Court for the District of Columbia.

Opinion for the Court filed by District Judge HAROLD H. GREENE.

HAROLD H. GREENE, District Judge:

This is an appeal from an order of the District Court dismissing an action to compel the expungement of all records relating to a federal conviction set aside under section 5021 of the Federal Youth Corrections Act. 1 The court rested its holding on the ground that the Act does not authorize the expungement of criminal arrest and conviction records. 2 For the reasons stated below,

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we affirm the decision of the District Court with respect to the record of appellant's arrest, and reverse with respect to the record of his conviction.


On January 18, 1971, appellant, then a minor, pleaded guilty to and was convicted of a federal marijuana offense in the United States District Court for the District of Arizona and was sentenced to confinement under the Federal Youth Corrections Act. 3 Several months later, appellant's sentence was suspended and he was placed on probation pursuant to 18 U.S.C. § 5010(a). On June 5, 1973, he was unconditionally discharged from probation, and the conviction was set aside pursuant to 18 U.S.C. § 5021(b). The sentencing court subsequently issued a certificate to that effect.

On March 16, 1977, appellant filed suit in the court below against the Director of the Federal Bureau of Investigation, the Attorney General of the United States, and the Secretary of the Treasury (hereinafter "the government") to enjoin the maintenance and dissemination of his arrest, conviction, and prison records, and of any files growing out of these records, and to require physical destruction of all such documents now in existence. In support of his request for relief, appellant asserted generally that the maintenance of his criminal records has a chilling effect on his employment, travel, bar admission, and career opportunities. More specifically, he claimed that, although a recent graduate of a prestigious law school, 4 he is absolutely barred by his conviction from the practice of law in at least one state, and that the government's continued maintenance and dissemination of his criminal records have caused him apprehension in seeking federal employment for fear that those records may be reviewed and result in both the denial of the employment and the drawing of additional attention to his past criminal involvement. Appellant also sought a declaratory judgment that the continued maintenance of his criminal records is contrary to the provisions of 18 U.S.C. § 5021(b), 5 and that, because his arrest and conviction have been obliterated by operation of law, he is free to answer in the negative to any and all questions from any persons, including law enforcement agencies and prospective employers, as to whether he has ever been arrested for or convicted of any crime.

The government moved to dismiss for lack of jurisdiction and failure to state a claim upon which relief may be granted to which appellant responded with a motion for summary judgment, based upon his claim that section 5021(b), either alone or in conjunction with the inherent equitable power of the court, supported the grant of the relief sought. On September 6, 1977, the District Court denied appellant's motion and granted that of the government, holding that the statute does not authorize the expungement of criminal records. This appeal followed.


Appellant argues most broadly that he is entitled to the expungement of both his arrest record and his conviction record, and to a declaratory judgment that he may answer in the negative when asked about

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either his arrest or his conviction. He claims that the scope and purpose of the Act's set-aside provisions emphasize the rehabilitative function of providing an ex-offender with a fresh start by completely clearing his record, and that, in any event, this would be an appropriate case for the exercise of the court's inherent equitable jurisdiction. 6 The government, on the other hand, asserts that appellant is entitled to none of the requested relief, arguing that section 5021(b) does not expressly require or authorize expungement or destruction of any criminal records; that no extraordinary circumstances are present which might have permitted the District Court to exercise its equity power in that regard; and that no justiciable controversy exists with respect to appellant's request for a declaratory judgment. We view the positions of both parties as too broad.

With respect to appellant's arrest record, it is clear, first, that no statute either requires or authorizes its expungement. While some state statutes specifically authorize the expungement of arrest records in various circumstances, 7 the Federal Youth Corrections Act does not. To be sure, appellant suggests that the purposes of the Act would be served by wiping out not only the record of his conviction but his arrest record as well, but neither the plain language of the statute nor its legislative history supports that argument. Although section 5021 explicitly provides for the setting aside of a conviction, see Part III Infra, it makes no reference at all to an arrest.

Secondly, although there are indeed many instances in which courts have ordered expungement of arrest records in the exercise of their inherent equitable powers, 8 all of these cases involved either a lack of probable cause coupled with special circumstances, 9 flagrant violations of the Constitution, 10 or other unusual and extraordinary circumstances. 11 See generally Menard v. Saxbe,

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162 U.S.App.D.C. 284, 498 F.2d 1017, 1023-25, 1030 (1974); Sullivan v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938, Cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973); Menard v. Mitchell, 139 U.S.App.D.C. 113, 118-120, 430 F.2d 486, 491-93 (1970); United States v. McLeod, 385 F.2d 734 (5th Cir. 1967). Cf. Peters v. Hobby, 349 U.S. 331, 348-49, 75 S.Ct. 790, 99 L.Ed. 1129 (1954) (expungement of federal personnel records).

While the decision to expunge an arrest record depends on the facts and circumstances of the case, 12 there must be a logical relationship between the injury and the requested remedy. 13 The general rule which emerges from the cases 14 is that expungement of an arrest record is appropriate when serious governmental misbehavior leading to the arrest, or unusually substantial harm to the defendant not in any way attributable to him, outweighs the government's need for a record of the arrest. 15

Inasmuch as no unusual or exceptional circumstances are alleged here, whether by way of governmental misconduct or otherwise, and as there is apparently no question but that appellant was properly arrested and convicted, his arrest fails to meet that general test. Even individuals who were never convicted are not entitled to the expungement of their arrest records as a matter of course, 16 and absent specific statutory authority it would be wholly inappropriate to order such an expungement in a case such as this where there has been not only a valid arrest but a valid conviction.

For these reasons, we conclude that the government is entitled to retain the record of appellant's arrest in its appropriate files. 17

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The issues are quite different with respect to appellant's conviction, for section 5021(b) of the Federal Youth Corrections Act specifically provides that:

Where a youth offender has been placed on probation by the court, the court may thereafter, in its discretion, unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, Which discharge shall automatically set aside the conviction, and the court shall issue to the youth offender a certificate to that effect (emphasis added).

The question, then, is: what does "set aside the conviction" mean?

Appellant answers quite simply that to set aside a conviction means to expunge it, and that expungement implies the physical destruction of all pertinent records. The government, on the other hand, contends that a set-aside could not possibly be an expungement as defined by appellant because (1) such a view would sanction a violation of federal record-keeping laws, (2) Congress would not have provided for a set-aside certificate to be issued if the record were intended to be completely obliterated, and (3) Congress did not use the word "expunge" in the statute.

We do not find persuasive the government's contention that an expungement would improperly require the Attorney General to violate his statutory duty under 28 U.S.C. § 534 to "acquire, collect, classify, and preserve identification, criminal identification, crime, and other records . . . (and to) exchange these records with, and for the official use of, authorized officials of the Federal Government, the States, cities, and penal and other institutions." While Congress and the courts have recognized that keeping criminal records...

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