Doe v. U.S.

• Citation: 964 F.Supp. 1429
• Decision Date: 30 April 1997
• Docket Number: No. Civ. 97-0106 B(POR).,Civ. 97-0106 B(POR).
• Court: U.S. District Court — Southern District of California
• Parties: John DOE,<SMALL><SUP>1</SUP></SMALL> Plaintiff, v. UNITED STATES, Defendant.

964 F.Supp. 1429

John DOE,¹ Plaintiff, v. UNITED STATES, Defendant.

No. Civ. 97-0106 B(POR).

United States District Court, S.D. California.

April 30, 1997.

Nagmeh Bashar, San Diego, CA, for Plaintiff.

Nita Stormes, Assistant U.S. Attorney, San Diego, CA, for Defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS, OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT; ORDERING DEFENDANT TO SHOW CAUSE WHY AN EXPUNCTION SHOULD NOT BE GRANTED

BREWSTER, District Judge.

This is an action for equitable relief to expunge Plaintiff's criminal arrest record. The Court has jurisdiction under 28 U.S.C. § 1331. The defendant filed a motion to dismiss, or in the alternative for summary judgment. After due consideration of the papers filed by both parties, the Court hereby DENIES Defendant's motions to dismiss and for summary judgment and orders the Defendant to show cause why an expunction should not be granted. This matter is set for hearing on Monday, May 5, 1997 at 10:30 a.m.

I. BACKGROUND

On November 1, 1970, the plaintiff, John Doe ("Doe"), then a minor, was arrested and charged for failure to pay a special tax on imported marijuana in violation of 26 U.S.C. § 4755(a)(1) (repealed). Doe pled guilty and the court ordered him to the custody of the Attorney General as a youthful offender under the Federal Youth Corrections Act ("FYCA"), 18 U.S.C. § 5010(e) (repealed). Doe was sentenced to three years probation.

Prior to the expiration of the three-year probation period, the court issued an order terminating Doe's probation. In 1973, a certification of vacation of conviction was filed and Doe's file was ordered sealed. Since that time, Doe has been neither arrested nor convicted of any crime.

Doe has worked for approximately 20 years in the auto sales industry. He worked his way up from car sales to finance and sales management. Because his career working in car dealerships demanded that he work 60 to 80 hours per week with little tolerance for family needs, after the birth of his third child and upon discovering that his oldest child suffered from Attention Deficit Disorder, Doe sought employment with a company that would allow him to spend more time with his wife and children. Having specialized in finance for the majority of his 20 years in the auto industry, Doe sought employment with a lender specializing in automobile finance. In December of 1995, he found a position with WFS Financial Inc. as a sales manager, bypassing the collections, servicing, and credit officer levels. Doe claims that, in most statistical categories, he leads in sales productivity within WFS Financial nationwide.

His progress with WFS, however, came to a halt when a routine FBI background check revealed his juvenile delinquency conviction. Federal law prohibits any person convicted of a crime involving dishonesty from working for a federally insured financial institution. 12 U.S.C. § 1829. Pursuant to that law, WFS has a policy to terminate all employees with any prior criminal conviction. After discussing the conviction with his supervisor, WFS agreed to reinstate Doe as long as he sought and received an expunction of his criminal record. WFS told him that if he does not receive an expunction, it will terminate his employment. On April 14, 1997, WFS placed Doe on indefinite leave pending the outcome of this matter.

Pursuant to his employer's request, on October 1, 1996, Doe file an ex parte motion, bearing the original criminal case number, to expunge the record of his November 1, 1970 arrest and conviction. The court declined to entertain the motion because the case had been long terminated. The court advised Doe that he should file a new civil action seeking declaratory or injunctive relief On January 22, 1997, Doe filed the instant action naming the United States as the defendant and seeking the following relief:

(1) a declaration that Doe's arrest record and booking be expunged;

(2) the fingerprints, photographs, and palmprints taken during and following his arrest be returned to him;

(3) that the Clerk of Court destroy the records filed in his criminal case; and

(4) that his arrest on November 1, 1970 be deemed a nullity and that he be restored in contemplation of the law, to the status he occupied before the arrest.

The defendant now moves this Court to dismiss the case for lack of subject matter jurisdiction, or in the alternative for summary judgment.

II. DISCUSSION

A. Standard of Law: 12(b)(1) Motion to Dismiss

Under Rule 12(b)(1), a defendant may seek to dismiss a complaint for "lack of jurisdiction over the subject matter." Fed. R.Civ.P. 12(b)(1). When considering a 12(b)(1) motion to dismiss, the district court "is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary." Augustine v. United States, 704 F.2d 1074 1077 (9th Cir.1983). "In such circumstances, `[n]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.'" Id. (quoting Thornhill Publishing Co. v. General Telephone & Electronics Corp., 594 F.2d 730, 733 (9th Cir.1979)). Plaintiffs, as the party seeking to invoke jurisdiction, have the burden of establishing that jurisdiction exists. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 376-78, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994).

B. Defendant's Motion to Dismiss

Although the Ninth Circuit has left open the question of whether federal courts have the inherent power to grant the relief sought by the plaintiff in this case, a majority of the circuits agree that federal courts have an "inherent equitable power" to order the expunction of criminal records under certain circumstances. See United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir.1977), cert. denied, 435 U.S. 907, 98 S.Ct. 1456, 55 L.Ed.2d 499 (1978); Woodall v. Pettibone, 465 F.2d 49, 52-53 (4th Cir.1972), cert. denied, 413 U.S. 922, 93 S.Ct. 3054, 37 L.Ed.2d 1044 (1973); Rogers v. Slaughter, 469 F.2d 1084, 1085 (5th Cir.1972); United States v. Doe, 556 F.2d 391, 393 (6th Cir.1977); Geary v. United States, 901 F.2d 679 (8th Cir.1990); Bromley v. Crisp, 561 F.2d 1351, 1364 (10th Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 499 (1978); Livingston v. United States Dep't of Justice, 759 F.2d 74, 78 (D.C.Cir.1985); but see United States v. Janik, 10 F.3d 470, 472 (7th Cir.1993) ("federal courts are without jurisdiction to order an Executive Branch agency to expunge what are admittedly accurate records of a person's indictment and conviction"). The Defendant concedes that the Ninth Circuit has heard expunction cases under the assumption that the power exists without ultimately resolving the issue. See United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991) (assuming, without deciding, that district courts have power to expunge criminal records). This power is "premised on `the natural law of remedies' which `does not set arbitrary limits on a federal court's jurisdiction to right wrongs cognizable by the common law within the jurisdiction of the court."' United States v. Smith, 745 F.Supp. 1553, 1555 (C.D.Cal.1990) (quoting Natwig v. Webster, 562 F.Supp. 225, 228 (D.R.I.1933)) (quoting United States v. Benlizar, 459 F.Supp. 614, 623 (D.D.C.1978)), vacated on other grounds, 940 F.2d 395 (9th Cir.1991). There are circumstances under which unusually substantial harm to one's basic rights, such as the right to seek and obtain employment, can occur that is not in any way attributable to him or her. United States v. Van Wagner, 746 F.Supp. 619, 620 (E.D.Va.1990) (citing Doe v. Webster, 606 F.2d 1226, 1231 (D.C.Cir.1979); Bromley, 561 F.2d at 1364; Pettibone, 465 F.2d at 52-53). Under such circumstances, equity cannot be achieved absent an expunction of criminal records.

The Defendant argues that the Court lacks subject matter jurisdiction because there is no statutory waiver of sovereign immunity that permits this expunction action against the United States.² Specifically, defendant asserts that jurisdiction cannot be found in 28 U.S.C. §§ 1331, 1346, 2201, 18 U.S.C. § 3607, or the FYCA. The Defendant does not argue that the Court does not have the power to grant an expunction, but rather that the U.S. is not the proper party to sue. The underlying criminal case was closed because it was old, yet the fact that Doe's conviction is so old is what makes his request for expunction so compelling. Had the criminal case been left open, Doe could have made a motion for expunction and the argument Defendant now raises would not apply. Therefore, in the interest of equity, the Court finds that it has jurisdiction to hear this action for expunction and analyzes the case on the merits pursuant to Defendant's motion for summary judgment.

C. Standard of Law: Summary Judgment

Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." One of the principal purposes of the rule is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986).

In considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). A moving party who bears the burden of proof at trial is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. If the moving party does not bear the burden of proof at trial, he may...