Livingston v. U.S. Dept. of Justice, 83-2251
| Decision Date | 05 April 1985 |
| Docket Number | No. 83-2251,83-2251 |
| Citation | 759 F.2d 74 |
| Parties | Percy Donald LIVINGSTON, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-00188).
Percy D. Livingston, pro se.
Joseph E. diGenova, U.S. Atty., Washington, D.C., with whom Royce C. Lamberth, R. Craig Lawrence and Charles F. Flynn, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.
Before MIKVA and GINSBURG, Circuit Judges, and BAZELON, Senior Circuit judge.
Opinion for the Court filed by Senior Circuit Judge BAZELON.
Percy Donald Livingston appeals the order of our district court granting summary judgment to the Justice Department in his suit urging the court to expunge the records of two prior arrests. We vacate the district court's order. The court adjudicated on the merits a case that ought to have been transferred to a more convenient forum. Moreover, the district court misconstrued and misapplied the law of this circuit regarding expungement of arrest records.
Appellant was first arrested in 1945, at the age of eighteen. Currently listed on his FBI arrest record ("rap sheet") are thirty entries. 1 Livingston is now serving a twenty-year sentence in the federal facility in Talladega, Alabama following conviction on 19 79/80 drug charges.
Apparently in the belief that his lengthy arrest record had influenced the trial judge to mete out the maximum sentence, and that he was continuing to be prejudiced by certain allegedly improper entries in his rap sheet while in prison, Livingston initiated efforts to have those entries expunged. One agency to which Livingston wrote requesting expungement, the Savannah, Georgia Police Department, explained that "because the original charge originated from" the "United States Federal Marshall's [sic] Office," the record of the arrest in question "would have to be cancelled by that agency." 2 Livingston then filed pro se in the United States District Court for the Middle District of Georgia papers captioned "Motion to Expunge Records in the Case of Percy Donald Livingston vs. United States Marshal Office et el. [sic] ...." 3 He alleged that certain entries on his rap sheet were "at present causing permanent and irreparable harm to my chances for making parole" and that "[t]he unwarranted Stigma to Movant ... by far ... outweighs any Justification for this incidence [sic] being entered into Movant's F.B.I. rap-sheet." 4 The continuing presence of these allegedly improper entries on his record, Livingston asserted, violated his constitutional rights. 5
Within several weeks Livingston received the following letter from Chief Judge Wilbur D. Owens, Jr. of the Middle District of Georgia, who had sentenced him two years before:
Dear Mr. Livingston:
The clerk's office has called my attention to your motions to expunge records as received by them on May 12, 1982.
From reading your motion it seems that you desire to cause the Parole Board to be unable to consider matters that are included in your prior record. Since your prior record is not a record of this court, this court could not expunge any part of it even if it wished to do so.
Since your motion does not concern anything that is within the court's jurisdiction, it is returned so that you may research the situation and file it with the appropriate court or agency. 6
Livingston's subsequent "research" culminated in our district court's receipt of his pro se "Motion to Expunge Erroneous Records." 7 The district court promptly indicated its concern that the matter could best be adjudicated in the district where the relevant records were located. 8 On January 31, Livingston was ordered to show cause why his case should not be transferred to the Middle District of Georgia. 9 It was in response to this order that our district court first learned of the earlier attempt to file in that very district and of Chief Judge Owens' letter. Our district court thereupon noted: 10
Livingston filed what he styled a "Traverse Reply Brief," in response to defendant's motion to dismiss, and our district court appointed counsel to represent the prisoner. 11 Subsequently, the motion to dismiss was denied, an amended complaint was filed, the Department of Justice was substituted as defendant, discovery was undertaken, cross-motions for summary judgment were filed, and a stipulated statement of facts entered into the record. The proceedings below now permit of the following summary.
Livingston's initial pro se complaint sought expungement of three entries from his lengthy arrest record. One of the challenged entries was, according to counsel below, voluntarily expunged by the defendant and therefore "no longer at issue in this litigation." 12 The two remaining entries in the FBI record that Livingston urged the district court to order expunged were:
(1) An arrest on September 12, 1946, in Macon, Georgia, for alleged violation of the Dyer Act, 18 U.S.C. Sec. 2311 et seq.;
(2) An arrest on December 7, 1966, in Macon, Georgia, for alleged unlawful flight to avoid prosecution for murder, pursuant to 18 U.S.C. Sec. 1073.
Appellant was nineteen years old when he and a friend drove a 1941 Chevrolet, which the FBI believed to be stolen, from Detroit to Macon in late August 1946. The friend had obtained title to the car, without appellant's participation, by threatening to turn its owner in to the police following a homosexual encounter. While driving through Georgia, Livingston and his friend stole Georgia license plates from a parked vehicle, put them on the Chevrolet, sold it soon thereafter for $1,050 and split the proceeds. Knowing all of the foregoing facts, FBI agents filed a Dyer Act (interstate transportation of a stolen vehicle) complaint against Livingston on September 12. On October 15, the U.S. Attorney in Macon declined prosecution and the complaint was dismissed. 13
As to the second arrest record challenged, listed as "UFAP-Murder," the following summary by Livingston's counsel appears essentially accurate:
It is undisputed that Plaintiff was indicted on charges of murder in Toombs County, Georgia on September 7, 1966. It is also undisputed that the indictment was sealed. Moreover, during the entire period from the date of the indictment to his arrest, Plaintiff was working in his hometown of Macon, Georgia. The FBI knew, at least as early as November 8, that Macon had been his residence. And, a Macon newspaper reported on December 7, the date of his arrest, that he would be acting as a pall bearer at a funeral that day. Finally, not only did the Federal Court in Macon order the Federal charges against Plaintiff dismissed on December 21, 1966, but the underlying state law charge was dismissed on February 28, 1967, and never reinstated. 14
In the district court, Livingston contended that because the charges to which the two challenged arrest records referred were "without basis" and were dismissed before trial, "there is no sound basis for their continued retention." 15 Continued maintenance of the records would, plaintiff asserted, cause him "unusually substantial harm." 16 He noted that the sentencing judge in 1980 (Chief Judge Owens) had "specifically reflected on" the arrest record "in toto" in meting out the maximum 20-year sentence, that "negative information can affect future parole board decisions," and that "while in prison, [Livingston] has been denied out custody, denied transfer to a camp, denied furlough and denied preferred jobs." 17 "Finally, upon release, these records, especially because they involve a charge as serious as murder, are bound to affect Plaintiff's ability to find employment and otherwise resume a normal life." 18 Livingston asserted that the government has no need to maintain these records and had demonstrated "no particularized interest" in records dating back 37 and 17 years, respectively. 19
On cross motions for summary judgment, the district court held for the defendant Justice Department. The district judge found the "touchstones for decision" in this court's opinion in Doe v. Webster, 606 F.2d 1226 (D.C.Cir.1979). He relied heavily in his two-page order on the following dictum from Webster:
[A]lthough there are indeed many instances in which courts have ordered expungement of arrest records in the exercise of their inherent equitable powers, all of these cases involved either a lack of probable cause coupled with special circumstances, flagrant violations of the Constitution, or other unusual and extraordinary circumstances. 20
Finding none of these circumstances in this case, the district judge concluded that "the government's need for a record of the arrest far outweighs any potential harm to the plaintiff." 21 He granted defendant's motion for summary judgment and dismissed the action with prejudice. This appeal followed.
It is well established, and undisputed by the parties to this case, that courts have the inherent, equitable power to expunge arrest records. 22 In Sullivan v. Murphy, 23 this court held that expungement can and should be ordered "when that remedy is necessary and appropriate in order to preserve basic legal rights." 24 In Doe v. Webster, 25 upon which the decision below was based, we reaffirmed that "[t]he power to order expungement is part of the general power of the federal courts to fashion appropriate remedies to protect important legal rights." 26 Our holding in that case rested, however, on a statute providing for expungement not of an arrest but of a conviction. In ordering the expungement of appellant's conviction for a marijuana offense committed while a minor, the court explicitly did so...
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