The 2001 decision of the United States Court of Appeals for the Third Circuit in United States v. Dunegan, 251 F.3d 477 (3rd Cir. 2001) held that the United States District Courts lack jurisdiction to expunge federal arrests or convictions. A 2011 non-precedential opinion of the United States Court of Appeals for the Third Circuit held that expungement of records relating to arrests for federal crimes was limited to situations specified in statutes passed by Congress. That decision is Carter v. United States, 431 Fed. Appx. 104 (3rd Cir., 2011). But federal provisions that provide for expunction of arrests and convictions are extremely limited.
United States v. Schnitzer, 567 F.2d 536 (2d Cir., 1977), cert. den. 435 U.S. 907 (1978) held that, on a case-by-case basis, “expungement lies within the equitable jurisdiction of the court[.]” United States v. Douglas, 282 F.Supp.3d 275 (D.D.C., 2017), interpreted District of Columbia precedent to hold that federal courts do have equitable jurisdiction to expunge federal arrests and convictions. Note, however, that jurisdiction was never challenged in the Douglas court. A 2015 case that relied upon Schnitzer was Jane Doe v. United States of America. Doe was decided in the United States District Court for the Eastern District of New York. Footnote 16 in Doe gives an extended legal discussion of expungement of federal arrests and conviction.
The United States Department of Justice appealed the Doe decision to the United States Court of Appeals for the Second Circuit. The Second Circuit reversed, holding that the District Court lacked jurisdiction to consider the application. A New York Times editorial discussed Doe at length on October 19, 2015, before the appeal was decided.
In semi-agreement with the Schnitzer principle is United States v. McMains, 540 F.2d 387 (8th Cir., 1976). McMains observed, however, that “The power is a narrow one, usually exercised in cases of illegal prosecution or acquittals and is not to be routinely used.” Chastain v. Kelley, 510 F.2d 1232, 1235 (D.C. Cir., 1975), holds that the power to order expungement is an instance of the general power of the federal courts to fashion appropriate remedies to protect important legal rights. The Chastain opinion cites other cases of similar holding.
In Garris v. Federal Bureau of Investigation, the Ninth Circuit ordered expungement of “threat assessment memos” that the FBI created. Note, however, that expunged records in that case related to a civil (not a criminal) investigation. Expungement in Garris was granted under the Privacy Act, 5 U.S.C. § 552a, a specific non-criminal statute. The United States Supreme Court has never treated directly expungement of criminal records. In view of the disparate treatment between the circuits, a decent likelihood exists that this issue can reach the Supreme Court. The Supreme Court has upheld expunction of non-criminal records of administrative agencies. Cases so holding are collected in Chastain.
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