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No. 07-72

 

In the Supreme Court of the United States

ARTIN H. COLOIAN, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
LOUIS M. FISCHER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the district court had jurisdiction to enter tain petitioner's request for expungement of records relating to petitioner's criminal prosecution.

In the Supreme Court of the United States

No. 07-72

ARTIN H. COLOIAN, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-9a) is reported at 480 F.3d 47.

JURISDICTION

The judgment of the court of appeals was entered on March 20, 2007. On June 7, 2007, Justice Souter ex tended the time within which to file a petition for a writ of certiorari to and including July 18, 2007, and the peti tion was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

In June 2002, after a jury trial in the United States District Court for the District of Rhode Island, peti tioner was acquitted of conspiring to commit bribery (18 U.S.C. 371) and the substantive offense of bribery (18 U.S.C. 666(a)(1)(B)). In December 2005, petitioner filed a motion to expunge the record of his criminal case. See Pet. App. 2a, 59a-61a. The district court concluded that it had jurisdiction, but rejected the motion on the mer its. See id. at 25a-36a. The court of appeals concluded that the district court lacked jurisdiction, and it vacated the district court's order, remanding with instructions to dismiss for want of jurisdiction. Id. at 1a-9a.

1. Petitioner and five co-defendants were indicted on federal corruption charges. On petitioner's motion, the district court severed his case from that of his co-defen dants. In June 2002, the jury found petitioner not guilty on both of the counts with which he was charged. Pet. App. 1a-2a, 45a.

In December 2005, petitioner filed a motion to ex punge the record of his criminal case, using the docket number of the original prosecution. Pet. App. 59a-61a; see id. at 2a, 45a-46a. He argued that expungement was warranted on equitable grounds because he suffered an "extreme and unusual" "stigma" from the prosecution and was impeded in his ability to practice law and con duct business. Id. at 2a, 46a. At a hearing in the district court, petitioner's counsel argued:

Although [petitioner] has been exonerated and cleared, he still faces the stigma which hovers over him, and at any time in the future, the cloud of prose cution against him remains for whomever, or by one way or another, they may gain access to that record. 28 United States Code 534 allows the Attorney Gen eral to disseminate, collect, and record records from not only state proceedings, but also various agencies, and they're collected through that statute, and the Attorney General's allowed to disseminate them to various agencies. And those agencies are not just law enforcement agencies. They're banks, credit agencies, professional employment insurance compa nies. And also the information is given out when a person applies and is running for public office, that information is sent back to those people who are ap plying.

Id. at 27a. The government opposed the motion to ex punge, arguing that the district court lacked jurisdiction to entertain it and that expungement was in any event inappropriate. See id. at 2a.

The district court determined that it had authority to order expungement of records in appropriate circum stances, but that such "power should be very sparingly exercised." Pet. App. 33a; see id. at 3a. While suggest ing that expungement might be appropriate if the under lying criminal proceedings had been unconstitutional or otherwise invalid, or if maintenance of the records would cause "extreme hardship" in a particular case, the court held that petitioner could not satisfy either of those cri teria. Id. at 33a-34a. The court found "nothing that sug gests that the charges against [petitioner] were unlawful or unconstitutional or that there was anything about the Grand Jury's proceedings that could be categorized as such." Id. at 34a. The court also observed that the re cord of the criminal proceedings "includes not only the fact that [petitioner] was indicted and charged, but also that a Jury acquitted him." Ibid. In the district court's view, that fact "mitigate[d] * * * any argument that [petitioner] suffers some unusual or extreme hardship as a result of this record being in the Court file." Ibid.

2. On petitioner's appeal, the court of appeals va cated the district court's order and remanded the case with instructions to dismiss for lack of jurisdiction. Pet. App. 1a-9a.

In contending on appeal that expungement of his criminal record was appropriate, petitioner argued that the Attorney General's dissemination of information collected pursuant to 28 U.S.C. 534 "may impose a tre mendous hardship on an individual." Pet. App. 19a. The court of appeals recognized that in some circumstances a district court "may assert ancillary jurisdiction 'to ad judicate claims and proceedings related to a claim that is properly before the court.'" Id. at 5a (quoting Black's Law Dictionary 868 (8th ed. 2004)). The court ex plained, however, that, under this Court's decision in Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994), ancillary jurisdiction may appropri ately be exercised only (1) to permit a single court to dispose of claims that are factually interdependent; or (2) to enable a court "to manage its proceedings, vindi cate its authority, and effectuate its decrees." Pet. App. 5a-6a (quoting Kokkonen, 511 U.S. at 380).

The court of appeals explained that "[t]he Third, Eighth and Ninth Circuits have read Kokkonen to pre clude ancillary jurisdiction over orders to expunge crim inal records based solely on equitable grounds." Pet. App. 7a (citing United States v. Meyer, 439 F.3d 855, 859-860 (8th Cir. 2006); United States v. Dunegan, 251 F.3d 477, 479 (3d Cir. 2001); and United States v. Sum ner, 226 F.3d 1005, 1014 (9th Cir. 2000)). The court ac knowledged that other circuits had "concluded that dis trict courts do have ancillary jurisdiction to expunge records based on equitable considerations." Id. at 8a (citing Livingston v. United States Dep't of Justice, 759 F.2d 74, 78 (D.C. Cir. 1985), as amended Apr. 5, 1985; United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977), cert. denied, 435 U.S. 907 (1978); United States v. Flowers, 389 F.3d 737, 739 (7th Cir. 2004); and United States v. Linn, 513 F.2d 925, 927 (10th Cir.), cert. de nied, 423 U.S. 836 (1975)). The court observed, however, that the decisions authorizing expungement on equitable grounds "either predate Kokkonen or they fail to ad dress that decision, which raises questions as to their continued viability." Ibid.

The court of appeals concluded that Kokkonen was controlling, and that this Court's decision in that case mandated dismissal for lack of jurisdiction of peti tioner's request for expungement of his criminal record. Pet. App. 8a-9a. The court of appeals explained that, "[a]s in Kokkonen, the original claims brought before the district court in this case have nothing to do with the equitable grounds upon which [petitioner] seeks the expungement of his criminal record." Ibid. The court also observed that, again as in Kokkonen, "the power asked for here is quite remote from what courts require in order to perform their functions." Id. at 9a (quoting Kokkonen, 511 U.S. at 380). The court further explained that "[t]he existence and availability of [petitioner's] criminal records do not frustrate or defeat his acquittal. In fact, the records are entirely consistent with and re spectful of the jury's ultimate judgment in [petitioner's] case, as they accurately document his arrest, trial and acquittal." Ibid.

ARGUMENT

1. Petitioner seeks review of the question "[w]hether a federal district court has inherent or ancillary jurisdic tion to expunge judicial criminal records based on equi table considerations." Pet. i (emphasis added). In argu ing that district courts may appropriately exercise juris diction in these circumstances, petitioner frames the relevant issue as whether a federal court may exercise control over "its own records." See Pet. 16, 20.

In the courts below, however, petitioner's request for expungement of his "record" (Pet. App. 59a) was not limited to records in the custody of the Judicial Branch. To the contrary, in both the district court and the court of appeals, petitioner focused almost exclusively on the Attorney General's collection and dissemination of re cords pursuant to 28 U.S.C. 534, and on the harm to peti tioner's reputation and professional standing that the Attorney General's implementation of that statute was alleged to have caused. See Pet. App. 27a (transcript of district court oral argument on petitioner's motion to expunge); id. at 19a (court of appeals brief for peti tioner); pp. 2-3, 4, supra. Petitioner did not contend, let alone identify any sound basis for concluding, that expungement of the district court's own records would effectively redress his alleged injuries if the relevant Executive Branch practices remained unchanged.

With respect to petitioner's request for expungement of Executive Branch records, the court of appeals' juris dictional ruling was clearly correct. Federal courts are courts of limited jurisdiction and "possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen, 511 U.S. at 377 (citations omitted). Except in certain narrow areas, federal courts have no common-law power un rooted in a congressional grant of authority, see North west Airlines, Inc. v. Transportation Workers Union, 451 U.S. 77, 95-96 (1981), and cannot grant relief except to vindicate a right created by Congress, Alexander v. Sandoval, 532 U.S. 275, 286-287 (2001), or the Constitu tion, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 392-394 (1971).

Absent a specific statutory provision authorizing or precluding judicial review, a contention that the Attor ney General was maintaining or disseminating criminal records in violation of law would be cognizable under the Administrative Procedure Act, 5 U.S.C. 551 et seq. (APA), in a suit brought by a person aggrieved by the alleged violation. The questions presented in such a suit, however, would be wholly unrelated to those in volved in the underlying criminal case and would there fore lie outside the ancillary jurisdiction of the court in which the prosecution was brought. See United States v. Janik, 10 F.3d 470, 471 (7th Cir. 1993) (explaining that 18 U.S.C. 3231, which vests the district courts with jurisdiction over federal criminal offenses, "does not vest federal district courts with authority to invade the Executive Branch of government, in particular the At torney General").1 And even in an APA suit, the district court would have no general equitable authority to order expungement of Executive Branch records maintained in accordance with applicable statutes, particularly in light of Congress's "clear mandate that the Attorney General preserve all criminal records." Geary v. United States, 901 F.2d 679, 680 (8th Cir. 1990).

Thus, in limiting the question presented to expunge ment of "judicial criminal records," Pet. i (emphasis added), petitioner has fundamentally altered the nature of the request that was submitted to the courts below. Because the potential harms identified by petitioner were alleged to have resulted from the Attorney Gen eral's maintenance and dissemination of the relevant records, petitioner would have no colorable equitable claim to expungement of records in the custody of the Judicial Branch, even if the court that heard the prior criminal case had jurisdiction to entertain that request. The instant case would therefore be an unsuitable vehi cle for resolution of the question presented, even if that question otherwise warranted this Court's review.

2. Petitioner contends (Pet. 8-10) that this Court's review is warranted because five courts of appeals have held that district courts possess equitable authority to order expungement of judicial records pertaining to prior criminal prosecutions. As the court of appeals in the instant case explained, however, the decisions on which petitioner relies "either predate Kokkonen or they fail to address that decision, which raises questions as to their continued viability." Pet. App. 8a. Of the cases on which petitioner relies to establish a circuit conflict, only United States v. Flowers, 389 F.3d 737 (7th Cir. 2004), was decided after Kokkonen. The court's jurisdictional ruling in Flowers was based entirely on pre-Kokkonen circuit precedent, see id. at 739, and the court did not cite Kokkonen.2 By contrast, the four other circuits that have addressed the question since Kokkonen have all relied on Kokkonen to hold that a district court lacks ancillary jurisdiction to expunge re cords in a criminal case on purely equitable grounds. See Pet. App. 8a-9a; Meyer, 439 F.3d at 859-860; Dunegan, 251 F.3d at 479; Sumner, 226 F.3d at 1014. The clear trend in the circuits since this Court's decision in Kokkonen counsels against further review in this case.

3. Further review of the jurisdictional question peti tioner presents is also unwarranted because his claim fails on the merits. Petitioner identifies no court of ap peals decision granting expungement of judicial records under circumstances similar to those presented here. As the district court explained, petitioner failed to show either that his indictment was unlawfully obtained or that he would suffer "extreme hardship" if his record was not expunged. See Pet. App. 34a. In the court of appeals, petitioner noted but did not challenge the dis trict court's finding that the grand jury proceedings were lawfully conducted. See id. at 21a-22a. He con tended, however, that he would suffer "unusual or ex treme hardship" if his record was not expunged because the crimes with which he had been charged (bribery and conspiracy to commit bribery) "raise suspicion as to the character and credibility of the accused," and because his profession as an attorney made it particularly impor tant that he maintain a reputation for trustworthiness. Id. at 22a, 23a.3

Petitioner cites no decision holding that the prospect of adverse employment consequences constitutes "ex treme hardship" warranting expungement of judicial records. The Seventh Circuit in Flowers-the only post- Kokkonen court of appeals decision that has adopted petitioner's position on the jurisdictional question- squarely held that impairment of employment prospects is not a valid ground for expungement. See 389 F.3d at 739-740. Petitioner's status as an attorney does not al ter that analysis. To the extent that potential clients prefer not to retain a lawyer who has been indicted and later acquitted on bribery charges, expungement of the relevant records would hinder the clients' ability to make a choice that is theirs to make. And in any event, petitioner has identified no basis for concluding that expungement of Judicial Branch records alone would redress the alleged injury to his professional reputation. See pp. 5-8, supra.

Moreover, at least when a request for expungement is premised on harms occurring after the conclusion of the criminal proceedings, rather than on an asserted legal infirmity in the prosecution itself, the court that heard the criminal case clearly lacks ancillary jurisdic tion under the standards announced in Kokkonen. The exercise of ancillary jurisdiction may be appropriate "(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdepen dent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its author ity, and effectuate its decrees." Kokkonen, 511 U.S. at 379-380 (citations omitted); see Pet. App. 5a-6a. The first prong of that test is not satisfied here because is sues concerning the existence or extent of current harm to petitioner's professional reputation and ability to at tract business are unrelated to any question that was resolved in the underlying criminal prosecution. And because the court in the criminal case did not find the government's initiation or conduct of the prosecution to be unlawful, expungement of judicial records would not further the court's ability "to manage its proceedings, vindicate its authority, and effectuate its decrees." Kokkonen, 511 U.S. at 380.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
LOUIS M. FISCHER
Attorney

SEPTEMBER 2007

 

1 In the court of appeals, petitioner contended, without meaningful elaboration, that the Attorney General's dissemination of records con cerning his criminal prosecution "exceed[ed] [the] scope of 28 U.S.C. § 534." Pet. App. 19a. Petitioner does not press that claim in this Court.

2 The Seventh Circuit in Flowers also reaffirmed its prior holding in Janik that federal courts do not possess jurisdiction to order expunge ment of Executive Branch records. See 389 F.3d at 738; p. 7, supra.

3 In both the district court and the court of appeals, petitioner referred without elaboration to the complaint of an unnamed grand juror that the government had been uncooperative with the grand jury and had withheld material information. See Pet. App. 18a, 64a. In his court of appeals brief, however, petitioner did not challenge the district court's determination that no illegality in the grand jury proceedings had been shown. Rather, he based his claim for expungement solely on an assertion of "unusual or extreme hardship." See id. at 21a-23a.