Federal expungement case argued in court of appeals

On April 7 a panel of the Court of Appeals for the Second Circuit heard argument in United States v. Jane Doe (Jane Doe I).  At issue in that case is whether U.S. District Judge John Gleeson acted within his authority when he expunged the conviction of a woman he had sentenced some 14 years earlier, based on his finding that her conviction had proved an insurmountable bar to the jobs in home health care for which she was qualified.  Judge Gleeson directed that the government seal the records of Ms.Doe’s conviction, stating that he had sentenced her “to five years of probation supervision, not to a lifetime of unemployment.”  The government appealed, arguing that a federal court has no authority to expunge or seal a conviction record, particularly the record of a valid conviction. Briefs in the case can be viewed here.

The panel did not appear persuaded by the government’s argument that the Supreme Court’s 1994 decision in Kokkonen v. Guardian Life, 511 U.S. 375 (1994)(refusing ancillary jurisdiction to enforce state law civil claims), meant that federal courts have no jurisdiction to expunge the record of a federal criminal case.  The import of the government’s argument would be to overrule the Circuit’s leading expungement case from the 1970s, United States v. Schnitzer, 567 F.2d 536 (2d Cir. 1977), which held that federal courts have ancillary jurisdiction to grant expungement on equitable grounds in extraordinary circumstances.  No judge on the panel expressed any support for overruling Schnitzer, and the government seemed reluctant to ask for it.  At the same time, Schnitzer involved expungement of an arrest that the government did not pursue, not a valid conviction.   That distinction seemed to have some appeal for one judge on the panel, who suggested that the holding in Schnitzer might not apply where conviction as opposed to arrest is at issue.

The government proposed that a court’s direction to executive agencies to expunge records in their possession might raise separation of powers issues, an argument the panel sidestepped by asking counsel to focus on the court’s authority over its own records.  It also argued that the federal court had intruded into an area already covered by state law, which provides federal offenders some relief from collateral consequences.  However, counsel for Ms. Doe pointed out that she had sought and been denied state relief.

On the jurisdictional issue that is central to the case, counsel for Ms. Doe argued that expungement or sealing of records in a criminal case falls within Kokonnen‘s exception for matters that are “factually interdependent.”  Having properly exercised jurisdiction over Ms. Doe’s expungement request, the district court could “balance the equities” to conclude that expungement (or, more accurately, sealing) relief was appropriate in the “extreme” circumstances of the case.  While the panel appeared to have some doubts about whether a civil suit for expungement based on post-conviction events is necessarily “factually interdependent” with the criminal case, a holding against Ms. Doe on this issue would appear to require overruling Schnitzer, since it is hard to distinguish an arrest from a conviction on this issue.

While it is hard to predict the result in the case, based on the argument it appears that no member of the panel is inclined to overrule Schnitzer, and only one of the three judges suggested that the jurisdictional outcome might be different in Doe because Schnitzer involved a mere arrest.  If the court finds jurisdiction to expunge a conviction, it is unlikely that the decision on the merits will be disturbed.

There was no mention of the second Jane Doe case in which Judge Gleeson declined to order expungement and instead issued a “federal certificate of rehabilitation.” Coincidentally, April 7 was the final day for the government to appeal Judge Gleeson’s certificate order, and it came and went with no appeal filed.

The New York Law Journal posted a lengthy and thoughtful commentary on the argument that can be accessed here by subscribers.  See Andrew Keshner, Gleeson Expungement in Doe is put to the test at the Circuit, April 8, 2016.




Margaret Love

Margaret Love is CCRC's Executive Director. A former U.S. Pardon Attorney, she represents applicants for executive clemency in her private practice in Washington, D.C.. She is lead co-author of Collateral Consequences of Criminal Conviction: Law, Policy, and Practice (4th ed. 2021), and served as an advisor to the ALI Model Penal Code: Sentencing.

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