By Elena Steiger Reich and Harry Sandick on August 11, 2016 edited by David Zapp & Johanna Zapp
Here’s a case that definitively answers a question that many defendants and lawyers have had.
In Jane Doe v. USA, 15-1967, the Second Circuit vacated the granting of petitioner’s motion to expunge all records of her criminal conviction holding that the District Court lacked subject matter jurisdiction to entertain the motion.
The petitioner was convicted in 2001 for her participation in a health care fraud scheme and sentenced to five years’ probation by the District Court. In October 2014, the petitioner filed a motion to expunge her conviction because, despite leading an exemplary life since 2001, she had been unable to retain employment due to her record of conviction. Relying on two appellate cases the District Court held that it had jurisdiction to decide the motion and granted it.
On appeal, the Second Circuit held that the District Court lacked jurisdiction to consider the motion. It distinguished its decision in Schnitzer, in which it held that a court had ancillary jurisdiction to expunge an arrest record following an order of dismissal of the criminal case, emphasizing that the holding was limited to arrest records and did not extend to records of a valid conviction. See United States v. Schnitzer, 567 F.2d 536 (2d Cir. 1977). Judge Livingston in his concurrence expressed skepticism that the decision in Schnitzer is still good law after the Supreme Court’s decision in Kokkonen v. Guardian Life Insurance Company of America, 511 U.S. 375 (1994). So be prepared for a challenge to expunge arrest records as well.
The Second Circuit did note its sympathy with the petitioner’s situation and observed that Congress could grant courts jurisdiction to entertain such a motion under these circumstances.