Opposition Brief — Coloian v. United States, 128 S. Ct. 377 (2007) (No. 07-72)

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No. 07-72

Jn the Supreine Court of the Anited 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

LoutIs M. FISCHER

Attorney

Department of Justice

Washington, D.C. 205 20-000)

(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.

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Conclusion

TABLE OF AUTHORITIES

Cases:

Alexander v. Sandoval, 532 U.S. 275 (2001)

Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971)

Geary v. United States, 901 F.2d 679 (8th Cir. 1990)

Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375

(1994) 4, 5, 6, 10, 11

Livingston v. United States Dep't of Justice, 759 F.2d

74 (D.C. Cir. 1985)

Northwest Airlines, Inc. v. Transportation Workers

Union, 451 U.S. 77 (1981)

United States v. Dunegan, 251 F.3d 477 (3d Cir.

United States v. Flowers, 389 I’.3d 737 (7th Cir.

2004)

United States v. Janik, 10 F.3d 470 (7th Cir. 1993)

United States v. Linn, 513 F.2d 925 (10th Cir.), cert.

denied, 423 U.S. 836 (1975)

United States v. Meyer, 439 F.3d 855 (8th Cir. 2006) ... 4,8

Cases—Continued:

United States v. Schnitzer, 567 F.2d 536 (2d Cir.

1977), cert. denied, 435 U.S. 907 (1978)

United States v. Sumner, 226 F.3d 1005 (9th Cir.

Statutes:

Administrative Procedure Act, 5 U.S.C. 551 et seg. ...... 7

18 U.S.C. 371

18 U.S.C. 666(a)(1)(B)

18 U.S.C. 3231

28 U.S.C. 534

Miscellaneous:

Black’s Law Dictionary (8th ed. 2004)

In the Supreme Court of the Gnited States

No. 07-72

ARTIN H. COLOIAN, PETITIONER

Vv.

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. la-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

(1)

2

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. /d. at l1a-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. la-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

- 6s

“extreme and unusual” “stigma” from the prosecution

and was impeded in his ability to practice law and con-

duct business. /d. 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

3

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 zd. 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. Jd. 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.” /d. 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.” /bid. 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.” /bid.

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. la-9a.

4

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.’” /d. 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.” /d. 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

5

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.” /bid.

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,

“(als 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.” /bid. 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.” /d. 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.” bid.

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

6

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).

7

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”).'’ 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-

' 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.

8

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.* 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

* 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.

9

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 zd. 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.°

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-

* 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 zd. at 21a-23a.

10

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

11

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