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A federal judge cannot even consider a request for expungement of a criminal record of a long-closed case since there is no federal statute or court rule that allows it, and the “inherent powers” of the courts simply don’t stretch that far, a federal appeals court has ruled in a case of first impression. In United States v. Dunegan, the 3rd U.S. Circuit Court of Appeals rejected a petition by a retired police officer who was indicted in 1971 on civil rights charges relating to an accidental shooting and was cleared by a jury. Now an independent truck driver, Dennis Dunegan, 56, asked the court to invoke its inherent powers to expunge his criminal record. U.S. District Judge Gary L. Lancaster of the Western District of Pennsylvania considered the request, but denied it, saying Dunegan failed to show the “extraordinary circumstances” needed to justify expungement under the equitable powers of the court. Now the 3rd Circuit has ruled that Lancaster never should have considered the petition since federal courts don’t have jurisdiction to expunge a criminal record — even one ending in an acquittal. Senior 3rd Circuit Judge Max Rosenn found that the 3rd Circuit has identified three uses of a court’s inherent powers. The most common use of inherent power, he said, are “those powers necessary for the courts to adjudicate cases in an orderly and efficacious manner.” Included within that, he said, is contempt power. Another, more “nebulous” use of inherent powers, he said, allows a court to take action “fundamental to the essence of a court,” without which the courts would cease to fulfill the function for which the Constitution established them. But neither of those powers gives the courts jurisdiction over petitions for expungement, Rosenn said. And the judge’s third inherent power — to employ experts, special masters or auditors to aid in decision-making — clearly doesn’t create the power to consider expungement. Having ruled out the inherent powers of the court as a basis for jurisdiction over Dunegan’s petition, Rosenn turned to the doctrine of “ancillary jurisdiction,” which some courts have held to supply jurisdiction over expungement petitions. But Rosenn found that the doctrine of ancillary jurisdiction “does not give district courts the authority to reopen a closed case whenever a related matter subsequently arises.” The 3rd Circuit considered the issue once before, Rosenn found, reversing a lower court’s expungement of a Vietnam war-era draft dodger who said his presidential pardon entitled him to a clean record. But the 1990 decision in United States v. Noonan addressed only the purely legal question of whether the pardon entitled the petition to expunction, Rosenn said, and the court never squarely addressed the jurisdictional question. “Today, this circuit considers and decides that question for the first time,” Rosenn wrote. Following the lead of the 9th Circuit’s decision last year in United States v. Sumner — a case that, like Dunegan’s, involved a petition to expunge a criminal record created more than a quarter of a century ago — Rosenn found that federal courts have no power to consider such requests. Neither “inherent powers” nor “equitable principles” give courts that power, Rosenn said, because “there must be some statutory or constitutional basis for its jurisdiction to hear the independent action before it.” The Sumner court, he said, noted that a district court has the “inherent jurisdiction” within the time allowed for appeal to modify its judgment for error of fact or law or even to revoke a judgment. The court also looked at Federal Rule of Appellate Procedure 4(b) and observed that the expiration of the time to file an appeal under the rule is a jurisdictional limitation after a judgment of conviction has been entered. Although courts have ancillary jurisdiction to expunge an unlawful arrest or to correct a clerical error, the Sumner court said, that power doesn’t extend to expunction on purely equitable grounds, such as to reward a defendant’s rehabilitation and commendable post-conviction conduct. Rosenn agreed, saying “we hold that in the absence of any applicable statute enacted by Congress, or an allegation that the criminal proceedings were invalid or illegal, a district court does not have the jurisdiction to expunge a criminal record, even when ending in an acquittal.” Joining Rosenn on the opinion were 3rd Circuit Judges Carol Los Mansmann and Richard L. Nygaard. Dunegan was represented by Ronald P. Koerner of Gatz Cohen Segal & Koerner in Pittsburgh. Assistant U.S. Attorney Bonnie R. Schlueter argued the appeal for the government.

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