Federal courts have no autherity to expunge records, Third Circuit rules.

In a case of first impression, a three-judge panel of the Third Circuit Court of Appeals has ruled that federal courts have no authority to expunge a defendant's criminal record, even after a jury acquittal. (U.S. v. Dunegan, No. 00-4317, 2001 WL 567716 (3d Cir. May 25, 2001).)

The case stemmed from a retired police officer's attempt to clear his record nearly 30 years after a federal jury acquitted him of a civil rights charge. The former Penn Hills, Pennsylvania, officer was indicted in 1972 on a federal charge arising from the death of a criminal suspect killed by the ricochet of the officer's warning shot.

Although Dunegan was acquitted, the charge remains on his record and recently prevented the 56-year-old independent truck driver from buying a weapon at a gun show, his lawyer said.

His lawyer, Ronald Koerner of Pittsburgh, has filed a petition for an en banc review of the decision, which Koerner said conflicts with Third Circuit precedent and cases from the Fifth and Tenth circuits.

"I was shocked," Koerner said. "I didn't expect this decision at all."

The U.S. attorney's office in Pittsburgh expects to oppose further appeals. "Law enforcement has a strong interest in maintaining accurate records," said Leo Dillon, chief of the U.S. attorney's criminal division.

The decision also signals a reluctance by the Third Circuit to re-open closed cases. The court took a narrow view of the doctrine of ancillary jurisdiction, which would allow a court to decide a matter related to a case that had been dismissed.

In its Dunegan decision, the court said it had no authority--under statute or its own inherent powers--to expunge the retired officer's criminal record. "Ancillary jurisdiction permits a court to only dispose of matters related to the original case before it," Judge Max Rosenn wrote. "The doctrine of ancillary jurisdiction does not give district courts the authority to reopen a closed case whenever a related matter subsequently arises."

The Third Circuit cited the U.S. Supreme Court's decision in Kokkonen v. Guardian Life Insurance Co., which cited the limited jurisdiction of the federal courts. (511 U.S. 375 (1994).) The Court held that, because a settlement agreement did not reserve jurisdiction, the doctrine of ancillary jurisdiction could not be applied to enforce the agreement after the district court had dismissed the case.