C. Standard of Law: Summary Judgment
Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." One of the principal purposes of the rule is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
In considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962). A moving party who bears the burden of proof at trial is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. If the moving party does not bear the burden of proof at trial, he may discharge his burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the non-moving party's case." Id. at 325. The moving party is not required to produce evidence showing the absence of a genuine issue of material fact on such issues, nor must the moving party support its motion with evidence negating the non-moving party's claim. Lujan v. National Wildlife Federation, 497 U.S. 871, 885, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990). Instead, "the motion may, and should, be granted so long as whatever is before the District Court demonstrates that the standard for the entry of judgment, as set forth in Rule 56(c), is satisfied." Lujan, 497 U.S. at 885 (quoting Celotex, 477 U.S. at 323).
Once the moving party demonstrates that either no genuine issue of material fact remains or that there is an absence of evidence to support the non-moving party's case, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his pleadings." Id. Genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250.
D. Defendant's Motion for Summary Judgment
Expunction of criminal records may be granted where there is a constitutional violation, the records are inaccurate, or other unusual or extraordinary circumstances exist. See Geary v. United States, 901 F.2d 679 (8th Cir. 1990); United States v. McLeod, 385 F.2d 734, 750 (5th Cir. 1967). Doe does not assert a constitutional violation or that the records are inaccurate. Therefore, the only issue is whether Doe can demonstrate that extraordinary circumstances exist which justify an order granting expunction. In determining whether extraordinary circumstances exist, the Court should weigh the interest of the government in maintaining the individual's criminal record and the harm caused to the individual by the existence of such records. See Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1, 65 (D.C. Cir. 1984), cert. denied, Brennan v. Hobson, 470 U.S. 1084, 85 L. Ed. 2d 142, 105 S. Ct. 1843 (1985). Where the harm outweighs the government interest, it is within the Court's discretion to find that extraordinary circumstances exist which warrant an expunction. Id.
1. Government Interest in Maintaining Doe's Criminal Record
The government has failed to establish that it has any interest in maintaining Doe's criminal record. Doe pled guilty to a crime that he committed over twenty-five years ago in violation of a statute that has long since been repealed. Doe has had no trouble with the law in the intervening twenty-seven years. Moreover, he committed the crime as a minor and was sentenced under the FYCA. Finally, the sentencing judge vacated his conviction and ordered his record sealed, leading Doe to believe that his record would have no lasting effect on his attempt to seek future employment. Therefore, an expunction would not affect the accuracy of the government's criminal records because, for all practical purposes, the record is obsolete.
2. Harm to Doe
While the government has no interest in maintaining a record of Doe's crime, the potential harm to him if expunction is denied is great. Doe has a family of five to support. If his record is not expunged, he will lose his job with WFS; a job for which he is qualified and at which he excels. Further, if he were to seek employment at any financial institution, even one which is not federally insured, they would inquire about his leaving WFS and the circumstances surrounding his termination. At that point, Doe would be forced to disclose the fact that he has an arrest record. Moreover, Doe was a minor when he committed the crime and his conviction was vacated, making its probative value extremely low.
At least one other court has granted expunction under these circumstances. In United States v. Doe, 935 F. Supp. 478 (S.D.N.Y. 1996), the court granted an expunction where the petitioner alleged his employment was affected by his criminal record. The court reasoned that the fact that the conviction occurred over twenty years ago, that the individual had no incidents with the law since, and that since his conviction he had been gainfully employed, justified expunging the conviction. Id. at 480. The court also emphasized that the petitioner in that case "demonstrated that this ancient conviction has had an actual impact on his employment status." Id.; see also National Treasury Employees Union v. Internal Revenue Service, 601 F. Supp. 1268 (D.D.C. 1985) (holding that expunction was proper where the records substantially harmed the individual in his efforts to secure employment). The court recognized that the fact that petitioner was initially suspended and later reinstated because of his excellent work performance was evidence that he might not be able to continue finding employment if his record were not expunged. Doe, 935 F. Supp. at 480. Finally, and most importantly to the court, the petitioner was convicted under the Federal Youth Corrections Act ("FYCA"), 18 U.S.C. § 5005, and his conviction had been previously set aside. Id. The court explained that the purpose of setting aside the conviction was to relieve individuals of the usual consequences of a criminal conviction and to give them a second chance free of a record tainted by a conviction. Id. at 481. Without expunction, the court noted, the set-aside would be meaningless. Id.
The instant case is analogous to the New York Doe case. The present Doe's guilty plea was over twenty-five years ago, and he has had no problems with the law since. Doe has also been gainfully employed for the last twenty years. Moreover, Doe has demonstrated that his record has had an actual effect on his employment in that his employer suspended him indefinitely pending the outcome of this lawsuit. WFS has made it clear that if the Court does not expunge his record, he will be discharged, and if the Court expunges his record, he can resume his employment. Most importantly, Doe's conviction under the FYCA was "set-aside" in that it was vacated and ordered sealed by the judge. Additionally, Doe states in his declaration that the judge told him that after seven years he was not required to report his record to anyone, and led him to believe that his criminal record would have no effect on his future employment. (Doe Decl. P 4).
Defendant asserts that, even if the Court finds it has jurisdiction to order the expunction of criminal records, there exist no extraordinary circumstances which would justify expunction in this case. Defendant emphasizes that expunction should only be used in extreme cases. The Court finds these circumstances are extreme; Doe may lose a good job and be at risk for future prolonged unemployment based on a single criminal conviction which occurred twenty-seven years ago when Doe was a minor, and which has already been vacated.
Finally, Defendant argues that 12 U.S.C. § 1829, which prohibits anyone convicted of a crime of dishonesty from working at a federally insured financial institution, provides that the FDIC may waive this requirement.
There is no evidence that Doe has sought such a waiver. However, there is also no evidence that the law requires Doe to seek a waiver before requesting expunction or that such a waiver would affect WFS's decision to terminate Doe. It is the company's policy to terminate employees with such records. Just because the FDIC waives the statutory requirement doesn't mean that, as a matter of policy, WFS would not terminate Doe's employment.
Despite the absence of an express statutory waiver of sovereign immunity, the Court finds that it has inherent equitable power to order the expunction of criminal records. Moreover, in the instant case, the Court finds that the harm to Doe substantially outweighs any interest that the government might have in maintaining his criminal records, and that extraordinary circumstances exist that warrant expunction. For these reasons, the Court DENIES Defendant's motion to dismiss, DENIES Defendant's motion for summary judgment, and orders the Defendant to show cause why summary judgment should not be granted in favor of Doe. The matter will be heard on Monday, May 5, 1997 at 10:30 a.m. Any additional papers regarding this matter may be filed no later than Thursday, May 1, 1997.
IT IS SO ORDERED.
DATED: APR 30 1997
RUDI M. BREWSTER
UNITED STATES DISTRICT JUDGE