Thompson v. Rutherford Cnty , 318 F. App'x 387 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0225n.06
Filed: March 24, 2009
United States Court of Appeals
FOR THE SIXTH CIRCUIT
___________
No. 07-5680
___________
Tammie Thompson, individually and on *
behalf of the Estate of Jeffrey Odell *
Thompson (deceased), and as parent *
and next friend of Destiny Machea *
Thompson, a minor, Erica Lynn *
Thompson, a minor, and Lee Austin *
Thompson, a minor, *
*
Plaintiff - Appellee, * On Appeal from the United States
* District Court for the Middle
v. * District of Tennessee
*
Rutherford County, Tennessee, et al., *
*
Defendant, *
*
Rishi K. Saxena, *
*
Defendant - Appellant. *
Before: KEITH, GRIFFIN, and JOHN R. GIBSON,* Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
Rishi K. Saxena appeals from the district court's denial of his motion to expunge the record
of a medical malpractice claim filed against him. We affirm the district court's denial of his motion.
*
The Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit Court of
Appeals, sitting by designation.
No. 07-5680
Thompson v. Rutherford County, et al.
Tammie Thompson filed a section 1983 action following her husband's death while
incarcerated at the Rutherford County, Tennessee, Adult Detention Center. Thompson alleged
deliberate indifference to her husband's medical needs when he did not receive his prescribed
medication for a heart condition. Thompson named Dr. Saxena, a physician at the hospital where
Thompson was treated, as a defendant. Dr. Saxena had seen Thompson one time for a hospital
cardiology consultation but had nothing to do with Thompson's failure to receive his medication.
Saxena was never served with a summons or complaint and was voluntarily dismissed from the case
four months later.
Thompson and Rutherford County eventually settled the suit. Several months after that,
Saxena filed a petition for an order expunging his name from the record. The petition included a
proposed order, agreed to by Thompson's counsel, which would remove Saxena's name from the
court's record wherever "referenced in the Court's file, including in the Complaint and in any
subsequent pleadings, orders or other documents, and in the Court's electronic database." The court
denied the motion without explanation, and this appeal followed.1
Saxena concedes that there is no federal or state authority which expressly permits or forbids
expungement in this circumstance. Nevertheless, he argues that the district court abused its
discretion in failing to use its equitable power to return him to the position he enjoyed before the
filing of this suit. He contends that this is an extraordinary situation appropriate for expungement
1
Thompson's counsel did not file a brief in opposition.
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Thompson v. Rutherford County, et al.
because if his name is not expunged from the record, he will be required to report Thompson's claim
to his insurance company forever and the claim could affect his ability to practice medicine.
Saxena compares his entitlement to expungement in federal criminal cases which have
indicated that a district court has broad equitable power to expunge a defendant's name from the
record in extraordinary circumstances. See United States v. Doe, 556 F.2d 391, 393 (6th Cir. 1977).
"If the dangers of unwarranted adverse consequences to the individual outweigh the public interest
in maintenance of the records, then expungement may be appropriate." United States v. Janik, 10
F.3d 470, 472 (7th Cir. 1993). Following the Supreme Court's decision in Kokkonen v. Guardian
Life Insurance Company of America, 511 U.S. 375, 377-80 (1994), however, there is substantial
authority that a district court has no jurisdiction to expunge records of criminal convictions based
solely on equitable grounds. See United States v. Coloian, 480 F.3d 47, 51-52 (1st Cir. 2007)
(discussing cases).
The Sixth Circuit has not addressed the jurisdictional issue, and we need not decide it here
because Saxena has not come close to establishing an extraordinary circumstance. Even those courts
that have recognized an equitable power to expunge have concluded that the power is one of
exceedingly narrow scope, and "the balance very rarely tips in favor of expungement." United States
v. Flowers, 389 F.3d 737, 739 (7th Cir. 2004).
Saxena's counsel conceded at oral argument that there is "no concrete proof" that Saxena has
been or will be adversely affected by this malpractice claim, just that it would be illogical to rule
otherwise. The possibility of an adverse employment action does not constitute a sufficient interest
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to warrant expungement. See id. at 740; see also Scruggs v. United States, 929 F.2d 305, 306 (7th
Cir. 1991). Although Saxena's interests are understandable, we believe they are even less compelling
than those of a criminal defendant. The records of Thompson's suit accurately reflect that Saxena
was named as a defendant and then voluntarily dismissed from the case.
Saxena also directs us to two Tennessee cases which he says show that Tennessee courts have
granted expungement to medical doctors in similar circumstances. Saxena's argument itself
demonstrates the problem in granting expungement as we have no way of confirming the
circumstances of those cases. "The judicial editing of history is likely to produce a greater harm than
that sought to be corrected." Rogers v. Slaughter, 469 F.2d 1084, 1085 (5th Cir. 1972) (per curium).
For these reasons, the district court did not abuse its discretion in denying Saxena's motion
to expunge the record and we affirm the judgment of the district court.
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No. 07-5680
Thompson v. Rutherford County, et al.
KEITH, J., dissenting. Based on the factual record, I can come to no other conclusion than
the district court abused its discretion by failing to expunge Dr. Saxena’s name from the record. The
majority opinion now affirms this glaring error and undeniable injustice.
The facts at issue in this case are not in dispute. As the majority opinion outlines, Dr. Saxena
only saw Thompson one time for a consultation that had nothing to do with Thompson’s later failure
to receive his medication. Thompson subsequently voluntarily removed Dr. Saxena from the lawsuit
and Thompson’s counsel later agreed to a proposed order that would remove Dr. Saxena’s name
from the court’s record. Despite Dr. Saxena’s clear lack of involvement in the matter at issue in
Thompson’s malpractice lawsuit, Saxena now faces the following potential damages: (1) an increase
in malpractice insurance; (2) a loss of hospital privileges; and (3) a loss of HMO contracts.
While there are no federal or state civil rights cases directly on-point that permit or prohibit
records from being expunged, it is clear that federal courts have the inherent authority to expunge
records in appropriate circumstances. “It is within the inherent equitable powers of a federal court
to order the expungement of a record in an appropriate case.” United States v. Doe, 556 F.2d 391,
393 (6th Cir. 1977). Federal courts have often exercised this discretion in the criminal context. See
United States v. Flowers, 389 F.3d 737, 739 (7th Cir. 2004) (stating that “district courts do have
jurisdiction to expunge records maintained by the judicial branch”). It is true, as cited in the majority
opinion, that following the Supreme Court’s decision in Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375 (1994), several circuits, namely the First, Third, Eighth and Ninth, have found that
district courts do not have ancillary jurisdiction to expunge records of criminal convictions based
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Thompson v. Rutherford County, et al.
solely upon equitable grounds. See United States v. Coloian, 480 F.3d 47, 52 (1st Cir. 2007); United
States v. Dunegan, 251 F.3d 477, 478 (3rd Cir. 2001); United States v. Meyer, 439 F.3d 855, 859-60
(8th Cir. 2006); United States v. Sumner, 226 F.3d 1005, 1014-15 (9th Cir. 2000). Nevertheless, the
Second, Seventh, Tenth and D.C. Circuits have “concluded that district courts do have ancillary
jurisdiction to expunge records based on equitable considerations.” United States v. Coloian, 480
F.3d at 51-52 (footnote omitted) (citing, but attempting to distinguish, United States v. Flowers, 389
F.3d 737, 739 (7th Cir. 2004); United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977);
Livingston v. United States Dep’t of Justice, 759 F.2d 74, 78 (D.C. Cir. 1985); United States v. Linn,
513 F.2d 925, 927 (10th Cir. 1975)). With a circuit split and silence on this issue in our Court, the
case at bar presents an extraordinary circumstance, compelling us to address this jurisdictional issue
and to find that we have ancillary jurisdiction to expunge a record in an appropriate case.
In contrast, the majority opinion holds that this situation does not constitute an exceptional
circumstance warranting expungement, and states that “[e]ven those courts that have recognized an
equitable power to expunge have concluded that the power is one of exceedingly narrow scope, and
‘the balance very rarely tips in favor of expungement.’” Op. at 3. It is hard to imagine a situation,
outside of one in which a defendant was named purely by accident, that would more fittingly fall
within this narrow exception. If this exception is to have any meaning at all, it must be applied here.
Both parties concede that Dr. Saxena was named by accident, and that he had no part whatsoever in
the circumstances at issue in the malpractice lawsuit. Therefore, to subject him to severe potential
losses -- even if only potential -- and to willingly choose to forego the equitable power we have to
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correct this injustice, violates the very integrity of the judicial system, and renders any “equitable
power” we have farcical.
Applying a balancing test to the facts of the instant case, a method borrowed from the
Seventh Circuit, demonstrates that expunging the record is appropriate here. In Flowers, the Seventh
Circuit held in determining whether an individual’s name should be expunged from the record, that
the court is to review whether, “the dangers of unwarranted adverse consequences to the individual
outweigh the public interest in maintenance of the records,” and if so, “then expunction is
appropriate.” Flowers, 389 F.3d at 739 (citations and quotation marks omitted); see also In re
Twobears, 2007 U.S. Dist. LEXIS 31005, at *8 (W.D. Tenn. April 26, 2007) (stating expunction is
typically only an appropriate remedy “when a defendant is factually innocent and can demonstrate
that the continued public availability of the record will cause great harm that outweighs the public
and governmental interest in maintaining the record.”) (emphasis in original). In this case, Dr.
Saxena faces serious consequences to his professional well-being as a result of the district court’s
and our Court’s refusal to expunge his name from the record. In contrast, there is no harm to the
plaintiff, who agrees that Dr. Saxena’s name should be expunged. Additionally, the government has
not cited any legitimate reason why it needs to maintain information about Dr. Saxena, a mistakenly
named individual, in this lawsuit. This is a much easier case than many presented in the criminal
context where expungement has been allowed. The hard cases are those in which the defendant
seeks expungement because he or she has been rehabilitated and wants a fresh start. See Flowers,
389 F.3d at 738. Here, we have an individual wholly and unequivocally without fault.
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Additionally, even if we were to concede that the majority’s fear about judicial editing was
legitimate, any such negative consequences could be easily mitigated. By merely omitting Dr.
Saxena’s name but retaining the essential facts of the case on the record, we can prevent a mistakenly
named party from suffering potentially debilitating consequences to his professional well-being,
while allowing the judicial branch to maintain what may be considered critical information. Doe,
556 F.2d at 393.
Why should this man be penalized for a mistake made by others? Accordingly, because this
an extraordinary case where both parties concede that Dr. Saxena was named by accident, I would
reverse the district court’s decision and grant Dr. Saxena’s motion to have his name expunged from
the record.
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