please the court my name is jason steed i represent the appellant brenda where in this case this case is about the federal district court's jurisdiction to expunge criminal records and i want to start out by making a couple of months ago about our jurisdiction to hear this  why this is a civil case real well i can start there you're on a good as this court decided in the hall in case which we cited in our reply not every motion or proceeding in a criminal case is criminal in nature and so for example this is not the example in the hall case but for example you might have a motion to quash the subpoena or something like that in a criminal case that would be a civil proceeding it's about a private harm that's maybe being caused by the  not a criminal matter and in an effort to quash that subpoena in the hall in case it was a post judgment the defendants in that case have been acquitted they brought a post judgment motion for attorney's fees under i think it's the hayes or haines amendment or something like that and the court said they filed that motion for attorney's fees in this on the same docket as the underlying criminal case and the court said not every motion of proceeding is in a criminal case is criminal in nature and the way that's determined is by what's at issue if it's a private harm that's being addressed and it's most likely a civil matter if it's about guilt and punishment and it's criminal in nature the way that the ninth circuit addressed the same question in the ono and bases which we cited  case then it would be criminal in nature how do you get this situation well the motion is so in hall and it was a post judgment motion for attorney's fees the garcia case is another one from this court that we cited where the court said that a post conviction motion to recover property is a civil matter in this case a post conviction motion to expunge the criminal record is addressing the private harm that's being caused by the continuing availability of that record the harm to the to the defendant years later who's coming asking the court to expunge that record to essentially relieve the individual of the harm has been caused by the of availability of that record that's a private harm it's not about guilt or punishment it's not a step in the criminal case kamel cases long long over at this point there's been a conviction there's been a sentence a sense has been served fifteen years have gone by there's no step in the criminal case to be taken this is a private harm in fact there are motions to expunge in civil a motion to expunge the record in an administrative proceeding for example those you can find cases dealing with expungement of a record and in those cases expungement itself is not criminal it's not dealing with the criminal conviction itself it's i think that it's clear from her pro se letter to the court right straight as a motion it's clear that she didn't want expungement understanding expungement as destruction she was distinguishing between do you mean as one's meddling and sealing exactly that's why she asked for but to seal the record you just said that's what she won't she won't see it on the record yes because the distinction but why isn't what she said perfectly clear your honor i don't want expungement whatever people may say that is i want my record sealed your argument that it can be both it seems to me is not even relevant she asked for sealing didn't she and you argue that's what she wants in this case she she is asking for her record for restriction of the access to he understands the difference to of explain expungement ceiling to be destruction and ceiling and she's trying to tell the court i don't i'm not asking to destroy the records she's asking for what whatever the name you put on it she's asking for semen of her record right yes so why i know we 're doing it because the judge reached out to it to talk about expungement but you'd only be you don't appeal anything on the ceiling no because the tests are different well know that there's different what's in front of us maybe different to i don't want to sta this how a case is framed up i know we've gotten beyond quite frankly the addition court i think trying to just cover bases seemed to make a decision on her rights that she did not ask for she didn't ask the we while we're talking about expunged your honor it's an extremely common occurrence that a pro se litigant thinks they're asking for something and this one now there's a look what she's saying she says i am not request expungement but to seal your honor black's law dictionary defines expungement as either to destruction or the ceiling of record i know that but she didn't understand that she didn't understand that expungement could also mean split doesn't matter to her she didn't move listen i think about your argument your argument is expunged it can mean stealing or it can mean destruction she didn't want destruction does she know she wants the other thing that you argue for which is sealing yes so why are we why why don't you peel appeal ceiling because what ceiling means in the context of a motion to seal right is different from what sealing means in a motion to expunge what is not in the effect but in the test that is appl is the same we're asking the court to restrict access to the record and in among the seal typically that's what the court why didn't you appeal the thing illing determination and say that that is a wrong determination because we're not we're not arguing whether the the decision on sealing in the context of a motion to seal is right or wrong because the court played the wrong test that's not the test this is a motion to expunge and the court rightly it's a common occurrence that this happens these motions are almost always brought pro se the court frequently the district court will frequently construe it as a motion to expire and i know they operate there seems to me to make perfect sense if a pro se person writes and goes judge would just seal my record then i think it's a good argument to say and i think we would construe it liberally and let it go you know even if this is a motion to start with but it in or a we would go she says c e o but she doesn't understand the distinction between sealing expungement she really we have to explore all that is what that's not what this process a person did this process a per se  won't seal it in contradistinction to expunge but i do not morning expungement so it strikes me the only reasonable way to read her letter is expungement whatever that means want to punch as your honor said she probably understood that it was going to be harder to get the court to destroy her record than to just seal it what she didn't understand is that expungement doesn't necessarily require the destruction of a record it would be the opposite of construing the pleading liberally to deny her motion because she didn't understand the nature of expungement and the difference between expungement saying we know she didn't understand it because it's implicit in her distinction at that asking for one and not the other when in every other case that someone brings a motion like this the courts rightly construe it as a motion to expunge just as this district court did hear this or understood she was seeking to expunge the record because the context of the motion is the context of expungement not sealing and the tests are different so the corps addressed ceiling because that's what she asked for but actually moved quickly through it quite quickly because the test for stealing doesn't really apply the test for sealing is about ongoing litigation and concerns about  sylmar record you would read that the same as your honor i'm requesting the expungement on my record or sealing my record to you they're straight exactly the same way in this case yes in any case that this is asking the court to s asking to seal the record right extend i didn't include sealing the record in a context where it's of years this is a different in those years later to me now if you see all the records which is you know when you have a process of saying that a record you normally have to do it publicly  that's what she's asking for is sealing the record but in the context she's asking for it it's properly construed as expungement because a motion to seal is usually brought either before or during litigation and the test for a motion to seal in that context is different from a motion to expunge a record which can include ceiling which is what she's seeking but a motion for expungement is brought years later sometimes decades later and the interest you can follow a motion to seal years later you probably could but probably not in a criminal case in a criminal case it's a motion to expunge record a commercial litigation they might file a motion to seal years later i suppose if they wanted to cover up a record of something and had retained the board has authority to seal framing that is drawing a hard distinction between sealing and expunge walk couldn't a person do that because there isn't one there isn't a hard distinction between them there's a difference in the test there's a difference between expungement as destruction why wouldn't the court then say i'm just looking at sealing the record not any kind of destruction if the court is going to say i'm look at expungement as sealing and not destruction that's fine that's what they do they bring them a pro litigant brings a motion to seal and the court considers that as a motion to expunge understanding that they're just going to seal the record that's what they do all the time and it's called a motion to expunge in this contest and you say oh you see here is the ceiling sure as if you if you have the remedy you won't hear it won't be destruction of anything it does not need to be the distro i'm going to say it in the relief you're seeking she is asking the court to restrict access to a criminal record which can be sealing that's what she's asked for she hasn't asked the court to destroy the record but it is probably construed as a motion to expunge case though she felt that applies as at what aruba do you would like here is for the record to be sealed the record to be there just be sealed that people cannot see any of the record ancillary jurisdiction that is specifically considered that in fan and that the court has jurisdiction with regard to it there are cases from circuit courts the fifth sixth and seventh circuits have all continued to recognize the jurisdiction of the district court to expunge criminal records on equitable grounds they haven't dealt with coke and the supreme court decision but there's good reason and i'm i'm running out of time on my opening  the reason that they haven't necessarily addressed coconut is coke and it is about ancillary jurisdiction but these circuits and including this circuit have recognized the jurisdiction as inherent equitable jurisdiction to expunge criminal records if the jurisdiction as this court has said in the know me half of the government with regard to the issue of whether or not this is criminal or civil in nature the government's brief is it's fairly clear and if it pleases the court the government stands on that brief unless you have any problem it's criminal because it is a step in the criminal case she filed this letter motion in her criminal dock to the the court in which she was tried for her criminal trial she poses the motion as a motion to seal her criminal record while i understand the holding in holland is that not everything in a criminal and criminal proceedings is criminal in nature this is criminal nature because the court in holland states that it's basically civil if it redresses private injuries and it's basically criminal if it redresses i'm sorry for the status as guilt and punish offenders just by nature of why we're here today the appellant is stating that you don't think you don't think people get hurt and on issues in civil cases when a court says you have to pay a verdict of forty four million dollars well me i don't understand that distinction this has nothing to do with  for guilt or not guilt does it i believe it does your honor because it's in her criminal appeal and what does that have to do with her being guilty and everything to do with her being guilty just motion is not going to affect whether or not she's guilty is it no your honor that she's guilty why is this a motion aimed at a file of the file of the court on of the court's jurisdiction protection supervision why isn't why isn't it simple because it's criminal your honor i'm going up my answer and not a good enough answer as it concluded why isn't it if you found a motion your honor there was a very embarrassing deposition and in a case i was in where i had to admit i was drinking on that night and now being being held up to be a deacon in my church would you see all that for me please because i won't ever get to be a deacon if the church knows that that i admitted there that that that then that more kinda what she's asking for i did it i'm not claiming i didn't do it just i don't want everybody to be able to get to it what isn't that sort of sound like simple way you pose it your honor it does what else was he doing so then you give up on that point i do not ok i don't think you should i don't know what you should but but you have to have an argument as to why you don't simply put and our brief your honor we noted that she filed this motion in regards to her criminal conviction what else would she file it in what are the what else does she have a new form of the course is a lay person remember that's the only case she's had front of the court she's going to fight it with the office of the pardon attorney your honor and wait a minute wait a minute wait a minute this is a pro se person sending a letter to the judge and we and the other side didn't even move to poor woman to be held to the word she specifically used and you say she should notify what the par judge in the country would deny the government's motion to under seal for the purposes of examining our criminal record for the sole purpose of deciding if she can be charged with felony possession you know court would deny would it no i don't believe so expungement then the court has ruled on its motion on the motion to seal and i think it's it's fairly analogous to a motion to expunge but to seal the record not destroy and if it's to destroy the court doesn't have prevent anyone from ever seeing the record again because it doesn't exist that's what expansion is to the government at least i've never heard sealing a record after expansion but again i'm a third year law student and i'm it's destroying the record it's what racing the record what record the criminal conviction the record of the criminal conviction the courts record story that anyone in government f b i everybody else that's that's a good question your honor we didn't know whether any parent was destruction of all record of you not of the conviction not think when you answer that question somebody would say what is the record perhaps i didn't but my answer today often is this what if there was a a public i actually am asking the question maybe you'll get to the point yes i'm asking the question your question alludes to the point that you will never be able to erase all record of a criminal conviction and miss where what she seeks is to move up within her position working for these military installations she can't pass a background check because of the existence of her criminal record there's no you talk about a pardon attorney that doesn't does that destroy the record if the maija granted a pardon i don't know that that motion constitution that's where the constitution grants the power to expunge to pardon to the president by way of the part of the office of the party the courts have no inherent power in your spine track to expunge criminal convictions records of criminal convictions records could include arrest records or where definit was try to quit the government draws this distinction at the conviction we don't we don't contend that no district court should ever hear a motion to expunge an arrest or jurisdiction to hear a motion to expunge based soley on equitable grounds expunge a criminal conviction conviction on equitable grounds because a conviction is wholly distinct from an acquit standard is not satisfied because the facts are independent the facts from her initial trial and what she was convicted of wire fraud conspiracy and perjury are wholly independent from the facts of this motion which is she's having a hard time passing a background check so she can work in certain military guild or in military installations there wholly independent the only connection there is the the mere presence of the conviction it's just the conviction that's the only connection and effectuating its decrees by overturning or excuse me by racing which is the government's definition of expungement the procedures unclear it would not have an interest in a racing the record of the conviction that in my way you have it takes my will yes ok then why do you put it the last one if you think that's correct because we didn't think this would get to the get to the merits because we didn't think that this proceeding was civil in nature we thought that it pellant frankly  wanted to get into it that answer didn't make any sense to me so you think what's the critical point an issue a critical point you put at the end of the brief because you thought we would read the brief note of course not your honor and so it was your answer it was a matter of importance we thought that the valid appeal because she hasn't even she was denied sealing and that wasn't that's all she asked for and that was denied therefore there's no basis for appeal why wouldn't that come first i would have to ask the  soccer practice etc and my students have to stand up in front of me and at times a three judge panel and do just what you're doing as as they would have one of my students marshall crane happened to be here today and i see him smiling because he's been in your shoes a member of times in front of me answer the same kind of questions but i think you're holding your own all right thank you on last you just right your honor that again the court does not that the kukkonen court the purposes and kukkonen are not satisfied here they would be satisfied had the court if the court even would reach the merits because the court denied the motion to seal so it's irrational think that the court would have denied a motion to seal but grant a motion to expunge facts of those cases would be relief and it seems to me those cases sometimes the analysis of those cases and sometimes the cases leave those two concepts together and they do your honor your correct so i'll clarify that the fourth circuit and allen the web's found inherent jurisdiction that didn't go into this large ancillary jurisdictional analysis where the founders tics and it just said we have we the court acknowledges we have historically had an errant jurisdiction to hear these cases disagree with it it seems to me that we're looking at the question of ancillary jurisdiction and once jurisdiction is established the question becomes is their inherent perhaps inherent already in other words you don't have to point to any specific rule statute or any constitutional provision but once jurisdiction is there was ancillary otherwise that has to be established would have sort of limited your vision all federal courts all and then if we have jurisdiction then do we have the authority to act and then finally you want to exercise that authority to act but it seems to me i don't know what inherent jurisdiction is be you know in these cases what they're going to i don't either know because usually when these came in fact a majority of the cases that do find they have very if we were only considering the ceiling at the district court to stop that ceiling and had gone on to expungement your position would it be to affirm if we got to it us would you ask us to would you be asking us to of the dish of course decision onus equitable authority and decision not to grant sailing or would you argue that we don't have jurisdiction to even hear this i would ask you to affirm because i believe the four circuit found and i believe they're inherently not inherently expressly there is law that states the district courts may seal records i couldn't point to the exact to our third point we raise in our brief which was whether or not the error if error was harmless i think it's fairly clear from the order itself that the court would have denied the motion to expunge whether that means seal record or completely erase it because the court indicated in the first footnote of the order that it's analyzing this motion to seal and under the same and the same and the motion to expunge and it denies but whether or not it's an awfully stated or not it's pretty clear the court would deny the motion to expunge second it's illogical to think that the court would have denied a motion to seal but granted an expungement whether that means also sealing just twenty years later or deleting completely i just can't i can't imagine that a district court would do such that and frankly a lot of the relief that she seeks which is to pass a background check i don't think would be available even if the record was completely deleted because as judge should pointed out you have media databases and public forums and there's all sorts of records beyond the court's records over which it has authority then indicate she was convicted of a crime so more than just being able to say on an application if if the expense was granted on an application that i was not convicted of felony i don't know what else the appellant could really get in this case even if the expungement is grant thank you owners inherent jurisdiction stems from article three of the constitution article three says the judicial branch to the courts will have jurisdiction over matters of law in equity that equitable jurisdiction is in article three that's inherent to the courts as they are constituted if the court has inherent equitable jurisdiction over an equitable matter which is what this is that's different from ancillary jurisdiction which flows from a jurisdiction and then one of subsequent motion was filed to enforce a settlement agreement the supreme court said that that new motion to force that settlement agreement was a setting a new action for breach of contract and there was an ancillary jurisdiction from that original diversity or a section of the underlying case but here that subsequent motion that's what ancillary jurisdiction and that's how it differs from inherent jurisdiction the court has inherent equitable jurisdiction this court has recognized that the district court has inherent equitable jurisdiction to hear exp motions the grounds on which that motion is brought or the type of record that's being expunged those things don't govern the court's jurisdiction those things are about the circumstances to be considered in determining whether or not to expunge the record the government's trying to draw distinction between expunging a record of a conviction versus expunging a record of an acquittal or arrest record or something like that that there is no authority for drawing that distinction until summer the ninth circuit decision which started this whole mess before before that decision in two thousand all of the courts recognized inherent and equitable jurisdiction or if some of them called it ancillary jurisdiction which flowed from the original jurisdiction over the criminal original criminal case but either way all of the circuits recognized that district courts had jurisdiction to hear expungement motions all of them all of the courts still recognize to this day there's no dispute all of the circuits recognize district courts have jurisdiction to hear  jurisdiction to hear the appeal was not at issue in webster but federal court jurisdiction that wasn't discussed and wept not at length the court this court simply recognized that the district court had equitable discretion and didn't abuse that discretion when it denied the motion to basically assume that for for two hundred plus years all of the courts have recognized that this equitable jurisdiction existed the supreme court in an eight i think we cited it's and it's northwestern fuel eight hundred ninety something case i think where the supreme court talked about the district court's jurisdiction to correct injuries that are the consequence of the court's own judgment the supreme court in the nixon case that we cited says the district court has inherent supervisory power over its records the court is that the district court either has jurisdiction to expunge or it doesn't and drawing the line between certain kinds of motions or certain kinds of records that goes to the merits of the request and not the district court's power to hear the records it wasn't until summer the summer decision the ninth circuit reached out and grabbed a token and said this means we don't have jurisdiction over this particular kind of motion and even in summer while the ninth circuit is saying that it's recognizing that the court still has  jurisdiction to hear other expungement motions again the court either has the jurisdiction to restrict access to records or it doesn't and regarding sealing expungement what's what's at issue here is the court's jurisdiction to restrict access records yes ms ware said ceiling not expungement but to hold a pro se litigant to the literal words she uses and disregard all the cases in which we regularly construe this as expungement would be the opposite of liberally construing her pleading the the error here if if the court only addressed ceiling and didn't address expungement then we would appeal saying court erred by applying the wrong test it should have construed this as expungement and applied the proper test for expungement because because you might have a pro se litigant who doesn't understand what they're actually clean in the facts that they plead they might say i'm not asking for this but i'm asking for this but clearly the fact that they're pleading and what they're asking for the court knows better than to say w you didn't ask for that even though we all of your facts and the like and that at least your c s for exactly what she won't yes which is to seal the records which falls under expungement and the government takes the position that expungement means only destruction of the records that's contrary to all the case law to all the treatises that talk about expunging records it's contrary to black's law dictionary which defines expungement as sealing or destroying records she's asking for a ceiling that falls under expungement the district court in many cases expire to follow as many expunge motions as they care to i'm not aware of authority saying they can't is the best answer i can give so your view though is why you practice in this area trying to find it i don't know that maybe a court order over limitations on filings but other than that i don't know anything inherent in the theory of expungement that would limit filings to you i don't know of anything no because five years later circumstances may change or even it but even if certain places don't change churches might not be