NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3551

___________

JAMES ROBERT CARTER,

Appellant

v.

UNITED STATES OF AMERICA

_______________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

D.C. Miscellaneous No. 10-mc-00110

(Honorable J. Curtis Joyner)

______________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 7, 2011

Before: SCIRICA, AMBRO and VANASKIE, Circuit Judges.

(Filed : June 14, 2011)

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge.

I

In March 1974, James Robert Carter was “arrested or received”1

 1 The record before us contains an “FBI Identification Record” with an entry stating 

Carter was “arrested or received 1974/03/01” by the “FBI Philadelphia” as a “BR 

by the Federal 

Bureau of Investigation on suspicion of bank robbery. He was fingerprinted and 
2

photographed, but never indicted. The FBI has since maintained an arrest record for 

Carter. Carter recently applied for a volunteer position tutoring teenagers and young 

men. A criminal record check revealed his FBI arrest, which he contends prevented him 

from obtaining the position. In 2010, Carter filed a petition in United States District 

Court for the Eastern District of Pennsylvania to expunge the arrest record. The District 

Court denied the petition for lack of jurisdiction. We will affirm.2

 

Suspect.” Carter’s petition for expungement contends he was “detained.” As we lack 

jurisdiction over the petition regardless of whether Carter’s encounter with the FBI was 

voluntary or amounted to a seizure, we need not speculate on the meaning of the entry.

2 We have jurisdiction over this appeal under 28 U.S.C. § 1291. We exercise plenary 

review over a question of jurisdiction. United States v. Pelullo, 178 F.3d 196, 200 (3d 

Cir. 1999).

II

Carter contends the District Court has authority to order the expungement of his 

arrest record under the All Writs Act, 28 U.S.C. § 1651, and under the inherent power of 

the court. He argues our precedent grants jurisdiction to expunge FBI records when the 

underlying criminal proceeding is challenged as illegal, and he alleges that his encounter 

with the FBI was illegal because it was an arrest without probable cause.

The federal courts “possess only that power authorized by Constitution and statute, 

which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of 

America, 511 U.S. 375, 377 (1994) (internal citations omitted). “It is to be presumed that 

a cause lies outside [the federal courts’] limited jurisdiction and the burden of 

establishing the contrary rests upon the party asserting jurisdiction.” Id. (internal 

citations omitted). 
3

The All Writs Act does not provide jurisdiction over Carter’s petition. The Act 

allows the issuance of writs “necessary or appropriate in aid of” our jurisdiction. 28 

U.S.C. § 1651. It does not by itself grant subject matter jurisdiction. See United States v. 

Denedo, --- U.S. ----. 129 S. Ct. 2213, 2221 (2009) (“As the text of the All Writs Act 

recognizes, a court's power to issue any form of relief—extraordinary or otherwise—is 

contingent on that court's subject-matter jurisdiction over the case or controversy.”). 

Congress has not granted the judiciary the authority to order the expungement of 

executive records. See United States v. Lucido, 612 F.3d 871, 875 (6th Cir. 2010) 

(“Lucido's request [to expunge records held by the FBI], if granted, would amount to an 

extraordinary inter-branch incursion, one that should not lightly be effectuated through 

the federal courts' unexceptional right to oversee their own criminal cases.”). 

Conversely, Congress has ordered the Attorney General to “acquire, collect, classify, and 

preserve identification, criminal identification, crime, and other records.” 28 U.S.C. § 

534(a). Carter has not directed us to any statute that would provide the federal courts 

jurisdiction in this case to order expungement of this congressionally directed, executive 

branch recordkeeping.

Carter also contends the federal courts have an inherent jurisdiction over petitions 

for expungement. He relies on precedent addressing petitions to expunge judicial 

records. See United States v. Rowlands, 451 F.3d 173 (3d Cir. 2006); United States v. 

Dunegan, 251 F.3d 477 (3d Cir. 2001); United States v. Noonan, 906 F.2d 952 (3d Cir. 

1990). Our jurisdiction over such petitions for expungement involves “the validity of the 

underlying criminal proceeding[s]” that were already within the court’s jurisdiction. 
4

Rowlands, 451 F.3d at 178. As judicial proceedings against Carter were never initiated, 

there is no prior act or proceeding over which we might have retained inherent 

jurisdiction. Furthermore, Carter petitioned the court to expunge executive (FBI) records, 

not judicial records.

As neither the All Writs Act nor inherent jurisdiction confers subject matter 

jurisdiction over Carter’s petition, the District Court correctly determined it lacked 

jurisdiction.

III

For the foregoing reasons, we will affirm the denial of appellant’s expungement 

petition for lack of jurisdiction.