                          In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 04-1917
UNITED STATES OF AMERICA,
                                          Plaintiff-Appellant,
                              v.

KATHERINE ANN FLOWERS,
                                         Defendant-Appellee.

                        ____________
          Appeal from the United States District Court
               for the Southern District of Illinois.
         No. 96-CR-40028-JPG—J. Phil Gilbert, Judge.
                        ____________
  ARGUED SEPTEMBER 29, 2004—DECIDED NOVEMBER 19, 2004
                        ____________



  Before CUDAHY, RIPPLE, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. Katherine Ann Flowers success-
fully sought an order from the district court expunging all
records of her criminal conviction kept by the judicial branch
of the government. The government appeals the order.
  In 1996, Flowers entered a guilty plea to a one-count
information charging her with a violation of 42 U.S.C.
§ 3631(b)(1) for interfering with housing rights on account
of race. As part of her plea agreement, she stipulated that
she drove two codefendants to and from a house where the
codefendants, while wearing white sheets and hoods, burned
a cross to intimidate a white woman who was associating
2                                                No. 04-1917

with an African-American man. Flowers, who was 18 years
old at the time of the crime, was sentenced to one year of
probation.
  Apparently since the time of this appalling cross-burning
incident, Flowers has done constructive things with her life.
She attended college, receiving an Associate of Arts degree,
and then enrolled at Southern Illinois University, where
she received a Bachelor of Science degree in plant and soil
science. She has been a member of the Zeigler, Illinois, fire
department and has been promoted to the rank of lieuten-
ant. She has achieved certification as a Firefighter II and in
hazardous material awareness. She received a first re-
sponder/defibrillator license from the Illinois Department
of Public Health. Also, she has completed a course of study
as a practical nurse and passed her state boards.
  She filed her motion in the district court seeking ex-
pungement of her criminal record in order to prevent it
from limiting her ability to find employment in her field.
The United States Attorney’s office did not respond to the
motion, a fact the district judge interpreted as acquiescence
in the relief sought. In fact, the reason the government did
not respond was that it did not receive a copy of the filing.
In ruling on the motion, the district judge said that he
lacked authority to expunge records maintained by the ex-
ecutive branch of the government. However, he ordered
expungement of records maintained by the judicial branch:
    [I]n view of Flowers’s apparent personal rehabilitation,
    the Court finds that Flowers’s potential employment
    problems outweigh the public interest in maintaining
    her judicial records. Further, the Court construes the
    government’s failure to respond to Flowers’s motion as
    an admission that the balancing test weighs in favor of
    expungement.
  Flowers wisely does not appeal from the denial of the mo-
tion as it applies to records maintained by the executive
No. 04-1917                                                3

branch. As the district judge recognized, we have previously
made clear that federal courts lack jurisdiction to order
expungement of such records. In United States v. Janik, 10
F.3d 470, 472 (7th Cir. 1993), we said:
    Diamond [v. United States, 649 F.2d 496 (7th Cir. 1981),]
    and Scruggs [v. United States, 929 F.2d 305 (7th Cir.
    1991),] have produced confusion because Scruggs sug-
    gests, though it does not hold, that federal courts are
    without jurisdiction to order any Executive Branch
    agency, typically the FBI, to expunge records, while
    Diamond completely overlooks the issue of jurisdiction.
    We resolve that confusion in this case by holding that
    federal courts are without jurisdiction to order an
    Executive Branch agency to expunge what are admit-
    tedly accurate records of a person’s indictment and
    conviction. We are without statutory or constitutional
    authority to hold otherwise. In fact, in Section 534,
    Congress suggested the opposite—that is, in favor of
    requiring the Executive Branch to maintain accurate
    records of such convictions.
  Janik established, however, that district courts do have
jurisdiction to expunge records maintained by the judicial
branch. The test for the expungement of judicial records is
a balancing test: “if the dangers of unwarranted adverse
consequences to the individual outweigh the public interest
in maintenance of the records, then expunction is appropri-
ate.” At 472.
  Although we have adopted a balancing test, it seems clear
that the balance very rarely tips in favor of expungement.
Janik had been found guilty of the unlawful possession of
two unregistered guns. His conviction was overturned due
to a violation of the Speedy Trial Act. Even though his con-
viction was overturned and he had been rejected for employ-
ment because of his record, we found that expungement was
not called for. Even more telling is the fact that in Scruggs
4                                                No. 04-1917

the defendant was found not guilty of being a felon in
possession of a firearm. We nevertheless upheld the denial
of his request to expunge his arrest record.
  It is fair to say that our view of the balancing test is like
that of other courts which have emphasized that expunge-
ment is an extraordinary remedy: Geary v. United States,
901 F.2d 679 (8th Cir. 1990) (a federal court may exercise
its inherent equitable powers to order expungement only
where the case presents “extraordinary circumstances”);
United States v. Friesen, 853 F.2d 816 (10th Cir. 1988) (at-
torney acquitted on all counts of conspiracy to manufacture
cocaine was not automatically entitled to expungement of
records); Livingston v. U.S. Dep’t of Justice, 759 F.2d 74, 78
n.30 (D.C. Cir. 1985) (neither dismissal of complaint nor
acquittal, without more, justifies expungement of arrest
record); Allen v. Webster, 742 F.2d 153, 155 (4th Cir. 1984)
(expungement of an arrest record is relief confined to “ex-
ceptional circumstances”); and United States v. Schnitzer,
567 F.2d 536, 539 (2nd Cir. 1977) (expungement granted
only in “extreme circumstances”).
   The present case convinces us, however, that we need to
add content to the balancing test to underline the fact that
expungement is, in fact, an extraordinary remedy and that
“unwarranted adverse consequences” must be uniquely
significant in order to outweigh the strong public interest in
maintaining accurate and undoctored records. We will turn
first to the second part of the test: the public interest in
maintaining accurate records. That interest is strong as
evidenced by the statutory admonition found in 28 U.S.C.
§ 534 which requires the Department of Justice to collect
criminal records and make them available to state and local
law enforcement agencies. Records relating to a person’s
criminal conduct are vital tools to law enforcement and are,
at least as of today, essential to the computation of sen-
tences under the United States Sentencing Guidelines.
No. 04-1917                                                   5

Other evidence of the weight of the public interest can be
seen in the long tradition of open proceedings and public
records, which is the essence of a democratic society.
  To outweigh that interest, “unwarranted adverse conse-
quences” must truly be extraordinary. The phrase does not
refer to adverse consequences which attend every arrest and
conviction. Those are unfortunate but generally not con-
sidered unwarranted adverse consequences. It is possible,
even likely, that any person with an arrest or conviction
record may well be impeded in finding employment. As the
Court of Appeals for the Ninth Circuit has stated, if em-
ployment problems resulting from a criminal record were
“sufficient to outweigh the government’s interest in main-
taining criminal records, expunction would no longer be the
narrow, extraordinary exception, but a generally available
remedy.” United States v. Smith, 940 F.2d 395, 396 (9th Cir.
1991).
  Just what sort of consequence might be “unwarranted”
and of significance sufficient to outweigh the public interest
in the maintenance of records is somewhat difficult to
predict. One clear example is found in United States v.
McLeod, 385 F.2d 734 (5th Cir. 1967). The case arose out of
a voter registration drive in Selma, Alabama, in 1963. The
judge found that there was a pattern of harassment (includ-
ing arrests on minor charges) carried out by the authorities
of Dallas County to intimidate African-American citizens
from registering to vote. After laying out the “chilling effect”
that the “pattern of baseless arrests and prosecutions
revealed,” the judge found that in order to grant relief it
was necessary to put the persons arrested in the position
they would have had, were it not for the arrests. At 741.
While there is no specific mention in this vintage case of the
presently accepted balancing test, the reasoning was that
“[s]etting aside a few criminal convictions is far less
disruptive of the normal functioning of state government
6                                                No. 04-1917

than is the voiding of an election.” At 749. It is not hard to
see why the situation in Selma could be considered extraor-
dinary.1
  In contrast, the case before us, although it involves a
crime that is thankfully not routine, concerns no more than
a routine, valid criminal conviction with the usual atten-
dant consequences. For that reason, we find that granting
expungement to Flowers was an abuse of the district court’s
discretion. Her motion filed in the district court set out her
accomplishments since the time of her conviction and
statements from her presentencing report: (1) that at the
time of the offense her codefendant told her that if she did
not drive to the scene of the crime, he would tell her parents
she had been drinking; (2) that she had affirmatively
accepted responsibility for her actions; (3) that she had no
previous criminal history; and (4) that she had a minor role
in the offense. She stated that she was remorseful. There is
nothing truly extraordinary about these factors. In granting
the motion, the district court distinguished Flowers’ case
from Janik, saying that her “crime was far less serious than
Janik’s and did not even subject her to a term of imprison-
ment.” It is true that her sentence was less than Janik’s
but, even were we to somehow assume that the length of
the sentence is relevant to expungement, many factors,
other than the seriousness of the crime, figure into the
sentencing calculation. For example, Flowers had no prior
record and entered a plea agreement under which she
cooperated with the government. We are also not convinced
that Flowers’ crime was not serious. It was, perhaps, even
more serious than Janik’s.
  Turning specifically to the balancing test, we note that as
to the adverse consequences, Flowers does not provide any


1
  We note that we mention this case merely to show what might
make a consequence of an arrest unwarranted, not to comment on
the court’s exercise of jurisdiction over state arrest records.
No. 04-1917                                                7

evidence of the actual loss of employment opportunities.
She merely says that she “fears that if her records in this
matter are not expunged, it will seriously limit her ability
to find employment in her field.” That speculative conse-
quence cannot outweigh the public interest in maintaining
the accuracy of judicial records.
  On that point, as we stated, the district court construed
the government’s failure to respond to the motion as “an
admission that the balancing test weighs in favor of
expungement.” The government’s motion to reconsider the
issue, filed after it learned about the order expunging the
record, belies that assumption. There is nothing in this rec-
ord sufficient to support Flowers’ request. The order of the
district court is REVERSED, and the court records in this
case—both here and in the district court—are unsealed. The
case is remanded to the district court where an order
dismissing Flowers’ petition should be issued.


A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—11-19-04
