USCA11 Case: 21-12800 Document: 39-1 Date Filed: 03/24/2023 Page: 1 of 12
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12800
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES BATMASIAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:08-cr-60089-KAM-1
____________________
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2 Opinion of the Court 21-12800
Before BRANCH and LUCK, Circuit Judges, and ANTOON, ∗ District
Judge.
BRANCH, Circuit Judge:
Pardoned felon James Batmasian appeals the district court’s
denial of his motion to expunge the records of his criminal
conviction. Batmasian argues that the district court erred in
concluding that, (1) it lacked jurisdiction over his claim; and (2)
even if it had jurisdiction, the merits of his motion did not warrant
expungement. After oral argument and consideration of the record
below, we conclude that the district court lacked jurisdiction over
Batmasian’s motion. However, because the district court assumed
that it had jurisdiction and evaluated and denied Batmasian’s
motion on the merits, we vacate and remand with instructions to
dismiss for lack of jurisdiction.
I. Background
In April 2008, the United States charged James Batmasian
with failure to pay federal withholding taxes in violation of 26
U.S.C. § 7202. Batmasian pleaded guilty, and the district court
sentenced him to eight months imprisonment, two years of
supervised release, and a $30,000 fine. After Batmasian completed
his sentence and paid his fine, Florida Governor Rick Scott restored
∗ Honorable John Antoon II, United States District Judge for the Middle
District of Florida, sitting by designation.
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21-12800 Opinion of the Court 3
his civil rights in March 2017, and President Donald Trump issued
him a complete pardon in December 2020.
In April 2021, after receiving the presidential pardon,
Batmasian filed with the district court in the same criminal action
as his underlying conviction a “verified motion to expunge and seal
judicial records after a Presidential Pardon.” Batmasian, self-
described as a person of extraordinary wealth with a history of
charitable giving, alleged that he was denied participation in many
philanthropic efforts because of his conviction. Despite the
presidential pardon and the restoration of his civil rights, Batmasian
claimed that the conviction “continue[d] to cause exceptional
difficulties and hardships” to his “pioneering philanthropic
endeavors and the desire to be proactive with . . . charity.” For
example, he explained that a Florida university had declined his
offer to endow a “Real Estate Chair,” that a Bill Gates charity called
“The Giving Pledge” had not processed his application to be a
participant, that several charities had removed him from their
boards of directors, and that a charity he founded had not received
any grant funding. Batmasian alleged that “[o]nly with the
expungement can [he] exercise his basic legal right of charitable
giving to the fullest extent possible.”
In his expungement motion, Batmasian asserted that federal
district courts have the “inherent equitable power ancillary to their
criminal jurisdiction” to order the expungement of criminal
records. The government responded, arguing that the district
court should deny the motion because it lacked jurisdiction to hear
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4 Opinion of the Court 21-12800
it, citing the Supreme Court’s analysis of the limited reach of
ancillary jurisdiction in Kokkonen v. Guardian Life Insurance Co.
of America, 511 U.S. 375 (1994). In reply, Batmasian asserted that
the district court had ancillary jurisdiction over his request, arguing
for the first time that his motion to expunge was based, at least in
part, on constitutional, rather than purely equitable, grounds—
namely, “his [c]onstitutionally protected rights to dispose of his
wealth.”
The district court concluded that it lacked jurisdiction to
hear the request for expungement. The district court then assumed
that it had the authority to consider the motion, evaluated the
motion, and denied the motion on the merits. Batmasian appeals
the district court’s decision.
II. Discussion
Batmasian argues that the district court had ancillary
jurisdiction to hear his expungement motion because his request
was “based entirely on the constitutional impairment that his
[c]onviction causes on his First Amendment rights to give away his
wealth and participate with the benefitted charities.” We disagree
and hold the district court lacked jurisdiction to hear Batmasian’s
expungement motion.
“We review de novo a district court’s determination of
whether it has subject-matter jurisdiction.” Gupta v. McGahey,
709 F.3d 1062, 1064–65 (11th Cir. 2013); see also Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (“[E]very
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21-12800 Opinion of the Court 5
federal appellate court has a special obligation to ‘satisfy itself not
only of its own jurisdiction, but also that of the lower courts in a
cause under review. . . .’” (quoting Mitchell v. Maurer, 293 U.S.
237, 244 (1934))). When an appellant fails to challenge properly on
appeal one of the grounds on which the district court based its
judgment, he is deemed to have abandoned any challenge of that
ground. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680
(11th Cir. 2014).
As “[a] court[] of limited jurisdiction,” a federal court
“possess[es] only that power authorized by [the] Constitution and
statute[s], which is not to be expanded by judicial decree.”
Kokkonen, 511 U.S. at 377 (internal citations omitted). Indeed, “[i]t
is to be presumed that a cause lies outside this limited jurisdiction,
and the burden of establishing the contrary rests upon the party
asserting jurisdiction.” Id. (internal citation omitted).
As Batmasian acknowledges, no federal statute authorizes
district courts to hear the type of expungement motion he brings.
Instead, Batmasian relies on the doctrine of “ancillary jurisdiction,
which recognizes federal courts’ jurisdiction over some matters
(otherwise beyond their competence) that are incidental to other
matters properly before them.” Id. at 378.
In Kokkonen, the Supreme Court clarified that ancillary
jurisdiction can be invoked for two limited purposes: “(1) to permit
disposition by a single court of claims that are, in varying respects
and degrees, factually interdependent; and (2) to enable a court to
function successfully, that is, to manage its proceedings, vindicate
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its authority, and effectuate its decrees.” Id. at 379–80 (internal
citations omitted).
Although expungement was not at issue in Kokkonen,
courts have consistently applied the Kokkonen framework to
requests from defendants to utilize their ancillary jurisdiction to
expunge criminal records. In doing so, courts have evaluated
requests for two potential forms of expungement under their
ancillary jurisdiction—“equitable” expungement and
“constitutional” expungement.
We first turn to equitable expungements. While Batmasian
argued below that his request is for an equitable expungement, he
expressly disclaims any argument for an equitable expungement on
appeal. 1 Thus, we need not address whether the district court had
ancillary jurisdiction to hear a motion for an equitable
expungement.2 Sapuppo, 739 F.3d at 680.
1 In fact, Batmasian admits in his initial brief that if his “request for
expungement was equitable, the District Court below would have been
correct.”
2 We note that the First, Second, Third, Sixth, Seventh, Eighth, and Ninth
Circuits have declined to recognize that they have ancillary jurisdiction to hear
equitable expungement motions in light of Kokkonen. See United States v.
Coloian, 480 F.3d 47, 48–49, 52 (1st Cir. 2007) (holding that “Kokkonen
forecloses any ancillary jurisdiction to order expungement based on [the
individual’s] proffered equitable reasons”); Doe v. United States, 833 F.3d 192,
199 (2d Cir. 2016) (denying jurisdiction to equitably expunge a criminal
conviction where the “exercise of ancillary jurisdiction . . . [would serve]
neither of the goals identified in Kokkonen”); United States v. Dunegan, 251
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21-12800 Opinion of the Court 7
Instead, Batmasian’s sole contention on appeal is that his
request is for a constitutional expungement. At the outset, we note
F.3d 477, 479–80 (3d Cir. 2001) (applying Kokkonen and holding that “a
District Court does not have the jurisdiction to expunge a criminal record” on
equitable grounds); United States v. Lucido, 612 F.3d 871, 874–76 (6th Cir.
2010) (applying Kokkonen and holding that “federal courts lack ancillary
jurisdiction to consider expungement motions” on equitable grounds); United
States v. Wahi, 850 F.3d 296, 302 (7th Cir. 2017) (applying Kokkonen and
holding that “ancillary jurisdiction does not include a general equitable power
to expunge judicial records”); United States v. Meyer, 439 F.3d 855, 860 (8th
Cir. 2006) (holding “that post-Kokkonen a motion to expunge a criminal
record that is based solely on equitable grounds does not invoke the ancillary
jurisdiction of the district court”); United States v. Sumner, 226 F.3d 1005, 1014
(9th Cir. 2000) (applying Kokkonen and holding that “district court[s] [do not
have] the power to expunge a record of a valid arrest and conviction solely for
equitable considerations”).
To our knowledge, only the Tenth Circuit has come to the opposite
conclusion post-Kokkonen. See Camfield v. City of Oklahoma City, 248 F.3d
1214, 1234–35 (10th Cir. 2001) (“[I]t is well settled in this circuit that courts
have inherent equitable authority to order the expungement of an arrest
record or a conviction in rare or extreme circumstances.”). But Camfield
relied on longstanding Tenth Circuit precedent established before the
Supreme Court’s decision in Kokkonen, and Camfield does not address or
reference Kokkonen. Further, the issue in Camfield was whether the district
court had the ability to expunge specific identifying information from a police
report, so the more general statement about the expungement of arrest
records or convictions was not central to the Court’s holding and was
therefore dicta.
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8 Opinion of the Court 21-12800
that, post-Kokkonen, no circuit has expressly embraced ancillary
jurisdiction for constitutional expungement requests. 3
Batmasian is indeed correct that several sister circuits have,
however, recognized that ancillary jurisdiction might exist for
constitutional expungements. For example, in United States v.
Field, the Sixth Circuit alluded to this possibility when it rejected
3 Although unclear, Batmasian appears to assert that one circuit has held there
is jurisdiction for constitutional expungement claims. He cites to United
States v. Rowlands, 451 F.3d 173, 178 (3d Cir. 2006), and claims that Rowlands
held that “a district court has the inherent authority to expunge records to
preserve basic legal rights.” This argument is disingenuous, as Rowlands was
an equitable expungement case where the Third Circuit held that the district
court had no jurisdiction over the appellant’s motion for an equitable
expungement. Id. at 179. Specifically, the defendant in Rowlands argued that
the Third Circuit had jurisdiction over his expungement motion based on the
Third Circuit’s statement in United States v. Noonan, 906 F.2d 952, 956 (3d
Cir. 1990), that, “a federal court has the inherent power to expunge an arrest
and conviction record.” Id. at 176. The Third Circuit explained in Rowlands
that the defendant had taken the statement from Noonan out of context,
noting that in Noonan the Court held that it had jurisdiction over
expungement motions in certain narrow circumstances, which were not
present in Noonan’s case. Id. at 177. Importantly, Noonan was decided in
1990, four years before Kokkonen, and, as the Rowlands Court noted, “the
cases upon which Noonan relied support[ted] [its subsequent] conclusion [in
Rowlands] that [it had] jurisdiction over petitions for expungement in narrow
circumstances: where the validity of the underlying proceeding is being
challenged.” Id. And while the Rowlands Court did state that it might have
jurisdiction in such situations, the Court ultimately held that there was no
jurisdiction over the appellant’s expungement motion, so its statement
regarding Noonan was dicta. Further, while Rowlands was decided after
Kokkonen, it does not address or reference Kokkonen.
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an appellant’s request to invoke ancillary jurisdiction for an
equitable expungement, stating that, “post-Kokkonen, federal
courts lack ancillary jurisdiction over motions for expungement
based on purely equitable considerations, yet retain ancillary
jurisdiction over motions challenging an unconstitutional
conviction.”4 756 F.3d 911, 916 (6th Cir. 2014). But the Sixth
Circuit went on to clarify that, even where an expungement
motion “challenges an unconstitutional conviction or illegal
arrest,” such situations nonetheless require the application of the
Kokkonen framework—that is, “the assertion of ancillary
jurisdiction must enable the court to ‘manage its proceedings,
vindicate its authority, and effectuate its decrees.’” Id. (quoting
Kokkonen, 511 U.S. at 380).
In line with that approach, we hereby apply Kokkonen to
Batmasian’s request for a constitutional expungement. Since the
proceedings from Batmasian’s underlying tax offense—the offense
for which Batmasian brings his expungement claim—concluded
4 The Eighth and Ninth Circuits have each similarly noted a possible avenue
for a constitutional expungement of an unconstitutional arrest or conviction
through a district court’s ancillary jurisdiction in cases where they expressly
disclaimed any ancillary jurisdiction for equitable expungement motions. See
Meyer, 439 F.3d at 861–62 (“A district court may have ancillary jurisdiction to
expunge criminal records in extraordinary cases to preserve its ability to
function successfully by enabling it to correct an injustice caused by an illegal
or invalid criminal proceeding.”); Sumner, 226 F.3d at 1014 (“[A] district
court’s ancillary jurisdiction is limited to expunging the record of an unlawful
arrest or conviction . . . .”).
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more than a decade ago, the invocation of ancillary jurisdiction for
an expungement of his record so that he can more easily donate to
charity is not necessary “to permit disposition by a single court of
claims that are, in varying respects and degrees, factually
interdependent,” nor is it necessary for the court to “manage its
proceedings, vindicate its authority, and effectuate its decrees.”
Kokkonen, 511 U.S. at 379–80.
We also agree with Field that the only way ancillary
jurisdiction might exist for a constitutional expungement is where
the motion challenges an arrest or conviction as unconstitutional.
Batmasian is making no such challenge. Thus, Batmasian is
incorrect that we have ancillary jurisdiction over his so-called
constitutional expungement claim based on First Amendment
grounds.
Seemingly as a fallback, Batmasian points to broad language
from several circuits that, he appears to argue, suggests that the
Constitution may directly provide jurisdiction for an
expungement, outside the realm of ancillary jurisdiction. See
Wahi, 850 F.3d at 303 (“Expungement authority must . . . have a
source in the Constitution or statutes.”); Meyer, 439 F.3d at 861
(holding that a district court did not have jurisdiction to expunge a
defendant’s criminal record where he did not allege that his
“conviction was in any way invalid or illegal nor did he rely on any
Constitutional provision or statute authorizing . . . a district court
. . . to expunge his criminal conviction”); Sumner, 226 F.3d at 1010
(explaining that a district court has the authority to expunge a
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21-12800 Opinion of the Court 11
criminal record where a statute “or the Constitution itself”
otherwise provide for such authority). However, despite these
cursory mentions, no court has ever held that the Constitution
directly provides jurisdiction to hear any expungement motions.
As best as we can tell, these circuits are simply rephrasing the
requirement that federal courts “possess only that power
authorized by Constitution and statute.” Kokkonen, 511 U.S. at
377. Thus, these courts are not opening up ancillary jurisdiction to
all expungement motions based on some unspecified constitutional
provision. As such, even if Batmasian was correct that his
conviction impaired his “First Amendment rights,”5 the
Constitution nonetheless does not provide the requisite
jurisdiction for the district court to hear his expungement motion.
In sum, no court has ever recognized ancillary jurisdiction
over a constitutional expungement where the alleged
constitutional violation was the natural result of an otherwise valid
arrest or conviction. We do not do so today. Because Batmasian
5 While we cannot reach the merits of Batmasian’s claim, we note that he fails
to identify a government action that inhibits this First Amendment right. See
Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (“[T]he
Free Speech Clause prohibits only governmental abridgement of speech.”)
Instead, any impediments he may face stem from the actions of private
parties—both the decisions of private charities and foundations and his own
illicit behavior that led to his conviction for the tax offense. Without an
unconstitutional government action, there can be no violation of the First
Amendment.
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has not satisfied Kokkonen, we do not have ancillary jurisdiction
over his expungement claim.
III. Conclusion
Although the district court correctly noted that it lacked the
requisite ancillary jurisdiction to hear Batmasian’s expungement
motion, it ultimately impermissibly evaluated and denied the
motion on the merits. Accordingly, we vacate the district court’s
decision and remand with instructions to dismiss Batmasian’s
expungement motion for lack of subject-matter jurisdiction.
VACATED AND REMANDED.