Abraham Melawer v. United States , 341 F. App'x 83 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 13, 2009
No. 09-20183 Charles R. Fulbruge III
Summary Calendar Clerk
ABRAHAM MELAWER
Plaintiff-Appellant
v.
UNITED STATES OF AMERICA
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
No. 4:08-CV-3056
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff Abraham Melawer filed suit against the United States seeking
expungement of records related to his arrest and conviction in 1998. The district
court dismissed the complaint for lack of jurisdiction, and Melawer now appeals.
For the following reasons, we affirm.
“A case is properly dismissed for lack of subject matter jurisdiction when
the court lacks the statutory or constitutional power to adjudicate the case.”
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 09-20183
Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th
Cir.1998). Absent specific statutory authority, the scope of a district court’s
power to order expungement of executive-branch records is narrow: “In order to
have standing to seek expungement, the party seeking expungement against
executive agencies must assert an affirmative rights violation by the executive
actors holding the records of the overturned conviction.” Sealed Appellant v.
Sealed Appellee, 130 F.3d 695, 699 (5th Cir. 1997); see United States v. McLeod,
385 F.2d 734, 750 (5th Cir. 1967) (ordering expungement where state officials
were intentionally using arrest records to prevent minorities from voting).
Here, Melawer alleges only that the existence of the records creates
certain personal burdens, such as added delays in renewing his various licenses.
Because Melawer has failed to (1) identify an independent statutory basis for his
request or (2) to allege an “affirmative rights violation” by the executive actors
holding his records, the district court properly declined to exercise jurisdiction.
See Sealed Appellant, 130 F.3d at 699.
AFFIRMED.
2