[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-15261

Non-Argument Calendar

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D.C. Docket No. 1:17-cv-00167-MW-GRJ

JOSE SALVADOR MUNOZ, 

 Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA, 

 Defendant-Appellee.

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Appeal from the United States District Court

for the Northern District of Florida

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(June 4, 2018)

Before MARTIN, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:

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Plaintiff-Appellant Jose Salvador Munoz appeals the district court’s 

dismissal of his complaint seeking relief under the Federal Tort Claims Act

(FTCA), 28 U.S.C. § 2671, et seq., as well as expungement of his criminal 

indictment. He contends the district court erred in dismissing his claim for 

monetary damages under the FTCA because the Florida tort of defamation by 

implication provides the necessary state-tort analogue and because the United 

States had a duty to remove his “bogus” indictment from its records. He further 

contends the district court erred by failing to address his request for expungement. 

After review,1 we affirm dismissal of Munoz’s claims under the FTCA, but we 

vacate with respect to the expungement request and remand so the district court 

may address that request in the first instance.

I. BACKGROUND

Munoz is a practicing attorney in Panama. He alleges that, in 1987, the 

United States fraudulently indicted him on drug-related charges to force him to 

cooperate with an investigation into one of his clients. Three years later, after 

realizing Munoz would not reveal confidential attorney-client information, the 

Government moved to dismiss the indictment on grounds that the evidence against 

Munoz no longer existed. The indictment was promptly dismissed.

 1 “We review the legal conclusions underlying a district court’s dismissal of claims under 

Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction de novo, and its 

findings of jurisdictional facts for clear error.” Williams v. Poarch Band of Creek Indians, 839 

F.3d 1312, 1314 (11th Cir. 2016) (footnote omitted).

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24 years later, in 2014, Munoz requested a visa to enter the United States. 

The request was denied because the consular office was aware of information 

indicating Munoz may have been involved in drug trafficking. Munoz attributes 

this denial to records of his “bogus” indictment maintained in federal databases, 

which he asserts were accessed by the consular office as part of a required 

background check.

In July 2017, Munoz sued the United States under the FTCA, seeking $10

million in damages for falsely suggesting he was involved in drug trafficking. His 

damages claim was based on 28 U.S.C. § 534, which he contends places a duty on 

the Government to maintain “accurate” criminal records. The Government 

breached that duty, he argues, by failing to remove from its records the “false 

indictment” issued against him.

In addition to his damages claim, Munoz requested injunctive relief and “an 

order expunging all records of [his] indictment.” In support of the expungement 

request, he cited Menard2 v. Saxbe, 498 F.2d 1017, 1023 (D.C. Cir. 1974) (“The 

judicial remedy of expungement is inherent and is not dependent on express 

statutory provision, and it exists to vindicate substantial rights provided by statute

as well as by organic law.”).

 2 The complaint mistakenly cites the case caption as Tarlton v. Saxbe.

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The Government moved to dismiss the complaint, arguing: (1) the district 

court lacked jurisdiction over the FTCA claims because the United States did not 

waive sovereign immunity; (2) the Government had no duty to remove accurate 

information from its records; (3) the district court lacked jurisdiction to order

expungement; and (4) Munoz failed to allege facts sufficient to warrant 

expungement in any event. More specifically, with respect to the FTCA claims, 

the Government asserted—among other things—that “unless [Munoz] can identify 

a state tort analogue to the alleged breach of a federal statutory duty, the FTCA 

does not apply.”3

 As to expungement, the Government argued the district court 

lacked statutory or ancillary jurisdiction to issue such an order and acknowledged a 

circuit split as to whether expungement could be ordered on equitable grounds. 

 3 This contradicts Munoz’s assertions that the district court “determined sue [sic] sponte

that [Munoz] failed to identify a state tort analogue under the laws of Florida or any other state” 

and that “this was not a ground advanced by the Government for dismissal in its Motion.” Br. of 

Appellant at 14; see also Appellant’s Reply at 3 (“[T]he Government’s Motion to Dismiss was 

not based upon a purported failure by [Munoz] to identify a state tort analogue . . . .”). Indeed, 

Munoz acknowledged in his response to the motion to dismiss that the Government did, in fact, 

raise this argument. USDC Doc. 12 at 6 (“[The Government] contends that the FTCA does not 

waive sovereign immunity for a purely governmental function unless there is a state tort 

analogue, which [Munoz] ‘does not identify’ . . . .”). In addition, Munoz asserts on appeal that

the Government’s motion to dismiss “specifically acknowledged that ‘Mr. Munoz identified such 

a state tort analogue. . . .” Appellant’s Reply at 3. While Munoz’s quote (apart from the 

emphasis added) is technically accurate, it takes an obvious typographical error and presents it as 

a concession. The Government’s very next sentence stated: “In the absence of such a state tort 

analogue, the FTCA’s waiver of sovereign immunity does not apply, and Mr. Munoz’ claim is 

barred.” USDC Doc. 7 at 8. It would be clear to any reasonable person that the Government 

intended to say “Mr. Munoz has not identified such a state tort analogue . . . .” And based on his 

response to the motion to dismiss, Munoz understood precisely what the Government intended to 

say.

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See 13 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal 

Practice and Procedure § 3523.2 (3d ed. 2018) (describing the circuit split).

The district court granted the motion to dismiss for lack of subject-matter 

jurisdiction. It agreed with the Government that sovereign immunity barred 

Munoz’s FTCA claims. With respect to his claim for monetary damages, Munoz 

failed to identify the required state-tort analogue under which a private person 

could be held liable on these facts. Munoz’s claims for injunctive relief were 

barred because the FTCA’s sovereign-immunity waiver applied only to claims for 

monetary damages.

Alternatively, even if sovereign immunity did not bar the FTCA claims,

Munoz’s claims would fail because the Government had no legal duty either to 

remove accurate records of an indictment or to refrain from disseminating those 

records. The district court therefore dismissed Munoz’s claims with prejudice,

without directly addressing Munoz’s request for an order seeking expungement. 

Munoz timely appealed.

II. DISCUSSION

A. FTCA

Munoz first contends the district court erred by concluding his damages 

claim under the FTCA was barred by sovereign immunity. We have explained that 

failing “to perform duties imposed by federal law is insufficient by itself to render 

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the federal government liable under the FTCA.” Zelaya v. United States, 781 F.3d 

1315, 1324 (11th Cir. 2015). Rather, “a state tort cause of action is a sine qua non

of FTCA jurisdiction, and we have dismissed FTCA suits that have pleaded 

breaches of federal duties without identifying a valid state tort cause of action.” Id. 

The district court dismissed Munoz’s damages claims based on its conclusion that 

Munoz failed to identify an applicable state-tort analogue.

Munoz argues on appeal that the Florida tort of defamation by implication 

provides the necessary state-tort analogue. But that argument was not presented to 

the district court, and none of the exceptional circumstances under which “we may

choose to hear” an argument raised for the first time on appeal is present here.

4

 

See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1332 (11th Cir. 2004). 

The argument is therefore waived, and the district court did not err by dismissing 

Munoz’s damages claim for failure to allege an applicable state-tort analogue.

 

 4 Munoz contends an exception is warranted because the issue involves a pure question of 

law, and failing to consider it will result in a miscarriage of justice. See Access Now, Inc. v. Sw. 

Airlines Co., 385 F.3d 1324, 1332 (11th Cir. 2004) (explaining the circumstances under which 

we may choose to hear an argument not presented to the district court). We disagree. Not 

permitting a claim for monetary damages to move forward under the theory that the Government 

had a duty to remove accurate records of a criminal indictment that has not been adjudicated 

invalid is not the sort of “miscarriage of justice” contemplated by the exception. And Munoz’s 

contention that the Government waived the issue by not negating the possibility of an exception 

lacks merit. The Government was not obligated to anticipate and negate every argument Munoz 

might have asserted in response to its suggestion of waiver.

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B. Expungement

The district court did not directly address Munoz’s request for expungement, 

apparently believing the request was grounded in the FTCA and thus barred by 

sovereign immunity. Munoz’s complaint, however, suggested the jurisdictional 

basis for expungement was the district court’s inherent authority. USDC Doc. 1 at 

¶ 1 (citing Menard, 498 F.2d at 1023 (“The judicial remedy of expungement is 

inherent and is not dependent on express statutory provision, and it exists to 

vindicate substantial rights provided by statute as well as by organic law.”)). And

any ambiguity concerning the request’s jurisdictional basis was addressed by the 

parties’ briefing, which squarely presented the issue as whether the district court 

had ancillary or equitable jurisdiction to order expungement. See USDC Doc. 7 at

13–14; USDC Doc. 12 at 17–19.

We therefore vacate the dismissal of Munoz’s expungement request and

remand so the district court may determine in the first instance whether it has 

jurisdiction over such a request.

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III. CONCLUSION

We affirm the dismissal of Munoz’s claims under the FTCA. The dismissal 

of Munoz’s expungement request is vacated, and we remand so the district court 

may address the merits of that request in the first instance.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR 

FURTHER PROCEEDINGS.

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