United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1620

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Lloyd Goings, an individual, *

*

Appellant, * Appeal from the United States

* District Court for the

v. * District of South Dakota.

*

United States of America, * [UNPUBLISHED]

*

Appellee. *

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Submitted: June 19, 2008

Filed: July 18, 2008

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Before BYE, SMITH, and BENTON, Circuit Judges.

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PER CURIAM.

Lloyd Goings appeals the district court’s adverse grant of summary judgment

in his Federal Tort Claims Act (FTCA) lawsuit. 

In his verified complaint, Goings, a Vietnam veteran, alleged that the

Department of Veterans Affairs (VA) had lost his medical records from 1970 through

1992, thereby causing his claim for social security disability insurance benefits to be

denied. The district court granted summary judgment in favor of the United States,

explaining, inter alia, that it could not determine whether the administrative law judge

(ALJ) had denied Goings disability benefits due to the absence of his medical records.
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After careful review, we conclude that the district court lacked subject matter

jurisdiction to hear Goings’s FTCA claim. See 42 U.S.C. § 405(h) (no findings of fact

or decision of Commissioner of Social Security shall be reviewed by any person,

tribunal, or governmental agency except as herein provided; no action against United

States shall be brought under 28 U.S.C. § 1346 to recover on any claim arising under

this subchapter); cf. Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 5, 10

(2000) (concluding that § 405(h) barred federal-question jurisdiction in case

challenging Medicare-related regulations; § 405(h) purports to make exclusive judicial

review method set forth in statute). We hold that Goings’s claim was precluded by

section 405(h) because it required the district court to review the ALJ’s decision and

determine whether the absence of his medical records affected the outcome. Cf. Rosen

v. Walters, 719 F.2d 1422, 1422-25 (9th Cir. 1983) (affirming dismissal of veteran’s

action under Privacy Act for damages stemming from denial of VA disability benefits;

veteran alleged that VA or some other agency destroyed his medical records, thereby

making it impossible to show that ailment was service-related; court concluded that

claim would require type of judicial review over VA decisions that was precluded by

statute because it would involve review of prior adverse VA decision to determine

whether absence of evidence affected result, and, if so, court must then act as VA

itself in order to determine what correct award would have been); Quarles v. United

States, 731 F. Supp. 428, 429, 431-32 (D. Kan. 1990) (applying rationale of Rosen and

dismissing FTCA claim brought by veteran; veteran alleged that United States

negligently destroyed his medical records, which prevented him from proving

illnesses were service-related for purposes of disability benefits from VA).

Accordingly, we vacate the district court’s grant of summary judgment, and we

remand the case to the district court with instructions to dismiss the complaint for lack

of subject matter jurisdiction. In addition, Goings’s pending motions are denied.

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