                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                JUNE 13, 2005
                               No. 04-16292                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                   D. C. Docket No. 04-01833-CV-T-30EAJ

HENRY M. RACZKOWSKI,


                                                            Plaintiff-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                            Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                               (June 13, 2005)


Before ANDERSON, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

     Henry Raczkowski appeals pro se the district court’s dismissal for lack of
subject matter jurisdiction of his claim under the Federal Tort Claims Act

(“FTCA”), 42 U.S.C. § 1346, arising out of the Social Security Administration's

(“SSA’s”) determination and recoupment of old-age insurance benefits. The crux

of Raczkowski’s claim rests on his contention that the Social Security Act (“the

Act”) contains no provision prohibiting FTCA claims, since the FTCA covers

“negligent and wrongful acts by any employee of the government.” Furthermore,

Raczkowski maintains that his complaint is not grounded in social security law,

and thus, should not be barred.

      We review a district court’s grant of a motion to dismiss for lack of subject

matter jurisdiction de novo. Mexiport, Inc. v. Frontier Communications Services,

Inc., 253 F.3d 573, 574 (11th Cir. 2001).

      The Act provides both a means of judicial review of the Commissioner’s

determinations and a bar on FTCA claims. Section 405(g) of the Act states that:

             Any individual, after any final decision of the Commissioner of
             Social Security made after a hearing to which he was a party,
             irrespective of the amount in controversy, may obtain a review
             of such decision by a civil action commenced within sixty days
             after the mailing to him of notice of such decision or within
             such further time as the Commissioner of Social Security may
             allow. Such action shall be brought in the district court of the
             United States for the judicial district in which the plaintiff
             resides . . ..

42 U.S.C. § 405(g).



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Moreover, § 405 (h) of the Act provides, in part, that:

             The findings and decision of the Commissioner of Social

             Security after a hearing shall be binding upon all individuals

             who were parties to such hearing. No findings of fact or

             decision of the Commissioner of Social Security shall be

             reviewed by any person, tribunal, or governmental agency

             except as herein provided. No action against the United States,

             the Commissioner of Social Security, or any officer or employee

             thereof shall be brought under section 1331 or 1346 of Title 28

             to recover on any claim arising under this subchapter.

42 U.S.C. § 405(h) (emphasis added). The referred to federal jurisdictional

statute § 1331 of Title 28 provides that “[t]he district courts shall have

original jurisdiction of all civil actions arising under the Constitution, laws,

or treaties of the United States.” 28 U.S.C. § 1331. Section 1346(b)(1), the

FTCA, gives the district courts original jurisdiction for “civil actions on

claims against the United States, for money damages . . . for injury or loss of

property . . . caused by the negligent or wrongful act or omission of any

employee of the Government while acting within the scope of his office or

employment with the United States . . ..” 28 U.S.C. § 1346(b)(1).



                                        3
      The Supreme Court has issued two decisions that held that § 405(h)

bars social security benefits cases with jurisdictional grounding in 42 U.S.C.

§ 1331. In Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457 (1975), the

Supreme Court held the district court erred when it found it had jurisdiction

under § 1331 to hear a widow and her child’s social security claims, after the

SSA denied them survivor’s benefits. Salfi, 422 U.S. at 753, 95 S.Ct. at

2461. In examining the third sentence of § 405(h), the Court concluded that

the district court had erroneously ignored the statute’s plain language in its

too narrow interpretation. Id. at 758, 95 S.Ct. at 2464.

      Several years later, in Shalala v. Illinois Council on Long Term Care,

Inc., 529 U.S. 1, 120 S.Ct. 1084 (2000), the Supreme Court reiterated its

position that § 405(h) prevents plaintiffs from bringing suit in district court

under § 1331 and seeking redress for a denial of social security benefits.

Shalala, 529 U.S. at 5, 10, 120 S.Ct. at 1089, 1092 (revisiting the issue in the

context of a complaint brought against the Department of Health and Human

Services under 42 U.S.C. § 1395ii, which incorporated § 405(h)6 of the

Act). In examining the more recent version of § 405(h), the Court noted that

its third sentence excluded jurisdiction under § 1346 as well, and held that

the section’s language “to recover on any claim arising under” undoubtedly



                                        4
references the usual social security claim “where an individual seeks a

monetary benefit from the agency.” Id. at 10, 120 S.Ct. at 1092 (emphasis in

original).

       We conclude that because Raczkowski’s claim is one arising under

the Act, § 405(h) bars him from asserting jurisdiction under the FTCA, and

the district court did not err when it dismissed his complaint for lack of

subject matter jurisdiction. Moreover, while § 405(g) provides a remedy for

Raczkowski to advance his claim administratively, because more than 60

days have elapsed from the issuance of the SSA's final denial of benefits,

this remedy is not available to him even if his complaint was construed as

arising under it. Accordingly, we affirm.

       AFFIRMED.




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