                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               November 29, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                           FOR THE TENTH CIRCUIT


    DOUGLAS GREGORY BORK,

               Plaintiff-Appellant,
                                                       No. 10-6262
    v.                                          (D.C. No. 5:10-CV-00721-R)
                                                       (W.D. Okla.)
    STEPHEN M. CARROLL, Lt.
    Colonel; GREGORY S. FORD,
    Colonel; DERAL ADAMS, Sergeant
    Major; LEON E. PANETTA, *
    Secretary of Defense,

               Defendants-Appellees.


                           ORDER AND JUDGMENT **


Before KELLY, GORSUCH, and MATHESON, Circuit Judges.


         Douglas Gregory Bork, a member of the United States Army Reserve,

wants to challenge personnel decisions made by his sergeant, superior officers,


*
      Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Defendant-Appellee Leon E. Panetta, sworn in on July 1, 2011, is substituted for
Robert Gates as the Secretary of Defense.
**
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and the Secretary of Defense. Mr. Bork seeks to sue those individuals in their

official capacities and to have us enjoin their putatively unlawful actions. The

district court dismissed Mr. Bork’s claims for lack of subject matter jurisdiction,

however, and it was right to do so.

      Absent an express waiver of sovereign immunity, federal courts lack

jurisdiction to entertain suits against the United States and its officers acting in

their official capacities — at least when the government raises the issue. See

Wyoming v. United States, 279 F.3d 1214, 1225 (10th Cir. 2002). And only

Congress, not the courts, can consent to suits against the United States. United

States v. Shaw, 309 U.S. 495, 502 (1940) (“It is not our right to extend the waiver

of sovereign immunity more broadly than has been directed by the Congress.”).

So it is that a plaintiff seeking to invoke the jurisdiction of the federal courts

bears the burden of identifying an applicable statutory waiver of sovereign

immunity when challenged to do so. See Marcus v. Kan. Dep’t of Revenue,

170 F.3d 1305, 1309 (10th Cir. 1999).

      And it is here where Mr. Bork stumbles. The government denies the

existence of any applicable waiver of sovereign immunity. Before us, Mr. Bork

replies that this suit is permitted under Feres v. United States, 340 U.S. 135

(1950). But Feres arose under the Federal Tort Claims Act, an Act of Congress

that contains an express statutory waiver of sovereign immunity. Meanwhile,

Mr. Bork does not seek to bring an FTCA claim in this case. And Mr. Bork’s

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difficulties are compounded by the fact Feres proceeded to hold — despite the

FTCA’s language suggesting a waiver of immunity — that FTCA suits for injuries

“aris[ing] out of or . . . in the course of activity incident to service,” remain

beyond the purview of the federal courts as a prudential matter. Id. at 146. If

anything, then, Feres narrowed, not expanded, the scope of a statutory waiver of

immunity. In the years since it was decided, Feres has been extended beyond the

FTCA context to other arenas, but in every instance it has always acted as an

additional prudential bar to otherwise permissible lawsuits — not as a sort of

extra-statutory, judicially-mandated waiver of sovereign immunity, as Mr. Bork

supposes.

      Neither, contrary to Mr. Bork’s argument on appeal, does Walden v.

Bartlett, 840 F.2d 771 (10th Cir. 1987), alter any of this. Walden considered only

the question whether Feres’s prudential doctrine should be extended again to bar

the claims at issue before the court at that time. Walden did not address the

separate and independently significant question whether a statutory waiver of

sovereign immunity existed sufficient to encompass those claims. Neither could

Walden be reasonably read to have passed on the sovereign immunity question by

implication or through its silence on the subject. After all, it is a fundamental

precept of our legal order that “the existence of unaddressed” potential

“jurisdictional defects has no precedential effect” barring their consideration in an

appropriate later case. Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996); see also

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Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 91 (1998) (“drive-by

jurisdictional rulings . . . have no precedential effect”). If the rule were

otherwise, any obvious constitutional or statutory limit on our jurisdiction would

be forever ignored simply because no one paused to think of it in the first case.

      Just as it is important to emphasize what Walden didn’t decide, it is equally

important to identify what we are not saying in this appeal. Whether there might

be some other way someone in Mr. Bork’s shoes could invoke the jurisdiction of

the federal courts — say, by relying on the APA’s waiver of sovereign immunity,

5 U.S.C. § 702, or on an exception to federal sovereign immunity, see Wyoming,

279 F.3d at 1225 (discussing Larson v. Domestic & Foreign Commerce Corp.,

337 U.S. 682 (1949)) — we do not need to (and do not) say. It is more than

enough to say, as the district court did before us, that the sovereign immunity

waiver arguments Mr. Bork has tried fail to carry the day. It is, after all, the job

of the courts only to pass on the theories asserting jurisdiction the litigants

advance, not to conjure other possibilities besides. The judgment of the district

court is affirmed.


                                                Entered for the Court



                                                Neil M. Gorsuch
                                                Circuit Judge




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