                                                               FILED
                                                   United States Court of Appeals
                    UNITED STATES COURT OF APPEALS         Tenth Circuit

                         FOR THE TENTH CIRCUIT                      March 7, 2019
                       _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
LEMUEL CLAYTON BRAY,

       Plaintiff - Appellant,

and
                                                    No. 18-8051
KAZUKO HAYASHI BRAY,                           (2:17-CV-00206-NDF)
                                                     (D. Wyo.)
       Plaintiff,

v.

UNITED STATES OF AMERICA,

       Defendant - Appellee.
                    _________________________________

                             ORDER AND JUDGMENT *
                       _________________________________

Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges.
                _________________________________

      This appeal involves claims against the federal government for

negligent medical treatment at the Veterans Administration Hospital in


*
     Oral argument would not materially aid our consideration of the
appeal, so we have decided the appeal based on the briefs. See Fed. R.
App. P. 34(a)(2); Tenth Cir. R. 34.1(G).

     This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); Tenth Cir. R. 32.1(A).
1969, 1990, and 1992. The claims were brought by Mr. Bray (who is a

military veteran) and his spouse. The district court dismissed the original

complaint for lack of subject-matter jurisdiction. But in an amended

complaint, Mr. Bray’s spouse was dropped as a plaintiff. The district court

again ordered dismissal, relying this time on the Feres Doctrine, failure to

state a valid claim under California law, and timeliness. We affirm.

Ms. Bray’s Claims

     In their notice of appeal, the plaintiffs include Ms. Bray as an

appellant. She was a party to the original complaint, but not the amended

complaint. So we assume that Ms. Bray is appealing the dismissal of her

claims in the original complaint.

     That dismissal was based on a lack of subject-matter jurisdiction

over Ms. Bray’s claims. Because the claims were brought against the

federal government, the district court found that the Federal Tort Claims

Act applied. 28 U.S.C. § 2674. This statute permits jurisdiction only if the

plaintiff exhausts available administrative remedies. 28 U.S.C. § 2675(a);

see Lopez v. United States, 823 F.3d 970, 976 (10th Cir. 2017) (stating that

the exhaustion requirement in 28 U.S.C. § 2675(a) is jurisdictional).

     The district court concluded that Ms. Bray had failed to exhaust

available remedies and relied on this jurisdictional requirement to dismiss

her claims. We engage in de novo review. U.S. West, Inc. v. Tristani, 182

F.3d 1202, 1206 (10th Cir. 1999).

                                      2
      Ms. Bray has supplied us with no reason to question the district

court’s conclusion that she failed to administratively exhaust her claims.

See Haceesa v. United States, 309 F.3d 722, 734 (10th Cir. 2002) (stating

that each claimant must individually satisfy the Federal Tort Claims Act’s

jurisdictional requirements). We thus affirm the dismissal of Ms. Bray’s

claims for lack of subject-matter jurisdiction.

Mr. Bray’s Claims

      The district court also dismissed Mr. Bray’s claims in the amended

complaint based on the application of the Feres Doctrine, the failure to

allege a cognizable claim under California law, and the expiration of the

statute of limitations. Mr. Bray challenges these grounds for the decision,

but we agree with the district court’s reasoning.

      The “Feres Doctrine” is the name given to a holding by the Supreme

Court in Feres v. United States, 340 U.S. 135 (1950). There the Court held

that the federal government does not incur liability under the Federal Tort

Claims Act for a serviceman’s injuries that arise out of his military

service. 340 U.S. at 146.

      The Feres Doctrine applies to the claims involving Mr. Bray’s 1969

injuries because these claims arose out of his military service. Mr. Bray

argues that the Feres Doctrine is unconstitutional “because Section 8 of

Article I is modified by the 5th Amendment, 7th Amendment, and 14th



                                      3
Amendment.” Appellant’s Opening Br. at 20. But he does not explain this

contention. 1

      The Feres Doctrine is based on a Supreme Court decision, which

binds us and requires us to reject Mr. Bray’s constitutional challenge. See

Labash v. U.S. Dep’t of the Army, 668 F.2d 1153, 1156 (10th Cir. 1982)

(“Although many courts have expressed reservations about the continuing

validity of the broad Feres Doctrine, only the United States Supreme Court

can overrule or modify Feres.”), quoted with approval in Ortiz v. United

States ex rel Evans Army Comm. Hospital, 786 F.3d 817, 823 (10th Cir.

2015).

      In dismissing Mr. Bray’s claims, the district court relied not only on

the Feres Doctrine but also on California law. California law applies

because (1) the underlying act occurred in California and (2) the Federal

Tort Claims Act determines liability according to the law where the act or

omission occurred. 28 U.S.C. § 1346(b)(1).

      Applying California law, the district court concluded that Mr. Bray

had failed to identify the applicable standard of care or state how the VA

Hospital had failed to comply with that standard of care. For this

conclusion, we engage in de novo review, Slater v. A.G. Edwards & Sons,


1
       Because Mr. Bray appears pro se, we liberally construe his appeal
brief. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). But we
cannot act as his advocate or construct arguments for him. Id.

                                      4
Inc., 719 F.3d 1190, 1196 (10th Cir. 2013), and agree with the district

court’s reasoning.

        Mr. Bray also claimed that VA personnel had covered up their

wrongdoing by entering a false diagnosis in 1992. But the district court

reasoned that Mr. Bray had failed to state how he was injured by the false

diagnosis or why the diagnosis had fallen below the applicable standard of

care.

        In his appeal brief, Mr. Bray again fails to state how the district

court erred in rejecting his argument involving a false diagnosis. Though

he proceeds pro se, we cannot serve as Mr. Bray’s advocate or create

arguments for him. See note 1, above. And Mr. Bray has given us no reason

to question the district court’s reasoning.

        The district court also concluded that the claims were untimely. For

this part of the ruling, we again engage in de novo review. See id.

        After the alleged wrongdoing occurred, Mr. Bray had two years to

bring an administrative claim and six years to sue. 28 U.S.C. § 2401(a)–

(b). The wrongdoing allegedly took place in 1969, 1990, and 1992. But Mr.

Bray waited

             until 2016 to bring an administrative claim and

             until 2017 to sue.

        The district court concluded that Mr. Bray’s claims had accrued by

1990 or 1991 at the latest. But even if we were to base accrual on later
                                        5
events, Mr. Bray has not provided a reason to justify delay until 2016 (for

his administrative claim) or 2017 (for his filing of a lawsuit).

      To avoid a time-bar, Mr. Bray urges equitable tolling. To prevail on

this theory, Mr. Bray needed to prove that he had acted diligently and was

unable to file in a timely fashion because of extraordinary circumstance.

Barnes v. United States, 776 F.3d 1134, 1150 (10th Cir. 2015). He has not

satisfied this burden. By 1990 or 1991, Mr. Bray had come to believe that

the VA had mistreated him. But he waited until 2016 to submit an

administrative claim. Waiting until 2016 was far too late, so we agree with

the district court that the claims were untimely.

      According to Mr. Bray, he suffers from a legal disability. But he has

not submitted any evidence of legal incompetency. Indeed, he identifies

seven other lawsuits that he filed between 1988 and 2011. We thus

conclude that this theory was properly rejected in district court. 2

      Mr. Bray also states that the Federal Tort Claims Act is

unconstitutional under limitations on sovereignty contained in the

Constitution’s Article I and Amendments Seven, Nine, Ten, and Fourteen.

But he does not explain how these constitutional provisions would have

rendered the Federal Tort Claims Act unconstitutional.


2
      Mr. Bray also challenges the constitutionality of the congressional
ceiling on debt. But he does not explain how the debt ceiling affected
himself or the district court’s ruling.

                                       6
     Though Mr. Bray appears pro se, we cannot construct arguments for

him (see note 1, above), and these constitutional provisions do not

invalidate the Federal Tort Claims Act. They could not do so because the

government (as a sovereign) has the absolute authority to restrict its

liability. Lynch v. United States, 292 U.S. 571, 581-82 (1934).

     Affirmed.

                                    * * *

     Mr. Bray also filed two motions.

     In the first motion, he seeks to obtain his records of treatment and

adjudication of benefits. But these records would not affect the reasons for

our disposition, so we deny this motion.

     Mr. Bray’s second motion is to amend his petition for review,

seeking to add unrelated matters to this appeal. Our jurisdiction, however,

is limited by the rulings in the Brays’ notice of appeal. We thus deny this

motion.


                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




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