UNITED STATES COU RT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ LEMUEL CLAYTON BRAY, Plaintiff - Appellant, and KAZUKO HAYASHI BRAY, Plaintiff,

v. UNITED STATES OF AMERICA, Defendant - Appellee. No. 18-8051 (2:17-CV-00206-NDF) (D. Wyo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , BACHARACH , and PHILLIPS , Circuit Judges.

________________ _________________ This appeal involves claims agai nst the federal government for negligent medical treatment at th e Veterans Administration Hosp ital in

* Oral argument would no t 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); Tent h Cir. R. 34.1(G). This order and judgme nt does not constitut e binding precedent except under the doctrines of law of the case, res judicata, and colla teral estoppel. But our order and judg ment may be cited fo r its persuasive valu e if otherwise appropriate. See Fed. R. App. P. 32.1(a); Tenth Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### March 7, 2019
Elisabeth A. Shumaker Clerk of Court2 1969, 1990, and 1992. The claims w ere brought by M r. Bray (who is a military veteran) and his spouse . The district court dismissed the original complaint for lack of subject-ma tter jurisdiction. But in an am ended complaint, Mr. Bray’s spouse was dropped as a plaintiff. The di strict court again ordered dismissa l, relying this time on the Feres Doctrin e, failure to state a valid claim under California law , and timeliness. We af firm. Ms. Bray’s Claims In their notice of a ppeal, the plaintiffs i nclude Ms. Bray as a n appellant. She was a party to th e original complaint, but not t he amended complaint. So we assume that Ms. Bray is ap pealing the dismissa l of her claims in the original complaint. That dismissal was based on a lac k of subject-matter jurisdicti on over Ms. Bray’s clai ms. Because the claims were brought against the federal government, the distric t court found that the Federal T ort Claims Act applied. 28 U.S.C. § 2674. This statute permits jurisdictio n 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 Ci r. 2017) (stating that the exhaustion requirem ent in 28 U.S.C. § 2675(a) is jurisdicti onal). The district court con cluded that Ms. Bray had failed to exhaus t available remedies and relied on this jurisd ictional requiremen t to dismiss her claims. We engage in de novo review. U.S. West, Inc. v. Tristani , 182 F.3d 1202, 1206 (1 0th Cir. 1999).3 Ms. Bray has supplied us with no reason to question the distric t 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 C laims Act’s jurisdictional requirements). W e thus affirm the dismissal of M s. Bray’s claims for lack of subje ct-matter jurisdiction. Mr. Bray’s Claims The district court also dismisse d Mr. Bray’s claims in the amen ded complaint based on the application of the Feres Doctrine, the f ailure to allege a cognizable cla im under Calif ornia law, and the expirat ion of the statute of limitations. Mr. Bray challenges these grounds for t he decision, but we agree with the distr ict court’s reasoning. The “Feres Doctrine” is the name given to a holdi ng by the Supr eme Court in Feres v. United States , 340 U.S. 135 ( 1950). There the Court held that the federal gover nment does not incur liability under the Federal Tort Claims Act for a serviceman’s inj uries that arise out of his mi litary service. 340 U.S. at 146. The Feres Doctrine app lies to the claims involving Mr. Bray’s 1 969 injuries because these claims a rose out of his military service . Mr. Bray argues that the Feres Doctrine is unconstitutional “because Sec tion 8 of Article I is modifie d by the 5th Amendmen t, 7th Amendment, and 14th4 Amendment.” Appellant’s Opening Br. at 20. But he does not expl ain 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 ch allenge. See Labash v. U.S. Dep’t of the Army , 668 F.2d 1153, 1156 (10th Cir. 1982) (“Although many courts have expr essed reservations about the co ntinuing validity of the broad Feres Doctrine, only the United States Su preme 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 a pplies because (1) the underlying act occurred in California and (2) t he Federal Tort Claims Act determines lia bility accor ding to the law where the act or omission occurre d. 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 t his conclusion, we engage in de novo review, Slater v. A.G. Edwards & Sons,

1 Because Mr. Bray appears pro s e, we liberally c onstrue his ap peal brief. Yang v. Archuleta , 525 F.3d 925, 927 n.1 ( 10th Cir. 2008). But we cannot act as his advocate or c onstruct arguments for him. Id.5 Inc. , 719 F.3d 1190, 1196 (10th Cir. 2013), and agree with the dist rict court’s reasoning. Mr. Bray also claimed that VA personnel had covered up their wrongdoing by entering a false diagnosis in 1992. But the distr ict court reasoned that Mr. Bray had faile d to state how he was injured b y the false diagnosis or why the di agnosis had fallen be low the applicable standard of

care. In his appeal brief, Mr. Bray aga in fails to state how the dist rict court erred in rejecting his argument involving a false diagnos is. Though he proceeds pro se, we cannot serv e as Mr. Bray’s advocate or c reate arguments for him. See note 1, above. And Mr. Bra y 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 ag ain engage in de novo review. See id

. After the alleged wr ongdoing occurred, Mr. B ray had two years t o bring an administrative claim and six years to sue. 28 U.S.C. § 2401(a)– (b). The wrongdoing al legedly took place in 1969, 1990, and 199 2. But Mr. Bray waited

 until 2016 to bri ng an administrative claim and

 until 2017 to sue. The district court con cluded that Mr. Bray’ s claims had accrued by
1990 or 1991 at the latest. But even if we were to base accrual on later6 events, Mr. Bray has not provided a reason to justify delay unt il 2016 (for his administrative claim) or 2017 (for his fili ng of a lawsuit)

. To avoid a time-bar, Mr. Bray urges equitable tolling. To preva il on this theory, Mr. Bray needed to prove that he had acted diligen tly and was unable to file in a ti mely fashion because o f extraordinary cir cumstance. Barnes v. United States , 776 F.3d 1134, 1150 (10th Cir. 2015). He has not satisfied this burden. By 1990 o r 1991, Mr. Bray had come to be lieve that the VA had mistreated him. But he waited until 2016 to submit a n administrative claim. Waiting un til 2016 was far too late, so w e agree with the district court that th e claims wer e untimely. According to Mr. Bray , he suffers from a l egal disability. But he has not submitted any evidence of le gal incompetency. Indeed, he id entifies seven other lawsuits that he filed betwee n 1988 and 2011 . We th us conclude that this theory was properly rejected in district cou rt. 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 F ourteen. But he does not explain how these constitutional provisions wou ld have rendered the Federal Tort Cla ims Act unconstitutional.

2 Mr. Bray also challenges the c onstitutionality of the congres sional ceiling on debt. But he does not explain how the debt ceiling a ffected himself or the district court’s ruling.7 Though Mr. Bray appears pro se, we cannot construct arguments f or him ( see note 1, above), and these constit utional provisions do not invalidate the Federal Tort Claims Act. They could not do so be cause the government (as a sovereign) has the absolute authority to restr ict 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 treatmen t and adjudication of benefits . But these records would not affect th e 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 jurisdicti on, however, is limited by the rulings in the Brays’ notice of appeal. We th us deny this motion.

Entered for the Court

Robert E. Bacharach Circuit Judge