UNITED STATES COURT 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 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).

FILED 

United States Court of Appeals 

Tenth Circuit 

March 7, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

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).
3 

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 
4 

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.
5 

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 
6 

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. 
7 

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