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
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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