Trial News

A military officer’s claim of sexual assault against a former general is not barred by the Feres doctrine, the Ninth Circuit has ruled. (Spletstoser v. Hyten, 2022 WL 3270627 (9th Cir. Aug. 11, 2022).) In an issue of first impression, the court held that the alleged facts did not satisfy the four-factor test it applies to determine whether a tortious act falls within Feres’s prohibition on claims that are caused by or “incident to military service.”

Kathryn Spletstoser was a colonel in the U.S. Army assigned to the United States Strategic Command, along with U.S. Air Force General John Hyten. In 2017, Spletstoser and Hyten attended a conference hosted by the Reagan Presidential Library in California. Military personnel were a minority of the attendees, and the military had no control over who was invited or the event itself. Spletstoser and Hyten stayed at a hotel that was open to the general public.

Spletstoser alleges that one evening, Hyten knocked on the door of her private hotel room while she was getting ready for bed. He was not wearing his military uniform, and they did not discuss any military business. Instead, she claimed, Hyten restrained her and sexually assaulted her.

Spletstoser brought seven California state law claims against Hyten, including for sexual battery and assault, and against the federal government in the Central District of California. The defendants moved to dismiss, arguing that the Feres doctrine bars the claims. Arising from the U.S. Supreme Court’s decision in Feres v. United States (340 U.S. 135 (U.S. 1950)), this doctrine bars claims against the federal government that are deemed to be caused by or “incident to military service” that would otherwise be allowed under the broad waiver of sovereign immunity granted by the Federal Tort Claims Act. The district court denied the defendants’ motion to dismiss, finding that Feres does not bar the plaintiff’s claims. The Ninth Circuit affirmed.

To determine whether the Feres doctrine applied, the Ninth Circuit considered factors from Johnson v. United States. (704 F.2d 1431 (9th Cir. 1983).) The Johnson factors analyze the facts of the case in relation to four areas: where the tortious act occurred, the plaintiff’s duty status when the act occurred, the benefits the plaintiff received as a result of her duty status, and the nature of the activities when the tortious act occurred.

The court here found that all four factors weighed against applying the Feres doctrine to the plaintiff’s claims. First, the alleged assault happened at a hotel that was open to members of the military and the general public—the military had no control over security at the hotel. Second, while the plaintiff was on active duty, the incident occurred during her personal time while she was preparing to go to sleep in her private hotel room and was not expecting any visitors.

The court also found against the third factor—which is based on “whether a service member has access to an on-base or government-sponsored activity, event, or service, to the exclusion of the civilian public.” While the plaintiff was at the hotel because she was attending a conference on behalf of a government agency, anyone could have booked a room in the hotel, and she was in her private room when the alleged assault occurred.

Finally, as to the fourth factor, the court concluded that the facts “weighed heavily against” applying Feres, finding that “it is unimaginable that [the] plaintiff would have been ‘under orders’ to submit to [the defendant’s] sexual advances,” and the incident could in no way be construed as incident to her military service. Instead, she was in the same position as any civilian would be under the same set of facts.

The Ninth Circuit also noted that despite how expansive the Feres doctrine has become in jurisprudence, in the sexual assault context, “such an egregious intentional tort creates circumstances that are far different from Feres cases that have dealt with” other military topics such as missions, training, military-sponsored recreational activities, and medical negligence. “[W]e ‘cannot fathom’ how the alleged sexual assault in this case could ever be considered an activity ‘incident to [military] service,’” the court said.

Former Air Force Col. Don Christensen, the current president of Protect Our Defenders in Alexandria, Va., which filed an amicus brief in support of the plaintiff, said, “For years, the federal government and the military have used the Feres doctrine to shield themselves from survivors seeking justice. The fact that they have unabashedly classified sexual assault as ‘incident to service’ is an embarrassment and speaks to the deep-rooted and widespread culture of sexual assault in the armed forces. [This] decision has the potential to open the door for thousands of military sexual assault survivors to fight back and seek the compensation they are rightfully owed.”