FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHRYN SPLETSTOSER, as an No. 20-56180
individual,
Plaintiff-Appellee, D.C. No.
2:19-cv-10076-
v. MWF-AGR
JOHN E. HYTEN, as an individual;
UNITED STATES OF AMERICA, OPINION
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted January 10, 2022
Pasadena, California
Filed August 11, 2022
Before: Johnnie B. Rawlinson and Consuelo M. Callahan,
Circuit Judges, and Frederic Block,* District Judge.
Opinion by Judge Rawlinson
*
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
2 SPLETSTOSER V. HYTEN
SUMMARY**
Federal Tort Claims Act / Feres Doctrine
The panel affirmed the district court’s decision denying
former United States Air Force General John Hyten and the
United States Government’s motion to dismiss former United
States Army Colonel Kathryn Spletstoser’s first amended
complaint alleging that Hyten sexually assaulted her.
The Federal Tort Claims Act (“FTCA”) created a broad
waiver of the federal government’s sovereign immunity.
The district court concluded that the doctrine established
in Feres v. United States, 340 U.S. 135, 146 (1950) (holding
that “the Government is not liable under the [FTCA] for
injuries to servicemen where the injuries arise out of or are in
the course of activity incident to service”), did not bar
plaintiff’s claims because the “alleged sexual assault [could]
not conceivably serve any military purpose.”
The panel applied the factors developed in Johnson v.
United States, 704 F.2d 1431, 1436-39 (9th Cir. 1983), and
held that the Feres doctrine did not bar the claims raised by
plaintiff at this stage of the proceedings. The panel initially
emphasized that this case involved an allegation of sexual
assault, and that this case was before the court on a motion to
dismiss where the court must assume the truth of the
allegations as pled. Sexual assault is a grievous violation of
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SPLETSTOSER V. HYTEN 3
bodily integrity and one of the most egregious intentional
torts.
Concerning the first Johnson factor—the place where the
tortious act occurred—the panel held that the factor weighed
against application of the Feres doctrine. The alleged sexual
assault occurred at a hotel in California. The hotel was
equally open to members of the military and non-military,
and the military was not responsible in any way for the
operations or security of the hotel.
The second Johnson factor is the duty status when the
tortious act occurred. Plaintiff acknowledged that she was on
active-duty status, but emphasized that the incident occurred
during her personal time. The incident occurred as plaintiff
was preparing for bed in her private hotel room, where she
was not expecting any visitors. The panel held that these
facts weighed against application of the Feres doctrine.
The third Johnson factor is the benefits accrued due to
status as a service member. Analysis of this factor centers
around whether a service member has access to an on-base or
government-sponsored activity, event, or service, to the
exclusion of the civilian public. Plaintiff did not have access
to her hotel room solely because of her status as a military
service member—any civilian could have booked the room.
Although plaintiff and Hyten were attending a forum on
behalf of a government agency, plaintiff was preparing for
bed in a private hotel room where the incident occurred. The
panel held that these facts weighed strongly against
application of the Feres doctrine.
The fourth Johnson factor is the nature of the activities
when the tortious act occurred. The panel held that this
4 SPLETSTOSER V. HYTEN
factor weighed heavily in plaintiff’s favor. It is unimaginable
that plaintiff would have been “under orders” to submit to
Hyten’s sexual advances, or that she was performing any sort
of military mission in conjunction with the alleged assault.
Rather, plaintiff, like the plaintiffs in Johnson, stood in
exactly the same position as a civilian. The asserted tortious
act (sexual assault) did not involve a close military judgment
call, did not further any conceivable military purpose, and
could not be considered incident to military service.
After considering the Johnson factors and other cases
analyzing the Feres doctrine, the panel agreed with the
district court that plaintiff’s action was not barred by the
Feres doctrine at this stage, and therefore the motion to
dismiss was properly denied.
COUNSEL
Lowell V. Sturgill Jr. (argued) and Mark B. Stern, Appellate
Staff; Tracy Wilkison, Acting United States Attorney;
Reginald M. Skinner, Senior Trial Attorney; Richard
Montague, Senior Trial Counsel; Brian M. Boynton, Acting
Assistant Attorney General; Civil Division, United States
Department of Justice, Washington, D.C.; for Defendants-
Appellants.
Ariel E. Solomon (argued), Solomon Law Firm PLLC,
Albany, New York; Majed Dakak and Trevor V. Stockinger,
Kesselman Brantly Stockinger LLP, Manhattan Beach,
California; for Plaintiff-Appellee.
SPLETSTOSER V. HYTEN 5
Don Christensen, Protect Our Defenders, Alexandria,
Virginia, for Amici Curiae Protect Our Defenders, Not In My
Marine Corps, and Service Women’s Action Network.
Brian K. Lewis, Francis White Law PLLC, Woodbury,
Minnesota, for Amici Curiae Combat Sexual Assault, Never
Alone Advocacy, and Maven Foundation.
OPINION
RAWLINSON, Circuit Judge:
This case requires us to once again consider application
of the doctrine established in Feres v. United States, 340 U.S.
135 (1950). Plaintiff-Appellee Kathryn Spletstoser
(Spletstoser), a former Colonel in the United States Army,1
brought this action against Defendant-Appellant John Hyten
(Hyten), a former General in the United States Air Force,2
and the United States Government, alleging that Hyten
sexually assaulted her.
The Government and Hyten (together, Appellants) seek
review of the district court’s decision denying Appellants’
motion to dismiss Spletstoser’s First Amended Complaint
(FAC). Specifically, the district court concluded that the
1
Spletstoser has since retired.
2
Hyten was subsequently elevated to the position of Vice Chairman
of the Joint Chiefs of Staff, but has since retired. Connor O’Brien, Senate
confirms Biden’s Joint Chiefs pick, POLITICO (Dec. 16, 2021),
https://www.politico.com/news/2021/12/16/senate-confirms-bidens-join
t-chiefs-pick-525239 (last visited April 1, 2022).
6 SPLETSTOSER V. HYTEN
Feres doctrine does not bar Spletstoser’s claims because the
“alleged sexual assault [could] not conceivably serve any
military purpose.” We have jurisdiction under 28 U.S.C.
§ 1291 and we affirm the district court’s holding.
I. FACTUAL AND PROCEDURAL BACKGROUND
During the relevant period, Spletstoser was assigned to
United States Strategic Command (STRATCOM) as Director
of the Commander’s Action Group (CAG). She was chosen
for this role based on her record of exemplary leadership,
education, and accomplishment. Months after Spletstoser’s
assignment to STRATCOM, Hyten became the STRATCOM
Commander and Spletstoser remained as CAG Director.
Notwithstanding her assignment to STRATCOM, Hyten was
not Spletstoser’s supervisor for disciplinary purposes.
Approximately a year after Hyten took command,
STRATCOM was invited to attend the Reagan National
Defense Forum (Forum). The Forum is hosted by the Reagan
Presidential Library, a civilian organization, and sponsored
primarily by the private sector. The military had no input as
to invitees. Spletstoser and Hyten were two of the
“comparatively low percentage of military officials in
attendance.”
Spletstoser and Hyten lodged at a hotel that was open to
members of the military and to members of the general public
during the Forum. The military was in no way responsible
for the operations or security of the hotel. On the evening of
December 2, 2017, after the Forum concluded, Spletstoser
returned to her hotel room, which was directly across the hall
from Hyten’s room. Hyten unexpectedly knocked on
Spletstoser’s door “late in the evening,” while she was getting
SPLETSTOSER V. HYTEN 7
ready for bed. Hyten was wearing workout clothes, and the
two did not discuss any military matters. Instead, according
to Spletstoser, Hyten “restrained [Spletstoser], grabbed her
buttocks, kissed her against her will[,] and rubbed his penis
against her until he ejaculated,” all while declaring that he
“want[ed] to make love to [Spletstoser].”
Based on these allegations, Spletstoser asserted seven
state law claims for relief against Hyten in the FAC:
(1) sexual battery in violation of Cal. Civ. Code § 1708.5;
(2) assault; (3) gender violence in violation of Cal. Civ. Code
§ 52.4; (4) intentional infliction of emotional distress;
(5) battery; (6) violation of the Ralph Act, Cal. Civ. Code
§ 51.7; and (7) violation of the Tom Banes Civil Rights Act,
Cal. Civ. Code § 52.1. Appellants moved to dismiss the
FAC, arguing that the suit was barred by the Feres doctrine.
The district court denied Appellants’ motion to dismiss,
resulting in this timely appeal. We have jurisdiction under
28 U.S.C. § 1291. See Lutz v. Secretary of Air Force,
944 F.2d 1477, 1481–83 (9th Cir. 1991) (explaining that an
order denying a motion to dismiss under the Feres doctrine is
a “reviewable collateral order”). Applying the factors
developed in Johnson v. United States, 704 F.2d 1431,
1436–39 (9th Cir. 1983), as amended, we agree with the
district court that the Feres doctrine does not bar the claims
raised by Spletstoser at this stage of the proceedings.
II. DISCUSSION
A. STANDARD OF REVIEW
We treat a motion to dismiss pursuant to the Feres
doctrine as a motion to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1),
8 SPLETSTOSER V. HYTEN
taking the allegations in the complaint as true. See Bowen v.
Oistead, 125 F.3d 800, 803 (9th Cir. 1997); see also Wolfe v.
Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Whether the
Feres doctrine applies is a question of law we review de
novo. See Bowen, 125 F.3d at 803.
B. FRAMEWORK OF THE FERES DOCTRINE
Because application of the Feres doctrine is central to our
analysis, a discussion of the evolution of that doctrine may
prove helpful. We start with the Federal Tort Claims Act
(FTCA), which created a broad waiver of the federal
government’s sovereign immunity: “The United States shall
be liable, respecting the provisions of this title relating to tort
claims, in the same manner and to the same extent as a
private individual under like circumstances . . .” 28 U.S.C.
§ 2674.
The precursor to Feres, Brooks v. United States, 337 U.S.
49 (1949), initially interpreted the FTCA for tort cases
involving “members of the United States armed forces.” Id.
at 50. In that case, two brothers who were in the military,
together with their non-military father, were riding in their
vehicle when it was hit by an Army truck driven by a civilian
employee of the Army. See id. One brother and the father
were injured. See id. The other brother was killed. See id.
The surviving brother, the estate of the deceased brother, and
the father brought actions against the United States. See id.
and n.1. The government moved to dismiss the brothers’
actions on the basis that, as members of the armed forces, the
brothers were “barred from recovery.” Id. at 50. The district
court denied the motion, but the Fourth Circuit reversed. See
id.
SPLETSTOSER V. HYTEN 9
The Supreme Court granted certiorari because of the
“importance [of the case] as an interpretation of the [FTCA].”
Id. In reversing the Fourth Circuit, the Supreme Court noted
that the terms of the FTCA “clear[ly] . . . provide for District
Court jurisdiction over any claim founded on negligence
brought against the United States.” Id. at 51. The Court was
“not persuaded that ‘any claim’ means ‘any claim but that of
servicemen.’” Id. The Supreme Court observed that none of
the FTCA’s twelve exceptions excluded the brothers’ claims.
See id. Finally, the Court clarified that its conclusion rested
on the fact that the accident “had nothing to do with the
[brothers’] army careers, [and dealt with] injuries not caused
by their service except in the sense that all human events
depend on what has already transpired.” Id. at 52. Notably,
the Court signaled that if the accident were “incident to the
[brothers’] service, a wholly different case would be
presented.” Id. The Court “express[ed] no opinion” as to that
different case. Id.
The “different case” described in Brooks was presented
in Feres. The Feres decision resulted from the United States
Supreme Court’s consideration of a trilogy of cases: Feres,
Jefferson v. United States, 339 U.S. 910 (1950), and United
States v. Griggs, 339 U.S. 951 (1950), all involving plaintiffs
who were on active duty in the military. See Feres, 340 U.S.
at 136–38. The Supreme Court decided the three
consolidated cases to further clarify the reach of the FTCA,
“as to which Courts of Appeals [were] in conflict.” Id.
at 136.
In Feres, the executrix of Feres’ estate brought an action
against the government after Feres perished in a fire that
occurred in the barracks. See id. at 136–37. The executrix
asserted that the government was negligent “in quartering
10 SPLETSTOSER V. HYTEN
[Feres] in barracks known or which should have been known
to be unsafe because of a defective heating plant, and in
failing to maintain an adequate fire watch.” Id. at 137. The
district court dismissed the negligence action and the Second
Circuit affirmed. See id. at 136–37.
In Jefferson, the plaintiff underwent abdominal surgery
“while in the Army.” Id. at 137. After the plaintiff was
discharged, he underwent another surgery, during which a
towel bearing the inscription “Medical Department U.S.
Army” was discovered in his stomach. Id. Jefferson brought
an action against the government, asserting that the army
surgeon negligently left the towel in Jefferson’s stomach.
See id. Following a trial, the district court concluded that the
government could not be held liable and the Fourth Circuit
affirmed. See id.
Griggs, the final case of the trilogy, also involved the
death of an active duty soldier due to alleged “negligent and
unskillful medical treatment by army surgeons.” Id. The
district court dismissed the complaint, but the Tenth Circuit
reversed. See id.
The Supreme Court noted that the three cases shared the
“common fact” that “each claimant, while on active duty and
not on furlough, sustained injury due to negligence of others
in the armed forces.” Id. at 138. The Supreme Court
identified the issue as “whether the Tort Claims Act extends
its remedy to one sustaining ‘incident to the service’ what
under other circumstances would be an actionable wrong.”
Id. The Court further observed that “the common fact” of the
three cases was the “wholly different case reserved from [its]
decision in [Brooks].” Id. Stated differently, the Supreme
Court was signaling that the FTCA should not be extended to
SPLETSTOSER V. HYTEN 11
an injury that was “incident to” military service. Id.; see also
Brooks, 337 U.S. at 52.
The Court distinguished its earlier decision in Brooks on
the basis that “[t]he injury to Brooks did not arise out of or in
the course of military duty.” Feres, 340 U.S. at 146. The
Court concluded that “the Government is not liable under the
[FTCA] for injuries to servicemen where the injuries arise out
of or are in the course of activity incident to service.” Id.
Having reached that conclusion, the Court affirmed the
judgments denying liability under the FTCA (Jefferson and
Feres), and reversed the judgment imposing liability under
the FTCA (Griggs). See id.
The Supreme Court’s first opportunity to interpret its
Feres decision with regard to a military claim arose four
years later when the Court decided United States v. Brown,
348 U.S. 110 (1954). In Brown, a service member sustained
a knee injury while on active duty, leading to his honorable
discharge. See id. Brown sought medical treatment at a
Veterans Administration Hospital. See id. During an
operation on Brown’s knee, seven years after his discharge,
hospital staff allegedly used a defective tourniquet that
resulted in serious and permanent nerve damage in Brown’s
leg. See id. at 110–11. The district court dismissed Brown’s
complaint brought under the FTCA, and the Second Circuit
reversed. See id. at 111. The Supreme Court granted
certiorari “because of doubts as to whether Brooks . . . or
Feres . . . controlled.” Id. (citations omitted).
Before rendering its decision, the Court summarized and
harmonized Brooks and Feres. The Supreme Court explained
that “[t]he Brooks case held that servicemen were covered by
the [FTCA] where the injury was not incident to or caused by
12 SPLETSTOSER V. HYTEN
their military service.” Id. The Court next clarified that
“[t]he Feres decision did not disapprove of the Brooks case.
It merely distinguished it, holding that the [FTCA] does not
cover ‘injuries to servicemen where the injuries arise out of
or are in the course of activity incident to service.’” Id.
at 112 (quoting Feres, 340 U.S. at 146). The Court then
reasoned that Brown’s case was “governed by Brooks, [and]
not by Feres,” because Brown’s injury “was not incurred
while [Brown] was on active duty or subject to military
discipline.” Id. Instead, the “injury occurred after his
discharge, while he enjoyed a civilian status.” Id. The Court
concluded by declaring that “[w]e adhere . . . to the line
drawn in the Feres case between injuries that did and injuries
that did not arise out of or in the course of military duty.
Since the negligent act giving rise to the injury in the present
case was not incident to the military service, the Brooks case
governs and the judgment [in favor of Brown] must be
affirmed.” Id. at 113.
Over twenty years later, the Supreme Court decided
Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666
(1977). In Stencel, a military pilot was injured by the
malfunction of the ejection system in his aircraft. See id. at
667. The pilot brought a negligence action against the United
States and against Stencel, the manufacturer of the ejection
system. See id. at 667–68. Stencel cross-claimed against the
United States for indemnity, arguing that any malfunction
was due to the government’s negligent specifications. See id.
at 668. The government moved for summary judgment on
the pilot’s claim and dismissal of Stencel’s cross-claim under
the Feres doctrine. See id. at 668–69. The district court
granted both motions and the Eighth Circuit affirmed. See id.
at 669.
SPLETSTOSER V. HYTEN 13
The Supreme Court granted certiorari to further refine its
Feres decision. See id. at 667. The Court summarized Feres
as holding that “an on-duty serviceman who is injured due
to the negligence of Government officials may not recover
against the United States under the [FTCA].” Id. at 669. In
upholding the denial of the pilot’s claims, the Supreme Court
concluded that because the pilot was “injured in the course of
military service,” his claims were barred by Feres. Id. at 667,
673. The Court held that Stencel’s cross-claim for indemnity
was “unavailable for essentially the same reasons” that the
pilot’s action was barred by the Feres doctrine. Id. at 673.
Eight years later, in United States v. Shearer, 473 U.S. 52,
53 (1985), the Court decided a case brought by the mother of
an army private who was killed by a fellow serviceman while
off-duty. The mother alleged that the Army knew that her
son’s killer, who had been imprisoned in Germany for
manslaughter, was dangerous and that the Army “negligently
and carelessly failed to exert a reasonably sufficient control
over” him, and “failed to warn other persons that he was at
large.” Id. at 54. The Supreme Court applied the Feres
doctrine and concluded that the alleged tortious conduct by
the government was incident to military service because it
involved a “decision of command.” Id. at 59. Specifically,
the allegations directly challenged “management of the
military,” and “call[ed] into question basic choices about the
discipline, supervision, and control of a serviceman,” such as
“whether to overlook a particular incident or episode, whether
to discharge a serviceman, and whether and how to place
restraints on a soldier’s off-base conduct.” Id. at 58 (citation,
footnote reference, and internal quotation marks omitted).
The Court concluded that the attempt to “hale Army officials
into court to account for their supervision and discipline of
[members of the military] must fail.” Id. at 59.
14 SPLETSTOSER V. HYTEN
Two years after the Shearer decision, the Court decided
United States v. Johnson, 481 U.S. 681 (1987). In that case,
the widow of a deceased Coast Guard helicopter pilot brought
a wrongful death action against the United States under the
FTCA, asserting negligence on the part of civilian federal
employees serving as air traffic controllers. See id.
at 683–84. The helicopter pilot died while “performing a
rescue mission on the high seas.” Id. at 691. The Supreme
Court held that this activity (flying a helicopter during a
rescue mission) was incident to the pilot’s military service
because the pilot “was killed while performing . . . a primary
duty of the Coast Guard.” Id. The Supreme Court noted that
there was “no dispute that [the pilot’s] injury arose directly
out of the rescue mission, or that the mission was an activity
incident to his military service.” Id. The Court concluded
that these circumstances fell “within the heart of the Feres
doctrine as it has consistently been articulated.” Id. at 692.
The Court “reaffirm[ed] the holding of Feres that the
Government is not liable under the [FTCA] for injuries to
servicemen where the injuries arise out of or are in the course
of activity incident to service.” Id. (citation and internal
quotation marks omitted).
In United States v. Stanley, 483 U.S. 669 (1987), the
Supreme Court’s most recent Feres case, the Court clarified
that, in accordance with the language from Feres itself, the
“incident to service” test is the appropriate test to determine
whether the Feres doctrine applies, id. at 681, as opposed to
a test centered around the extent to which a suit may call into
question military decisionmaking. See id. at 682–83. The
Court described the “incident to service” test favorably as
“provid[ing] a line that is relatively clear and that can be
discerned with less extensive inquiry into military matters.”
Id. at 683.
SPLETSTOSER V. HYTEN 15
C. NINTH CIRCUIT APPLICATION OF THE
FERES DOCTRINE
Our first occasion to apply the Feres doctrine to a
personal injury military claim arose in the case of Van Sickel
v. United States, 285 F.2d 87 (9th Cir. 1960). An active-duty
sergeant in the United States Marine Corps was admitted to
a naval hospital for surgery. See id. at 88. The sergeant died
as a result of the alleged negligence of the hospital’s medical
personnel, and his widow and minor children brought suit
against the government under the FTCA. See id. Following
“careful review of the broad language of the Supreme Court
in Feres,” we held that the Feres doctrine barred the family’s
wrongful death action because the sergeant “was on active
duty and not on furlough and the death was due to the
negligence of others in the armed forces,” thus constituting an
“in-service injury.” Id. at 91.
We decided our second case applying the Feres doctrine
to a personal injury military claim one year later in Callaway
v. Garber, 289 F.2d 171 (9th Cir. 1961). Three Air Force
sergeants, including Sergeant Callaway, were traveling on a
highway in Montana from an Air Force base in South Dakota
to attend a special training program at the Boeing Aircraft
Plant in Seattle for six weeks. See id. During the drive, a
recruiting officer in the United States Navy negligently drove
his car into the sergeants’ vehicle, resulting in a collision that
ultimately killed Sergeant Callaway. See id. Sergeant
Callaway’s wife and the administrator of his estate brought
separate actions against the United States under the FTCA.
See id. at 172. After discussing the trilogy of cases resolved
in Feres, see id., we concluded that the sergeant’s “travel at
the time of the injury” was “incident to service” because:
(1) “[w]ithout travel he could not respond to the orders of his
16 SPLETSTOSER V. HYTEN
superior”; (2) the “objective of the orders was to provide
training”; (3) the “place where that training was to be
provided was at a distance from his base”; (4) the “travel was
as much a part of his duty as the training itself”; and (5) the
“person responsible for the injury was another serviceman
following out and in the course of his duties.” Id. at 173
(citation omitted). Under the “incident to service” test
adopted by the Supreme Court, we determined that the case
fell “within the rule of the Feres case as promulgated,”
thereby barring recovery. Id. at 174.
In the decades following Van Sickel and Callaway, we
have decided a number of cases involving the Feres doctrine.
In Johnson, 704 F.2d at 1436, we endeavored to provide a
coherent framework for applying the Feres doctrine.
The facts in Johnson originated from an FTCA action
against the government for injuries suffered in an automobile
accident following an after-hours party at an on-base club for
non-commissioned officers (NCOs), where a member of the
Air Force worked a second job as a bartender during off-duty
hours. See id. at 1433. We concluded that his claim was not
barred by Feres because the alleged negligent act of
permitting the NCO Club to remain open past 2:00 a.m. “in
violation of both Montana law and Air Force regulations”
was not incident to military service. See id. at 1433,
1436–37. We reasoned that “[a]lthough the negligent act in
this case . . . occurred on-base, the connection between the
situs of the negligence and Johnson’s military service is so
tenuous that location is not an important factor.” Id. at 1437
(citation omitted). We distinguished “between those cases
involving activities arising from life on the military
reservation, and those in which presence on the base has little
SPLETSTOSER V. HYTEN 17
to do with the soldier’s military service.” Id. (citations
omitted).
We explained that, while Johnson was “undeniably an
active member of the Air Force at the time of the accident and
thus on active duty status,” the “important question is whether
[Johnson] was engaging in an activity that is related in some
relevant way to his military duties.” Id. at 1438. We
ultimately concluded that at the time of his injury, Johnson
“was in the same position that any civilian employee of the
NCO Club might have been in at the time of the
government’s negligence.” Id. Indeed, Johnson “could just
as easily have been injured had he never worn a uniform at
all.” Id. at 1439 (citation, alteration, and internal quotation
marks omitted).
We gave three reasons why the Feres doctrine did not bar
Johnson’s claims against the government:
First, at the time the government’s
negligence occurred, Johnson was not subject
in any real way to the compulsion of military
orders or performing any sort of military
mission. . . . Johnson [stood] in exactly the
same position as a civilian employee of a
privately owned nightclub.
Second, at the time of the government’s
negligence, Johnson was subject to military
discipline only in the very remotest sense.
Because Johnson was off-duty and working at
a non-military second job, his activities were
purely personal.
18 SPLETSTOSER V. HYTEN
Third, Johnson’s activities [did] not
involve the sort of close military judgment
calls that the Feres doctrine was designed to
insulate from judicial review. [This was not]
a case where the government’s negligence
occurred because of a decision requiring
military expertise or judgment. Rather, the
government [was] negligent precisely because
it failed to follow established military rules
and procedures governing the operation of its
NCO Club. A civilian patron . . . could
certainly recover [and] Johnson too should be
allowed to recover.
Id. at 1439–40 (citations, alteration, footnote references, and
internal quotation marks omitted).
To explain our resolution of the case, we “isolate[d] four
factors that most courts have considered important” in
“interpreting Feres,” and reiterated that our ultimate task is to
“determine whether an injury occurred ‘in the course of
activity incident to service.’” Id. at 1436 (quoting Feres,
340 U.S. at 146). We recognized that “[t]he only way to
decide whether an injury is incident to service is to consider
the facts of each individual case,” and consider the “totality
of the circumstances” in applying the four factors. Id.
at 1436–37 (citations omitted). This approach is consistent
with the Supreme Court’s statement in Shearer that the
“Feres doctrine cannot be reduced to a few bright-line rules.”
473 U.S. at 57. Instead, “each case must be examined in light
of the [FTCA] as it has been construed in Feres and
subsequent cases.” Id.
SPLETSTOSER V. HYTEN 19
Following the Johnson decision, we have continued to
apply the four non-exclusive factors articulated in Johnson to
determine whether a tortious activity is “incident to military
service” such that an action against the government or a
fellow service member should be barred by the Feres
doctrine:
1) the place where the tortious act occurred;
2) the duty status of the plaintiff when the
tortious act occurred;
3) the benefits accruing to the plaintiff
because of his or her status as a service
member; and
4) the nature of the plaintiff’s activities at the
time the tortious act occurred.
See Johnson, 704 F.2d at 1436–39.
Bon v. United States, 802 F.2d 1092, 1093 (9th Cir.
1986), involved an active-duty member of the United States
Navy, Janice Bon (Bon), who had rented a canoe from the
Special Services Center at the Naval Training Center. See id.
Bon was injured “on or near a Navy Special Services
facility,” when another service member, who had rented a
motorboat from the Special Services Center, struck her canoe.
Id. Both Bon and the operator of the motorboat were on
authorized leave and “not engaged in official duties.” Id.
The Naval Special Services Center is operated by the Naval
Training Center and is under the direct responsibility of the
commanding officer of the Naval Training Center. See id.
The Services Center “provide[s] . . . off-duty leisure and
20 SPLETSTOSER V. HYTEN
recreation activities” to “Navy personnel and their
dependents,” and Naval “rules and regulations govern the
rental and operation of boats at the Naval Training Center.”
Id. At all relevant times, both Bon and the motorboat
operator were subject to discipline for violations of the
governing rules and regulations. See id.
Applying the Johnson factors, we first determined that
“the accident occurred on or near the Special Services
Center,” thus supporting Feres immunity under the location
factor. Id. at 1095 (footnote reference omitted). We next
noted for the duty status factor that although Bon and the
driver of the motorboat were not “engaged in an official
duty,” both were “active duty service members,” and “taking
part in an activity provided for the benefit of their military
service.” Id.
We then observed that the “final two Johnson factors
[benefits and nature of the activities] carr[ied] the most
weight in this case.” Id. We explained that Bon “enjoyed the
use of the Special Services Center solely by virtue of her
status as a member of the military,” and thus Bon “did not
occupy a status similar to that of any civilian.” Id. For the
final factor, we determined that “Bon was subject to military
orders and regulations for the particular activity in which she
was engaged.” Id. at 1096. This indication of “direct military
control” sufficed to characterize the accident as “incident to
military service.” Id. We thus affirmed the district court’s
determination that the Feres doctrine barred Bon’s action.
See id.
In Dreier v. United States, 106 F.3d 844, 845–46 (9th Cir.
1996), as amended, the widow of a soldier brought a
wrongful death action under the FTCA after her husband fell
SPLETSTOSER V. HYTEN 21
into an on-base wastewater drainage channel following an
off-duty afternoon at a small on-base beach and boating area
“officially limited to members of the military community and
civilians who acquire use permits.” Nevertheless, “the public
[was] often able to gain access” even without a permit. Id. at
846.
We determined that the first Johnson factor (location)
“weigh[ed] in favor of a Feres bar,” because it was
“undisputed that [the soldier] was on [the military base] when
he was killed.” Id. at 852. For the second Johnson factor,
duty status, we reasoned that, just as in Johnson, the soldier
“was in the same position” as any civilian “participating in
the same leisure activities.” Id. at 853 (citation omitted).
Addressing the third Johnson factor (benefits), we determined
that, like the bartending job in Johnson, the soldier’s ability
to use the recreational area “can hardly be characterized as a
privilege or benefit incident to his military service.” Id.
(citation omitted). We noted that the recreational area “was
generally open to the public, at least with an easily-acquired
pass,” and there was “no evidence that [the soldier] and his
three companions were present . . . because of their military
status.” Id. (emphasis in the original).
We concluded that the fourth Johnson factor (nature of
the activity) weighed against Feres immunity because, “like
the plaintiff in Johnson,” the soldier “was not subject in any
real way to the compulsion of military orders or performing
any sort of military mission,” and “was subject to military
discipline only in the very remotest sense.” Id. (citation
omitted). We contrasted this reasoning with the plaintiff in
Bon, who was “subject to military orders and regulations for
the particular activity in which she was engaged.” Id.
(citation and alteration omitted) (emphasis in the original).
22 SPLETSTOSER V. HYTEN
For those reasons, we did not view the government’s
negligence regarding the on-base wastewater drainage
channel as involving “the sort of close military judgment call
that the Feres doctrine was designed to insulate from judicial
review,” noting that the plaintiff made “no allegations of
inadequate military supervision or training, but rather
allege[d] the same type of negligence that could be alleged
against a completely private water treatment plant.” Id.
at 853–54 (citations and footnote reference omitted). After
applying the Johnson factors, we held that the soldier’s
“injuries were not suffered incident to service,” and the case
was not barred by the Feres doctrine. Id. at 855 (internal
quotation marks omitted).
In Costo v. United States, 248 F.3d 863, 864 (9th Cir.
2001), two sailors in the Navy drowned while “participat[ing]
in a Navy-led recreational rafting trip.” The estates of both
sailors sued the United States for negligence under the FTCA.
See id. at 865. The rafting program “was operated within the
command structure of the military.” Id. at 864. The Navy
sponsored the rafting program to benefit “naval personnel and
their family members.” Id. at 865 (citation omitted). In
applying the Johnson factors, we noted that the Feres analysis
“beg[an]—and, in large measure, end[ed]—with Bon . . . a
closely analogous case.” Id. at 867 (citation omitted). We
explained that, as in Bon, the two sailors “were on active duty
but on liberty at the time of the accident,” the rafting trip
“was provided as a benefit of military service,” and the
program “was under the command of the base’s commanding
officer.” Id. We noted that although the accident itself
occurred off-base, the “appropriate consideration is the ‘situs
of the negligence.’” Id. at 868 (citation omitted). We thus
affirmed the district court’s holding that the estates’ action
was barred by Feres. See id. at 869.
SPLETSTOSER V. HYTEN 23
In McConnell v. United States, 478 F.3d 1092, 1093 (9th
Cir. 2007), a lieutenant in the Air Force died in a boating
accident. The day before the accident, a fellow lieutenant
rented a boat from the Air Force base’s Recreation Center
because the deceased and two other lieutenants “were busy in
a meeting.” Id. The deceased and the two other lieutenants
“were subsequently briefed on the installation rules and
regulations governing the use of the boat, and were required
to follow them.” Id. After the group transported the boat
off-base to a nearby lake, the deceased was waterskiing
behind the boat and, at some point, fell. See id. at 1093–94.
The other lieutenants “steered the boat back around to bring
the ski rope to [the deceased],” but were unable to slow the
boat due to a broken cable. Id. at 1094. The boat collided
with the deceased, who suffered a fatal head injury. See id.
His parents brought an action under the FTCA for wrongful
death and loss of consortium. See id.
We noted the similarities of this case to the situations in
Bon and Costo, and applied “the four [Johnson] factors to the
particular facts in this case.” Id. at 1096 (citation omitted).
We determined that the first factor weighed in favor of Feres
immunity because the alleged negligence (“fail[ure] to
service and repair the boat”) occurred at the Air Force base.
Id. Thus, although the accident occurred off-base on a lake,
the “situs of the negligence” took place on-base. Id. (citations
omitted). The parties agreed that the deceased was on leave,
but he “was still subject to military orders and discipline.” Id.
We concluded that because the deceased “was not on duty at
the time of the accident,” the second factor “may weigh
against the application of the Feres doctrine.” Id. We next
agreed with the district court that the deceased’s “use of the
motorboat was a benefit of his position as a [United States
Air Force] service-man,” under the third Johnson factor. Id.
24 SPLETSTOSER V. HYTEN
Specifically, we determined that because boat rentals could
only be provided to “active duty members and their family
members,” and guests “had to be supervised and
accompanied by military personnel,” the benefits to the
deceased were more similar to the service member in Bon
than to the service members in Dreier and Johnson. Id.
at 1097. In other words, the deceased and his fellow
lieutenants “were exercising their privileges as service
members rather than as civilian guests.” Id. Finally, we
explained that although the deceased’s “activities were purely
recreational” on the day of the accident, they were not
“unrelated to his military status.” Id. We noted that “[t]he
plaintiffs in both Bon and Costo were similarly engaged in
purely recreational activities,” and reiterated the principle
stated in Costo that “military-sponsored activities fall within
the Feres doctrine, regardless of whether they are related to
military duties.” Id. (citation omitted). We concluded under
the fourth Johnson factor that the deceased’s engagement “in
a military-sponsored recreational activity weigh[ed] in favor
of the application of the Feres doctrine.” Id. (footnote
reference omitted). After applying the Johnson factors, we
affirmed the district court’s holding that the action was barred
by Feres. See id. at 1098.
In Schoenfeld v. Quamme, 492 F.3d 1016, 1017 (9th Cir.
2007), a lance corporal in the United States Marine Corps lost
his leg when the vehicle in which he was a passenger
“crashed into a previously damaged, but unrepaired, guardrail
on a military base.” The corporal brought a personal injury
action against the United States under the FTCA. See id. As
with prior cases involving application of the Feres doctrine,
we “examine[d] the Ninth Circuit cases that [were] most
factually analogous,” and “structure[d] our analysis around
the four Johnson factors.” Id. at 1019–20, 1023 (citation
SPLETSTOSER V. HYTEN 25
omitted). We held that because “the alleged negligence
occurred on a military base, the first Johnson factor
weigh[ed] in favor of a Feres bar.” Id. at 1023 (citation
omitted). We cautioned, however, that the situs of the
negligence was “not determinative,” and “where the nature of
a plaintiff’s activities at the time of injury are only minimally
related to his military service, we have declined to give much
weight to this factor.” Id. (citations omitted). Analyzing the
second Johnson factor, we observed that while the corporal
was “an active duty marine,” he “was on liberty” for the
weekend. Id. We articulated that because the corporal “was
not engaged in military activity when he was injured . . . his
duty status is at best marginally relevant to the Feres
analysis.” Id. (citation omitted). We thus concluded that the
corporal’s “active duty status cuts in favor of applying Feres
. . . but not strongly given that he was on liberty at the time.”
Id. (citation omitted).
Regarding the third factor, we held that “riding along
Stuart Mesa Road, which is partially open to the public, was
not a privilege available to [the corporal] because of his
military status.” Id. at 1024. Rather, the corporal “was doing
what any member of the public could have done that Saturday
morning.” Id. We analogized the corporal’s position to the
service members in Johnson and Dreier, who were in the
same position as “any civilian,” and distinguished the
corporal from the plaintiff in Bon, because the plaintiff in Bon
“was able to rent a canoe only because of her military status,”
and because “no member of the public could have
participated in the . . . activities.” Id. at 1024–25 (citations
omitted).
Addressing the fourth factor, we concluded that the nature
of the corporal’s activities were not incident to his military
26 SPLETSTOSER V. HYTEN
service because he was not “subject to the compulsion of
military orders or performing any sort of military mission.”
Id. at 1025 (citation and internal quotation marks omitted).
The military did not require the corporal to drive to his
intended destination that day, and his “activities leading up to
his accident [were] not meaningfully distinguishable from
those of a civilian.” Id. Importantly, the government’s
negligent failure to repair the road would not “involve the sort
of close military judgment call that the Feres doctrine was
designed to insulate from judicial review,” and “the neglected
damage to the guardrail in this case could just as easily have
existed on a non-military road.” Id. at 1026 (citations
omitted). After utilizing this “totality of the circumstances”
approach, we held that the corporal’s claim was not barred by
the Feres doctrine. Id. at 1023, 1026; see also Johnson,
704 F.2d at 1437 (focusing on “the totality of the
circumstances”).
Other cases within our Circuit that have not explicitly
applied the Johnson factors are also consistent with our
analysis in Johnson.
For example, in Stauber v. Cline, 837 F.2d 395, 396 (9th
Cir. 1988), the plaintiff, a mechanic for the National Guard,
endured a five-year period of harassment from fellow
National Guard mechanics. The harassment was primarily
on-base, and included such actions as disorganizing plaintiff’s
work area and jamming the plaintiff’s toolbox closed. See id.
at 396 n.2. The harassment also included some off-base
components, such as driving back and forth in front of the
plaintiff’s home. See id.
Plaintiff brought a tort action against his co-workers that
was removed to federal court. See id. at 396–97. After a jury
SPLETSTOSER V. HYTEN 27
verdict in favor of the plaintiff, the defendants brought a post-
trial motion asserting the Feres bar. See id. at 397. In
resolving the Feres issue, we characterized “the National
Guard mechanic-technicians’ work” as “just as integral to
routine military activities as was the work of the air traffic
controllers . . . in Johnson.” Id. at 400. We mentioned that
the plaintiff and defendants were “under the direct command
of active-duty military officers.” Id. The conduct of the
parties “was subject to military discipline,” and the plaintiff
had previously requested “that his superiors step in to
improve the situation.” Id. We reasoned that “the off-base,
after-hours harassment was merely an extension of on-base
events to which intramilitary immunity properly applies.” Id.
We ultimately concluded that the plaintiff’s claims were of
the type that “would involve the judiciary in sensitive military
affairs at the expense of military discipline and
effectiveness,” and could not proceed. Id. (citation omitted).
In Lutz, 944 F.2d at 1478–79, the plaintiff, a former Air
Force Major, sued three subordinates for entering her office
after hours, removing from her desk a sealed letter and notes
implying that plaintiff was involved in a relationship with her
female secretary, and showing those notes to various
squadron personnel. Plaintiff alleged that those actions were
taken to harm or ruin her reputation and career. See id
at 1479. We determined that the alleged injury was not
“incident to [military] service” because the “three
subordinates had a personal vendetta against a superior,”
“broke into her office after hours, opened her private mail,
and disseminated it in an attempt to ruin her reputation.” Id.
at 1484. We commented that “we, like the district court,
cannot fathom how [defendants’ actions] can be construed to
be activities incident to service.” Id. at 1486 (internal
quotation marks omitted). Although we did not specifically
28 SPLETSTOSER V. HYTEN
reference every Johnson factor, we incorporated several of
them into our analysis. Specifically, we recounted that the
alleged tortious conduct occurred on base and cited to
Johnson’s analysis that “[t]he fact that the activity took place
on base is not itself controlling.” Id. at 1486 n.11 (citation
omitted). We also noted that the plaintiff’s “active-duty
status . . . is insufficient, standing alone, to invoke Feres.” Id.
at 1485–86 (citation omitted). We distinguished “enjoyment
of benefits” cases, such as Bon, where a plaintiff “availed
herself of facilities or services provided only to members of
the military.” Id. at 1486 n.11 (citations omitted). We
explained that even if the plaintiff’s “use of her office and the
desk in her office arguably amounted to availing herself of a
‘benefit’ of military service, her injury did not arise directly
out of her use of the desk. Moreover, the intentional nature
of the defendants’ actions place[d] them beyond the scope of
the ‘enjoyment of benefits’ cases.” Id.
We also distinguished our holding in Stauber, explaining
that when the tortious actions were “completely separate from
on-the-job activities, the rationale of Stauber does not apply.”
944 F.2d at 1487. Thus, we concluded that a personal
vendetta against a superior officer for her sexual orientation
was “completely separate from on-the-job activities,” did not
further a military purpose, and was not protected by the Feres
doctrine. Id.
In Green v. Hall, 8 F.3d 695, 697 (9th Cir. 1993), an
Army reservist brought an action against the estate of a fellow
reservist for injuries sustained in an automobile accident that
occurred off-base in the deceased reservist’s vehicle. The
two had been attending a military weekend training program
and were going to breakfast off-base just prior to morning
formation. See id. We held that plaintiff “was not injured
SPLETSTOSER V. HYTEN 29
incident to service within the meaning of the Feres doctrine.
[Plaintiff] was injured while off base and before he was due
at morning formation.” Id. at 700 (internal quotation marks
omitted). We reasoned that plaintiff’s trip was a “distinctly
nonmilitary act.” Id. (citation omitted). The trip was not
made under orders, “was not intended to benefit the military,
and did not occur on military property.” Id. We concluded
that the plaintiff’s “injuries were therefore related to his
military status only in the sense that all human events depend
upon what has already transpired, which is insufficient.” Id.
(quoting Brooks, 337 U.S. at 52) (internal quotation marks
omitted).
In Jackson v. Brigle, 17 F.3d 280, 281–82 (9th Cir. 1994),
a former Lieutenant Colonel in the Air Force sued the United
States and agents of the Air Force Office of Special
Investigations (AFOSI), who were investigating the
plaintiff’s civilian housemate. During the investigation,
agents uncovered information about the plaintiff’s sexual
orientation that was used to discharge him from the Air
Force. See id at 282. We concluded, and Plaintiff
“concede[d] as much in his complaint,” that “the agents were
acting under color of their authority as military law
enforcement officers.” Id. at 284. We also noted that “the
agents were acting under color of General Barry’s order” to
assist with the investigation, and reasoned that the “fact that
the agents’ actions were in response to a military officer’s
order sets this case apart from Lutz,” which involved military
members breaking into an office “apparently on their own
volition.” Id. (citations omitted). Not surprisingly, we
concluded that this investigatory work of military law
enforcement officers was “clearly incident to military
service.” Id. (internal quotation marks omitted).
30 SPLETSTOSER V. HYTEN
Finally, in Bowen, 125 F.3d at 803, when a major in the
National Guard was terminated from his tour of duty, we had
“no trouble concluding that the personnel decisions contested
by [the plaintiff] in fact were made incident to service,” and
noted the Supreme Court’s holding that the decision to
discharge a serviceman is a military decision. Id. at 805
(quoting Shearer, 473 U.S. at 59) (internal quotation marks
omitted).
D. APPLICATION OF THE JOHNSON
FACTORS TO THE FACTS OF THIS
CASE
Before applying the Johnson factors, we reiterate our
view that a “comparison of fact patterns to outcomes in cases
that have applied the Feres doctrine is the most appropriate
way to resolve Feres doctrine cases.” Dreier, 106 F.3d at 848
(citation and internal quotation marks omitted). At the same
time, we emphasize that this case involves an allegation of
sexual assault, and that this case is before us on a motion to
dismiss where we must assume the truth of the allegations as
pled. See Wolfe, 392 F.3d at 362.
Sexual assault is a grievous violation of bodily integrity
and one of the most egregious intentional torts. See Coker v.
Georgia, 433 U.S. 584, 597–98 (1977) (describing sexual
assault as a “violent crime” that is “highly reprehensible,”
violates the “personal integrity and autonomy of the []
victim,” disregards the victim’s “privilege of choosing those
with whom intimate relationships are to be established,” and,
“[s]hort of homicide, is the ultimate violation of self”)
(citations, footnote reference, and internal quotation marks
omitted); see also Kaur v. Wilkinson, 986 F.3d 1216, 1222
(9th Cir. 2021) (observing that “[r]ape and sexual violence
SPLETSTOSER V. HYTEN 31
. . . are often an atrocious form of physical violence,” and
“[a]ttempted rape itself is a severe violation of bodily
integrity and autonomy”) (citations and internal quotation
marks omitted); National Prison Rape Elimination
Commission Report (June 2009)3 (p. 25 finding that “[s]exual
abuse is among the most destructive of crimes,” and referring
to sexual abuse as “a violent crime with life-changing
consequences”). This underlying fact will, as it should,
weigh heavily in our analysis of the Johnson factors.
1. First Johnson Factor—Place Where the
Tortious Act Occurred
The alleged sexual assault in this case occurred at a hotel
in California. At the time of the tortious act, the hotel was
equally open to members of the military and non-military,
and the military was not responsible in any way for the
operations or security of the hotel. The off-base location
weighs against application of the Feres doctrine. See Green,
8 F.3d at 700 (concluding that plaintiff “was not injured
incident to [military] service” where plaintiff “was injured
while off base and before he was due at morning formation”)
(internal quotation marks omitted).
2. Second Johnson Factor—Duty Status When
the Tortious Act Occurred
In Johnson, we held that the “duty status” factor is “not
dispositive,” and that this factor “cannot be mechanically
applied.” 704 F.2d at 1437–38. Rather, “[t]he important
3
The report prepared by the National Prison Rape Elimination
Commission, chaired by the Honorable Reggie B. Walton, is available at
https://www.ojp.gov/pdffiles1/226680.pdf (last visited July 7, 2022).
32 SPLETSTOSER V. HYTEN
question is whether the service member on active duty status
was engaging in an activity that is related in some relevant
way to his military duties.” Id. at 1438. We explained in
Johnson that, while the plaintiff was “undeniably an active
member of the Air Force at the time of the accident and thus
on active duty status,” that status “[i]n and of itself . . . is not
relevant to our inquiry.” Id. We determined that the plaintiff
“was in the same position that any civilian employee” at the
club would have been in at the time of the government’s
negligence, and that circumstance was “sufficient to eliminate
any relevant links between his activities and his military
service.” Id. (footnote reference omitted). See also Lutz,
944 F.2d at 1485–86 (“While the absence of active-duty
status . . . may defeat the application of Feres, [its] presence
is insufficient, standing alone, to invoke Feres.”) (citation
omitted).
In Dreier, we followed the analysis in Johnson and held
that the soldier’s “presence at the [recreation] area was
indistinguishable from that of a civilian,” and that he “was in
the same position as any civilian would have been at the time
of the government’s negligence.” 106 F.3d at 853. We thus
determined that even if this factor “weighs slightly in favor of
a Feres bar,” it was “not determinative.” Id.
In Schoenfeld, 492 F.3d at 1023, we noted that while the
plaintiff was an active duty marine, he was on liberty at the
time of the incident. Thus, the plaintiff’s active duty status
“cut[] in favor of applying Feres, but not strongly given that
he was on liberty at the time.” Id. (citation omitted). We
concluded that “because [the plaintiff] was not engaged in
military activity when he was injured, . . . his duty status
[was] at best marginally relevant to the Feres analysis.” Id.
(citation omitted); see also Green, 8 F.3d at 697 (concluding
SPLETSTOSER V. HYTEN 33
that although plaintiff, an Army reservist, was participating
in a weekend-long training session, had participated in a
parachute jump until 3:00 a.m. on Saturday morning and had
to report to formation at 9:00 a.m. that same morning, the
Feres doctrine did not bar liability for plaintiff’s injury
sustained off-base fifteen minutes before formation).
Spletstoser acknowledges that she was on active-duty
status, but emphasizes that the incident occurred during her
personal time. Indeed, the incident occurred as Spletstoser
was preparing for bed in her private hotel room, where she
was not expecting any visitors. Although Hyten came to
Spletstoser’s hotel room “under the pretense of work-related
purposes,” the two did not discuss any military matters.
Further, Hyten arrived at the door to Spletstoser’s hotel room,
not in uniform, but wearing workout clothes. Spletstoser,
preparing for bed in her private hotel room, “was in the same
position as any civilian would have been at the time.” Dreier,
106 F.3d at 853; see also Johnson, 704 F.2d at 1438. These
facts weigh against application of the Feres doctrine. See
Johnson, 704 F.2d at 1438.
3. Third Johnson Factor—Benefits Accruing Due
to Status as a Service Member
Analysis of this factor centers around whether a service
member has access to an on-base or government-sponsored
activity, event, or service, to the exclusion of the civilian
public. See Johnson, 704 F.2d at 1438–39 (collecting cases);
see also Dreier, 106 F.3d at 853.
In Johnson, we recognized that “[s]everal courts have
held that the Feres doctrine bars suits by service members
injured while engaging in on-base or government-sponsored
34 SPLETSTOSER V. HYTEN
recreational activities.” 704 F.2d at 1438 (citations omitted).
We explained that the “one factor that best explains the
results in these cases is that the plaintiffs had access to the
various recreational and medical benefits only because of
their status as military personnel.” Id. But unlike those
cases, Johnson held a job that is “identified with those
routinely performed by civilian[s],” that could not “logically
be distinguished from second jobs held by other off-duty
military personnel,” or “characterized as a privilege or benefit
incident to his military service.” Id. at 1439.
In Bon, we noted that “[u]nlike Johnson . . . Bon enjoyed
the use of the Special Services Center solely by virtue of her
status as a member of the military,” and “did not occupy a
status similar to that of any civilian with respect to her
presence on and use of the Special Service Center’s
facilities.” 802 F.2d at 1095 (citation omitted). Thus, we
concluded that the “benefits accruing to plaintiff because of
her status as a member of the military . . . clearly indicate that
the activity was incident to military service.” Id.
In Dreier, we distinguished Bon because in Bon, “the
Special Services Center was limited to military personnel and
their guests and dependents,” but the recreational area in
Dreier “was generally open to the public, at least with an
easily-acquired pass.” 106 F.3d at 853 (citation omitted).
We analogized the soldier’s situation in Dreier to Johnson,
and determined that like “the bartending job of the plaintiff in
Johnson, [the soldier’s] ability [in Dreier] to use the
[recreational] area ‘can hardly be characterized as a privilege
or benefit incident to his military service.’” Id. (citing
Johnson, 704 F.2d at 1439).
SPLETSTOSER V. HYTEN 35
In Costo, we determined that the closely-analogous case
of Bon was controlling and reasoned that, “[l]ike the canoe
rental in Bon, the rafting trip [in Costo] was provided as a
benefit of military service.” 248 F.3d at 867. We reiterated
that “military-sponsored recreational programs” fall within
the Feres doctrine. Id. at 869.
In McConnell, we first noted that boat rentals at the Air
Force base’s Recreation Center were only available to
“active duty members and their family members,” and
“guests had to be supervised and accompanied by military
personnel,” making these facts “more like the situation in Bon
than in Dreier.” 478 F.3d at 1097. We noted that the
deceased’s activities in McConnell “were purely
recreational,” as were the activities of the plaintiffs in Bon
and Costo. Id. These common facts “weigh[ed] in favor of
the application of the Feres doctrine.” Id. (footnote reference
omitted).
In Schoenfeld, we characterized this third Johnson factor
as “dr[awing] a clear line between cases” involving service
members who had access to the tortious activity “only
because of their status as military personnel,” and “those
where civilians might also have access.” 492 F.3d at 1020
(citation omitted). We distinguished the facts in Schoenfeld
from those in Bon and Costo, explaining that, “[i]n Bon, we
emphasized that [the plaintiff] was able to rent a canoe only
because of her military status.” Id. at 1024 (citation omitted).
Similarly, we noted that, in Costo, the rafting trip “was open
only to servicemen.” Id. at 1022 (citation omitted). We
determined that the “factual circumstances of [Schoenfeld]
are closer to Johnson and Dreier,” because the plaintiff in
Schoenfeld “was doing what any member of the public could
have done that Saturday morning: riding in a car on Stuart
36 SPLETSTOSER V. HYTEN
Mesa Road,” and any benefits of using that road were not
incident to military service. Id. at 1024–25.4
As stated, the alleged sexual assault occurred at an off-
base hotel. The hotel was equally open to members of the
military and civilians. Spletstoser did not have access to her
hotel room solely because of her status as a military service
member—any civilian could have booked the room.
Although Spletstoser and Hyten were attending the Forum
on behalf of STRATCOM, Spletstoser was preparing for
bed in a private hotel room when the incident occurred. She
was not “engaging in on-base or government-sponsored
recreational activities.” Johnson, 704 F.2d at 1438 (citations
omitted). These facts weigh strongly against application of
the Feres doctrine. See id.
4. Fourth Johnson Factor—Nature of the
Activities When Tortious Act Occurred
In Johnson, we listed three reasons that the nature of the
plaintiff’s activities weighed against application of the Feres
doctrine. See 704 F.2d at 1439. First, at the time of the
tortious act, the plaintiff “was not subject in any real way to
the compulsion of military orders or performing any sort of
military mission.” Id. (citations omitted). Rather, the
plaintiff stood “in exactly the same position as a civilian
employee” and “could just as easily have been injured had he
never worn a uniform at all.” Id. (citation, alteration, and
internal quotation marks omitted).
4
This analysis mirrors the Supreme Court’s reasoning in Brooks. See
337 U.S. at 52 (observing that the motor vehicle accident “had nothing to
do with the [service members’] army careers”).
SPLETSTOSER V. HYTEN 37
Second, because the plaintiff “was off-duty and working
at a non-military second job, his activities were purely
personal.” Id. at 1440 (citations and internal quotation marks
omitted).
Third, the plaintiff’s activities did “not involve . . . close
military judgment calls,” and the tortious conduct did not
occur “because of a decision requiring military expertise or
judgment.” Id.
These same three reasons weigh even more heavily in
Spletstoser’s favor because the tortious act at issue in this
case is the intentional tort of sexual assault. It is
unimaginable that Plaintiff would have been “under orders”
to submit to Hyten’s sexual advances, or that she was
performing any sort of military mission in conjunction with
the alleged assault. Schoenfeld, 492 F.3d at 1025; see also
Green, 8 F.3d at 700. Rather, Spletstoser, like the plaintiffs
in Johnson and Schoenfeld, “st[ood] in exactly the same
position as a civilian.” Johnson, 704 F.2d at 1439; see also
Schoenfeld, 492 F.3d at 1025. And there can be no doubt that
if Hyten had engaged in the same conduct with a civilian
staying at the hotel, he would have been subject to legal
action. See Johnson, 704 F.2d at 1440.
Notably, the tortious “activities” here were far more
“personal” than those in Johnson. 704 F.2d at 1440 (citation
omitted). Indeed, “private sexual conduct” and “intimate
association” are at the essence of an individual’s personal
life. Lawrence v. Texas, 539 U.S. 558, 578 (2003); see also
Obergefell v. Hodges, 576 U.S. 644, 646 (2015); Lutz,
944 F.2d at 1485 (determining that claims based on “opening
[plaintiff’s] personal mail” and disseminating that private
information was not Feres-barred).
38 SPLETSTOSER V. HYTEN
Finally, the asserted tortious act (sexual assault) does not
“involve” a “close military judgment call[].”5 Johnson,
704 F.2d at 1440. A claim based on sexual assault is a far cry
from those calling into question basic choices about the
discipline, supervision, and control of military personnel. See
Shearer, 473 U.S. at 58 (describing “complex, subtle, and
professional decisions” that “are essentially professional
military judgments”); see also Bowen, 125 F.3d at 805
(following Shearer in concluding that military “personnel
decisions” are incident to military service).
Unlike in Shearer, Spletstoser has not asked this Court to
determine whether the military “inadequate[ly] supervis[ed]”
or failed to train Hyten with regard to sexual harassment and
assault. Dreier, 106 F.3d at 854 (footnote reference omitted).
Neither has Spletstoser asked this Court to: (1) examine the
manner in which the Air Force Office of Special Investigation
carried out its investigation of her allegations; (2) evaluate the
Report of Investigation prepared by the Office of Special
Investigation; (3) address the Department of Defense’s and
Air Force’s failure to punish Hyten; or (4) enter a military
protective order. Those matters are not before us and we
express no view on them. See Lutz, 944 F.2d at 1485.
Nevertheless, one would be hard pressed to conclude that
a tortious sexual assault is in any way incident to “a decision
5
This conclusion easily follows from our prior rulings that the failure
of the military to: (1) “follow established military rules and procedures
governing the operation of its NCO Club,” Johnson, 704 F.2d at 1440;
(2) oversee the safety of a water treatment plant on its base, see Dreier,
106 F.3d at 853; and (3) oversee road repair on its base, do not “involve
the sort of close military judgment call[s] that the Feres doctrine was
designed to insulate from judicial review.” Schoenfeld, 492 F.3d at 1026
(citation omitted).
SPLETSTOSER V. HYTEN 39
requiring military expertise or judgment.” Johnson, 704 F.2d
at 1440. Frankly, it would be a highly unusual circumstance
when a sexual assault consisting of the facts alleged by
Spletstoser would further any conceivable military purpose,
and thus be considered incident to military service. See, e.g.,
Lutz, 944 F.2d at 1485 (concluding that “had the [defendants]
physically assaulted [the plaintiff] to get back at her, causing
injuries . . . [w]e find it inconceivable that Feres would be
read to preclude a suit against the individual defendants in
such a situation”) (emphasis added) (footnote reference
omitted); see also id. at 1487 (“Intentional tortious and
unconstitutional acts directed by one servicemember against
another which further no conceivable military purpose and
are not perpetrated during the course of a military activity
surely are past the reach of Feres. . . .”) (emphasis added).
III. CONCLUSION
In Lutz, we began our Feres analysis by stating that “not
every action by one member of the armed services against
another implicates military decision making, relates to the
military mission, or is incident to service.” 944 F.2d at 1484.
Thus, one might question why we engaged in this painstaking
analysis to reach the conclusion that the alleged sexual assault
that occurred here was not an activity “incident to service.”
Feres, 340 U.S. at 146. The answer is that, in Lutz, we also
cautioned against performing a superficial Feres analysis.
See Lutz, 944 F.2d at 1484. In addition, we recognize the
expansive nature of the Feres doctrine, see Dreier, 106 F.3d
at 844, and were careful not to truncate its reach without due
deliberation. But after our exhaustive examination of
Supreme Court and Circuit precedent, we are compelled to
hold today that no matter how expansive the Feres doctrine
40 SPLETSTOSER V. HYTEN
has become, it does not encompass the facts of this alleged
sexual assault.
After analyzing the factors set forth in Johnson and
considering the totality of the circumstances, we are confident
in our determination that this act of alleged sexual assault was
not incident to military service, and Spletstoser’s action is
not barred by the Feres doctrine.6 We also reiterate that
the existence of a sexual assault allegation weighed heavily
in the analysis of the Johnson factors. Such an egregious
intentional tort creates circumstances that are far different
from Feres cases that have dealt with: (1) military missions,
see Johnson, 481 U.S. at 692; (2) military-sponsored
recreational activities, see McConnell, 478 F.3d at 1097;
(3) medical malpractice, see Van Sickel, 285 F.2d at 88; and
(4) the management, supervision, or training of military
personnel, see Shearer, 473 U.S. at 58; Dreier, 106 F.3d
at 854. Indeed, as we remarked in Lutz, we “cannot fathom”
how the alleged sexual assault in this case could ever be
considered an activity “incident to [military] service.”
944 F.2d at 1486. After considering the Johnson factors and
other cases analyzing the Feres doctrine, we agree with the
district court that Spletstoser’s action is not barred by the
Feres doctrine at this stage of the proceedings, and therefore
6
Although under the facts in this case, the Johnson factors support the
conclusion that the Feres doctrine did not bar this action, we repeat that
not every factor need favor the plaintiff to defeat Feres immunity. See,
e.g., Schoenfeld, 492 F.3d at 1023–26 (concluding that the third and fourth
factors weighed against application of the Feres doctrine); Johnson,
704 F.2d at 1437–40 (same).
SPLETSTOSER V. HYTEN 41
the motion to dismiss was properly denied. See Lutz,
944 F.2d at 1487.
AFFIRMED.