Spletstoser v. Hyten
| Decision Date | 11 August 2022 |
| Docket Number | 20-56180 |
| Parties | Kathryn SPLETSTOSER, as an individual, Plaintiff-Appellee, v. John E. HYTEN, as an individual; United States Of America, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
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.
Before: Johnnie B. Rawlinson and Consuelo M. Callahan, Circuit Judges, and Frederic Block,* District Judge.
This case requires us to once again consider application of the doctrine established in Feres v. United States , 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (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 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.
During the relevant period, Spletstoser was assigned to the 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 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) (). 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.
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), 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.
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, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), initially interpreted the FTCA for tort cases involving "members of the United States armed forces." Id. at 50, 69 S.Ct. 918. 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, 69 S.Ct. 918. The district court denied the motion, but the Fourth Circuit reversed. See id.
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, 69 S.Ct. 918. 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, 69 S.Ct. 918. 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, 70 S.Ct. 562, 70 S.Ct. 562 (1950), and United States v. Griggs , 339 U.S. 951, 70 S.Ct. 840, 94 L.Ed. 1364 (1950), all involving plaintiffs who were on active duty in the military. See Feres , 340 U.S. at 136–38, 71 S.Ct. 153. 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, 71 S.Ct. 153.
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, 71 S.Ct. 153. The executrix asserted that the government was negligent "in quartering [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, 71 S.Ct. 153. The district court dismissed the negligence action and the Second Circuit affirmed. See id. at 136–37, 71 S.Ct. 153.
In Jefferson , the plaintiff underwent abdominal surgery "while in the Army." Id. at 137, 71 S.Ct. 153. 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.
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