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 a