Opinion

Kathryn Spletstoser v. John Hyten

44 F.4th 938

Court: Court of Appeals for the Ninth Circuit
Filed: Aug 11, 2022
Status: Published
Nature of suit: Civil
Cited by: 6 cases
Authority: More cited than 51.0%

affirming the district court’s re- fusal to dismiss tort claims against the federal government brought by a servicemember who alleges that she was sex- ually assaulted by a superior officer

How later courts described this case

affirming the district court’s re- fusal to dismiss tort claims against the federal government brought by a servicemember who alleges that she was sex- ually assaulted by a superior officer

Written by the judges who cited it.

The opinion

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

Spletstoser has since retired.

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

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);