Kathryn Spletstoser v. John Hyten

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 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.…