FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

K AT HR Y N S P L E T S T O S E R , as an individual, Plaintiff-Appellee ,

v
. J O H N E. H Y T E

N , as an individual; U NI T E D S TAT E S O F A ME R I C A , Defendants-Appellants. No. 20-56180

D.C. No. 2:19-cv-10076- MWF-AGR

OPINION

Appeal from

the United States District Court for the Central District of California Michael W . Fitzgerald, District Judge, Presiding Argued and Subm itted January 10, 2022 Pasadena, California

F iled 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.S P L E T S T O S E R V

. H YT E N 2
SUMMARY * *

Federal Tort Claims Act / Feres Doctrine
The panel affi rmed the d istrict court’s decision denying form er Un it e d States A ir Force General John Hyten and the United S tates Governm ent’s m otion to dism iss form er United St ates Army Colonel Kathryn Spletstoser’s first am end e d
com plaint alleging that Hyten sexually assaulted her.
The Federal Tort Claim s Act (“FTCA”) c r eated a broad waiver of the federal governm ent’s sovereign im m unity.
The district court concluded that the doctrine established in F eres v. U nited States , 3 40 U.S. 135, 146 (1950) (holding that “the Governm ent is no t l iable under the [FTCA] for injuries to servicem en where the injuries arise out of or are in the course of activity incident to service”), did not bar plaintiff’s claim s because the “alleged sexual assault [could] not conceivably serve any m ilitary purpose.”
The panel applied the factors devel o p e d in Johnson v. United States , 704 F.2d 1431, 1436-39 (9th Cir. 1983), and held that the Feres doctrine did not bar th e c laim s raised by plaintiff at this stage of the proceedings. The p anel initially
em phasized that th is case involved an allegation of sexual assault, and that this case was before the court on a m otion to d is miss where the court m u st assum e the truth of th e allegations as p led. Sexual assault is a grievous violation o f

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.S P L E T S T O S E R V

. H YT E N 3 bodily integrity and o ne of the m ost egregious intentio n al torts. Concerning the f

irst Johnson f

actor—the place where the tortious act occurred—the panel held that the factor weighed against application o f the F eres doctrine. The alleged sexual
a ssault occurred at a h otel in California. The hot e l wa s e qually o pen to m em

bers o f the m ilitary and non-m ilit ary , and the m ilitary was not responsible i n any w ay for the operations or security of the hotel.
The second Johnson f

actor is the duty s t atus when the tortious act o ccurred. Plaintiff acknowledged that she was on active-duty status, but em phasized that the incident occurred during her personal tim e. The incident o c c urr e das plaintiff
was p reparing for bed in h er private h otel room , where she
was n ot expecting any v isitors. The panel held that these facts weighed against application of the Feres doctrine.
The third Johnson factor is the benefi ts accrued due to status as a s erv ice m em

ber. Analysis of this factor centers around whether a service m em b er has access to an on-base o r governm ent-sponsored activity, event, or serv i ce, to the exclusion of the civilian public. Plaintiff did not have access to her hotel room solely because o f her status as a m ilitary service m em

ber—any civilian could have book e d the room

. Although plaintiff and Hyten were attending a fo rum on b eh a lf of a governm ent agency, plaintiff was preparing for bed in a private hotel room where the incident o ccurred. The pan e l 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 o ccurred. The panel hel d th at thisS P L E T S T O S E R V

. H YT E N 4
factor weighed heavily in plaintiff’s favor. It is unim aginable that plaintiff would have b een “under orders” to submi t to Hyten’s sexual advances, or that she w as perform ing any sort of mi l itary m ission in conjunction w ith the alleged assault. Rather, plaintiff, like the plaintiffs in Johnson , st ood in exactly the sam e position as a civilian. T he asserted tortious act (sexual assault) did not involve a close m ilitary judgm ent call, did n ot further any conce i v ab l e m ilitary purpose, and could not be considered incident to m ilitary service.
After considerin g the Johnson factors and other cases analyzing the Fe r es doctrine, the panel agreed with the district court that plaintiff’s a c t i o n was not barred by the Feres do ctrine at this stage, and therefore the m otion to dism iss was properly denied.

C OUNSEL
Lowell V. Sturgill Jr. (argued) and Mark B. Stern, Appellate Staff; Tracy W ilkison, A cting United States Attorney ; Reginald M. Skinner, Senior Trial Att o rney; Richard Montague, Senior Trial Counsel; Brian M. Boynton, Acting Assistant Attorney General; Civil Division, United States Departm ent of Ju s tice, W ashington, D.C.; for DefendantsAppellants.
Ariel E

. S olom on (argued), Solom on Law Firm PLLC, Albany, New York; Majed D akak and Trevor V. Stockinger, Kesselm an Brantly Stockinger LLP, Manhattan Beach, California; for Plaintiff-Appellee.S P L E T S T O S E R V

. H YT E N 5

Don Christensen, Protect Our Defende r s , Alexandria, Virginia, f

o r Am ici Curiae Protect O ur D efenders, N o t In My Marine Corps, and Service W om en’s Action Network.

Brian K. Lewis, Franc i s White L aw PLLC, W oodbury, Minnesota, for Am ici Curiae Com bat Sexual Assault, Never Alone Advocacy, and Maven Foundation.

OPINION

RAWLINSON, Circuit Judge:
This c a s e requires us to o nce again consider application of the doctrine established in Feres v. United States , 3 40 U.S. 135 (1950). P laintiff-Appellee Ka thryn Spletstoser (Spletstoser), a form er Colo n e l i n the United States Army, 1 brought this action against D efendant-Appellant John Hyten (Hyten), a f

orm er G eneral in the United States Air Force, 2 and the United States Governm ent, alleging that Hyten sexually assaulted her.
The Governm ent and Hy t e n (together, Appellants) seek review of th e district court’s d ecision d enying Appellants’
m otion to dism iss S pletstoser’s F irst Am ended Co mp laint ( FAC). S pecifically, the district court concluded that th e

1 Spletstoser has since retired.

2 Hyten was subsequently elevated to the position of Vice Chairm an of the Joint Chiefs of Staff, but has since retired. Connor O’Brien, Senate confirm s Biden’s Joint C h i e fs pick, POLITICO ( Dec. 16, 2021), https://www.politico.com /news/2021/12/16/senat e -c o n firm s-bidens-join t-chiefs-pick-525239 (last visited April 1, 2022).S P L E T S T O S E R V

. H YT E N 6

Feres doctrine does not bar Spletstoser’s claim s because the “alleged sexual assault [ could] not conce ivably serve any m ilitary purpose.” W e have jurisdict i o n un der 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 S tates Strategic Comm and (STRATCOM) as Director of the C o mm ander’s Action Group (CAG). She was chosen for this role based on her record of exem plary leadership, education, and accom

plishm ent. Months after Spletstoser’s assignm ent to STRATCOM, H yten becam e the STRATCO M Comm ander and Spl etstoser rem ained as CAG D irector. Notwithstanding her assignm ent to S TRATCOM, Hyten was not Spletstoser’s supervisor for disciplinary purposes. Approxim ately a year after Hyten took command, STRATCOM was invited to att e nd the Reagan N ational Defense Forum (Forum ). The Forum is hosted b y the Reagan Presidential Li b rary, a civilian organization, and sponsored prim arily by the private sector. The m ilitary had no input as t o invitees. Spletstoser and Hyten were two o f th e “com p aratively low percentage of m ilitary officials in attendance.” Spletstoser and Hyten lodged at a hotel that was open to
m em bers of the m ilitary and to m em bers o f the general public during the Forum

. The m ilitary was in no way responsible for the operations or security of the hotel. On the evening o f Decem b er 2 , 2 017, after the Forum con c l u de d, Spletstoser returned to her hotel room , which was directly across the hall from Hyten’s room

. Hyten unexpectedly kno c ke d on Spletstoser’s door “late in the evening,” while she was gettingS P L E T S T O S E R V

. H YT E N 7

r e a dy f or bed. Hyten was w earing workout clothes, and th e two did not discuss any m ilitary m atters. Instead, according to Spletstose r , Hyten “restrained [Spletstoser], g rabbed her buttocks, ki ss e d h e r against her will[,] and rubbed his penis against her until he ejaculated,” all while declaring that he “want[ed] to m ake love to [Spletstoser].”
Based on these allegations, Spletstoser asserted seven state law claim s for relief again st Hyten in the FAC: (1) sexual battery in vi o lation of Cal. Civ. Code § 1708.5; (2) assault; (3) gender violence in violation of Cal. Civ. Code § 52

. 4 ; (4) intentional infliction of em otional distress; ( 5 ) b att e ry; (6) violation of the Ralph Act, Cal. Civ. Code § 51.7; and (7) violation of the Tom Banes Civil Rights Act, Cal. Civ. Code § 5 2 .1. Appellants m oved to d i s mi s s the FAC, arguing that the suit was barred by the Feres doctrine. The distr ic t c ourt denied Appellants’ m otion to dism iss, resulting in this tim ely appeal. W e have j ur i sdiction under 28 U.S.C. § 1291. See L utz v. Secretar y o f Ai r Force , 944 F.2d 1477, 14 8 1

– 83 (9th Cir. 1991) (explaining that an order denying a m otion to dism iss under the Feres doctrine is
a “ r eviewable collateral order”). Applying the factors developed in Johnson v

. United States , 704 F .2d 1431, 1 43 6– 3 9 (9th Cir. 1983), as amended, we agree with the district court th at the Feres doctrine does not bar the claim s raised by Spletstoser at this stage of the proceedings.

II. DISCUSSION

A. STANDARD OF REVIEW

W e treat a m otion to dism iss pursuant to the Feres doctrine as a m o tion to dism iss for lack of subje c t m atter jurisdiction under Federal Rule of Civil Procedure 1 2(b)(1),S P L E T S T O S E R V

. H YT E N 8 taking the allegations in the com plaint as true. See Bowen v. Oistead, 1 25 F.3d 800, 803 (9th Cir. 1997); see also Wolfe v. Strankman , 392 F.3d 3 58, 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 F ERES DOCTRINE

Because application o f the Feres doctrine is central to our ana l y s i s, a discussion o f the evolution of that doctrine m ay pr o v e helpful. W e start with the Federal T ort Claim s A ct (FTCA), which cr e ate d a broad waiver of the federal governm ent’s sovereign imm unity: “The United States shall be liable, respecting the provisions of this title relating to tort claim s, in the sam e m anner and to the s am e extent as a private individual under li k e circum stances

. . .” 2 8 U.S.C. § 2674.
The precursor to Feres , B rooks v. United States , 3 37 U.S. 49 (1949), initially interpreted the F TCA for tort cases involving “m em

bers of the United States arm ed f orces.” Id

. at 50

. I n th at case, two brothers who were in the m ilitary, together with their non-m ilitary father, were ridin g in their vehicle when it was hit by an Army truck driven by a civilian
em ploye e o f the Army
. See id

. O ne brother and the f ather
we re injured. See id

. The other brother was killed. See id

. The surviving brother, the estate of the deceased brother, and the father brought action s a ga inst the United States. See id

. and n .1. T he gove rnm ent m oved to d ism iss the brothers’ actions o n the basis that, as m em bers of the arm ed forces, the brothers were “barred from recovery.” Id

. at 50. The district court denied the m otion, but the Fourth Circuit reversed. See id

.S P L E T S T O S E R V

. H YT E N 9
The Suprem e Court granted certiorari b e cause of the “im portance [of the case] as an interpretation of the [FTCA].” Id

. In reversing the Fourth Circuit, the Suprem e Court noted that the term s o f the F TCA “clear[ly]

. . . provide for District Court jurisdiction over any claim founded on negligen c e brought against the United S tates.” Id

. at 51. The Court was “not p ersuaded that ‘any claim ’ m eans ‘any claim but that o f servicem en.’” Id

. The Suprem e Court observed that n one o f the FTCA’s twelve exceptions excluded the brothers’ claim s. See id

. Finally, the Court clarified that its conclusion rested
on th e 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 se n s e th at all hum an events depend on what has already transpired.” Id

. at 52. Notably, the Court signaled that if the accident w ere “incident to the [b r o thers’] service, a wholly d ifferent case would be presented.” Id

. The C ourt “express[ed] no opinion” as to that different case. Id

. The “different case” described in Brooks w as presente d in Feres

. The Feres decision resulted from the United States Suprem e Court’s consideration of a trilogy of cases: Feres , J efferson 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 d

uty in the m ilitary. See Feres , 340 U.S. at 13 6

– 38. The Suprem e Court decided the three consolidated c a s es to further clarify the reach of the FTCA, “as to which Courts o f Ap p eals [were] in conflict.” Id

. at 136.

In Feres , the executrix of Feres’ estate brought an action
a gainst the governm ent after Feres perished in a fi r e th at occurred in th e b arracks. See id

. at 136–37. T h e executrix asserted that the governm ent was negligent “in qu arteringS P L E T S T O S E R V

. H YT E N 10 [Feres] in barracks known or which should have been known to be unsafe because o f a defective heati n g plant, and in failing to m aintain an adequate fire watch.” Id . at 137. The district court dism issed the negligence action and the S econd Circuit affirm ed. See id

. at 136–37.

In Jefferson , the p laintiff underwent abdom inal surgery “while in the Army.” Id

. at 137. After the plaintiff was discharged, he un d e rwent another surgery, d uring which a towel bearing the inscription “Medical Departm ent U.S. Army” was discovered in his stom ach. Id

. Jefferson brought
an a c tion against the governm ent, asserting that the army surgeon negligently left the to we l in Jefferson’s stom ach. See id

. Following a trial, the district court concluded that the governm ent could not be hel d l i abl e and the Fourth Circuit affirm ed. See id

. Griggs , the fin a l c a se of the trilogy, also involved the death of an active duty soldier due to alleged “negligent and unskillful m edical tr e atment by army surgeons.” Id

. The district court dis mi s s ed the com plaint, but the Tenth Circuit reversed. See id

. The S uprem e C ourt noted that the three cases shared the “comm on f

act” that “each claim ant, while on active duty and not on furlough, sustained injury due to negligence of others in the arm ed forces.” Id

. at 138. The Sup rem e Court identified the issue as “whether the Tort Claim s Act extends its rem edy to one susta i n ing ‘incident to the service’ what under o ther circum stances w ould b e an actionable wrong.” Id

. The Court further observed that “the comm o n fact” of the three cases was the “wholly different case reserved from [its] decision in [Br ooks ].” Id

. Stated differently, the Suprem e Court was signaling that the FTCA should not be extended toS P L E T S T O S E R V

. H YT E N 11

an injury that was “incident to” m ilitary service. Id

. ; see also Brooks , 337 U.S. at 52.
The Court distinguished its earlier decision in B rooks on the basis that “[t]he injury to Brooks did not arise o ut of o r in the course o f m ilitary duty.” Feres , 340 U. S. at 146. The Court concluded that “the Governm ent is not liable under the [FTCA] for injuries to servicem en where the injuries arise out of or are in the course o f activity incident to service.” Id

. Having reached that c o nclusion, the Court affirm ed the ju d g m ents denying liability under the FTCA ( Jefferson and Feres ), and reversed the judgm ent im posing liability under the FTCA ( Griggs ). See id

. The Suprem e Court’s first opportunity t o i nterpret its Feres decision with regard to a m ilitary claim arose four years later when the Co urt decided United States v. Brown , 348 U.S. 110 (1954). In Brown , a service m em ber sustained
a knee injury while on active duty , leading to his honorable discharge. S

ee id

. Brown s o u g h t m edical treatm ent at a Veterans Adm inistration Hospital. S e e id

. D uring an operat io n o n Brown’s knee, seven years after his discharge, hospital staff allegedly u s e d a defective tourniquet that resulted in serious and perm anent n erve dam age in Brown’s leg. See id

. at 110–11. The district court dism issed Brown’s
com plai n t brought under the FTCA, and the Second Circuit reversed. See id

. at 1 11. The Suprem e Co urt granted certiorari “because of doubts a s t o whether Brooks

. . . o r Feres . . . controlled.” Id . (citations om itted).
Before rendering its decision, the Court summ arized and harm onized Brooks and Feres

. The Suprem e Co urt explained that “[t]he Brooks case h eld that servicem en were covered by the [ FTCA] where the injury was not incident to o r caused byS P L E T S T O S E R V

. H YT E N 12
their m ilitary service.” Id

. Th e Court next clarified that “[t]he Feres decision did not disapprove of the Brooks case. It m erely distinguished it, holding that the [FTCA] does not
cover ‘injur i e s to servicem en where the injuries arise out o f
or are in the course of activity incident to service. ’” Id

. at 1 12 (quoting Feres , 3 40 U.S. at 146). T he Court the n reasoned that Brown’s case was “governed by Brooks , [and] not by Feres ,” because B rown ’s in j ury “was not incurred while [Brown] was on active d uty or subj e c t to m ilitary discipline.” Id

. Instead, the “injury occurred after his discharge, while he enjoyed a civilian status.” Id

. The Court concluded b y declaring that “[w]e a dh e r e

. . . 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 m ilitary duty. Since the negligent act g iving rise to the injury in the present
case was not incident to the m ilitary service, the B rooks case governs and the judgm ent [in fav or o f Brown] m ust be affirm ed.” Id . at 113.

Ove r twenty years later, the Suprem e Court decided Stencel Aero E

ng’g Corp. v. United States , 431 U. S. 666 (1977). In S

tencel , a m ilitary pilot wa s injured by the
m alfunction of the ejection system in his aircraft. See id

. at 667. The p ilot brought a negligence action against the United States and against Stencel, the manufacturer of the ejection system

. See id

. at 667–68. Stencel cross-claim ed against the United States for indemnity, argui n g that any m alfunction
was due to the governm ent’s negligent specifications. See id

. at 668. The governm ent mo ve d for summ ary judgm ent on the pilot’s claim and dism issal of Stencel’s cross-claim under the Feres d oc tr in e. See id

. at 668–69. The district court granted both m otions and the Eighth Circuit affirm ed. See id

. at 669.S P L E T S T O S E R V

. H YT E N 13
The S uprem e Court granted certiorari to further refine its Feres decision. See id

. at 667. The Court summ arized Feres
as holding that “an on-duty servicem an who i s i n jured d ue to the negligence of Governm ent officials m ay n o t recover against the United States under the [FTCA].” Id . at 669. In upholding the d enial of the pilot’s claim s, the Suprem e Court concluded that because the pilot was “injured in the course o f
m ilitary service,” his claim s were barred by Feres

. Id

. at 667, 673. The Court held that Stencel’s cross-claim for indemnity
was “unavailable fo r essentially the sam e 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 m other o f
an army private who was killed by a fellow servicem an while off-duty. Th e mo th er alleged that the Army knew that her son’s killer, who had been imp r i soned in Germ any for
m anslaughter, was dangerous and that the Army “negligently
an d carelessly failed to exert a reasonably sufficient control over” h im , and “fa i le d t o w arn other persons that he w as at large.” Id

. at 54. The Suprem e Court applied the Feres doctri n e and concluded that the alleged tortious conduct by the governme n t was incident to m ilitary service b ecause it involved a “decision of comm and.” Id

. at 5 9

. Specifically, the allegations d irectly challenged “m anagem ent of the
m ilitary,” and “call[ed] into question b asic choices about the discipline, supervision, and control of a servicem an,” such as “whether to overlook a particular in cid ent o r episode, whether to discharge a serv i c e m an, and whether and how to place restraints on a soldier’s off-base conduct.” Id

. at 58 (citation, footnote reference, and internal quotation m arks om itted). The C ourt concluded that the attem pt to “hale Army officials into court to account for their s up erv ision and discipline o f [m em bers of the m ilitary] must fail.” Id . at 59.S P L E T S T O S E R V

. H YT E N 14

Two years aft e r th e Shearer decision, the Court decided United States v. Johnson , 4 81 U.S. 681 (1987). In that case, the w idow 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 civil i an federal
em ployees serving as a i r traffic controllers. See id

. at 683–84. The helicopter pilot died while “perform ing a rescue m ission on the high seas

. ” Id

. at 691. The Suprem e Court h eld that this acti v ity (flying a helicopter during a res c u e m ission) was incident to the p ilot’s m ilitary service because the pilot “was killed while perform ing

. . . a prim ary duty of the Coast Guard.” Id

. The Suprem e Court noted that there w as “no dispute that [the pilot’s] injury arose directly out of the rescue m ission, or that the m ission was an activity incident to h i s mi litary service.” Id

. The C ourt concluded tha t th ese circum stances f ell “within the heart of the Feres do c trine as it h as consistently been articulated.” Id

. at 692. The Court “reaffirm [ed] the holding of Feres that the Governm ent is not liable under the [FTCA] for injuries to servicem en where the injuries arise out of or are in the course of activity incide n t t o service.” Id

. (citation and internal quotation m arks om itted).

In United States v. Stanley , 483 U.S. 6 6 9 (1 9 8 7), the Suprem e C ourt’s m ost recent Feres case, the Court clarified that, in accordance with th e language from Feres itself, the “incident to service” test is the appropriate test to determ ine whether the Feres doctrine applies, id

. at 681, as opposed to
a test centered around the extent to which a suit m ay call into qu estion m ilitary d ecisionm aking. See id

. at 682–83. Th e Court descr i bed 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 m ilitary m atters.” Id . at 683.S P L E T S T O S E R V

. H YT E N 15
C. NI NTH CIRCUIT APPLICATION OF THE FERES DOCTRINE

Our first oc c a si on to apply the Feres d octrine to a personal injury m ilitary 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 wa s a dm itted to
a naval hospital for surgery. See id

. at 88. The sergeant died
as a result of the alleged negligence of the hospital’s m edical personnel, and his widow and m inor children brought suit against the governm ent under the FTCA. See id

. Following “careful review of the broad language of the Suprem e Court in Feres ,” we held that the Feres d octrine barred the fam ily’s wrongful d e ath action because the sergeant “was on active duty and n ot on furlough and the de ath wa s due to the negligence of others in the arm ed forces,” thus constituting an “in-service injury.” Id . at 91.

W e decided our second case applying the Feres doctrine to a personal injury m ilitary claim one year later in C allaway
v. Garber , 2 89 F.2d 17 1 ( 9 th Ci r. 1961). Three Air Force sergeants, including Sergeant Callaway, were traveling on a highway in Montana from an Air F orce base in South Dakota to attend a special training program at the Boeing Ai r craft Plant in Seattle for si x weeks. See id

. During the drive, a recruiting o fficer in the United S tates Navy negligently drove his car into the sergeants’ v ehicle, resulting in a collision that ultim ate ly k i l led Sergeant C allaway. See id

. Sergeant Callaway’s wife and the a dmi nistrator of his estate brought
s eparate actions against the United S tates 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 tim e of the injury” was “incident to service” b e c ause: (1) “[w]ithout travel he could not respond to the orders of hisS P L E T S T O S E R V

. H YT E N 16 superior”; (2) the “objective of the orders was to prov i de training”; (3) the “pla ce wh e re that training was to be provided w as at a distance from his base”; (4) the “travel was as m uch a part of his duty as the tr a i n i n g itself”; and (5) the “person responsible for the injury w as another servicem an following out and in the course of h is duti es

. ” I d

. at 173 ( citation om itted). Under the “incident to service ” t e s t adopted by the Suprem e Court, we determ ined that the c a s e fell “within the rule of the Feres case as prom ulgated,” thereby barring recovery. Id . at 174.

In the decades following V a n S ickel and Callaway , we have d ecided a num

ber of cases involving the Feres doctrine. In Johnson , 704 F.2d at 1436, we endeavored to p r o v i de a coherent fram ework for applying the Feres doctrine.
The facts in Johnson originated from an FTCA a c ti o n against the governm ent for injuries suffered in an autom obile accident following an after-hours p arty at an on-base club for
non-comm issioned officers (NCOs), where a m em b er of the Air Force worked a second job as a bartender d uring off-duty hours. See id

. at 1433. W e concluded that his claim was not barre d b y Feres because the alleged negligent act o f perm itting the NCO Club to r e ma in open past 2:00 a.m

. “in
v io lation of both Montana law and A ir Force regulations”
was not incident to m ilitary service. See id. at 1433, 1436–37. W e reasoned that “[a]lthough the negligent act in thi s c a se

. . . o ccurred on-base, the connection between the situs of the negligence and Johnson’s m ilitary service is so tenuous that location is not an im portant factor.” Id

. at 1437 (citation o m itted). W e distinguished “between those cases invol v in g activities arising from life on the m ilitary reservation, and those in which p resence on the base has littleS P L E T S T O S E R V

. H YT E N 17

to do with the soldier’s m ilitary service.” Id

. (citations
om itted).

W e explained that, while Johnson was “undeniably an active m em

ber of the Air Force at the tim e of the accident and thus o n active duty status,” the “im portant question is wh e ther [Johnson] was engaging in an activity that is related in som e relevant way to his m ilitary duties.” Id

. at 1438. W e ultim ately co n c luded that at the tim e of his injury, Johnson “was in the sam e po s i tion that any civilian em ployee o f the NCO Club m ight have been in at the tim e o f th e governm ent’s negligence.” Id . Indeed, Johnson “could just
as easily have been injured had h e never worn a uniform at all.” Id

. at 1439 (citation, alteration, and i n t e rn a l quotation
m arks om itted).

W e gave three reasons why the Feres doctrine did not bar Johnson’s claim s against the governm ent:

First, at the tim e the governm ent’s negligence o ccurred, Johnson was not subject in any real way to the com pulsion of m ilitary orders or perform ing any sort of m ilitary
m ission.

. . . Johnson [stood] in exactly the
sam e position as a civili an em ployee of a privately owned nightclub. Second, at the tim e o f the governm ent’s negligence, J o hnson was subject to m ilitary discipline only in the very rem otest sense. Because Johnson w as off-duty and working at
a non-m ilitary second job, his activities were purely personal.S P L E T S T O S E R V

. H YT E N 18 Third, Johnson’s activities [d id] not involve the sort of close m ilitary judgm ent calls that the Feres doctrin e was designed to insulate from judicial review. [This was not]
a case where the governm ent’s neg l i g ence occurred because o f a d e cision requiring
m ilitary expe rtise or judgm ent. Rather, the g o v ernm ent [was] n eglig e nt p recisely b ecau s e it failed to f

ollow established m ilitary ru les and procedures governing the operation of its NCO C lub. A c i v i lian patron

. . . could certainly recover [and] Johnson too should be allowed to recover.
Id

. at 1439–40 (citations, alteration, footnote references, and internal quotation m arks om itted).

To explain our resolution of the case, we “isolate[d] four factors that m ost courts have considere d im portant” in “interpreting F

eres ,” and reiterated that our u ltim ate task is to “determ ine whether an injury occurred ‘in the co urs e o f activity incident to service.’” Id

. at 1436 (quoting Feres , 340 U.S. at 146). W e recognized that “[t]he o nly way to decide whether an injury is incident to service is to consider the facts o f each i n d i v i dual case,” and consider the “totality of the circum stances” in applying the four f actors. Id

. at 1436–37 (c it ati ons om itted). This approach is consistent with the Suprem e Court’s statem ent in Shearer that the

“Feres doctrine cannot b e reduced to a few bright-line rules.” 473 U.S. at 57. Instead, “each case m ust be exam ined in light
o f the [FTCA] as it h as been construed in Feres and subsequent cases.” Id

.S P L E T S T O S E R V

. H YT E N 19 Following the Johnson decision, we have continued to apply the four n on-exclusive factors articulated in Johnson to determ ine whether a tortious activity is “incident to m ilitary service” such that an action against the go v e rnme nt or a fellow service m em

ber should b e barred b y the Feres doctrine: 1) the place where the tortious act occurred; 2) the duty sta tus of the plaintiff when the tortious act occurred; 3) the benefits accruing to the plaintiff b e cause o f his or her status as a serv i c e m em ber; and 4) the nature of the plaintiff’s activities at the tim e the tortious act occurred.
See Johnson , 704 F.2d at 1436–39.

Bon v. United States , 8 0 2 F.2d 1092, 1093 (9th Cir. 1986), involved an active-duty m em ber of the United States Navy, Janice Bon (Bon), wh o had rented a canoe from the Special Services Center at the Naval Training Center. S ee id

. Bon was injured “on or n e ar a Navy Special Services facility,” wh e n another service m em ber, who had rented a m otorboat from the Special Services Center, stru ck h er canoe. Id

. B o th Bon and the operator of the m otorboat w ere on authorized leave and “not engaged in official duties.” Id

. The Naval Special Services Center is operated by the Naval Training C enter and is under the direct respons i b i l i ty o f the
comm anding officer o f the N aval Training Cente r. See id

. The Services Center “provide[s]

. . . o ff-duty l e i s ur e andS P L E T S T O S E R V

. H YT E N 20
recreation activities” to “Navy p ers o nnel and their dependents,” and Naval “rules and regulations govern the rental and operation of b oats at the Naval Training Center.” Id

. At all relevant tim es, both Bon and the mo t o r b o at operator were subject to d iscipline for violati o n s of the governing rules and regulations. See id

. Applying the Johnson factors, we first determ in e d that “the ac c i d e nt occurred on or n ear the Special Services Center,” thus supporting F eres imm unity under the location factor. Id

. at 1095 (footnote reference om itted). W e next noted for the duty status factor th at a lthough Bon and the driver of the m otorboat were not “engaged i n an official duty,” both were “active duty service m em bers,” and “taking part in an a c t i v i ty provided for the benefit o f their m ilitary service.” Id

. We then observed that the “final two Johnson factor s [benefits and natur e of the activities] carr[ied] the m ost weight in this case.” Id

. W e explained that Bon “enjoyed the
use of the S pecial Services Center solely by v irtue of her status as a m em

ber o f the m ilitary,” and thus Bon “did not
o cc up y a status sim ilar to that of any civilian.” Id

. For th e final factor, we determ ined that “Bon was subject to m ilitary orders and regulations for the particular activity in which she
was engaged.” Id

. at 1096. This indication of “direct m ilitary control” sufficed to characterize the accident as “incident to
m ilitary service.” Id

. We thus affirm ed the district court’s d eterm ination that the Feres doctrine barred Bon’s action

. See id

. In D reier v. United States , 106 F.3d 844, 845–46 (9th Cir. 1 99 6) , as amended, the widow of a soldier brought a wrongful death action under the FTCA after her husband fellS P L E T S T O S E R V

. H YT E N 21
into an on-base wastewate r dr ainage channel following an off-duty afternoon at a sm all on-base beach and boating area “officially lim ited to m em bers of the m ilitary comm unity and civilians who acquire use perm its.” N evertheless, “the public [was] often able to gain access” even without a perm it. Id

. at 846.

W e determ ined that the f irst Johnson factor (lo c ation) “weigh[ed] in favor of a Feres bar,” bec au s e i t was “undisputed that [the soldier] was o n [the m ilitary b ase] when h e was killed.” Id

. at 852. For the second Johnson fa c t o r, duty status, we reasoned that, just as in Johnson , the soldier “was in the sam e position” as any c i vi lian “participating in the sam e leisure activities.” Id

. at 853 (citation om i tted). A d d ressing th e third Johnson factor (benef its), w e d etermin ed that, like the b artending job in Johnson , the soldier’s ability to u se the recreational area “can hardly be characterized as a privilege or benefit incident to his m ilita ry s ervice.” Id

. (citation om itted). W e noted that the recreational area “was generally open to the public, at least with an easily-acquired pass,” and th e r e wa s “no evidence that [the soldier] and his three companions were present

. . . becauseof their m ilitary status.” Id . (em

phasis in the original).

W e concluded th at the fourth Johnson factor (nature o f the activity) weighed against Feres imm unity because, “like the plaintiff in Johnson ,” the soldier “was not subject in any real w ay to the com

pulsion of mi li tary orders or perform ing any sort of m ilitary m i s s i o n, ” and “was subject to m ilitary discipline only in the very rem otest sense.” Id

. (citation
o m i tt ed). W e contrasted this reasoning with the plaintiff in Bon , who was “subject to m ilitary orders and regulations for the p a r ticular activity in which she w as engaged .” Id

. (citation and alter at io n om itted) (em phasis in the original).S P L E T S T O S E R V

. H YT E N 22

For those reasons, we did not view the governm ent’s negligence regarding the on-base wastewater d rainage channel as involving “the sort of close m ilitary judgm ent call that the Feres doctrine was designed to insulate from judicial review,” noting that the plaintiff m ade “no all egations o f inadequa t e military supervision or training, but rather allege[d] the sam e type of n egligence that could be alleged against a com

pletely private water treatm ent plant.” I d

. at 8 53–54 (ci tations and footnote reference o m itted). After applying the Johnson f

a ctors, we h eld 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 m arks om itted).

In Costo v. United States , 248 F.3d 8 6 3 , 864 (9th Cir. 2001), two sailors in the Navy drowned while “participat[ing] in a Navy-led recreational rafting tr i p .” The estates of both sailors sued the United S tates for n egligence under the FTCA. See id

. at 865. The rafting program “was operated within the
comm and structure of the m ilitary.” Id

. at 864. The Navy sponsored the raftin g p ro g ram to benefit “naval personnel and their fam ily me mb ers.” Id

. at 865 (citation om itted). In applying the Johnson f

actors, we noted that the Feres a n alysis “beg[an]—and, in large m easure, end[ed]—with B o n
. . . a closely analogous case.” Id

. at 867 (citation om itted). W e explained that, as in Bon , the two sailors “were on active duty b ut on liberty at the tim e of the accident,” the rafting tr i p “was provided as a b e ne fi t of m ilitary service,” and the program “was under the comm and o f the base’s comm anding
o f ficer.” Id

. W e noted that although the accident its el f occurred off-base, the “appropriate consideration is the ‘situs of the negligence.’” Id

. at 868 (citation om itt e d )

. W e thus
a ffi rm ed the district court’s holding that the estates’ act i o n was barred by Feres

. See id . at 869.S P L E T S T O S E R V

. H YT E N 23

In McConnell v. U

nited States , 478 F.3d 1092, 1 093 (9th Cir. 200 7 ), a lieutenant in the Air Force died in a boating
ac c i d ent. The day before the accident, a fellow lieutenant rented a boat from the Air Force base’s Recre at i on Center because the deceased and two other lieutenants “were b usy in
a m eeting.” Id

. The deceased and the two other lieutenants “were subsequently briefed o n the installation rules and regulations g overning the use of the boat, and were required to follow them .” Id

. Aft e r the group transported the boat off-base to a nearby lake, the deceased was wate r sk i ing behind the boat and, at som e point, fell. See id . at 1093–94. The other lieutenants “steered the boat back around to bring the ski rope to [the d eceased],” b ut we re unable to slow the boat due to a broken cab l e

. I d

. at 1094. The boat collided with the deceased, who suffered a f atal he a d i n

j ury. See id

. His parents b r o u ght an action under the FTCA for wrongful death and loss of consortium

. See id

. W e noted the sim ilaritie s 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 omi tted). W e determ ined that the first factor weighed in favor o f Feres imm unity because the alleged negligence ( “ fa i l[ure] to service and repair the boat”) occurred at the Air F orce base. Id

. T hus, although the accident occurred off-base on a lake, the “situs of the negligence” took place on-base. Id

. (citations
om itted). The parties agreed that the deceased was on leave, but he “was still subject to m ilitary orders and discipline.” Id

. W e concluded that because the deceased “was not on duty at the tim e of the accident,” the second factor “m ay weigh against the application of the Feres doctrine.” Id

. W e next agreed with the d i strict court that the deceased’s “use of the
m otorboat was a benefit o f his p osition as a [United States Air Force] service-m an,” under the third Johnson factor. Id

.S P L E T S T O S E R V

. H YT E N 24 Specifically, w e d eterm ined that because boat rentals could only be provided to “active duty m em bers and their f

am ily
m em bers,” and guests “had to be supervise d and
accom p anied by m ilitary personnel,” the ben e fi ts to the deceased were m ore sim ilar to the service m em ber in Bon than to th e service m em bers in Dreier and Johnson

. Id

. at 1097. In other words, the d eceased and his f el l o w lieutenants “ were exercising their p rivileges as service
m em bers rather than as civilian guests. ” I d

. Finally, we explained that although the deceased’s “activities w ere p urely
rec r eational” on the day of the accident, they w ere not “unr elated to h is m ilitary status.” Id

. W e noted that “[t]he plaintiffs in both Bon and Costo we re sim ilarly engaged in purely recreational activities,” and reiterated the pri nc i ple stated in Costo that “m ilitary-sponsored activities f all within the Feres doctrine, regardl e s s o f whether they are related to
m ilitary duties.” Id

. (citation om itted). W e concluded under the fourth Johnson factor that the deceased’s engagem ent “in
a m ilitary-sponsored recreational activity weigh[ed] in favor of the application o f the F eres doctrine.” Id

. (footnote reference om itted). After applying the Johnson factors, we affirm ed 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 d am aged, but unrep aired , gu ard rail
on a m ilitary base.” The corporal brought a p ersonal i njury action against the United States under the FTCA. See id

. A s with prior cases involving application o f the F eres doctrine,
we “exam ine[d] the Ninth Circuit cases that [wer e ] m o st factually analogous,” and “structure[d] our analysis aroun d the four Johnson factors.” Id

. at 1019–20, 102 3 (c itationS P L E T S T O S E R V

. H YT E N 25

om itted). W e h e l d that because “the alleged n egligence occurred on a mi litary base, the f irst Johnson f

actor weigh[ed] in favor of a Feres bar.” Id

. at 1023 (c i t at i on om itted). W e cautioned, however, that the s i tus of the negligence was “not determ inative,” and “where the nature o f
a plaintiff’s activities at the tim e o f injury are only m inim ally related to his m ilitary service, we have d eclined to give m u ch weight to this factor.” Id

. (citations om itted). Analyzing the second Johnson factor, w e observed that wh i le the corporal
was “an active duty m ar ine,” he “was on liberty” for the weekend. Id

. W e articulated that because the corporal “was not engaged in m ilitary activity when he was injured . . . his duty status is at best mar gi n ally relevant to the Feres analysis.” Id

. (citation om itted). W e thus concluded that the corporal’s “active duty status cuts in favor of applying Feres

. . . b ut n ot strongly given that he was on liberty at the tim e.” Id . (citation om itted). Regarding the third factor, we h eld tha t “riding along Stuart Mesa Road, which is partially open to the public, was not a p rivilege available to [the corporal] because of his
m ilitary status.” Id

. at 1024. Rather, the corporal “was doing what any m em

ber of the public could have done that Saturday
m orning.” Id

. W e analogized the corporal’ s p o s i t ion to the service m em

b ers i n Johnson and Dreier , who were in the
sam e position as “any civilia n,” and distinguished the corporal from the plaintiff in Bon , because the p laintiff in Bon “was able to rent a canoe only because of her m ilitary status,” and b ecause “no m em ber of the public could have part icipated in the

. . . activities.” Id

. at 1024–25 (citations
om itted). Addressing the fourth factor, we concluded that th e n ature of the corporal’s activities were not inc i d e n t to his m ilitaryS P L E T S T O S E R V

. H YT E N 26
service because he was no t “subject to the com pulsion o f
m ilitary o rders or perform ing any sort of m ilitary m ission.” Id

. at 1025 ( c i t at ion and internal q u otation m arks om itted). The m ilitary did not require the corporal to dr i ve to his intended destination that day, and his “activities leading u p to his accident [were] not m eaningfully distinguishab l e from those o f a civilian.” Id

. Im portantly, the govern me n t ’s negligent failure to repair the road would not “involve the sort of close m ilitary judgm en t c a ll that the Feres doctrine was designed to insulate from judicial review,” and “the neglected dam age to the guardrail in this case could just as easily have existed on a non-m ilitary road.” I d

. at 1026 (citations
om itted). After utilizing this “totality of the circum stances” approach, we held that the corporal’s claim was n ot barred by the Feres d o c tr i ne. Id

. at 1023, 1026; see also Johnson , 704 F.2d at 1437 (focusing on “th e totality of the circum stances”).
Other cases within our Circuit that have not explicitly applied the Johnson factors are also consistent w ith our analysis in Johnson

. For exam ple, in Stauber v. Cline , 837 F.2d 395, 396 (9th Cir. 1 988), the plaintiff, a m echanic fo r the National Guard,
e n dured a f

ive-year p eriod of h arassm ent from f el l o w National Guard m echanics. The harassm ent was prim arily
o n -b ase, an d in clu d e d such actions as d iso rg an izin g p lain tif f ’s work area and jamm ing the plaintiff’s toolbox closed. S ee id

. at 396 n.2. The h ar as s me nt also included som e off-base
c o mp o n ents, such as driving back and forth in front of th e plaintiff’s hom e. See id

. Plaintiff brought a tort action against his co-workers that
was rem o ved to f

ederal court. See id

. at 396–97. After a juryS P L E T S T O S E R V

. H YT E N 27
verdict in favor of the p laintiff, the defendants brought a posttrial m o tion asserting the Feres b ar. See id

. at 3 97. In resolving the Feres issue, we characterized “the N ational Guard m echanic-technicians’ work” as “just as i n t egral to routi n e mi l itary activities as was the w ork of the air traffic controllers

. . . in Johnson .” Id

. at 400. W e me n t i on e d that the plaintiff and defendants w ere “under the direct comm and of active-duty m ilitary officer s. ” Id

. The conduct of the parties “was subject to m ilitary discipline,” and th e plaintiff had previously requested “that his superiors ste p i n t o im prove the situation.” Id

. W e rea s o n ed that “the off-base, afte r- hours h arassm ent was m erely an extension of on-base events to which intram ilitary imm unity properly applies.” Id

. W e ultim ately concluded that the plaintiff’s claim s we r e o f the type that “would involve the judiciary in sensitive m ilitary affa i rs at the expense of m ilitary discipline and effectiveness,” and could n ot proceed. Id

. (citation om itted).

In L utz , 944 F.2d at 1478–79, the plaintiff, a form er Air Force Major, sued three s ubordinates for entering her o ffice after hours, rem oving from her desk a sealed letter and notes im plying that plaintiff was involved in a relationship with her fem ale secretary, and showing those notes to v arious squadron personnel. Plaintiff alleged that those actions were t ak e n to h arm or ruin her reputation and career. S ee id at 1479. W e determ ined that the alleged in jury wa s not “incident to [m ilitary] service” because the “thr ee subordinates had a personal vendetta a gainst a superior,” “broke into her office after h ours, opened her privat e ma il, and dissem inated it in an attem pt to ruin her reputation.” Id

. at 1484. W e comm ented that “we, like the d i s tr i c t court, cannot fathom how [defendants’ actions] can be construed to be activities incident to service.” Id

. at 1486 ( i n t e rn al quotation m arks om itted). Although we did not specificallyS P L E T S T O S E R V

. H YT E N 28

r e ference every Johnson factor, we incorporated several of them into o ur analysis. S pecifically, we recounted that the alleged tortious conduct occurr e d on base and cited to Johnson ’s analysis that “[t]he fact that the activity took place
on b ase is not i t self controlling.” Id

. at 1486 n.11 (citation
om itted). W e also noted that the p laintiff’s “ a ctive-duty status

. . . is insufficient, standing alone, to invoke Feres .” Id

. at 1485–86 (citation om itted). W e distinguished “enjoym ent of benefits” cases, such a s Bon , where a plaintiff “availed herself o f facilities or services provided only to me mbers o f th e mi l it ary.” Id

. at 1486 n.11 (citations om itted). W e explained that even if the plaintiff’s “use of h er office and the desk in her office arguably am ounted to availing herself of a ‘benefit’ of m ilitary service, her injury did not arise directly out of h er use of the desk. Moreover, the intentional nature of the defendants’ actions place[d] them beyond the scope o f the ‘enjoym ent of benefits’ cases.” Id

. W e also d istinguished our holding in Stauber , explaining that when the tortious actions w e re “co m p letely separate from on-the-job activities, the rationale of Stauber does not apply.” 94 4 F. 2 d at 1487. Thus, we concluded that a personal vendetta against a superior officer f or her sexual o rientation
was “com pletely separate f

rom on-the-job activities,” d id not further a m ilitary purpose, and was not protected by the Feres doctrine. Id

. In Gr e e n 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 autom obile accident that occurred off- base in the deceased reservist’s vehicle. The two had been attending a m ilitary weekend training program and were going to breakfast off-base just prior t o mo rning format i on. See id

. W e held that plaintiff “was not injuredS P L E T S T O S E R V

. H YT E N 29
incident to service within the m eaning of the Feres doctrine. [Plaintiff] was injured while o ff base and before he was d ue at m orning fo rmat ion.” Id

. at 700 (internal quotation m arks
om itted). W e reasoned that plaintiff’s trip was a “distinctly
nonm ilitary act.” Id

. (citation om itted). The trip was not
m ade under orders, “was n ot intended to benefit the m ilitary, and did not occur on m ilitary property. ” Id

. W e concluded that the plaintiff’s “i n

jur ies w ere therefore related to his
m ilitary status only in the sense that all hum an events depend upon what has already transpired, which is insufficient.” Id

. (quoting Brooks , 337 U .S. at 5 2) (internal quotation m arks
om itted).

In Jackson v. Brigle , 17 F.3d 280, 281–82 (9th Cir. 1994),
a form er Lieutenant Colonel in the Air F orce sued the United States an d agents o f the Air F orce Office of S pecial Investigations (AFOSI), who were investigating the plaintiff’s civilian h o u s em ate. D uring the investigation, agents uncovered i n form ation about the plaintiff’s sexual orientation that was u sed to discharge him from the Air Force. See id at 282. W e concluded, and Plai ntiff “concede[d] as m

uch in his com

plaint,” that “the agents were acting under color o f th e ir authority as m ilitary law enforcem ent officers.” Id

. at 284. W e 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’ a c tions were in response to a m ilitary officer’s order sets this case apart f rom Lutz ,” which involved m ilitary
m em bers breaking into an o ffice “apparently on their o wn v o lition.” Id

. (citations om itted). Not surprisingly, we concluded that this investigatory work of m il i t ary law enfor c e m ent officers was “clearly incident to m ilitary service.” Id . (internal quotation m arks om itted).S P L E T S T O S E R V

. H YT E N 30 Finally, in Bo we n , 125 F.3d at 803, when a m ajor in the National Guard was term inated from his tour o f duty, we h ad “no trouble concluding that the personnel decisions contested by [the plaintiff] in f

act were m ade incident to service,” and noted the Suprem e Court’s holding that the decision to discharge a servicem an is a m ilitary decision

. Id

. at 805 (quoting S

hearer , 473 U.S. at 59) (in t e rn al quotation m arks
om itted).

D. APPLI CATION OF THE JOHNSON FACTORS TO THE F A CTS OF THIS CASE
Before applying th e Johnson factors, we reiterate our view that a “com

parison of fact p atterns to outcom es in cases tha t h av e applied the Feres doctrine is the m ost appropriate way to resolve Feres doctrine cases.” D reier , 106 F.3d at 848 (citation and internal quotation m arks om itted). At the sam e tim e, we em

phasize that th i s c a se involves an allegation o f sexual assault, and that this case is before u s o n a m otion to dism iss where we m

ust assum e the truth of the allegations as pled. See Wolfe , 392 F.3d at 362.
Sexual as sault is a grievous violation of bodily integrity and one o f the m ost egregious intentional torts. S ee C oker v. Georgia , 433 U.S. 584, 597–98 (1977) (descr i b i n g sexual assault as a “violent crim e” that is “highly reprehensible,” violates th e “personal integrity and autonomy of the [] victim ,” disregards the victim ’s “privilege of choosing those with whom intim ate relationships are to b e established,” and, “[s]hort of hom icide, is the ultim ate viol ation o f self”) (citations, footnote re fe r ence, and internal quotation m arks
om itted); see a lso Kaur v. Wilkinson , 986 F .3d 1 21 6, 1222 (9th Cir. 2 021) (observing that “[r]ape and sexual v i o l enceS P L E T S T O S E R V

. H YT E N 31

. . . are often an atrocious form of physical violence,” and “[a]ttem pted rape itself is a s e v e r e violation of bodily integrity and autonomy”) (citations and internal qu o tation
m ark s o mi tt ed ) ; Na t io n al Prison Rape Elim ination Comm ission Report (June 2009) 3 (p. 25 finding that “[s]exual abuse is am ong the m ost destructive of crim es,” and referring to sexual abuse as “a violent cri me wi th life-changing consequences”). T his underlying f act will, as it should, weigh heavily in our analysis of the Johnson factors.

1. First Johnson Fac tor—Place Where the Tortious Act Occurred
The alleged sexual assault in this case occurred at a hotel in Californ i a. At the tim e o f the tortious act, the hotel was equally open t o m em

b ers o f the m ilitary and non-m ilitary, and the mi l i tary was not responsible in any w ay for the operations or security of the ho te l. The off-base location weighs against application of the Feres doctrine. See Green , 8 F.3d at 700 (concl u ding that plaintiff “was not injured incident to [mi l itary] service” where p laintiff “was injured while off base and before he was due at m orning form ation”) (internal quotation m arks om itted).

2. Second Johnson Factor—Duty Status When the Tortious Act Occurred

In Johnson , we held that the “duty st atu s” factor is “not d is p o sitive,” and that this factor “cannot be m echanicall y applied.” 704 F.2d at 1437–38. Rather, “ [t]he im p ortant

3 The report pre p are d by the National Prison Rape Elimination Comm ission, chaired by the Honorable Reggie B. W alton, is available at https://www.ojp.gov/pdffiles1/226680.pdf (last visited July 7, 2022).S P L E T S T O S E R V

. H YT E N 32 question is whether the service m em b er o n active duty status
was engaging in an acti v i ty that is related in som e relevant
way t o h i s m ilitary duties.” Id

. at 1438. W e explained in Johnson that, while the p laintiff was “undeniably an ac tive
m em ber of the Air Force at the tim e of the accident and thus
on active duty status,” that status “[i]n and of itself

. . . is not relevant to our inquiry.” Id

. W e determ ined that the plaintiff “was in the sam e position that any civilian employee” at the club would have been in at the tim e of th e g overnm ent’s
n eg lig en ce, and that circum stance was “su f f i cien t to elimin ate any relevant links between his acti v i ties and his m ilitary service.” Id

. (footnote reference om itted)

. S ee also Lutz , 944 F.2d at 1 4 8 5–86 (“Wh ile the absence of active-duty status

. . . m ay defeat the application of Feres , [its] presence is insufficient, standing alone, to invok e Fe res .”) (citation
om itted).

In Dreier , we followed the analysis in Johnson and held that the soldier’s “p resence at the [recreation] area was indistinguishable from that of a civilian,” and that he “was in the sam e position as any civilian would have been at the tim e of the governm ent’s negligence.” 106 F.3d at 853. W e thus determ ined that even if this factor “weighs slightly in favor o f
a Feres bar,” it was “not determ inative.” Id

. In Schoenfeld , 492 F .3d at 1023, we noted that while the p laintiff was an active duty m arine, he was on liberty at th e tim e of the incident. Thus, the plaintiff’s active d uty status “cut[] in favor of applying Feres , but not strongly g iven that he was on liberty at the tim e.” Id

. (citat i o n o m i tt ed). W e concluded that “because [the plaintiff] was not engag e d i n m ilitary activity when h e was injured,

. . . his duty status [wa s ] at best m arginally relevant to the Feres analysis.” I d

. (citation om itted); see also Green , 8 F.3d at 697 (concludingS P L E T S T O S E R V

. H YT E N 33
that although p laintiff, an Army reservist, was p artic i pating in a w eekend-long training session, had p art i c i p ated in a parachute jum

p until 3:00 a.m

. on Saturday m orning and h ad to report to form ation at 9:00 a.m

. that sam e m orn i n g, the Feres doctrine did n ot bar liability for plaintiff’s injury sustained off-base fifteen m inutes before form ation). Spletstoser acknowledges that she was o n active-duty status, but e mp hasizes that the incident occurred during her per s onal tim e. Indeed, the incident occurred as Spletstoser
was p reparing for bed in her privat e h otel room , where she
was not expecting any visitors. Although Hyten cam e to Spletstoser’s hotel room “under the p retense of work-related purposes,” the two did not discuss any m ilitary m att e rs. Further, Hyten arrived at the door to Spletstoser’s hotel room , not in uniform , but weari n g workout clothes. Spletstoser, preparing for bed in h er private hotel room , “was in the sam e position as any civilian would have been at the tim e.” Dreier , 106 F.3d at 853; see also Johnson , 704 F.2d at 1438. These facts weigh agains t application o f the F eres doctrine. See Johnson , 704 F.2d at 1438.

3. Third J

o hnson Facto r—B en efits A ccru in g D ue to Status as a Service Member Analysi s of this factor centers around whether a service
m em ber has access to an on-base or governm ent-sponsored activity, event, or service, to the exclus i o n 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 servic e m em bers injured while engaging in on-base o r governm ent-sponsoredS P L E T S T O S E R V

. H YT E N 34
recreational activities.” 704 F.2d at 1438 (citations om itted). W e explained that the “one f act or th at best explains the
r e s u lts in these cases is that the plaintiffs had access to th e various recreational and m edical benefits onl y b e cause o f their status as m ilitary personnel.” Id

. But un l i k e those cases, Johnson held a job that is “identified with thos e routinely perform ed b y civilian[s],” that could not “logically be distingu i s he d from second jobs held by other off-duty
m ilitary p ersonnel,” or “characterized as a privileg e o r b enefit incident to his m ilitary service.” Id . at 1439.

In Bon , we noted that “[u]nlike Johnson

. . . Bon enjoyed the use o f the Special Services C enter solely by virtue of her status as a m em

ber o f the m ilitary,” and “did not occupy a status sim ilar to that of any c i v ilian with respect to her presence o n and us e o f the Special Service Center’s facilities.” 802 F.2d at 1095 (citation om itted). Thu s , we concluded that the “benefits accruing to plaintiff because of her status as a m em

ber of the m ilitary

. . . clearly indicate that the activity was incident to m ilitary service.” Id

. In Dreier , we distinguished Bon bec au se in Bon , “the Special Services Center was lim ited to m ilitary personnel and their guests and dependents,” but the recreational area in Dreier “was generally open to the p ublic, at least w ith an easily-acquired pass.” 1 06 F.3d at 853 ( c it ation om itted). W e analogized the soldier’s situati on in Dreier to Johnson , and determ ined that like “the bartending job of the plaintiff in Johnson , [the sold i e r ’s] ability [in Dreier ] to use the [recreational] area ‘can hardly be characterized as a privilege
or benefit incident to his m ilitary service.’” Id

. (citing Johnson , 704 F.2d at 1439).S P L E T S T O S E R V

. H YT E N 35

In Costo , we determ ined that the closely-analogous case of Bon wa s controlling and reasoned that, “[l]ike the canoe rental in Bon , th e r afting trip [in Costo ] was provided as a benefit of m ilitary service.” 248 F.3d at 867. W e reiterated that “m ilitary-sponsored recreational program s” fa ll within the Feres doctrine. Id . at 869.

In McConnell , we f

irst noted that b oat rentals at the Ai r Force base’s Recreation Center we r e only available to “active d uty m e mb ers and their fam ily m em bers,” and “guests h ad to be supervised an d accom panied by m ilitary personnel,” m aking these facts “m ore like the situation in Bon than in Dr e i e r
. ” 4 78 F.3d at 1097. W e noted that the d e c e a s e d ’ s a c t i v i t i e s i n M c Co n n e l l “ w e r e p u r e l y recreational,” as w ere the activities of the plaintiffs in Bon and Costo

. Id

. These co mmo n fa c ts “weigh[ed] in favor o f the application of the Feres doctrine.” Id

. (footnote reference
om itted).

In Schoenfeld , we characterized this third Johnson f actor
as “dr[awing ] a clear line between cases” involving service
m e mb e r s who had access to the tortious activity “only because o f th ei r status as m ilitary personnel,” and “those where civ i l i an s m ight also h ave access.” 492 F.3d at 1020 (citation om itted). W e distinguished the facts in Schoenfeld from those in Bon and Costo , explaining th at , “ [i]n Bon , we em phasized that [the plaintiff] was able to rent a canoe only because of her m ilitary status.” Id

. at 1 024 (citation om itted). Sim ilarly, we noted that, in Costo , the rafting trip “was open only to servicem en.” Id

. at 1022 (citat i o n om itted). W e determ ined that the “factual circum stances of [ Schoen feld]
are c l o s e r to Johnson and Dreier ,” because the p laintiff in Schoenfeld “was doing what any m em ber of the p u

blic could have done that Saturday m orning: riding in a car o n Stu artS P L E T S T O S E R V

. H YT E N 36

Mesa Road,” and any benefits of using that road were not incident to m ilitary service. Id . at 1024–25. 4

As stated, the alleged sexual assault occurre d at an offbase hotel. The hotel was equally open to m em bers o f the
m ilitary and civilians. Spletstoser did not have access to her hotel room solely because o f he r s t atus as a m ilitary service
me mb er—any civilian could h ave booked the room

. Although Spletstoser and Hyten were att e n d ing the Forum
on behalf of STRATCOM, Spletsto s e r was preparing for bed in a private hotel room when the incident occurred. She
was not “engaging in o n-base or governm ent-sponsored recreational activities.” Johnson , 704 F.2d at 1438 (citations
om itted). These facts we i g h strongly against application o f 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 doctri n e

. S

ee 704 F.2d at 1439. First, at the tim e of the tortious act, the plaintiff “was not subject in any real way to the com pulsion of m ilitary orders or perform ing any s ort o f
m ilitary m ission.” Id

. (citat i o n s o m itted). Rather, the plaintiff stood “in exactly the sam e position as a civilian
em ployee” and “could just as easily have been injured had he
never w orn a uniform at all.” Id

. (citati o n , alteration, and internal quotation m arks om itted).

4 This analysis m irrors the Suprem e Court’s reasoning in Brooks

. See 337 U.S. at 52 (observing that the m otor vehicle accident “had n o thing to do with the [service m em bers’] arm

y careers”).S P L E T S T O S E R V

. H YT E N 37 Second, because the plaintiff “was off-duty and working at a n on-m ilitary second job, h i s activities were purely personal.” Id

. at 1440 (citations and internal quotation m arks
om itted). Third, the plaintiff’s activities did “not involve

. . . close
m ilitary judgm ent calls,” and the tortious c o nduct d id not
occur “because o f a dec ision requiring m ilitary expertise o r judgm ent.” Id

. These sam e three reasons weigh even m ore he avily in Spletstoser’s favor be c au s e the tortious act at issue in this
case is th e i n te ntional tort of sexual assault. It is unim aginable that Plaintiff wo u l d have been “under o rders” to subm it to Hyten’s sexual advance s , o r that she was perform ing any sort of m ilitary m ission in c o n j unction with th e alleged assault. Schoenfeld , 492 F .3d at 1025; s e e a l s o Green , 8 F.3d at 700. Rather, Spletstoser, like the plaintiffs in Johnson and S

choenfeld , “ s t[ood] in exactly the sam e position as a civilian.” Johnso n , 7 04 F.2d at 1439; see also Schoenfeld , 492 F.3d at 1025. And there can be no doubt that if H yten had engaged in the sam e conduc t with a civilian staying at the hotel, he would have been subject to legal action. S ee Johnson , 704 F.2d at 1440. Notably, the tortious “a c t ivities” here w ere far m ore “personal” than those in Johnson

. 7 04 F.2d at 1440 (citation
om itted). Indeed, “private sexual c o nduct” and “intim ate association” are at the es s ence of an individual’s personal life. Lawrence v. Texas , 539 U.S. 558, 5 78 (2003); see also Oberge f el l v. Hodges , 5 76 U.S. 644, 646 (2015); Lutz , 944 F.2d at 1485 (determ ining that claim s based on “opening [p l aintiff’s] personal m ail” and dissem inating that privat e inform ation was not Feres -barred).S P L E T S T O S E R V

. H YT E N 38 Finally, the asserted tortious act (sexual assault) d oes not “involve” a “close m ilitary judgm ent call[].” 5 Joh n s o n , 704 F.2d at 1440. A claim based on sexual assault is a far cry from those calling into question basic choi c e s about the discipline, supervision, an d c o ntrol of m ilitary personnel. See Shearer , 473 U .S. at 5 8 (describing “com plex, sub tle, and professional decisions” that “are essentially professional
m ilitary judgm e n t s ” ) ; see also B owen , 1 25 F.3d at 805 ( following Shearer in concluding that m ilitary “personn el decisions” are incident to m ilitary service).
Unlike in Shearer , S pletstoser has n ot asked this Court to determ ine whether the m ilitary “inadequate[ly] supervis[ed]”
or failed to train Hyten with regard to sexual harassm ent and assault. D reier , 106 F.3d at 854 (footnote reference om itted). Neither has Spletstoser asked this Court to: (1) exam ine the
m anner in which the Air Force Office of Special Investigation carried o ut its investigation of her allegations; (2) evaluate the Report of Investig ati o n prepared b y the Office of S pecial Investigation; (3 ) a d dress the Departm ent of Defense’s and Air Force’s fa i l ur e to punish Hyten; or (4) enter a m ilitary protective order. Those matters are not before us and we express no view on them

. S ee 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 f

ollows f rom our prior rulings that the failure of the m ilitary to: (1) “follow establis he d m i l itary rules and procedures governing the o peration o f its NC O C l ub,” Johnson , 704 F.2d at 1440; (2) o versee the safety of a w ater treatm ent plant on its base, see Dreier , 106 F.3d at 853; and (3) o versee road repair on its base, do not “involve the sort of close m ilitary j udgm ent call[s] that the Fer es do c tri ne was designed to insulate from judicial review.” Schoenfeld, 492 F.3d at 1026 (citation om itted).S P L E T S T O S E R V

. H YT E N 39 requiring m ilitary expertise or judgm ent.” Johnson , 704 F.2d at 1 440. Frankly, it would be a highly unusual circum stance when a sexual assault consisting of th e facts alleged by Spletstoser would further any conceivable m ilitary purp o s e, and thus be considered incident to m ilitary 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 fi n d it inconceivable that Feres would be read to precl u d e a suit against the individual defendants in such a situation”) (em

phasis added) (footnote re ference omi tte d ); see also id

. at 1487 (“Intentional tortious and unconstitutional acts directed by o n e servicem em ber against another which further n o conceivable military purpose and
are not perpetrated dur i n g the course o f a m ilitary activity surely are past the reach of Feres . . . .”) (em phasis added).

III. CONCLUSION

In Lutz , we began our Feres analysis by stating that “not every action by one m em ber o f the arm ed services against another im

p l ic ates m ilitary decision m aking, relates to the
m ilitary m ission, or is incident to service.” 944 F.2d at 1484. Thus, one m ight question why we engaged in this painstaking analysis to reach the conclusion that the a l leged sexual assault that occurred here was n o t an activity “incident to service.” Feres , 34 0 U. S. at 146. The answer is that, in Lutz , we also
cau t i o n ed against p erform ing a superficial Feres analysis. S ee Lutz , 944 F.2d at 1484. In addition, w e recognize the expansive nature of the Feres doctrine, see D reier , 106 F.3d at 844, and were careful not to truncate its reach without d ue deliberation. But after our exhaustive exam i n ation o f Suprem e Court and C ircuit p recedent, we are c o m pelled to hold today that no m atter h ow expansive the Feres d o c tr ineS P L E T S T O S E R V

. H YT E N 40
has becom e, it does n o t encom pass the facts of this alleged sexual assault.

Aft er analyzing the f

actors set f

orth in Johnson and considering th e to tality o f th e circum stances, we are confident in our determ ination that this act of alleged sexual assault was not incident to m ilitary service, and Spletstoser’s action is not barred by the Feres d o c trine. 6 W e also reiterate that the existence o f a sexual assault allegation weighed h eavily in the analysis of the Johnson factor s

. Such an egregious intentional tort creates circum stanc e s that are far different from Feres cases that h ave dealt with: (1) m ilitary m issions,
see Johnson , 481 U.S. at 692; (2) m ilitary-sponsored recreati on a l activities, see McConnell , 478 F .3d at 1097; (3) m edical m alpractice, see Van Sickel , 285 F.2d at 88; and (4) the m anagem ent, supervision, or training of m ilitary personnel , see Shearer , 4 73 U.S. at 58; Dreier , 106 F.3d at 8 54. Indeed, as we rem arked in Lutz , we “cannot fathom ” how the alleged se xu al assault in this case could ever be considered an activity “inc i d ent to [m ilitary] service.” 944 F.2d at 1486. After considering the Johnson factors and other c a s e s analyzing the Feres doctrine, we agree with the district court that S p letstoser’s action is not barred by the Feres doctrine at this stage o f the proceedings, and therefore

6 Although under the f

acts in this case, the Johnson factors support the
con c l u sion that the Feres d octrine did not bar this action, we r epeat t hat not every factor need favor th e p l a i ntiff to defeat Feres im m unity. See, e.g., Schoenfeld, 492 F.3d at 1023–26 ( concluding that the third and fourth factors w eighed against application o f the Fer es d o c trine); Johnson , 704 F.2d at 1437–40 (sam e).S P L E T S T O S E R V

. H YT E N 41
the m otion to dism iss w as properly denied. See Lu t z , 944 F.2d at 1487.

AFFIRMED.