The plaintiff initially filed her lawsuit and prevailed in a federal court in California, where the alleged assault took place. Image: Alex Staroseltsev/Shutterstock.com
By: FEDweek StaffService members should be allowed to sue others in uniform for harm caused by sexual assault, a federal court has ruled. The decision, issued Aug. 11 by a three-judge panel with the 9th U.S. Circuit Court of Appeals, overrules the Feres doctrine – the longstanding ruling that bars service members from suing the government for damages they sustained while in uniform – that arise out of or are in the course of activity incident to military service.
The case was filed by a former Army colonel, against a former Air Force General.
The plaintiff initially filed her lawsuit and prevailed in a federal court in California, where the alleged assault took place. The lower court ruled that the Feres doctrine was not applicable because the “alleged sexual assault [could] not conceivably serve any military purpose.”
The 9th Circuit panel – Circuit Judges Johnnie B. Rawlinson and Consuelo M. Callahan and District Judge Frederic Block – cited numerous related legal cases to justify their unanimous ruling.
“After our exhaustive examination of Supreme Court and Circuit precedent, we are compelled to hold today that no matter how expansive the Feres doctrine has become, it does not encompass the facts of this alleged sexual assault,” Rawlinson wrote in the opinion. “We are confident in our determination that this act of alleged sexual assault was not incident to military service.”
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:
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 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,” according to the opinion.
An Air Force investigation into the alleged incident came to no conclusion. As a result, the defendant faced no internal disciplinary action and was allowed to retire. He now can appeal the circuit court decision to the U.S. Supreme Court.
Friendly Fire
Members of the military that want to file a lawsuit against other military personnel must navigate a specific set of legal protocols due to the unique nature of military law and the chain of command.
Generally, military personnel issues are handled within the military justice system rather than through civilian courts.
Initially, military members should try to address grievances through their chain of command, in an attempt to resolve disputes internally. Of course this isn’t always possible or desirable.
Informal resolution such as mediation or negotiation facilitated by military legal advisors or supervisors should be considered, if not attempted.
UCMJ: If informal methods fail, the aggrieved party may seek recourse through the UCMJ. Complaints are typically handled by a commanding officer, who will decide whether to refer the case to a military court for further action.
Disputes that cannot be resolved informally or through the chain of command may proceed to military courts, such as courts-martial or special courts that handle specific types of cases (e.g., financial disputes or personal injury). Military personnel involved in lawsuits may be entitled to military legal counsel, known as Judge Advocates (JAG officers), who specialize in military law.
They can also choose to hire civilian attorneys with experience in this field. In rare cases where the dispute involves issues beyond the scope of military law (for instance, certain personal injury claims or property disputes), it might be possible to bring the case to a civilian court, but this typically requires the approval of military authorities and consideration of jurisdictional constraints.
Feres Doctrine
The Feres Doctrine covers a broad range of activities and scenarios, including medical malpractice by military doctors, accidents during training exercises, and injuries sustained in combat. Over the years, the doctrine has been the subject of substantial controversy and debate, with critics arguing that it denies service members and their families rightful compensation for negligence or wrongdoing by the military. The above case illustrates how and when matters could fall outside of the doctrine.
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