Feres Doctrine's day off

Unlike their civilian counterparts, women who are sexually assaulted in the military have not been able to sue for their injuries. The reason victims of sexual assaults in the military cannot sue the government is the Feres Doctrine. But Colonel Kathryn Spletstoser sued General John E. Hyten, in his personal capacity, for sexual assaults he inflicted upon her while she was serving in the United States Army. On July 13, 2023, the United States of America entered into a settlement agreement with Colonel Spletstoser for $975,000.

This article will discuss the history of the Feres Doctrine. It will also attempt to unravel how this civil lawsuit against the alleged perpetrator was settled, not with the perpetrator, but with the United States government, despite the immunity from such suits the government enjoys under the Feres Doctrine.

The Federal Tort Claims Act

In 1945, the whole country became aware of what sovereign immunity was when a military plane making its way through Manhattan fog swerved to avoid the Chrysler Building and crashed into the 78th floor of the Empire State Building. The resulting loss of lives and property were the impetus for the Federal Tort Claims Act, which was enacted and signed into law by President Harry Truman in 1946. (FTCA; 28 U.S.C.A. §§ 1346(b), 2674.)

Until that point, the federal government enjoyed sovereign immunity. That basically means you can't sue the king. But with the passage of the FTCA, sovereign immunity was waived. Persons who suffered torts from the negligence of the government could bring suit for injuries.

Feres v. United States

Thus, when a young active-duty Lt. Rudolph Feres was killed in a barracks fire due to the negligence of the military, his family sued the government for wrongful death. In the 1950 case of Feres v. United States, 340 U.S. 135, the United States Supreme Court held that the government could not be sued for injuries incident to military service. This is the holding known as the Feres Doctrine. It prevents lawsuits for injuries such as military sexual trauma, or respiratory conditions resulting from burn pits or any other actions directly against the military or the government by present or former members of the military. In short, the Feres Doctrine allows the federal government to exempt itself from the FTCA for torts causing injuries incident to military service.

Many have tried to roll back the Feres Doctrine over the years

For decades, there have been attempts to plead around or overturn the Feres Doctrine. In Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics (1971) 403 U.S. 388, the Supreme Court ruled that, even in the absence of a statute, federal officers who violate constitutional rights can be sued for money damages directly under the Constitution. Yet in United States v. Stanley (1987) 483 U.S. 669, involving a former serviceman who sued military officers and civilian personnel for the secret administration of LSD to him, the Court held that no Bivens remedy is available for injuries that arise out of or are incurred in the course of activity incident to military service. In other words, the Feres Doctrine trumped a Bivens remedy.

In the context of military sexual assaults, in 2011, 28 sexual assault victims filed a class action against Donald Rumsfeld and Robert Gates. They alleged these former secretaries of defense fostered an environment that resulted in the plaintiffs becoming victims of sexual assault, violating their rights under the First, Fifth and Fourteenth Amendments. Their claims were also made pursuant to the Bivens holding. Finding that the "unique disciplinary structure of the military establishment" prevented the case from proceeding, the federal trial court dismissed it. (Cioca v. Rumsfeld (2011; WL 13137348) U.S. District Court, not reported.) The Fourth Circuit Court of Appeals affirmed, noting that Congress has not created an express cause of action as a remedy for this type of claim, and that "it is Congress, not the courts, that the Constitution has charged with that responsibility." (Cioca v. Rumsfeld (2015) 720 F.3d 505.)

In another case, a woman in the National Guard on temporary duty was assaulted by a man who outranked her. Ashamed, she did not report the incident. For the next eight years, the sergeant made constant sexual insinuations and invitations, which she didn't report either, out of fear of both losing her job and damaging her reputation. When she did not answer his telephone calls, he had her transferred closer to him. One night, he raped her. She brought an action for violation of her civil rights. A federal district court found the woman's claims arose from injuries incident to military service and were barred by the Feres Doctrine. (Perez v. Puerto Rico Nat. Guard, 951 F.Supp. 2d 279 (U.S. District Court, D. Puerto Rico, 2013.))

In a medical malpractice setting, a servicewoman was required to perform physical training while she was pregnant, against doctor's orders. Army personnel were told she had a "high risk" pregnancy but still required her to perform strenuous physical activities. At one point, she underwent a procedure to prevent premature birth. Ultimately, her son was born prematurely and died 30 minutes after birth. The baby's father filed an action in a federal district court on behalf of himself and the baby's estate, avoiding having the servicewoman sue the government herself. The Ninth Circuit Court of Appeals ruled against the father and son, stating that "unless and until Congress or the Supreme Court choose to 'confine the unfairness and irrationality that [Feres] has bred,' we are bound by controlling precedent." (United States v. Ritchie (2013) 733 F.3d 871.)

Hint that U.S. Supreme Court might reverse its holding in Feres

After another servicewoman gave birth to a baby in a naval hospital, she experienced postpartum hemorrhaging and died approximately four hours after delivery. The woman's husband brought an action for medical negligence. A federal trial court dismissed the case under the Feres Doctrine. In affirming, the Ninth Circuit Court of Appeals stated: "If ever there were a case to carve out an exception to the Feres Doctrine, this is it. But only the Supreme Court has tools to do so." (Daniel v. United States (2018) 889 F.3d 978.)

Accordingly, the decedent's husband filed a petition for certiorari in the United States Supreme Court on Oct. 11, 2018. The U.S. Solicitor General waived the right to respond. But the high court ordered the federal government to provide a formal response by Dec. 28, 2018. During 2019, the case came up week after week on the Supreme Court's calendar. It looked as if change to the Feres Doctrine was about to be made. Finally, on May 20, 2019, certiorari was denied. Justice Thomas took the unusual step of writing a dissent to the court's decision to deny Mr. Daniel's petition. He wrote that "Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received." (139 S.Ct. 1713.)

First Chink in the armor of the Feres Doctrine

Not long after the Supreme Court took so long to deny certiorari in Daniel v. United States, Congress also took an unusual step. In December 2019, when it enacted the 2020 National Defense Authorization Act, it mandated that medical malpractice cases may now be filed by active-duty military personnel. (10 U.S.C. 2733a.) That means that active-duty servicemembers may now sue the government for medical malpractice. The Department of Defense authorized regulations for those suits in 2021. (32 CFR 45; 86 Fed. Reg. 32194-01.) Thus, 70 years after the Feres Doctrine was crafted by the Supreme Court, there was finally a narrow exception to it.

Second chink in the armor of the Feres Doctrine

The Pact Act was championed by celebrity Jon Stewart and enacted in August 2022. (Pub.L. No. 117-168.) Under the Pact Act, veterans exposed to toxic substances in wars since and including Vietnam no longer need to prove certain health conditions are connected to their military service to receive benefits. There is a long list of conditions that are presumed to be caused by Agent Orange burn pits and other toxins, including bronchitis, sinusitis, asthma, lung cancer, pneumonia, interstitial lung disease, COPD or chronic obstructive pulmonary disease, emphysema, granulomatous disease and others.

Also part of the PACT Act was the Camp Lejeune Justice Act. While the main part of the PACT Act establishes presumptions for certain diseases relating to claims made to the Department of Veterans Affairs, the Camp Lejeune section of the Act creates a new federal cause of action for anyone exposed to contaminated water at the base for at least 30 days between 1953 and 1987. The Camp Lejeune Justice Act specifically forbids the government from asserting immunity under the Federal Tort Claims Act. That was a second narrow exception to the Feres Doctrine.

The Colonel's lawsuit against the General

Army Colonel Spletstoser's action against Air Force General Hyten involved both sexual harassment and sexual assault. After she began serving under the General on a joint-branch assignment, he allegedly began his advances. It's not necessary to go into the particulars of the allegations in the Colonel's pleading, but it's pretty awful stuff.

A court document relates similar and escalating conduct occurred in many places around the world. Prior to the Colonel's repeated opposition to his sexual advancements and assaults, the General gave her extraordinary reviews, but became upset with her refusals and undertook to retaliate against her. He initiated proceedings and she was relieved from her position.

In 2019, it was announced the General was nominated to become the Vice Chairman of the Joint Chiefs of Staff. The Colonel disclosed the General's conduct to the Air Force Office of Special Investigation. She was denied her request to testify at General Hyten's Senate confirmation hearing. The General was confirmed as the second most senior officer in the United States military.

The Colonel sued the General alleging seven state law claims. The General moved to dismiss the action under the Feres Doctrine. A federal judge in California denied the motion. (Spletstoser v. United States, 2020 WL 6586308 (2020).)

On Aug. 11, 2022, the Ninth Circuit Court of Appeals affirmed denial of the motion to dismiss, stating: "[C]onsidering the totality of the circumstances, we are confident in our determination that this act of alleged sexual assault was not incident to military service ..." 44 F.4th 938 (2022).]

Meanwhile, the Air Force cleared the General of sexual misconduct allegations

According to a July 10, 2019 CNN report, the Air Force cleared President Donald Trump's nominee to become vice chairman of the joint chiefs of staff of allegations of sexual misconduct. A senior military official told CNN there was no evidence or information found to substantiate allegations made against Hyten by a "junior female officer."

The report quoted a statement issued by the Pentagon: "After a comprehensive investigation by the Air Force Office of Special Investigations, there was insufficient evidence to support any finding of misconduct on the part of General Hyten. General Hyten has cooperated with the investigation. With more than 38 years of service to our nation General Hyten has proven himself to be a principled and dedicated patriot."

How the government got involved in the legal action when the General was sued as an individual

Court documents show the Attorney General of the United States certified that the General was acting within the scope of his employment when he committed the acts alleged by the Colonel. The Department of Justice's appellant's brief in the Circuit Court case states: "[T]he Department of Justice certified that General Hyten was acting within the scope of his office or employment at the time of the incidents from which Colonel Spletstoser's claims arose. [] Accordingly, the Department notified the district court that, pursuant to the Westfall Act, the United States is properly substituted for General Hyten as the sole defendant in this action."

Under the Westfall Act, 28 U.S.C. 2679 (b)(1), federal employees, such as the General, have absolute immunity from common law torts arising out of negligent and wrongful acts or omissions when acting "within the scope of his office or employment." Thus, for some reason, the Attorney General took the General off the hook.

The settlement

The settling parties are the Colonel and the United States of America. The General's name is not in the settlement document. The document states the United States agrees to pay the Colonel $975,000 to resolve her claims. It is signed by the Colonel and a trial attorney with the Department of Justice.

The settlement document can be found at: https://www.fedemploylaw.com/documents/Dt.-No.-70-Fully-Executed-Settlement-Agreement-_Spletstoser-v.-Hyten-US.pdf

Conclusion

For over seven decades, many have tried to sue the government for torts committed by members of the military. None have been successful, until now. Why? The United States Supreme Court hasn't reversed its holding in Feres v. United States. Nor has Congress enacted a statute permitting actions against the government for military sexual assaults.

However, after a federal court ruled against the second highest ranking officer in the United States military who was sued for sexually assaulting a servicewoman, the United States government decided to relieve the General from having to take responsibility for his actions. It could be the government feared that such a high-ranking military official would be rendered vulnerable to outside influence if he had a large judgment against him. But whether the Justice Department was motivated to protect the General, to prevent precedent by way of the Supreme Court's overturning Feres, to carry out a promise made by a previous administration, or something else, is unknown.

What is known is that the federal government gave the Feres Doctrine a day off. It's too bad the government doesn't send the Feres Doctrine on a permanent vacation, so the up to one-in-ten military women who experience unwanted sexual contact could have the same recourse as the Colonel. The number of assaults have increased nearly every year since 2006. Overall, there were more than 8,942 reports of sexual assaults during the 2022 fiscal year.