A 2022 ruling by the Ninth Circuit Court of Appeals allowed a sexual assault claim against a fellow service member to proceed past the Feres doctrine, opening a path that had been closed for decades.
For a service member facing an allegation, the significance is not the doctrine itself. It is that one set of facts can now produce two proceedings at once, on separate timetables, under different rules about what has to be disclosed. Joseph L. Jordan, Attorney at Law defends courts martial in the Army, Navy, Air Force, Marine Corps, Coast Guard, and Space Force, and a case carrying parallel civil exposure has to be handled as a single matter rather than as two.
Retired Army Col. Kathryn Spletstoser v. Retired Air Force Gen. John Hyten
The federal lawsuit brought by retired Army Col. Kathryn Spletstoser alleges that Gen. John Hyten made unwanted sexual advances toward her while she served as his aide during his tenure as head of U.S. Strategic Command.
The allegations became public when Hyten was nominated by President Trump to serve as vice chairman of the Joint Chiefs of Staff.
An Air Force investigation was conducted and did not substantiate Spletstoser’s allegations. She then filed a federal lawsuit against Hyten directly rather than against the government. Justice Department attorneys represented Hyten on the theory that the alleged conduct occurred while both parties were serving.
The Feres Doctrine
The Feres doctrine, arising under the Federal Tort Claims Act, bars service members from suing the federal government for injuries that arise out of or are in the course of activity incident to service. It has been applied broadly since the Supreme Court decided Feres v. United States in 1950.
Hyten’s attorneys moved to dismiss on Feres grounds. The district court denied the motion, concluding that the alleged sexual assault could not conceivably serve any military purpose. Hyten appealed, and the case went to the Ninth Circuit.
The Ninth Circuit Ruling
A three judge panel affirmed the district court. Applying the factors set out in Johnson v. United States, the panel held that the Feres doctrine did not bar Spletstoser’s claims at that stage of the proceedings.
In its conclusion, the court wrote that the alleged sexual assault that occurred in this case was not an activity “incident to service.” The court also emphasized the procedural posture, noting that this was a motion to dismiss in which the truth of the allegations as pleaded must be assumed.
Two points about the ruling are worth keeping straight. First, the phrase “could not conceivably serve any military purpose” comes from the district court’s reasoning, which the Ninth Circuit quoted. Second, the panel framed its holding as applying at that stage of the proceedings, not as a final resolution of the case.
What the Ruling Does and Does Not Do
The decision allows claims like Spletstoser’s to survive a Feres based motion to dismiss in the Ninth Circuit. It does not establish liability, and it does not create a general right to sue the Department of Defense. The ruling is binding only in the Ninth Circuit; other circuits are not obligated to follow it.
What Happened After the Ruling
The case did not go to trial. In July 2023, court records showed the suit settled for $975,000, paid by the government, in the United States District Court for the Central District of California. Hyten, asked about it, said the settlement was between the government and Col. Spletstoser. The Ninth Circuit’s holding stands as circuit precedent; the underlying allegations were never tried.
That sequence is the point for anyone reading this as a preview of their own exposure. Surviving a Feres motion is not a finding of liability, and the case that produced the precedent ended in a negotiated payment rather than a verdict.
Why This Matters to Service Members Facing Allegations
Where both proceedings are live, the criminal case sets the terms. What is said in an administrative interview, at an Article 32 preliminary hearing, or in a civil deposition does not stay in the proceeding it was said in. Mr. Jordan has tried 181 Article 120 courts martial, and the sequencing question, which proceeding moves first and what gets said in it, is one that has to be settled at the opening of a case rather than in the middle of it.
For a service member accused of sexual assault, this ruling adds a dimension that did not previously exist in most cases: the possibility of parallel civil exposure alongside the military justice process. Statements made in one proceeding can surface in the other. Where both are in play, the two need to be handled together rather than separately.
Related Case Results
Where a criminal allegation may now be followed by a civil claim, the outcome of the court martial matters twice. Results include a full acquittal in a nine complainant Air Force sexual assault case and a not guilty verdict in a nine complainant case at Keesler Air Force Base.
Past results do not guarantee future outcomes. Every case turns on its own facts.
Speak With a Military Defense Attorney
Serious charges of sexual assault can end a career. Joseph L. Jordan, Attorney at Law is a former Army Judge Advocate who represents service members facing court martial and related proceedings.
If you are facing an investigation, charges, or a related civil claim, call (888) 643-6254 to discuss how the pieces fit together before you make statements in either forum.