Sex assault case against general can be tried in civilian court

A federal judge has allowed a sexual battery case involving the vice chair of the Joint Chiefs of Staff to go forward, saying it was inconceivable his military duties include sexually assaulting a female colonel.

Plaintiff Army Col. Kathryn Spletstoser's claim arising out of a Dec. 2, 2017 alleged incident at a hotel in Westlake is not subject to a decades-old doctrine that exempts the federal government in tort actions brought by an injured military service member, U.S. Judge Michael W. Fitzgerald ruled Thursday.

Spletstoser first accused Gen. John Hyten of sexual misconduct and harassment she said occurred throughout 2017. Hyten is the second most senior officer in the U.S. military. Spletstoser alleged incidents occurred in several locations around the globe, and that she was retaliated against when she deflected her superior's advances. Her first complaint was dismissed after the court ruled those claims were barred under Feres v. USA 340 U.S. 135 (1950). Feres held the United States is not liable under the Federal Tort Claims Act for injuries to military members on active duty.

The United States, which substituted in as a defendant, argued for dismissal, contending Spletstoser amended her lawsuit to drop the other allegations that arose from her military service. Her previously pleaded claims are subject to the Feres doctrine, the government argued. Furthermore, the act shields the government from liability under the Westfall Act, which gives federal employees immunity from common law tort claims arising out of wrongful acts of an employee acting within the scope of employment, according to Reginald M. Skinner of the Justice Department. Spletstoser's amended complaint was reduced to one alleged incident at the Westlake hotel. Kathryn Spletstoser v. USA, 2:19CV10076 (C.D. Cal., filed Nov. 25, 2019)

Fitzgerald disagreed with the government, finding the Westlake incident occurred off base, off duty and at a location not subject to military control as required by the Feres Doctrine and the Federal Tort Claims Act. The parties were in a private hotel after an event run by a civilian group and funded by businesses in the private sector, the judge reasoned. Nor was Hyten acting within the scope of his employment, the judge said. While Spletstoser was invited to the event given her position with the U.S. Strategic Command, it didn't mean the trip was incidental to her military service, Fitzgerald wrote.

"In looking at both the complaint and the FAC, the court determines that the alleged sexual assault cannot conceivably service any military purpose. Regardless of whether General Hyten came to plaintiff's hotel room under the pretense of work-related purposes, it is not conceivable that General Hyten's military duties would require him to sexual assault plaintiff, or that such an assault would advance any conceivable military objective," Fitzgerald wrote. "Considering all the factors, the court determines that plaintiff's claims do not fall within the Feres doctrine."

"The fact that she was allegedly assaulted by a higher-ranking officer is an important factor but does not, by itself, bring this claim into Feres doctrine territory," the judge wrote.

A spokesperson for the Department of Justice declined to comment on Fitzgerald's ruling.

Ariel E. Solomon, managing principal at Solomon Law Firm PLLC, who represents Spletstoser, said the judge's decision was important, as legal protections offered to sexual assault victims "are virtually nonexistent because of the Feres doctrine, an immunity created by the Supreme Court nearly 70 years ago."

"Congress is failing men and women in the military who are sexually assaulted. The Feres doctrine should be overturned to make clear that regardless of the circumstances, sexual assault is never going to be considered an activity incident to military service," Solomon said. "We remain hopeful that legislative initiatives, like those undertaken by Senators [Richard] Blumenthal [D-Connecticut] and [Kirsten] Gillibrand [D-New York] will pave the way to greater remedies for sexual assault victims in the future."

Fitzgerald's ruling recognized Feres was never meant to create unfettered immunity to military service members, she added. Whether or not there is a risk of disrupting military disciplinary structure is also a relevant factor when evaluating whether Feres applies, Solomon added. Fitzgerald ruled potential interference with military discipline wasn't a persuasive factor here, as no disciplinary action was taken against Hyten.

"The doctrine was created to protect the military from lawsuits and is widely criticized as wrongly decided; including most notably, by former Justice Antonin Scalia," she said, citing the late justice's dissent in United States v. Johnson, 481 U.S. 681 700 (1987). Scalia opined the Federal Tort Claims Act was reinterpreted by the Feres court in a way that was never intended by Congress.

"Unfortunately, most of the cases dealing with Feres are often accompanied by thoughtful, sometimes remorseful decisions by a trial level judge who ends up dismissing the case for lack of subject matter jurisdiction," Solomon said.

The United States was also denied its motion to transfer the case to the District of Nebraska, where the STRATCOM office is headquartered. Fitzgerald said the conduct occurred in California, not Nebraska.

Hyten was nominated to be vice chair of the Joint Chiefs of Staff in April 2019. The allegations by the plaintiff were reported to the Air Force Office of Special Investigations which launched a probe into Spletstoser's claims. Hyten was issued a military protective order for a few months and was prohibited from having any contact with Spletstoser. That order was lifted in September 2019.

The United States has until Nov. 9 to respond to the complaint.