Whaley, et al. v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
PATRICK FEINDT, JR. et al.,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
CIV. NO. 22-00397 LEK-KJM
JESSICA WHALEY et al.,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
CIV. NO. 23-00457 LEK-KJM
JACLYN HUGHES et al.,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
CIV. NO. 24-00059 LEK-KJM
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS WHALEY
FIRST AMENDED COMPLAINT FOR LACK OF SUBJECT-MATTER JURISDICTION
Before the Court is Defendant United States of
America’s (“United States”) Motion to Dismiss Whaley First
Amended Complaint for Lack of Subject-Matter Jurisdiction, filed
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on January 30, 2026 (“Motion”). [Dkt. no. 671.] The same motion
was also filed in Whaley et al. v. United States of America,
CV 23-00457 LEK-KJM (“Whaley”), and Hughes et al. v. United
States of America, CV 24-00059 LEK-KJM (“Hughes”), cases that
are consolidated with the instant case. See Order Granting
United States’ Motion to Consolidate, filed 4/11/24 (dkt.
no. 413).
On February 27, 2026, Plaintiffs filed their
memorandum in opposition to the Motion. [Dkt. no. 684.] The
United States filed its reply on March 20, 2026. [Dkt. no. 707.]
On March 31, 2026, an entering order was issued informing the
parties of the Court’s inclination to grant the Motion (“3/31
Inclination”). [Dkt. no. 718.] The Motion came on for hearing on
April 9, 2026. For the reasons set forth below, the Motion is
granted.1
BACKGROUND
The operative pleading in Whaley is the First Amended
Complaint, [filed 8/11/25 (dkt. no. 236)]. This case arises out
of the May 6 and November 20, 2021 fuel leaks from the United
States Navy’s (“the Navy”) Red Hill Bulk Fuel Storage Facility
1 Because the Motion seeks to dismiss the First Amended
Complaint filed in Whaley, all subsequent docket number
references will refer to the Whaley case docket, unless
otherwise stated.
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on Joint Base Pearl Harbor-Hickam (“Red Hill” and “JBPHH”).
[First Amended Complaint at ¶¶ 4-49.] A detailed background of
the facts at issue in the instant case is set forth in the
Court’s August 7, 2025 Findings of Fact and Conclusions of Law
(“FOFCOL”). [Dkt. no. 235.2] The Court discusses only those facts
relevant to the instant Motion.
The plaintiffs in Whaley (“Whaley Plaintiffs”) are
United States service members. See First Amended Complaint at
pgs. xxii-xxiii; Mem. in Opp. at 1. During the November 2021
fuel release, the Whaley Plaintiffs lived in housing owned by
the military. See, e.g., First Amended Complaint at ¶¶ 63, 71,
78, 86, 93; see also id. at ¶ 1139 (“The United States is the
occupier, owner, and possessor of . . . the housing which
Plaintiffs leased and resided upon.”). Some of the housing was
off base in areas accessible to the public, while some was on
base. See id. at pg. xxiii. The United States also owns Red
Hill, [id. at ¶ 1096,] as well as the JBPHH water line that
pumped potable water to the military housing where the Whaley
Plaintiffs resided, [id. at ¶¶ 9, 1139]. The Whaley Plaintiffs
allege that they lived on the JBPHH water line during the
November 20, 2021 fuel release and that they suffered, among
other things, inconvenience, emotional distress, and personal
2 The Court’s FOFCOL is also available at 2025 WL 2254119.
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injury because of the United States’ negligence. [Id. at ¶¶ 101-
1094.]
The Whaley Plaintiffs allege that on May 6, 2021, a
civilian employee at Red Hill failed to follow protocol and
“‘specific Operations Orders’” and negligently released 19,000
gallons of jet fuel into a fire suppression discharge pipe at
Red Hill. See id. at ¶¶ 11-13, 16. On November 20, 2021, an
employee struck the fire suppression discharge pipe with a train
cart. [Id. at ¶ 16.] The Whaley Plaintiffs contend that “[t]he
Navy violated the Department of Defense requirement to use steel
pipes for fuel transmission.” [Id. at ¶ 22.] They also contend
that, by striking the discharge pipe, the United States
negligently released jet fuel into the environment and
contaminated the Whaley Plaintiffs’ drinking water source. See,
e.g., id. at ¶¶ 16, 21, 1095-1102. The Whaley Plaintiffs state
that, when the contaminated water entered their homes, they were
not acting under any military order and were engaged in personal
activities such as showering, bathing, and cooking food. They
also state that they were not participating in any type of
military-sponsored, recreational activity. See id. at pg. xxiii.
The United States moves to dismiss the Whaley
Plaintiffs’ First Amended Complaint on the grounds that the
Whaley Plaintiffs’ “claims ‘arise out of or are in the course of
activity incident to service,’ and are thus barred under the
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[Federal Tort Claims Act (‘FTCA’)].” [Motion, Mem. in Supp. at 1
(quoting Feres v. United States, 340 U.S. 135, 146 (1950)).] It
admits that the FTCA waives the United States’ sovereign
immunity over tort claims, but it contends that this waiver is
limited. See id. at 5. It notes that one such limit is the Feres
doctrine, which it claims stands for the proposition that “the
[United States] is not liable under the Federal Tort Claims Act
for injuries to servicemen where the injuries arise out of or
are in the course of activity incident to service.” See id.
(quotation marks and citation omitted). The United States argues
that this case is factually analogous to the facts at issue in
Feres and therefore “the Feres bar clearly applies” to strip the
Court of jurisdiction. See id. at 8.
Plaintiffs, on the other hand, argue that activities
such as boiling potatoes for Thanksgiving dinner and washing
baby bottles are not incident to military service. [Mem. in Opp.
at 1.] They contend that the critical issue that must be
resolved is determining whether the nature of the Whaley
Plaintiffs’ activities at the time of injury was personal in
nature. They argue that their activities were purely personal
and bear no relationship to their military service as service
members. Thus, they contend, the Feres doctrine does not apply.
See id. at 1, 14-17.
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STANDARDS
I. Rule 12(b)(1) Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(1)
authorizes a defendant to move for dismissal of
an action for “lack of subject-matter
jurisdiction[.]” “Once challenged, the party
asserting subject matter jurisdiction has the
burden of proving its existence.” Robinson v.
United States, 586 F.3d 683, 685 (9th Cir. 2009)
(citation and quotation marks omitted). . . .
. . . .
“A Rule 12(b)(1) jurisdictional attack may
be facial or factual.” Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)
(citation omitted). “A ‘facial’ attack accepts
the truth of the plaintiff’s allegations but
asserts that they are insufficient on their face
to invoke federal jurisdiction.” Leite v. Crane,
749 F.3d 1117, 1121 (9th Cir. 2014) (citation and
some internal quotation marks omitted). “A
‘factual’ attack . . . contests the truth of the
plaintiff’s factual allegations, usually by
introducing evidence outside the pleadings.” Id.
(citations omitted).
Pub. Int. Legal Found., Inc. v. Nago, CIV. NO. 23-00389 LEK-WRP,
2024 WL 3233994, at *2–3 (D. Hawai`i June 28, 2024) (some
alterations in Pub. Int.). The United States brings a facial
attack. See Motion, Mem. in Supp. at 5.3 The Court therefore
3 At the April 9, 2026 hearing, Plaintiffs provided the
Court with a binder. The binder contained, among other things,
the parties’ memoranda, case law in support of the parties’
memoranda, and the Court’s 3/31 Inclination. At the end of the
binder, following a tab labeled “Supplemental Info,” Plaintiffs
included several documents that were not appended to the
parties’ memoranda, were not included in the First Amended
Complaint, and were not previously provided to the United
(. . . continued)
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accepts as true the non-conclusory facts alleged in the First
Amended Complaint. See Leite, 749 F.3d at 1121.
II. Sovereign Immunity
“‘Absent a waiver, sovereign immunity shields the
Federal Government and its agencies from suit’” and deprives the
court of jurisdiction. See Harger v. Dep’t of Lab., 569 F.3d
898, 903 (9th Cir. 2009) (quoting Dep’t of the Army v. Blue Fox,
Inc., 525 U.S. 255, 260, 119 S. Ct. 687, 142 L. Ed. 2d 718
(1999)). As a result, the United States may challenge a federal
court’s subject matter jurisdiction under Rule 12(b)(1) on the
basis of sovereign immunity. See Pistor v. Garcia, 791 F.3d
1104, 1111 (9th Cir. 2015) (collecting cases) (“Rule 12(b)(1) is
. . . a proper vehicle for invoking sovereign immunity from
suit.” (citations omitted)).
“Jurisdiction over any suit against the
Government requires a clear statement from the
United States waiving sovereign immunity,
together with a claim falling within the terms of
the waiver.” United States v. White Mountain
Apache Tribe, 537 U.S. 465, 472, 123 S. Ct. 1126,
155 L. Ed. 2d 40 (2003) (citations omitted).
“[L]imitations and conditions upon which the
Government consents to be sued must be strictly
observed and exceptions thereto are not to be
implied.” Soriano v. United States, 352 U.S. 270,
276, 77 S. Ct. 269, 1 L. Ed. 2d 306 (1957).
States. Consequently, as the Court stated at the April 9, 2026
hearing, the Court does not consider the supplemental
information that Plaintiffs submitted to the Court in deciding
the Motion. See Transcript of Proceedings (4/9/26 hrg. on the
Motion), filed 4/15/26 (dkt. no. 320) (“4/9 Hrg. Trans.”), at
29-30.
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Mollison v. United States, 568 F.3d 1073, 1075 (9th Cir. 2009)
(alteration in Mollison). The Feres doctrine is a “jurisdictional
bar” to tort claims against the United States. See Daniel v. United
States, 889 F.3d 978, 980 (9th Cir. 2018).
DISCUSSION
I. The Feres Doctrine
In Johnson v. United States, 704 F.2d 1431 (9th Cir.
1983), the Ninth Circuit Court of Appeals developed a four-
factor test to determine whether the Feres doctrine applies in
particular cases. See id. at 1436-41; see also Spletstoser v.
Hyten, 44 F.4th 938, 947-53 (9th Cir. 2022) (surveying the Ninth
Circuit’s application of the four-factor test in Johnson and its
progeny and explaining that “[i]n Johnson, 704 F.2d at 1436, we
endeavored to provide a coherent framework for applying the
Feres doctrine”).4 The four factors are:
1) the place where the negligent act occurred;
4 The United States argues that the Court need not apply the
Johnson four-factor test because “[i]n this case, the alleged
facts mirror those of Feres itself, and so the Feres bar clearly
applies[.]” [Motion, Mem. in Supp. at 8.] Plaintiffs, on the
other hand, assert that it would be reversible error for the
Court to exclusively focus on Feres and ignore the Johnson
factors. See Mem. in Opp. at 13 (“The Ninth Circuit has found
reversible error where the district court does not analyze
claims under the Johnson factors.” (citation omitted)). The
Court, however, need not decide whether it is free to rely
exclusively on Feres or if it is bound to apply the Johnson
factors because it would reach the same result regardless of the
analytical framework.
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2) the duty status of the plaintiff when the
negligent act occurred;
3) the benefits accruing to the plaintiff
because of his status as a service member;
and
4) the nature of the plaintiff’s activities at
the time the negligent act occurred.
Costo v. United States, 248 F.3d 863, 867 (9th Cir. 2001)
(citation omitted).
These factors “cannot be blindly applied to determine
whether an injury occurred in the course of activity incident to
service. The only way to decide whether an injury is incident to
service is to consider the facts of each individual case.”
Jackson v. Tate, 648 F.3d 729, 734 (9th Cir. 2011) (citation and
internal quotation marks omitted). Furthermore, the Ninth
Circuit has “reached the unhappy conclusion that the cases
applying the Feres doctrine are irreconcilable, and thus,
comparison of fact patterns to outcomes in cases that have
applied the Feres doctrine is the most appropriate way to
resolve Feres doctrine cases.” Costo, 248 F.3d at 867 (citation
and internal quotation marks omitted).
Accordingly, the Court compares the instant action to
actions where the United States and its military departments
were accused of negligently contaminating drinking water
resulting in service member injuries because such actions are
the most factually analogous to the dispute before the Court.
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Federal courts in the Ninth Circuit and other circuits have
applied the Feres doctrine to cases related to the Camp Lejeune
water contamination crisis, see, e.g., Swanson v. United States,
Case No. 3:18-cv-02148-JR, 2019 WL 7633157, at *1-2 (D. Or.
Nov. 6, 2019);5 Clendening v. United States, 19 F.4th 421, 425-32
(4th Cir. 2021); Foster v. Dep’t of the Navy, NO. 5:19-CV-429-
FL, 2020 WL 1542092 (E.D.N.C. Mar. 31, 2020); O’Connell v. Dep’t
of the Navy, Civil Action No. 10-10746-NMG, 2010 WL 5572928 (D.
Mass. Dec. 21, 2010); Perez v. United States, CASE NO. 09-22201-
CIV-JORDAN, 2010 WL 11505507 (S.D. Fla. Mar. 1, 2010). The Court
also notes that, in the First Amended Complaint, the Whaley
Plaintiffs draw a parallel between the instant action and the
Camp Lejeune water contamination crisis. See First Amended
Complaint at pg. 449 n.3 (describing the Camp Lejeune water
contamination crisis as “another military water contamination
case”). Thus, the Court looks to the Camp Lejeune cases in its
analysis of the Feres issue. The Court now turns to a discussion
of each Johnson factor.
A. Factor One – Situs of the Tort
The first factor requires the Court to examine where
the negligent act occurred. See Johnson, 704 F.2d at 1436. There
5 The magistrate judge’s report and recommendation in
Swanson, 2019 WL 7633157, was adopted by the district judge.
2020 WL 423384 (Jan. 24, 2020). The Ninth Circuit affirmed. 845
F. App’x 690 (9th Cir. 2021).
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is no dispute that the Navy’s negligent act took place at Red
Hill. See Mem. in Opp. at 18 (stating that “[t]he situs of the
negligence” is “a military-owned fuel depot used for operational
purposes,” i.e., Red Hill). While the Whaley Plaintiffs’ alleged
injuries took place in their respective homes, “[t]he
appropriate consideration is the ‘situs of the negligence.’” See
Costo, 248 F.3d at 868 (quoting Johnson v. United States, 704
F.2d at 1436).
Plaintiffs argue that the first factor “carries little
weight” in the instant action because Red Hill has a tenuous
connection to the Whaley Plaintiffs’ military service. See Mem.
in Opp. at 17 (citation omitted). The Court disagrees. The
Whaley Plaintiffs describe themselves as “military service
members assigned to serve their country there.” See First
Amended Complaint at pg. xxii. “[T]here” refers to JBPHH. See
id. The Whaley Plaintiffs allege that Red Hill is near JBPHH,
see id., and that “[t]he Navy owns and operates the Red Hill
Facility on the island of O`ahu, Hawai`i to maintain strategic
fuel reserves in the Pacific,” [id. at ¶ 6]. They further allege
that “[t]he needless and foreseeable leaks at the Red Hill
Facility were caused by a specific series of negligent actions
by federal officers.” [Id. at ¶ 5.] In other words, based on the
allegations contained in the First Amended Complaint, the Whaley
Plaintiffs were allegedly injured because of their military
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service in Hawai`i. If not for their military service, the
Whaley Plaintiffs would not have been stationed at JBPHH, lived
in military-provided homes, or been provided water that was
“poisoned by the Navy’s jet fuel leak” at Red Hill, see, e.g.,
id. at ¶ 64.6
Although the Ninth Circuit in several cases has
refused to afford much weight to this factor when a military
service member is leaving a base on liberty, see, e.g.,
Schoenfeld v. Quamme, 492 F.3d 1016, 1023 (9th Cir. 2007)
(riding in a car going off base during weekend liberty), or when
taking part in activities that are open to civilians or could be
undertaken by civilians, see, e.g., Dreier v. United States, 106
F.3d 844, 852-53 (9th Cir. 1996), as amended (Feb. 4, 1997)
(drinking beer and swimming at a civilian-accessible location on
base while on liberty); Johnson, 704 F.2d at 1437 (working as a
bartender in a club on base), neither circumstance is present in
this case. Accordingly, the first factor weighs in favor of
applying the Feres doctrine to bar the Whaley Plaintiffs’ claims
against the United States.
6 Plaintiffs’ assertion that “[m]ost of these homes were
off-base,” [Mem. in Opp. at 20,] does not belie their assertion
that the United States owns “the housing which Plaintiffs leased
and resided upon,” [First Amended Complaint at ¶ 1139,] Red
Hill, [id. at ¶ 1096,] and the JBPHH water line, [id. at ¶ 9].
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B. Factor Two – Duty Status
The second factor mandates that the Court scrutinize
the Whaley Plaintiffs’ duty status when the tortious act
occurred. See Johnson, 704 F.2d at 1437-38. There is no dispute
that the Whaley Plaintiffs were active-duty service members at
the time of the November 2021 fuel release.
Plaintiffs attempt to distinguish the second factor by
pointing to cases where service members performed activities
that could have been performed by civilians in similar
positions. See Mem. in Opp. at 21-22 (citing Johnson, 704 F.2d
at 1437; Spletstoser, 44 F.4th at 955). Plaintiffs first
emphasize that the plaintiff in Johnson was bartending – an
activity akin to “‘a non-military job in what was essentially a
civilian context.’” [Id. at 21 (quoting Johnson, 704 F.2d at
1437).] Plaintiffs then point out that the plaintiff in
Spletstoser was simply “‘preparing for bed in her private hotel
room,’” putting her “‘in the same position as any civilian would
have been at the time.’” [Id. at 21-22 (quoting Spletstoser, 44
F.4th at 955).] Plaintiffs, therefore, point to cases where
service members engaged in activities unrelated to their duty
status. See id. at 21 (arguing that the Whaley Plaintiffs “were
not engaged in activities related to their military duties at
the time of their injuries”). Plaintiffs contend that, because
activities such as “showering, bathing their children, drinking
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water, and cooking in their homes” are unrelated to the Whaley
Plaintiffs’ duty status, then the second factor should weigh
against the application of the Feres bar. See id.
The Ninth Circuit in Johnson, when discussing the
second factor, stated that, “duty status is relevant only
insofar as it bears on the relationship between the activity
leading to the injury and [the service member’s] military
service.” 704 F.2d at 1438. Accordingly, “[t]he important
question is whether the service member on active duty status was
engaging in an activity that is related in some relevant way to
his military duties.” Id. In the absence of such a relationship,
active-duty status would not be relevant in assessing the second
Johnson factor. See id.
Plaintiffs ask the Court to focus narrowly on the
personal activities that the Whaley Plaintiffs engaged in during
the November 2021 fuel release such as showering and cooking in
their homes. See Mem. in Opp. at 21. The activity, however, that
led to the Whaley Plaintiffs’ injuries was their quartering in
military housing. This activity parallels the activity at issue
in Feres. See Feres, 340 U.S. at 136–37, 146 (barring a
negligence claim alleging that the United States knew or should
have known of unsafe living conditions in the barracks of a
service member who perished from a fire in the barracks); see
also Perez, 2010 WL 11505507, at *4 (“The negligence alleged in
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Feres — the government’s failure to maintain safe premises for
soldiers living on a military base — is very similar to, and
. . . legally indistinguishable from, the negligence alleged
here — the government’s failure to maintain a clean drinking
water supply at a military base and failure to warn soldiers and
their dependents about dangerous chemicals in the water.”).
Consequently, Plaintiffs’ reliance on cases such as
Johnson and Spletstoser is unavailing. The plaintiffs in those
actions were engaged in activities that did not relate in any
relevant way to their military duties. For instance, in Johnson,
the plaintiff’s work as a bartender, i.e., the activity that led
directly to his injury, did not bear any relevant relationship
to his military duty as a noncommissioned officer in the Air
Force, see 704 F.2d at 1433, or “to the military disciplinary
structure that the Feres doctrine was meant to safeguard,” id.
at 1438 (citation omitted). In Spletstoser, the plaintiff’s
active-duty service status did not bear on the relationship
between the activity leading to her injury, i.e., “preparing for
bed in her private hotel room” shortly before she was allegedly
sexually assaulted by a superior, and her military service. See
44 F.4th at 955; see also id. at 942 (describing the incident).
In contrast, here, the Whaley Plaintiffs were active-duty
service members occupying military housing provided to them as a
direct consequence of their active-duty status. The activities
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leading to their injuries, i.e., utilizing military housing and
water utilities, are inextricably linked to their active-duty
military service. Therefore, the second factor weighs in favor
of applying the Feres bar.
C. Factor Three – Benefits to Service Members
The third Johnson factor requires the examination of
the benefits accruing to the Whaley Plaintiffs because of their
military status. See Johnson, 704 F.2d at 1438-39. When
considering the third Johnson factor, two distinct benefits can
be examined: first, an entitlement to compensation on account of
the resulting injury, and second, “the benefit of being
permitted to participate in the activity that led to the
injury.” See Schoenfeld, 492 F.3d at 1024 (citation omitted).
Both considerations weigh in favor of applying the Feres
doctrine to bar the Whaley Plaintiffs’ claims in this case.
First, the Court examines whether the Whaley
Plaintiffs are entitled to compensation resulting from their
alleged injuries. See id. The United States asserts that the
Whaley Plaintiffs received medical benefits following the Red
Hill incident. See Motion, Mem. in Supp. at 18-19. The United
States also asserts that the Whaley Plaintiffs are entitled to
“other benefits . . . under the Veterans’ Benefits Act . . . .”
See id. (citation omitted).
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Plaintiffs do not dispute that the Whaley Plaintiffs
received medical benefits or benefits pursuant to the Veterans’
Benefits Act. See Mem. in Opp. at 23 (arguing the receipt of
medical benefits or other compensation does not preclude
recovery); see also, e.g., First Amended Complaint at ¶¶ 75, 76,
81-82 (alleging that certain plaintiffs received medical care
following the Red Hill incident, including through military
medical providers). To support their argument that the Whaley
Plaintiffs’ receipt of medical benefits does not preclude
recovery under the FTCA, Plaintiffs rely primarily on the United
States Supreme Court’s pre-Feres decision in Brooks v. United
States, 337 U.S. 49 (1949). See Mem. in Opp. at 23 (citing
Brooks, 337 U.S. at 53). Since deciding Brooks, however, the
Supreme Court has held that the existence of statutory benefits,
such as those provided under the Veterans’ Benefits Act, serves
as an independent rationale for barring suits for military
service-related injuries under Feres. See United States v.
Johnson, 481 U.S. 681, 689-90 (1987). Accordingly, the Whaley
Plaintiffs’ entitlements to compensation resulting from their
alleged injuries supports the application of the Feres doctrine
to bar their claims.
Next, the Court considers the benefit of participating
in the activity that led to the Whaley Plaintiffs’ injury. See
Schoenfeld, 492 F.3d at 1024. According to Plaintiffs, to assess
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the third factor, “[t]he critical question is whether the
benefit is available to the plaintiff ‘solely by virtue of his
status as a serviceman.’” [Mem. in Opp. at 22 (quoting
Schoenfeld, 492 F.3d at 1025).] Plaintiffs contend that the
Whaley Plaintiffs’ personal use and consumption of tap water in
their military homes cannot be considered a benefit incident to
military service. Plaintiffs argue that their housing
communities included civilians, government workers, and retired
officers, and that the Navy water line serviced both military
and civilian neighborhoods. See id. at 22-23. Accordingly,
Plaintiffs argue that the tap water that the Whaley Plaintiffs
allegedly drank and were injured by was not provided to them
solely because of their status as service members and that, as a
result, the Court should find that the third Johnson factor
weighs in their favor. See id.
Plaintiffs misstate the law. First, the relevant legal
inquiry is not whether civilians had access to the Whaley
Plaintiffs’ military housing or the Navy’s water line, but
rather whether the housing and utilities were provided to the
Whaley Plaintiffs as a benefit of their military service. The
Ninth Circuit has held that a military-provided benefit remains
incident to service even if civilians, such as government
employees or service members’ civilian dependents, are also
permitted to access that same service. As the Ninth Circuit
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noted in Veillette v. United States, 615 F.2d 505 (9th Cir.
1980), the Feres doctrine applies even when “civilians as well
as military personnel” have access to the service at issue,
provided the service members received the benefit as an incident
to their military service. See id. at 507 (rejecting the
appellants’ argument that their injuries were not incident to
service because civilians were admitted to the same hospital
where they were treated). Similarly, while not binding on the
Court, this district court has expressly rejected the argument
that a benefit is not incidental to service when it is alleged
that civilians can also access that benefit, such as when
civilian United States Department of Defense employees were
allowed to rent military recreational cabins. See Latchum v.
United States, 183 F. Supp. 2d 1220, 1233 (D. Hawai`i 2001).
The Whaley Plaintiffs received the benefit of the
housing through their military status. Their family members, in
turn, received the benefit of the housing through their
relationship with the service members. In McConnell v. United
States, 478 F.3d 1092 (9th Cir. 2007), a service member died in
a boating accident after renting a boat from a military
recreational center. Id. at 1093. The Ninth Circuit held that,
even though boat rentals could be provided to active-duty
members and their families, the deceased service member’s “use
of the boat [] was due to his status as a service member” under
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the third factor. Id. at 1097. In other words, the deceased
service member and his fellow lieutenants “were exercising their
privileges as service members rather than as civilian guests.”
Id. Plaintiffs do not dispute that the Whaley Plaintiffs were
permitted to reside in their military housing because of their
active-duty military status. The Court thus finds that the
Whaley Plaintiffs’ housing, and their access to Navy-provided
water, were benefits derived from their positions as service
members. The third Johnson factor, therefore, also weighs in
favor of the application of the Feres doctrine to bar the Whaley
Plaintiffs’ claims.
D. Factor Four – Nature of Activities
Pursuant to the fourth Johnson factor, the Court must
analyze the nature of the Whaley Plaintiffs’ activities at the
time the negligent act occurred. See Johnson, 704 F.2d at 1439-
41. The Ninth Circuit has previously stressed that the fourth
factor is “is the most important in determining whether a
plaintiff’s suit is Feres barred.” Schoenfeld, 492 F.3d at 1025
(citation omitted). “[T]he key inquiry is ‘whether or not the
service member’s activities at the time of injury are of the
sort that could harm the disciplinary system if litigated in a
civil action.’” Id. (quoting Johnson, 704 F.2d at 1439).
Considerations that are relevant to this key inquiry include
whether the nature of the activity at issue “involve the sort of
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close military judgment calls that the Feres doctrine was
designed to insulate from judicial review” or implicate
“decision[s] requiring military expertise or judgment.” See
Johnson, 704 F.2d at 1440 (citation omitted).
Plaintiffs contend that the Whaley Plaintiffs’
activities at the time that they were injured were entirely
private. See Mem. in Opp. at 14-17. They point to activities
such as bathing children and preparing dinner and argue that
such activities do not relate in any relevant way to the scope
of their military service. See id. at 14. Plaintiffs’ focus on
these activities obfuscates the nature of the activity at issue
before the Court. In other words, Plaintiffs’ focus on
activities such as preparing Thanksgiving dinner and bathing,
which constitute personal activities that – in the abstract – do
not relate to military service, are all subcomponents of one
activity, i.e., residing in military housing, which led to the
Whaley Plaintiffs’ alleged injuries. Cf. Perez, 2010 WL
11505507, at *4 (“although it is not exactly clear what precise
activity or activities [the plaintiff] was engaged in every
single time he drank or used the contaminated water at [Camp
Lejeune], it is undeniable that he drank and used the water
while performing at least some military activities”).
When evaluating similar claims involving contaminated
water provided by the military, federal courts have consistently
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rejected the argument that engaging in routine, personal
activities at home precludes the application of the Feres
doctrine. For example, in Gros v. United States, 232 F. App’x
417 (5th Cir. 2007) (per curiam), a service member “was
allegedly engaged in personal activities when he was exposed to
the toxic chemical” “while showering or drinking water at his
home on the base.” Id. at 418. The Fifth Circuit Court of
Appeals affirmed the district court’s dismissal of the
plaintiffs’ claims, holding that “the Feres doctrine bars suit
when the injuries arose on base while plaintiffs were off-duty
and attending to personal activities” because the underlying
activity — residing in military housing — was indistinguishable
from the facts of Feres itself. See id. at 418-19 (citations
omitted).
The Fourth Circuit Court of Appeals reached a similar
conclusion in Clendening, 19 F.4th 421. In Clendening, the
Fourth Circuit affirmed the district court’s conclusion that
“the Feres doctrine barred [the p]laintiff’s tort claims for
Clendening’s exposure to contaminated water and other toxins
while living at Camp Lejeune[.]” See id. at 427, 431. Like here,
the plaintiff in Clendening argued that the Feres doctrine
should not apply because exposure to contaminated water was not
“related to or served a military objective” and did not
“implicate[] [a] military function.” Compare id. at 429 (some
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alterations in Clendening) (quotation marks and citation
omitted), with Mem. in Opp. at 17 (“In sum, because ‘there is no
relevant relationship’ between the service member’s purely
personal activities, bathing their children and cooking for
their families . . . and ‘the military interests that might be
jeopardized by civil suits, the Feres doctrine cannot bar
recovery.’” (quoting Johnson, 704 F.2d at 1440)). The Fourth
Circuit rejected this argument, concluding that the “military’s
provision of water and accommodations to its troops is clearly
activity ‘incident to service,’” and also finding that “it is
hard to see how [the p]laintiff’s exposure claims are
meaningfully different from Feres.” Clendening, 19 F.4th at 428
(citation omitted).
Plaintiffs also contend that, pursuant to Ninth
Circuit precedent, the Feres doctrine is inapplicable unless a
service member is acting under orders or on a specific military
mission. See Mem. in Opp. at 15; see also 4/9 Hrg. Trans. at 6-
7, 13-14, 17-18, 28. Plaintiffs submit that the Whaley
Plaintiffs could not have been acting under orders during the
Red Hill incident because “they ‘stood in exactly the same
position as a civilian’ water customer using tap water in their
homes and ‘could just as easily been injured had [they] never
worn a uniform at all.’” See Mem. in Opp. at 15 (brackets in
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Mem. in Opp.) (some citations omitted) (quoting Spletstoser, 44
F.4th at 947).7
Such contentions rely on an overly narrow
interpretation of the law. The Ninth Circuit has expressly held
that “military-sponsored activities fall within the Feres
doctrine, regardless of whether they are related to military
duties.” Costo, 248 F.3d at 868. Indeed, the Ninth Circuit has
applied the Feres doctrine to bar claims against the United
States even when a service member is off duty and engaged in
purely recreational pursuits, provided the activity is sponsored
by the military or related to their military service. For
instance, in McConnell, the Ninth Circuit affirmed the
application of the Feres bar despite the fact that the deceased
service member’s activities resulting in his death “were purely
recreational” but “military-sponsored” and “[]related to his
7 As a factual matter, the First Amended Complaint does not
indicate whether the Whaley Plaintiffs were subject to military
orders during the Red Hill incident. The Whaley Plaintiffs
simply allege that “[t]hey were not acting under official orders
as they showered, bathed, drank, and cooked food with the
contaminated water.” [First Amended Complaint at pg. xxiii.] A
service member does not need to act pursuant to military orders
to nevertheless still be subject to military orders. Cf. Barry
v. Stevenson, 965 F. Supp. 1220, 1225-26 (E.D. Wis. 1997) (“The
concept of ‘military discipline’ is broadly applied under the
Feres doctrine. A service member need not be acting under
direction of command. See United States v. Shearer, 473 U.S. 52,
105 S. Ct. 3039, 87 L. Ed. 2d 38 (1985). ‘[M]ilitary discipline
involves not only obedience to orders, but more general duty and
loyalty to one’s service and to one’s country.’ Johnson, 481
U.S. at 691, 107 S. Ct. at 2069.” (brackets in Barry)).
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military status.” See 478 F.3d at 1097-98. Furthermore, in the
instant case, while “civilians were injured in the very same
homes from the very same negligence,” [Mem. in Opp. at 16
(emphasis omitted),] this does not negate the Whaley Plaintiffs’
assertions that these homes were provided to them by the
military, [First Amended Complaint at ¶ 1139,] and that the
water they consumed was also provided to them by the military,
[id. at ¶¶ 9, 1139]. Nor do Plaintiffs’ contentions address the
fact that service members and civilians who lived in the Camp
Lejeune military housing were also injured by the same
negligence. See, e.g., Bunting v. United States, No. 7:19-cv-67-
BO, 2020 WL 6587086, at *1 (E.D.N.C. Nov. 10, 2020) (discussing
that the plaintiff’s claims for alleged negligent storage and
disposal of contaminated waste arose from the plaintiff’s time
living in Camp Lejeune with his parents from his birth until he
was at least seven years old). Nevertheless, as discussed supra,
claims by service members in the Camp Lejeune cases were
systematically denied by federal courts on Feres grounds, among
others. Cf. Camp Lejeune Justice Act of 2022, Pub. L. No. 117-
168, § 804(b), 136 Stat. 1759, 1802 (allowing certain
individuals, including civilians and veterans, to “bring an
action . . . to obtain appropriate relief for harm that was
caused by exposure to the water at Camp Lejeune”).
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Accordingly, the Court must turn to what the Ninth
Circuit case law demands: analyzing the nature of the Whaley
Plaintiffs’ quartering in military housing when the United
States’ tortious act occurred. The United States has an
“obligation to provide the soldiers and their dependents with
necessary housing, sufficient food, and clean water.” Perez,
2010 WL 11505507, at *3. Because “[w]ater is obviously necessary
to sustain life, . . . its provision to those living on a base
is therefore essential to, and part of, the government’s
military mission.” Id.; see also Swanson v. United States, 845
F. App’x 690, 691 (9th Cir. 2021) (affirming the district
court’s dismissal of the plaintiff’s claim for injuries arising
from his time at Camp Lejeune “because [the plaintiff’s]
injuries were sustained incident to military service” (some
citations omitted) (citing Feres v. United States, 340 U.S. 135,
146, 71 S. Ct. 153, 95 L. Ed. 152 (1950))). While each plaintiff
may not have lived “on base,” the water provided to each
plaintiff came from a source allegedly owned and operated by the
United States, [First Amended Complaint at ¶¶ 9, 1139], and the
Whaley Plaintiffs also allege that they lived in housing owned
by the United States, [id. at ¶ 1139]. Consequently, the Whaley
Plaintiffs’ overarching activity of residing in military-
provided housing and consuming military-supplied water is
fundamentally incidental to their military service.
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Furthermore, assertions made in the First Amended
Complaint challenge the Navy’s decision-making, including its
choices regarding the operation of Red Hill and its efforts to
mitigate the damage from the November 2021 fuel release. See,
e.g., id. at ¶¶ 1097-98 (asserting that federal officers were
negligent in, inter alia, their operation and maintenance of Red
Hill); id. at ¶¶ 1133-34, 1149 (suggesting that the Navy was
negligent in operating the Red Hill facility in proximity to the
JBPHH drinking water system and military housing). The
assertions made in the instant action may “call[] into question
basic choices about the discipline, supervision, and control of
military personnel.” Spletstoser, 44 F.4th at 957 (citations
omitted); see also First Amended Complaint at ¶ 1098(g)
(alleging that the Navy breached its duty of care to exercise
ordinary care at Red Hill when its “[o]fficers ordered junior
servicemembers to flush hazardous fuel into groundwater without
a permit and in violation of federal and state law”).
The Whaley Plaintiffs also make allegations that may
risk undermining the “instinctive obedience, unity, commitment,
and esprit de corps,” which “[t]o accomplish its mission the
military must foster . . .” See Johnson, 481 U.S. at 691
(quotation marks and citation omitted). For instance, as to
Plaintiff Amanda Feindt, who lived in Ford Island military
housing, the Whaley Plaintiffs allege that the Navy’s actions
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constitute “institutional betrayal” and that, because of the
Navy’s negligence, she has experienced a “devastating loss of
trust in the very institution she has risked her life for in
service to our country.” [First Amended Complaint at ¶¶ 71, 76.]
Similarly, the Whaley Plaintiffs allege that the November 2021
fuel release “poisoned” Plaintiff Jessica Whaley’s “trust and
faith . . . in her government[.]” [Id. at ¶ 67.] The Whaley
Plaintiffs also make a similar allegation regarding Plaintiff
Elizabeth Thompson-Watson, who “played a critical role on the
Army’s Veterinary Services response team” during the “public
health crisis in her community.” See id. at ¶ 85 (alleging her
“[t]rust in leadership has eroded”). For these reasons, the
Court finds that the fourth factor weighs in favor of the
application of the Feres bar.
II. Summary
Because all four Johnson, 704 F.2d 1431, factors weigh
in favor of the application of the Feres doctrine to bar the
Whaley Plaintiffs’ claims, the Court is compelled to grant the
Motion. The Court nevertheless recognizes that dismissal of
claims by service members in this matter based on the Feres
doctrine is an overly harsh and unjust outcome. The Court takes
note that several justices of the Supreme Court and the Ninth
Circuit have cast doubt on the validity of the Feres doctrine.
See, e.g., Johnson, 481 U.S. at 692-703 (Scalia, J.,
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dissenting); Stencel Aero Eng’g Corp. v. United States, 431 U.S.
666, 674–77 (1977) (Marshall, J., dissenting); Costo, 248 F.3d
at 869 (“we join the many panels of this Court that have
criticized the inequitable extension of this doctrine to a range
of situations that seem far removed from the doctrine’s original
purposes” (citing cases)). Indeed, Justice Sotomayor and Justice
Thomas recently wrote a statement and a dissent, respectively,
concerning the Supreme Court’s denial of a writ of certiorari in
a case that challenged the validity of the Feres doctrine. See
Beck v. United States, No. 24-1078, 2025 WL 3260174, at *1-2
(U.S. Nov. 24, 2025) (Sotomayor, J., statement respecting the
denial of certiorari) (noting the problems posed by the Feres
doctrine but voting to deny the petition for a writ of
certiorari on statutory stare decisis grounds); id. at *2-6
(Thomas, J., dissenting). Nevertheless, unless the Supreme Court
reverses Feres, or unless the United States Congress acts in
response to the Red Hill cases - as it did when it enacted the
Camp Lejeune Justice Act of 2022, thereby allowing veterans to
sue the United States for injuries they suffered as a result of
their service at Camp Lejeune - the Court is inextricably bound
and compelled to follow Feres and its Ninth Circuit progeny.
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CONCLUSION
For the foregoing reasons, the Motion to Dismiss
Whaley First Amended Complaint for Lack of Subject-Matter
Jurisdiction, filed on January 30, 2026, is GRANTED.
There being no remaining claims in Whaley, the Clerk’s
Office is DIRECTED to enter judgment in favor of the United
States and to close that case, pursuant to the instant Order, on
May 20, 2026. The closure of Whaley does not affect the
remaining claims in Feindt and Hughes.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 5, 2026.
PATRICK FEINDT, JR. ET AL. VS. UNITED STATES; CV 22-00397 LEK-
KJM; JESSICA WHALEY ET AL. VS. UNITED STATES; CV 23-00457 LEK-
KJM; JACLYN HUGHES ET AL. VS. UNITED STATES; CV 24-00059 LEK-
KJM; ORDER GRANTING DEFENDANT’S MOTION TO DISMISS WHALEY FIRST
AMENDED COMPLAINT FOR LACK OF SUBJECT-MATTER JURISDICTION
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