Military families argue injuries from Hawaii jet fuel water crisis weren't service-related

A 1950 Supreme Court ruling prohibits service members from suing the federal government for injuries arising from military service.

by Jeremy Yurow, Court House News,  April 9, 2026

Members of the Oahu Water Protectors, outside a federal courthouse in Honolulu, display a banner supporting families suing the U.S. Navy over water contamination. (Keya Rivera/Courthouse News)

HONOLULU (CN) — When jet fuel seeped into the tap water at Joint Base Pearl Harbor-Hickam in 2021, thousands of military families bathed in it, cooked with it, and gave it to their children to drink. Now, the U.S. government is arguing those actions count as happening during the course of military service.

On Thursday, U.S. District Judge Leslie Kobayashi in Honolulu, Hawaii, presided over a hearing on a motion to dismiss one of several lawsuits arising from the 2021 Red Hill water contamination disaster — this one brought by active-duty service members.

The government says that when service members were cooking, bathing, and washing baby bottles with jet-fuel-contaminated water in their own homes, they were performing military duties.

In November 2021, fuel from the Navy’s Red Hill Bulk Fuel Storage Facility, a World War II-era underground complex near Pearl Harbor, leaked into the water system serving tens of thousands of Oahu residents. Residents reported a wide range of health problems, including skin rashes, neurological symptoms, vomiting, and hair loss.

In the 1950 ruling in *Feres v. U.S.,*the U.S. Supreme Court barred service members from suing the federal government for injuries arising from military service.

Retired Army Colonel Jessica Whaley served as a certified nurse midwife at Tripler Army Medical Center in Honolulu. She moved into Aliamanu Military Reservation in May 2021 and has described tasting jet fuel in a neighbor’s water, then continuing to cook and bathe with water from her own tap, which she said had only a smell, even as she grew ill.

She and her husband have three children, including a child with Down syndrome and a child with autism.

The government’s motion to dismiss came more than three years after Whaley’s lawsuit was filed, and five months after Kobayashi awarded roughly $660,000 in damages and attorney fees to affected civilians in a related case.

In the hearing Thursday, plaintiffs’ attorney Kristina Baehr focused on how the Ninth Circuit interprets the Feres doctrine, arguing it requires a narrow, activity-by-activity analysis rather than a broad look at why a service member happened to be at a given location.

“The Ninth Circuit focuses on these words: ‘under orders,’” Baehr said.

She argued the housing where service members were exposed to jet fuel contaminated water was privatized in the 1990s and opened to non-military tenants, including Hawaii police officers, state workers, and civilian contractors.

“Could a civilian have rented this house? And it turns out that the answer is ‘yes,’” Baehr said.

Kobayashi pushed back, pressing Baehr on whether that argument could hold up given that the housing benefit itself flowed directly from military service.

“The housing that they were in was only because of their military service, right? So how do I reconcile that with this language, ‘arise out of or in the course of activity incident to service?’” she asked.

Baehr compared the situation to a 2022 Ninth Circuit sexual assault case, Splitstoser v. U.S., in which the court declined to apply Feres even though the government had paid for the victim’s housing, because the assault itself was a private activity, not a military function.

She also pointed to the basic allowance for housing, arguing that because service members can choose to live off base and use the stipend toward a private mortgage, they are not truly under orders to be in any particular home.

“When I keep pointing to, are they under orders, the Ninth Circuit is asking: do they have choice here?” Baehr said.

Justice Department attorney Eric Rey argued for dismissal, telling the court that the Feres doctrine has been consistently applied in cases involving military housing contamination and the plaintiffs’ own complaint establishes the housing as a military benefit.

“These folks would not have been there but for their service for the United States,” Rey said.

Rey also argued the court should look at what the plaintiffs were doing in general —living in military housing — rather than at their specific activities at the moment of exposure.

He pointed to the Feres case, in which a soldier died in a fire while sleeping in military barracks.

“There wasn’t any analysis of what he was doing at the exact moment that the fire occurred,” Rey said.

Kobayashi, who has previously expressed unease with the results of the Feresdoctrine as applied to this crisis, raised those concerns again Thursday.

“It does bother me that it is seemingly a pretty harsh outcome of the doctrine, but nonetheless, I would have to apply it,” she said.

In her closing remarks, Baehr urged the court to allow the claims to proceed.

“In many cases, we have to reach an unfair result. But here in the Ninth Circuit, because of this case law that focuses on access to civilians and on this question of whether they were under orders, we can and should reach the fair result here," Baehr said.

Kobayashi took the matter under advisement.