Hencely v. Fluor Corporation
Whether state tort claims against a military contractor for injuries arising from combatant activities in a war zone are preempted by uniquely federal interests, even when the contractor violated its contractual obligations to the military.
Background & Facts
Specialist Winston Hencely was a U.S. soldier stationed at Bagram Air Base in Afghanistan. Fluor Corporation was a military contractor responsible for supervising and escorting local workers on the base. One of those workers, a man named Nayeb whom the military had determined to be a former (not current) Taliban member, smuggled explosives onto the base and detonated a bomb during a 5K run, injuring Hencely and other soldiers.
After the attack, the Army conducted an investigation and found that Fluor had failed to comply with its contractual obligations to properly supervise and escort workers at their worksites. Despite this finding, the Army chose not to terminate Fluor's contract and instead continued working with the company. Hencely then sued Fluor under South Carolina tort law, alleging negligent supervision.
The Fourth Circuit ruled that Hencely's claims were preempted — meaning blocked by federal law — because they arose from combatant activities in a war zone. Hencely appealed to the Supreme Court, arguing that Boyle v. United Technologies (the leading case on military contractor immunity) does not protect contractors who violate the military's own instructions, and that the Constitution does not automatically shield contractors from all state tort liability in war zones.
Why This Case Matters
This case has major implications for the hundreds of thousands of private contractors who support U.S. military operations worldwide. The Court must decide whether there is a broad federal immunity for contractors operating in combat zones, or whether injured soldiers can hold contractors accountable when they violate their contractual duties. The outcome will define the boundary between federal war powers and traditional state tort law.
The case also raises fundamental questions about the scope of 'uniquely federal interest' preemption — a judicial doctrine that allows courts to displace state law even without an act of Congress. If the Court adopts a broad combat-zone immunity, it would effectively extend the Federal Tort Claims Act's combatant activities exception to private contractors, something Congress has never done. If the Court rules for Hencely, it preserves state tort law as a mechanism to hold contractors accountable for negligence, which some argue incentivizes better contractor performance and protects soldiers.
The Arguments
Boyle v. United Technologies only protects contractors who follow the government's instructions, and the Army itself found that Fluor violated those instructions. The Constitution does not automatically preempt state tort claims against contractors, and Congress has never barred soldiers from suing negligent contractors.
- Historical cases like Little v. Barreme and Mitchell v. Harmony show that common law tort claims have always been available even for conduct on foreign soil during wartime
- Congress passed the Defense Base Act and Westfall Act showing it knows how to shield contractors when it wants to, but has not done so for soldiers' claims
- The FTCA's combatant activities exception expressly excludes independent contractors, showing Congress did not intend blanket contractor immunity
- Existing protections like the state secrets privilege and Touhy regulations already protect sensitive military information during litigation
Key Exchanges with Justices
Justice Barrett
“Even under a theory that war powers create an enclave of uniquely federal interests, wouldn't the Court still have to decide what rule applies — and couldn't it adopt state law as a matter of federal common law?”
It revealed a potential middle path where the Court acknowledges federal interests but still allows liability, undermining Fluor's claim that preemption automatically means immunity.
Justice Kagan
“Would you accept a rule where the contractor is liable only if the plaintiff can show the contractor violated military policy, rather than requiring the military to have specifically approved the harmful conduct?”
Hencely's counsel accepted this alternative, showing flexibility and suggesting the Court could craft a rule that still allows liability in cases of clear contractor violations.
Justice Jackson
“Isn't it significant that DoD regulations told contractors they could be held liable if the government did not exercise specific control over their actions?”
It undercut the respondent's argument that federal interests require blanket immunity, since the military itself warned contractors they could face liability.
State tort claims arising from combatant activities on a foreign battlefield are preempted because they inherently conflict with the federal government's exclusive war-making powers. Even where a contractor breaches its contract, allowing state tort suits would upset the military's calibrated enforcement decisions and damage the trust and cooperation essential to battlefield operations.
- The Constitution vests all war powers in the federal government and Article I, Section 10 expressly withdraws war-making power from the states
- Tort liability on the battlefield would lead to finger-pointing, distrust between soldiers and contractors, and interference with military operations
- The military chose not to terminate Fluor's contract after the incident, and state tort suits would impose different sanctions that upset that calibrated federal decision
- At trial, Fluor would point to the military's decisions — allowing former Taliban onto the base, security screening failures — putting military judgments on trial
Key Exchanges with Justices
Justice Gorsuch
“You're asking us to invent a new supplement to Boyle. The military might benefit from either immunizing or holding accountable contractors — why isn't that a judgment for Congress?”
It exposed the tension in Fluor's position: asking the Court to create new judge-made immunity without congressional authorization, the very kind of judicial policymaking textualists typically resist.
Justice Kagan
“What is the uniquely federal interest when a contractor does something in explicit violation of government policy?”
Fluor's counsel argued the interest lies in the military's exclusive authority to determine enforcement, but the response highlighted the uncomfortable position of claiming immunity for violations.
Justice Barrett
“Are you asking for a rule different from Boyle, and could your proposed combat exception extend to domestic activities supporting combatant operations abroad?”
Fluor's counsel conceded the rule could extend to domestic activities, revealing the potentially sweeping breadth of the proposed immunity.
Petitioner's tort claims are preempted because of uniquely federal interests in overseas combat operations. The proposed test requires showing that claims arise out of combatant activities and from the contractor's actions within the scope of its contract, whether or not the contract was violated, because the government is harmed either way by tort regulation of the military-contractor relationship.
- Federal war powers are at their zenith and state powers at their nadir in overseas combat, making this the clearest case for uniquely federal interest preemption
- Tort liability creates over-deterrence, a 'mother may I' dynamic, and distrust between military and contractors even when states try to help enforce federal standards
- The combatant activities exception in the FTCA serves as a model for the scope of preemption, just as Boyle used the discretionary function exception
- The state secrets privilege is too narrow and infrequently used to adequately protect government interests in this context
Key Exchanges with Justices
Justice Thomas
“Beyond the combat scenario, how do you define 'uniquely federal interests,' and what stops this concept from expanding to military bases in San Diego or Norfolk?”
The government struggled to articulate clear boundaries, suggesting the doctrine could expand unpredictably beyond combat zones.
Justice Kagan
“All your arguments about the government needing to control its contractor relationship apply just as well to Boyle and helicopter manufacturers — so why didn't Boyle simply say 'this is the military, it's different'?”
It revealed that the government was effectively asking the Court to go beyond what Boyle thought necessary, even in a military context.
Justice Jackson
“Have the predicted harms — finger-pointing, increased prices, damaged relationships — actually materialized given that most states currently allow such liability?”
The government conceded it lacked data on increased prices and could not clearly show the predicted harms had occurred.
Precedent Cases Cited
Boyle v. United Technologies Corp.
487 U.S. 500
The central precedent at issue. Petitioner argued it protects only contractors who follow government specifications and should be read narrowly. Respondent and the government argued for a broader combat-zone immunity beyond Boyle's framework.
Little v. Barreme
6 U.S. 170
Petitioner cited it to show that common law damages claims have historically been available even against military actors following presidential orders during wartime, establishing the baseline that state tort claims are not automatically preempted.
Mitchell v. Harmony
13 How. 115
Petitioner cited it to demonstrate that common law tort claims were historically available for military conduct on foreign soil during wartime, undermining the argument for blanket constitutional preemption.
American Insurance Association v. Garamendi
539 U.S. 396
Multiple parties cited Footnote 11 and the broader holding on foreign affairs preemption. Respondent relied on it to argue that in areas of uniquely federal interest where states have no traditional role, field preemption may apply even without express congressional action.
Crosby v. National Foreign Trade Council
530 U.S. 363
Respondent cited it for the principle that Congress's failure to expressly preempt may simply reflect reliance on settled implied preemption doctrine, supporting the argument that the baseline favors preemption in uniquely federal areas.
Kansas v. Garcia
Petitioner invoked Justice Alito's opinion for the principle that the Supremacy Clause limits preemption to the Constitution, federal statutes, and treaties — not uncodified federal interests — challenging the theoretical basis of uniquely federal interest preemption.
Buckman Co. v. Plaintiffs' Legal Committee
531 U.S. 341
Respondent cited it to argue that state law imposing additional liability beyond federal enforcement creates an impermissible conflict, even when the state purports to help enforce federal standards.
Arizona v. United States
567 U.S. 387
Respondent cited it to argue that a state imposing different methods of enforcement than the federal government in an area of federal authority creates a preemptive conflict.