Hencely v. Fluor Corporation

    Issues

    Can state-law tort claims be brought against an otherwise-immune federal military contractor where that contractor’s conduct breached its contract with the military and violated military orders?

    Oral argument:
    November 03, 2025
    Court below:
    United States Court of Appeals for the Fourth Circuit

     

    This case asks the Supreme Court to decide whether a federal military contractor can be sued on state-law tort claims provided that the contractor breached its contract and violated military orders. Winston Hencely, a veteran who was injured in a suicide bombing at Bagram Airfield in Afghanistan, argues that Boyle v. United Technologies Corporation, which created federal military contractor immunity, does not apply in such circumstances, and that Boyle’s reasoning should not be extended to apply in such circumstances. Fluor Corporation counters that the federal interests at stake in bold military operations require broad immunity for military contractors. The outcome of this case will determine the scope of military contractors’ liability and the Supreme Court’s willingness to rely upon and expand doctrines made by courts rather than Congress. This case will also impact future military safety and defense contracting.

    Questions as Framed for the Court by the Parties

    Whether Boyle v. United Technologies Corporation should be extended to allow federal interests emanating from the Federal Tort Claims Act’s combatant-activities exception to preempt state tort claims against a government contractor for conduct that breached its contract and violated military orders.

    Facts

    Winston T. Hencely, the Petitioner, was an active-duty soldier stationed at Bagram Airfield in Afghanistan. Fluor Corporation (“Fluor”), the principal Respondent in this case, contracted with the Department of Defense (“the military”), to provide basic logistics services.

    A Fluor subcontractor hired an Afghan, Ahmad Nayeb, to work in the “hazardous materials section” of Bagram’s non-tactical vehicle yard during the evenings. Government contractors hired many Afghan workers to develop Afghanistan’s economy and create financial stability in the country in a program called “Afghan First.” Fluor’s contract with the military required Fluor to hire as many locals, such as Nayeb, as possible. That contract also required Fluor to supervise all employees. 

    But the military screened Afghans for employment independently of Fluor. And Nayeb, the military learned, was a former member of the Taliban. Nevertheless, the military sponsored Nayeb’s employment, believing he had abandoned his ties with the Taliban. During a March 2016 interview—one of many regular counterintelligence interviews—members of the military noticed that Nayeb’s answers appeared coached. Fluor was never informed of Nayeb’s former Taliban ties, or his suspicious answers.

    On the night of November 11, 2016, military intelligence suggested an imminent attack. The next day, on November 12, 2016, a celebratory Veterans Day 5K race was held at Bagram. Hencely, along with others, observed Nayeb approaching the race’s starting line. They decided to confront Nayeb. Once they arrived, Nayeb detonated an explosive vest he was wearing. The blast killed six people, including Nayeb, and seriously injured seventeen others, including Hencely. The Taliban took credit for this attack.

    Hencely sued Fluor in the United States District Court for the District of South Carolina under various state-law tort claims. The district court, however, dismissed Hencely’s claims, reasoning in part that federal law, specifically the Federal Tort Claims Act’s (“FTCA”) “combatant activities” exception in 28 U.S.C. § 2680(j), preempted them.

    Hencely appealed to the United States Court of Appeals for the Fourth Circuit, which affirmed the district court’s decision. The Fourth Circuit held that the logic of Boyle v. United Technologies Corporation, which found that the “uniquely federal interests” at stake in government contracting preempted a state law design defect suit against a military helicopter manufacturer where the helicopters comported with government design specifications, applied in the battlefield environment even where a contractor failed to meet the military’s requests.

    Hencely petitioned the Supreme Court of the United States for a writ of certiorari, which it granted on June 2, 2025. 

    Analysis

    BOYLE’S APPLICATION

    Hencely argues that the immunity offered to federal officials in Boyle v. United Technologies Corporation does not apply whenever a lawsuit is brought against a military contractor. Hencely notes that Boyle depended on finding that a “uniquely federal interest” was at stake; and, he urges that unique federal interests are not at stake whenever a state tort lawsuit “merely touch[es] the military.” Specifically, Hencely argues that Boyle found that unique federal interests can be at stake in contracting by analogizing to two well-established unique federal interests: cases where the government is a party and cases where the civil liability of federal officials is alleged. Hencely asserts that while some situations involving the military, such as that in Boyle itself, are sufficiently similar to those two well-established unique federal interests, that does not mean that unique federal interests are at stake whenever the military is involved. Next, Hencely contends that Boyle’s application also depends on the existence of a significant conflict between the federal interest at stake and the application of state law. And Boyle found such a conflict on the facts before it, Hencely urges, because plaintiff alleged that helicopter design specifications set by the military were defective under state law. But in this case, Hencely notes, Fluor breached its contract with the military. 

    Hencely also argues that Boyle should not be expanded because it is “hard to square” with the Court’s other decisions. Boyle’s preemption analysis relied on the Supremacy Clause, Hencely contends, but courts generally only apply federal law over state law under the Supremacy Clause when there is a conflict between state law and a federal statute or provision of the federal Constitution Preemption should not happen whenever a court, in a “freewheeling” inquiry, determines that a state law would conflict with federal goals, Hencely urges. But Boyle, Hencely argues, did exactly that. Hencely claims that the “uniquely federal interest” test allows courts to preempt state laws regardless of statutory or constitutional text because under this test, Boyle relied on “what Congress might have thought about contractors” even though Congress never actually clarified this.As a result, Hencely claims that the test in Boyle gives courts a power they should not have, for Congress should be able to decide if federal law preempts state law through statutory text.

    Fluor Corporation and several subsidiaries of Fluor Corporation and Fluor Enterprises, Inc. (“Fluor”) responds that Hencely misidentifies the federal interests at stake.  Boyle immunity for contractors in general, Fluor urges, turned on the federal interest embodied in the “discretionary function” exception of the Federal Tort Claims Act (“FTCA”), which provides immunity for federal employees for decisions within their discretion. But according to Fluor, it is the FTCA’s combatant activities exception, which immunizes the military when it acts in conflict zones. Thus, because Fluor contracted to provide services in an active military base in a warzone, the federal interests embodied by the combatant activities exception are, according to Fluor, at stake here. Fluor also argues that it is irrelevant whether Fluor breached its contract. The issue is the nature of the federal interest jeopardized by state-law claims, not the merits of those claims, Fluor stresses. And because the interest at stake is the conduct of war, Fluor contends, “[i]t follows that the federal government alone may regulate that conduct,” not state tort law.

    Fluor argues that the court would need to effectively overrule Boyle to accept Hencely’s argument that preemption should not be expanded to preempt laws that conflict with uniquely federal interests. Fluor argues that although preemption typically results from conflict between a federal statute’s text and state law, there are a few areas where preemption results in a conflict between a uniquely federal interest and a state law. Fluor further claims that courts have allowed preemption of state laws because of a court’s belief that a state law conflicted with the federal interests of federal law, instead of due to explicit statutory text, when it has been necessary to protect federal interests, thus concluding that the rule in Boyle is valid.

    WHETHER THE FTCA PREEMPTS HENCELY’S CLAIMS

    Hencely emphasizes that the FTCA does not itself preempt his state tort claims because the state tort “claims must conflict with the FTCA” to be preempted by it. Hencely supports this argument by claiming that the United States’ federal system makes state law the default, with federal law only preempting conflicting state laws if there is a direct conflict with a valid federal statute or the Constitution itself. Hencely further argues that his state tort claims do not conflict with the FTCA because the FTCA’s text “provides no basis for preempting state claims against government contractors.” First, Hencely asserts that the FTCA relies on state law to determine the United States’ tort liability, so it would not make sense for the FTCA to preempt Hencely’s state tort claims. Additionally, the explicit language of the FTCA does not preempt state claims against government contractors. The FTCA’s text, Hencely notes, never mentions lawsuits against government contractors. Hencely concludes that since the FTCA addresses the United States’ tort liability, it cannot be read to conflict with state tort law in regard to contractors.

    Fluor argues that federal law preempts state law when “uniquely federal interests” are protected by the federal law, and the Constitution grants exclusive authority to the federal government in those matters. Further, Fluor asserts that there is a unique federal interest when the United States’ authority is intimately involved or when the interstate or international nature of a dispute makes state law unsuitable to control. Fluor contends that Hencely’s claims are preempted by federal interests found in the Constitution and reflected in the FTCA’s combatant activities exception. First, Hencely’s tort claims implicate the federal government’s “power to wage war.” Fluor argues that the “power to wage war” is a “uniquely federal interest” because this power is connected to the federal government's unique federal interest in foreign relations. Additionally, Fluor notes that the Constitution assigns the “power to wage war” to the federal government, while prohibiting the states from waging war themselves. Second, Fluor points out that the FTCA’s combatant activities exception reflects a congressional judgment that purposes of tort law such as deterrence, compensation, and punishment are “out of place in combat situations, where risk-taking is the rule.”

    Discussion

    CONTRACTOR ACCOUNTABILITY AND MILITARY SAFETY

    The American Association for Justice (“AAJ”), in support of Hencely, argues that if military contractors are freed from most tort liability, they will have little reason to care about safety and security.  The Veterans of Foreign Wars (“VFW”) echoes this argument, adding that mechanisms for accountability such as state-law tort remedies against contractors have become crucial as contractors play an increasingly larger role in military operations, receiving around $415 billion in government contracts in 2022.  Additionally, the AAJ urgers that the costs of injury do not simply “disappear” when a state-law tort remedy is denied, but instead fall on government programs, the healthcare system, and victims and their families.    

    In support of Fluor, the Atlantic Legal Foundation (“ALF”) responds that if the Fourth Circuit’s decision is reversed, private contractors would be forced to withdraw from high-risk areas and war zones because they could be subject to heightened liability that could be costly in insecure areas of the world.  The Chamber of Commerce (“COC”) highlights that since contractors make up a large portion of the overseas U.S. military force, their withdrawal would undermine American military interests globally.  A group of retired senior military officers maintain that when contractors face tort lawsuits, those concerns could overshadow the needs of the battlefield, leading to excess worry about costs and compromised military effectiveness. 

    ECONOMIC IMPACT ON DEFENSE CONTRACTING

    In support of Hencely, the AAJ argues that tort liability for contractors would ultimately lower total costs. First, the AAJ notes that federal law forbids the government from reimbursing contractors for liabilities, so costs cannot be passed on to taxpayers. Second, the AAJ hypothesizes that because contractors exposed to tort liability will naturally “carry out their responsibilities with due regard for safety,” contractors may ultimately face less tort liability and thus be able to bid lower on contracts, further limiting the taxpayer burden. The VFW underscores this argument by noting the immense federal spending on private contracts, which makes limiting taxpayers costs a top priority.  

    In support of Fluor, the COC counters that exposing domestic military contractors to tort liability gives foreign contractors an unfair advantage as they are often not subject to U.S. courts and laws and thus have little reason to fear state tort liability. Increased liability, the COC suggests, would force the U.S. to rely on foreign companies for sensitive projects. The COC also argues that federal uniformity is key to prevent contractors from dealing with competing laws of various jurisdictions, a problem that would only be exacerbated by the fact that many jurisdictions in which contractors operate have underdeveloped legal systems. The ALF similarly argues that military contractors need consistent standards, and that requiring them to abide by multiple laws would create logistical disruptions. The ALF also argues that eliminating legal protections for private contractors could jeopardize military operations and economic output worldwide. Finally, the retired senior military officers add that since contractors already have tight margins, subjecting them to tort liability would lead to decreased safety measures that would make military personnel less safe.

    Conclusion

    Authors

    Written by:      John Lauro and Evan Pittman

    Edited by:        Andrew Carpenter

    Additional Resources