Facts of the Case
On Wednesday, the Supreme Court released its opinion in Hencely v. Fluor– reversing the Fourth Circuit, which relied on the “battlefield” preemption rule to dismiss the individual’s tort claims against Fluor.
An independent contractor of Fluor’s subcontractor carried out a suicide attack at Bagram Airfield in Afghanistan. The plaintiff, Hencely, intervened and stopped the suicide bomber from detonating the bomb in a larger area. The plaintiff sustained brain injuries from his intervention. Importantly, the suicide bomber was part of the military’s “Afghan First” program by which, although ultimately, he worked for Fluor’s subcontractor, the Army approved him for employment. Fluor still maintained oversight over personnel of its subcontractor and Fluor was required to comply with base-security policies. The plaintiff alleged that Fluor negligently hired, supervised, and retained the attacker in violation of Army requirements and base procedures.
The Supreme Court’s Holding
The Court held that state-law tort claims against military contractors are not automatically preempted simply because they arise in a war zone or involve military operations. The battlefield preemption doctrine states: “During wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor’s engagement in such activities shall be preempted.” The Fourth Circuit analogized the intent of the wartime preemption doctrine to apply not only to the Federal Government under the Federal Tort Claims Act, but also to contractors.
The Court disagreed with the Fourth Circuit’s position that state-law tort suits cannot proceed even when the contractor is alleged to have violated instructions from the military. In his opinion, Justice Thomas emphasized that this broad application of the wartime preemption doctrine is not found in the Constitution or any federal statute.
The Court held that the battlefield preemption doctrine applies only where the contractor was following specific federal instructions or carrying out conduct that the Government directed or authorized. In this case, Fluor was investigated by the Army and the Army concluded that Fluor failed its express duties to the Government.
The Key Takeaway for Government Contractors
The ruling narrows the ability of contractors to rely on generalized wartime immunity arguments. It is performance contracts and, not procurement contracts, that will come under increased scrutiny.
For years, contractors performing work on military bases or in combat zones often argued that any claim connected to combatant activities should be dismissed because state tort law would interfere with military decision-making. The Supreme Court rejected that approach and made clear that courts must look more closely at the actual conduct being challenged. Future disputes to keep in mind could involve the following:
- Contractor security failures on military bases
- Negligent hiring or supervision claims
- Logistics and transportation accidents
- Failure to follow military safety protocols
- Defective performance under overseas military contracts
- Claims involving interpreters, local hires, or subcontractors
The battlefield preemption doctrine is not the only doctrine potentially implicated. The Court emphasized that federal preemption should not apply unless there is a real conflict between state law and a specific federal directive. That principle may affect future cases involving private contractors operating federal detention facilities, federal healthcare contractors, emergency response contractors, and infrastructure contractors working under federal programs.
Conclusion
The Supreme Court’s decision in Hencely v. Fluor Corp. marks a meaningful shift in how courts may evaluate contractor liability and marks a potential turning point in how the Supreme Court will view other preemption defenses. It indicates that courts may increasingly allow state-law claims to proceed against the contractors, and still not the Government.
This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.