Hencely v. Fluor Corp.

An injured U.S. Army Specialist, Hencely, is asking the Supreme Court to allow his negligence lawsuit against Fluor Corporation, a private military contractor, to proceed. After a bombing at Bagram Airfield in Afghanistan, an Army investigation concluded that Fluor's failure to follow its security duties allowed the bomber onto the base. Hencely argues that the fundamental rule of law—that a company is responsible for the harm its carelessness causes—should still apply, even in a war zone.

Fluor Corporation argues for total immunity from such state-law lawsuits. They contend that because the U.S. Constitution gives the federal government the exclusive power to wage war, allowing a state jury to second-guess decisions made on a foreign battlefield would unacceptably interfere with military operations. Fluor's position is that any legal remedy for contractor misconduct must come from the military itself, which can terminate contracts or seek damages, not from a civil lawsuit filed by an individual soldier. They believe that the threat of state lawsuits would undermine the trust between soldiers and contractors and create chaos in military command.

Hencely’s lawyers counter that Fluor is not being sued for following military orders, but for violating them. They argue that granting contractors a blanket shield from responsibility would create a perverse incentive, removing a key mechanism for ensuring soldiers are protected from contractor negligence. The central conflict is whether the unique nature of a combat zone creates an automatic, judge-made immunity that overrides the normal state laws designed to hold companies accountable for their actions.

The 'government contractor defense' is a legal shield established in a 1988 Supreme Court case, Boyle v. United Technologies Corp. It protects a contractor from being sued under state law for a defective product if the company was following precise specifications provided by the U.S. government. The core logic is to prevent a contractor from being punished for simply doing exactly what the military ordered, even if those orders resulted in a flawed design.

In the dispute involving the injured soldier Hencely and the contractor Fluor, the two sides disagree fundamentally on how that defense applies. Hencely's lawyers argue the defense is narrow and does not apply at all. They claim the Boyle shield was created only for situations where a contractor is forced to choose between following a government order and complying with state law. Here, they argue, the situation is the opposite: Fluor is being sued precisely because the U.S. Army concluded it violated its contractual duties and military security orders. Therefore, the very reason for the shield—protecting obedience to government commands—is absent.

Fluor, however, is asking the Court to expand the principle behind Boyle. They argue that any lawsuit related to combat activities inherently interferes with a 'uniquely federal interest,' regardless of whether a specific order was followed or violated. During arguments, Justice Alito sharply defended the Boyle decision and its author, Justice Scalia, signaling that some justices see Hencely's argument as an attack on established precedent and may be unwilling to weaken the protections contractors currently have.

Fluor Corporation is asking the Supreme Court to create a broad rule shielding private military contractors from state negligence lawsuits arising from their work in combat zones. They argue this immunity flows from the federal government's exclusive power to wage war and from federal laws like the Federal Tort Claims Act (FTCA), which already shield the government itself from such lawsuits. In their view, the judiciary should recognize that these uniquely federal interests automatically preempt, or override, any state personal injury law.

Specialist Hencely, the injured soldier, argues that this approach represents judicial overreach. His lawyers contend that the Constitution gives Congress, not the courts, the authority to decide when federal policy should displace state law. They point out that Congress has passed specific laws to create immunity for federal employees or compensation systems for contractors, but has never created a law that shields contractors from being sued by the soldiers they injure through negligence. To invent such a rule would be for the Court to make policy, not interpret law.

This division was clear during oral arguments. Justice Gorsuch expressed skepticism toward Fluor's position, asking their lawyer, 'So you're asking us to invent a new... supplement to Boyle? Why isn't that a judgment that really cries out for congressional decision?' In contrast, Justice Kavanaugh suggested the default assumption should be flipped for war-related activities, proposing that lawsuits should be barred unless Congress specifically acts to allow them. The outcome of the case hinges on whether the justices see this as their role to fill a perceived gap in the law or as a matter for the legislative branch to resolve.

This question, posed by Justice Thomas during oral arguments, tested the limits of the immunity sought by Fluor Corporation. When asked if a food service contractor at Bagram Air Base that caused a mass food poisoning could be sued, Fluor's lawyer answered yes, that lawsuit would also be blocked. The reasoning was that all activities on the base, including feeding soldiers, were 'closely connected to combatant activities' and essential to the war effort. Any lawsuit related to these activities, in Fluor's view, would interfere with military command and federal war powers.

This answer reveals the sweeping nature of the legal shield Fluor is requesting. It would not be limited to actions taken under fire or directly related to fighting, but could extend to nearly any service a contractor provides in a combat zone. The argument is that allowing state juries to second-guess any decision—whether about security patrols or kitchen hygiene—would undermine the military's authority to manage its 'total force,' which includes both soldiers and contractors. The military, not a state court, should be the one to discipline a contractor for any type of failure.

The opposing view, advanced by Specialist Hencely, is that such a broad rule is an overreach that would leave soldiers without any legal recourse for clear instances of negligence. If even a food poisoning case is blocked, it suggests contractors would be held to a lower standard of care than any other company operating in the United States. This hypothetical forces the Court to decide where the line should be drawn, or if a line can be drawn at all, between actions directly related to combat and more ordinary negligence that happens to occur in a war zone.

This scenario was raised by Justice Kavanaugh as a key practical problem with allowing state-law lawsuits against military contractors. He asked the lawyer for the injured soldier, Specialist Hencely, whether standard 'choice-of-law' rules—the legal principles that determine which jurisdiction's laws apply in a case—could result in a U.S. court applying Afghan law to a dispute between a U.S. soldier and a U.S. contractor for an incident in Afghanistan. The lawyer conceded that it was a theoretical possibility.

This hypothetical served as a powerful argument for Fluor Corporation's position. The image of a U.S. contractor's actions being judged in an American court by 'the enemy's law,' as Justice Kavanaugh framed it, highlights the potential for chaos and unpredictability. Fluor argues that this is precisely why a single, uniform federal rule is needed. Allowing courts in 50 different states to handle these cases could lead to wildly different outcomes and potentially apply foreign legal standards that conflict with U.S. military objectives. This, they claim, would improperly entangle the judiciary in foreign policy and military affairs.

Hencely’s side views this as a red herring, arguing that U.S. courts are fully capable of managing such issues and would most likely apply the law of the state where the lawsuit was filed or where the company is based. They believe the core issue is accountability for negligence, a principle common to all state laws, not a complex question of applying foreign law. However, the hypothetical proved effective in oral argument by starkly illustrating the potential legal complexities that could arise if the federal government does not have exclusive control over all matters related to a foreign battlefield.

During oral arguments, Justice Kagan proposed a potential middle-ground solution that avoids the all-or-nothing positions of the two parties. She floated the idea of a rule where a contractor could be sued for negligence in a war zone, but 'if and only if the plaintiff can show that the contractor violated military policy.' This would create a clear test for when a lawsuit could proceed, directly linking liability to disobedience.

This compromise approach would address the primary concerns of both sides. For the injured soldier, Specialist Hencely, it would preserve a path to accountability. In his situation, where the Army's own investigation found that Fluor Corporation failed to follow its contractual security duties, his lawsuit would be allowed to go forward. It ensures that contractors cannot violate direct orders and cause harm with impunity. This aligns with the principle that legal shields for contractors are meant to protect them when they follow government commands, not when they disregard them.

For the contractor, Fluor, this rule would provide significant protection. It would prevent them from being second-guessed by a state jury for discretionary decisions made under the extreme pressures of combat. As long as they were not violating a clear military order or contractual requirement, they would be immune from suit. This 'off-ramp' could be an attractive landing spot for a majority of the justices, as it offers a way to hold contractors accountable for clear misconduct without opening the floodgates to lawsuits that could interfere with military operations in a war zone.