On April 22, 2026, the U.S. Supreme Court issued an opinion in Hencely v. Fluor Corp., et al., No. 24–924, that weakens key federal defenses long available to military contractors who are sued under state law for injuries caused by enemy combatants. In a 6-3 decision, the Court ruled that state-law tort claims against Fluor, a contractor that supported the U.S. military in Afghanistan, were not preempted by either the Constitution, the combatant activities exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680(j), or the government contractor defense established in Boyle v. United Technologies Corp., 425 U.S. 500 (1988).

Though Hencely is potentially limited by its unique facts, the majority's reasoning threatens to upend how contractors support the U.S. military in war. The opinion leaves contractors, the federal government, and insurers to reallocate risk in ways that can degrade military capabilities and result in higher costs borne by the U.S. taxpayer. Still, the decision does not reach other defenses available to military contractors, such as the political question doctrine, and Justice Samuel Alito's dissenting opinion provides a roadmap for how those defenses could be asserted in future litigation. 

We'll discuss the Hencely opinion and provide practical steps every military contractor should be considering in the wake of the Court's decision. 

Background

The claims in Hencely stem from a 2016 suicide bomb attack carried out by a Taliban operative, Ahmed Nayeb, who worked for a Fluor subcontractor at Bagram Airfield in Afghanistan. Nayeb was hired as a local national contractor under the military's "Afghan First" program.¹ This program sought to stimulate the local economy and bolster the then-Afghan government by requiring government contractors like Fluor to hire Afghans "to the maximum extent possible."² U.S. military personnel interviewed and screened Nayeb for the program. During the process, they learned that Nayeb was a former member of the Taliban, but nonetheless approved Nayeb for employment at the base. After he was hired, the military periodically reassessed Nayeb, deciding each time that he could stay.

Fluor's contract made the company responsible for overseeing its personnel and subcontractors to ensure compliance with, among other requirements, base security policies. Under those policies, local national personnel like Nayeb were assigned red badges to be worn at all times. Fluor and its subcontractors were also tasked with escorting and maintaining "constant view" of red badge holders in all areas of the base, except at their work sites.³

According to an Army investigation of the attack, Fluor failed to properly oversee and discipline Nayeb, who had reportedly slept on the job and was absent from his work area without permission. The investigation also found that Nayeb was allowed to check out tools he did not need for his job in the base's non-tactical vehicle yard and that he used those tools to make the bomb inside Bagram. In addition, the Army determined that, instead of escorting Nayeb off base after his shift, Fluor relied on a sign-out system managed by another Afghan employee, in alleged violation of base security policy. The Army concluded that "this lax supervision 'enabled Nayeb to go undetected for nearly an hour'" and walk throughout the base on the day of the attack.⁴

That day, Nayeb was walking toward a Veterans Day 5K race when he was confronted by Army Specialist Winston T. Hencely, who attempted to question Nayeb. Nayeb then detonated his suicide vest, killing five and wounding 17. Hencely suffered a fractured skull and brain injuries as a result of the attack. 

In 2019, Hencely filed suit against Fluor in South Carolina federal court, asserting various tort claims under South Carolina law. Following Fourth Circuit precedent, the district court granted summary judgment for Fluor on the basis that state tort claims against military contractors arising out of combatant activities are generally preempted. The Fourth Circuit affirmed, reasoning that, "[d]uring 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" under the FTCA's combatant activities exception, "even when the contractor is alleged to have violated its instructions from the military."⁵

The Supreme Court's Decision

The Supreme Court granted Hencely's petition for a writ of certiorari "to decide whether a state-law suit premised on a military contractor's activities in a war zone is preempted even when the contractor was not required or authorized to take the action at issue."⁶ The Court, in an opinion delivered by Justice Clarence Thomas, ultimately concluded that Hencely's claims were not preempted and could move forward. 

First, the majority found that neither the Constitution nor any federal statute, including the FTCA, expressly preempted the suit. The Court then addressed the extent to which its 1988 decision in Boyle preempts state tort claims against military contractors like Fluor. To start, the Court observed that Boyle did not "squarely govern" the claims against Fluor because "[Boyle] concerned the performance of a procurement contract, not a performance contract, and the combatant-activities exception was not at issue."⁷ Even so, those observations are beside the point. As the majority later acknowledged, the Boyle defense does not turn on whether a performance or procurement contract is at issue⁸ and tort claims against contractors that fall within an exception to the FTCA's waiver of sovereign immunity are logically barred, regardless of the FTCA exception that applies. 

Despite this, the Court moved next to the conclusion that Boyle only addresses "a special circumstance in which the contractor has a defense because the government has directed a contractor to do the very thing that is the subject of the claim."⁹ Relying on the Army's unchallenged investigation into the Nayeb attack, the Court found that Hencely's claims were not preempted under Boyle because they challenged conduct that allegedly "was not authorized by, but was even contrary to, federal instructions."¹⁰ Here again, the Court appeared to overreach. Boyle does not govern preemption of every tort case filed against a contractor,¹¹ and in any event, Boyle embraces preemption when the government has merely reviewed and approved reasonably precise instructions that form the basis of a contractor's allegedly tortious conduct, not just when the government dictates that conduct.¹² 

This misapplication of Boyle led the Court to ground its decision in the flawed premise that the government did not "require Fluor to leave Nayeb unsupervised, allow him to walk alone for an hour after his shift, or permit him to obtain unauthorized tools with which he could build a bomb."¹³ Among other problems with this logic, the Court undervalued the critical fact that the U.S. military approved Nayeb's employment and base access despite his known connections to the Taliban. The Court also discounted the likelihood that, to some degree, the U.S. military must have known and approved of how Fluor was following base security policies, including in the tool and shift sign-out processes, given the military's ubiquitous and ultimate control over the persons authorized to be on base in the first place. 

Second, the Court disagreed with the Fourth Circuit's test for determining whether the FTCA's combatant activities exception impliedly preempted Hencely's claims, finding the "test sweeps too broadly."¹⁴ In so doing, the Court seized on language the Fourth Circuit used to frame the preemption issues in the case, which the Court interpreted as extending preemption to any state-law claim arising from contractor conduct on a battlefield. Setting aside whether that fairly characterized the Fourth Circuit's approach, the Court, for its part, took a surprisingly narrow view of when the protections of the FTCA's combatant activities exception extend to military contractors. The Court limited these protections to scenarios where a contractor's "challenged conduct can fairly be treated as the military's own conduct or decision."¹⁵ Not only is that standard vague and easily manipulable, but it is also unworkable in modern military deployments, where contractors are asked to support virtually every facet of the military mission, but are not always told how. 

Last, the Court rejected Fluor's argument, supported by the federal government, that the U.S. Constitution impliedly preempts suits like the one brought by Hencely. The Court looked to precedent involving distinguishable facts and law and found that state law can regulate a contractor's conduct on the battlefield unless (1) a federal statute expressly preempts state law, or (2) the contractor acted within the authority granted to it by the military. Finding no such statute or evidence of compliance by Fluor, the Court concluded that the Constitution did not impliedly preempt Hencely's state-law tort claims.

Justice Alito, joined by Chief Justice John Roberts and Justice Brett Kavanaugh, dissented from the majority. The dissent explained the Court's long history of finding that the Constitution and federal law preempt state law where its application would substantially interfere with the federal government's exclusive powers under the Constitution, including in matters of foreign and military policy. In the dissent's view, Hencely's suit would do just that by, among other things, undermining the military's balancing of strategic and security interests in allowing Nayeb on base, forcing military contractors to weigh military orders against the risk for future state tort claims, and empowering state court judges and juries to second guess the military's evaluation of the risks and benefits of authorizing Nayeb's employment. Importantly, the dissent acknowledged that the Constitution might not preempt all state law claims arising in a war zone. It nonetheless believed that such claims, like Hencely's, are preempted when they are "intertwined" with military policy decisions.¹⁶

Key Takeaways

Following the Hencely decision, contractors supporting U.S. military or diplomatic missions should consider taking the following practical steps:

• Review the terms and scope of work of all current and future government contracts to identify requirements that may require a reallocation of battlefield tort risk to private insurance or the government. This could include simply refusing to perform activities your company deems too risky to undertake.
• Adopt contracting processes to generate evidence showing that the government approved and accepted how your company is implementing military policies that could lead to battlefield tort risk. This evidence could one day give your company the proof it needs to successfully assert an FTCA combatant activities defense and distinguish the Hencely decision in litigation. 
• Solicit feedback from private insurance markets about the availability and cost of increasing the scope and limits of insurance to cover battlefield tort liability.
• Coordinate simultaneously with government contracting officers (COs) about the anticipated costs of securing additional insurance and the contractual mechanisms for having those costs covered by the government (i.e., as a direct or indirect cost on flexible priced contracts, upward adjustment of firm fixed priced contracts, or economic price adjustments). 
• Where a contract involves unusually hazardous or nuclear risks for which insurance is unavailable or insufficient, initiate discussions with government COs about the potential for seeking government indemnification under Public Law 85-804.
• Familiarize your internal and external legal teams with common law defenses that are unaffected by the Hencely decision. This includes defenses based on the political question doctrine and state secrets privilege. The better your team understands these defenses, the more effectively your company can develop evidence that helps establish those defenses. 

If you have questions about Hencely or ways to minimize potential tort liability as a government contractor, please contact the Miller & Chevalier attorneys listed below.

Alex L. Sarria, Member, asarria@milchev.com, 202-626-5822

Jason N. Workmaster, Member, jworkmaster@milchev.com, 202-626-5893

Robert Cetrino, Associate, rcetrino@milchev.com, 202-626-1572

*Member Scott N. Flesch did not draft or otherwise participate in this alert.

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¹Hencely v. Fluor Corp., et al., No. 24–924, at 2.
²Id. at 2.
³Id. at 3.
⁴Id.
⁵Id. at 4.
⁶Id. at 4-5.
⁷Id. at 6.
⁸Id. at 7.
⁹Id. at 8.
¹⁰Id.
¹¹Id. at 16 (Alito, J., dissenting).
¹²Boyle v. United Technologies Corp., 425 U.S. 500 (1988), at 501, 512. 
¹³Hencely at 9-10 (emphasis added).
¹⁴Id. at 11.
¹⁵Id. at 12.
¹⁶Id. at 17 (Alito, J., dissenting).

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