Key Takeaway

In a 6-3 decision vacating the Fourth Circuit, the Supreme Court held that federal law does not preempt state-law tort claims against a military contractor when the contractor’s challenged conduct was “neither ordered nor authorized” by the federal government. Writing for the majority, Justice Thomas rejected the Fourth Circuit’s “battlefield preemption” doctrine, which had categorically barred all state-law tort suits against contractors engaged in combatant activities under military command. The Court held that Boyle v. United Technologies Corp., 487 U.S. 500 (1988), protects a contractor only when the government “directed [the] contractor to do the very thing challenged in the suit.”

Justice Alito, joined by Chief Justice Roberts and Justice Kavanaugh, dissented—arguing that the Constitution’s exclusive assignment of war powers to the federal government implicitly preempts state tort claims that intrude on military policy decisions in active combat zones.

The decision is significant for government contractors, who can no longer rely on a blanket preemption defense, previously adopted by many federal circuits, for tort claims arising from wartime operations. It also clarifies—and some might say narrows—the scope of the Boyle contractor-immunity doctrine in ways that may affect contracting and litigation strategy across the government-contracting sector.

Background

In 2016, former Army Specialist Winston T. Hencely was seriously injured when a Taliban operative detonated a suicide vest at a U.S. military base in Afghanistan. The bomber, Ahmad Nayeb, was an Afghan national working at the base.

Nayeb was employed under the military’s “Afghan First” initiative: a program requiring military contractors to hire local nationals “to the maximum extent possible” to stimulate the local economy and stabilize the Afghan government. As part of that program, the military had screened and approved Nayeb for employment, despite discovering his past involvement with the Taliban.

Nayeb worked for Fluor Corporation’s subcontractor. Fluor, a defense contractor providing base logistics had a contract with the Army that required Fluor to supervise Nayeb and escort him off base at the end of his shift. Fluor allegedly failed to comply with these duties on the day of the attack, and the Army’s investigation later found Fluor primarily responsible.

Hencely sued Fluor in the U.S. District Court for the District of South Carolina, asserting state-law claims for negligent supervision, negligent entrustment of tools, and negligent retention. The District Court granted summary judgment for Fluor, and the Fourth Circuit affirmed under its “battlefield preemption” doctrine. Under that doctrine, state-law claims against military contractors under military command arising out of combatant activities during wartime are preempted—regardless of whether the contractor violated its instructions from the military. This doctrine had previously been adopted by the Fourth Circuit, and the Third, Ninth, and D.C. Circuits had adopted it as well. The Second Circuit had adopted a slightly different formulation (although the parties disputed whether that difference was meaningful).

The Court’s Analysis

The Majority Opinion (6 justices)

Justice Thomas’s majority opinion—joined by Justices Sotomayor, Kagan, Gorsuch, Barrett, and Jackson—rejected each potential basis for preemption.

Express preemption. The majority first held that no constitutional provision or federal statute expressly preempts Hencely’s suit; the FTCA’s combatant-activities exception, 28 U.S.C. §2680(j), preserves the government’s own sovereign immunity but does not apply to federal contractors.

Federal-interest preemption under Boyle. The majority next held that the state-law claims were not preempted under Boyle. There, a military helicopter manufacturer was sued for a design defect that conformed to specifications that the government had approved pursuant to a military procurement contract. The Court reasoned that, in areas of "uniquely federal" interest, state law is displaced when there is a "significant conflict" with federal policy. Id. at 504, 507. Federal courts had extended Boyle's reasoning beyond procurement contracts, including to the “battlefield preemption” rule the Fourth Circuit applied here.

In Hencely, the Court made clear that Boyle remains good law but clarified its limits. The Court emphasized that Boyle requires a “significant conflict” between federal interests and state law—meaning that preemption applies only where “the government has directed a contractor to do the very thing that is the subject of the claim.” Because Hencely sued Fluor for conduct that was allegedly contrary to military instructions, the Court held that Boyle did not apply.

The Court also made several statements contrasting procurement contracts with performance contracts. It first observed that Boyle “does not squarely govern” because Boyle “concerned the performance of a procurement contract, not a performance contract.” It also cited a DoD final rule stating that Boyle “did not protect nonprocurement contractors.” But in the same breath, the majority acknowledged that Boyle itself relied on Yearsley v. W. A. Ross Construction Co., 309 U.S. 18 (1940)—a performance-contract case—and saw “no basis for a distinction” between the two contract types.

Constitutional preemption. Finally, the majority held that the “Constitution’s structure” did not implicitly preempt war-related tort suits. It explained that the Constitution’s war powers have “never been understood to bar all war-related tort suits,” and federal contractors do not automatically share the government’s immunity.

The Dissent (3 justices)

Justice Alito’s dissent—joined by Chief Justice Roberts and Justice Kavanaugh—would have held that constitutional preemption applies. Specifically, the dissent argued that “because the Constitution gives the Federal Government exclusive authority over foreign affairs and the conduct of wars, federal law preempts all state law that substantially interferes with the Government's exercise of those powers.” The dissent also warned that Fluor’s planned “empty chair” defense—shifting blame to the military—will likely require discovery of sensitive documents, depositions of military commanders about wartime decisions, and ultimately a jury evaluation of the reasonableness of military judgments. Finally, the dissent also flagged potential choice-of-law concerns, noting that South Carolina’s lex loci delicti rule could require application of Afghan law to conduct occurring at Bagram.

Notably, the dissent agreed that Boyle does not directly govern, but for a different reason: the federal interest at stake in Hencely (war powers) differs from the procurement-contract interest in Boyle. All nine Justices thus agreed that Boyle does not squarely control, even as they reached opposite conclusions about what follows from that premise.

Practical Implications

• For military contractors: “Battlefield preemption” is gone. Contractors operating in war zones can no longer invoke preemption as a blanket defense. They must now demonstrate a direct conflict between specific government directives and the state-law duty at issue to obtain preemption under Boyle.
• For all federal contractors: Boyle requires a direct conflict. The decision makes clear that Boyle protects a contractor only where the contractor did exactly what the government told it to do. A contractor sued under state law for deviating from its instructions may not be able to invoke Boyle successfully. And a contractor can also potentially be sued for acting in a discretionary manner that was neither expressly authorized nor expressly prohibited by the contract. Lower courts will likely need to define the line between mandatory and discretionary conduct.
• Contractors face greater liability exposure. Federal contractors should reassess their risk of state-law liability under federal contracts. For any risky conduct, contractors should consider seeking explicit contractual directives from the government, so that if a state-law tort claim arises they can point to a specific government instruction and preserve a preemption defense under Boyle.
• Parties may dispute whether federal preemption applies to services contracts. The majority’s observation that Boyle does not “squarely govern” performance contracts—while, at the same time, acknowledging that Boyle saw “no basis for a distinction” between performance contracts and procurement contracts—creates potential uncertainty. The dissent also suggested that Boyle is limited to a specific federal interest relating to “federal procurement contracts.” The better reading is that Boyle (or at least Yearsley) still applies where a performance contractor carried out specific government directives, but lower courts may be asked to resolve this tension.
• The 6-3 lineup signals durability. The cross-ideological majority—Justice Thomas joined by Justices Sotomayor, Kagan, Gorsuch, Barrett, and Jackson—suggests the decision is unlikely to be narrowed in the near term.
• The Court may be shifting away from implied preemption more generally. Justice Thomas has long sought to narrow the doctrine of implied preemption. See, e.g., Wyeth v. Levine, 555 U.S. 555, 583, 587 (2009) (Thomas, J., concurring in the judgment). In Hencely, he may have recruited Justices Gorsuch and Barrett to that cause.

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Hunton Andrews Kurth represented the Chamber of Commerce of the United States as amicus curiae in this case, with David Parker, Maya Eckstein, and Elbert Lin authoring the amicus brief. Hunton Andrews Kurth’s appellate, litigation, and government contracts teams are monitoring the implications of this decision. If you have questions about how Hencely may affect your business or litigation strategy, please contact the authors or your regular Hunton Andrews Kurth attorney.