The Supreme Court held that military contractors do not have absolute immunity from state-law negligence suits for mistakes made in active war zones, rejecting a broad preemption defense when the contractor's conduct departs from federal instructions.
In Hencely v Fluor Corporation, the Court ruled that state law is not preempted when a contractor departs from federal military instructions, even in an overseas combat theater.
The case arises from a 2016 suicide bombing at Bagram Airfield, then a U.S. military base in Afghanistan. The attack was perpetrated by a former Taliban member who worked as an on-base employee for Fluor Corporation, the defendant.
Survivors of the bombing sued Fluor, arguing that the contractor failed to follow military rules regarding the tracking of its native employees and was therefore responsible for the attack.
Writing for the majority, Justice Clarence Thomas rejected the lower court’s reliance on Boyle v. United Technologies Corp. That 1988 precedent recognized a defense for contractors when the government directed them to perform the specific conduct at issue.
Thomas distinguished Hencely on that ground, noting in his opinion that the conduct here "was not authorized by, but was even contrary to, federal instructions," as military officials found that the contractor "failed in its contractual obligations."
Thomas grounded his analysis in the Supremacy Clause, emphasizing that state law is not preempted "in vacuo, without a constitutional text or a federal statute." He noted that no constitutional provision or federal statute preempts the state-law tort suit at issue.
The Court concluded that even if there is a "uniquely federal interest" in regulating military bases overseas, no "significant conflict" exists between that interest and state-law negligence liability premised on a contractor’s departure from military instructions.