In a case that could shape the legal landscape for military contractors operating in active war zones, the U.S. Supreme Court justices are considering the scope of protections available to such entities. During Monday’s oral arguments in Hencely v Fluor Corporation, the justices scrutinized the claim that contractors should have absolute immunity for negligent actions occurring in a combat zone.
This case follows an incident involving a suicide bombing at the Bagram Air Force base in Afghanistan. The plaintiff, Winston Hencely, contended that the contractor, Fluor Corporation, failed to adequately supervise the bomber, an Afghan employee, thus contributing to the attack. Despite the lower courts ruling in favor of immunity for Fluor under the 1988 Supreme Court precedent Boyle v. United Technologies Corp., the current justices are evaluating whether the legal precedent should apply to this specific set of circumstances.
Fluor’s defense hinges on the notion that the “uniquely federal” interests in a combat zone should supersede state law, negating any possibility of liability for their actions on the field. Notably, Justice Brett Kavanaugh appeared receptive to this argument, emphasizing the challenges of applying state tort laws in war zones. However, the broader panel of justices expressed skepticism.
Justices Elena Kagan and Sonia Sotomayor highlighted that Fluor’s actions did not align with government contracts, but rather violated them. As Justice Kagan stated, under Boyle, contractors would be liable so long as the military did not “specifically approve or direct the conduct.” Justice Sotomayor reinforced this idea, stating that immunity only exists if there is a direct conflict between state law and military orders.
Furthermore, outgoing questions from Justice Neil Gorsuch suggest that existing government regulations for contractors might not confer immunity in scenarios like this one. Justice Amy Coney Barrett underscored an additional point, noting that the Federal Tort Claims Act’s combat activities exception does not extend to independent contractors, implying room for liability even if state law were preempted.
The debate continued with Justice Kavanaugh arguing for clarity in congressional legislation regarding the regulation of contractors in combat zones, while other justices stressed the need for careful scrutiny of contractor conduct that falls outside the scope of federal oversight. With most justices appearing inclined to reject Fluor’s plea for blanket immunity, the final decision is anticipated by the spring.
For further details on the arguments presented, please refer to the discussion on SCOTUSblog.