On April 22, 2026, the Supreme Court of the United States issued Hencely v. Fluor Corporation,[1] a 6-3 decision rejecting the Fourth Circuit’s holding that defense contractors enjoy per seimmunity from state-law torts when performing in a war zone. Applying straightforward preemption principles, the Court — in an opinion by Justice Thomas — reasoned that where a contractor “was not required or authorized” by the federal government “to take the action” that is the subject of the tort claim, state law imposing liability for that action does not conflict with federal law and is thus not preempted.
Hencely arose out of a 2016 suicide bombing at Bagram Airfield in Afghanistan that severely injured the plaintiff, US Army Specialist Winston Hencely, and killed or injured several others. The bombing was perpetrated by a covert Taliban operative hired and employed by Fluor’s subcontractor with the approval of the Army, which was aware when it gave that approval that the operative had previously been involved with the Taliban. Hencely, relying largely on findings from the Army’s own post-bombing investigation, alleged both that Fluor was negligent in failing to supervise the operative in the manner Army policy required and that Fluor’s negligence led to the bombing by enabling the operative to access bomb-making materials and roam the base unsupervised.
Both the district court and the Fourth Circuit, invoking the “battlefield preemption” doctrine, rejected Hencely’s claims. Those courts interpreted an earlier Supreme Court decision, Boyle v. United Technologies Corp.,[2] to establish 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.”
The Supreme Court reversed, reasoning that the Fourth Circuit’s blanket rule “lacks any foundation in the Constitution, federal statutes, or our precedents.” As the Court explained, the key consideration under Boyle is not the one the Fourth Circuit invoked, but is instead whether the state-law suit in question “challenge[s] a decision of the [Federal] Government that the contractor merely carried out.” Applying that rule to Hencely’s suit, with its allegation that Fluor caused his injuries by deviating from the federal government’s instructions, the Court concluded that Hencely’s claim was not preempted.
Justice Alito, joined by Chief Justice Roberts and Justice Kavanaugh, dissented. In their view, litigating Hencely’s claim to judgment would empower a jury to examine and potentially second-guess sensitive foreign-relations and security decisions the Army made in the midst of an active warzone, such as whether to employ a formerly Taliban-affiliated individual at all. Because of that prospect and other related ones, the dissenting Justices would have held that Hencely’s claim “intrude[s] on the Federal Government’s exclusive power to make war and conduct combat operations” and is thus preempted.
In reaffirming Boyle, Hencely establishes what appears at first blush to be a fairly clear rule: preemption applies if — but only if — a contractor’s conduct merely carries out a decision the government made. But the devil may turn out to rest in the details, and the proceedings on remand are likely to demonstrate why. As both the majority and the dissent note, the operative was employed pursuant to the military’s “Afghan First” program, which sought to stimulate the local economy and stabilize the Afghan government by requiring contractors to hire Afghans to the maximum extent possible. Moreover, the Army approved the operative’s employment despite its awareness of his prior Taliban links. Fluor may therefore argue on remand, for instance, that the government either expressly or tacitly approved significant aspects of the conduct Hencely challenges.
At bottom, Hencely is a reminder to contractors that battlefield preemption is not unlimited, and simply doing business with the federal government — even in a warzone — does not per se protect them from liability under state or federal law.
[1] 608 U.S. ___.
[2] 487 U.S. 500, 509 (1988).
