Hencely v. Fluor Corp.: No Combat-Zone “Battlefield Preemption” for Contractor Negligence Absent Government Authorization

Introduction

In Hencely v. Fluor Corp. (608 U. S. ___ (2026)), the Supreme Court addressed whether state-law tort claims against a military contractor are preempted merely because the alleged negligence occurred on a U. S. base in a wartime combat setting. Petitioner Winston Tyler Hencely, a former Army specialist, was severely injured while confronting Ahmad Nayeb, a Taliban operative employed on Bagram Airfield through Fluor’s contracting operations. Hencely sued Fluor Corporation and related entities under South Carolina tort law for negligent supervision, negligent entrustment, and negligent retention, alleging Fluor failed to follow base-security requirements—failures the Army itself identified as a primary contributing factor to the attack.

The key legal issue was preemption: whether federal law (statutory, constitutional, or federal common-law displacement under Boyle v. United Technologies Corp.) bars state tort liability for contractor conduct connected to “combatant activities,” even when the Government neither ordered nor authorized the specific challenged acts or omissions.

Summary of the Opinion

The Court (Justice Thomas) vacated and remanded the Fourth Circuit’s judgment. It rejected the Fourth Circuit’s “battlefield preemption” doctrine—derived from In re KBR, Inc., Burn Pit Litigation and ultimately Saleh v. Titan Corp.—to the extent it broadly preempts state-law claims against contractors integrated into wartime operations regardless of whether there is a conflict between state duties and federal direction.

The Court held that preemption was not shown because:

No constitutional provision or federal statute expressly preempted Hencely’s suit.
The FTCA’s combatant-activities exception, 28 U. S. C. §2680(j), does not itself apply to contractor suits (per United States v. Orleans).
Boyle v. United Technologies Corp. supports displacement only where there is a “significant conflict” between state law and an identifiable federal policy—typically where the Government directed the contractor to do the very act challenged.
Yearsley v. W. A. Ross Constr. Co. (as explained in Campbell-Ewald Co. v. Gomez) protects contractors only when they act within validly conferred authority; Fluor was alleged to have acted outside that authority.

Analysis

1) Precedents Cited

A. Core preemption framework

The Court anchored preemption in text and enacted law, relying on the principle that “there is no federal pre-emption in vacuo” (Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp.) and that the asserted federal restriction must “stem from either the Constitution itself or a valid statute enacted by Congress” (Kansas v. Garcia). It reiterated conventional conflict preemption: when compliance with both federal and state directives is impossible, state law yields (Martin v. United States (2025)).

B. The FTCA and contractors

The Fourth Circuit treated the FTCA’s combatant-activities exception (28 U. S. C. §2680(j)) as reflecting a congressional policy that should wipe out state tort duties for contractors operating under military command in wartime. The Supreme Court rejected that move, emphasizing that the FTCA’s contractor exclusion and the Court’s reading in United States v. Orleans mean the combatant-activities exception does not itself supply a rule of contractor immunity or contractor preemption.

C. Boyle and the limits of federal common-law displacement

The Court read Boyle v. United Technologies Corp. as a narrow displacement doctrine requiring (1) a “uniquely federal interest” and (2) a “significant conflict” between that interest and state law. Boyle’s reasoning drew on FTCA’s discretionary-function exception, 28 U. S. C. §2680(a), and was tethered to a procurement context where the Government approved “reasonably precise specifications.” The Court relied on Correctional Services Corp. v. Malesko for the proposition that Boyle protects a contractor only when “the government has directed a contractor to do the very thing that is the subject of the claim.”

To illuminate Boyle’s boundary, the Court quoted Boyle’s “air-conditioning unit” hypothetical: if the Government specifies only a result (cooling capacity) and is silent on the allegedly negligent feature, state tort duties ordinarily coexist. That framing was used to characterize Fluor’s contract as closer to a performance/logistics arrangement than a directive to engage in the particular supervision failures alleged.

The Court also situated Boyle among federal common-law cases identifying “uniquely federal interests,” including: Texas Industries, Inc. v. Radcliff Materials, Inc., Clearfield Trust Co. v. United States, and United States v. Kimbell Foods, Inc.. It reiterated the caution from Bank of America Nat. Trust & Sav. Assn. v. Parnell that displacement is rare when litigation is “purely between private parties” and does not implicate the United States’ rights and duties.

D. “Battlefield preemption” in the lower courts

The Court directly confronted the Fourth Circuit’s reliance on In re KBR, Inc., Burn Pit Litigation (quoting Saleh v. Titan Corp.), which endorsed preemption “[d]uring wartime” when contractors are integrated into combatant activities under military command authority. The Supreme Court rejected the move—especially the idea that in the combatant-activities setting “the relevant question is not so much whether” state and federal duties conflict. For the Supreme Court, that approach severs preemption from conflict and turns it into blanket immunity by label (wartime/combat zone).

The Court found support in the Second Circuit’s narrower approach in Badilla v. Midwest Air Traffic Control Serv., Inc., emphasizing that any displacement tied to combatant activities should track whether the challenged conduct can fairly be treated as the military’s own decision such that state law would conflict with that decision.

E. Structural constitutional arguments and contractor regulation

Fluor and the United States urged a structural war-powers preemption theory. The majority rejected it, citing historical examples where tort liability attached to wartime conduct, including Little v. Barreme and Mitchell v. Harmony, and modern contractor-regulation/taxation cases recognizing that contractors do not automatically share federal immunity: Penn Dairies, Inc. v. Milk Control Comm'n of Pa., James Stewart & Co. v. Sadrakula, and James v. Dravo Contracting Co.. The Court also cited Penn Dairies, Inc. v. Milk Control Comm'n of Pa. for the proposition that contractors are not “agencies” performing governmental functions in the constitutional-immunity sense.

On state authority to regulate federal actors, the Court cited United States v. Washington and McCulloch v. Maryland, but distinguished contractors from “federal officers and agencies.”

The Court underscored the limited scope of Yearsley v. W. A. Ross Constr. Co. and, via Campbell-Ewald Co. v. Gomez, emphasized the “exceeded authority” carve-out: contractors lose Yearsley protection when they act outside validly conferred federal authority.

F. Choice of law and foreign law competence

In a footnote responding to the dissent’s concern about foreign law, the majority pointed to the judiciary’s competence to apply foreign law where necessary, citing Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. and Canada Malting Co. v. Paterson S. S., Ltd., while noting the issue was largely academic here because the parties litigated under South Carolina law and Fluor did not show outcome-determinative differences under Afghan law in the Fourth Circuit.

G. The dissent’s structural preemption theory (and its authorities)

Justice Alito’s dissent treated war and foreign affairs as “exclusive domains” where state tort law cannot operate, relying on structural preemption cases beginning with McCulloch v. Maryland and Osborn v. Bank of United States, and on foreign-affairs exclusivity precedents such as Hines v. Davidowitz, United States v. Belmont, Zschernig v. Miller, Crosby v. National Foreign Trade Council, and American Ins. Assn. v. Garamendi. The dissent also cited modern implied-preemption framing (Kansas v. Garcia) and “unique federal concern” formulations from United States v. Standard Oil Co. of Cal., as well as the presumption-against-preemption line (Wyeth v. Levine, Medtronic, Inc. v. Lohr, Rice v. Santa Fe Elevator Corp.) to argue the presumption does not apply in war powers.

The majority did not deny that structural preemption exists in general; it denied that war powers create a judicially enforceable blanket bar on “all war-related tort suits” against contractors absent congressional action, especially where the contractor is accused of violating the Government’s own instructions.

2) Legal Reasoning

A. Re-centering preemption on actual conflict

The majority’s central move is conceptual: it rejects “combat-zone” as a sufficient trigger for preemption and insists on the traditional preemption predicate—conflict with a federal right, restriction, or policy grounded in constitutional or statutory law, or a narrow federal common-law displacement justified by a “significant conflict” (Boyle v. United Technologies Corp.).

B. Combatant-activities exception protects government decisionmaking, not contractor deviations

A key analytic distinction is between (i) shielding the Government’s combat decisions (FTCA §2680(j)) and (ii) insulating contractors from ordinary negligence duties. Even if one extrapolates from §2680(j) some federal interest in insulating battlefield decisionmaking, the majority reasons that the interest would extend only when the challenged conduct is effectively the military’s own conduct or decision. The Fourth Circuit’s test, however, preempted even though it explicitly stated that adjudication would not require “evaluat[ing] the reasonableness of military judgments.”

C. Boyle applies when the Government “directed” the act complained of

The majority read Boyle as a shield for faithful implementation, not a license for negligence: the contractor is protected when state law would penalize the contractor for doing what the Government required. Where the contractor could comply with both state law and the contract—especially where the contractor allegedly violated the contract—Boyle’s logic cuts against preemption.

D. Yearsley remains an “authority” doctrine, not a status doctrine

The Court reinforced that Yearsley v. W. A. Ross Constr. Co. is not a blanket derivative-immunity rule for all federal contractors in wartime. It is limited to injuries arising from executing the Government’s will within validly conferred authority. By emphasizing Campbell-Ewald Co. v. Gomez, the Court framed “exceeded authority” as the doctrinal line: allegations that Fluor failed to supervise, failed to escort, and facilitated access to tools contrary to base policies place the case outside Yearsley’s rationale.

E. Separation of powers: Congress may choose immunity, courts may not create it wholesale

The majority acknowledged that the “good case for Congress to intervene” may exist, but treated that as a reason for judicial restraint, not judicial invention. It cited examples of Congress expressly channeling or immunizing certain contractor-related liabilities (e.g., 42 U. S. C. §§233(a), (g); 50 U. S. C. §2783(b); and the Defense Base Act, 42 U. S. C. §§1651(a), (c)), suggesting that where Congress intends broad protections, it can say so.

3) Impact

A. Immediate doctrinal consequence: narrowing “battlefield preemption”

The decision directly undercuts the Fourth Circuit’s broad “battlefield preemption” doctrine (and the D. C. Circuit’s approach in Saleh v. Titan Corp.) insofar as it operates as categorical preemption for contractor conduct “arising out of combatant activities” regardless of conflict. Post-Hencely, lower courts are pushed toward a more particularized inquiry: whether the Government ordered/authorized the specific conduct that state law would treat as negligent, and whether adjudication would effectively second-guess a military decision as opposed to contractor noncompliance.

B. Litigation effects for wartime contractor cases

Pleading and proof incentives: Plaintiffs will emphasize contractor departures from military/base directives; contractors will emphasize that the challenged conduct was required, approved, or inseparable from military judgment.
Discovery battles: Although the dissent forecasted state-secrets and sensitive discovery disputes, the majority’s framework suggests courts should not short-circuit merits via preemption where claims target contractor noncompliance; instead, courts will manage sensitive evidence issues through ordinary tools (privileges, protective orders, relevance limits).
Choice-of-law posture: The Court did not resolve whether South Carolina or Afghan law applies, but it signaled skepticism toward using foreign-law complexity as a reason to constitutionalize immunity.

C. Relationship to federal common-law displacement and Yearsley defenses

The decision reinforces two limiting principles likely to shape future contractor defenses:

Boyle is conflict-based, not context-based: the “war zone” label does not substitute for a “significant conflict” with an identifiable federal policy.
Yearsley is authority-based: contractors must show valid federal authorization for the specific injurious conduct, not merely a general federal mission.

Complex Concepts Simplified

Preemption: When federal law overrides state law. The Court emphasized that preemption generally requires a real conflict grounded in the Constitution or an act of Congress—not just a broad federal interest.
FTCA “combatant-activities exception” (28 U. S. C. §2680(j)): A rule keeping the United States immune from certain wartime combat-related tort suits. The Court said this exception does not automatically extend to contractors.
Boyle displacement (“government contractor defense”): A narrow federal common-law doctrine preventing state tort liability when it would penalize a contractor for following the Government’s precise directions and thereby conflict with federal policy.
Yearsley doctrine: A contractor can avoid liability when it acts within valid authority conferred by the Government and merely executes the Government’s will. If the contractor “exceed[s]” that authority (Campbell-Ewald Co. v. Gomez), the protection can disappear.
“Battlefield preemption”: A lower-court doctrine that treated many contractor tort suits in war zones as categorically preempted. Hencely rejects that categorical approach when the Government did not order or authorize the challenged conduct.

Conclusion

Hencely v. Fluor Corp. establishes a clarifying limit on combat-zone contractor preemption: state-law tort claims are not preempted merely because they arise in a wartime setting. Absent express statutory preemption, a valid Yearsley-authority defense, or a Boyle-style “significant conflict” created by the Government’s direction to perform the precise act alleged to be tortious, contractors remain subject to ordinary state negligence principles—especially when they are alleged to have violated the Government’s own instructions.

In the broader legal landscape, the decision reasserts that judicially created immunity doctrines must remain tethered to conflict, authorization, and congressional choices—not expanded into a general “war zone” carve-out from state tort law.