Hencely v. Fluor Corp.

In November 2010, Winston Hencely, a U.S. Army soldier serving in Afghanistan, stepped in to prevent a suicide bomber from attacking U.S. military personnel who were gathered for a recreational event within the confines of a U.S. airbase. Hencely’s actions saved his many of his comrades, but Hencely suffered severe injuries when the bomber detonated his suicide vest while in Hencely’s grasp. The terrorist was an Afghan employee of a company that provided vehicle maintenance services on the base under contract with the U.S. military. An Army investigation later concluded that the attack was the result of the contractor’s failure to supervise its employee properly, as required by its contract.

Hencely sued the contractor in a federal district court in South Carolina, alleging that it was liable under South Carolina tort law for negligence. He did not sue the United States, the Army, or any employee of the United States. The contractor nonetheless claimed that his claims were preempted by a provision of the Federal Tort Claims Act (FTCA) that immunizes the United States, its agencies, and its employees from liability for injuries resulting from the military’s combatant activities in wartime. The district court granted judgment in favor of the contractor, and the Fourth Circuit affirmed, holding that the FTCA’s combatant activities exception immunizes government contractors from liability for any misconduct that “touches” the kinds of combatant activities that the FTCA exception addresses.

The Supreme Court granted review to consider whether the protections of the FTCA’s combatant activities exception extend to contractors. Public Citizen filed an amicus curiae brief in support of Hencely, explaining that contractor liability does not conflict with the FTCA and that state laws imposing such liability are therefore not preempted. The brief also explains that the Supreme Court’s decision in Boyle v. United Technologies (1988), which created a limited defense for federal contractors against the imposition of state-law liability for conduct required by their federal contractual obligations, does not support granting immunity from liability for actions that violate a contractor’s duties to the government.