Hencely v. Fluor Corporation: When Preemption Becomes Immunity
On November 12, 2016, Winston Hencely spotted someone approaching the Veterans Day 5K race at Bagram Airfield in Afghanistan who seemed out of place. As Hencely reached out to question him, he felt a bulky explosive vest. Seconds later, Ahmad Nayeb, a former Taliban member hired as a laborer by a Fluor Corporation subcontractor, then detonated the bomb. Six people died, and seventeen were injured. According to an Army investigation, Fluor’s “complacency and lack of reasonable supervision” were “the primary contributing factor[s]” to the attack. Yet when Hencely sued Fluor under South Carolina tort law for negligent supervision, both the district court and the Fourth Circuit dismissed Hencely’s claims on the grounds of federal preemption before he could present them to a jury. This dismissal raises a fundamental question about the scope of preemption in military contexts. Preemption, under the Constitution’s Supremacy Clause, occurs when federal law overrides conflicting state law, preventing states from regulating in areas where federal authority is supreme or where state law would interfere with federal objectives.
In November 2025, the Supreme Court heard oral arguments in Hencely v. Fluor Corporation, testing whether the military contractor defense established in Boyle v. United Technologies Corp. __(1988) has transformed from a narrow rule displacing state law only when it conflicts with federal military judgment into blanket immunity untethered from any showing of actual interference with government decision-making. In Boyle, a Marine helicopter pilot drowned when his aircraft crashed during training and his family sued the manufacturer over the escape hatch design. The Court held that state tort law must give way to federal law when three conditions are met: (1) the United States approved reasonably precise specifications, (2) the equipment conformed to them, and (3) the supplier warned of known dangers. Justice Scalia, who authored the majority opinion, wrote that the doctrine protects the government’s interest “in getting its work done” when contractors follow federal directives. Critical to this framework was that “government officials must remain the agents of decision,” meaning preemption operated only when imposing state tort liability on contractors would conflict with a decision the federal government itself had made.
The Fourth Circuit’s reasoning in Hencely marked a significant departure from this conflict-based approach, treating the combat-zone location itself as sufficient grounds for preemption based on the theory that military operations in war zones involve uniquely federal interests immune from state regulation. Drawing on the Federal Tort Claims Act’s combatant activities exception, which bars suits against the government for combat injuries, the Fourth Circuit extended that immunity to private contractors. The three judge panel rejected Hencely’s argument that Fluor should remain liable for violating Army contractual requirements, stating that the exception exists “to foreclose state regulation of the military’s battlefield conduct and decisions,” and therefore applies even where contractors violate contractual obligations. Under this reasoning, state oversight of contractor conduct in combat zones would inherently interfere with federal war-making authority, regardless of whether the challenged conduct aligned with military orders or federal directives. This shift threatens to collapse the distinction between government actors protected by sovereign immunity and private contractors who Congress deliberately left subject to state tort liability. Sovereign immunity is the legal doctrine that the government cannot be sued without the government’s consent. Feres v. United States (1950) prevents service members from suing the government for injuries incident to service based on this sovereign immunity principle, but contractors, like Fluor Corporation, fall outside the Federal Tort Claims Act’s immunity scheme precisely because they are not the government.
The November 2025 oral arguments exposed deep divisions among the Justices over whether preemption requires an actual conflict between state tort duties and military directives or whether the combat-zone context alone suffices to displace state law. Justice Sotomayor pressed on the absence of actual conflict, articulating the core principle underlying Boyle: that contractors face state tort liability only when state law conflicts with military orders, and if no such conflict exists, there is no federal interest requiring preemption. Her point was that liability for negligent supervision arises under state law regardless of location, but preemption shields contractors only when complying with state tort duties would conflict with following federal military directives. When Hencely’s counsel confirmed the Army left supervision duties entirely to Fluor, she emphasized that “the government didn’t direct unreasonable conduct,” meaning imposing liability would not second-guess any federal government military decision because none existed.
Justice Kavanaugh, by contrast, expressed skepticism rooted in foreign-affairs preemption doctrine that Congress intended state tort law to regulate military contractor conduct at Bagram at all, emphasizing concerns about institutional competence and the risks of allowing fifty different state jurisdictions to second-guess battlefield decisions. Drawing on Crosby v. National Foreign Trade Council (2000), he observed that “there’s nothing that’s more uniquely federal than successfully fighting a war in a combat zone.” These competing perspectives frame the central question: whether Hencely presents a choice between treating preemption as a scalpel that displaces state law only when necessary to protect actual federal decision-making, or as a shield that bars suits categorically based on location alone without requiring any showing of conflict with government directives.
If the Court adheres to Boyle’s conflict-based framework, Hencely's state tort claim would not be preempted: the Army itself found Fluor violated its contractual obligations, and the military issued no directive telling Fluor to provide inadequate supervision. Fluor’s conduct was not mandated by the government but precisely what it prohibited. This outcome would treat Boyle as applying only where actual conflict exists between state law and federal directives, rather than as a preventative bar to any state court oversight in combat zones. If the Court embraces the Fourth Circuit's reasoning, however, it would signal that geography overrides the need for any actual interference between state law and federal directives. The Court's resolution will determine whether preemption remains an exception justified by demonstrated federal necessity, or whether it becomes a categorical bar triggered by location alone, drifting from a doctrine protecting federal judgment into blanket immunity untethered from any requirement that contractor conduct align with government directives.