WASHINGTON — Supreme Court justices struggled with how to apply the definition of “uniquely federal interest” in military combat situations during oral arguments for Hencely v. Fluor Corporation on Monday.
Army Specialist Winston Hencely, the petitioner, was injured in 2016 at the Bagram military base in Afghanistan after an Afghan employee hired by government contractor Fluor Corporation detonated a suicide bomb that killed five people and injured 17 others. The bomb was made with materials provided at his job at the base, where he was allowed to roam unsupervised after hours.
Hencely sued the Fluor Corporation in 2019 under South Carolina tort law for alleged negligence and breach of contract with the military.
Lower courts ruled in favor of Fluor, holding that government contractors that are hired by the military cannot be sued under state tort law for wrongdoing or injury to soldiers in combat situations because combat is a “uniquely federal interest” that states cannot interfere with.
A “uniquely federal interest” is an area of the law where the federal government’s rule overrides state law because the interest is significant to the nation and comes under the federal government’s authority. Combat-related situations are an example of this. States cannot declare war on other nations because the Constitution reserves war powers as a uniquely federal interest.
The precedent case from 1988, Boyle v. United Technologies Corporation, held that, according to the Federal Tort Claims Act (FTCA), government contractors are free from liability arising from state tort law claims when acting under military orders.
However, this case falls on the government contractor allegedly acting in breach of its contract with the military, further complicating the issue.
Frank Chang, the representing lawyer for Hencely, argued that because Congress has not acted within the FTCA or another law to prevent service members from suing military contractors, they are able to do so.
“Our Constitution presumes that state tort claims are available and leaves it to Congress to alter that default rule,” Chang said in his opening statement. “Congress has done so in some circumstances when it comes to federal contractors, but it has not barred claims by American soldiers injured by contractor negligence.”
Justice Ketanji Brown Jackson asked Chang about the Department of Defense’s own regulations that told contractors that there was potential for them to be liable.
“It’s the government’s understanding that there’s some operation of common law potentially against contractors in this universe, right?” Jackson said.
Chang responded that those facts are “huge” and further show that the federal government cannot protect contractors under the Boyle precedent for allegations against them if the “government’s decisions are not at issue.”
Justice Neil Gorsuch mentioned the increase in usage of military contractors in combat situations. He asked attorney Mark Mosier, representing Fluor Corporation, why the court has the expertise to decide the importance for the military to “have contractors not fearful of liability” versus “who don’t injure military members” instead of applying the Boyle precedent to this case.
“I’m just suggesting to you there are really good arguments on both sides of this, which would advance the war-making function of the federal government, and I don’t know,” Gorsuch said.
Atlantic Legal Foundation executive vice president Lawrence Ebner also said he believes that military contractors have played an increasingly important role in overseas combat. He wrote an amicus curiae brief supporting Fluor.
“The military needs these support contractors, and the system simply won’t work if there’s tort liability that’s available by injured persons to sue these contractors that work in ultra-hazardous areas and support the U.S. military,” Ebner said. “The fact that the government is supporting the contractors here is very significant.”
United States deputy solicitor general Curtis Gannon also gave an argument in Monday’s hearing. While the United States currently supports Fluor’s case that Hencely cannot sue the company under state tort law, Mosier also argued that Fluor was not aware that the employee and bomber had ties to the Taliban until the military investigated the bombing.
“Our position was that it was our duty to supervise to ensure that the employees carried out the work that they were supposed to do to fulfill the obligations under the contract, not to provide security, not to provide force protection. That remained the military’s responsibility,” Mosier said.
West Virginia Attorney General John McCuskey wrote an amicus brief along with 19 other states in support of Hencely. He said his motivation was to defend the rights of military service members in West Virginia and across the nation.
“The draw to serve your country in this way is a huge part of the culture and the ethos of what it means to be a West Virginian,” McCuskey said. “When we saw that a soldier was being, in our opinion, treated unfairly in the federal court system, regardless of the fact of whether or not they were a West Virginian, this matters to the people of West Virginia.”
