Justices debate protections for contractors from some suits for mishaps in war zone

Monday’s argument in Hencely v Fluor Corporation revealed a bench broadly skeptical of the idea that military contractors have absolute immunity for negligent mistakes they make when those mistakes occur in an active war zone. 

The case involves a suicide bombing carried out by an Afghan employee on the Air Force’s base at Bagram in Afghanistan. Winston Hencely, one of those injured in the blast, sued Fluor based on the military’s conclusion that Fluor’s failure to supervise the bomber caused the incident, but the lower courts said that Fluor was immune from suit under a 1988 Supreme Court case called Boyle v. United Technologies Corp.

The problem with Boyle as a protection for Fluor is that Boyle involved a suit against a contractor seeking to hold the contractor liable under state law for defective design even if it built a military helicopter as its contract with the government required. It is easy to see why the federal government needs to protect its contractors from doing exactly what the government tells them to do. But that is obviously different from this case, in which the government determined that Fluor’s violation of base rules and policies caused the attack.

Given that, Fluor’s argument to the justices took a broader approach, arguing that the “uniquely federal” interests in a combat zone supersede state law, so that the state can’t impose any liability at all for activity in that area. Although Justice Brett Kavanaugh was conspicuously receptive to that argument, most of the other justices were unpersuaded.

Justices Elena Kagan and Sonia Sotomayor, for example, emphasized that the contractor’s conduct here was not required by its contract with the government; indeed, it apparently violated it. As Kagan put it, “the rule that I … think follows from Boyle” is that “the contractor is liable as long as the military didn’t specifically approve or direct the conduct.” 

Similarly, Sotomayor suggested that the contractor “only get[s] [immunity] if the state law conflicts with military orders in some way. … And so, if there’s no conflict, there’s no interest to protect.”

In another line of questioning, Sotomayor and Justice Neil Gorsuch asked about regulations the government had issued to contractors, suggesting that they would not have immunity in cases like this one. Gorsuch commented at one point that the regulations “would seem to permit liability in just these circumstances? … And it says unless [the military is] exercising specific control over the actions and decisions [of the contractor], you’re not going to get [protection.] That’s what the government told contractors … Why isn’t it fair to hold you to that?”

Justice Amy Coney Barrett had yet another perspective on what was wrong with the contractor’s case. For her, even if state law is preempted, that only starts the analysis; it “doesn’t necessarily mean that … there would be no liability. … And if we look at the Federal Tort Claims Act and you see that the combat activities exception doesn’t extend to independent contractors, you might say, well, it makes sense to allow liability to remain even if we’re doing it as a matter of federal common law.”

For his part, Kavanaugh seemed to think it self-evident that state law could not apply “in a war zone, … in a combat zone.” To him the “uniquely federal interest” in that context means that “the usual preemption rules don’t apply, that we expect Congress actually to speak clearly if they want to provide for something like state tort suits.” As he saw it, Congress would have found “the idea that state tort law is going to regulate what goes on at Bagram” as “way out there.”

In the end, the argument suggests a strong majority of justices predisposed to reject the contractor’s plea for immunity. Kavanaugh seems pretty settled in his support of the contractor, but it is possible that he might be entirely alone on that side of the case. I expect we’ll know more about the time that Washington’s cherry trees begin to bloom in the spring.