Amicus Curiae Brief — Winston Tyler Hencely, Petitioner v. Fluor Corporation, et al.
Supreme Court briefMar 28, 2025
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No. 24-924
IN THE
Supreme Court of the United States
————
WINSTON TYLER HENCELY,
v.
Petitioner,
FLUOR CORPORATION; FLUOR ENTERPRISES, INC.;
FLUOR INTERCONTINENTAL, INC.; FLUOR GOVERNMENT
GROUP INTERNATIONAL, INC.,
Respondents.
————
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
————
BRIEF AMICI CURIAE OF
VETERANS OF FOREIGN WARS AND IRAQ
AND AFGHANISTAN VETERANS OF AMERICA
IN SUPPORT OF PETITIONER
————
JOHN MUCKELBAUER
VETERANS OF FOREIGN WARS
OF THE UNITED STATES
2101 L Street NW, Suite 225
Washington, D.C. 20037
Counsel for Veterans of
Foreign Wars of the
United States
PETER B. RUTLEDGE
HILLARY K. LUKACS
Counsel of Record
NATHAN R. MILES
ISABELLE HALE
MORRIS, MANNING &
MARTIN, LLP
3343 Peachtree Road NE
Suite 1600
Atlanta, GA 30326
(404) 504-5492
hlukacs@mmmlaw.com
Counsel for Amici Curiae
March 28, 2025
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................
ii
INTEREST OF AMICI CURIAE ........................
1
SUMMARY OF ARGUMENT .............................
4
ARGUMENT ........................................................
6
I.
The petition raises issues of critical
importance to America’s servicemembers
and veterans..............................................
6
A. Servicemembers understand the
difference between true “combatant
activities” and everyday support
services
provided
by
private
contractors ...........................................
8
B. Unreflective judicial expansion of
Boyle to create a federal common law
of “combatant activity” preemption
subjects injured servicemembers and
the families of dead servicemembers to
a heartless guessing game about
whether they can recover for death or
injury fairly attributable to a private
company’s wrongdoing ........................
15
The
Decision
Below
Implicates
Additional Disagreement Over the
Contours of “Combatant Activity”
Preemption ................................................
18
CONCLUSION ....................................................
22
II.
(i)
ii
TABLE OF AUTHORITIES
CASES
Page(s)
Aiello v. Kellogg, Brown & Root, Servs., Inc.,
751 F. Supp. 2d 698 (S.D.N.Y. 2011)........
15
Badilla v. Midwest Air Traffic
Control Serv., Inc.,
8 F.4th 105 (2d Cir. 2021) ...................... 5, 19-21
Bentzlin v. Hughes Aircraft Co.,
833 F. Supp. 1486 (C.D. Cal. 1993) ..........
8
Bixby v. KBR, Inc.,
748 F. Supp. 2d 1224 (D. Or. 2010) ..........
16
Boyle v. United Technologies Corp.,
487 U.S. 500
(1988) ................. 2-5, 8, 11, 14-16, 18, 19, 21, 22
Carmichael v. Kellogg, Brown &
Root Servs., Inc.,
450 F. Supp. 2d 1373 (N.D. Ga. 2006)......
17
Cloyd v. KBR, Inc.,
536 F. Supp. 3d 113 (S.D. Tex. 2021) .......
7
Correctional Services Corp. v. Malesko,
534 U.S. 61 (2001) .....................................
21
Fisher v. Halliburton,
390 F. Supp. 2d 610 (S.D. Tex. 2005) .......
17
Harris v. Kellogg Brown & Root Servs., Inc.,
724 F.3d 458 (3d Cir. 2013) ............ 5, 16, 19-21
In re KBR, Inc., Burn Pit Litig.,
268 F. Supp. 3d 778 (D. Md. 2017), aff'd
in part, vacated in part sub nom. In re:
KBR, Inc., 893 F.3d 241 (4th Cir. 2018) ....
16
iii
TABLE OF AUTHORITIES—Continued
Page(s)
In re KBR, Inc., Burn Pit Litigation,
744 F.3d 326 (4th Cir. 2014) ... 5, 7, 13, 16, 19-21
Johnson v. United States,
170 F.2d 767 (9th Cir. 1948) .....................
8
Koohi v. United States,
976 F.2d 1328 (9th Cir. 1992) ................... 5, 19
Lessin v. Kellogg Brown & Root,
No. CIVA H-05-01853, 2006 WL
3940556 (S.D. Tex. June 12, 2006) ........... 7, 17
McMahon v. Gen. Dynamics Corp.,
933 F. Supp. 2d 682 (D.N.J. 2013) .............. 14, 22
McMahon v. Presidential Airways, Inc.,
460 F. Supp. 2d 1315
(M.D. Fla. 2006) .................................... 8, 17, 18
Saleh v. Titan Corp.,
580 F.3d 1 (D.C. Cir. 2009) ................... 5, 19, 20
Smith v. Halliburton Co.,
No. H-06-0462, 2006 WL 1342823
(S.D. Tex. May 16, 2006) ......................... 7-8, 17
Smith v. Halliburton Co.,
No. H-06-0462, 2006 WL 2521326
(S.D. Tex. Aug. 30, 2006) ..........................
17
United States v. Johnson,
481 U.S. 681 (1987) ...................................
11
Va. Uranium v. Warren,
587 U.S. 761 (2019) ............................... 3, 21, 22
Wyeth v. Levine,
555 U.S. 555 (2009) ................................... 3, 22
iv
TABLE OF AUTHORITIES—Continued
CONSTITUTION
Page(s)
U.S. Const. art. VI, cl. 2 ...............................
3, 5
STATUTES AND REGULATIONS
National Defense Authorization Act for
Fiscal Year 2008, Pub. L. No. 110-181, §
841, 122 Stat. 230 .....................................
11
48 C.F.R. § 252.225-7040(b)(2) .....................
14
INTERNATIONAL AGREEMENTS
NATO, Agreement between the Parties to
the North Atlantic Treaty regarding the
Status of their Forces (last updated Oct. 14,
2009) ..............................................................
10
OTHER AUTHORITIES
Alexandra G. Neenan, Cong. Rsch. Serv.,
IF10600, Defense Primer: DOD Contractors
(2024) ......................................................... 6, 7, 9
Christopher T. Mann, Cong. Rsch. Serv.,
IF11182, U.S. War Costs, and Personnel
Levels Since 9/11 (2019)...........................
13
Commission on Wartime Contracting in Iraq
and Afghanistan, Transforming Wartime
Contracting: Controlling Costs, Reducing
Risk, Final Report to Congress, Aug.
2011 ...........................................................
12
Dan B. Dobbs et al., The Law of Torts (2d
ed. April 2024 update) ..............................
6
v
TABLE OF AUTHORITIES—Continued
Page(s)
DOD, Contractor Personnel Authorized To
Accompany U.S. Armed Forces (DFARS
Case 2005-D013), 73 Fed. Reg. 16,764
(2008) ................................................... 10, 13, 14
DOD, Contracts for Jan. 15, 2020: Air Force
(last visited March 26, 2025), https://
www.defense.gov/News/Contracts/Contr
act/Article/2058353/ .................................
7
DOD, Dictionary of Military and Associated
Terms (March 2017)..................................... 9, 13
DOD, Instruction 1100.22: Policy &
Procedures for Determining Workforce
Mix (December 1, 2017) ............................ 9-11
DOD, Instruction 3020.41: Operational
Contract Support Outside the United
States (November 27, 2024) ......................
10
DOD, Military Installations USAG YongsanCasey: Installation Details (last visited
March 25, 2025), https://installations.
militaryonesource.mil/in-depth-overview/
usag-yongsan-casey....................................
7
DOD, Quadrennial Def. Rev. Rep., Feb.
2010 ...........................................................
12
Heidi M. Peters, Cong. Rsch. Serv., R43074,
DOD’s Use of Contractors to Support
Military Operations: Background, Analysis,
and Issues for Congress (2013) ................. 9, 12
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Heidi M. Peters, Cong. Rsch. Serv., R44116,
Department of Defense: Contractor and
Troop Levels in Afghanistan and Iraq:
2007-2020 (2021) .......................................
1
Moshe Schwartz & Joyprada Swain, Cong.
Rsch. Serv., R40764, DOD Contractors in
Afghanistan & Iraq: Background &
Analysis (Mar. 29, 2011) ...........................
11
U.S. Gov’t Accountability Off., GAO-12290, Operational Contract Support:
Management and Oversight Improvements Needed in Afghanistan (2012) .......
12
USCENTCOM, Contractor Support of U.S.
Operations in the USCENTCOM Area of
Responsibility (2025) .................................
6
INTEREST OF AMICI CURIAE
The Veterans of Foreign Wars of the United States
(VFW) is a congressionally chartered veterans service
organization established in 1899 that, with its Auxiliary,
represents over 1.5 million members.1 Since the VFW’s
establishment, millions of members have served their
country in forward operating bases, combat theaters,
war zones, and other locations, including Afghanistan
and, specifically, Bagram Airfield, where the tragic
events underlying this petition occurred.
Iraq and Afghanistan Veterans of America (IAVA) is
a nonprofit and nonpartisan organization dedicated to
advocating on behalf of post-9/11 generation veterans
and their families. It is the first and largest veterans
service organization dedicated exclusively to current
and former voluntary servicemembers. Its members
comprise more than 425,000 active servicemembers,
veterans and civilian supporters across all 50 states.
IAVA’s members have served their country in, among
other places, Afghanistan, including Bagram Airfield.
The VFW and IAVA (collectively “amici”) share a
significant interest in the issues presented by this
petition. Due to the surge in the use of private
contractors over the past two decades, see Heidi M.
Peters, Cong. Rsch. Serv., R44116, Department of
Defense: Contractor and Troop Levels in Afghanistan
and Iraq: 2007-2020 1 (2021), amici’s members
Pursuant to Supreme Court Rule 37.2, ten days before this
brief was due, amici notified counsel of record for the parties of
its intention to file this brief. Pursuant to Supreme Court Rule
37.6, amici state that no counsel for a party authored this brief in
whole or in part and that no person other than amici, their
members, or their counsel made any monetary contributions
intended to fund the preparation or submission of this brief.
1
2
increasingly work with the personnel of private
companies like Respondents. During their service in
theaters like Afghanistan, Iraq and elsewhere, amici’s
members understand – and have lived – the difference
between true “combatant activities” (like firing
weapons and dodging roadside bombs) and everyday
base-support services (like fixing cars).
For this reason, the dimensions of the federal
common-law preemption doctrine, first announced in
Boyle v. United Technologies Corp., 487 U.S. 500 (1988),
profoundly affect the interests of amici’s members.
Broadly, the very existence of this non-statutory,
judicially crafted doctrine naturally influences any
government contractor’s incentives to exercise care in
the discharge of its duties. More specifically, the lower
federal courts’ unguided extension of Boyle from its
modest “indirect preemption” origins (relying on the
FTCA’s “discretionary function” exception to bar certain
“design defect” claims) to something more akin to “field
preemption for combatant activities,” carries vast
implications for the safety and security of America’s
servicemembers. This is especially true for injuries
caused “inside the wire,” the place where servicemembers ought to be (and feel) most secure. Finally,
in light of the widely acknowledged 3-1-1 circuit split
over the contours (and limits) of “combatant activities”
preemption, the ability of servicemembers (and their
families) to recover for life-altering injuries (or death)
attributable to a government contractor’s default can
turn entirely on an unacceptable serendipity: namely
the circuit in which the contractor happens to be
amenable to suit.
That serendipity is especially unacceptable in a case
like this one. Before the decision below, no federal
appellate court had ever relied on this judicially
3
crafted “combatant activities” extension of Boyle
to preempt in their entirety the state-law tort
claims of an injured or deceased American
servicemember. Whatever Boyle’s proper contours,
surely it cannot extend to an American servicemember’s injuries sustained “inside the wire” and
traceable to companies that, according to the Army’s
own investigators, were derelict in their duty. That
dereliction of duty includes inexplicably allowing an
employee to construct a suicide vest “inside the wire”
with tools and equipment that Respondents never
should have allowed him to access.
Confusion among the lower federal appellate courts
about Boyle preemption and its relationship to
“combatant activities” has persisted far too long and,
thereby, endangered the very lives of the valorous
servicemembers who serve this country.
Amici
implore this Court to resolve that confusion and,
thereby, ensure that the lower court’s unprecedented
extension of Boyle does not jeopardize the life or health
of another American servicemember or upend the lives
of another servicemember’s family. If “combatant
activities” preemption truly extends so far, Congress,
not the courts, should make that value-laden decision.
Otherwise, courts like the one below will continue to
give “improperly broad pre-emptive effect to judicially
manufactured policies, rather than to the statutory
text enacted by Congress pursuant to the Constitution
. . . .” Wyeth v. Levine, 555 U.S. 555, 604 (2009) (Thomas,
J., concurring); accord Va. Uranium v. Warren, 587 U.S.
761, 778 (2019) (plurality opinion) (Gorsuch, J., joined
by Thomas & Kavanaugh, JJ.) (“No more than in field
preemption can the Supremacy Clause be deployed
here to elevate abstract and unenacted legislative
desires above state law; only federal laws ‘made in
pursuance of ’ the Constitution, through its prescribed
4
process of bicameralism and presentment, are entitled
to preemptive effect.”).
SUMMARY OF ARGUMENT
Two reasons, in addition to the ones advanced by
Petitioner, support granting this petition.
First, the petition raises issues of critical importance
to servicemembers and their families. Since Boyle, the
military’s use of private contractors has exploded. While
media reports train on their activities in Afghanistan
and Iraq, these private companies operate in virtually
every continent. Their activities run the gamut from
support services “inside the wire” of a base (like latrine
maintenance and mess tent operations) to integrated
services “outside the wire” of a base (like supplying
trucking convoys or ferrying servicemembers over
hostile airspace). Given the scale and diversity of
these operations, civil suits for injuries or death to
servicemembers regularly arise and prompt questions
about whether Boyle preemption, if it encompasses
“combatant activities,” precludes such suits. Yet the
jurisprudence is a mess – construing “combatant
activities” to preclude some suits for injuries (or death)
occurring “inside the wire” of a base yet permitting
others for injuries (or death) occurring “outside the wire.”
The resulting confusion leaves injured servicemembers
and the families of dead servicemembers at a total loss
about whether (and under what circumstances) they
can recover for harm traceable to a contractor’s
negligence. This petition offers this Court a clean
vehicle by which to bring some desperately needed
order to this jurisprudential jumble.
Second, alongside the 3-1-1 split described by the
Petitioner, the decision below implicates additional
disagreement over how Boyle’s framework applies in
5
the context of “combatant activities.” Specifically, the
second step of that framework requires courts to
identify the relevant federal interest. 2
On this
analytic step, federal appellate courts have articulated
at least three different conceptions, in some cases
expressly rejecting each other’s views. 3 At the same
time, some of those same federal courts, despite
articulating different interests, ultimately derive the
same test. 4 This sort of legal guesswork runs afoul of
this Court’s admonition against judicial policy making
masquerading as Supremacy Clause jurisprudence
when the preemption analysis is completely untethered
from the actual language of a federal statute. Worse
yet, the resulting uncertainty leaves injured servicemembers and their families to play guessing games
about whether they can recover for injuries or death
caused by the errors and omissions of private companies.
2
Boyle, 487 U.S. at 506-07.
Compare Koohi v. United States, 976 F.2d 1328, 1337 (9th Cir.
1992) (describing the federal interest solely by reference to
potential plaintiffs), with Saleh v. Titan Corp., 580 F.3d 1, 7 (D.C.
Cir. 2009) (framing the federal interest to eliminate tort from the
battlefield), and Badilla v. Midwest Air Traffic Control Serv. Inc.,
8 F.4th 105, 128 (2d Cir. 2021); Harris v. Kellogg Brown & Root
Servs., Inc., 724 F.3d 458, 480 (3d Cir. 2013); In re KBR, Inc., Burn
Pit Litigation, 744 F.3d 326, 348 (4th Cir. 2014) (describing the
federal interest as foreclosing state regulation of military
battlefield conduct and conditions).
3
Compare In re KBR, 744 F.3d at 348, and Harris, 724 F.3d at
480, with Badilla, 8 F.4th at 128.
4
6
ARGUMENT
I. The petition raises issues of critical
importance to America’s servicemembers
and veterans.
Over the course of its history, the Department of
Defense (DOD) has utilized contractors to assist with
a broad array of operations. See Dan B. Dobbs et al.,
The Law of Torts § 352 (2d ed. April 2024 update).
Between 2001 and 2020, contractors frequently
accounted for 50% or more of the total DOD presence
in Iraq and Afghanistan. 5 In Fiscal Year (FY) 2022,
DOD allocated over $415 billion to federal contracts. 6
The following year, DOD utilized approximately
972,000 total prime and subprime contractor full-time
equivalents within four service groups: logistics
management services, equipment related services,
knowledge-based services, and electronics and
communications services. 7
Those private contractors operate in a variety of
theaters. The U.S. Central Command (USCENTCOM)
publishes quarterly census reports on contractors
employed through DOD-funded contracts in its area of
responsibility (AOR), which includes Afghanistan, Syria,
and Iraq. 8 As of the most recent report in January
2025, USCENTCOM approximates there are 19,671
contractor personnel supporting the DOD in the AOR. 9
Alexandra G. Neenan, Cong. Rsch. Serv., IF10600, Defense
Primer: DOD Contractors 2 (2024).
5
6
Id. at 1.
7
Id.
8
Id. at 2.
USCENTCOM, Contractor Support of U.S. Operations in the
USCENTCOM Area of Responsibility (2025).
9
7
While USCENTCOM’s AOR perhaps represents the
most familiar theater due to media accounts and
reported case law (discussed below), contractors
operate in other theaters too. Published reports
identify contractors in virtually every continent and
on bases ranging from Camp Casey on the Korean
Peninsula to Ramstein Air Base in Germany. 10
In these and other theaters, employees of these
private companies perform a host of functions. For
example, that work falls into some of the following
categories: logistics and transportation, intelligence
analysis, linguistics, providing security escorts, protecting
fixed locations, guarding traveling convoys, and training
police and military personnel. 11 A further review of
caselaw involving government contractors reveals an
even broader array of activities. See generally James
Lockhart, Construction and Application of the Combatant
Activities Exception to Federal Tort Claims Act, 28
U.S.C.A. § 2680(j), 23 A.L.R. Fed. 2d 489. These include
“on base” services like waste management, water
treatment, oversight of the mess tents, and maintenance of vehicles. 12 They also include “off base”
See e.g. DOD, Military Installations USAG Yongsan-Casey:
Installation Details (last visited March 25, 2025), https://installat
ions.militaryonesource.mil/in-depth-overview/usag-yongsan-casey
(analyzing contractors at Camp Casey); DOD, Contracts for Jan.
15, 2020: Air Force (last visited March 26, 2025), https://www.defe
nse.gov/News/Contracts/Contract/Article/2058353/ (analyzing contractors at Ramstein Air Base).
10
11
Neenan, CRS, Defense Primer 1-2.
See, e.g., Cloyd v. KBR, Inc., 536 F. Supp. 3d 113, 126 (S.D.
Tex. 2021) (noting the company typically performed operations
and maintenance, laundry, water and ice production and delivery,
firefighting, fuel delivery and waste management); In re KBR, 744
F.3d at 339 (contractor involved in water treatment); Smith v.
Halliburton Co., No. H-06-0462, 2006 WL 1342823, at *1 (S.D.
12
8
services like the provision of transportation services
and the design of missiles and other weapons systems.13
Unsurprisingly, then, the last two decades have
spawned an array of lawsuits arising from the injury
(or death) of American servicemembers. Yet the
expansion of Boyle from its modest origins (borrowing
the FTCA’s discretionary function exception to preclude
a design defect claims) to a more sweeping preemption
doctrine grounded in “combatant activities” has given
rise to an unprincipled jurisprudential jungle. The
resulting legal chaos leaves injured servicemembers
and the families of dead servicemembers clueless
about whether (and under what circumstances) they
can recover for losses traceable to contractor negligence.
Servicemembers and their families are desperate for
clarity, so, circuit splits aside, the sheer importance of
this recurring legal issue justifies this Court’s review.
A. Servicemembers understand the difference between true “combatant activities”
and everyday support services provided
by private contractors.
Extending the definition of “combatant activities,” as
the lower court did, to include federal contractors
Tex. May 16, 2006) (unreported opinion) (contractor involved in
mess tent operations); Lessin v. Kellogg Brown & Root, No. CIVA
H-05-01853, 2006 WL 3940556, at *1 (S.D. Tex. June 12, 2006)
(contractor engaged in inspection and maintenance of vehicles).
McMahon v. Presidential Airways, Inc., 460 F. Supp. 2d 1315,
1318 (M.D. Fla. 2006) (contractors engaged in air transportation
and operational support services); Bentzlin v. Hughes Aircraft Co.,
833 F. Supp. 1486, 1490 (C.D. Cal. 1993) (contractor engaged in
missile manufacturing); Johnson v. United States, 170 F.2d 767,
770 (9th Cir. 1948) (contractor engaged in supplying ammunition
to fighting vessels).
13
9
providing on-base support services underscores a
fundamental misunderstanding of military force composition and the modern battlefield, thereby diluting the
meaning of combat service and diminishing the unique
sacrifices made by servicemembers. While contractors
play an important role in supporting the military, 14
they are not servicemembers. 15
The distinction between servicemembers and private
contractors is meaningful, particularly where combat
is involved. Private contractors like Fluor, for instance,
are considered “force multipliers” for the military—not
because they perform combat functions but because
they perform off-battlefield functions, thereby “freeing
up uniformed personnel to conduct combat operations.”16
Under domestic and international law, contractor
personnel engaged in authorized activity are not
“combatants” 17 – at best, they are conferred status as
See Heidi M. Peters, Cong. Rsch. Serv., R43074, DOD’s Use of
Contractors to Support Military Operations: Background,
Analysis, and Issues for Congress 1 (2013) (explaining contractors
provide expertise in specialized fields, provide a surge capability,
and deliver critical support to specific military needs.)
14
See Neenan, CRS, Defense Primer 1 (“The term ‘contractor’
does not refer to military servicemembers, civilian DOD career
employees, or civilian political appointees.”).
15
Peters, CRS, DOD’s Use of Contractors to Support Military
Operations 3.
16
See DOD, Instruction 1100.22: Policy & Procedures for
Determining Workforce Mix, Encl. 4, ¶ 2.a.(1)(b) (December 1,
2017) (explaining that DOD civilians and contractors are not
combatants); DOD, Dictionary of Military and Associated Terms
(March 2017) (defining “combatant command (command authority)”
to mean “[n]ontransferable command authority . . . over assigned
forces involving . . . giving authoritative direction over all aspects
of military operations”; defining “combat power” to mean “[t]he
total means of destructive and/or disruptive force that a military
unit/formation can apply against the opponent at a given time”).
17
10
“contractors authorized to accompany the force” – and,
as such, cannot lawfully engage in “combat functions”
or “combat operations.” 18
Service in the armed forces entails distinct
responsibilities. Veterans who have engaged in combat
while serving in the military have done so under the
oath of enlistment or commission, placing themselves
in harm’s way as part of their sworn duty to the
nation. 19 Their service involves inherent risks,
See DOD, Instruction 3020.41: Operational Contract Support
Outside the United States ¶ 3.9.a(b)(1) (November 27, 2024)
(explaining defense contractor personnel with CAAF status may
be characterized as “persons authorized to accompany the armed
forces”); id. ¶ 3.15.d(4)(b) (noting “[c]ontractor personnel cannot
be forced to be armed”); id. ¶ 3.5.a(1) (listing federal laws and
regulations that “bar contracting for the performance of inherently governmental functions and duties”); DOD, Instruction
1100.22, Encl. 4, ¶ 1.c.(1)(b) (explaining “combat operations” are
inherently governmental because they “entail the exercise of
sovereign Government authority and involve substantial discretion” that “can significantly affect the life, liberty, or property of
private persons or international relations”); Contractor Personnel
Authorized To Accompany U.S. Armed Forces (DFARS Case 2005D013), 73 Fed. Reg. at 16,764-16,765 (2008) (“[T]he Government
is not contracting out combat functions.”); NATO Status of Forces
Agreement (2009) art I (defining “force” to mean “the personnel
belonging to the land, sea or air armed services” whereas “civilian
component” means “civilian personnel accompanying a force of a
Contracting Party who are in the employ of an armed service”).
18
See DOD, Instruction 1100.22, Encl. 4, ¶ 1.b.(1) (“Military
officers and enlisted personnel are subject to a strict form of
discipline – i.e., they must obey all lawful orders at all times and
are trained and prepared to immediately perform all duties as
directed by military commanders. In addition, military personnel
may not quit or abandon their duties.”); id. (“[T]he differences
between the military and civilian communities result from the
fact that it is the primary business of armies and navies to fight
or be ready to fight wars should the occasion arise.”).
19
11
extensive training, strict rules of engagement, and
lifelong responsibilities to the military chain of
command. 20 Military commanders bear ultimate
responsibility for their subordinates’ actions. 21
Private contractors are not subject to these same
commitments and obligations. It makes little sense to
grant private contractor personnel performing nonwar functions the same broad immunity from tort law
afforded to servicemembers and military commanders
in combat theater. Extending Boyle creates a dangerous gap in accountability that dishonors servicemembers
by potentially blocking any path to recourse for injury
caused by private negligence.
The lower court’s near-reflexive conclusion that the
military exercised complete control over on-base
contractors is also difficult to reconcile with the DOD’s
admitted struggles in this area. 22 In January 2009,
Secretary of Defense Robert Gates acknowledged
DOD’s failure to adequately prepare for the use of
contractors, which occurred without any supervision
See id., Encl. 5 (articulating military risk assessments to
perform in order to avoid “ceding government control and
authority of [inherently governmental] functions”).
20
See DOD, Instruction 1100.22, Encl. 4, ¶ 1.a. (discussing
military force chain of command); United States v. Johnson, 481
U.S. 681, 691 (1987) (“[M]ilitary discipline involves not only
obedience to orders, but more generally duty and loyalty to one's
service and to one's country.”).
21
See National Defense Authorization Act for Fiscal Year 2008,
Pub. L. No. 110-181, § 841, 122 Stat. 230 (establishing
independent “Commission on Wartime Contracting” to study
contracting in Iraq and Afghanistan); Moshe Schwartz &
Joyprada Swain, Cong. Rsch. Serv., R40764, DOD Contractors in
Afghanistan & Iraq: Background & Analysis 18-19 (Mar. 29, 2011)
(noting steps DOD has taken to improve management of
contractors in Iraq and Afghanistan).
22
12
or coherent strategy. Contractors were used on an
ad-hoc basis, without putting in place the necessary
oversight, often resulting in poor performance, billions
of dollars of waste, and failure to achieve mission
goals. 24 Many analysts believe this is exactly what
occurred in Iraq and Afghanistan. 25 The Commission
on Wartime Contracting in Iraq and Afghanistan, for
instance, concluded in its final report to Congress in
2011 that operations in Iraq and Afghanistan between
FY2002 and FY2011 had led to an “unhealthy overreliance” on contractors by DOD, Department of State,
and USAID, including “using contractors for static
security at bases and camps[.]” 26 The Commission’s
“conservative estimate of waste and fraud” resulting
from “[p]oor planning and oversight by the U.S.
government, as well as poor performance on the part
of contractors” ranged from $31 billion to $60 billion. 27
23
See Peters, CRS, DOD's Use of Contractors to Support
Military Operations 4.
23
24
Id. at 3-4.
Id. at 4 n.12; DOD, Quadrennial Def. Rev. Rep., Feb. 2010, at
92; U.S. Gov’t Accountability Off., GAO-12-290, Operational
Contract Support: Management and Oversight Improvements
Needed in Afghanistan 1-2 (2012) (“DOD does not have a
sufficient number of CORs [contracting officer’s representatives]
to oversee the numerous contracts in Afghanistan. . . GAO
recommends that DOD enhance the current strategy for
managing and overseeing contracts in contingency areas such as
Afghanistan by, for example, developing training standards for
providing operational contract support.”).
25
Commission on Wartime Contracting in Iraq and Afghanistan,
Transforming Wartime Contracting: Controlling Costs, Reducing
Risk, Final Report to Congress, Aug. 2011, at 4-5, 19.
26
Id. at 5; see also Peters, CRS, DOD Contractor and Troop
Levels in Afghanistan and Iraq: 2007-2020 1.
27
13
Apart from this general distinction between military
personnel and private contractors, including internal
base policies and protocols within the definition of
“combatant activity” threatens an unlimited expansion
of government contractor preemption. According to
the lower court, “the purpose of the combatant
activities exception is . . . to ‘foreclose state regulation
of the military’s battlefield conduct and decisions.’” 28
But a military base is not a battlefield. 29 Rather, it is
the one place American servicemembers should feel
safe and is critical for unit cohesion and morale.
Notably, the military’s “Direct War Requirements”
(including “combat support”) are considered “war costs”
for purposes of federal funding whereas “Base
Requirements” are considered “non-war costs.” 30 The
Court should therefore reject any attempt to shift the
risk of harm back onto the American citizenry through
“defenses based on the sovereignty of the United
States” for the contractor’s “own actions.” 31 In fact,
28
In re KBR, 744 F.3d at 350.
Compare DOD, Dictionary of Military and Associated Terms
(“base — 1. A locality from which operations are projected or
supported. 2. An area or locality containing installations which
provide logistic or other support. 3. Home airfield or home
carrier.”), with id. (“objective area — A geographical area, defined
by competent authority, within which is located an objective to be
captured or reached by the military forces.”).
29
Christopher T. Mann, Cong. Rsch. Serv., IF11182, U.S. War
Costs, and Personnel Levels Since 9/11 1 (2019) (criticizing
blanket designation of OCO funds as “base budget activities” for
“obscur[ing] the true cost of both war and non-war spending” and
recommending that Congress “consider durable alternatives for
discriminating between the temporary costs of contingency
operations [i.e., war funding] and long-term funding for base
budget activities”).
30
73 Fed. Reg. 16,768 (2008) (DOD response to public comments
to proposed amendment to Defense Federal Acquisition Regulation
31
14
federal law obligates a contractor to “accept [ ] the
risks associated with required contract performance in
such operations.” 48 C.F.R. § 252.225-7040(b)(2). The
DOD has since confirmed that this requirement
endorses “holding contractors accountable for the
negligent or willful actions of their employees, officers,
and subcontractors.” 32
In short, the petition implicates important issues to
ensure that sensitive military judgments are not subject
to judicial second-guessing, that private contractors
exercise proper care in minimizing risks to servicemembers and, finally, that those contractors do not
avoid accountability for their blunders. 33 As one judge
aptly summarized, tort law does not lose “its salutary
capacity to encourage care, punish negligence and
spread the cost of accidents, simply because the customer
happens to be the government.” McMahon v. Gen.
Dynamics Corp., 933 F. Supp. 2d 682, 692 (D.N.J. 2013).
Supplemental Rule providing that the “Contractor accepts the
risks associated with required contract performance in such
operations”).
Id. (“Contractors will still be able to defend themselves when
injuries to third parties are caused by the actions or decisions of
the Government.”).
32
Boyle, 487 U.S. at 511-512 (grounding the defense, in part, on
the need to prevent courts from “second-guessing” military
judgments); 73 Fed. Reg. 16,768 (“[T]o the extent that contractors
are currently seeking to avoid accountability to third parties for
their own actions by raising defenses based on the sovereignty of
the United States, this rule should not send a signal that would
invite courts to shift the risk of loss to innocent third parties.”).
33
15
B. Unreflective judicial expansion of Boyle
to create a federal common law of
“combatant activity” preemption subjects
injured servicemembers and the families
of dead servicemembers to a heartless
guessing game about whether they can
recover for death or injury fairly
attributable to a private company’s
wrongdoing.
This is hardly the first case where a private contractor
has invoked Boyle to claim that a combatant activities
exception preempts state-law tort claims brought by a
servicemember or their survivors. The above-described
proliferation in the use of such contractors and the
range of services performed by them have naturally
given rise to an array of lawsuits. The decisions cannot
be reconciled and demonstrate the urgent need for this
Court’s intervention to supply coherence to this
unsanctioned extension of Boyle preemption.
A brief comparison of several decisions, mostly
involving claims by injured American servicemembers
against private contractors, illustrate the point. Some
cases (like the instant petition) involve injuries sustained
“inside the wire” of a base but reach radically different
conclusions. For example, one court has applied
“combatant activities” preemption to preclude statelaw claims by a civilian who fell in the latrine
maintained by a private contractor in Iraq. Aiello v.
Kellogg, Brown & Root, Servs., Inc., 751 F. Supp. 2d 698
(S.D.N.Y. 2011). Yet another court has held that the
same doctrine does not preempt some state-law
claims by family members of a deceased American
servicemember electrocuted in a bathroom following
negligent maintenance of the base electricity system
16
by a private contractor in Iraq. Harris v. Kellogg,
Brown & Root Servs., Inc., 724 F.3d 458 (3d Cir. 2013).
The absurdities do not end with bathrooms. Others
include exposure to toxic chemicals. One court has
held that “combatant activities” include a private
contractors’ water treatment and trash disposal
activities in Iraq and, consequently, left open the
possibility that this extension of Boyle might preempt
servicemembers’ claims stemming from those
activities. In re KBR, Inc., Burn Pit Litigation, 744 F.3d
326 (4th Cir. 2014). 34 Yet another court held that the
same doctrine does not preempt state-law claims by an
American servicemember who sustained injuries
following exposure to a private contractor’s toxic
chemicals while stationed at a water plant in Iraq.
Bixby v. KBR, Inc., 748 F. Supp. 2d 1224 (D. Or. 2010).
Confusion even encompasses the viability of suits
arising from suicide bombers who maim (or kill)
servicemembers “inside the wire.” In this case, the
court below held that “combatant activities” preemption entirely barred state law claims arising from
Petitioner’s injuries sustained on a base in Afghanistan
from a suicide bomber who was employed by Respondents
and who built the bomb from tools managed by
Respondents. Yet another court has held that the
The Fourth Circuit ultimately vacated the district court’s
decision to dismiss the servicemembers’ claims and remanded the
case for further discovery. Id. Upon remand, the district court
again dismissed the servicemembers’ claims based on the
political question doctrine and because the FTCA preempted the
servicemembers’ state law claims. On appeal, the Fourth Circuit
affirmed the dismissal but vacated the portion of the opinion
discussing the FTCA issue. See In re KBR, Inc., Burn Pit Litig.,
268 F. Supp. 3d 778, 820 (D. Md. 2017), aff'd in part, vacated in
part sub nom. In re: KBR, Inc., 893 F.3d 241, 264 (4th Cir. 2018).
34
17
same doctrine does not preempt state-law claims by
the family of an American non-military personnel
killed after a suicide bomber detonated himself in a
mess tent on a base in Iraq due to a private
contractor’s failure properly to secure the tent. Smith
v. Halliburton Co., No. H-06-0462, 2006 WL 1342823,
at *4-5 (S.D. Tex. May 16, 2006) (unreported opinion). 35
Ironically, while this line of cases reveals a jumbled
jurisprudence for soldiers injured “inside the wire,”
another line of cases, involving injuries sustained
“outside the wire” (that is, outside the protective
perimeter of a military base), has held that “combatant
activity” preemption does not preclude state-law tort
claims. For example, several decisions have held that
the “combatant activity” doctrine does not preempt
injuries sustained by servicemembers in connection
with trucking convoys and other transportation
services even while traveling in a combat zone. See,
e.g., Lessin, 2006 WL 3940556; Fisher v. Halliburton,
390 F. Supp. 2d 610 (S.D. Tex. 2005); Carmichael v.
Kellogg, Brown & Root Servs., Inc., 450 F. Supp. 2d
1373 (N.D. Ga. 2006). Apart from land transport,
another case has held that the “combatant activity”
doctrine did not preempt claims by survivors of
American servicemembers killed in an air crash and
attributable to the private contractor providing air
transportation and operational support services in
Afghanistan. See McMahon v. Presidential Airways,
Inc., 460 F. Supp. 2d 1315 (M.D. Fla. 2006). In reaching
this conclusion, the McMahon court expressed
The Court subsequently held that the political questions
doctrine barred the suit. Smith v. Halliburton Co., No. H-06-0462,
2006 WL 2421326 (S.D. Tex. Aug. 30, 2006). As Petitioner has
noted, see Pet. Cert. 11, the court below rejected application of
that doctrine in this case.
35
18
skepticism over whether the preemption doctrine
developed in Boyle even extended beyond product
liability claims to encompass the negligent provision
of services. Id. at 1330-31.
To be clear, amici do not suggest that preemption
should simply turn on whether the injury was suffered
inside or outside the wire. Nonetheless, the results in
these cases defy common sense and illustrate the
pitfalls of a preemption doctrine grounded in judgemade federal common law and free-flowing notions of
policy: Inside the wire, “combatant activities” encompass
some (but not all) injuries sustained in bathrooms,
some (but not all) exposure to toxic chemicals and
some (but not all) injuries sustained from suicide
bombers. Meanwhile, “outside the wire,” this very
same judicially manufactured federal common law
doctrine does not encompass claims for injuries
sustained while trucking convoys escort servicemembers
in war zones or planes carrying servicemembers crash
while the United States is engaged in active hostilities.
Until this Court (or, better yet, Congress) draws a line,
American servicemembers and their families are the
victims of this jurisprudential jumble.
II. The Decision Below Implicates Additional
Disagreement Over the Contours of
“Combatant Activity” Preemption.
While the issue’s importance to servicemembers
(and their families) supplies a sufficient ground upon
which to grant the petition, disagreements among the
federal appellate courts offer another, independent
reason. Petitioner has already identified one such
disagreement, namely the 3-1-1 split over the precise
test governing Boyle preemption in the context of the
combatant activities. Additionally, the federal circuits
divide over the interest-analysis mandated by Boyle.
19
This additional conflict compounds confusion about
Boyle preemption and necessitates this Court’s review.
Boyle provides the proper entry point to understand
this additional circuit split. Recall that Boyle developed
a tripartite framework for implied preemption:
(1) identify the unique federal interest associated with
the FTCA exception; (2) determine the scope of the
underlying policy; and (3) derive a test ensuring the
preemption of state laws that create a significant
conflict with that policy. Boyle, 487 U.S. at 511-12. As
to this last step, Petitioner already has correctly identified
a clear 3-1-1 split over the “test.” Pet. Cert. 22-25.
Apart from this split, another inter-circuit disagreement concerns the second step in the Boyle analysis,
specifically in the context of combatant activities. As
the Second Circuit recognized most recently, federal
courts “have reached varying conclusions about the
‘uniquely federal interests’” at stake in these cases.
Badilla v. Midwest Air Traffic Control Serv., Inc.,
8 F.4th 105, 127 (2d Cir. 2021).
The circuits divide into three camps. The Ninth
Circuit frames the federal interest solely by reference
to the potential plaintiffs: “during wartime encounters
no duty of reasonable care is owed to those against
whom forced is directed as a result of authorized
military action.” Koohi, 976 F.2d at 1337. By contrast,
the D.C. Circuit frames the federal interest in more
sweeping terms: “the policy embodied by the combatant
activity exception is simply the elimination of tort
from the battlefield.” Saleh, 580 F.3d at 7. Finally, the
Second, Third and Fourth Circuits frame the federal
interest in more modest terms: “foreclosing state
regulation of the military’s battlefield conduct and
decisions.” Badilla, 8 F.4th at 128; Harris, 724 F.3d at
480; In re KBR, 744 F.3d at 348. Circuits adopting this
20
last formulation of the federal interest expressly reject
the D.C. Circuit’s formulation because it fails to recognize
that the FTCA “does not provide immunity to nongovernmental actors.” Harris, 724 F.3d at 480; see also In
re KBR, 744 F.3d at 348; Badilla, 8 F.4th at 127.
These inter-circuit disagreements over the conception
of the federal policy compound the confusion created
by the circuit split over the preemption test identified
by Petitioner. This case illustrates how that compound
confusion can be outcome determinative:
• The torts at issue in this case would not
implicate the federal interests, as conceptualized
by the Ninth Circuit, because Petitioner was not
someone “against whom force is directed.”
• By contrast, under the D.C. Circuit’s conception,
the torts might implicate the relevant federal
interest even though the D.C. Circuit itself
recognized that “a service contractor might be
supplying services in such a discrete manner –
perhaps even in the battlefield context – that
those services could be judged separate and
apart from combat activities of the U.S.
military.” Saleh, 580 F.3d at 122 n.6.
• Most confusing is the conception of the federal
interest adopted by the Second, Third and
Fourth Circuits. The torts do not trigger the
federal interest under the Second Circuit’s view,
see Pet. Cert. 24-25, but they apparently do so
under the Fourth Circuit’s view even though
both courts frame the federal interest in
identical terms.
In other words, not only have the federal circuits
adopted three different preemption tests, they have
reached irreconcilable conclusions over how to frame
21
the animating federal interests. Three circuits frame
the federal interest in identical terms yet derive
different tests. Compare In re KBR, 744 F.3d at 348
and Harris, 724 F.3d at 480 with Badilla, 8 F.4th at
128. Conversely, at least two circuits (Harris, 724 F.3d
at 480 and In re KBR, 744 F.3d at 348) expressly reject
the D.C. Circuit’s framing of the federal interest yet
still adopt its test.
Several justices have warned against just such
judicial guesswork. “Invoking some brooding federal
interest or appealing to a judicial policy preference
should never be enough to win preemption of a state
law; a litigant must point specifically to a constitutional text or a federal statute that does the displacing
or conflicts with state law.” Va. Uranium, Inc., 587 U.S.
at 767 (2019) (Gorsuch, J., joined by Thomas &
Kavanaugh, JJ.) (plurality opinion) (citation and
internal quotations omitted). The disarray over the
undisciplined extension of Boyle preemption to
combatant activities invites just such “brooding” and
unprincipled efforts to apply “judicial policy preference(s).”
See id. The resulting uncertainty leaves injured
servicemembers and their families at a complete loss
to understand whether they can recover for injury or,
even, death caused the errors and omissions of private
contractors providing simple support services on the
bases where they (or their loved ones) serve. While
amici agree that wholesale reexamination of Boyle is
not strictly necessary to correct course, 36 only this
Subsequent jurisprudence of this Court has cast doubt on the
scope and, indeed, the very foundations of Boyle. This Court
described Boyle as a “special circumstance” limited to case
“[w]here the government has directed a contractor to do the very
thing that is the subject of the claim.” Correctional Services Corp.
v. Malesko, 534 U.S. 61, 74 n.6 (2001). Moreover, as noted above,
several justices of this Court have expressed skepticism of
36
22
Court’s review can halt this freewheeling development
of “judicial policy preferences” untethered from
constitutional text or a federal statute, especially
where the FTCA, by its plain terms, does not
encompass private parties. Otherwise, left unchecked,
“[t]he combatant activities exception, cut loose from its
rationale, threatens to metamorphose into a nearabsolute immunity for contractors.” McMahon, 933 F.
Supp. 2d at 693-94.
CONCLUSION
For the foregoing reasons, in addition to those
advanced by Petitioner, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
JOHN MUCKELBAUER
VETERANS OF FOREIGN WARS
OF THE UNITED STATES
2101 L Street NW, Suite 225
Washington, D.C. 20037
Counsel for Veterans of
Foreign Wars of the
United States
PETER B. RUTLEDGE
HILLARY K. LUKACS
Counsel of Record
NATHAN R. MILES
ISABELLE HALE
MORRIS, MANNING &
MARTIN, LLP
3343 Peachtree Road NE
Suite 1600
Atlanta, GA 30326
(404) 504-5492
hlukacs@mmmlaw.com
Counsel for Amici Curiae
March 28, 2025
implied preemption doctrines that, like Boyle, are not grounded
in the text of a properly enacted statute but, rather, judicial
speculation about Congressional purposes. See Wyeth, 555 U.S. at
604 (Thomas, J., concurring); accord Va. Uranium, 587 U.S. at 778
(plurality opinion).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.