Amicus Curiae Brief — Winston Tyler Hencely, Petitioner v. Fluor Corporation, et al.

No. 24-924

In the Supreme Court of the United States

WINSTON TYLER HENCELY,

Petitioner,

V.

FLUOR CORPORATION, ET AL.

Respondents.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF AMICI CURIAE STATE OF

WEST VIRGINIA AND 11 OTHER STATES

IN SUPPORT OF PETITIONER

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed after signature page]

TABLE OF CONTENTS

Introduction and Interests of Amici Curiae .................... 1

Summary of Argument ........................................................ 3

Argument .............................................................................. 4

I.

The decision below warps the FTCA using a

mistaken, purpose-driven approach .......................... 4

A. The court effectively rewrote the statute .............. 4

B. The court placed too much weight on Boyle ......... 9

II.

The decision below threatens the States’

interests in affording relief and punishing

wrongdoers................................................................. 13

Conclusion ........................................................................... 18

II

TABLE OF AUTHORITIES

Page(s)

Cases

Applied Equip. Corp. v. Litton Saudi

Arabia Ltd.,

869 P.2d 454 (Cal. 1994) ............................................... 16

Badilla v. Midwest Air Traffic Control

Serv., Inc.,

8 F.4th 105 (2d Cir. 2021)............................................. 12

Berkman v. United States,

957 F.2d 108 (4th Cir. 1992) ........................................... 5

Blanks v. Fluor Corp.,

450 S.W.3d 308 (Mo. Ct. App. 2014) ........................... 14

Bond v. United States,

564 U.S. 211 (2011) ......................................................... 2

Bowling Green Mun. Utils. v. Thomasson

Lumber Co.,

902 F. Supp. 134 (W.D. Ky. 1995) ............................... 14

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988) ..............................3, 9, 10, 11, 12, 13

Caminetti v. United States,

242 U.S. 470 (1917) ......................................................... 5

Carter v. United States,

145 S. Ct. 519 (2025) ....................................................... 9

Carter v. Welles-Bowen Realty, Inc.,

736 F.3d 722 (6th Cir. 2013) ( ........................................ 3

In re Chicago, Rock Island & Pac. R.R.

Co.,

756 F.2d 517 (7th Cir. 1985) ......................................... 15

III

TABLE OF AUTHORITIES

(continued)

Page(s)

Columbia Venture, LLC v. Dewberry &

Davis, LLC,

604 F.3d 824 (4th Cir. 2010) ........................................... 2

CSX Transp., Inc. v. Ala. Dep’t of Revenue,

562 U.S. 277 (2011) ......................................................... 7

Dodd v. United States,

545 U.S. 353 (2005) ......................................................... 8

Feres v. United States,

340 U.S. 135 (1950) ............................................. 9, 10, 11

Fla. Lime & Avocado Growers, Inc. v.

Paul,

373 U.S. 132 (1963) ......................................................... 3

Getz v. Boeing Co.,

No. C 07-06396 CW, 2009 WL 636039

(N.D. Cal. Mar. 10, 2009) ....................................... 13, 17

Harris v. Kellogg Brown & Root Servs.,

Inc.,

724 F.3d 458 (3d Cir. 2013) ............................................ 6

Henson v. Santander Consumer USA Inc.,

137 S. Ct. 1718 (2017) ..................................................... 8

Jones v. Reagan,

696 F.2d 551 (7th Cir. 1983) ................................... 15, 16

In re KBR, Inc., Burn Pit Litig.,

744 F.3d 326 (4th Cir. 2014) ........................................... 6

Limtiaco v. Camacho,

549 U.S. 483 (2007) ......................................................... 5

IV

TABLE OF AUTHORITIES

(continued)

Page(s)

Linden v. Cascade Stone Co.,

699 N.W.2d 189 (Wis. 2005) ......................................... 14

Little Sisters of the Poor Saints Peter &

Paul Home v. Pennsylvania,

140 S. Ct. 2367 (2020) ..................................................... 7

Lynch v. State,

308 A.3d 1 (Conn. 2024) .......................................... 14, 15

McMahon v. Presidential Airways, Inc.,

460 F. Supp. 2d 1315 (M.D. Fla. 2006) ....................... 13

Michigan v. Bay Mills Indian Cmty.,

572 U.S. 784 (2014) ......................................................... 7

In re Oncor Elec. Delivery Co. LLC,

630 S.W.3d 40 (Tex. 2021) ...................................... 14, 16

Republic of Argentina v. Weltover, Inc.,

504 U.S. 607 (1992) ......................................................... 7

In re Rhone-Poulenc Rorer, Inc.,

51 F.3d 1293 (7th Cir. 1995) ......................................... 16

Rivera v. Cherry Hill Towers, LLC,

287 A.3d 772

(N.J. Super. App. Div. 2022) ........................................ 16

Rodriguez v. United States,

480 U.S. 522 (1987) ......................................................... 8

Ruff v. Reliant Transp., Inc.,

674 F. Supp. 3d 631 (D. Neb. 2023)............................. 14

Saleh v. Titan Corp.,

580 F.3d 1 (D.C. Cir. 2009) ...................................... 6, 17

V

TABLE OF AUTHORITIES

(continued)

Page(s)

Silkwood v. Kerr-McGee Corp.,

464 U.S. 238 (1984) ....................................................... 14

Steigman v. Outrigger Enterprises, Inc.,

267 P.3d 1238 (Haw. 2011) ........................................... 16

Thomas v. Wash. Gas Light Co.,

448 U.S. 261 (1980) ....................................................... 14

Twitter, Inc. v. Taamneh,

598 U.S. 471 (2023) ....................................................... 17

United States v. Orleans,

425 U.S. 807 (1976) ......................................................... 5

United States v. Ron Pair Enters., Inc.,

489 U.S. 235 (1989) ......................................................... 5

United States v. Union Pac. R.R. Co.,

91 U.S. 72 (1875) ............................................................. 7

Univ. of Denver v. Doe,

547 P.3d 1129 (Colo. 2024) ........................................... 14

Univ. of Tex. Sw. Med. Ctr. v. Nassar,

570 U.S. 338 (2013) ......................................................... 7

Va. Uranium, Inc. v. Warren,

139 S. Ct. 1894 (2019) ..................................................... 7

Statutes

28 U.S.C. § 1346 .................................................................... 4

28 U.S.C. § 2671 .......................................................... 2, 4, 10

28 U.S.C. § 2680 .................................................................... 4

VI

TABLE OF AUTHORITIES

(continued)

Page(s)

Other Authorities

Barry Kellman,

Judicial Abdication of Military Tort

Accountability: But Who Is to Guard

the Guards Themselves?,

1989 DUKE L.J. 1597 (1989) ......................................... 12

Ben Davidson,

Liability on the Battlefield:

Adjudicating Tort Suits Brought by

Soldiers Against Military Contractors,

37 PUB. CONT. L.J. 803 (2008) ..................................... 13

Roger Doyle,

Contract Torture: Will Boyle Allow

Private Military Contractors To Profit

From The Abuse of Prisoners?,

19 PAC. MCGEORGE GLOB. BUS. & DEV.

L.J. 467 (2007) ................................................................. 4

Donald H. Zeigler,

The New Activist Court,

45 AM. U. L. REV. 1367 (1996) ..................................... 12

Frank H. Easterbrook,

Statutes’ Domains,

50 U. CHI. L. REV. 533 (1983) ........................................ 8

VII

TABLE OF AUTHORITIES

(continued)

Page(s)

John L. Watts,

Differences Without Distinctions:

Boyle’s Government Contractor

Defense Fails to Recognize the Critical

Differences Between Civilian and

Military Plaintiffs and Between

Military and Non-Military

Procurement,

60 Okla. L. Rev. 647 (2007) .......................................... 10

Josef Kohler,

Judicial Interpretation of Enacted

Law, in SCIENCE OF LEGAL METHOD:

SELECT ESSAYS BY VARIOUS AUTHORS

187 (Bos. Book Co. 1917) ............................................... 8

Larry J. Gusman,

Rethinking Boyle v. United

Technologies Corp. Government

Contractor Defense: Judicial

Preemption of the Doctrine of

Separation of Powers?,

39 AM. U. L. REV. 391 (1990) ....................................... 10

Major Jeffrey B. Garber,

The (Too) Long Arm of Tort Law:

Expanding the Federal Tort Claims

Act's Combatant Activities Immunity

Exception to Fit the New Reality of

Contractors on the Battlefield, ARMY

LAW., Sept. 2016, at 12 ................................................... 6

VIII

TABLE OF AUTHORITIES

(continued)

Page(s)

Louise Weinberg,

Federal Common Law,

83 NW. U. L. REV. 805 (1989) ....................................... 10

Margaret Z. Johns,

Should Blackwater and Halliburton

Pay for the People They've Killed? Or

Are Government Contractors Entitled

to A Common-Law, CombatantActivities Defense?,

80 TENN. L. REV. 347 (2013) .......................................... 8

Michael D. Green & Richard A. Matasar,

The Supreme Court and the Products

Liability Crisis: Lessons from Boyle’s

Government Contractor Defense,

63 S. CAL. L. REV. 637 (1990)....................................... 16

Nicholas S. Zeppos,

Legislative History and the

Interpretation of Statutes: Toward A

Fact-Finding Model of Statutory

Interpretation,

76 VA. L. REV. 1295 (1990) ........................................... 11

Richard C. Ausness,

The Case for A “Strong” Regulatory

Compliance Defense,

55 MD. L. REV. 1210 (1996) .......................................... 14

IX

TABLE OF AUTHORITIES

(continued)

Page(s)

Roger Doyle,

Contract Torture: Will Boyle Allow

Private Military Contractors To Profit

From The Abuse of Prisoners?,

19 PAC. MCGEORGE GLOB. BUS. & DEV.

L.J. 467 (2007) ................................................................. 4

Ronald A. Cass & Clayton P. Gillette,

The Government Contractor Defense:

Contractual Allocation of Public Risk,

77 VA. L. REV. 257 (1991) ............................................. 11

Stephen I. Vladeck,

The Demise of Merits-Based

Adjudication in Post-9/11 National

Security Litigation,

64 DRAKE L. REV. 1035 (2016) .................................... 13

Terrie Hanna,

The Government Contract Defense and

the Impact of Boyle v. United

Technologies Corporation,

70 B.U. L. REV. 691 (1990) ........................................... 11

Thomas W. Merrill,

The Disposing Power of the

Legislature,

110 COLUM. L. REV. 452 (2010) ................................... 12

Victoria Eatherton,

Is Derivative Sovereign Immunity

Jurisdictional? An Analysis and

Resolution of the Circuit Split,

47 PUB. CONT. L.J. 605 (2018) ..................................... 11

X

TABLE OF AUTHORITIES

(continued)

Page(s)

William P. Marshall,

Conservatives and the Seven Sins of

Judicial Activism,

73 U. COLO. L. REV. 1217 (2002) ................................. 11

INTRODUCTION

AND INTERESTS OF AMICI CURIAE*

In 2016, Ahmad Nayeb used a bomb to kill five U.S.

soldiers and injure sixteen others in Afghanistan. The

attack might sound like another unfortunate incident of

war, but it was not—Nayeb was supposed to be on our

side. A former Taliban insurgent, Nayeb was employed

by a subcontractor to Respondent Fluor Corporation at

Bagram Airfield. A military investigation found that

Nayeb was able to build a suicide vest during his largely

unsupervised shift at Fluor’s vehicle yard; he also paired

homemade explosives with materials from the yard to do

it. App. 9, 171-73. On the day of the attack, Nayeb was

then permitted to walk—unsupervised—to a different

part of the base, where he detonated his bomb near

soldiers gathering for a Veterans Day 5K. Altogether,

“poorly vetted access” and “unreasonable supervision”

allowed Nayeb to “operat[e] with impunity” in preparing

for and conducting his attack. App. 160. “Fluor’s

complacency and its lack of reasonable supervision” was

deemed “the primary contributing factor” to the attack.

App. 158.

Petitioner Winston Hencely was one of those wounded.

With no recourse against the military for his injuries,

Hencely sued Fluor under South Carolina law. But the

district court entered judgment for the contractor, and the

Fourth Circuit affirmed. App. 2. According to the Fourth

Circuit, Hencely’s state-law tort suit “clash[ed] with the

federal interest underlying the combatant activities

exception” to the Federal Tort Claims Act. App. 21. By

its express terms, the FTCA and its related exceptions do

Under Supreme Court Rule 37.2, amici timely notified counsel of

record of their intent to file this brief.

*

2

not apply to military contractors like Fluor. See 28 U.S.C.

§ 2671. But the Fourth Circuit effectively extended the

Act’s reach anyway, explaining how it wanted to advance

a “policy” of “foreclosing state regulation” of anything

related to wartime activities. App. 20; see also App. 27

(declaring that “the imposition of per se of the state … tort

law … conflicts with the federal policy of eliminating

regulation of the military” (cleaned up)).

The Fourth Circuit’s approach is an affront to both the

horizontal and vertical separation of powers.

In essentially rewriting several of the FTCA’s

provisions, the court ignored Congress’s careful judgment

not to extend the FTCA’s protections (derived from

notions of sovereign immunity) to private contractors.

Although the Fourth Circuit emphasized the Act’s

purpose, this Court has rejected this “purpose first”

approach time and again in any number of contexts. And

the Fourth Circuit’s choice to seize control over what

should be congressionally driven policy judgments in turn

harms the States. After all, “[t]he allocation of powers in

our federal system preserves the integrity, dignity, and

residual sovereignty of the States.” Bond v. United

States, 564 U.S. 211, 221 (2011). “The federal balance is,

in part, an end in itself, to ensure that States function as

political entities in their own right.” Id.

What’s more, the Court gave insufficient respect to the

States’ interests in affording relief to victims and imposing

punishment on wrongdoers within their borders. In prior

cases, even the Fourth Circuit has acknowledged the

“general presumption that Congress did not intend to

preempt state law,” especially when it comes to the

“preemption of state remedies like tort recoveries,

whe[re] no federal remedy exists.” Columbia Venture,

LLC v. Dewberry & Davis, LLC, 604 F.3d 824, 830 (4th

3

Cir. 2010).

In the tort realm, “an unambiguous

congressional mandate” must thus be present to preempt.

Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132,

147 (1963). These clear-statement principles “compel[]

Congress to legislate deliberately and explicitly before

departing from the Constitution’s traditional distribution

of authority.” Carter v. Welles-Bowen Realty, Inc., 736

F.3d 722, 733 (6th Cir. 2013) (Sutton, J., concurring). Yet

the Fourth Circuit forgot them here, trouncing important

state interests in tort law in the process.

The Court should grant the petition and restore the

balance when it comes to state tort law.

SUMMARY OF ARGUMENT

I. The FTCA does not apply to private, military

contractors. Even so, the Fourth Circuit essentially

employed a provision of that statute to bar liability against

Fluor, reasoning that this outcome advanced the statute’s

purpose. Purpose-driven, legislative revisionism is an

unwelcome relic of an early time. Courts should stick with

the text. And to the extent that the court below relied on

this Court’s earlier decision in Boyle v. United

Technologies Corp., 487 U.S. 500, 511-513 (1988), that was

a serious mistake. That decision already stands on shaky

footing, and it’s a particularly ill fit for the facts of this

case. Ultimately, the lower court assumed a legislative

function that belongs to Congress alone.

II. The Fourth Circuit’s decision failed to account for

important state interests. States have an interest in

seeing innocent parties compensated. On the flip side,

they have an interest in seeing wrongful conduct punished

and deterred. And tort law is a tool to advance state social

policy. But the Fourth Circuit inappropriately slammed

4

the door on any of these interests without any real

consideration of the consequences.

ARGUMENT

Deference to our country’s military decisionmakers is

understandable and appropriate. But in extending that

deference to private military contractors who allegedly

did not comply with military contracts and orders, the

Fourth Circuit went too far.

I.

The decision below warps the FTCA using a

mistaken, purpose-driven approach.

A. The court effectively rewrote the statute.

The FTCA does not say that federal contractors should

be shielded from liability for “combatant activities.” In

fact, it says the opposite. The Act addresses “claims

against the United States” for certain “negligent or

wrongful act[s] or omissions[s] of any employee of the

Government.” 28 U.S.C. § 1346(b). An “employee of the

Government” includes “officers or employees of any

federal agency” and military personnel. Id. § 2671. But

“federal agency” “does not include any contractor with the

United States.” Id. So contractors like Fluor are

expressly taken out of the Act’s scope. Were that not

enough, the relevant exception to liability here—the

combatant-activities exception—precludes a claim against

the government “arising out of the combatant activities of

the military or naval forces, or the Coast Guard, during

time of war.” Id. § 2680(j) (emphasis added). Yet a

“private military contractor is neither a member of the

military nor naval forces contemplated by Congress or the

courts.” Roger Doyle, Contract Torture: Will Boyle Allow

Private Military Contractors To Profit From The Abuse

5

of Prisoners?, 19 PAC. MCGEORGE GLOB. BUS. & DEV. L.J.

467, 486 (2007). In that sense, they’re doubly excluded.

Thus, “[b]y their terms, these provisions do not apply

to government contractors,” as even the Fourth Circuit

recognized. App. 20. That’s true even for military

contractors who often operate under strict task orders or

contracts. See United States v. Orleans, 425 U.S. 807, 816

(1976) (explaining that even federal regulations that “fix

specific and precise conditions to implement federal

objectives … do not convert the acts of

entrepreneurs … into federal governmental acts”); accord

Berkman v. United States, 957 F.2d 108, 114 (4th Cir.

1992) (“[W]e cannot accept the suggestion that a

contractor loses its independence and becomes an

‘employee’ of the government in every case in which the

government writes into the contract sufficient procedural

safeguards to ensure compliance with the terms of the

agreement.”).

That should have been the end of the inquiry. An

“elementary” principle of statutory interpretation

appears at the start of most every case implicating a

statute: “[T]he meaning of a statute must, in the first

instance, be sought in the language.” Caminetti v. United

States, 242 U.S. 470, 485 (1917). Indeed, judges should

“always … begin with the text of the statute.” Limtiaco

v. Camacho, 549 U.S. 483, 488 (2007). So in cases where

the statute is clear, “the sole function of the courts is to

enforce [the law] according to its terms.” United States v.

Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (cleaned

up). Fluor was a contractor. The exception does not

apply.

The Fourth Circuit marched ahead anyway, discerning

a “federal policy of foreclosing state regulation of the

military’s battlefield conduct and decisions” from the

6

FTCA’s terms and then using that policy to effectively

rewrite them. App. 20 (cleaned up); see also App. 27. It

also passingly commented on the “rationales for [state]

tort law” against this federal “policy” and found them

wanting. App. 27 n.7. In this way, the Fourth Circuit’s

thinking mirrored (and heavily relied on) the D.C.

Circuit’s opinion in Saleh v. Titan Corp., 580 F.3d 1, 7

(D.C. Cir. 2009), which likewise focused on “the policy

embodied by the combatant activities exception”—but not

the text. The Third Circuit, too, has used “purpose” and

“policy” to shape its conception of a combatant-activities

exception, though it viewed that purpose slightly

differently. See Harris v. Kellogg Brown & Root Servs.,

Inc., 724 F.3d 458, 480 (3d Cir. 2013) (“The purpose

underlying § 2680(j) therefore is to foreclose state

regulation of the military’s battlefield conduct and

decisions.”).

To be sure, the Fourth Circuit and its sister circuits

were ostensibly using the FTCA only as evidence of

“interests” that might in turn give rise to a federal

defense. See In re KBR, Inc., Burn Pit Litig., 744 F.3d

326, 347-49 (4th Cir. 2014). But an earnest look at these

decisions suggests that the courts were using oldfashioned, purpose-driven analysis to revise the terms of

a statute, albeit through the roundabout way of evaluating

“interests.” See Major Jeffrey B. Garber, The (Too) Long

Arm of Tort Law: Expanding the Federal Tort Claims

Act's Combatant Activities Immunity Exception to Fit

the New Reality of Contractors on the Battlefield, ARMY

LAW., Sept. 2016, at 12, 13 (describing how “courts have

very creatively interpreted the statute to extend it to

contractors, a result that is in direct contravention of the

statutory bar on the FTCA applying to contractors”).

7

Such legislative revisionism is a serious mistake.

Nearly a century-and-a-half ago, this Court admonished

that “[c]ourts cannot supply omissions in legislation, nor

afford relief because they are supposed to exist.” United

States v. Union Pac. R.R. Co., 91 U.S. 72, 85 (1875).

Nothing has changed since. See Little Sisters of the Poor

Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct.

2367, 2381 (2020) (“It is a fundamental principle of

statutory interpretation that absent provisions cannot be

supplied by the courts.” (cleaned up)). It remains true

that “it is [the courts’] duty to respect not only what

Congress wrote but, as importantly, what it didn’t write.”

Va. Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1900 (2019)

(Gorsuch, J.). So when a statute “says nothing about

[certain types of] claims,” it is generally “improper to

conclude that what Congress omitted from the statute is

nevertheless within its scope.” Univ. of Tex. Sw. Med. Ctr.

v. Nassar, 570 U.S. 338, 353 (2013). “[T]he choice” to

expand or contract a statute “is not [a court’s] to make.”

CSX Transp., Inc. v. Ala. Dep’t of Revenue, 562 U.S. 277,

296 (2011). “Congress wrote the statute it wrote,” and that

is all courts can deal with. Id.; see also Michigan v. Bay

Mills Indian Cmty., 572 U.S. 784, 794 (2014) (“[Courts do

not have a] roving license … to disregard clear language

simply on the view that … Congress must have intended

something broader.” (cleaned up)).

By fixating on purpose (rather than text), courts below

have violated the separation of powers by assuming a

legislative function. It’s a dangerous game to rule based

on what “Congress would have wanted” instead of “what

Congress enacted.” Republic of Argentina v. Weltover,

Inc., 504 U.S. 607, 618 (1992) (cleaned up). Remember

that the “very essence” of the legislative process is

“[d]eciding what competing values will or will not be

sacrificed to the achievement of a particular objective.”

8

Rodriguez v. United States, 480 U.S. 522, 526 (1987).

Courts cannot identify a gap and then assume that the

legislature would have chosen to fill it in the way the court

believes. Such an approach would produce “little more

than wild guesses.” Frank H. Easterbrook, Statutes’

Domains, 50 U. CHI. L. REV. 533, 548 (1983). And it

forgets that “[l]egislation is … the art of compromise.”

Henson v. Santander Consumer USA Inc., 137 S. Ct.

1718, 1725 (2017). So by the time a law is adopted, “all that

is really agreed upon is the words.” Josef Kohler, Judicial

Interpretation of Enacted Law, in SCIENCE OF LEGAL

METHOD: SELECT ESSAYS BY VARIOUS AUTHORS 187, 196

(Bos. Book Co. 1917). Omitting something from the text

may have been “the price of passage.” Henson, 137 S. Ct.

1725.

The Fourth Circuit unfortunately indulged in straightup policy- and interest-balancing here—the kind of work

that belongs to Congress. See, e.g., App. 27 n.7. “It is for

Congress, not [the] [c]ourt[s], to amend the statute if it

believes that the” state tort-law will “unduly restrict[]”

contractors from performing their work effectively. Dodd

v. United States, 545 U.S. 353, 359-60 (2005). “The

judiciary is not the proper branch to balance these

competing policy choices, especially in the areas of

military policy and foreign affairs, which are

constitutionally consigned to Congress and the Executive

Branch. Congress, not the courts, should decide whether

to adopt a combatant-activities defense for federal

contractors.” Margaret Z. Johns, Should Blackwater and

Halliburton Pay for the People They've Killed? Or Are

Government Contractors Entitled to A Common-Law,

Combatant-Activities Defense?, 80 TENN. L. REV. 347,

352 (2013).

9

B. The court placed too much weight on Boyle.

In crafting these new de facto immunities for military

contractors, the Fourth Circuit has leaned heavily on

Boyle v. United Technologies Corp., 487 U.S. 500, 511-513

(1988). App. 20. That case held that the interests

embodied in the FTCA’s “discretionary function”

exemption extended to “bar[] a plaintiff’s state-law

design-defect claim against the manufacturer of a military

helicopter built for the United States.”

App. 20

(characterizing Boyle). The Fourth Circuit “extended

Boyle’s logic to the FTCA’s combatant activities

exemption.” App. 21.

Boyle brings with it a questionable pedigree.

Fourth Circuit was unwise to “extend” it.

The

Boyle embraced a defense for military contractors that

originally derived from the Feres doctrine, “under which

the [FTCA] does not cover injuries to Armed Services

personnel in the course of military service.” Boyle, 487

U.S. at 510 (describing Feres v. United States, 340 U.S.

135 (1950)). Feres’s involvement should already raise a

red flag to the careful reader, as that doctrine has been

said to lack any “basis in the text of the FTCA,” rest on

“policy-based justifications [that] make little sense,” and

spur “almost universal[] condemn[ation] [from] judges

and scholars.” Carter v. United States, 145 S. Ct. 519, 521

(2025) (Thomas, J., dissenting from the denial of

certiorari). Thankfully, this Court declined to rely on

Feres in Boyle in part because “a contractor defense that

rests upon it should prohibit all service-related tort claims

against the [contractor-]manufacturer.” Boyle, 487 U.S.

at 510. A Feres-based contractor defense would therefore

be “too broad.” Id.

10

But having stepped back from the ledge of Feres, Boyle

nevertheless proceeded to leap off in a different

direction—the FTCA. See John L. Watts, Differences

Without Distinctions: Boyle’s Government Contractor

Defense Fails to Recognize the Critical Differences

Between Civilian and Military Plaintiffs and Between

Military and Non-Military Procurement, 60 Okla. L.

Rev. 647, 665 (2007) (noting how Boyle sought “a more

solid foundation” than “the often criticized and

misunderstood Feres doctrine” but instead “radically

altered the defense”).

Looking to the FTCA’s

discretionary-function exemption, the Court perceived

that designing military equipment was the sort of work

that would not be subject to suit under that Act. Boyle,

487 U.S. at 511. And it thought that holding contractors

liable for such discretionary judgments would be akin to

holding the United States itself liable—as “[t]he financial

burden of judgments against the contractors would

ultimately be passed through … to the United States

itself.” Id. at 511-12.

Boyle never acknowledged how Congress had

expressly excluded “any contractor with the United

States” from the FTCA’s reach. See 28 U.S.C. § 2671.

Nor did it take note of the many (then-recent) instances in

which “Congress had notably failed to act … on proposals

for a statutory federal contractors’ defense.” Louise

Weinberg, Federal Common Law, 83 NW. U. L. REV. 805,

849 & n.245 (1989). Nor did it reconcile its choice with

“legislation making contractors guarantee their contract

performance” while refusing reimbursement for

insurance. Larry J. Gusman, Rethinking Boyle v. United

Technologies Corp. Government Contractor Defense:

Judicial Preemption of the Doctrine of Separation of

Powers?, 39 AM. U. L. REV. 391, 432 (1990). Instead, the

only mentions of our country’s actual legislative body

11

came in the dissent, which would have left Boyle’s

“exercise of legislative power to Congress.” Boyle, 487

U.S. at 516 (Brennan, J., dissenting).

So it’s perhaps unsurprising that, like its progenitor

Feres, Boyle has drawn heavy—and justified—criticism.

Most obviously, “the result in Boyle seems flatly

inconsistent with the textualist approach,” looking instead

to the kind of policy concerns that are usually

“relegate[d] … to the legislative process.” Nicholas S.

Zeppos, Legislative History and the Interpretation of

Statutes: Toward A Fact-Finding Model of Statutory

Interpretation, 76 VA. L. REV. 1295, 1367-68 (1990). “No

text or history supports a military contractor’s defense,

and no argument from constitutional structure can justify

the creation of federal tort law in this case.” William P.

Marshall, Conservatives and the Seven Sins of Judicial

Activism, 73 U. COLO. L. REV. 1217, 1231 (2002); see also

Victoria Eatherton, Is Derivative Sovereign Immunity

Jurisdictional? An Analysis and Resolution of the

Circuit Split, 47 PUB. CONT. L.J. 605, 620 (2018) (“Without

any textual origin, derivative sovereign immunity is

simply a creation of the judiciary.”).

Worse still for the States, Boyle “eschews the sort of

formal separation-of-power analysis the Court often has

employed to separate responsibilities among government

actors within the federal sphere.” Ronald A. Cass &

Clayton P. Gillette, The Government Contractor Defense:

Contractual Allocation of Public Risk, 77 VA. L. REV. 257,

269 (1991) (emphasis added). Rather, “for the sake of the

United States Treasury, the Boyle Court inappropriately

adopted the role of the legislature in extending sovereign

immunity to government contractors.” Terrie Hanna, The

Government Contract Defense and the Impact of Boyle v.

United Technologies Corporation, 70 B.U. L. REV. 691,

12

694 (1990); see also, e.g., Donald H. Zeigler, The New

Activist Court, 45 AM. U. L. REV. 1367, 1400 (1996) (“Boyle

usurped Congress’ role.”); Barry Kellman, Judicial

Abdication of Military Tort Accountability: But Who Is

to Guard the Guards Themselves?, 1989 DUKE L.J. 1597,

1646-47 (1989) (“[T]he soundness of a policy that may

increase the government’s cost for weapons is a matter

best for Congress to decide.”). And “[i]n one fell swoop,

the Court transgressed federalism concerns, ignored

separation of powers, and upset key precedent.”

Marshall, supra, at 1231. Boyle’s “freewheeling, policybased analysis” has thus been labelled an “aberration.”

Thomas W. Merrill, The Disposing Power of the

Legislature, 110 COLUM. L. REV. 452, 463 & n.64 (2010);

see also Weinberg, supra, at 849 (describing how Boyle

“obviously intrudes upon state-created rights”).

So why then should courts rush to extend Boyle to new

realms? The answer: they shouldn’t. Yet as Petitioners

have well explained, see Pet. 16-22, courts have indeed

stretched Boyle to farther reaches while simultaneously

dispensing with even the relatively minimal limits that it

imposed. In doing so, they have “protect[ed] military

contractors from state-law claims premised on conduct

not mandated, authorized, or even considered by the

federal Government.” Badilla v. Midwest Air Traffic

Control Serv., Inc., 8 F.4th 105, 122 (2d Cir. 2021). But

that outcome breaks down even under Boyle’s atextual

logic, which assumed the protected action would at least

“reflect a significant policy judgment by Government

officials.” Boyle, 487 U.S. at 513. The legal fiction of the

contractor standing in the shoes of the Government in

some sense has thus become even more attenuated. And

for much the same reason, “Boyle’s cost-passing rationale

breaks down in the combatant activities-service

contractor context,” especially considering the gloss the

13

Fourth Circuit put on it. Ben Davidson, Liability on the

Battlefield: Adjudicating Tort Suits Brought by Soldiers

Against Military Contractors, 37 PUB. CONT. L.J. 803,

832 (2008).

Boyle should thus not be read as a license for courts to

take up the legislative drafting pen. The decision is

troubling enough on its own, and the Fourth Circuit was

mistaken in applying it even beyond its original context.

Again: doing so seizes too much legislative power. See

McMahon v. Presidential Airways, Inc., 460 F. Supp. 2d

1315, 1330 (M.D. Fla. 2006) (refusing to allow “private

contractors” to “bootstrap the Government’s sovereign

immunity” by creating this new defense “[u]ntil Congress

directs otherwise”). “It may well be that, all things being

equal, state law ought to play very little role in creating

liability for the actions of private military contractors

overseas. But the notion that the federal courts (and not

the political branches) have the ability to say so is radically

at odds with many of the justifications for the other limits

on judicial review.” Stephen I. Vladeck, The Demise of

Merits-Based Adjudication in Post-9/11 National

Security Litigation, 64 DRAKE L. REV. 1035, 1073 (2016).

II.

The decision below threatens the States’

interests in affording relief and punishing

wrongdoers.

Aside from a lack of concern for Congress, federal

courts adopting a contractor defense of this kind have also

shown a lack of concern for the States. Those courts have

focused almost exclusively on the federal interests at

stake. But see, e.g., Getz v. Boeing Co., No. C 07-06396

CW, 2009 WL 636039, at *5 (N.D. Cal. Mar. 10, 2009)

(considering the interests that would be advanced by tort

law and finding no combatant activities exception applied

14

to claim brought by servicemember). Yet the question

implicates important state interests, too—interests that

the Fourth Circuit literally, and disappointingly,

relegated to a footnote. See App. 27 n.7. That was a

mistake, as Congress has often sought to respect

“traditional principles of state tort law.” Silkwood v. KerrMcGee Corp., 464 U.S. 238, 255 (1984); see also Ruff v.

Reliant Transp., Inc., 674 F. Supp. 3d 631, 635 (D. Neb.

2023) (“[C]ommon law tort constitutes a traditional

bedrock state regulatory authority.”). And “any sweeping

displacement of state tort law … raises serious federalism

concerns.” Richard C. Ausness, The Case for A “Strong”

Regulatory Compliance Defense, 55 MD. L. REV. 1210,

1237 (1996).

To start, States have a substantial interest in seeing

that persons within their borders receive compensation

for injury. Cf. Thomas v. Wash. Gas Light Co., 448 U.S.

261, 277 (1980) (noting a state’s “valid interest in the

welfare of [an] injured employee”). At bottom, “[t]he

American law of torts aims to protect all citizens from the

risk of physical harm to their persons or to their

property.” Univ. of Denver v. Doe, 547 P.3d 1129, 1145-46

(Colo. 2024) (cleaned up); accord Bowling Green Mun.

Utils. v. Thomasson Lumber Co., 902 F. Supp. 134, 136

(W.D. Ky. 1995) (“Tort law has as its purpose the

protection of society's members from harm.”). It is a

particular aim to “protect people from misfortunes which

are unexpected and overwhelming.” Linden v. Cascade

Stone Co., 699 N.W.2d 189, 193 (Wis. 2005). And States

are especially concerned with ensuring that “innocent,”

Lynch v. State, 308 A.3d 1, 22 (Conn. 2024), “deserving,”

In re Oncor Elec. Delivery Co. LLC, 630 S.W.3d 40, 43

(Tex. 2021), and other people “powerless to protect

themselves,” Blanks v. Fluor Corp., 450 S.W.3d 308, 373

(Mo. Ct. App. 2014), receive compensation.

15

Extending the FTCA’s combatant-activities exception

to federal contractors undeniably undermines these

interests. When it comes to the federal government, the

States’ interest in securing compensation might be

lessened because governments are historically shielded

from liability by sovereign immunity.

Settled

expectations, then, are not upset by declaring that certain

governmental activities remain off limits from suit. But

the same can’t be said for private parties; they generally

understand that “if you create a dangerous condition and

injury ensues you are liable for the injury.” In re Chicago,

Rock Island & Pac. R.R. Co., 756 F.2d 517, 520 (7th Cir.

1985). Here, all those typical facts came together: Fluor

created a dangerous condition (a former insurgent suicide

bomber left unsupervised with bomb-making ingredients

on base). It resulted in an undeniable and unexpected

injury.

And Specialist Hencely was “innocent,”

“deserving,” and “powerless,” in that he was in no position

to avoid the injuries that resulted from the bombing.

Fluor, on the other hand, was able to do something (and

allegedly didn’t), so it would be right to “shift[] the loss to

[that] responsible part[y].” Lynch, 308 A.3d at 22. That’s

true even in a theater of war considering that Fluor is said

to have failed in its express responsibilities under its

contract.

Fluor’s conduct flags another interest that States have

in allowing tort recovery: punishment and deterrence.

“[T]ort law … has a deterrent as well as a compensatory

function.” Jones v. Reagan, 696 F.2d 551, 554 (7th Cir.

1983). South Carolina might have an interest in that effect

because of Fluor’s operation there. So too might Georgia,

seeing as how Specialist Hencely hailed from that State.

But neither of those interests can be vindicated after the

Fourth Circuit’s decision. Here again, that result might

be palatable if Specialist Hencely had pursued the federal

16

government; States don’t ordinarily have the power to

“punish” or “deter” the federal government. What’s more,

military personnel face obvious internal accountability

measures. But in taking the exception further afield, the

Fourth Circuit has erased “the main function” of tort law.

Id. at 554; accord Rivera v. Cherry Hill Towers, LLC, 287

A.3d 772, 777 (N.J. Super. App. Div. 2022) (“A principal

purpose of tort law is deterrence.” (cleaned up)). Fluor

might theoretically face the loss of a contract, debarment,

or a poor performance assessment score, see, e.g., App.

183-87—but it won’t otherwise face accountability for its

failings as to Specialist Hencely (or be much deterred

from repeating the same).

Lastly, tort law does more than just vindicate the

victim and punish the wrongdoer—it also “vindicate[s]

social policy.” Steigman v. Outrigger Enterprises, Inc.,

267 P.3d 1238, 1246 (Haw. 2011); see also Applied Equip.

Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454, 460 (Cal.

1994) (same). Put another way, “[r]egulation is the

government’s prospective ordering of marketplace

conduct; tort lawsuits are retroactive case-by-case

correctives.” Oncor Elec., 630 S.W.3d at 43. Both seek to

produce equitable, just, and economically efficient

outcomes for all—but States might choose to do so in

varying ways. See In re Rhone-Poulenc Rorer, Inc., 51

F.3d 1293, 1302 (7th Cir. 1995) (“The point of Erie is that

Article III of the Constitution does not empower the

federal courts to create” a uniform negligence regime “for

diversity cases.”).

Every time a court cuts off tort liability, then, it

deprives a State of an important policy tool. See Michael

D. Green & Richard A. Matasar, The Supreme Court and

the Products Liability Crisis: Lessons from Boyle’s

Government Contractor Defense, 63 S. CAL. L. REV. 637,

17

674 (1990) (explaining how extending the FTCA to afford

“a careless, ill-suited federal defense” for government

contractors deprived the States of flexibility to protect

federal interests while concurrently serving their own

objectives). The Supremacy Clause means States must

swallow that result when it comes to the federal

government. But nothing says that the interests of

private contractors should trump the States’ policy

interests in the same way.

Some courts have said that these “very purposes of tort

law are in conflict with the pursuit of warfare.” Saleh, 580

F.3d at 7; see also App. 27 n.7 (suggesting deterrence is

“out of place” in a situation where “risk-taking is the

rule”). But this framing ignores how “tort law typically

sanction[s] only “wrongful conduct,” bad acts, and

misfeasance.” Twitter, Inc. v. Taamneh, 598 U.S. 471, 489

(2023). Conduct always must be evaluated in the context

in which it occurs. So when States are measuring whether

conduct

warrants

punishment

(or

conversely,

compensation) under their own tort law, they’ll

necessarily account for the reality that the conduct

occurred during wartime. See Getz, 2009 WL 636039, at

*5. Yet it needn’t be the case, as a matter of federal law,

that all conduct during wartime gets a free pass. Not all

bets are off. And although some of the ugly realities of

war might justify conduct that might otherwise be

punishable during peacetime, contractors can and should

still be held to account when they violate their most basic

obligations. The Fourth Circuit foreclosed even that.

In short, “[t]ort liability serves to compensate injured

victims, encourage safe practices, determine financial and

moral responsibility, and achieve justice.” Johns, supra,

at 352. If the Fourth Circuit was determined to engage in

a policy judgment of the sort that it did below, it should

18

have at least accounted for those interests in its work. It

did not.

CONCLUSION

The Court should grant the petition.

Respectfully submitted.

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

Counsel for Amicus Curiae State of West Virginia

19

ADDITIONAL COUNSEL

TIM GRIFFIN

Attorney General

State of Arkansas

ALAN WILSON

Attorney General

State of South Carolina

JAMES UTHMEIER

Attorney General

State of Florida

MARTY JACKLEY

Attorney General

State of South Dakota

THEODORE E. ROKITA

Attorney General

State of Indiana

KEN PAXTON

Attorney General

State of Texas

LIZ MURRILL

Attorney General

State of Louisiana

LYNN FITCH

Attorney General

State of Mississippi

AUSTIN KNUDSEN

Attorney General

State of Montana

MICHAEL T. HILGERS

Attorney General

State of Nebraska

GENTNER DRUMMOND

Attorney General

State of Oklahoma