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

Supreme Court briefApr 28, 2025

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No. 24-924

IN THE

Supreme Court of the United States

__________

WINSTON TYLER HENCELY,

Petitioner,

FLUOR CORPORATION, ET AL.,

Respondents.

_____________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

____________

BRIEF IN OPPOSITION

_____________

Mark W. Mosier

Counsel of Record

Daniel L. Russell Jr.

Raymond B. Biagini

Evan K.W. Matsuda

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

MMosier@cov.com

(202) 662-6000

Counsel for Respondents

QUESTION PRESENTED

Whether state tort law may impose a duty to

exercise reasonable care on private contractors acting

at the direction of the U.S. military and engaged in

combatant activities on a foreign battlefield.

RULE 29.6 CORPORATE

DISCLOSURE STATEMENT

Pursuant to Rule 29.6 of the Rules of this Court,

Respondents state as follows: Respondent Fluor

Corporation is a publicly held corporation that has no

parent corporation; 10% or more of its stock is owned

by BlackRock Inc., a publicly held corporation.

Respondent Fluor Enterprises, Inc. is a wholly owned

subsidiary of Fluor Corporation. Respondent Fluor

Government Group International, Inc. is a wholly

owned subsidiary of Fluor Corporation. Respondent

Fluor Intercontinental, Inc. is a wholly owned

subsidiary of Fluor Enterprises, Inc., which is a

wholly owned subsidiary of Fluor Corporation.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED.......................................... i

RULE 29.6 CORPORATE DISCLOSURE

STATEMENT .................................................. ii

TABLE OF AUTHORITIES ........................................v

INTRODUCTION ........................................................1

STATEMENT OF THE CASE ....................................3

Background ............................................3

Facts and Procedural History ...............7

REASONS FOR DENYING THE PETITION ..........13

II.

There Is No Circuit Split on the

Question Presented. .......................................13

The Circuits Have Uniformly

Rejected Petitioner’s Position. .............14

The Circuits’ Uniform View In

Favor of Combatant-Activity

Preemption Is Correct..........................16

The Different Formulations of the Test

for Combatant-Activity Preemption Are

Immaterial Here. ............................................24

The Alleged Split Is Largely

Illusory. ................................................24

III.

Petitioner’s Claims Are

Preempted Under Every Circuit’s

Test. ......................................................27

The Petition Presents Additional

Vehicle Problems. ...........................................29

CONCLUSION ..........................................................34

TABLE OF AUTHORITIES

Page(s)

Cases

Al Shimari v. CACI Intern., Inc.,

679 F.3d 205 (4th Cir. 2012) ............................. 23

Allen v. Milligan,

599 U.S. 1 (2023) ............................................... 22

Am. Ins. Ass’n v. Garamendi,

539 U.S. 396 (2003) ........................................... 18

Badilla v. Midwest Air Traffic Control

Serv., Inc.,

8 F.4th 105 (2d Cir. 2021) ........................... 14, 27

Banco Nacional v. Sabbatino,

376 U.S. 398 (1964) ........................................... 21

Barnett Bank of Marion Cnty., N.A. v.

Nelson,

517 U.S. 25 (1996) ............................................. 19

Boyle v. United Technologies Corp.,

487 U.S. 500 (1988) ........................... 2, 15, 21, 22

Clearfield Trust Co. v. United States,

318 U.S. 363 (1943) ........................................... 21

Crosby v. Nat’l Foreign Trade Council,

530 U.S. 363 (2000) ........................................... 18

D’Oench, Duhme & Co. v. FDIC,

315 U.S. 447 (1942) ........................................... 21

Farmers Educ. & Coop. Union of Am., N.

Dakota Div. v. WDAY, Inc.,

360 U.S. 525 (1959) ........................................... 19

Farnsworth Cannon, Inc. v. Grimes,

635 F.2d 268 (4th Cir. 1980) ............................. 32

Harris v. Kellogg Brown & Root Servs., Inc.,

724 F.3d 458 (3d Cir. 2013) ............ 15, 19, 22, 25

Hencely v. Fluor Corp. Inc.,

No. 6:19-cv-00489, 2020 WL 2838687

(D.S.C. June 1, 2020) ........................................ 11

Hencely v. Fluor Corp.,

No. 6:19-00489, 2020 WL 3604781

(D.S.C. Aug. 13, 2021) ....................................... 11

Hines v. Davidowitz,

312 U.S. 52 (1941) ............................................. 18

Howard v. Lyons,

360 U.S. 593 (1959) ........................................... 21

Johnson v. United States,

170 F.2d 767 (9th Cir. 1948) ............................. 22

Jones v. Rath Packing Co.,

430 U.S. 519 (1977) ........................................... 19

Kansas v. Garcia,

589 U.S. 191 (2020) ........................................... 17

In re KBR, Inc. Burn Pit Litig.,

744 F.3d 326 (4th Cir. 2014) ....... 4, 12, 15, 22, 25

vii

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

893 F.3d 241 (4th Cir. 2018) ............................. 30

Kimble v. Marvel Ent., LLC,

576 U.S. 446 (2015) ........................................... 21

Koohi v. United States,

976 F.2d 1328 (9th Cir. 1992) ..................... 15, 25

Lane v. Halliburton,

529 F.3d 548 (5th Cir. 2008) ............................. 12

Lebron v. Rumsfeld,

670 F.3d 540 (4th Cir. 2012) ............................. 30

Loquasto v. Fluor Corp.,

No. 3:19-CV-1455-B, 2021 WL 75550

(N.D. Tex. Jan. 8, 2021) .................................... 11

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ........................... 17

Negusie v. Holder,

555 U.S. 511 (2009) ........................................... 20

Nixon v. United States,

506 U.S. 224 (1993) ........................................... 30

Oklahoma v. Castro-Huerta,

597 U.S. 629 (2022) ........................................... 17

Perpich v. Dep’t of Def.,

496 U.S. 334 (1990) ........................................... 16

Ping v. United States,

130 U.S. 581 (1889) ........................................... 23

viii

Saleh v. Titan Corp.,

580 F.3d 1 (D.C. Cir. 2009) ............... 14, 16, 18, 19,

22, 25, 31

Stencel Aero Eng’g Corp. v. United States,

431 U.S. 666 (1977) ........................................... 31

Texas Indus., Inc. v. Radcliff Materials,

Inc.,

451 U.S. 630 (1981) ........................................... 21

Torres v. Tex. Dep’t of Pub. Safety,

597 U.S. 580 (2022) ............................. 3, 4, 16, 17

Tozer v. LTV Corp.,

792 F.2d 403 (4th Cir. 1986) ............................. 31

United States v. Belmont,

301 U.S. 324 (1937) ........................................... 23

United States v. Kimbell Foods, Inc.,

440 U.S. 715 (1979) ........................................... 21

United States v. Locke,

529 U.S. 89 (2000) ............................................. 20

United States v. Varig Airlines,

467 U.S. 797 (1984) ........................................... 22

Wyeth v. Levine,

555 U.S. 555 (2009) ........................................... 19

Zivotofsky v. Clinton,

566 U.S. 189 (2012) ........................................... 30

Constitutional Provisions

U.S. Const. art. I, § 8 ................................................ 3

U.S. Const. art. I, § 10 ............................................ 18

U.S. Const. art. II, § 2 .............................................. 3

Statutes

28 U.S.C. § 2680 ................................................. 1, 20

Act of Aug. 7, 1789, ch. 7, 1 Stat. 49 ........................ 4

Regulatory & Administrative Materials

Army Reg. 700-137 (Dec. 16, 1985).......................... 4

DoD Instruction 3020.41 (Nov. 27, 2024) ................ 4

Other Authorities

Br. for the United States as Amicus Curiae,

KBR, Inc. v. Metzgar, No. 13-1241,

2014 WL 7185601 (U.S. Dec. 16, 2014) ............ 15

Br. for the United States as Amicus Curiae,

Midwest Air Traffic Control Serv., Inc. v.

Badilla, No. 21-867, 2023 WL 3022440

(U.S. Apr. 17, 2023) ............................... 15, 25, 26

Bradford R. Clark, Boyle as Constitutional

Preemption,

92 Notre Dame L. Rev. 2129 (2017) ................. 17

Janet A. McDonnell, A History of Defense

Contract Administration,

Def. Cont. Mgmt. Agency (Mar. 5, 2020)............ 4

Moshe Schwartz & Jennifer Church,

Congressional Research Service,

R43074, Department of Defense’s Use of

Contractors to Support Military

Operations: Background, Analysis, and

Issues for Congress (2013)................................... 5

INTRODUCTION

This suit arises out of an enemy attack by a Taliban

operative on U.S. forces inside the secure perimeter of an

overseas U.S. military base during the war in Afghanistan.

Before his suicide-bombing attack in 2016, the Taliban

operative, Ahmad Nayeb, had been employed on the base

for five years as part of the U.S. military’s “Afghan First

Program.” This program was part of the military’s

counterinsurgency strategy, which sought to discourage

Afghanis from joining the Taliban by creating employment

opportunities for them. During the five years that the U.S.

military directed and authorized Nayeb’s placement on the

base as a contractor employee, the military retained

complete command and control over all aspects of base

security. The military also repeatedly conducted

counterintelligence screening interviews of Nayeb, both

before and during his employment. Yet it never warned

Respondents of Nayeb’s prior Taliban ties.

Petitioner was serving in the U.S. Army at the time of

Nayeb’s attack. He brought this suit in 2019, asserting tort

claims under South Carolina law and seeking to hold

Respondents liable for the injuries he allegedly suffered

after he physically confronted Nayeb. The district court

granted summary judgment for Respondents on the ground

that Petitioner’s state-law tort claims were preempted

based on the combatant-activity exception to the Federal

Tort Claims Act (“FTCA”), 28 U.S.C. § 2680(j). App.38-66.

The Fourth Circuit affirmed the judgment. App.1-36.

In so ruling, the Fourth Circuit agreed with all four

other circuits that have addressed whether state-law tort

claims arising out the military’s “combatant activities” may

be preempted by the FTCA’s combatant-activity exception.

The Second, Third, Fourth, Ninth, and D.C. Circuits

unanimously concur that state law should be displaced

insofar as it conflicts with the federal objectives underlying

the FTCA’s combatant-activity exception. All five circuits

have held that the preemption analysis is controlled by this

Court’s decision in Boyle v. United Technologies Corp., 487

U.S. 500 (1988), which interpreted a neighboring

subsection of the FTCA—the discretionary-function

exception.

Indeed, not a single court has adopted

Petitioner’s position: that federal law never preempts state

tort claims seeking to regulate combatants’ activities on

foreign battlefields.

Petitioner contends that the decision below “contradicts

this Court’s bedrock preemption cases” and “flouted”

settled preemption rules by “displacing state law without

any statutory basis.” Pet. 14, 15, 22. It does no such thing.

The decision is firmly rooted in the U.S. Constitution and

this Court’s longstanding preemption precedent. The

Constitution commits to the Federal Government exclusive

authority over warmaking powers, and it divests the States

of any such authority. The decision thus correctly

recognizes that the Federal Government, and not the

States, retains exclusive authority over the conduct of war

on foreign battlefields. And state-law tort claims would

interfere with that important federal interest if each State

were allowed to regulate conduct on the battlefield,

including attacks by foreign enemies on U.S. forces during

an active war.

Petitioner notes that the circuits have not adopted

identical tests for deciding when the combatant-activity

exception preempts state-law claims, but he overstates the

practical differences between those tests. The Third,

Fourth, and D.C. Circuits use an identical test, and the

Ninth Circuit applied a standard that predates but is

consistent with that test. The Second Circuit’s test

purports to be different, but has not yet proven to be

meaningfully so. Regardless, Petitioner’s state-law tort

claims would be preempted under any court’s test. The U.S.

military specifically authorized and directed the conduct at

issue, and it dictated the means and methods of providing

security and oversight to personnel on the base, including

Nayeb. Under these facts, any attempt to impose state-law

tort standards would undermine federal interests and

directly interfere with the Federal Government’s exclusive

authority over the conduct of war. The petition should be

denied.

STATEMENT OF THE CASE

Background

1. The Constitution vests all war powers in the federal

government. Article I, Section 8 authorizes Congress “[t]o

declare War,” to “raise and support Armies,” to “provide

and maintain a Navy,” and to “make Rules for the

Government and Regulation of the land and naval Forces.”

U.S. Const. art. I, § 8. And Article II designates the

President “Commander in Chief of the Army and Navy of

the United States.” U.S. Const. art. II, § 2.

These war powers are not shared concurrently with the

States. Rather, as the Court recently observed, “the

Constitution’s text, across several Articles, strongly

suggests a complete delegation of authority to the Federal

Government to provide for the common defense.” Torres v.

Tex. Dep’t of Pub. Safety, 597 U.S. 580, 590 (2022)

(emphasis added). Put another way, in delegating warmaking authority to the Federal Government, “the

Constitution also divests the States of like power.” Id. The

Constitution thus “prevents States from frustrating

national objectives in this field.” Id.

2. Since the Founding, Congress has authorized the

military to procure supplies and services for defense

purposes.1 In recent decades, the military has increasingly

exercised that authority by hiring contractors to provide

essential support services and to perform functions

historically carried out by uniformed soldiers. See, e.g.,

App.4.2 This increased reliance on contractors in the past

half century has been the direct result of the Federal

Government’s policy decision to eliminate the draft in favor

of an all-volunteer military. The U.S. military now

considers contractor personnel “part of the total force.”3

And it would be “unable to effectively execute many

operations, particularly those that are large-scale and long-

1 See Act of Aug. 7, 1789, ch. 7, 1 Stat. 49, 50 (establishing

the Department of War); Janet A. McDonnell, A History of

Defense Contract Administration, Def. Cont. Mgmt. Agency

(Mar. 5, 2020), https://www.dcma.mil/News/ArticleView/Article/2100501/a-history-of-defense-contractadministration.

The Army’s Logistics Civil Augmentation Program

(“LOGCAP”) was established in 1985 as part of this policy

shift. See App.4; see also In re KBR, Inc. Burn Pit Litig.,

744 F.3d 326, 332 (4th Cir. 2014) (“Burn Pit I”) (citing

Army Reg. 700-137 (Dec. 16, 1985)).

DoD Instruction 3020.41, para. 1.2.a (Nov. 27, 2024),

https://www.esd.whs.mil/Portals/54/Documents/DD/

issuances/dodi/302041p.pdf.

term in nature, without extensive operational contract

support.”4

During the war in Afghanistan, the U.S. military

adopted the “Afghan First Program” as part of its

counterinsurgency strategy. As a matter of policy, the

military sought to divert Local Nationals away from the

Taliban by creating opportunities for them to gain skills

and steady employment. See App.3, 46 n.7. As with any

wartime policy, there was a trade-off: The military knew

that reliance on Local Nationals created security risks and

sacrificed short-term efficiency, but the military accepted

these downsides to advance the long-term goal of

“developing the Afghan economy” and fostering a

“moderate, stable, and representative Afghanistan capable

of controlling and governing its territory.” App.3.

The U.S. military implemented the “Afghan First

Program” at Bagram Airfield, located north of Kabul in the

Parwan Province. Bagram Airfield was the U.S. command

center and the largest base in Afghanistan. At times, the

base housed more than 25,000 military and civilian

personnel. There, the military controlled force protection,

base security, and the Local National work force. See

App.5. At all times, the military command retained direct

authority over contractors regarding safety and security

matters. See App.5. The military was solely responsible for

identifying and vetting Local Nationals for hiring. See

Moshe Schwartz & Jennifer Church, Congressional

Research Service, R43074, Department of Defense’s Use of

Contractors to Support Military Operations: Background,

Analysis,

and

Issues

for

Congress

(2013),

https://sgp.fas.org/crs/natsec/R43074.pdf.

App.5; see also App.46. After Local Nationals were hired,

the military conducted counterintelligence assessments of

all Local Nationals throughout their employment. See

App.5-6; see also App.43, 47.

The military controlled base entry and exit, as well as

security inside the perimeter at Bagram. The military

required daily physical searches of all Local Nationals

entering the base at Entry Control Points (“ECPs”). See

App.5. While inside the perimeter, Local Nationals were

subject to physical searches by bomb-sniffing dogs and

armed guards at any time. App.5. When Local Nationals

arrived back at ECPs after their shifts, the military

physically escorted them off the base. See App.43-44.

The military dictated the protocols for supervising Local

Nationals authorized by the military to work on base. See

App.6. For example, the military issued a color-coded baseaccess badge to each Local National that passed screening

requirements. See App.6; see also App.43. Red badge

holders—the default for Local Nationals—required an

escort in all areas of Bagram Airfield except at the badgeholder’s work facility. See App.6; see also App.45. The

military also trained and authorized qualifying Local

Nationals to hold yellow badges, which increased base

access and permitted the badge-holder to escort up to ten

other Local Nationals. App.6-7. The military alone decided

the level of base access and requisite level of supervision

for each Local National on an individualized basis. App.4243.

The military operated a surveillance system to monitor

compliance with on-base escort protocols, including by

assigning a quality assurance representative to make sure

that escorting requirements were followed any time there

was movement of Local National personnel on base. App.7,

41, 43-44 n.6 (“the Army monitored all movements of [Local

Nationals] from worksites to ECPs where they were

handed off to the Military”).

Facts and Procedural History

1. From 2009 until 2021, Fluor provided essential

support services for the military at Bagram Airfield under

the LOGCAP IV Contract. See App.4-5. Under the terms of

Fluor’s contract with the Army, Fluor was required to

utilize Local Nationals “to the maximum extent possible.”

App.3, 45-46. Fluor could not vet those candidates; instead,

Fluor had to rely on the military’s vetting process. See

App.5, 46.

In 2011, the military authorized Ahmed Nayeb, a

former Taliban member, for training and employment at

Bagram Airfield. See App.46. Despite Nayeb’s Taliban ties,

the military believed that providing him with employment

would encourage his reintegration into civil society and

away from the insurgency, consistent with the Afghan

First Program. See App.9. After the military sponsored

Nayeb for employment, he was hired to work as a lowskilled laborer in the hazmat area of the Non-Tactical

Vehicle Yard. App.3. Before Nayeb began work in support

of the LOGCAP IV Contract, the military vetted and

interviewed him. App.46. The military never told Fluor

about Nayeb’s Taliban ties. App.9, 46-47.

After his initial screening, the military interviewed

Nayeb at least six times during his five years of

employment to decide whether Nayeb should retain base

access privileges. App.9, 47. Each time, the military

decided, for reasons not disclosed to Fluor, that Nayeb

should continue working on the base. App.47. The military

did not share the information it learned with Fluor.

App.47.

In March 2016, the military conducted a

counterintelligence screening of Nayeb. App.9, 47. During

that interview, the military found that Nayeb’s answers

were “trained and coached.” App.9, 47. Despite noting this

red flag, the military chose not to expel Nayeb. The military

again failed to warn Fluor of Nayeb’s terrorist ties and

suspicious behavior. See App.9, 47.

Throughout his time at Bagram Airfield, the military

authorized Nayeb to hold the “red badge” access level.

App.9. Thus, under the military’s policy, he generally

required an escort in all areas of the base, except at his

work facility. See App.6, 44-45.

Before the November 2016 attack, Fluor repeatedly

offered to provide additional escorting of Local National

employees, including surveillance of Local Nationals at

their work facilities. App.8, 44-45. The military rejected

Fluor’s proposals, citing fiscal constraints. See App.8, 4445. Fluor was thus prohibited from performing this

additional work, and Fluor had no discretion to provide

enhanced oversight of Local Nationals beyond the

oversight dictated by the military. App.44-45.

2. On November 12, 2016, the military’s base security

and force protection policies failed, with devastating

results. Nayeb detonated a suicide bomb, killing himself

and five others.

After Nayeb’s attack, the Army convened an

investigation pursuant to Army Regulation 15-6. App.8, see

also App.155-78. The Army designated most of the

resulting report (roughly 50 out of 70 pages) and thousands

of pages of investigative materials as classified and refused

to make them available for use in litigation. See App.15578.5

The heavily redacted version of the report contains a

conclusory allegation that “Fluor’s complacency” was “the

primary contributing factor” to the attack. App.10, 158.

The redacted report does not mention that the Army

rejected Fluor’s repeated proposals to perform additional

escorting, including at worksites. See App.8, 44-45. The

Army investigative team was apparently unaware of this

fact, as the report failed to note that the Army prohibited

Fluor from performing enhanced escorting, including

supervision, at work sites.

The redacted report also does not acknowledge that the

Army never warned Fluor that Nayeb had Taliban ties. See

App.9, 47. Thus, the redacted report does not attempt to

reconcile its conclusory findings related to Fluor with the

Army’s extensive and far superior knowledge regarding the

extraordinary threat posed by Nayeb.

5 In addition to convening an investigation, the military

also took swift action to change its base security policies.

Further demonstrating “[t]he military’s command

authority over Local National employment and supervision

at Bagram Airfield,” immediately after the attack the

military “required all Local Nationals to be escorted at all

times while on the base,” and the military terminated the

employment of over 1,000 Local Nationals, expelling them

from the base. App.25 (emphasis in original).

The redacted report cites “eight major findings” of

failures by the military, App.158-59, but the Army

redacted all details regarding its own failures. For

example, the redacted report references “force protection

gaps and seams that enabled the assailant to conduct the

attack,” App.157, yet the Army redacted all details

regarding “gaps and seams” in the military’s force

protection. The report also faults the military’s failure to

“properly enforce[]” “Local National access and

supervision” requirements; it cites the military’s lack of

“[u]nity of effort” and “unity of command”; and, it states

that “[c]ounterintelligence shortages impaired Coalition

Forces’ capability to screen Local National employees and

to identify Nayeb’s threat indicators.” App.158-59. Yet, the

Army redacted all details regarding these and all other

military deficiencies in carrying out the military’s core

responsibility to protect the base against the unique threat

posed by Nayeb.

The redacted report does not explain how Nayeb evaded

military screening and security to smuggle or otherwise

gain access to deadly explosives on a secure military base

in a war zone. See App.9. The redacted report does not

disclose the status of military intelligence in the days and

months preceding the attack. See App.9. Evidence suggests

the military had specific knowledge of a potential attack

the day before the bombing, but never warned Fluor of this

threat. See App.9.

The redacted report also includes findings that are

contradicted by evidence. During discovery, a retired

Lieutenant General testified that another Lieutenant

General, who led the Army’s investigation, “just got it

wrong.” App.64.

3. Petitioner filed suit in February 2019 in the U.S.

District Court for the District of South Carolina, asserting

tort claims that he acknowledged were “uniquely federal

claims.” App.39, n.2. Fluor moved to dismiss based on the

political question doctrine. The district court denied the

motion and the parties proceeded with discovery. App.11;

Hencely v. Fluor Corp. Inc., No. 6:19-cv-00489, 2020 WL

2838687, at *1 (D.S.C. June 1, 2020).6

In 2021, Fluor moved for summary judgment based on

“combatant activities” preemption, which the district court

granted. App.12, 38.7 Although the court did not revisit its

political question ruling, it emphasized that further

litigation would “offend separation-of-powers principles,”

and explained that harmful “military versus military”

testimony had already occurred. App.64-65. The district

court also noted that “core facts that would be central to

litigating this suit” remain classified, and the government’s

6 Dozens of plaintiffs also filed suit against Fluor in Texas

based on the same attack. See Loquasto v. Fluor Corp., No.

3:19-CV-1455-B, 2021 WL 75550 (N.D. Tex. Jan. 8, 2021).

The district court there dismissed the case based on the

political question doctrine. Id. Thereafter, rather than

pursue an appeal, many of the Loquasto plaintiffs re-filed

identical claims in the District of South Carolina, where

they have been consolidated and remain pending. See

Tangen v. Fluor Intercontinental, Inc., No. 6:21-cv-00335JD (D.S.C.).

7 Fluor

separately moved for partial judgment on the

pleadings on Petitioner’s breach-of-contract claim, which

the district court granted two days after granting summary

judgment. See App.11-12; Hencely v. Fluor Corp., No. 6:1900489, 2020 WL 3604781, at *1 (D.S.C. Aug. 13, 2021).

withholding of classified information “would present a

major hurdle, if not a prohibitive event, to the resolution of

this matter on the merits.” App.46-47 n.8.

4. Petitioner appealed to the Fourth Circuit. The court

of appeals first addressed the political question doctrine,

concluding that, “while the question may be closer than the

district court’s pre-discovery ruling suggested, we are not

convinced that deciding Hencely’s case would cause the

court to ‘inevitably be drawn into a reconsideration of

military decisions.’” App.19 (quoting Lane v. Halliburton,

529 F.3d 548, 563 (5th Cir. 2008)).

The Fourth Circuit then addressed federal preemption.

See App.19-31. Citing “the conflict between federal and

state interests in the realm of warfare,” the court analyzed

the case using the Fourth Circuit’s test for preemption—

the same test previously adopted by the D.C. Circuit and

the Third Circuit. App.21-22. Under that test, “[d]uring

wartime, where a private service contractor is integrated

into combatant activities over which the military retains

command authority, a tort claim arising out of the

contractor’s engagement in such activities shall be

preempted.” App.40 (quoting Burn Pit I, 744 F.3d at 349).

The Fourth Circuit concluded the first element was met,

which Petitioner does not contest: Fluor was “integrated

into combatant activities,” including the specific activities

at issue in this case. App.22-23 (quoting Burn Pit I, 744

F.3d at 351). The Fourth Circuit also determined that the

second element was met: “‘the military retained command

authority’ over Fluor’s supervision of Local National

employees on base.” App.23 (quoting Burn Pit I, 744 F.3d

at 351). The Fourth Circuit reasoned that the military

“controlled base security”; “reserved for itself decisions

about containing the security threat posed by hiring Local

Nationals to work on the military base”; “dictated when

and how the Local National must be supervised”; and

“exercised comprehensive command over Fluor’s

supervision of Local Nationals’ on-base movements and

activities.” App.23-24, 26.8

The Fourth Circuit denied a petition for rehearing on

November 26, 2024. App.37.

REASONS FOR DENYING THE PETITION

There Is No Circuit Split on the Question

Presented.

Petitioner seeks certiorari on the question whether

“Boyle should be extended” to the “FTCA’s combatantactivities exception to preempt state tort claims against a

government contractor.” Pet. i. But since the early 1990s,

five appellate courts have addressed this question, and all

have held—consistent with Boyle—that the FTCA’s

combatant-activities exception can preempt state-law tort

claims against contractors. The United States has also

consistently taken the same view.

Petitioner criticizes Boyle and the uniform precedent

applying Boyle to the combatant-activities exception as

relying on “unspoken penumbras,” Pet. 2, and “judicially

divined federal interest[s],” Pet. 15. But those decisions do

no such thing. They are firmly grounded in well-

8 The Fourth Circuit also addressed Petitioner’s breach-of-

contract claim and affirmed the district court’s judgment

on the pleadings in favor of Fluor. App.35.

established preemption principles and properly respect the

Federal Government’s exclusive warmaking powers.

The Circuits Have Uniformly Rejected

Petitioner’s Position.

Petitioner contends that the decision below “warrants

plenary review” because the Fourth Circuit’s judgment

“contradicts this Court’s bedrock preemption cases” and

“flouted” settled preemption rules by “displacing state law

without any statutory basis.” Pet. 14, 15, 22. Petitioner

argues that the decision below—and every other appellate

decision to date—“contravenes the foundational principle

articulated in this Court’s preemption cases.” Pet. 14.

Petitioner badly mischaracterizes the Fourth Circuit’s

ruling. Far from flouting this Court’s preemption decisions,

the Fourth Circuit faithfully applied them. In so doing, the

court of appeals reached the same result as every other

circuit to address whether the combatant-activities

exception can preempt claims against government

contractors:



D.C. Circuit. See Saleh v. Titan Corp., 580 F.3d 1, 5

(D.C. Cir. 2009) (“We agree with the defendants (and

the district judge) that plaintiffs’ common law tort

claims are controlled by Boyle.”), cert. denied, 564 U.S.

1037 (2011);



Second Circuit. See Badilla v. Midwest Air Traffic

Control Serv., Inc., 8 F.4th 105, 127 (2d Cir. 2021)

(“[W]e have no problem retaining Boyle’s useful

‘analytic process’ for determining whether federal law

preempts state-law claims against government

contractors.”), cert. denied, 143 S. Ct. 2512 (2023);



Third Circuit. See Harris v. Kellogg Brown & Root

Servs., Inc., 724 F.3d 458, 479 (3d Cir. 2013) (“To decide

how Boyle applies to § 2680(j), we must undertake the

same analytic process.”), cert. denied, 574 U.S. 1120

(2015);



Fourth Circuit. See Burn Pit I, 744 F.3d at 346 (“The

Supreme Court’s Boyle decision governs” the

interpretation of § 2680(j)), cert. denied, 574 U.S. 1120

(2015); and



Ninth Circuit. See Koohi v. United States, 976 F.2d

1328, 1336 (9th Cir. 1992) (“[T]he Supreme Court has

recognized that the exceptions to the FTCA may

preempt common law tort actions against defense

contractors under certain circumstances.” (citing Boyle,

487 U.S. at 511)), cert. denied, 508 U.S. 960 (1993).

As the United States recently explained, “[a]ll five

courts of appeals to consider the issue … have concluded

that this Court’s reasoning in Boyle also applies to the

FTCA’s combatant activities exception in certain

circumstances.” Br. for the United States as Amicus

Curiae, Midwest Air Traffic Control Serv., Inc. v. Badilla,

No. 21-867, 2023 WL 3022440, at *11 (U.S. Apr. 17, 2023)

(“U.S. Badilla Amicus Br.”). Moreover, the United States

agrees with the circuit courts and disagrees with

Petitioner. See, e.g., Br. for the United States as Amicus

Curiae, KBR, Inc. v. Metzgar, No. 13-1241, 2014 WL

7185601, at *14 (U.S. Dec. 16, 2014) (“the FTCA’s

combatant-activities exception codifies a federal interest

that would be frustrated if state-law tort liability applied

without limitation to battlefield contractors under the

military’s auspices”).

In short, five circuits have addressed whether—

consistent with Boyle—the FTCA’s combatant-activities

exception can preempt state-law claims against

contractors. All have held that it can. And this Court

denied petitions for certiorari seeking review of every one

of those decisions. The Court should do the same here.

The Circuits’ Uniform View In Favor of

Combatant-Activity Preemption Is

Correct.

By holding that preemption may be warranted in suits

arising out of combatant activities, the decision below and

other circuits are in accord with this Court’s longstanding

preemption principles, including Boyle. The rationale for

preemption in suits involving quintessential federal

prerogatives related to warfare and foreign policy is far

more compelling than the context presented in Boyle.

1. The decision below rests not only on Boyle, but also

on the U.S. Constitution and dozens of this Court’s

preemption decisions dating back more than a century. As

Judge Silberman observed, “even in the absence of Boyle,

the plaintiffs’ claims would be preempted” because “[t]he

states … constitutionally and traditionally have no

involvement in federal wartime policy-making.” Saleh, 580

F.3d at 11.

Most fundamentally, the decision below rests on the

structure of the Constitution, which grants the Federal

Government “supremacy of federal power in the area of

military affairs.” Perpich v. Dep’t of Def., 496 U.S. 334, 351

(1990); see also Torres, 597 U.S. at 590 (“[T]he

Constitution’s text, across several Articles, strongly

suggests a complete delegation of authority to the Federal

Government to provide for the common defense.”). While

committing “sweeping power” to the Federal Government,

“[t]he Constitution also divests the States of like power.”

Torres, 597 U.S. at 590-92 (“The States ultimately ratified

the Constitution knowing that their sovereignty would give

way to national military policy.”).9

Since the earliest days of the republic, this Court has

held that the Constitution preempts state law that

interferes with the legitimate exercise of federal authority.

See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,

405-07, 436 (1819) (holding the Constitution preempted

State’s attempt to tax federal bank because doing so would

constrain the constitutionally granted power of Congress to

“lay and collect taxes; to borrow money; to regulate

commerce; to declare and conduct a war; and to raise and

support armies and navies”). A long line of cases applying

“constitutional preemption” utilized “a relatively

straightforward application of the Supremacy Clause to

resolve conflicts between state law and the Constitution.”

Bradford R. Clark, Boyle as Constitutional Preemption, 92

Notre Dame L. Rev. 2129, 2130, 2134-41 (2017).

The Fourth Circuit’s decision follows this settled

precedent by precluding state interference with military

Given the Federal Government’s exclusive warmaking

powers, Petitioner is wrong to characterize the decision

below as finding preemption based on nothing more than a

“‘brooding federal interest,’” Pet. 3 (quoting Kansas v.

Garcia, 589 U.S. 191, 202 (2020)), or by “‘elevat[ing]

abstract and unelected legislative desires … above state

law,’” Pet. 18 (quoting Oklahoma v. Castro-Huerta, 597

U.S. 629, 642 (2022)).

and foreign policy matters that are exclusively committed

to the federal government by the Constitution. See, e.g.,

App.27 n.7 (“the rationales for tort law … are singularly

out of place in combat situations, where risk-taking is the

rule,” and “where the military took the calculated risk to

bring Local Nationals, including known former insurgents,

on base for employment in order to further its

counterinsurgency strategy in Afghanistan”) (cleaned up).

As the D.C. Circuit recognized, when it established the

combatant-activities preemption rule applied by the court

below, “[a]rguments for preemption of state prerogatives

are particularly compelling in times of war” because the

States “constitutionally and traditionally have no

involvement in federal wartime policy-making.” Saleh, 580

F. 3d at 11 (citing U.S. Const. art. I, § 10); see also Hines v.

Davidowitz, 312 U.S. 52, 63 (1941) (“Our system of

government … imperatively requires that federal power in

the field affecting foreign relations be left entirely free from

local interference.”); Am. Ins. Ass’n v. Garamendi, 539 U.S.

396, 413 (2003) (“There is, of course, no question that at

some point an exercise of state power that touches on

foreign relations must yield to the National Government’s

policy ….”) (cleaned up).

The decision below also comports with this Court’s

precedent regarding “obstacle” preemption. Contrary to

Petitioner’s argument, this Court has never held that

express statutory preemption language is an essential

prerequisite for preemption. E.g., Crosby v. Nat’l Foreign

Trade Council, 530 U.S. 363, 387-88 (2000) (“A failure to

provide for preemption expressly may reflect nothing more

than the settled character of implied preemption doctrine

that courts will dependably apply.”). Rather, the Court has

repeatedly emphasized that state laws that “interfere

with” federal interests, or that present “obstacles” to

federal objectives, may trigger preemption. See Barnett

Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25, 31

(1996) (explaining that where “explicit pre-emption

language does not appear, or does not directly answer the

question … courts must consider whether the federal

statute’s structure and purpose, or nonspecific statutory

language, nonetheless reveal a clear, but implicit, preemptive intent”) (cleaned up). Rather than focusing on

express language, “the purpose of Congress is the ultimate

touchstone in every pre-emption case.” Wyeth v. Levine, 555

U.S. 555, 565 (2009).

The court below, and every other appellate court to

address the issue, had no trouble identifying an important

federal interest implicated by tort suits arising out of

combatant activities. App.27-35. As the Fourth Circuit

explained, “[t]he federal government’s interest in

preventing military policy and base security from being

governed by the laws of fifty-one separate sovereigns is

‘obvious.’” App.35 (quoting Saleh, 580 F.3d at 11); see also

Harris, 724 F.3d at 480 (“We agree that the statute

represents a federal policy to prevent state regulation of

the military’s battlefield conduct and decisions.”).

Having identified a federal interest—the “touchstone”

for preemption—the Fourth Circuit did what this Court

has done repeatedly: It held that when state law stands as

an obstacle to the federal objective, preemption is

warranted. E.g., Farmers Educ. & Coop. Union of Am., N.

Dakota Div. v. WDAY, Inc., 360 U.S. 525, 535 (1959) (“we

have not hesitated to abrogate state law where satisfied

that its enforcement would stand as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress”) (cleaned up); Jones v. Rath Packing

Co., 430 U.S. 519, 526 (1977) (“Our task is to determine

whether under the circumstances of this particular case,

(the State’s) law stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress.”) (cleaned up).10

2. Petitioner contends that the decision below

“contradicts Boyle” and “erroneously extended Boyle to a

different statutory provision.” Pet. 21-22. According to

Petitioner, Boyle’s holding regarding “the FTCA’s

discretionary-function exception does not control here”

because “a decision ‘address[ing] a different statute

enacted for a different purpose … does not control.’” Id. at

17 (quoting Negusie v. Holder, 555 U.S. 511, 520 (2009))

(alterations in original).

But Boyle did not address a different statute enacted for

a different purpose. Both Boyle and the decision below

interpreted exceptions found in the same section of the

same statute. In Boyle, the Court interpreted the FTCA’s

discretionary-function exception, codified at 28 U.S.C.

§ 2680(a), and the decision below interpreted the FTCA’s

combatant-activity exception, codified at 28 U.S.C.

§ 2680(j). For that reason, courts have uniformly rejected

Petitioner’s view that Boyle is not controlling here. To the

10 As this Court has explained, adopting a preemption rule

is especially appropriate where, as here, the suit arises in

a context in which the States have had no historical role,

and the Federal Government has dominated. See United

States v. Locke, 529 U.S. 89, 108 (2000) (“an assumption of

nonpre-emption is not triggered when the State regulates

in an area where there has been a history of significant

federal presence”) (cleaned up).

contrary, just as uniquely federal interests underlying the

FTCA justified preemption in Boyle, so too here.

Despite framing his argument as whether Boyle should

be extended, in reality, Petitioner’s argument would

require overruling Boyle. Petitioner argues that this

Court’s

precedent

prohibits

combatant-activities

preemption because the FTCA excludes contractors by its

terms, and thus “no text enacted by Congress provides a

basis to declare Hencely’s state negligence claims against

Fluor, a contractor, preempted.” App.15 (emphasis

omitted). But Boyle rejected that very argument. 487 U.S.

at 503-04 (“Petitioner’s broadest contention is that, in the

absence of legislation specifically immunizing Government

contractors from liability for design defects, there is no

basis for judicial recognition of such a defense. We

disagree.”). As Boyle explained, this Court has long held

that certain areas involving “uniquely federal interests”

are “so committed by the Constitution and laws of the

United States to federal control that state law is preempted.” Id. at 504 (citing Texas Indus., Inc. v. Radcliff

Materials, Inc., 451 U.S. 630, 640 (1981); United States v.

Kimbell Foods, Inc., 440 U.S. 715, 726-29 (1979); Banco

Nacional v. Sabbatino, 376 U.S. 398, 426-27 (1964);

Howard v. Lyons, 360 U.S. 593, 597 (1959); Clearfield Trust

Co. v. United States, 318 U.S. 363, 366-67 (1943); D’Oench,

Duhme & Co. v. FDIC, 315 U.S. 447, 457-58 (1942)).11

11 Petitioner does not expressly argue for overruling Boyle.

For good reason: “stare decisis carries enhanced force when

a decision … interprets a statute.” Kimble v. Marvel Ent.,

LLC, 576 U.S. 446, 456 (2015). If Congress disagrees with

the decision in Boyle, “[i]t can change that if it likes. But

(continued…)

In accordance with Boyle, the decision below and other

appellate courts held that federal preemption may be

warranted—notwithstanding the absence of express

statutory language—because the military’s combatant

activities are clearly an area committed to federal control.

See, e.g., Burn Pit I, 744 F.3d at 347 n.10 (“Congress need

not act affirmatively to cause the preemption of state

law.”). The courts of appeals have thus focused the

preemption analysis on whether state-law claims conflict

with the congressional purposes underlying the statute,

and all courts have held that such a conflict may be present

in claims arising in wartime settings. See, e.g., Saleh, 580

F.3d at 7 (“[I]t is plain enough that Congress sought to

exempt combatant activities because such activities ‘by

their very nature should be free from the hinderance of a

possible damage suit.’” (quoting Johnson v. United States,

170 F.2d 767, 769 (9th Cir. 1948))); Harris, 724 F.3d at 480

(“The purpose underlying § 2680(j) … is to foreclose state

regulation of the military’s battlefield conduct and

decisions.”); see also Boyle, 487 U.S. at 511-12

(“[P]ermitting ‘second-guessing’ of these judgments …

through state tort suits against contractors would produce

the same effect sought to be avoided by the FTCA

exception.” (citing United States v. Varig Airlines, 467 U.S.

797, 814 (1984))).

3. If anything, the argument for federal preemption is

much stronger here than in Boyle. Petitioner’s lawsuit is a

case in point. Petitioner’s claims arose in a foreign country,

inside a secure U.S. military base, within an active war

until and unless it does, statutory stare decisis counsels

[this Court] staying the course.” Allen v. Milligan, 599 U.S.

1, 39 (2023).

zone. Petitioner alleges injuries caused by an enemy attack

carried out against U.S. forces by a Taliban operative who

U.S. commanders deliberately placed on the base in

furtherance of a counterinsurgency strategy. See App.2338. No arena is more immersed in exclusively federal

interests, nor more inappropriate for state-law regulation.

There can be no question, as the decision below held,

that claims arising on a foreign battlefield implicate

profound and uniquely federal interests. App.35; see, e.g.,

Ping v. United States, 130 U.S. 581, 605 (1889) (“[T]he

United States is not only a government, but it is a national

government, and the only government in this country that

has the character of nationality. It is invested with power

over all the foreign relations of the country, war, peace, and

negotiations and intercourse with other nations; all of

which are forbidden to the state governments.”); United

States v. Belmont, 301 U.S. 324, 330 (1937) (“Governmental

power over internal affairs is distributed between the

national government and the several states. Governmental

power over external affairs is not distributed, but is vested

exclusively in the national government.”).

And there can be no question, as the decision below

held, that allowing state-tort law to invade this province

raises the “obvious” potential for state-law interference

with these uniquely federal prerogatives. App.35; see, e.g.,

Al Shimari v. CACI Intern., Inc., 679 F.3d 205, 231 (4th

Cir. 2012) (en banc) (Wilkinson, J., dissenting) (“It defies

belief

that,

notwithstanding

the

constitutional

entrustment of foreign affairs to the national government,

Virginia silently and impliedly wished to extend the

application of its tort law to events overseas.”).

Petitioner argues that the Court should grant review

because Congress has not explicitly precluded States from

applying their tort law to regulate combatant activities on

battlefields in foreign countries. But the circuits have

uniformly and correctly held the opposite. The Petition

should be denied.

II.

The Different Formulations of the Test for

Combatant-Activity Preemption Are

Immaterial Here.

Petitioner contends that the circuits are split “3-1-1” on

the test for determining whether state-law claims are

preempted by the combatant-activity exemption. Pet. i.

But any difference in how courts have articulated the text

is irrelevant here. Petitioner’s claims would be barred

under all preemption formulations. For good reason: State

law has no role in governing an enemy attack on U.S. forces

in a foreign war zone—especially where, as here, the U.S.

military made a strategic decision to allow a former

Taliban fighter to join a contractor workforce without any

warning to the contractor. The federal interest in avoiding

state-law interference with such wartime prerogatives is

clear and obvious—not, as Petitioner proclaims, hanging

by a thread of “unspoken penumbras.” Pet. 2.

The Alleged Split Is Largely Illusory.

Petitioner points to a purported split in the appellate

courts’ articulation of the appropriate preemption test. Pet.

22-25. But as the United States has recently observed, “the

degree to which there is divergence among the courts of

appeals as to the proper formulation of state-law claims

against military contractors that do arise out of combatant

activities is uncertain.” U.S. Badilla Amicus Br., 2023 WL

3022440, at *17.

1. Petitioner acknowledges that three courts—the

Third, Fourth, and D.C. Circuits—have adopted the same

preemption test. See Pet. 23-24; U.S. Badilla Amicus Br.,

2023 WL 3022440, at *17 (“The D.C., Third and Fourth

Circuits have, broadly speaking, all adopted substantially

the same framework.”). That test hinges on whether the

military “retains command authority” over the contractor’s

combatant activities that gave rise to the state law claims

at issue. Saleh, 580 F.3d at 9; Harris, 724 F.3d at 480; Burn

Pit I, 744 F.3d at 349.

The Ninth Circuit analyzed combatant-activity

preemption decades prior to the D.C. Circuit’s Saleh

decision, in a much different factual setting. See Koohi, 976

F.2d at 1337. According to the Ninth Circuit, preemption is

warranted where state law claims arise out of “authorized

military action.” 976 F.2d at 1337. The Ninth Circuit’s

approach is consistent with the test later adopted by the

Third, Fourth, and D.C. Circuits. See Saleh, 580 F.3d at 7

(“As the Ninth Circuit has explained, the combatant

activities exception was designed ‘to recognize that during

wartime encounters[,] no duty of reasonable care is owed to

those against whom force is directed as a result of

authorized military action.’”) (quoting Koohi, 976 F.2d at

1337). There is no meaningful difference between

“authorized military action,” Koohi, 976 F.2d at 1337, and

military action over which the military “retains command

authority,” Saleh, 580 F.3d at 9.

Thus, in four of the five circuits that have addressed

combatant activities preemption, the tests used to

determine the scope of displacement are virtually identical.

2. The Second Circuit formulated a different test in

Badilla, but it is unclear whether that test will ever lead to

different outcomes. Badilla is minimally instructive here

for numerous reasons. First, it is not clear that the claims

in Badilla even arose out of combatant activities, which is

a threshold requirement in all circuits for the applicability

of combatant activities preemption. U.S. Badilla Amicus

Br., 2023 WL 3022440, at *7 (“Because respondents’ claims

do not arise out of the military’s combatant activities, this

case does not squarely present the question raised by

petitioner.”).

Second, as the United States noted, “it is not clear that

this different articulation would make a substantial

difference in practice.” Id. at *18. The Second Circuit’s

preemption formulation requires that “the military

specifically authorized or directed the action giving rise to

the claim.” Id. (cleaned up). Thus, consistent with the other

appellate courts, the Second Circuit’s test ultimately

hinges on whether the military exercised some level of

authority over the contractor’s activities. While the Second

Circuit purported to disagree with other circuits regarding

the proper scope of preemption, at present there is no

demonstrable difference in practice between the military

“retain[ing] command authority,” “authoriz[ing] military

action,” or “specifically authoriz[ing] or direct[ing] the

action.” Id. (“[I]t is not clear that the Third, Fourth, Ninth,

or D.C. Circuits would have reached a different result in

the circumstances of this case by applying the Second

Circuit’s formulation.”).

Petitioner’s Claims Are Preempted

Under Every Circuit’s Test.

The differences in the circuit courts’ articulation of the

combatant activities preemption test have no practical

impact in this case. Because the claims are barred under

Fourth Circuit precedent, which is consistent with the

Third, Ninth, and D.C. Circuits, see supra, the claims here

would be barred under all four courts’ precedents.

Petitioner does not contend otherwise.

Petitioner’s claims are also barred under the Second

Circuit’s preemption test. In Badilla, after recognizing the

potential for combatant activities preemption using the

Boyle framework described supra, the court articulated its

test as follows: “the combatant activities exception does not

displace state-law claims against contractors unless (1) the

claim arises out of the contractor’s involvement in the

military’s combatant activities, and (2) the military

specifically authorized or directed the action giving rise to

the claim.” Badilla, 8 F.4th at 128.

Petitioner’s claims satisfy both elements. First,

Petitioner concedes that his claims arose out of the

military’s combatant activities. App.23 (“We agree with

Hencely that Fluor was engaged in combatant activities at

Bagram Airfield and that the particular activity at issue in

Hencely’s lawsuit—supervising Local National employees

on a military base in a theater of war—so qualifies.”).

Second, the military specifically authorized and

directed the actions giving rise to Petitioner’s claims.

Petitioner asserts claims based on the allegedly negligent

hiring, supervision, and retention of Nayeb. But “the Army

instructed Fluor to hire Local Nationals, directed where

and how Fluor must escort and supervise Local Nationals,

and decided whether Local Nationals could continue to

access the base for employment.” App.26-27; see also

App.23 (“The military, independent of Fluor, screened and

approved Local Nationals for employment.”).12 By

challenging the hiring and retention of Nayeb, and the

decision to allow him to operate at his worksite without

supervision, Petitioner is challenging activities that the

military specifically authorized and directed.

Beyond that, Petitioner’s suit challenges the adequacy

of security at ECPs and within the perimeter of Bagram

Airfield, but “the military controlled base security,

including entry and exit,” and “[a]s part of its mandate over

base security, the military exercised comprehensive

command over Fluor’s supervision of Local Nationals’ onbase movements and activities.” App.24. By challenging

the level of security at the base, and by alleging negligence

in monitoring Nayeb’s movements on the base, Petitioner

again challenges activities that the military authorized

and directed.

Moreover, Petitioner seeks to impose a state-law duty

for Fluor to have provided an increased level of supervision

See also App.29 (“The military decided which Local

Nationals to permit and which to exclude at Bagram

Airfield; how to screen for explosives and other threats at

the base; which Local Nationals needed what levels of

access and eyes-on escorting; if escorting was needed, the

where, when, and how of such supervision; what items

Local Nationals were not permitted to handle while on

base; and what procedures were necessary to ensure Local

Nationals exited the base.”).

over Local National workers at the base, including

increased worksite supervision. But the military

specifically directed Fluor not to increase supervision of

Local Nationals inside the base and while at their work

facilities, despite Fluor requesting permission and

additional resources to do so. App.7-8 (“It is undisputed

that, before the bombing, Fluor had proposed providing

additional escort supervision of Local Nationals while at

their work facilities, but the Army rejected that proposal.”);

App.8 (noting testimony that “the price tag was going to be

excessive”). Imposition of any state-law duty to provide

such supervision would run headlong into a contrary

federal directive—one made by military commanders in the

midst of an active war, while facing complex policy

objectives and limited resources.

As a result, even under the Second Circuit’s purportedly

different formulation of the combatant activities

preemption test, Petitioner’s claims are still preempted by

federal law. The asserted circuit court split is thus

irrelevant to the outcome of this case.

III.

The Petition Presents Additional Vehicle

Problems.

This case is not a good vehicle for review because the

Court cannot reach the question presented if it lacks

subject matter jurisdiction. Respondents have argued that

this suit must be dismissed because it raises nonjusticiable political questions. App.12. And they would

continue to press that argument if the Court were to grant

certiorari.

1. Respondents have argued throughout the litigation

that Petitioner’s claims are barred by the political question

doctrine. Although the Fourth Circuit rejected the

argument, it acknowledged that “the question may be

closer than the district court’s pre-discovery ruling

suggested.” App.19. Under the political question doctrine,

“where there is ‘a textually demonstrable constitutional

commitment of the issue to a coordinate political

department; or a lack of judicially discoverable and

manageable standards for resolving it’ … [,] a court lacks

the authority to decide the dispute before it.” Zivotofsky v.

Clinton, 566 U.S. 189, 195, 198 (2012) (quoting Nixon v.

United States, 506 U.S. 224, 228 (1993)).

As the Fourth Circuit recognized, “‘the Constitution

delegates authority over military affairs to Congress and to

the President as Commander in Chief,’” and thus “‘[m]ost

military decisions are matters solely within the purview of

the executive branch’ and therefore present nonjusticiable

political questions.” App.13 (quoting Lebron v. Rumsfeld,

670 F.3d 540, 548 (4th Cir. 2012); In re: KBR, Inc., Burn

Pit Litig., 893 F.3d 241, 259 (4th Cir. 2018) (“Burn Pit II”).

The court noted that “[g]iven the modern military’s

reliance on contractors to support its mission, … ‘a military

contractor acting under military orders can also invoke the

political question doctrine as a shield under certain

circumstances.’” App.13 (quoting Lebron, 670 F.3d at 42223; Burn Pit II, 893 F.3d at 259).

2. Further litigation and any trial in this matter would

result in inappropriate judicial intrusion into matters

committed to the Political Branches, including secondguessing sensitive military judgments and harming

military discipline.

For example, if the case were to proceed, a core issue

would be whether Nayeb’s attack, and Petitioner’s

resulting injuries, were caused by the multitude of military

failures at Bagram Airfield. The heavily redacted Army

report listed “eight major findings” of failures by the

military, including “force protection gaps and seams that

enabled the assailant to conduct the attack.” App.157-59.

To explore and resolve the causal role of the military’s

deficient base security, the parties would necessarily seek

to compel testimony from base commanders, military

officers, and other military personnel responsible for safety

and security of personnel on the base. At depositions and,

if permitted, at trial, the wartime decisions by

servicemembers up and down the chain of command would

be scrutinized and evaluated by a judicial factfinder. As a

result, the Judiciary would inevitably interfere with

sensitive military judgments constitutionally committed to

the Executive Branch. See Tozer v. LTV Corp., 792 F.2d

403, 406 (4th Cir. 1986) (dismissing case against contractor

where trial of the case would “‘require members of the

Armed Services to testify in court as to each other’s

decisions and actions’” (quoting Stencel Aero Eng’g Corp. v.

United States, 431 U.S. 666, 673 (1977))).

This is not a hollow concern. During depositions in the

proceedings below, one retired Lieutenant General already

testified that another Lieutenant General “just got it

wrong” in the post-attack investigation report, which the

district court noted was a “preview” of what is to come if

further discovery were allowed. App.64; see also Saleh, 580

F.3d at 8 (noting “the prospect of military personnel being

haled into lengthy and distracting court or deposition

proceedings” that “will as often as not devolve into an

exercise in finger-pointing between the defendant

contractor and the military, requiring extensive judicial

probing of the government’s wartime policies,” which “will

surely hamper military flexibility and cost effectiveness”).

3. Beyond the political question doctrine, yet another

defense rooted in uniquely federal interests may bar this

proceeding altogether: the state secrets privilege. In the

proceedings below, the prospect of dismissal on this basis

was apparent, as the Executive Branch sought to curtail

the Judiciary’s intrusion into military affairs by refusing to

release classified information that is essential to the

resolution of this case. As the district court explained, “core

facts that would be central to litigating this suit” remain

classified, and the government’s withholding of classified

information “would present a major hurdle, if not a

prohibitive event, to the resolution of this matter on the

merits.” App.46-47 n.8.

The evidence being withheld by the Executive Branch

goes to the heart of Petitioner’s claims. App.46 (“The

details regarding Nayeb’s Taliban ties are classified, as are

other core facts that would be central to litigating this

suit.”). For example, the Army refused to release all

evidence, including documents and witness statements,

related to the military’s security failures—the failures that

allowed Nayeb to smuggle deadly explosives onto the base,

or to otherwise acquire them in order to perpetuate his

attack. The Army has refused to release all evidence

regarding the military’s intelligence in the days and weeks

leading up to the attack, though there is some indication in

the heavily redacted Army report that the Army had

“[c]ounterintelligence shortages” and failed to act on

warning signs and “to identify Nayeb’s threat indicators.”

App.158-59. The Army has also refused to release the

identities of apparent co-conspirators who facilitated

Nayeb’s attack. Without this pivotal evidence, and without

other evidence being withheld by the Army due to national

security concerns, this suit can never be litigated or tried,

and will have to be dismissed. See, e.g., Farnsworth

Cannon, Inc. v. Grimes, 635 F.2d 268, 281 (4th Cir. 1980)

(en banc) (“any attempt on the part of the plaintiff to

establish a prima facie case would so threaten disclosure of

state secrets that the overriding interest of the United

States and the preservation of its state secrets precludes

any further attempt to pursue this litigation”).

This is the state-law tort suit that Petitioner seeks to

revive: If the litigation is permitted, military commanders

would be forced to testify about how other military

commanders failed to stop an enemy attack inside an active

war zone; and, Executive Branch concerns over national

security threats would likely preclude access to core

information essential to any semblance of a fair trial.

Under any scenario, allowing state-law claims to proceed

would cause significant damage to federal interests and

run counter to the fundamental design of the Constitution.

CONCLUSION

For the foregoing reasons, the Court should deny the

petition for a writ of certiorari.

Respectfully submitted,