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 WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF AMICI CURIAE STATE OF

WEST VIRGINIA AND 19 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 ....... 11

II.

The decision below defeats the States’ interests

in affording relief and punishing wrongdoers ........ 16

Conclusion ........................................................................... 23

II

TABLE OF AUTHORITIES

Page(s)

Cases

Applied Equip. Corp. v. Litton Saudi

Arabia Ltd.,

869 P.2d 454 (Cal. 1994) ............................................... 20

Badilla v. Midwest Air Traffic Control

Serv., Inc.,

8 F.4th 105 (2d Cir. 2021)............................................. 15

Beneficial Fin. I, Inc. v. Windham,

847 S.E.2d 793 (S.C. Ct. App. 2020).............................. 1

Berkman v. United States,

957 F.2d 108 (4th Cir. 1992) ........................................... 6

Blanks v. Fluor Corp.,

450 S.W.3d 308 (Mo. Ct. App. 2014) ........................... 18

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) ............................... 18

Boyle v. United Technologies Corp.,

487 U.S. 500 (1988) ............................3, 11, 12, 13, 14, 15

Bruesewitz v. Wyeth LLC,

562 U.S. 223 (2011) ....................................................... 20

Caminetti v. United States,

242 U.S. 470 (1917) ......................................................... 6

Carter v. United States,

145 S. Ct. 519 (2025) ..................................................... 12

III

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) ......................................... 18

Columbia Venture, LLC v. Dewberry &

Davis, LLC,

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

Corr. Servs. Corp. v. Malesko,

534 U.S. 61 (2001) ......................................................... 15

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

562 U.S. 277 (2011) ......................................................... 8

Davies Warehouse Co. v. Bowles,

321 U.S. 144 (1944) ....................................................... 22

Dodd v. United States,

545 U.S. 353 (2005) ......................................................... 9

Dolan v. U.S. Postal Serv.,

546 U.S. 481 (2006) ....................................................... 10

Farmer v. United Bhd. of Carpenters &

Joiners of Am., Loc. 25,

430 U.S. 290 (1977) ....................................................... 18

Feres v. United States,

340 U.S. 135 (1950) ................................................. 12, 13

Fla. Lime & Avocado Growers, Inc. v.

Paul,

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

Harris v. Kellogg Brown & Root Servs.,

Inc.,

724 F.3d 458 (3d Cir. 2013) ........................................ 4, 6

IV

Henson v. Santander Consumer USA Inc.,

137 S. Ct. 1718 (2017) ................................................. 8, 9

Jones v. Reagan,

696 F.2d 551 (7th Cir. 1983) ......................................... 19

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

744 F.3d 326 (4th Cir. 2014) ........................................... 7

Koohi v. United States,

976 F.2d 1328 (9th Cir. 1992) ....................................... 10

Kossick v. United Fruit Co.,

365 U.S. 731 (1961) ....................................................... 17

Limtiaco v. Camacho,

549 U.S. 483 (2007) ......................................................... 6

Linden v. Cascade Stone Co.,

699 N.W.2d 189 (Wis. 2005) ......................................... 18

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) .......................................... 18, 19

Mangold v. Analytic Servs., Inc.,

77 F.3d 1442 (4th Cir. 1996) ......................................... 22

Martin v. United States,

145 S. Ct. 1689 (2025) ................................................... 17

Martinez v. California,

444 U.S. 277 (1980) ....................................................... 17

McMahon v. Presidential Airways, Inc.,

460 F. Supp. 2d 1315 (M.D. Fla. 2006) ....................... 16

Michigan v. Bay Mills Indian Cmty.,

572 U.S. 784 (2014) ......................................................... 8

V

Miller v. United States,

710 F.2d 656 (10th Cir. 1983) ....................................... 10

Molzof v. United States,

502 U.S. 301 (1992) ....................................................... 10

In re Oncor Elec. Delivery Co. LLC,

630 S.W.3d 40 (Tex. 2021) ...................................... 18, 20

Republic of Argentina v. Weltover, Inc.,

504 U.S. 607 (1992) ......................................................... 8

In re Rhone-Poulenc Rorer, Inc.,

51 F.3d 1293 (7th Cir. 1995) ......................................... 20

Rivera v. Cherry Hill Towers, LLC,

287 A.3d 772

(N.J. Super. App. Div. 2022) ........................................ 19

Rodriguez v. United States,

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

Ruff v. Reliant Transp., Inc.,

674 F. Supp. 3d 631 (D. Neb. 2023)............................. 17

Saleh v. Titan Corp.,

580 F.3d 1 (D.C. Cir. 2009) ................................ 6, 10, 21

Silkwood v. Kerr-McGee Corp.,

464 U.S. 238 (1984) ....................................................... 17

Steigman v. Outrigger Enters., Inc.,

267 P.3d 1238 (Haw. 2011) ........................................... 20

Thomas v. Wash. Gas Light Co.,

448 U.S. 261 (1980) ....................................................... 18

Twitter, Inc. v. Taamneh,

598 U.S. 471 (2023) ....................................................... 21

United States v. Johnson,

481 U.S. 681 (1987) ....................................................... 22

VI

United States v. Olson,

546 U.S. 43 (2005) ......................................................... 10

United States v. Orleans,

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

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

489 U.S. 235 (1989) ......................................................... 6

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) ........................................... 18

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

570 U.S. 338 (2013) ......................................................... 8

Va. Uranium, Inc. v. Warren,

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

Wyeth v. Levine,

555 U.S. 555 (2009) ....................................................... 11

Statutes

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

28 U.S.C. § 2671 .......................................................... 1, 4, 13

Other Authorities

Aaron J. Fickes,

Private Warriors and Political

Questions: A Critical Analysis of the

Political Question Doctrine’s

Application to Suits Against Private

Military Contractors,

82 TEMP. L. REV. 525 (2009) ........................................ 21

VII

Andrew Finkelman,

Suing the Hired Guns: An Analysis of

Two Federal Defenses to Tort Lawsuits

Against Military Contractors,

34 BROOK. J. INT’L L. 395 (2009) ................................. 21

Barry Kellman,

Judicial Abdication of Military Tort

Accountability: But Who Is to Guard

the Guards Themselves?,

1989 DUKE L.J. 1597 (1989) ......................................... 14

Ben Davidson,

Liability on the Battlefield:

Adjudicating Tort Suits Brought by

Soldiers Against Military Contractors,

37 PUB. CONT. L.J. 803 (2008) ..................................... 15

Combatant,

BLACK’S LAW DICTIONARY

(12th ed. 2024) ................................................................. 5

Donald H. Zeigler,

The New Activist Court,

45 AM. U. L. REV. 1367 (1996) ..................................... 14

Frank H. Easterbrook,

Statutes’ Domains,

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

Ian S. Speir,

Pulling Back the Covers: Saleh v. Titan

Corporation and (Near-) Blanket

Immunity for Military Contractors in

War Zones,

1 U. MIAMI NAT'L SEC. & ARMED

CONFLICT L. REV. 100 (2011) ...................................... 17

VIII

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) .......................................... 12

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) ....................................... 13

Louise Weinberg,

Federal Common Law,

83 NW. U. L. REV. 805 (1989) ....................................... 13

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 ........................................ 7

IX

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) .......................................... 9

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)....................................... 20

Moshe Schwartz & Jennifer Church,

Cong. Res. Serv., Department of

Defense’s Use of Contractors to

Support Military Operations:

Background, Analysis, and Issues for

Congress (May 17, 2023) .............................................. 22

Nicholas S. Zeppos,

Legislative History and the

Interpretation of Statutes: Toward A

Fact-Finding Model of Statutory

Interpretation,

76 VA. L. REV. 1295 (1990) ........................................... 13

Richard C. Ausness,

The Case for A “Strong” Regulatory

Compliance Defense,

55 MD. L. REV. 1210 (1996) .......................................... 17

X

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) ................................................................. 5

Ronald A. Cass & Clayton P. Gillette,

The Government Contractor Defense:

Contractual Allocation of Public Risk,

77 VA. L. REV. 257 (1991) ............................................. 14

Spencer R. Nelson,

Establishing A Practical Solution for

Tort Claims Against Private Military

Contractors: Analyzing the Federal

Tort Claims Act’s “Combatant

Activities Exception” Via A Circuit

Split,

23 GEO. MASON U. CIV. RTS. L.J. 109

(2012) ................................................................................ 9

Stephen I. Vladeck,

The Demise of Merits-Based

Adjudication in Post-9/11 National

Security Litigation,

64 DRAKE L. REV. 1035 (2016) .................................... 16

Terrie Hanna,

The Government Contract Defense and

the Impact of Boyle v. United

Technologies Corporation,

70 B.U. L. REV. 691 (1990) ........................................... 14

Thomas W. Merrill,

The Disposing Power of the

Legislature,

110 COLUM. L. REV. 452 (2010) ................................... 14

XI

Terrie Hanna,

The Government Contract Defense and

the Impact of Boyle v. United

Technologies Corporation,

70 B.U. L. REV. 691 (1990) ........................................... 14

Victoria Eatherton,

Is Derivative Sovereign Immunity

Jurisdictional? An Analysis and

Resolution of the Circuit Split,

47 PUB. CONT. L.J. 605 (2018) ..................................... 14

William P. Marshall,

Conservatives and the Seven Sins of

Judicial Activism,

73 U. COLO. L. REV. 1217 (2002) ................................. 14

INTRODUCTION

AND INTERESTS OF AMICI CURIAE

When Respondent Fluor Corporation, a military

contractor, hired Ahmad Nayeb, a former Taliban

insurgent, to work at Bagram Airfield in Afghanistan, a

tragic disaster resulted. Nayeb purportedly built a

suicide vest during his largely unsupervised shifts at

Fluor’s vehicle yard; he paired homemade explosives with

materials from the yard to do it. Pet. App. 9, 171-73. Fluor

then permitted Nayeb to walk—unsupervised—to a

different part of the base, where he detonated the bomb

near soldiers gathering for a Veterans Day 5K. The

explosion killed five and injured sixteen others.

Altogether, “poorly vetted access” and “unreasonable

supervision” allowed Nayeb to “operat[e] with impunity”

in preparing for and conducting his attack. Pet. App. 160.

“Fluor’s complacency and its lack of reasonable

supervision” was deemed “the primary contributing

factor” to the attack. Pet. App. 158.

Petitioner Winston Hencely was one of those wounded.

He sued Fluor in federal district court, relying on South

Carolina law. And at least on the facts alleged, his case

seemed strong. See Beneficial Fin. I, Inc. v. Windham,

847 S.E.2d 793, 805 (S.C. Ct. App. 2020) (describing

negligent hiring, supervision, and training claims). But

the district court entered judgment for the contractor, and

the Fourth Circuit affirmed. Pet. 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. Pet.

App. 21. By its express terms, the FTCA and its related

exceptions do 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

2

wanted to advance a “policy” of “foreclosing state

regulation” of anything related to wartime activities. Pet.

App. 20; see also Pet. 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, and the

Court should not endorse it.

In essentially rewriting several of the FTCA’s

provisions, the court ignored Congress’s careful

judgment. Congress expressly decided 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. It also conceived the Act’s

purpose too narrowly. 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,

3

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

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 reverse.

SUMMARY OF ARGUMENT

I. The FTCA does not apply to private, military

contractors. Even so, the Fourth Circuit 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. Indeed, this case reflects how purpose-focused

analysis can go awry, as the Fourth Circuit was mistaken

when it came to both the purpose of the FTCA’s

combatant-activities exception and the Act as a whole.

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 inappropriately 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,

4

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 improperly slammed the

door on any of these interests without any real

consideration of the consequences.

ARGUMENT

It’s understandable and appropriate to defer to our

country’s military decisionmakers.

But “[d]efense

contractors do not have independent constitutional

authority and are not coordinate branches of government

to which [courts] owe deference.” Harris v. Kellogg

Brown & Root Servs., Inc., 724 F.3d 458, 465 (3d Cir.

2013). The Fourth Circuit thus went too far in functionally

extending that deference to a private military contractor,

especially considering the contractor allegedly did not

comply with military contracts and orders. In doing so, it

wrongly rewrote the FTCA and squelched important state

interests.

I.

The decision below warps the FTCA using a

mistaken, purpose-driven approach.

A. The court effectively rewrote the statute.

1. The FTCA does not say that federal contractors

like Fluor 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. As even the

5

Fourth Circuit saw, “these provisions do not apply to

government contractors” “[b]y their terms.” Pet. App. 20.

So contractors like Fluor are expressly taken out of the

Act’s scope, including the Act’s exceptions to liability.

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 of Prisoners?, 19

PAC. MCGEORGE GLOB. BUS. & DEV. L.J. 467, 486 (2007).

Claims arising out of a contractor’s activities—

particularly those not on the battlefield, but back at the

base and inside the wire—do not rightfully “arise out” of

the military branches’ work. See Combatant, BLACK’S

LAW DICTIONARY (12th ed. 2024) (“‘Legitimate’

combatants are members of the armed forces or

uniformed members of a militia or volunteer corps, under

military command and subject to the laws of war.”). And

under the statute, it’s not enough for work to happen

alongside or even in service of combatant activities. In

that sense, contractors are doubly excluded.

These principles apply even when military contractors

operate under strict task orders or contracts. Federal

regulations that “fix specific and precise conditions to

implement federal objectives … do not convert the acts of

entrepreneurs … into federal governmental acts.”

United States v. Orleans, 425 U.S. 807, 816 (1976). “[A]

contractor [does not] lose[] its independence and become[]

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

6

government writes into the contract sufficient procedural

safeguards to ensure compliance with the terms of the

agreement.” Berkman v. United States, 957 F.2d 108, 114

(4th Cir. 1992).

These text-mandated limits 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). And 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 FTCA, and

thus its combatant-activities exception, does not apply.

2. The Fourth Circuit marched ahead anyway,

discerning a “federal policy of foreclosing state regulation

of the military’s battlefield conduct and decisions” from

the FTCA’s terms and then using that policy to effectively

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

27. It also passingly commented on the “rationales for

[state] tort law” against this federal “policy” and found

them wanting. Pet. 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 mistakenly used

“purpose” and “policy” to shape its conception of a

combatant-activities exception. See Harris, 724 F.3d at

480 (“The purpose underlying § 2680(j) therefore is to

7

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.” Too often, “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.” 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.

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

8

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.”

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).

This effort to push text aside for the sake of purpose

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

9

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., Pet. 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).

3. And as it turns out, even if purpose were the

guiding light, the Fourth Circuit misjudged the purposes

that would be relevant here.

“Congress has never declared that tort liability should

be completely removed from the battlefield or that private

military contractors should not be accountable in the

United States.” Spencer R. Nelson, Establishing A

Practical Solution for Tort Claims Against Private

Military Contractors: Analyzing the Federal Tort Claims

Act’s “Combatant Activities Exception” Via A Circuit

Split, 23 GEO. MASON U. CIV. RTS. L.J. 109, 132 (2012).

Perhaps a more reasonable understanding is that

Congress “recognize[d] that during wartime … no duty of

reasonable care is owed against whom force is directed.”

10

Koohi v. United States, 976 F.2d 1328, 1337 (9th Cir. 1992).

That understanding (though still textually unmoored) is at

least consistent with Congress’s more general goal

throughout the FTCA exceptions to “protect certain

important governmental functions and prerogatives from

disruption.” Molzof v. United States, 502 U.S. 301, 311

(1992) (emphasis added). Wartime enemies shouldn’t be

able to run to court. But even if it’s right that “the FTCA’s

policy is to eliminate the U.S. government’s liability for

battlefield torts. … it is not plain that the FTCA’s policy

is to eliminate liability when the alleged tortfeasor is a

contractor rather than a soldier.” Saleh, 580 F.3d at 26

(Garland, J., dissenting). And a governmental shield is a

far cry from immunizing all private federal contractors in

circumstances like this case.

What Congress has said is that the FTCA is meant to

engender more liability, not less. “[T]he central purpose

of the statute” is to “waive[]” immunity that might

otherwise apply in “sweeping language.” Dolan v. U.S.

Postal Serv., 546 U.S. 481, 492 (2006). That objective

explains why “[e]xceptions to the FTCA are to be

narrowly construed.” Miller v. United States, 710 F.2d

656, 662 (10th Cir. 1983). That goes for the combatantactivities exception, too. Likewise, another “purpose of

[the] FTCA was to make the tort liability of the United

States ‘the same as that of a private person under like

circumstance.’” United States v. Olson, 546 U.S. 43, 46-47

(2005) (quoting S. Rep. No. 1400, 79th Cong., 2d Sess., 32

(1946)). But nothing suggests Congress wanted to do the

converse—that is, to imbue private persons with the tort

immunities of the United States.

In the roughly 80 years since the FTCA was passed,

Congress could have amended it to extend protections to

contractors if it wished. But it hasn’t, even as contractors

11

have taken a greater role in military operations. This

area—private military contracting operations—also isn’t

one in which federal courts have long recognized a

pervasive federal interest that muscles state interests out

of the way. Rather, courts have extended the combatant

activities exception only within the last 20 years or so.

Congress thus couldn’t have assumed that courts had fully

and satisfactorily addressed the issue on their own. So

there was every reason for Congress to act if it “thought

state-law suits posed an obstacle to its objectives.” Wyeth

v. Levine, 555 U.S. 555, 574 (2009). But it hasn’t, and that

choice matters. Id. If anything, Congress has shown an

interest in making federal contractors more amenable to

domestic tort actions, not less. See, e.g., S. 526, 111th

Cong. (2009) (proposing to require contractors to submit

to domestic jurisdiction as to any case involving serious

bodily injury).

Altogether, the Fourth Circuit took the FTCA and

used it to refashion the rules into something closer to what

it felt the law should be. That was error—and the Court

should reverse.

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). Pet. 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.” Pet. App. 20

(characterizing Boyle). The Fourth Circuit “extended

Boyle’s logic to the FTCA’s combatant activities

exemption.” Pet. App. 21.

12

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.

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,

13

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

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,

14

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,

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);

15

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

“obviously intrudes upon state-created rights”).

So courts should not rush to extend Boyle to new

realms—but they have anyway. Boyle now extends to

farther reaches while simultaneously dispensing with

even the relatively minimal limits that it imposed. Lower

courts have “protect[ed] military contractors from statelaw 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); contrast with Corr. Servs. Corp. v. Malesko,

534 U.S. 61, 74 n.6 (2001) (saying that Boyle applies

“[w]here the government has directed a contractor to do

the very thing that is the subject of the claim”). 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 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).

In other words, the combatant-activities exception has

come to offer the sort of unjustified, blanket immunity for

contractors that even Boyle sought to avoid.

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

16

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) [can] 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).

* * *

Altogether, “[t]here is no express authority for

judicially intermixing the government contractor defense

and the combatant activities exception; nor is there

authority for bestowing a private actor with the shield of

sovereign immunity.” McMahon, 460 F. Supp. 2d at 1330.

The Court should do no more than acknowledge as much

and reverse.

II.

The decision below defeats the States’ interests

in affording relief and punishing wrongdoers.

Aside from a lack of concern for Congress, a contractor

defense of this kind also reflects a lack of concern for the

States.

Courts embracing it have focused almost

exclusively on the federal interests at stake. Yet the

question implicates important state interests, too—

interests that the Fourth Circuit literally, and

disappointingly, relegated to a footnote. See Pet. App. 27

n.7. At the very least, courts engaging with these various

interests should have employed a process “of

accommodation” that accounts for the “divergent

17

interests” of “two sovereignties” in an issue “as to which

both have some concern.” Kossick v. United Fruit Co.,

365 U.S. 731, 739 (1961); see also Ian S. Speir, Pulling

Back the Covers: Saleh v. Titan Corporation and (Near-)

Blanket Immunity for Military Contractors in War

Zones, 1 U. MIAMI NAT'L SEC. & ARMED CONFLICT L.

REV. 100, 129 (2011) (arguing that courts have

inappropriately overlooked state interests when balancing

interests). And for the most part, the FTCA is written in

a way to avoid any displacement of state law. See Martin

v. United States, 145 S. Ct. 1689, 1700-01 (2025). Had

lower courts properly accounted for the States’ interests,

then, they would not have adopted the sweeping revision

of the FTCA that we see here.

The lower courts’ minimal regard for state interests is

particularly mistaken given that Congress has often

sought to respect “traditional principles of state tort law.”

Silkwood v. Kerr-McGee 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). In fact, the Court has said

that a “State’s interest in fashioning its own rules of tort

law is paramount to any discernible federal interest,

except perhaps an interest in protecting the individual

citizen from state action that is wholly arbitrary or

irrational.” Martinez v. California, 444 U.S. 277, 282

(1980).

To start, States have a substantial interest in seeing

that persons within their borders receive compensation

for injury. The Court has recognized that interest in all

18

kinds of spheres—“physical injury,” emotional “abuse,” or

“damage to reputation” included. Farmer v. United Bhd.

of Carpenters & Joiners of Am., Loc. 25, 430 U.S. 290, 302

(1977); 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.

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

19

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

(seeing as how they came from a surprise attack from a

friendly). 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

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., Pet.

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

20

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 Enters., 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.”). The litigation process itself might even

spur beneficial outcomes by bringing problematic or

destructive behavior on the part of defendants to light. Cf.

Bruesewitz v. Wyeth LLC, 562 U.S. 223, 273 (2011)

(“[C]ourt actions are essential because they provide

injured persons with significant procedural tools—

including, most importantly, civil discovery.”).

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,

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

21

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 Pet. 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. And yes, some of the ugly realities of war might justify

conduct that might otherwise be punishable during

peacetime—so “modified [tort] standards” might be

necessary in this context. Aaron J. Fickes, Private

Warriors and Political Questions: A Critical Analysis of

the Political Question Doctrine’s Application to Suits

Against Private Military Contractors, 82 TEMP. L. REV.

525, 556 (2009). 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. Contractors can and should still

be held to account when they violate their most basic

obligations. The Fourth Circuit foreclosed even that.

Further, the federal interest in not turning war into

another front for litigation can be vindicated through less

destructive means than blanket preemption. See Andrew

Finkelman, Suing the Hired Guns: An Analysis of Two

Federal Defenses to Tort Lawsuits Against Military

22

Contractors, 34 BROOK. J. INT’L L. 395, 446 (2009) (“[I]t is

unclear that combatant-activities preemption is necessary

to [protect the federal government’s] interests.”).

Contractors could still invoke longstanding concepts like

the political question doctrine (as Fluor tried to do here),

the law-of-war defense, and intra-military immunity

might be invoked if a tort action steers too far into military

matters. See also generally, e.g., Mangold v. Analytic

Servs., Inc., 77 F.3d 1442 (4th Cir. 1996) (affording

immunity to government contractor performing certain

delegated governmental functions). Because these

doctrines and defenses contemplate more fact-specific

inquiries, they at least allow room for the state interests

reflected in tort law to be better considered. See Davies

Warehouse Co. v. Bowles, 321 U.S. 144, 155 (1944)

(explaining that a federal interest in uniformity and

predictability cannot be advanced at the cost of state law’s

separate operation).

And truth is, the federal interest in keeping courts

away from the battlefield is likely overstated. “[C]ivilian

courts” are “frequently” called on to “examine military

decisionmaking and thus influence military discipline”

even under the present regime. United States v. Johnson,

481 U.S. 681, 700 (1987) (Scalia, J., dissenting). The

military has continued to function effectively. Indeed,

taking a completely hands-off approach to injuries like

those seen here might be counterproductive to military

operations, as morale might only suffer if servicemembers

come to believe that contractors can effectively act with

impunity during wartime. Id. More directly, less

oversight and accountability for contractors can result in

direct harm to U.S. military interests by radicalizing

enemies. See, e.g., Moshe Schwartz & Jennifer Church,

Cong. Res. Serv., Department of Defense’s Use of

Contractors to Support Military Operations: Background,

23

Analysis, and Issues for Congress 7 (May 17, 2023)

(“Abuses committed by contractors … can also strengthen

anti-American insurgents[,] … [and] [i]insufficient

contractor oversight can also undermine military

operations.”); Finkelman, supra, at 452 (“Observers agree

that the culture of impunity among contractors has

severely damaged the U.S. war effort, particularly in

Iraq.”).

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

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

did not, leading it to a mistaken result.

CONCLUSION

The Court should reverse.

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

24

ADDITIONAL COUNSEL

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Attorney General

State of Alabama

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Attorney General

State of Louisiana

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Attorney General

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Attorney General

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LYNN FITCH

Attorney General

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Attorney General

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Attorney General

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Attorney General

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Attorney General

State of Indiana

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Attorney General

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Attorney General

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25

GENTNER DRUMMOND

Attorney General

State of Oklahoma

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Attorney General

State of Oregon

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Attorney General

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