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; FLUOR ENTERPRISES, INC.;

FLUOR INTERCONTINENTAL, INC.; FLUOR GOVERNMENT

GROUP INTERNATIONAL, INC.,

Respondents.

_________

On Writ of Certiorari to the United States Court of

Appeals for the Fourth Circuit

_________

BRIEF FOR AMICI CURIAE THE CENTER FOR

MILITARY LAW AND POLICY, VETERANS

LEGAL SERVICES, THE MILITARY-VETERANS

ADVOCACY, INC., AND THE JEWISH WAR

VETERANS OF THE UNITED STATES OF

AMERICA IN SUPPORT OF PETITIONER

_________

HARVEY WEINER

Peabody & Arnold LLP

600 Atlantic Ave.

Boston, MA 02210

hweiner@peabodyarnold.com

Counsel for The Jewish War

Veterans of the United States of

America

NOAH HEINZ

Counsel of Record

ALBERT PAK

Pak Heinz PLLC

20 F Street NW 7th Fl.

Washington, DC 20001

(202) 505-6354

noah.heinz@pakheinz.com

Counsel for Amici Curiae

ii

TABLE OF CONTENTS

Page

Table of Authorities ................................................ iii

Interest of Amici Curiae ........................................... 1

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

Argument ................................................................... 5

I. Stare Decisis Is Insufficient to Retain

Boyle. ............................................................... 5

A. Boyle’s Reasoning Is Remarkably

Poor. ......................................................... 5

B. Boyle Has Proven Unworkable. .............. 9

1.

Lower courts cannot agree how to

apply Boyle. .......................................... 9

2.

Defendants

use

Boyle

for

jurisdictional

gamesmanship,

flooding federal courts. ...................... 12

C. Boyle Is Fatally Inconsistent With

Recent Precedent. .................................. 15

1.

Modern statutory interpretation is

irreconcilable with Boyle. .................. 15

2.

Modern federal common law cases

have left Boyle an outlier. ................. 17

D. Reliance Interests Are Low. .................. 23

II. If the Court Keeps Boyle, It Should Stop

Lower Courts From Extending Boyle to

New Contexts................................................ 25

Conclusion ............................................................... 26

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Air & Liquid Sys. Corp. v. DeVries,

586 U.S. 446 (2019) .............................................. 22

Allen v. Milligan,

599 U.S. 1 (2023) .................................................. 24

Am. Airlines, Inc. v. Wolens,

513 U.S. 219 (1995) .............................................. 20

Am. Dredging Co. v. Miller,

510 U.S. 443 (1994) .............................................. 22

Am. Elec. Power Co. v. Connecticut,

564 U.S. 415 (2011) .............................................. 20

Arkansas v. Oklahoma,

503 U.S. 91 (1992) ................................................ 20

Atherton v. F.D.I.C.,

519 U.S. 213 (1997) .................................. 17, 20, 21

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

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

Bateman Eichler, Hill Richards, Inc. v. Berner,

472 U.S. 299 (1985) .............................................. 21

Bennett v. MIS Corp.,

607 F.3d 1076 (6th Cir. 2010) ............................. 14

Black & Decker Disability Plan v. Nord,

538 U.S. 822 (2003) .............................................. 21

iv

Bostock v. Clayton Cnty., Georgia,

590 U.S. 644 (2020) .............................................. 16

Boyle v. United Technologies Corp.,

487 U.S. 500 (1988) .................................. 3, 6, 7, 24

Browning-Ferris Indus. of Vermont, Inc. v. Kelco

Disposal, Inc.,

492 U.S. 257 (1989) .............................................. 19

Cabalce v. Thomas E. Blanchard & Assocs., Inc.,

797 F.3d 720 (9th Cir. 2015) ............................... 10

Carley v. Wheeled Coach,

991 F.2d 1117 (3d Cir. 1993) .............................. 10,

Cassirer v. Thyssen-Bornemisza Collection

Found.,

596 U.S. 107 (2022) .............................................. 19

City of Sherrill, N.Y. v. Oneida Indian Nation of

New York,

544 U.S. 197 (2005) .............................................. 21

Conner v. Quality Coach, Inc.,

750 A.2d 823 (Pa. 2000) ......................................... 9

Consol. Rail Corp. v. Gottshall,

512 U.S. 532 (1994) .............................................. 22

Cuomo v. Crane Co.,

771 F.3d 113 (2d Cir. 2014) ................................. 13

DeFiore v. SOC LLC,

85 F.4th 546 (9th Cir. 2023) ................................ 15

v

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ................................................ 8

Dorse v. Eagle-Picher Indus., Inc.,

898 F.2d 1487 (11th Cir. 1990) ........................... 11

Egbert v. Boule,

596 U.S. 482 (2022) .................................... 5, 19, 25

Empire Healthchoice Assur., Inc. v. McVeigh,

547 U.S. 677 (2006) .............................................. 20

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) .............................................. 16

Erie R. Co. v. Tompkins,

304 U.S. 64 (1938) ................................................ 18

Florida v. Georgia,

585 U.S. 803 (2018) .............................................. 22

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) ................................................ 6

Glassco v. Miller Equip. Co.,

966 F.2d 641 (11th Cir. 1992) ............................. 11

Goldey v. Fields,

606 U.S. 942 (2025) .............................................. 19

Graham Cnty. Soil & Water Conservation Dist. v.

U.S. ex rel. Wilson,

545 U.S. 409 (2005) .............................................. 21

Granite Rock Co. v. Int’l Bhd. of Teamsters,

561 U.S. 287 (2010) .............................................. 20

vi

Graves v. 3M Co.,

17 F.4th 764 (8th Cir. 2021) .......................... 14, 15

Great Lakes Ins. SE v. Raiders Retreat Realty

Co., LLC,

601 U.S. 65 (2024) ................................................ 22

Harduvel v. Gen. Dynamics Corp.,

878 F.2d 1311 (11th Cir. 1989) ........................... 12

Hernandez v. Mesa,

589 U.S. 93 (2020) .......................................... 16, 17

In re 3M Combat Arms Earplug Prods. Liab.

Litig.,

474 F. Supp. 3d 1231 (N.D. Fla. 2020) ............... 14

In re 3M Combat Arms Earplug Prods. Liab.

Litig.,

No. 3:19-md-2885, 2020 WL 365617 (N.D. Fla.

Jan. 22, 2020) ....................................................... 14

In re Hawaii Fed. Asbestos Cases,

960 F.2d 806 (9th Cir. 1992) ............................... 10

In re World Trade Ctr. Disaster Site Litig.,

521 F.3d 169 (2d Cir. 2008) ................................. 12

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) .............................................. 20

Isaacson v. Dow Chem. Co.,

517 F.3d 129 (2d Cir. 2008) ................................. 15

Jackson v. Alert Fire & Safety Equip., Inc.,

567 N.E.2d 1027 (Ohio 1991) ................................ 9

vii

Janus v. Am. Fed’n of State, Cnty., & Mun.

Emps., Council 31,

585 U.S. 878 (2018) ................................................ 5

Jesner v. Arab Bank, PLC,

584 U.S. 241 (2018) .............................................. 18

Kamen v. Kemper Fin. Servs., Inc.,

500 U.S. 90 (1991) ................................................ 21

Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. 108 (2013) .............................................. 18

Klaxon Co. v. Stentor Elec. Mfg. Co.,

313 U.S. 487 (1941) .............................................. 19

Knick v. Twp. of Scott, Pennsylvania,

588 U.S. 180 (2019) ................................................ 5

Latiolais v. Huntington Ingalls, Inc.,

951 F.3d 286 (5th Cir. 2020) ............................... 15

Leegin Creative Leather Prods., Inc. v. PSKS,

Inc.,

551 U.S. 877 (2007) .............................................. 24

Loc. 144 Nursing Home Pension Fund v.

Demisay,

508 U.S. 581 (1993) .............................................. 20

Metro-N. Commuter R. Co. v. Buckley,

521 U.S. 424 (1997) .............................................. 22

Michigan v. Bay Mills Indian Cmty.,

572 U.S. 782 (2014) .............................................. 25

viii

Miller v. United Techs. Corp.,

660 A.2d 810 (Conn. 1995) .................................. 11

Moore v. Elec. Boat Corp.,

25 F.4th 30 (1st Cir. 2022) .................................. 15

N. Dakota State Bd. of Pharmacy v. Snyder’s

Drug Stores, Inc.,

414 U.S. 156 (1973) .............................................. 25

Nestle USA, Inc. v. Doe,

593 U.S. 628 (2021) .............................................. 19

Nielsen v. George Diamond Vogel Paint Co.,

892 F.2d 1450 (9th Cir. 1990) ............................. 10

Norfolk & W. Ry. Co. v. Ayers,

538 U.S. 135 (2003) .............................................. 22

Norfolk S. Ry. Co. v. Kirby,

543 U.S. 14 (2004) ................................................ 22

O’Melveny & Myers v. F.D.I.C.,

512 U.S. 79 (1994) ........................................ 6, 7, 20

Papp v. Fore-Kast Sales Co.,

842 F.3d 805 (3d Cir. 2016) ................................. 15

Richardson v. McKnight,

521 U.S. 399 (1997) .............................................. 22

Rodriguez v. F.D.I.C.,

589 U.S. 132 (2020) .............................................. 19

Ruppel v. CBS Corp.,

701 F.3d 1176 (7th Cir. 2012) ............................. 15

ix

S. Dakota v. Wayfair,

585 U.S. 162 (2018) ........................................ 23, 24

Sawyer v. Foster Wheeler LLC,

860 F.3d 249 (4th Cir. 2017) ................................ 15

Rush Prudential HMO, Inc. v. Moran,

536 U.S. 355 (2002) .............................................. 21

Semtek Int’l Inc. v. Lockheed Martin Corp.,

531 U.S. 497 (2001) .............................................. 21

Snell v. Bell Helicopter Textron, Inc.,

107 F.3d 744 (9th Cir. 1997) ............................... 11

Sosa v. Alvarez-Machain,

542 U.S. 692 (2004) ........................................ 18, 25

Stewart Org., Inc. v. Ricoh Corp.,

487 U.S. 22 (1988) ................................................ 20

Tate v. Boeing Helicopters,

55 F.3d 1150 (6th Cir. 1995) ......................... 11, 12

Taylor v. Sturgell,

553 U.S. 880 (2008) .............................................. 20

Textile Workers Union of Am. v. Lincoln Mills of

Ala.,

353 U.S. 448 (1957) .............................................. 18

Timberline Air Serv., Inc. v. Bell HelicopterTextron, Inc.,

884 P.2d 920 (Wash. 1994) .................................. 11

x

Trans World Airlines, Inc. v. Indep. Fed’n of

Flight Attendants,

489 U.S. 426 (1989) .............................................. 22

Trevino v. Gen. Dynamics Corp.,

865 F.2d 1474 (5th Cir. 1989) ............................. 13

United States v. California,

507 U.S. 746 (1993) .......................................... 7, 22

United States v. Great N. Ry. Co.,

343 U.S. 562 (1952) .............................................. 16

United States v. Ross,

456 U.S. 798 (1982) .............................................. 23

Virginia v. Maryland,

540 U.S. 56 (2003) ................................................ 22

Yamaha Motor Corp., U.S.A. v. Calhoun,

516 U.S. 199 (1996) .............................................. 22

Yeroshefsky v. Unisys Corp.,

962 F. Supp. 710 (D. Md. 1997) ........................... 11

Statutes

6 U.S.C. § 442 ............................................................. 17

10 U.S.C. § 1089(a) .................................................... 17

28 U.S.C. § 1350 ......................................................... 18

28 U.S.C. § 1447(d) .................................................... 14

28 U.S.C. § 1346(b) .................................................... 17

xi

42 U.S.C. § 2210 ......................................................... 17

50 U.S.C. § 2783 ......................................................... 17

Other Authorities

2023 Year-End Report on the Federal Judiciary...... 14

Comm’n on Wartime Contracting in Iraq and

Afg., Transforming Wartime Contracting:

Controlling Costs, Reducing Risks (2011) ........... 23

Thomas W. Merrill, The Disposing Power of the

Legislature, 110 Colum. L. Rev. 452 (2010) .......... 9

Caleb Nelson, The Legitimacy of (Some) Federal

Common Law, 101 Va. L. Rev. 1 (2015) ................ 8

Nicholas S. Zeppos, Legislative History and the

Interpretation of Statutes: Toward A FactFinding Model of Statutory Interpretation, 76

Va. L. Rev. 1295 (1990) .......................................... 8

Gil Seinfeld, The Good, the Bad, and the Ugly:

Reflections of A Counterclerk, 114 Mich. L.

Rev. First Impressions 111 (2016) ......................... 9

IN THE

Supreme Court of the United

States

_________

WINSTON TYLER HENCELY,

Petitioner,

v.

FLUOR CORPORATION; FLUOR ENTERPRISES, INC.;

FLUOR INTERCONTINENTAL, INC.; FLUOR GOVERNMENT

GROUP INTERNATIONAL, INC.,

Respondents.

_________

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

_________

BRIEF FOR AMICI CURIAE THE CENTER FOR

MILITARY LAW AND POLICY, VETERANS

LEGAL SERVICES, THE MILITARY-VETERANS

ADVOCACY, INC., AND THE JEWISH WAR

VETERANS OF THE UNITED STATES OF

AMERICA IN SUPPORT OF PETITIONER

_________

INTEREST OF AMICI CURIAE1

The Center for Military Law and Policy is a

not-for-profit think tank that strengthens legal

protections for servicemembers and veterans.

Dr. Dwight Stirling, a law professor and reserve JAG

officer, founded and leads the Center. The Center

engages in research, educational initiatives, and policy

advocacy, including on the Feres Doctrine, sexual

assault, and reducing the civilian-military gap by

1 No counsel for a party authored any part of this brief. No entity

or person other than amici or their counsel made any monetary

contribution intended to fund its preparation or submission.

(1)

2

educating the civilian population about military life

and culture.

Veterans Legal Services (VLS) is a non-profit

located in Boston, Massachusetts, devoted to helping

veterans overcome adversity by providing free civil

legal aid that honors their service and responds to

their distinctive needs. More than half of VLS’s clients

have a disability, often caused by their service, and

many have experienced homelessness. VLS draws on

its experience representing individual veterans in a

variety of civil legal matters to inform its legislative,

regulatory, and appellate advocacy, promoting policy

change to benefit veterans.

The Military-Veterans Advocacy Inc. (MVA) is

a nonprofit organization that litigates and advocates

for servicemembers and veterans. Established in 2012

in Slidell, Louisiana, MVA educates servicemembers

and veterans concerning rights and benefits,

represents veterans contesting the improper denial of

benefits, and advocates for legislation to protect and

expand servicemembers’ and veterans’ rights and

benefits.

The Jewish War Veterans of the United States

of America (JWV), organized in 1896 by Jewish

veterans of the Civil War, is the oldest active national

veterans’

service

organization

in

America.

Incorporated in 1924, and chartered by an act of

Congress in 1984, see 36 U.S.C. §110103, JWV’s

objectives include to “encourage the doctrine of

universal liberty, equal rights, and full justice to all

men,” id. §110103(5) and to “preserve the spirit of

comradeship by mutual helpfulness to comrades and

their families,” id. §110103(7). The JWV has long

3

advocated that all servicemembers and veterans

receive the benefits to which they are entitled.

SUMMARY OF THE ARGUMENT

Attempting to follow Boyle v. United Technologies

Corp., 487 U.S. 500 (1988), lower courts have invented

many different flavors of government contractor

defenses. Among the worst is the combatant activities

defense, which is unfaithful to the conflict preemption

principles from Boyle. The Petitioner’s brief explains

powerfully why the combatant activities defense has

no basis in any statute and does not follow from Boyle.

There is a reason lower courts have misapplied

Boyle in mutually contradictory ways—that reason is

Boyle’s failure to ground its rule of decision in any

positive source of federal law. The Court should

overturn it. Stare decisis factors favor overturning

Boyle because its reasoning is poor, its logic

unworkable, and its method out-of-step.

First, Boyle is poorly reasoned. It begins by

positing federal interests in the interpretation of

federal contracts and in the civil liability of federal

officers, neither of which applied. It then merges these

two interests by claiming that state law will induce

contractors to change the price or terms of procuring

equipment and deems this a direct conflict between

state law and federal interests. After choosing a

balance between the state law and federal interests

that seemed reasonable to the Court, it plucks a

facially inapplicable Federal Tort Claims Act

exception, insisting that this unrelated provision

properly implements federal common law. This policydriven, results-first analysis is the epitome of poor

legal reasoning.

4

Second, Boyle’s rule of decision is unworkable.

Circuit splits have multiplied on issue after issue as

an unavoidable consequence of requiring lower courts

to employ a rule that is unclear and fundamentally not

amenable to judicial application.

The federal

contractor defense also provides defendants

opportunities for jurisdictional gamesmanship. Under

current doctrine, most contractors can make a nonfrivolous showing of federal officer removal

jurisdiction, relying on Boyle as a federal defense. This

delays cases, multiplies appeals, clogs the federal

courts, and robs plaintiffs of their forum of choice.

Third, and most important, Boyle is irreconcilable

with the Court’s recent precedent. When interpreting

statutes, this Court now always starts with the text

and eschews policy arguments. Boyle starts with

policy and never addresses the FTCA provision

excluding government contractors. The clear trend of

this Court’s case law is to cut back on federal common

law because it lacks secure grounding in a positive

source of law, or, where there must be federal common

law, to adopt state law to fill gaps. Boyle ignored this

insight, falling prey to the impulse to make up

muscular and uniform federal law based on judicially

posited federal interests.

Legitimate reliance is minor here. The defense is

unpredictable anyway, and the federal government is

increasingly purchasing commercial products to which

Boyle does not apply.

Only overturning Boyle will fully cure the evergrowing, internally inconsistent cancer of Boyleinspired lower court rulings. But if the Court is not

ready to overturn Boyle outright in this case, it should

borrow its approach to confining cases like Bivens to

5

specified contexts. See Egbert v. Boule, 596 U.S. 482,

492 (2022). Under that model, it would decline (for

now) to overturn Boyle, but would consider the

combatant activities exception a new context, and

decline to extend Boyle in that new context in light of

special factors counseling hesitation. The Court

should make clear that the lower courts should apply

that framework, too, and confine Boyle strictly to

design defects involving military equipment with a

tradeoff between safety and combat effectiveness.

ARGUMENT

Reversing the judgment below would be the correct

ruling for this case and would chasten courts away

from the combatant activities exception. But it would

leave scores of cases applying Boyle in a panoply of

different contexts. Those cases too should be reversed,

because the Court should overturn Boyle.

I. Stare Decisis Is Insufficient to Retain Boyle.

Though this Court overturns precedent only

infrequently, this is the rare case that warrants it.

This Court has “identified several factors to consider

in deciding whether to overrule a past decision,

including ‘the quality of [its] reasoning, the

workability of the rule it established, its consistency

with other related decisions, . . . and reliance on the

decision.” Knick v. Twp. of Scott, Pennsylvania, 588

U.S. 180, 203 (2019) (quoting Janus v. Am. Fed’n of

State, Cnty., & Mun. Emps., Council 31, 585 U.S. 878,

917 (2018)). All favor overturning Boyle.

A. Boyle’s Reasoning Is Remarkably Poor.

To start, Boyle is so unpersuasive that even readers

who agree with the outcome feel there must be another

way to get there. The trouble starts at the threshold

6

of the federal common law analysis, when the Court

identifies two “uniquely federal interests” that the case

“borders upon.” 487 U.S. at 504. The first is the

“obligations to and rights of the United States under

its contracts,” which are governed by a federal common

law of contract; the second is “the civil liability of

federal officials for actions taken in the course of their

duty.” Id. at 504–05. The problem, of course, is that

neither interest applies: The state tort suits could be

resolved without any reference to the meaning of any

federal contract, and there were no federal officials in

the case at all. Here, zero plus zero still sums to zero;

“the rule cannot be that asserting two invalid

[interests], no matter how weak, is always enough.”

Fulton v. City of Philadelphia, 593 U.S. 522, 599 (2021)

(Alito, J., concurring).

Boyle’s key move is transmuting two inapplicable

interests into one applicable one, but it does not work.

“The imposition of liability on Government contractors

will directly affect the terms of Government contracts:

either the contractor will decline to manufacture the

design specified by the Government, or it will raise its

price. Either way, the interests of the United States

will be directly affected.” 487 U.S. at 507. This is

gibberish because it baldly asserts that a self-evidently

indirect effect is actually direct—simply by using the

word “directly” twice. The “terms” of the contracts are

entirely unaffected by state law. Rather, the Court

predicts that the contractor will have an incentive to

demand different terms, and the government may

agree, a manifestly indirect (and hypothetical) effect.

The Court has rejected this exact logic time after

time. In O’Melveny & Myers v. F.D.I.C., the Court

found no federal interest in the FDIC’s recovery

against a law firm for malpractice. 512 U.S. 79, 89

7

(1994). The FDIC argued for a federal interest in

minimizing outlays from the deposit insurance fund,

which the Court ridiculed as a “more money”

argument, pointing out that “there is no federal policy

that the fund should always win” and no law that

makes replenishing the fund a federal interest. Id. at

88. Similarly, in United States v. California, the

federal government had a cost-plus contract with a

contractor, who paid California substantial taxes, and

passed the cost directly through to the United States.

507 U.S. 746, 753 (1993). The United States sued

California, arguing the taxes were invalid under a

purported federal common law rule. Id. at 749. The

Court had little trouble holding that no such federal

common law existed, and that any fiscal strain must

be addressed by Congress or by changing the contract,

id. at 759, exactly the reactions Boyle deemed an illicit

“direct” effect on the terms of a government contract.

After identifying the federal interest, Boyle’s next

step is to explain how state law conflicts with it. The

meat of the analysis is a freewheeling “search for the

limiting principle.” 487 U.S. at 509. “[I]t would be

unreasonable” always to find preemption where the

contract specifications conflict with state law. Id.

With a conception of the right limit in mind, the Court

searches for a more nuanced rule. It identifies “a

statutory provision that demonstrates the potential

for, and suggests the outlines of” the limiting principle

that seems reasonable to the Court. Id. at 511. In a

veritable FTCA ex machina, the next paragraph

identifies the discretionary function exception as

striking the right balance. The discretionary function

exception was made to apply not because its text

covered the case’s facts, but simply because it

contained the rule of decision the Court found

promising.

8

The problem with this reasoning is not chiefly the

result, but the method. “Justice Scalia based his

conclusions about the content of those defenses largely

on policy concerns.” Caleb Nelson, The Legitimacy of

(Some) Federal Common Law, 101 Va. L. Rev. 1, 44

(2015). Picking which federal statute applies to a case

based on matching it to pre-selected desirable

“limiting principle” is no way to do law. Rather,

statutes should apply to cases because their provisions

cover the conduct at issue in the case.

The poor reasoning degrades any support Boyle can

draw from stare decisis. Boyle “failed to ground its

decision in text, history, or precedent.” Dobbs v.

Jackson Women’s Health Org., 597 U.S. 215, 270

(2022).

“[I]t devoted great attention to and

presumably relied on matters that have no bearing on

the meaning of the” applicable statutes, such as what

level of preemption was reasonable in the abstract. Id.

“[I]t concocted an elaborate set of rules, with” three

prongs to assess conflict, “but it did not explain how

this veritable code could be teased out of anything in

the” FTCA or any laws that actually applied to

contractors. Id. And its “reasoning quickly drew

scathing scholarly criticism,” id., from both

progressive and conservative scholars.2

Boyle’s unpersuasiveness has made it sterile. It is

rarely cited in this Court’s opinions, always

distinguished (often in a footnote), and is one of the

2 E.g., Nelson, supra; Thomas W. Merrill, The Disposing Power of

the Legislature, 110 Colum. L. Rev. 452, 463 (2010) (calling Boyle

“an aberration”); Nicholas S. Zeppos, Legislative History and the

Interpretation of Statutes: Toward A Fact-Finding Model of

Statutory Interpretation, 76 Va. L. Rev. 1295, 1367 (1990) (“[T]he

result in Boyle seems flatly inconsistent with the textualist

approach.”).

9

rare cases cited more often in dissenting opinions than

majorities. State courts often incorporate federal

principles into state law but have declined to follow

Boyle. 3 In short, Boyle is Justice Scalia’s worst

majority opinion and looks worse every year, as he

himself recognized.4 It is grievously wrong.

B. Boyle Has Proven Unworkable.

Just as a contradiction in a system of logic can

prove any conclusion, so the incoherence at the root of

Boyle calls forth a maelstrom in the lower courts. This

Court already knows that lower courts applied the

combatant activities exception in irreconcilable ways

(thus the grant of certiorari); but that is only a

glimpse. Unmoored, as it is, from any positive and

clear source of law, Boyle has been applied in widely

varying ways by courts and employed for jurisdictional

gamesmanship by defendants.

1. Lower courts cannot agree how to

apply Boyle.

Boyle is rooted in two vague federal interests and

one statute that does not apply by its text. Starting

from there, lower courts move in different directions.

3 Conner v. Quality Coach, Inc., 750 A.2d 823 (Pa. 2000)

(Pennsylvania Supreme Court expressly rejecting Boyle for state

contractors); Jackson v. Alert Fire & Safety Equip., Inc., 567

N.E.2d 1027, 1034 (Ohio 1991) (Ohio Supreme Court declining to

adopt Boyle).

4 In later years, Justice Scalia himself came to doubt Boyle:

“[S]tudent[s] inquired whether there was a case the Justice had

decided that he now believed he had gotten wrong . . . . He

described a somewhat esoteric case involving the propriety of

federal courts crafting a common law immunity to shield defense

contractors from tort liability.” Gil Seinfeld, The Good, the Bad,

and the Ugly: Reflections of A Counterclerk, 114 Mich. L. Rev.

First Impressions 111, 115 (2016).

10

•

Military contractors or all contractors?

Some courts confidently held that the federal

interest identified in Boyle is “rooted in considerations

peculiar to the military,” Nielsen v. George Diamond

Vogel Paint Co., 892 F.2d 1450, 1455 (9th Cir. 1990),

and so inapplicable to civilian contractors. See also

Cabalce v. Thomas E. Blanchard & Assocs., Inc., 797

F.3d 720, 731 (9th Cir. 2015) (reaffirming this rule).

Others divined that the true “basis of the holding in

Boyle” is “preventing judicial second-guessing of the

government’s public policy decisions, and limiting the

government’s financial burdens.” Carley v. Wheeled

Coach, 991 F.2d 1117, 1124 (3d Cir. 1993). That

rationale extends to “manufacturers of nonmilitary

products.” Id. at 1125; but see id. at 1131 (Becker, J.,

concurring and dissenting) (identifying the federal

interest as “the balance between equipment safety and

combat effectiveness” which is limited to the military).

•

Military equipment or all equipment?

Lower courts disagree over whether Boyle applies

to commercial products, with some courts holding that

“[w]here the goods ordered by the military are those

readily available, in substantially similar form, to

commercial users, the military contractor defense does

not apply.” In re Hawaii Fed. Asbestos Cases, 960 F.2d

806, 811 (9th Cir. 1992). Other courts disagree,

reasoning that it does not matter “whether the product

was military or nonmilitary in nature,” but only

whether the government approved the product design.

Carley, 991 F.2d 1117, 1124 (3d Cir. 1993); but see id.

at 1131 (Becker, J., concurring and dissenting).

11

•

Must the specifications prohibit warnings or

not?

Multiple lower courts have extended Boyle to

“failure to warn claim[s], but the applications vary

widely.” Yeroshefsky v. Unisys Corp., 962 F. Supp. 710,

717 (D. Md. 1997). Some courts have held that a

failure to warn claim is barred only if the government

specifications include a “prohibition against health

warnings on the product,” reasoning that anything

short of that would allow the contractor to warn

without conflict. Dorse v. Eagle-Picher Indus., Inc.,

898 F.2d 1487, 1489 (11th Cir. 1990).5 Others have

held that it is enough if “a contractor proposes

warnings that the government substantively

approves,” Tate v. Boeing Helicopters, 55 F.3d 1150,

1157 (6th Cir. 1995), even if nothing in the

specifications prohibited the contractor from using a

better warning.6

The dispute seems to boil down to the nature of the

elusive federal interest.

If the core interest is

enforcing a specification to balance safety and combat

effectiveness (as Judge Becker thought), Dorse seems

correct. But if the federal interest is “in insulating its

contractors from state failure to warn tort liability”

when it had no objection to the warnings, Tate, 55 F.3d

5 See also Glassco v. Miller Equip. Co., 966 F.2d 641, 644 (11th

Cir. 1992) (applying Dorse); Miller v. United Techs. Corp., 660

A.2d 810, 836 (Conn. 1995) (allowing the defense “only if the

government dictated with reasonable precision the content of the

initial warnings”); Timberline Air Serv., Inc. v. Bell HelicopterTextron, Inc., 884 P.2d 920, 930 (Wash. 1994) (similar).

6 Some courts also have extended Boyle to cover “manufacturing

defects” as well. Snell v. Bell Helicopter Textron, Inc., 107 F.3d

744, 749 (9th Cir. 1997). One wonders what government interests

would support that rule.

12

at 1157, then Tate seems correct. Boyle says both in

different places.

•

Does Boyle invite courts to identify new

federal interests?

Lower courts have not confined themselves to the

federal interests Boyle invoked. The Second Circuit,

for example, applied Boyle outside the FTCA context,

holding that “the rationale for the government

contractor defense would extend to the disaster relief

context due to the unique federal interest in

coordinating federal disaster assistance and

streamlining the management of large-scale disaster

recovery projects, as evidenced by the Stafford Act.” In

re World Trade Ctr. Disaster Site Litig., 521 F.3d 169,

197 (2d Cir. 2008). The Eleventh Circuit held that

Boyle preempted a Florida law presumption that

“where a product is destroyed in an accident, and the

plaintiff presents evidence to negate possible causes

other than a product defect, an inference of

manufacturing defect arises.”

Harduvel v. Gen.

Dynamics Corp., 878 F.2d 1311, 1317 (11th Cir. 1989).

Apparently, the inference of defect itself was

preempted because “[m]ilitary equipment is highly

likely to be destroyed in accidents.” Id.

Sound rules of decision rooted in positive law have

natural

limiting

principles

and

predictable

application. Boyle’s rootless balancing of federal

interests and conflict principles produces chaos.

2. Defendants

use

Boyle

for

jurisdictional

gamesmanship,

flooding federal courts.

Boyle has proven especially troublesome in the

removal context. Federal defenses cannot ground

13

federal question jurisdiction, but can bootstrap a path

to federal court via federal officer jurisdiction. Boyle is

so contested and amorphous that defendants with

tenuous connections to any governmental decision

remove on the song and prayer that their government

contractor defense may be found colorable. This clogs

the federal courts and snarls cases in a jurisdictional

quagmire.

Courts are supposed to apply Boyle at a granular

level, evaluating a particular defect and a particular

contract specification. The “government’s rubber

stamp on the design drawings” is not enough without

substantive engagement. Trevino v. Gen. Dynamics

Corp., 865 F.2d 1474, 1480 (5th Cir. 1989). Prediscovery jurisdictional rulings are ill-suited to this

analysis and so courts mostly take the contractor’s

word for it, upholding federal jurisdiction unless the

defense is outlandish. As a typical example, the

Second Circuit held that a contractor put forward a

colorable defense to a failure to warn claim via

evidence of “specifications that for all their

particularity made no mention of asbestos warnings.”

Cuomo v. Crane Co., 771 F.3d 113, 117 (2d Cir. 2014).

That created a “possibility of satisfying” Boyle, which

was enough. Id. Since virtually all product liability

cases include a failure to warn claim, they all can be

removed under this rule, so long as the contractor can

proffer (on a one-sided record) that the specification

did not affirmatively require an adequate warning.

The 3M Combat Arms multidistrict litigation is a

prime example. The claims were based on 3M’s sale of

earplugs to the military that claimed to protect

hearing better than they actually did. 3M removed

thousands of cases from state court, arguing that, as a

government contractor, it was “acting under” a federal

14

officer, that providing the earplugs was “under color of

federal authority,” and that the government contractor

defense was a “colorable federal defense.” In re 3M

Combat Arms Earplug Prods. Liab. Litig., No. 3:19md-2885, 2020 WL 365617, at *3–*6 (N.D. Fla. Jan.

22, 2020). Judge Rodgers denied all motions to

remand across the board, finding the first two prongs

met any time a government contractor is “produc[ing]

an item” that the government would otherwise make

itself, id., at *3, and the third whenever the contractor

defense is non-frivolous, id., at *6.

With removal jurisdiction automatic, all roads led

to federal court. The Earplugs MDL ballooned to

hundreds of thousands of cases, nearly equaling in one

year the volume of all other federal civil cases

combined. 7 Though not frivolous in the context of

jurisdictional skirmishes, the defense was quite weak:

Judge Rodgers granted summary judgment for the

plaintiffs on the government contractor defense for

multiple independent reasons, finding no triable

issues. In re 3M Combat Arms Earplug Prods. Liab.

Litig., 474 F. Supp. 3d 1231, 1260 (N.D. Fla. 2020).8

Worse still, even if a district court grants a motion

to remand, the government contractor has an unusual

right to appeal the federal officer order under

28 U.S.C. § 1447(d). The plaintiff, of course, cannot

appeal a denial of the motion to remand until final

7 See 2023 Year-End Report on the Federal Judiciary, at 10,

https://www.supremecourt.gov/publicinfo/year-end/2023yearendreport.pdf.

8 Another district court disagreed with Judge Rodgers, and 3M

appealed to the Eighth Circuit. See Graves v. 3M Co., 17 F.4th

764 (8th Cir. 2021). Unlike Judge Rodgers, the Eighth Circuit at

least allowed remand for plaintiffs who purchased only 3M’s

commercial earplugs, though it denied remand for anyone who

received earplugs through the military. Id. at 770, 773.

15

judgment, and even then has little chance. E.g.,

Badilla v. Midwest Air Traffic Control Serv., Inc., 8

F.4th 105, 120 (2d Cir. 2021) (affirming denial of

motion to remand based on the federal defense, even

though it found the defense did not succeed on the

merits). These jurisdictional government contractor

appeals are ubiquitous, 9 clogging federal courts,

delaying lawsuits by current and previous

servicemembers, and adding substantial expense. The

end result is powerful one-sided tool for jurisdictional

gamesmanship.

C. Boyle Is Fatally Inconsistent

Recent Precedent.

With

Recent precedents of this Court have rejected the

mode of reasoning that animates Boyle. It represents

a path the Court walked down before quickly

backtracking to strike off in a more promising

direction. Too many lower courts have walked blindly

down this wrong path. The Court should block it off.

1. Modern statutory interpretation is

irreconcilable with Boyle.

The Court has grown increasingly textualist for

powerful separation of powers reasons. Recent cases

are adamant that “[o]nly the written word is the law.”

9 E.g., Moore v. Elec. Boat Corp., 25 F.4th 30, 37 (1st Cir. 2022)

(removal upheld because the defense was not “wholly

insubstantial and frivolous”); Isaacson v. Dow Chem. Co., 517

F.3d 129, 140 (2d Cir. 2008); Papp v. Fore-Kast Sales Co., 842 F.3d

805, 815 (3d Cir. 2016); Sawyer v. Foster Wheeler LLC, 860 F.3d

249, 259 (4th Cir. 2017); Latiolais v. Huntington Ingalls, Inc., 951

F.3d 286, 298 (5th Cir. 2020); Bennett v. MIS Corp., 607 F.3d

1076, 1090–91 (6th Cir. 2010); Ruppel v. CBS Corp., 701 F.3d

1176, 1186 (7th Cir. 2012); Graves v. 3M Co., 17 F.4th 764, 773

(8th Cir. 2021); DeFiore v. SOC LLC, 85 F.4th 546, 560 (9th Cir.

2023).

16

Bostock v. Clayton Cnty., Georgia, 590 U.S. 644, 653

(2020). Whether a result is good policy or bad, “[t]his

Court is not free to substitute its preferred economic

policies for those chosen by the people’s

representatives.” Epic Sys. Corp. v. Lewis, 584 U.S.

497, 525 (2018).

Because the “judicial function [is] to apply statutes

on the basis of what Congress has written, not what

Congress might have written,” this Court is careful not

only to follow what the text does say, but also not to go

beyond what it says. United States v. Great N. Ry. Co.,

343 U.S. 562, 575 (1952). Multiple cases explain in

detail how to interpret textual silence to respect

legislative compromise:

[A] lawmaking body that enacts a provision that

creates a right or prohibits specified conduct

may not wish to pursue the provision’s purpose

to the extent of authorizing private suits for

damages. For this reason, finding that a

damages remedy is implied by a provision that

makes no reference to that remedy may upset

the careful balance of interests struck by the

lawmakers.

Hernandez v. Mesa, 589 U.S. 93, 100 (2020).

Under these clear principles, a Court confronting

the issues of Boyle today would certainly begin with

the text of the FTCA. As Petitioner persuasively

explains, the FTCA’s text contains no government

contractor defense. See Pet. Br. at 16–31. This

absence is all the more significant because federal law

is replete with express statutory defenses for

17

contractors. 10 The logic from Hernandez v. Mesa

follows inexorably: a lawmaking body that enacts a

defense to a claim against government employees may

not wish to pursue the provision’s purpose to the

extent of authorizing a defense for government

contractors. For that reason, finding that a defense for

contractors is implied by a provision that makes no

reference to that defense may upset the careful

balance struck by the lawmakers.

Boyle never even performed the basic textualist

moves. Instead, it jumped straight to identifying

federal interests as though the FTCA must pursue

those interests “at all costs.” Hernandez, 589 U.S. at

100.

That mode of legal reasoning has been

discredited.

2. Modern federal common law cases

have left Boyle an outlier.

The Court has described “‘federal common law’” as

“a rule of decision that amounts, not simply to an

interpretation of a federal statute or a properly

promulgated administrative rule, but, rather, to the

judicial ‘creation’ of a special federal rule of decision.”

Atherton v. F.D.I.C., 519 U.S. 213, 218 (1997). Even

after Erie’s admonition that “[t]here is no federal

10 See, e.g., 10 U.S.C. § 1089(a) (making the FTCA’s remedy in 28

U.S.C. § 1346(b) “exclusive” of any other remedy for government

healthcare workers expressly including those under a “services

contract . . . or subcontract”); 6 U.S.C. § 442 (providing for a

reticulated “government contractor defense” for sellers of

“qualified anti-terrorism technology”); 50 U.S.C. § 2783

(providing procedures and defenses for “contractor[s]” involved in

“atomic weapons testing program[s]”); 42 U.S.C. § 2210

(providing a federal cause of action and indemnity, but not a

liability defense, for Department of Energy contractors who cause

nuclear accidents).

18

general common law,” Erie R. Co. v. Tompkins, 304

U.S. 64, 78 (1938), there were multiple decades when

courts fashioned federal common law rules based on

vague federal policy interests. See, e.g., Textile

Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S.

448, 456–57 (1957). No longer. The cases since Boyle

show an ineluctable trend of reining in federal

common law in favor of identifying clear, authoritative

sources of law outside the judiciary.

Since Boyle, the only notable new federal common

law rule arose under the Alien Tort Statute (ATS),

though that exception proves the rule. The ATS

provides for federal jurisdiction over a tort “committed

in violation of the law of nations.” 28 U.S.C. § 1350.

In Sosa v. Alvarez-Machain, the Court sketched a

framework for recognizing violations against the law

of nations, suggesting that a court might—with much

fear and trembling—recognize a private right of action

in an appropriate case. 542 U.S. 692, 724–25 (2004).

But it was not that case; Mr. Alvarez-Machain’s claim

for “illegal detention . . . violates no norm of customary

international law.” Id. at 738. Justice Scalia warned

that the majority’s “Never Say Never Jurisprudence”

would invite “lower federal courts” to venture where

the majority would not. Id. at 750 (Scalia, J.,

concurring in part and concurring in the judgment).

Unsurprisingly, the Court then took ATS case11 after

ATS case 12 smacking down one fact pattern after

11 Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124–25

(2013) (holding that ATS claims did not apply extraterritorially).

12 Jesner v. Arab Bank, PLC, 584 U.S. 241, 272 (2018) (holding

that ATS claims cannot be brought against foreign companies).

19

another. 13 No ATS claim has succeeded before this

Court.

That is hardly surprising, since ATS claims swim

against the riptide of the Court’s conclusion that

“creating a cause of action is a legislative endeavor.”

Egbert v. Boule, 596 U.S. 482, 491 (2022). Implied

causes of action have been the Court’s whipping boy

for decades, the object of in-depth takedowns, id., as

well as summary reversals, see Goldey v. Fields, 606

U.S. 942, 945 (2025). Given Atherton’s definition of

“federal common law” as a judicial creation not derived

from statute, it is equally unsurprising that the same

few decades have seen the tide go out on federal

common law.

Indeed, one could accurately summarize federal

common law jurisprudence since Boyle as a list of

contexts in which federal common law does not apply.

Cases since Boyle teach that federal common law does

not apply to choice of law rules, 14 tax refunds, 15

punitive damages awards, 16 labor relations tort

13 Nestle USA, Inc. v. Doe, 593 U.S. 628, 634 (2021) (again holding

that ATS claims do not apply extraterritorially).

14 Cassirer v. Thyssen-Bornemisza Collection Found., 596 U.S.

107, 116 (2022) (rejecting a federal choice-of-law rule for claims

under the Foreign Sovereign Immunities Act); see also Klaxon Co.

v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (rejecting a

federal choice-of-law rule for claims in diversity).

15 Rodriguez v. F.D.I.C., 589 U.S. 132, 137 (2020).

16 Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc.,

492 U.S. 257, 279 (1989) (rejecting a federal common law

limitation on punitive damages).

20

claims, 17 forum selection clauses, 18 legal malpractice

claims, 19 reimbursement under federal employee

health insurance plans, 20 air pollution, 21 water

pollution, 22 airline contracts, 23 and bank contracts. 24

Even where federal common law had been previously

recognized, this Court cut it back, limiting

adventurous applications of claim preclusion, 25

declining to fashion “a specialized body of federal

common law of trust administration,” 26 rejecting a

federal common law rule requiring “special deference

to the opinions of treating physicians” in ERISA

17 Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 313–

14 (2010).

18 Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 28–32 (1988)

(applying a statutory standard and chastising lower courts for

applying a federal common law standard to the enforceability of

a forum selection clause).

19 O’Melveny & Myers v. F.D.I.C., 512 U.S. 79, 88–89 (1994)

(rejecting federal common law rule for legal malpractice liability

involving an insolvent federal bank).

20 Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 693

(2006) (rejecting federal common law claim for reimbursement

involving a federal employees health insurance contract).

21 Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 415 (2011)

(holding that the Clean Air Act displaces federal common law).

22 Int’l Paper Co. v. Ouellette, 479 U.S. 481, 489 (1987) (holding

that the Clean Water Act displaces federal common law and

down-river state law); Arkansas v. Oklahoma, 503 U.S. 91, 99–

100 (1992) (same).

23 Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 232 (1995) (rejecting

a federal common law rule under the Airline Deregulation Act).

24 Atherton v. F.D.I.C., 519 U.S. 213, 226 (1997) (rejecting federal

common law rule for federally chartered banks).

25 Taylor v. Sturgell, 553 U.S. 880, 904 (2008) (rejecting the novel

doctrine of virtual representation).

26 Loc. 144 Nursing Home Pension Fund v. Demisay, 508 U.S. 581,

589 (1993) (quoting Goetz, Developing Federal Labor Law of

Welfare and Pension Plans, 55 Cornell L. Rev. 911, 930 (1970)).

21

cases,27 rebuffing a proposed federal common law rule

favoring striking employees, 28 restricting the in pari

delicto defense in securities cases, 29 and eliminating

remedies for long-past violations of federal Indian

law.30

Even under federal statutes that left interstitial

gaps, the Court has strongly favored borrowing state

law over fashioning a “special federal rule of decision.”

Atherton, 519 U.S. at 218. It has borrowed state

statutes of limitations,31 state claim-preclusion law,32

and state demand-futility law for derivatives suits.33

That sort of rule could work for government

contractors, since there are analogous defenses under

state law. To be sure, the Court continued to fashion

federal common law in some areas. The Court

continued developing the common law in maritime

27 Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825

(2003); see also Rush Prudential HMO, Inc. v. Moran, 536 U.S.

355, 387 (2002) (rejecting the argument that federal common law

under ERISA preempted state law).

28 Trans World Airlines, Inc. v. Indep. Fed’n of Flight Attendants,

489 U.S. 426, 443 (1989).

29 Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299,

310 (1985).

30 City of Sherrill, N.Y. v. Oneida Indian Nation of New York, 544

U.S. 197, 221 (2005).

31 E.g., Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex

rel. Wilson, 545 U.S. 409, 411 (2005).

32 Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508

(2001).

33 Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 109 (1991)

(rejecting a uniform federal common law of demand futility in

shareholder derivative securities litigation).

22

cases 34 (though even there state law often applies) 35

and interstate water disputes.36 Federal common law

in these areas arose more than a century ago and could

not easily be jettisoned. The Court also created federal

common law in applying statutes such as ERISA and

the Federal Employers Liability Act, 37 which simply

respects congressional intent for those unusual

statutes.

Cases after Boyle have treated government

contractors differently from government employees,

consistent with the FTCA itself. This is clear in United

States v. California, which, as discussed above, held

that the fact that costs are passed through to the

government is categorically insufficient to ground

federal common law. 507 U.S. 746, 759–60 (1993). In

another context, the Court held that government

contractors operating a prison—unlike government

employees—should not receive qualified immunity.

Richardson v. McKnight, 521 U.S. 399, 412 (1997).

Neither case cited Boyle.

34 See Great Lakes Ins. SE v. Raiders Retreat Realty Co., LLC, 601

U.S. 65, 69 (2024) (fashioning maritime common law rules), Air

& Liquid Sys. Corp. v. DeVries, 586 U.S. 446, 452 (2019) (same);

Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 27 (2004) (same).

35 Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 216

(1996) (rejecting a federal common law rule in favor of state law

for a death on the water); Am. Dredging Co. v. Miller, 510 U.S.

443, 457 (1994) (rejecting a federal common law rule of forum non

conveniens for maritime disputes that would apply in state court).

36 Florida v. Georgia, 585 U.S. 803, 815 (2018); Virginia v.

Maryland, 540 U.S. 56, 79 (2003).

37 See Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 166 (2003)

(crafting FELA negligence rule); Metro-N. Commuter R. Co. v.

Buckley, 521 U.S. 424, 444 (1997) (same); Consol. Rail Corp. v.

Gottshall, 512 U.S. 532, 558 (1994) (same).

23

In short, Boyle stands alone. Federal common law

doctrine is markedly different now and has no place for

Boyle.

D. Reliance Interests Are Low.

The government contractor defense does not

provide a clear enough rule to engender substantial

reliance. Much like the “physical presence rule,” the

government contractor defense is not “a clear or easily

applicable standard, so arguments for reliance based

on its clarity are misplaced.” S. Dakota v. Wayfair, 585

U.S. 162, 186 (2018).

To be sure, companies greatly relish having a

federal defense that allows removal, an appeal of a

remand order, and a potential defense on the merits,

but mere benefit is not reliance.

Stare decisis

considers only “legitimate reliance interest[s].”

Wayfair, 585 U.S. at 186 (quoting United States v.

Ross, 456 U.S. 798, 824 (1982)). Just as tax break preWayfair was largely “because consumers regularly fail

to comply with lawful use taxes,” 585 U.S. at 186, so

too here the procedural advantages Boyle affords were

never intended.

Upset reliance interests are especially implausible

because government contractors do not appear to have

well-aligned incentives. Government Commissions

have found fraud and waste from contractors of “$31

billion to $60 billion.”38 It is difficult to imagine that

the same contractors who are wasting billions of

dollars per year will suffer a financial shock if their

38 Comm’n

on Wartime Contracting in Iraq and Afg.,

Transforming Wartime Contracting: Controlling Costs, Reducing

Risks 5 (2011), https://apps.dtic.mil/sti/tr/pdf/ADA549381.pdf.

24

expectations about one liability defense (of many) are

lowered.

The federal government’s “policy” under the Trump

Administration is to “procure commercially available

products and services” as a way to “eliminate

unnecessary and imprudent expenditures.”39 This is a

continuation of a broader trend of moving away from

customized government specifications. Because Boyle

only applies to customized government specifications,

the movement toward commercial equipment is

already reducing reliance on Boyle.

On the other side of the ledger are plaintiffs—

chiefly those who served our country—who were

grievously injured, just like Army Specialist Hencely,

by contractors’ negligence, defective equipment, and

other malfeasance. Every meritorious claim that

Boyle defeats is an “injustice . . . of this Court’s own

making.” Boyle, 487 U.S. at 516 (Brennan, J.,

dissenting). Those losses should count, too.

The doctrine of stare decisis is strongest when

applied to statutory construction, but that principle

does not apply here. Even though Congress could

abrogate them, the Court does not apply statutory

stare decisis to federal common law decisions. See, e.g.,

Wayfair, 585 U.S. at 183 (2018); Leegin Creative

Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 899

(2007); Allen v. Milligan, 599 U.S. 1, 43 n.1 (2023)

(Kavanaugh, J., concurring). After all, Congress

would be hard-pressed to decide which words in the

39 Executive Order 14271, Ensuring Commercial, Cost-Effective

Solutions

in

Federal

Contracts

(Apr.

16,

2025),

https://www.whitehouse.gov/presidentialactions/2025/04/ensuring-commercial-cost-effective-solutions-infederal-contracts/.

25

United States Code to change, since Boyle is based on

none of them.

Nor is there any other reason to apply heightened

stare decisis. It would be one thing if Boyle “reaffirmed

a long line of precedents,” Michigan v. Bay Mills

Indian Cmty., 572 U.S. 782, 798 (2014). It did not. It

is a true “one-off,” id., with no case like it before, and

none since. This “derelict in the stream of the law,”

should be “overruled.”

N. Dakota State Bd. of

Pharmacy v. Snyder’s Drug Stores, Inc., 414 U.S. 156,

167 (1973).

II. If the Court Keeps Boyle, It Should Stop

Lower Courts From Extending Boyle to New

Contexts.

The simplest and best way to resolve this case is to

overturn Boyle. Anything else leaves “lower federal

courts [as] the principal actors,” since this Court will

“review but a tiny fraction of their decisions.” Sosa,

542 U.S. at 750–51 (Scalia, J., concurring in part and

concurring in the judgment).

But, if the Court does not wish to do so yet, it should

strongly signal to lower courts that the case should not

be freely extended. Specifically, the Court should

adopt its two-part framework from Bivens cases,

asking first whether a given case presents a “new

context,” and second if there are “special factors”

suggesting the courts are “at least arguably less

equipped than Congress” to decide whether the

defense should apply. Egbert, 596 U.S. at 492. In light

of the vast proliferation of the government contractor

defense in lower courts, a strong, doctrinally clear

signal is the only way to limit Boyle’s festering.

26

CONCLUSION

Boyle was wrong the day it was decided, and each

year becomes more of an outlier. It is fatally out of

step with this Court’s approach to statutory

interpretation and federal common law. As Petitioner

explains persuasively, there are overpowering

arguments against extending it to create a combatant

activities defense. But whether in this case or another,

the only full cure is overturning Boyle.

Respectfully submitted,

NOAH HEINZ

Counsel of Record

ALBERT PAK

HARVEY WEINER

Pak Heinz PLLC

Peabody & Arnold LLP

20 F Street NW 7th Fl.

600 Atlantic Ave.

Washington, DC 20001

Boston, MA 02210

hweiner@peabodyarnold.com (202) 505-6354

noah.heinz@pakheinz.com

Counsel for The Jewish War

Veterans of the United States Counsel for Amici Curiae

of America

August 7, 2025