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

Supreme Court briefAug 7, 2025

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No. 24-924

IN THE

Supreme Court of the United States

————

WINSTON TYLER HENCELY,

Petitioner,

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 AMICUS CURIAE OF

VETERANS OF FOREIGN WARS OF THE

UNITED STATES IN SUPPORT OF PETITIONER

AND REVERSAL

————

JOHN MUCKELBAUER

VETERANS OF FOREIGN WARS

OF THE U.S.

406 West 34th Street

Kansas City, MO 64111

Counsel for Veterans of

Foreign Wars of the

United States

PETER B. RUTLEDGE

HILLARY K. LUKACS

Counsel of Record

ISABELLE HALE

MORRIS, MANNING &

MARTIN, LLP

3343 Peachtree Road NE

Suite 1600

Atlanta, GA 30326

(404) 504-5492

hlukacs@mmmlaw.com

Counsel for Amicus Curiae

August 7, 2025

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

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

INTEREST OF AMICUS CURIAE .....................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

A. The decision below gives inadequate

weight to the importance of state-law

tort remedies for military servicemembers and their families. ...............

B. Reversal of the decision below is

consistent with Boyle...........................

C. The political question doctrine does not

categorically preclude consideration of

servicemembers’ state-law tort claims

for injuries incurred “inside the

wire.” ....................................................

CONCLUSION ....................................................

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Al Shimari v. CACI Premier Tech., Inc.,

840 F.3d 147 (4th Cir. 2016) .....................

Badilla v. Midwest Air Traffic Control

Serv., Inc.,

8 F.4th 105 (2d Cir. 2021) .................... 14, 16-17

Baker v. Carr.

369 U.S. 186 (1962) .............................. 20-21, 26

Bank of America Nat. Trust & Sav. Assn.

v. Parnell,

352 U.S. 29 (1956) .....................................

Boyle v. United Technologies Corp.,

487 U.S. 500

(1988) ..................... 2-3, 5-9, 11-12, 14-19, 26, 29

Chastleton Corp. v. Sinclair,

264 U.S. 543 (1924) ...................................

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) ...................................

Cohens v. Virginia,

6 Wheat. 264, 404 5 L.Ed. 257 (1821) ......

Erie Railroad Co. v. Tompkins,

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

5-6

Feres v. United States,

340 U.S. 135 (1950) ...................................

Gulf Offshore Co. v. Mobil Oil Corp.,

453 U.S. 473 (1981) ...................................

5-6

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

744 F.3d 326 (4th Cir. 2014) ..................... 18, 26

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Japan Whaling Ass’n v. Am. Cetacean Soc.,

478 U.S. 221 (1986) ................................... 19-20

Lane v. Halliburton,

529 F.3d 548 (5th Cir. 2008) ..................... 27-28

Machin v. Carus Corp.,

799 S.E.2d 468 (S.C. 2017) .......................

Marbury v. Madison,

5 U.S. 137 (1803) .......................................

McMahon v. General Dynamics Corp.,

933 F. Supp. 2d 682 (D.N.J. 2013) ...........

7-8

Miree v. DeKalb County,

433 U.S. 25 (1977) ............................... 15, 17, 26

United States v. Rahimi,

620 U.S. 680 (2024) ...................................

Va. Uranium v. Warren,

587 U.S. 761 (2019) ...................................

Vieth v. Jubelirer,

541 U.S. 267 (2004) ...................................

Wyeth v. Levine,

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

Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189 (2012) ................................... 19, 21

CONSTITUTION

U.S. Const. art. VI ........................................

3-6

TABLE OF AUTHORITIES—Continued

STATUTES AND REGULATIONS

Page(s)

U.S. Dep’t of Defense, Instruction 3020.41,

Operational Contract Support Outside

the United States (2024), available at

https://www.esd.whs.mil/Portals/54/Doc

uments/DD/issuances/dodi/302041p.pdf ..

DFARS; Contractor Personnel Authorized

to Accompany U.S. Forces, 73 Fed. Reg.

16764-01 (March 31, 2008) .................. 10-12, 14

28 U.S.C. § 2671 ...........................................

28 U.S.C. § 2680(a) .......................................

28 U.S.C. § 2680(j) ........................................

48 C.F.R. pt. 212 (2025) ...............................

48 C.F.R. pt. 225 (2025) ...............................

48 C.F.R. pt. 252 (2025) ...............................

48 C.F.R. § 252.225-7040(b)(2) (2023) ........... 10-11

48 C.F.R. § 252.225-7040(b)(4) (2023) ...........

COURT FILINGS

Br. for U.S. as Amicus Curiae, Carmichael

v. Kellogg, Brown & Root Service, Inc.,

561 U.S. 1025 (2010) (No. 09-683), 2010

WL 2214879 ..............................................

Br. for U.S. as Amicus Curiae, KBR, Inc. v.

Metzgar, 574 U.S. 1120 (2015) (No. 131241), 2014 WL 7185601 ..........................

Br. of Appellees-Respondents, Hencely v.

Fluor Corp., 120 F.4th 412 (4th Cir. 2024)

(No. 21-1994), 2021 WL 5999775 .............

TABLE OF AUTHORITIES—Continued

Page(s)

Reply Br. of Appellant-Petitioner, Hencely

v. Fluor Corp., 120 F.4th 412 (4th Cir.

2024) (No. 21-1994), 2022 WL 198476 .....

Resps. Br. in Opp., Hencely v. Fluor Corp.,

No. 24-924, 2025 WL 1270436 (April 28,

2025) ..........................................................

OTHER AUTHORITIES

Alexandra G. Neenan, Cong. Rsch. Serv.,

IF10600,

Defense

Primer:

DOD

Contractors (2024).....................................

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) .............................................. 13, 16-17, 19

Dan B. Dobbs et al., The Law of Torts § 352

(rev. ed. 2024) ............................................

Deborah Avant & Lee Sigelman, What Does

Private Security in Iraq Mean for U.S.

Democracy at Home? (Jan. 2008),

https://bc.sas.upenn.edu/system/files/Av

ant_08.pdf .................................................

Heidi M. Peters, Cong. Rsch. Serv., R44116,

Department of Defense: Contractor and

Troop Levels in Afghanistan and Iraq:

2007-2020 (2021) .......................................

TABLE OF AUTHORITIES—Continued

Page(s)

Joelle D. Keypour, The Political Question

Doctrine in Private Military Company

Liability Cases: Defining Claims to

Ensure Accountability, 21 Cardozo J. Int’l

& Comp. L. 729 (2013) ................ 9-10, 13, 24-25

Jon D. Michaels, Beyond Accountability: The

Constitutional, Democratic, and Strategic

Problems with Privatizing War, 82 Wash.

U. L.Q., 1001 (2004) ..................................

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) .............................

4 Papers of John Marshall (C. Cullen ed.

1984) ..........................................................

Peter W. Singer, Corporate Warriors: The

Rise of the Privatized Military Industry

(2003) .........................................................

Peter W. Singer, War, Profits, and the

Vacuum of Law: Privatized Military

Firms and International Law, 42 Colum.

J. Transnat’l L. 521 (2004) ....................... 9, 13

Press Release, U.S. Dep’t of State,

Department of State Legal Adviser

Promotes Accountability for Private

Military and Security Companies (Sept.

17, 2008) ....................................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Rebecca Rafferty Vernon, Battlefield

Contractors: Facing the Tough Issues, 33

Pub. Cont. L.J. 369 (2004) ........................ 9, 24

Rodney M. Perry, Fixing the Faults: An

Argument Against the Saleh v. Titan

Corp. Rule for Private Military

Contractor Immunity, 42 Pub. Cont. L.J.

607 (2013) .................................................. 8, 10

Tony Capaccio, Fluor Drops Protest of $500

Million KBR Iraq Support Contract,

Bloomberg News, Sept. 30, 2011,

http://www.bloomberg.com/news/2011-0930/fluor-drops-protest-of-500-million-kbriraq-support-contract.html .......................

INTEREST OF AMICUS CURIAE1

The Veterans of Foreign Wars of the United States

(“VFW”) is a congressionally chartered veterans organization established in 1899 that, with its Auxiliary,

represents over 1.5 million members. Since the VFW’s

establishment, millions of members have served their

country in forward operating bases, combat theaters,

war zones, and other locations, including Afghanistan

and, specifically, Bagram Airfield, where the tragic

events underlying this petition occurred.

The VFW has a significant interest in the issues

raised by this case. Due to the surge in the use of

private contractors over the past two decades, see

Heidi M. Peters, Cong. Rsch. Serv., R44116, Department of

Defense: Contractor and Troop Levels in Afghanistan

and Iraq: 2007-2020 1 (2021), VFW members increasingly work with personnel of private companies like

Respondents. During their service in theaters like

Afghanistan, Iraq and elsewhere, VFW members

understand – and have lived – the difference between

true “combatant activities” (like dodging roadside

bombs) and everyday base-support services (like fixing

cars). Mistakes by those private companies and their

personnel, including “inside the wire” of a base, can

result in injury, or even death, for servicemembers.

The VFW’s interest, therefore, is institutional and

ongoing; it extends beyond a single case.

Pursuant to this Court’s Rule 37.6, amicus confirms that

no counsel for a party authored this brief in whole or in part and

that no person other than amicus, its counsel or its members

made any monetary contributions intended to fund the preparation or submission of this brief.

For this reason, the dimensions of the federal

common-law preemption doctrine announced in Boyle

v. United Technologies Corp., 487 U.S. 500 (1988),

affect the interests of VFW members. Broadly, the

very existence of this non-statutory, judicially crafted

doctrine naturally influences any government contractor’s incentives to exercise care in the discharge of its

duties. More specifically, the lower federal court’s

unguided extension of Boyle from its modest “indirect

preemption” origins (relying on the FTCA’s “discretionary function” exception to bar certain “design defect”

claims) to something more akin to “field preemption

for combatant activities” carries vast implications for

the safety and security of America’s servicemembers.

This is especially true for injuries sustained “inside

the wire,” the place where servicemembers ought to be

(and feel) most secure.

Before the decision below, no federal appellate

court had relied upon this judicially crafted

“combatant activities” extension of Boyle to

preempt in their entirety the state-law tort claims

of an injured or deceased American servicemember.

Whatever Boyle’s proper contours, surely it cannot

extend to an American servicemember’s injuries

sustained “inside the wire” and traceable to companies

that, according to the Army’s own investigators, were

derelict in their duty. That dereliction of duty includes

inexplicably allowing an employee to construct a

suicide vest with tools and equipment that Fluor never

should have allowed him to access. The VFW supports

reversal of the lower court’s judgment to ensure that

its unprecedented extension of Boyle does not jeopardize

the life or health of another American servicemember

or upend the lives of another servicemember’s family.

SUMMARY OF ARGUMENT

The lower court’s judgment should be reversed. In

support of that conclusion, this brief offers two reasons

in addition to those advanced by Petitioner.

First, the lower court’s rule does not adequately

protect the interests of American servicemembers. As

a textual matter, Boyle rests on shaky ground. While

Article VI speaks in terms of “laws” and “treaties,”

Boyle extended its preemptive sweep to include judgemade federal common law. But federal common law,

unlike federal statutes and treaties, does not require

any inter-branch cooperation. Rather, it represents a

value-laden policy decision made exclusively by unelected

judges based upon their discernment of “unique federal

interests.” Seizing upon this authority, the court below

stretched Boyle from its narrow confines (displacing

design defect claims) to broad field-like preemption for

undefined combatant activities (displacing all claims).

Whatever the original wisdom of Boyle and whatever

the wisdom of its extension to “combatant activities”,

the decision below failed to give adequate weight to the

interests of service members and their families in

having access to state-law tort remedies, at least in

cases involving injury (or death) suffered “inside the

wire”, and, according to the Government’s own investigation, fairly traceable to a private company’s negligence.

Second, the political question doctrine does not

categorically preclude consideration of servicemembers’

state-law tort claims for injuries (or death) occurring

“inside the wire.” That doctrine operates as a narrow

constraint on federal courts’ generally unflagging

obligation to exercise jurisdiction when Congress has

authorized it. Here, the political question doctrine

does not apply. Entertaining such suits does not

require the courts to second-guess military decision-

making, especially where the Government’s own investigation traced the harm to the company’s negligence.

Nor does an inquiry into causation issues that

underlie most tort claims trigger the doctrine.

ARGUMENT

This case concerns preemption. Preemption – namely

the power of federal law to displace state law – traces

to the Supremacy Clause contained in Article VI of the

Constitution. So, as a matter of first principles, this

case turns upon the proper interpretation of Article VI.

“The first and most important rule of constitutional

interpretation is to heed the text – that is the actual

words of the Constitution – and to interpret that text

according to its ordinary meaning as originally

understood.” United States v. Rahimi, 620 U.S. 680,

715 (2024). The Supremacy Clause declares: “This

Constitution, and the Laws of the United States which

shall be made in Pursuance thereof; and all Treaties

made, or which shall be made, under the Authority of

the United States, shall be the supreme Law of

the Land.” U.S. Const. art VI, cl. 2. Textually, then, the

“actual words” of the Supremacy Clause only accord

preemptive effect to certain federal legal rules, namely

those contained in the Constitution itself, along with

“Laws” and “Treaties.” Those latter two categories

(“Laws” and “Treaties”) both require a degree of interbranch cooperation (namely bicameralism in the case

of “Laws” and Senate ratification in the case of

“Treaties”).

As a textual matter, this could be a very easy case.

No federal “law” or “treaty,” within the meaning of

Article VI, displaces the state-law claims here. Rather,

any preemption is merely “implied” from an assertion

that a case touches upon an area “involving uniquely

federal interests.” Under this “implied preemption”

theory, those “interests” displace state law – even

absent any congressional command or direct conflict.

The displaced state-law rules are then replaced by

judge-made rules, so-called substantive federal common law. Boyle v. United Tech. Corp., 487 U.S. 500, 504

(1988). In short, it is the alleged conflict between

federal “policy interests” and “state law” that gives rise

to preemption. This theory underpins the holding in

Boyle: “Policy interests” animating the Federal Tort

Claims Act’s “discretionary function” exception displace state-law tort claims predicated on a theory of

design defect. 487 U.S. at 511. Of course, judicially

discovered “policy interests” are neither “Laws of the

United States” nor “Treaties.” Because such “policy

interests” are not the product of bicameralism and

presentment (or similar inter-branch processes like

ratification), as a strictly textual matter, the Boyle rule

(whatever its sweep) arguably does not displace the

state-law tort doctrine. See Va. Uranium v. Warren,

587 U.S. 761, 778 (2019) (plurality opinion) (Gorsuch,

J., joined by Thomas & Kavanaugh, JJ.) (“No more

than in field preemption can the Supremacy Clause be

deployed here to elevate abstract and unenacted

legislative desires above state law; only federal laws

‘made in pursuance of ’ the Constitution, through its

prescribed process of bicameralism and presentment,

are entitled to preemptive effect.”).

Despite the text of Article VI, Boyle charted a

different course. It held that these federal “policy

interests” could displace positive state law. Even

accepting the legitimacy of that jurisprudential move,

Boyle represented an especially curious exercise of the

Court’s post-Erie residual power to make substantive

federal common law.

See Erie Railroad Co. v.

Tompkins, 304 U.S. 64 (1938). The exercise was

curious because “Congress was not silent.” Gulf

Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 487

(1981). Far from it—Congress spoke clearly: The

FTCA, by its plain terms, does not apply to

government contractors. 28 U.S.C.§ 2671. While postErie substantive federal common law might fill gaps

where Congress had not acted, Boyle purported to do

so in an area of law that Congress had affirmatively

addressed. Put another way, Boyle appeared to give

“improperly broad pre-emptive effect to judicially

manufactured policies, rather than to the statutory

text enacted by Congress pursuant to the

Constitution.” Wyeth v. Levine, 555 U.S. 555, 604

(2009) (Thomas, J., concurring). Boyle was possible

only by wedding an anti-textual reading of Article VI

with an anti-textual reading of the FTCA.

Nonetheless, Boyle announced a judicially manufactured policy derived from the FTCA’s “discretionary

function” exception, 28 U.S.C. § 2680(a), to preempt

state-law tort claims against private government

contractors based upon design defects. 487 U.S. at 51113. This rule of federal common law, like preemption

generally, undermined federalism. Specifically, Boyle

displaced state-law choices to afford a remedy to

parties injured by another private party’s conduct. Of

course, no act of positive law by the federal political

branches mandated that anti-federalist displacement.

So Boyle inescapably resulted in the sort of valueladen policy choices by the judicial branch that displaces equally value-laden policy decisions made by

the several states.

In the wake of Boyle, several circuits extended

its value-laden judicial policymaking of preempting

specific tort claims (design defect) under the FTCA’s

“discretionary function” exception, 28 U.S.C. § 2680(a),

to derive from another FTCA provision – the “combatant

activities” exception, 28 U.S.C. § 2680(j) – another rule

of federal common law, one that threatens to displace

all tort remedies otherwise available under state law

to injured (or deceased) servicemembers and their

families. While those circuits adopted different rules

and different conceptions of the federal interest,

see Pet.App.22-30, the decision below represents

an extreme outlier. It is the first federal appellate

decision to rely on the “combatant activities” extension

of Boyle to preempt in their entirety claims of an

injured or deceased servicemember. Its rule effectively

forecloses any relief to servicemembers even when

those injuries are (1) sustained “inside the wire”,

(2) traceable to a private contractor’s violation of its

own duties under the government contract and (3) the

Government’s own investigators have laid responsibility

for the injuries at the contractor’s feet. Over a decade

ago, one federal judge feared that “[t]he combatant

activities exception, cut loose from its rationale, threatens

to metamorphose into a near-absolute immunity for

contractors.” McMahon v. General Dynamics Corp.,

933 F. Supp. 2d 682, 693-94 (D.N.J. 2013). The decision

below realizes that ominous prediction.

Fortunately, reversing that extreme decision does

not require this Court to reexamine the very shaky

foundations upon which the Boyle rule rests. Nor does

it require this Court to confine Boyle to the discretionary function exception. Rather, at a minimum, Boyle’s

anti-textualist roots, its anti-federalist impact, and its

invitation for judicial policymaking counsel against

any sweeping, value-laden federal common law rules

that displace state prerogatives to afford tort remedies

to injured citizens. As long as courts continue to

embark on this inescapably value-laden enterprise,

the essential error committed by the lower court was

to undervalue the importance of those remedies for

servicemembers (and their families), at least in cases

when the servicemembers’ injuries (or death) occur

inside the wire and, according to the Government’s

own investigators, are fairly traceable to the tortious

conduct of a private party.

A. The decision below gives inadequate

weight to the importance of state-law tort

remedies for military servicemembers and

their families.

“[T]ort law has a role to play in ensuring redress for

injuries, spreading the cost of accidents, and – most of

all – enforcing the highest standards of care . . . upon

which our servicemen and servicewomen rely.” McMahon,

933 F. Supp. 2d at 684. Boyle recognized that these

countervailing considerations counseled limits on

the value-laden federal common law; it affirmatively

rejected a plea to adopt the Feres doctrine to demarcate the boundaries of federal common-law preemption. 487 U.S. at 510 (discussing Feres . United States,

340 U.S. 135 (1950)). In the Court’s view, drawing such

a line would “prohibit all service-related tort claims”

against the relevant contractors. Id. By rejecting “too

broad” a rule, Boyle at least tried to balance the

“unique federal interest” with federalism values and

the goals of state-law tort doctrine. Id.

The decision fails to balance these competing interests and, thereby, strips tort law of its essential role.

Civil tort remedies help to hold private contractors

accountable.2 Such accountability is even more

important today than it was in Boyle. The prolifera2

See Rodney M. Perry, Fixing the Faults: An Argument Against

the Saleh v. Titan Corp. Rule for Private Military Contractor

Immunity, 42 Pub. Cont. L.J. 607, 619–20 (2013).

tion of private contractors in the intervening decades

demands an approach to contractor liability that

adequately accommodates the interests of servicemembers who work alongside contractor personnel.

Since Boyle, a defining feature of the modern military landscape has been the proliferation of private

contractors. During the first Gulf War, the ratio of

contractors to troops was 1:100 – a dramatic change

from previous wars.3 By 2003, the ratio of private

contractors to U.S. military personnel in the Gulf had

shrunk to roughly 1:10. 4 During the post-occupation

periods in Iraq and Afghanistan, “contractors frequently accounted for 50% or more of the total DOD

presence in country.”5 Similarly striking is the increasing number of America tax dollars allocated to private

government contractors. From 1994 to 2002, the

DoD allocated an estimated $300 billion to private

federal contracts.6 In 2022 alone, that number grew to

$415 billion – more than all other government

agencies combined spent on private contracts.7

As the United States’ reliance on the use of private

military contractors has grown, so too has its recogni3

Joelle D. Keypour, The Political Question Doctrine in Private

Military Company Liability Cases: Defining Claims to Ensure

Accountability, 21 Cardozo J. Int’l & Comp. L. 729, 734–35 (2013);

Rebecca Rafferty Vernon, Battlefield Contractors: Facing the

Tough Issues, 33 Pub. Cont. L.J. 369, 373 (2004).

Peter W. Singer, War, Profits, and the Vacuum of Law:

Privatized Military Firms and International Law, 42 Colum. J.

Transnat’l L. 521, 522–23 (2004) (hereinafter “Singer, War”).

Alexandra G. Neenan, Cong. Rsch. Serv., IF10600, Defense

Primer: DOD Contractors 2 (2024).

Keypour, at 737; Singer, War at 522.

Neenan, at 2.

tion of the need for accountability mechanisms.8

Guidance from the Legislative and Executive Branches

evidences this recognition. For example, established

Army regulations make clear (1) that contractor personnel are not part of the military chain of command;

(2) that the management of private contractors shall

be governed by the terms and conditions of their

government contract; and (3) that private contractors

– not the Government – are responsible for “providing

day-to-day supervision of their employees.”9

The United States has also professed a commitment

“to ensuring that its contractors are subject to proper

oversight and held accountable for their actions.”

Press Release, U.S. Dep’t of State, Department of State

Legal Adviser Promotes Accountability for Private

Military and Security Companies (Sept. 17, 2008).

In 2008, the DoD promulgated regulations regarding

contractor personnel authorized to accompany U.S.

Armed Forces. See Defense Federal Acquisition Regulation Supplement; Contractor Personnel Authorized

To Accompany U.S. Armed Forces, 73 Fed. Reg. 1676401 (codified at 48 C.F.R. pts. 212, 225, 252).

One of those regulations mandates contractual

terms that put private contractors on notice of their

duties. Private government contracts must include a

clause providing, inter alia, that “[c]ontract performance in support of U.S. Armed Forces deployed

outside the United States may require work in

dangerous or austere conditions. Except as otherwise

provided in the contract, the Contractor accepts the

risks associated with required contract performance

Keypour, at 737; Dan B. Dobbs et al., The Law of Torts § 352

(rev. ed. 2024).

Perry, at 620.

in such operations.” 48 C.F.R. § 252.225-7040(b)(2).

The contract must also specify that “[u]nless immune

from host nation jurisdiction by virtue of an international agreement or international law, inappropriate

use of force by contractor personnel supporting the U.S.

Armed Forces can subject such personnel to United

States or host nation prosecution and civil liability,”

48 C.F.R. § 252.225-7040(b)(4) (codifying DoD Instruction

3020.41); see U.S. Dep’t of Defense, Instruction 3020.41,

Operational Contract Support Outside the United States

(2024), available at https://www.esd.whs.mil/Portals/

54/Documents/DD/issuances/dodi/302041p.pdf.

These federally mandated provisions all reflect

DoD’s assessment that private contractors can appropriately manage risk:

Contractors are in the best position to plan

and perform their duties in ways that avoid

injuring third parties. Contractors are equally

or more responsible to research host nation

laws and proposed operating environments

and to negotiate and price the terms of each

contract effectively. Accordingly, the clause

retains the current rule of law, holding contractors accountable for the negligent or

willful actions of their employees, officers, and

subcontractors.

73 Fed. Reg. 16764-01 at cmt. 6 (discussing 48 C.F.R.

§ 252.225-740(b)(2)).

The DoD further clarified that Boyle has no bearing

on the new rule. Whereas Boyle narrowly “extends

to manufacturers immunity when the Government

prepares or approves relatively precise design or

production specifications after making sovereign

decisions balancing known risks against Government

budgets and other factors in control of the Government,” the rule “covers service contracts, not manufacturing, and [ ] makes no changes to existing rules

regarding liability.” Id. The DoD then distinguished

the public policy rationales underlying Boyle and the

federally mandated clauses as follows:

The public policy rationale behind Boyle does

not apply when a performance-based statement

of work is used in a services contract, because

the Government does not, in fact, exercise

specific control over the actions and decisions

of the contractor or its employees or subcontractors. Asking a contractor to ensure its

employees comply with host nation law and

other authorities does not amount to the

precise control that would be requisite to shift

away from a contractor’s accountability for its

own actions. Contractors will still be able to

defend themselves when injuries to third

parties are caused by the actions or decisions

of the Government. However, to the extent

that contractors are currently seeking to

avoid accountability to third parties for their

own actions by raising defenses based on the

sovereignty of the United States, this rule

should not send a signal that would invite

courts to shift the risk of loss to innocent third

parties. The language in the clause is

intended to encourage contractors to properly

assess the risks involved and take proper

precautions.

Id. (emphasis added).

In light of the Government’s approach, some experts

conclude that “when faced with such an explicit

contractual and regulatory ex ante allocation of risk,”

as required by the DoD’s regulations, “the law should

presume” that the contractor “has logically built the

cost of potential tort liability into its rates.”10 This

commonsense conclusion emanates from the different

incentives motivating the conduct of private contractors

and government employees. Contractors “are private,

profit-motivated actors,”11 placed “in a position to earn

profits from [their] association with the government,”

who are therefore incentivized “to maximize personal

welfare, or profits, rather than public welfare, and

to be staffed by self-interested individuals.”12 Public

servicemembers, on the other hand, receive less

than private contractors – typically a salary – and

presumably are motivated by a sense of duty to

“act in the public interest and [ ] to maximize social

welfare[.]”13 Logically, then, extending immunity to

“the contractor [that] ‘stands to enjoy the benefits’ of

the contract” would not only be “improper” but also

“redundant” because “‘one would expect the contractor

to [have already] engage[d] in cost-benefit optimizing

behavior without the benefit of immunity.’”14

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, 443 (2009).

Singer, War at 524

Finkelman, at 442.

Id.

Id. (quoting 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,

652-53 (1990)); see also Keypour, at 756–57 (asserting private

contractor’s “decision-making processes . . . contrast[s] deeply

with the military’s motivations to protect the nation’s interests,

particularly those related to security.”).

Viewed against this framework, the lower court’s

rule sweeps too broadly. The lower court’s test asks

only if the contract is “integrated into combatant

activities over which the military retains command

authority.” Pet.App.21-22. This test fails to undertake

the essential inquiry commanded by Boyle, namely to

identify a “significant conflict” between the federal

interest and the underlying state-law tort theories.

As Boyle made clear “conflict there must be.” 487 U.S.

at 508. Yet there can hardly be conflict where the

contractor’s adherence to the Government’s requirements is entirely compatible with adherence to statelaw tort duties, especially where the Government, in

its own instructions to contractors, has made clear

that they remain accountable “to innocent third

parties” for their mistakes. 73 Fed. Reg. 16764-01 at

cmt. 6. A more measured test must “strike[ ] the proper

balance between protecting military decision-making

and opening the federal courthouse doors to a

plaintiff ’s legitimate state-law claims.” Badilla v.

Midwest Air Traffic Control Serv., Inc., 8 F.4th 105, 129

(2d Cir. 2021).

B. Reversal of the decision

consistent with Boyle.

below

Reversing the lower court’s decision does not require

this Court to reexamine the shaky foundations upon

which the Boyle rule rests. In fact, a proper reading of

Boyle counsels against the lower court’s wholesale

displacement of state tort-law remedies.

First, Boyle expressly acknowledged that federal

common law does not govern where, as here, “litigation

is purely between private parties and does not touch

the rights and duties of the United States[.]” Boyle, 487

U.S. at 506 (quoting Bank of America Nat. Trust & Sav.

Assn. v. Parnell, 352 U.S. 29, 33 (1956)). In so doing,

Boyle contrasted the facts of that case with those

presented in Miree v. DeKalb County, 433 U.S. 25, 30

(1977). Boyle observed that because the plaintiffs in

Miree (third-party beneficiaries to an agreement

between a municipality and the FAA) merely “sought

to enforce” the contractual duties required by the

underlying government contract rather than impose a

“contrary” duty, “any federal interest in the outcome of

the [dispute] . . . ‘[was] far too speculative, far too

remote a possibility to justify the application of federal

law to transactions essentially of local concern.’” Boyle,

487 U.S. at 508 (quoting Miree, 433 U.S. at 32–33).

Conversely, the liability sought to be imposed in

Boyle “directly affect[ed]” the “interests of the United

States” because it purported to constrain the Government’s discretionary design decisions under military

procurement contracts. Boyle, 487 U.S. at 506–07.

As such, “the state-imposed duty of care . . . [was]

precisely contrary to the duty imposed by the Government contract[.]” Id. at 509. Boyle then took the

analysis one step further, hypothesizing of “an

intermediate situation, in which “the duty sought to be

imposed on the contractor is not identical to one

assumed under the contract, but is also not contrary to

any assumed.” Id. “If, for example,” Boyle theorized,

“the United States contracts for the purchase and

installation of an air conditioning-unit, specifying the

cooling capacity but not the precise manner of

construction, a state law imposing upon the

manufacturer of such units a duty of care to include a

certain safety feature would not be a duty identical to

anything promised the Government, but neither would

it be contrary.” Id. Boyle went so far as to declare that

“[n]o one [could] suggest[ ] that state law would

generally be pre-empted in this context,” because

“[t]he contractor could comply with both its contrac-

tual obligations and the state-prescribed duty of care.”

Id.

Here, even assuming that the duty of care sought

to be imposed under state law is not identical to the

duty of care assessed under military standards, the

standards certainly do not clash because the Army’s

report already concluded that Fluor failed to uphold

its contractual obligations to supervise its employees.

Accordingly, a decision in this case poses no threat to

the military’s ability to control and regulate on-base

safety and security protocols because Fluor could have

theoretically “compl[ied] with both its contractual

obligations and the state-prescribed duty of care.” Id.;

see Badilla, 8 F.4th at 128 (“No significant conflict

exists between [a uniquely federal] interest and state

law unless the challenged action can reasonably be

considered the military’s own conduct or decision and

the operation of state law would conflict with that

decision.”) (emphasis in original).

Second, unlike the precise design specifications

required for the helicopter in Boyle, the Army in this

case generally delegated employee supervision responsibilities to the private employers themselves, impliedly

disclaiming a direct “federal interest” in the manner

and method that such supervisory practices occur so

long as such practices complied with on-base security

protocols. “[C]ontractors should not be protected

where they act as functionally autonomous actors.”

Finkelman, at 447. “A core principle of modern tort

law is that liability for negligence should be borne

by the party that is the cheapest cost avoider.” Id.

As compared to U.S. troops or local civilians, an

autonomous contractor is the cheapest cost avoider

because it can discharge its “contractual responsibilities in conformity with the applicable duty of care” and

can also insure against the risk of any resulting harm.

Id. “[T]he effect of providing a federal common law

affirmative defense for service contractors in this

situation would [unfairly] shift the loss to the innocent

victim” Id. at 448.

Moreover, where contractor discretion is involved,

“the national security interest in incentivizing risk

taking is not present.” Id. Congress has only authorized indemnification where contractors are required

“to undertake activities for the government that would

expose them to greater risks than would ordinary

commercial or industrial activities, which could be

protected by private insurance.” Id. Absent a demonstrated intent to directly legislate and control contractor discretion, any potentially adverse federal interest

is “far too speculative . . . to justify the application

of federal [common] law” to preempt state tort law.

Miree, 433 U.S. at 32–33. At a minimum, “it would be

unreasonable to say that there is always a ‘significant

conflict’ between the state law and a federal policy or

interest[.]” Boyle, 487 U.S. at 509. According to the

Second Circuit, “[p]reemption arises when the Government specifically authorizes or directs the contractor

action, not when the Government generally permits

the contractor to undertake a range of actions”;

otherwise “any tort claim against a military contractor

would involve an indirect challenge to the military’s

decision not to prevent the action that gave rise to the

claim[.]” Badilla, 8 F.4th at 129-130 (emphasis in

original). Preemption in this case would therefore be

inappropriate even under some lower courts’ reading

of Boyle.

Third, Boyle solely analyzed the congressional

intent with respect to the “discretionary function”

clause of the FTCA to conclude that Congress intended

to legislate the idea that the federal government has

discretion to determine what is or is not sufficient to

satisfy military objectives during a time of war.

487 U.S. at 512-13. As such, it was the military’s

prerogative to determine that helicopters with hatches

opening inwards were sufficient to accomplish military

objectives, even though Virginia law would have

considered the same feature a design defect. Id.

This case has no bearing on the military’s exercise

of discretionary functions. Instead, the only “federal

interest” identified for purposes of the lower court’s

preemption analysis was that Flour “was ‘integrated

into combatant activities’ at Bagram Airfield.” Pet.App.22.

Although Petitioner did not contest this finding based

on prior circuit precedent in In re KBR, Inc., Burn Pit

Litig., 744 F.3d 326, 351 (4th Cir. 2014) (hereinafter,

“Burn Pit I”), that case represents yet another

improper exercise of federal common law. Despite

acknowledging that the terms “combat” “connotes

physical violence” and “combatant” “connotes pertaining

to actual hostilities,” the Burn Pit I court nevertheless

held that “viewing ‘combatant activities’ through a

broader lens furthers the purpose of the combatant

activities exception.” 744 F.3d at 351. This reasoning

does not withstand scrutiny. To justify its own valueladen policy judgment regarding the intended purpose

of the combatant activities exception, the court derived

a meaning from terms connoting “physical violence”

and “actual hostilities” to conclude that the phrase

“combatant activities” was actually intended to

“encompass conduct and decisions that do not involve

actual combat” or “physical force.” Id. (emphasis added)

(concluding performance of “waste management and

water treatment functions to aid military personnel in

a combat area was “undoubtedly ‘necessary to and in

direct connection with actual hostilities’” and therefore

constituted “combatant activities”). But these are not

the words used by Congress in the FTCA, and neither

the court below nor the Fourth Circuit precedent

upon which it depended undertook the sort of careful

discernment of legislative intent that Boyle demands.

Congress – not the court – is best positioned “to strike

a balance between the states’ interest in enforcing

their tort laws and the federal interest in protecting

military service contractors.” Finkelman, at 449.

C. The political question doctrine does not

categorically preclude consideration of

servicemembers’ state-law tort claims for

injuries incurred “inside the wire.”

At the certiorari stage, Respondents (unsuccessfully)

invoked the political question doctrine as a possible

reason counseling against review in this case. Resps.

Br. in Opp., Hencely v. Fluor Corp., No. 24-924, 2025

WL 1270436 at *29-31. At the merits stage, Respondents can be expected to revive some form of that

argument either in support of reversal or in support of

their proposed expansion of Boyle. Consequently,

amicus briefly explains why the political question

doctrine does not bar servicemembers claims like

those at issue here.

“In general, the Judiciary has a responsibility to

decide cases properly before it, even those it ‘would

gladly avoid.’” Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189, 194 (2012) (plurality) (quoting Cohens

v. Virginia, 6 Wheat. 264, 404, 5 L.Ed. 257 (1821)).

The political question doctrine represents a narrow

exception to that rule by “exclud[ing] from judicial

review those controversies which revolve around

policy choices and value determinations constitutionally committed for resolution to the halls of Congress

or the confines of the Executive Branch.” Japan

Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 230

(1986) (“The Judiciary is particularly ill suited to make

such decisions, as courts are fundamentally underequipped to formulate national policies or develop

standards for matters not legal in nature.”) (internal

quotations omitted).

Rooted in separation of powers principles, the doctrine traces to Marbury v. Madison, wherein thenChief Justice Marshall observed that “[q]uestions, in

their nature political, of which are, by the constitution

and laws, submitted to the executive, can never

be made in this court.” 5 U.S. 137 (1803). Justice

Marshall aptly theorized that absent this “division of

power” among the branches of Government, “the other

departments would be swallowed up by the judiciary.”

4 Papers of John Marshall 95 (C. Cullen ed. 1984).

The modern articulation of the political question

doctrine emerged in Baker v. Carr. 369 U.S. 186 (1962).

Baker articulated a six-factor test to decide whether a

case presents a nonjusticiable political question: namely,

courts should ask whether there exists (1) “a textually

demonstrable constitutional commitment of the issue

to a coordinate political department”; (2) “a lack of

judicially discoverable and manageable standards for

resolving it”; (3) “the impossibility of deciding without

an initial policy determination of a kind clearly for

nonjudicial discretion”; (4) “the impossibility of a

court’s undertaking independent resolution without

expressing lack of the respect due coordinate branches

of government”; (5) “an unusual need for unquestioning

adherence to a political decision already made”; or

(6) “the potentiality of embarrassment from multifarious

pronouncements by various departments on one

question.” Id. at 211.

Baker explained that “[u]nless one of these formulations is inextricable from the case at bar, there should

be no dismissal for non-justiciability on the ground of

a political question’s presence.” Id. The Court must

therefore engage in a “discriminating inquiry into the

precise facts and posture of the particular case.” Id.

Because the Baker factors are ranked “in descending

order” both in terms of “importance and certainty,”

Vieth v. Jubelirer, 541 U.S. 267, 278 (2004), the test

is often distilled to an analysis of the first two factors,

i.e., a controversy involves a political question

“where there is ‘a textually demonstrable constitutional commitment of the issue to a coordinate political

department; or a lack of judicially discoverable and

manageable standards for resolving it.” Clinton, 566

U.S. at 195.

While the United States has “significant interests in

ensuring that sensitive military judgments are not

subject to judicial second-guessing, in protecting

soldiers and civilians from wartime injuries, and in

making sure contractors are available and willing

to provide the military with vital combat-related

services,” the United States “also has significant

interests in ensuring that its contractors exercise

proper care, minimize risks to servicemembers and

do not avoid appropriate sanctions for misconduct.” Br.

for U.S. as Amicus Curiae, Carmichael v. Kellogg,

Brown & Root Service, Inc., 561 U.S. 1025 (2010) (No.

09683) 2010 WL 2214879, at *9. Accordingly, not

“every case or controversy which touches foreign

relations lies beyond judicial cognizance.” Baker, 369

U.S. at 217.

Although lower courts have uniformly adopted the

Baker factors in these cases, any inquiry is inherently

fact-sensitive. Id. at 744–46. Under that fact-sensitive

test, the political question doctrine does not operate

(1) as a general bar to claims against private

contractors or (2) as a specific impediment to causation

inquiries in tort claims.

1. General Bar: The political question doctrine does

not operate as a general bar to claims against military

contractors, as the court below correctly concluded.

In suits against military contractors, the Fourth

Circuit has said a case raises a nonjusticiable political

question if either (1) the military exercised “plenary”

or “direct” control over the contractor, or (2) “national

defense interests were closely intertwined with military decisions governing the contractor’s conduct,

such that a decision on the merits of the claim would

require the judiciary to question actual, sensitive

judgments made by the military.” Al Shimari v. CACI

Premier Tech., Inc., 840 F.3d 147, 155 (4th Cir. 2016).

To answer these questions, a court must “examine

the evidence regarding the specific conduct to which

the plaintiffs were subjected and the source of any

direction under which the acts took place.” Id. at 160.

The court below correctly answered both those

questions in the negative, i.e., (1) Fluor was not under

the Army’s plenary or actual control and (2) Petitioner’s state tort claims did not require the court to

second-guess sensitive military judgments.

First, “[e]ven though the military dictated the

security measures for Bagram Airfield [and] required

Fluor to comply with military protocols concerning the

supervision and escort of Local Nationals on base,”

the Army contractually delegated authority to Fluor

to hire and supervise employees, as well as control

the level of access they had to tools. Pet.App.15, 26. In

other words, the Army did not dictate the “how, where,

and when” of Fluor’s supervision or access to tools.

See Reply Br. of Appellant-Petitioner, Hencely v. Fluor

Corp., 120 F.4th 412 (4th Cir. 2024) (No. 21-1994), 2022

WL 198476, at *22. In fact, the Army’s investigative

report criticized Fluor for lending Nayeb tools his job

did not require, not adequately supervising Nayeb

while he worked in the hazardous materials work

center, and retaining Nayeb despite reported instances

of sleeping on the job and absences without authority.

Pet.App.10, 26. Based on the foregoing evidence, the

Fourth Circuit concluded that “the decision to lend

Nayeb a multimeter from Fluor’s tool room was not

‘made exclusively by the military’ or a ‘de facto military decision.’” Pet.App.15. As a result, the record

below did not satisfy the Fourth Circuit’s “rigorous

standard for plenary control.” Id.

Nor do these claims require the judiciary to scrutinize

or second-guess sensitive military judgments. Petitioner

does not assert that Flour was negligent for engaging

in conduct ordered or approved by the military. Rather,

he argues that within general parameters set by the

military, Fluor acted negligently and should be liable

under state tort law. Under these circumstances, the

military’s standards and orders must be treated “as a

given, and the actions of [Fluor] must be evaluated in

light of those judgments,” such that the trier of fact

“[can]not question the wisdom of military judgments.”

Br. for U.S. as Amicus Curiae, KBR, Inc. v. Metzgar,

574 U.S. 1120 (2015) (No. 13-1241), 2014 WL 7185601,

at *10-11. In other words, the Court can consider the

military’s policies without drawing the reasonableness

of those policies into question.

It is also worth noting that Fluor’s contract required

the performance of commercial services rather than

inherently governmental functions.15 Commercial

contracts solicit labor from the private workforce to

facilitate the construction of infrastructure, implement

development projects, and provide food, custodial,

and maintenance services.16 At the other end of the

spectrum, defense-related contracts are intricately

linked to military responsibilities and combat activities.17

“These contracts call upon private contractors to

supply military skill and engage in combat operations,

strategic planning, intelligence, interrogations, risk

assessment, operational support and training, and

even offensive missions against militants.”18 The military is much more likely to exercise “plenary” or

“direct” control over a contractor’s performance of

governmental functions that directly implicate mili15

See Jon D. Michaels, Beyond Accountability: The Constitutional,

Democratic, and Strategic Problems with Privatizing War, 82

Wash. U. L.Q., 1001, 1016-19 (2004). (noting a distinction between

commercial “‘garden-variety’ contracting-out initiatives” and

“defense-oriented ... combat-related tasks and responsibilities in

zones of conflict.”); see also Deborah Avant & Lee Sigelman, What

Does Private Security in Iraq Mean for U.S. Democracy at Home?

6 (Jan. 2008), https://bc.sas.upenn.edu/system/files/Avant_08.pdf

(noting that “[m]ost analysts have grouped military services into

three broad categories: operational support, military advice and

training, and logistical support” with the first two categories

describing combat-related activities and the third category

describing commercial services).

See Tony Capaccio, Fluor Drops Protest of $500 Million

KBR Iraq Support Contract, Bloomberg News, Sept. 30, 2011,

http://www.bloomberg.com/news/2011-09-30/fluor-drops-protestof-500-million-kbr-iraq-support-contract.html; Vernon, at 376

(characterizing military contractor services related to “base

operations” as a type of “commercial support”).

Keypour, at 752.

Michaels, at 1032-34; Peter W. Singer, Corporate Warriors:

The Rise of the Privatized Military Industry 49 (2003).

tary decision-making as opposed to purely commercial

services performed at the contractor’s discretion.

At bottom, this case concerns the negligence of a

private commercial contractor in the supervision of

its own employees. Fluor was engaged to perform

commercial “base life support services” at Bagram

Airfield, “includ[ing], among other things, construction,

facilities management, laundry, food, recreation, and,

relevant here, vehicle maintenance and hazardous

materials management.” Pet.App.3. Not only are these

services “commonly available in the marketplace for

use in traditional commercial settings” – they were

performed inside the wire.19 Moreover, Fluor was not

under the plenary or actual control of the military

because the Army contractually delegated to Fluor the

responsibility and discretion to implement the military’s

policies and protocols regarding the hiring, supervision,

and escort of its employees on base. Petitioner’s

liability claims therefore arise out of the ordinary

course of Fluor’s business and, as a result, should be

assessed, “wholly independent from the environment

in which contractual duties are carried out.”20

U.S. employers are regularly held accountable for

such conduct, and Fluor should not be allowed to act

with impunity simply because its business operations

were carried out on a U.S. military base.21 South

Carolina tort law therefore offers a “clear roadmap” for

resolving Petitioner’s claims. Where “clearly definable

Keypour, at 750–51 (“Commercial contracts solicit labor from

the private workforce to facilitate the construction of infrastructure, implement development projects, and provide food, custodial, and maintenance services.”).

Id.

See id. at 737.

criteria for [a] decision [is] available[,] . . . the political

question barrier falls away: ‘(A) Court is not at liberty

to shut its eyes to an obvious mistake, when the

validity of the law depends upon the truth of what is

declared.’” Baker, 369 U.S. at 214 (citing Chastleton

Corp. v. Sinclair, 264 U.S. 543, 547-48 (1924)).

2. Causation: The political question doctrine also

does not preclude inquiry into the causation issues

presented by cases like Petitioner’s. Below, Fluor

argued that it was unreasonable for the military to

permit a known Taliban associate onto a secure Military base in the first instance and that the supervision

and escorting policies in effect were inadequate. Br. of

Appellees-Respondents, Hencely v. Fluor Corp., 120

F.4th 412 (4th Cir. 2024) (No. 21-1994), 2021 WL

5999775, at *48.

First, this is a strawman. The military’s protocols

have no bearing on the degree of Fluor’s negligence

because there is no dispute that Fluor failed to follow

and uphold those protocols. Specifically, the Army

concluded that “the primary contributing factor” to

the attack was “Fluor’s complacency and its lack of

reasonable supervision of its personnel.” Pet.App.10,

172. A judicial determination that agrees with or

takes as valid an Executive Branch position does not

create interbranch friction. See Boyle, 487 U.S. at 508;

Miree, 433 U.S. at 32–33.

Second, a “military contractor’s causation defense

‘does not require evaluation of the military’s decision

making unless (1) the military caused the [plaintiff ’s]

injuries, at least in part, and (2) the [plaintiff]

invoke[s] a proportional liability system that allocates

liability based on fault.”’ Burn Pit I, 744 F.3d at 340–

41 (emphasis added). It is doubtful that such a

causation defense is available here. South Carolina

law prohibits a jury from assigning fault to the

military as an immune nonparty. See Machin v. Carus

Corp., 799 S.E.2d 468, 478 (S.C. 2017) (“[A] nonparty

may be included in the allocation of fault only where

such person or entity is a ‘potential tortfeasor,’ which,

under our law, excludes [a third party] who is immune

from suit[.]”). Because Fluor cannot allocate fault to

the military as a matter of law, its causation defense

cannot implicate a political question.

Even if the defense were valid, it still would not

present a political question. The Fifth Circuit’s decision

in Lane v. Halliburton, 529 F.3d 548 (5th Cir. 2008),

offers useful guidance. In Lane, Iraqi insurgents

ambushed and attacked employees of KBR (commercial

contractor) who were transporting fuel convoys on

assignment from the company. Id. at 555. The former

employees sued claiming that KBR misrepresented

the nature of the work assigned and the level of safety

that the plaintiffs could expect as employees of

the company. Id. KBR asserted a causation defense,

arguing that no determination as to causation could be

made “without examining whether the Army fulfilled

its contractual duty to provide force protection for the

KBR convoys.” Id. at 566. The Lane court declined to

hold that this defense presented a political question.

Id. Instead, although the type and timing of information KBR received from the Army may have been

relevant to determining whether KBR made

assurances to the plaintiffs about conditions which it

knew or should have known to be untrue, the relevant

inquiry was determining what KBR did with that

information, “not how ably the military gathered or

interpreted it.” Id. at 567. Accordingly, the plaintiffs’

fraud and negligence claims could be resolved “without

second-guessing the acts and decisions of the Army.”

Id.

Like the contractor in Lane, Fluor represents a

prototypical commercial defense contractor that was

engaged by the military to provide basic “life support

services” such as “construction, facilities management,

laundry, food, recreation, and, relevant here, vehicle

maintenance and hazardous materials management.”

Pet.App.3. Fluor’s on-base conduct does not require

review of sensitive military decisions any more than if

such services were performed in the United States on

behalf of a local municipality.

Thus, the Fourth Circuit correctly concluded that the

political question doctrine did not bar consideration of

Petitioner’s claims. Pet.App.19.

CONCLUSION

As then-Justice Rehnquist explained nearly a halfcentury ago, “the enactment of a federal rule in an area

of national concern, and the decision whether to

displace state law in doing so, is generally made not

by the federal judiciary, purposefully insulated from

democratic pressures, but by the people through

their elected representatives in Congress.” City of

Milwaukee v. Illinois, 451 U.S. 304, 312-13 (1981).

True to this guidance, the doors of America’s courthouses should not be closed to American servicemembers and their families under tragic circumstances like those presented in this case. If that

must occur, the nation’s elected representatives,

not unelected judges, should make that hard call.

Had Congress intended to legislate “field preemption”

for any tort claims asserted against private military

contractors, it would have said so. At a minimum, it

would have extended the FTCA to private contractors.

It did neither. That should tell the Court everything it

needs to conclude that the value-laden Boyle doctrine

does not displace state-law tort remedies in this case.

For the foregoing reasons, the lower court’s judgment should be reversed, and the case should be

remanded for further proceedings.

Respectfully submitted,

JOHN MUCKELBAUER

VETERANS OF FOREIGN WARS

OF THE U.S.

406 West 34th Street

Kansas City, MO 64111

Counsel for Veterans of

Foreign Wars of the

United States

August 7, 2025

PETER B. RUTLEDGE

HILLARY K. LUKACS

Counsel of Record

ISABELLE HALE

MORRIS, MANNING &

MARTIN, LLP

3343 Peachtree Road NE

Suite 1600

Atlanta, GA 30326

(404) 504-5492

hlukacs@mmmlaw.com

Counsel for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.