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

No. 24-924

IN THE

Supreme Court of the United States

WINSTON TYLER HENCELY,

Petitioner,

v.

FLUOR CORPORATION, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF AMICUS CURIAE

AMERICAN ASSOCIATION FOR JUSTICE

IN SUPPORT OF PETITIONER

BRUCE PLAXEN

President

AMERICAN ASSOCIATION

FOR JUSTICE

777 6th Street, NW #300

Washington, DC 20001

(410) 730-7737

bruce.plaxen@justice.org

August 7, 2025

JEFFREY R. WHITE

Counsel of Record

AMERICAN ASSOCIATION

FOR JUSTICE

777 6th Street, NW #300

Washington, DC 20001

(202) 617-5620

jeffrey.white@justice.org

i

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................... i

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

INTEREST OF AMICUS CURIAE ........................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................1

ARGUMENT ..............................................................5

I.

PREEMPTION OF STATE TORT

REMEDIES THAT DO NOT CONFLICT

WITH ANY FEDERAL STATUTE OR

REGULATION IS NOT CONSISTENT WITH

THE SUPREMACY CLAUSE. ..........................5

A. The Lower Court Deprived Petitioner of the

Remedy and Accountability Afforded by State

Tort Law, Despite the Absence of Any Conflict

with Federal Law............................................. 7

B. Preemption of State Laws That Are Not in

Conflict with Federal Law Does Not Fall

Within the Supremacy Clause. ....................... 9

1. The text, structure, and history of the

Supremacy Clause support the settled

interpretation that there can be no federal

preemption in the absence of positive

federal law that conflicts with state law. ... 9

ii

2. Preemption of state law in the absence of a

conflict with an act of Congress

undermines federalism. ............................ 14

II. “COMBATANT-ACTIVITIES”

PREEMPTION OF STATE TORT

REMEDIES AGAINST PRIVATE ACTORS

IS INCONSISTENT WITH THIS COURT’S

PREEMPTION JURISPRUDENCE. .............16

A. “Combatant-Activities” Preemption Violates

This Court’s Foundational Principle That the

Intent of Congress Is the Touchstone of

Preemption..................................................... 17

B. “Combatant-Activities” Preemption Ignores

This Court’s Foundational Presumption

Against Preemption. ...................................... 19

1. The presumption against preemption is

essential to protect America’s constitutional

system of federalism. ................................ 20

2. The presumption against preemption is

strongest where preemption of state tort

remedies would leave injured victims with

no remedy at all. ....................................... 21

C. In the Absence of Clear Manifestation of

Congressional Intent, Extending “CombatantActivities” Preemption Invites Judicial

Overreach. ...................................................... 23

III. “COMBATANT ACTIVITIES” PREEMPTION

OF CIVILIAN CONTRACTORS’ STATE

TORT LIABILITY IS UNWISE PUBLIC

POLICY. .............................................................26

iii

A. Federal Preemption of State Tort Remedies

Removes an Important Safety Incentive That

Protects Military and Civilian Personnel. .... 26

B. Tort Liability Will Not Shift Costs to the

Federal Government and Taxpayers, But Will

Actually Result in Lower Contracting Costs

for the Military. ............................................. 29

C. Implied “Combatant Activities” Preemption Is

Not Needed to Protect Other Important

Federal Interests. .......................................... 31

CONCLUSION .........................................................32

iv

TABLE OF AUTHORITIES

Cases

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

751 F. Supp. 2d 698 (S.D.N.Y. 2011) ..................... 26

Al-Quraishi v. Nakhla,

728 F. Supp. 2d 702 (D. Md. 2010), appeal

dismissed en banc sub nom. Al Shimari v. CACI

Int’l, Inc., 679 F.3d 205 (4th Cir. 2012) ................. 18

Borough of Duryea v. Guarnieri,

564 U.S. 379 (2011) ................................................ 22

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988) ........................................ 8, 9, 29

Brandes v. United States,

783 F.2d 895 (9th Cir. 1986) .................................. 31

Campbell-Ewald Co. v. Gomez,

577 U.S. 153 (2016) ................................................ 31

Chamber of Com. of U.S. v. Whiting,

563 U.S. 582 (2011) ................................................ 16

Christopher v. Harbury,

536 U.S. 403 (2002) ................................................ 22

CSX Transp. Inc. v. Easterwood,

507 U.S. 658 (1993) ................................................ 15

Dolan v. U.S. Postal Serv.,

546 U.S. 481 (2006) ................................................ 18

v

English v. General Elec. Co.,

496 U.S. 72 (1990) ............................................ 17, 19

FERC v. Mississippi,

456 U.S. 742 (1982) ................................................ 13

Ford Motor Co. v. Montana Eighth Jud. Dist. Ct.,

592 U.S. 351 (2021) ................................................ 20

Gade v. National Solid Wastes Mgmt. Ass’n,

505 U.S. 88 (1992) ............................................ 10, 16

Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528 (1985) ................................................ 15

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

618 F. Supp. 2d 400 (W.D. Pa. 2009) ..................... 26

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

724 F.3d 458 (3d Cir. 2013)................................ 8, 32

Haywood v. Drown,

556 U.S. 729 (2009) ................................................ 13

Health & Hosp. Corp. of Marion Cnty. v. Talevski,

599 U.S. 166 (2023) ................................................ 12

Hencely v. Fluor Corp.,

120 F.4th 412 (4th Cir. 2024)

............................................. 6, 7, 8, 17, 24, 25, 26, 29

Hencely v. Fluor Corp.,

554 F. Supp. 3d 770 (D.S.C. 2021) ........................... 7

vi

Hencely v. Fluor Corp., Inc.,

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

(D.S.C. June 1, 2020).............................................. 27

Hillsborough Cnty. v.

Automated Med. Laboratories, Inc.,

471 U.S. 707 (1985) .......................................... 20, 25

Ibrahim v. Titan Corp.,

391 F. Supp. 2d 10 (D.D.C. 2005) .......................... 18

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

744 F.3d 326 (4th Cir. 2014) ............................ 25, 26

James v. Kelly Trucking Co.,

661 S.E.2d 329 (S.C. 2008)....................................... 7

Johnson v. United States,

170 F.2d 767 (9th Cir. 1948) .................................. 18

Jones v. Halliburton Co.,

625 F. Supp. 2d 339 (S.D. Tex. 2008), aff’d, 583

F.3d 228 (5th Cir. 2009), cert. dismissed sub nom.

KBR Tech. Servs. Inc. v. Jones, 559 U.S. 998 (2010)

................................................................................. 20

Jones v. Rath Packing Co.,

430 U.S. 519 (1977) ................................................ 20

Kansas v. Garcia,

589 U.S. 191 (2020) ................................................ 16

Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc.,

523 U.S. 751 (1998) ................................................ 24

vii

Kosak v. United States,

465 U.S. 848 (1984) ................................................ 18

Lackey v. Stinnie,

145 S. Ct. 659 (2025) .............................................. 17

Malley v. Briggs,

475 U.S. 335 (1986) ................................................ 23

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .................................. 22

Martin v. United States,

145 S. Ct. 1689 (2025) ............................................ 10

Medtronic, Inc. v. Lohr,

518 U.S. 470 (1996) .................................... 17, 19, 20

Merck Sharp & Dohme Corp. v. Albrecht,

587 U.S. 299 (2019) ................................................ 12

Missouri Pac. Ry. Co. v. Humes,

115 U.S. 512 (1885) ................................................ 21

Murphy v. National Collegiate Athletic Ass’n,

584 U.S. 453 (2018) .......................................... 11, 12

Mutual Pharm. Co. v. Bartlett,

570 U.S. 472 (2013) ................................................ 10

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

583 U.S. 109 (2018) ................................................ 17

New York State Conf. of Blue Cross &

Blue Shield Plans v. Travelers Ins. Co.,

514 U.S. 645 (1995) ................................................ 19

viii

New York v. United States,

505 U.S. 144 (1992) ................................................ 12

Ohio Adjutant Gen.’s Dep’t v. Fed. Lab. Rels. Auth.,

598 U.S. 449 (2023) ................................................ 17

Pacific Mut. Life Ins. Co. v. Haslip,

499 U.S. 1 (1991) .................................................... 21

Payton v. New York,

445 U.S. 573 (1980) ................................................ 21

PLIVA, Inc. v. Mensing,

564 U.S. 604 (2011) ................................................ 11

Puerto Rico Dep’t. of Consumer Affs. v.

Isla Petroleum Corp., 485 U.S. 495 (1988) ............ 16

Saleh v. Titan Corp.,

580 F.3d 1 (D.C. Cir. 2009) ........ 8, 24, 26, 27, 28, 29

Schick v. United States,

195 U.S. 65 (1904) .................................................. 22

Silkwood v. Kerr-McGee Corp.,

464 U.S. 238 (1984) ................................................ 23

Smith v. United States,

507 U.S. 197 (1993) ................................................ 18

Smothers v. Gresham Transfer Inc.,

23 P.3d 333 (Or. 2001), overruled on other grounds,

Horton v. Oregon Health & Sci. Univ., 359 Or. 168

(Or. 2016) ................................................................ 21

ix

South Carolina v. Baker,

485 U.S. 505 (1988) ................................................ 12

Sure–Tan, Inc. v. NLRB,

467 U.S. 883 (1984) ................................................ 22

United Constr. Workers v. Laburnum Constr. Co.,

347 U.S. 656 (1954) ................................................ 23

United States v. Nordic Village, Inc.,

503 U.S. 30 (1992) .................................................. 18

United States v. Yazell,

382 U.S. 341 (1966) ................................................ 13

United States v. Yellow Cab Co.,

340 U.S. 543 (1951) ................................................ 18

Virginia Uranium, Inc. v. Warren,

587 U.S. 761 (2019) .................................... 16, 20, 23

Watts v. SEC,

482 F.3d 501 (D.C. Cir. 2007) ................................ 32

Wyeth v. Levine,

555 U.S. 555 (2009) ........................ 12, 15, 16, 19, 29

Yearsley v. W.A. Ross Constr. Co.,

309 U.S. 18 (1940) .................................................. 31

Constitutional Provisions

U.S. Const. Art. VI, cl. 2 ...................................... 10, 11

x

Statutes

Atomic Testing Liability Act, 50 U.S.C. § 2783 ........ 19

Federal Tort Claims Act (FTCA), 28 U.S.C.

§§ 1346(b), 2671–80 ............... 7, 8, 17, 19, 24, 25, 31

Rules

Fed. R. Civ. P. 45(d) ................................................... 32

Regulations

FAR 52.228-7, 73 Fed. Reg. 16764-01 (Mar. 31, 2008)

(codified at 48 C.F.R. § 52.228-7) ........................... 30

Other Authorities

Bradford R. Clark, Separation of Powers as a

Safeguard of Federalism,

79 Tex. L. Rev. 1321 (2001).............................. 10, 14

Caleb Nelson, Preemption,

86 Va. L. Rev. 225 (2000) ........................... 10, 11, 15

David Schuman, The Right to a Remedy,

65 Temp. L. Rev. 1197 (1992) ................................ 21

Edward Coke, Second Part of the Institutes of the

Laws of England (4th ed. 1671) ............................ 21

Judge Kenneth Starr & Judge Patrick E.

Higginbotham, et al., The Law of Preemption: A

Report of the Appellate Judges Conference (1991)

................................................................................. 24

xi

Kenneth S. Abraham, The Insurance Effects of

Regulation by Litigation, in Regulation Through

Litigation 212 (W. Kip Viscusi ed. 2002) ............... 28

Stephen A. Gardbaum, The Nature of Preemption,

79 Cornell L. Rev. 767 (1994) .................... 10, 11, 13

Stephen G. Breyer, Regulation and Its Reform (1982)

................................................................................. 28

The Records of the Federal Constitutional

Convention of 1787 (Max Farrand ed., 1911).. 14, 15

Viet D. Dinh, Reassessing the Law of Preemption,

88 Geo. L.J. 2085 (2000)......................................... 14

William Blackstone, Commentaries on the Laws of

England (1765) ....................................................... 22

1

INTEREST OF AMICUS CURIAE 1

The American Association for Justice (“AAJ”) is a

national, voluntary bar association established in

1946 to strengthen the civil justice system, preserve

the right to trial by jury, and protect access to the

courts for those who have been wrongfully injured.

With members in the United States, Canada, and

abroad, AAJ is the world’s largest plaintiff trial bar.

AAJ members primarily represent plaintiffs in personal injury actions, employment rights cases, consumer cases, and other civil actions. Throughout its

79-year history, AAJ has served as a leading advocate

for the right of all Americans to seek legal recourse for

wrongful conduct.

AAJ strongly believes that the decision below, depriving military personnel and civilians of legal redress for wrongful injuries caused by private contractors, is not authorized by the Supremacy Clause, violates settled preemption principles established by this

Court, and furthers no desirable public policy objectives.

INTRODUCTION AND

SUMMARY OF ARGUMENT

1. The lower court’s “combatant-activities” preemption of state tort law in the absence of any conflict with

1 Pursuant to Rule 37.6, amicus affirms that no counsel for any

party authored this brief in whole or in part and no person or

entity, other than amicus, its members, or its counsel has made

a monetary contribution to its preparation or submission.

2

a federal statute or regulation having the force of law

is not supported by the Supremacy Clause.

Army Specialist Hencely was severely wounded in

a terrorist attack on Bagram Airfield in Afghanistan,

due to the private contractor Fluor Corporation’s negligent supervision of its Afghan employee in violation

of its contractual obligations and military policy. However, the lower court held that Hencely’s state tort action against Fluor was preempted, not because it conflicted with any federal law, but rather because the

“combatant-activities” exception of the FTCA signaled

a uniquely federal interest that necessitated preemption to shield private contractors from state tort liability.

The federal government’s authority to preempt

state law is derived from the Supremacy Clause. The

plain text makes clear that the Supremacy Clause

does not confer any power to negate state law deemed

inimical to some federal purpose or interest. The operation of the Supremacy Clause is far narrower. It provides a clear rule of decision for judges: If, but only if,

a state law conflicts with the Constitution or with a

valid federal law, judges must apply the federal law.

The conflicting federal law must be one directed at individuals, not the states, and fall within the enumerated powers vested in Congress by the Constitution.

The fact that the drafters did not place the Supremacy

Clause in Article I, which enumerates Congress’s powers, confirms this narrow interpretation. To hold otherwise would turn the Supremacy Clause into a roving

commission for Congress or the courts to negate state

laws deemed contrary to federal interests, even in areas outside of Congress’s enumerated powers.

3

The adoption of the Supremacy Clause also confirms that it vests no raw authority in either Congress

or the judiciary to simply declare a state law

preempted. The delegates to the Constitutional Convention considered but rejected a proposal that would

have authorized Congress to “negate” any state law

deemed to be “improper.” Granting supremacy only to

federal “laws” prevents the federal government from

running roughshod over the interests of the states,

even inadvertently, by requiring that preemption be

based on federal laws enacted with the participation

of the states, not on some brooding federal interest discerned by the judiciary.

2a. The lower court’s “combatant-activities” preemption also conflicts with the two “cornerstones” of this

Court’s preemption jurisprudence. The intent of Congress to displace state law with federal law is the

“touchstone” of preemption analysis. The court below

purported to preempt Petitioner’s state-tort remedies

with no reliable indicia, from either a federal statute

or regulatory scheme, that Congress so intended. Instead, the court stated its own view that state tort

laws would clash with the federal interest underlying

the FTCA’s “combatant-activities” exception.

That provision merely preserves the federal government’s sovereign immunity for claims arising from

the activities of the armed forces. The plain text gives

no indication that Congress intended to shield private

contractors from liability as well. In fact, Congress expressly provided that the application of the FTCA does

not include contractors. When Congress intends for an

exception to protect contractors from liability, it does

so explicitly.

4

2b. The lower court’s application of “combatant-activities” preemption also ignores this Court’s foundational presumption that the historic police powers of

the states are not to be preempted unless that was the

clear and manifest intent of Congress. Employer liability for harm resulting from negligent supervision of

employees, as in this case, is an area traditionally subject to state law.

Preemption of state tort remedies represents a serious intrusion into the interests of the sovereign

states in providing legal recourse for wrongful injury.

Indeed, providing a legal remedy for injury is a basic

due process requirement under both federal and state

constitutions. The presumption against preemption of

state tort remedies is especially compelling where, as

here, preemption leaves a plaintiff with no legal recourse at all.

Preemption that is unmoored from any express or

implied congressional intent invites overreach and impermissible judicial lawmaking. Courts that have applied “combatant-activities” preemption of the kind

embraced by the lower court have extended it to shield

the carelessness of contractors in circumstances far removed from the exigencies of combat.

3. Rejection of “combatant-activities” preemption

will not undermine important governmental policies.

While the notion of deterring risk-taking may be out

of place in the context of hostilities by actual combatants against an adversary, reasonable care is wholly

appropriate for contractors providing essential support services. Due to the large number of civilian contractors, and the fact that they are not under direct

military command, the government depends upon the

5

contracting companies themselves to supervise their

workers and ensure they perform their contractual obligations safely. By broadly erasing potential state tort

liability, the lower court deprives the government and

its military of an important tool to incentivize compliance with its own safety and security policies. That incentive fairly places the cost of injuries on contractors,

who are best positioned to prevent them.

Imposing tort liability will not result in contractors passing the costs of judgments along to the taxpayers. Federal contracting regulations prohibit indemnification of private contractors for liability costs

attributable to their own contract violations. Potential

tort liability for contractors will actually result in

lower costs to the taxpayer as contractors who invest

in safety face lower potential liability and are able to

bid lower on service contracts.

Finally, this Court’s rejection of “combatant-activities” preemption would not undermine other legitimate governmental concerns. Corporations that actually act as instrumentalities of the government and

that faithfully comply with their contractual obligations will retain their derivative immunity. Liability

claims that second-guess military decision-making

will continue to be dismissed as nonjusticiable political questions. The federal rules will continue to protect

against discovery that would disclose privileged information or impose undue burdens on the government.

ARGUMENT

I.

PREEMPTION OF STATE TORT REMEDIES

THAT DO NOT CONFLICT WITH ANY FEDERAL STATUTE OR REGULATION IS NOT

6

CONSISTENT

CLAUSE.

WITH

THE

SUPREMACY

Former U.S. Army Specialist Winston Tyler

Hencely is undeniably a hero. On November 12, 2016,

at the Bagram Airfield base in Afghanistan, he spotted

Ahmad Nayeb, an Afghan employed by contractor

Fluor Corporation, looking out of place and nervous.

Nayeb was conspicuously unescorted as he approached a crowd of military and civilian personnel

gathered for a Veterans Day event. Hencely confronted Nayeb, who detonated a suicide vest hidden

beneath his robe. Five persons were killed and 17 were

injured in the blast, but Hencely’s actions prevented

an untold number of additional casualties. He himself,

then 20 years old, was severely wounded. Hencely v.

Fluor Corp., 120 F.4th 412, 420 (4th Cir. 2024).

There is no serious question that the primary responsibility for the attack falls on Fluor. Following an

extensive investigation, the Army’s AR-15-6 report

concluded that Fluor failed to supervise Nayeb at his

workplace. Flour allowed him to roam at will, gathering the shrapnel and other items he would use for his

bomb. Fluor lent him the tools he used to build it. And

Fluor allowed Nayeb to wander away from his workstation unescorted, with the explosive vest hidden under his clothing for about an hour until he encountered

Specialist Hencely. Id. at 420–21. All of these actions

violated Fluor’s contract with the government and military policies regarding Local Nationals with

which,“[f]or obvious reasons, the military required

Fluor's strict compliance.” Id. at 420. This failure was

“the primary contributing factor” in the attack. Id. at

421.

7

Hencely filed suit under South Carolina’s employer liability law, seeking compensation for his severe injuries and accountability for those responsible.

See James v. Kelly Trucking Co., 661 S.E.2d 329, 330

(S.C. 2008) (“[A] plaintiff may claim that the employer

was itself negligent in hiring, supervising, or training

the employee, or that the employer acted negligently

in entrusting its employee with a tool that created an

unreasonable risk of harm to the public.”).

But the district court granted summary judgment

in Fluor’s favor, ruling that Hencely’s claim would

“conflict with the uniquely federal interests underlying the FTCA’s combatant activities exception.”

Hencely v. Fluor Corp., 554 F. Supp. 3d 770, 774

(D.S.C. 2021). The Fourth Circuit affirmed. 120 F.4th

412 (4th Cir. 2024). In so doing, the court fashioned an

extraordinarily broad implied preemption defense for

the benefit of Fluor and other civilian contractors

working with the military.

A. The Lower Court Deprived Petitioner of

the Remedy and Accountability Afforded

by State Tort Law, Despite the Absence

of Any Conflict with Federal Law.

The Federal Tort Claims Act (FTCA) broadly

waives the United States’ sovereign immunity from liability from tort suits. 28 U.S.C. §§ 1346(b), 2671–80.

But that waiver is subject to exceptions, including for

any “claim arising out of the combatant activities of

the military or naval forces . . . during time of war.” Id.

at § 2680(j).

Because Fluor is not an employee of the United

States, the FTCA is not the basis for Hencely’s claim;

8

nor is § 2680(j) available to Fluor as a defense. Nevertheless, the court below adopted an ill-defined implied

field preemption, first formulated by the D.C. Circuit

which posited that emanations from § 2680(j) signal a

federal interest so compelling as to displace all state

tort liability:

During wartime, where a private service

contractor is integrated into combatant

activities over which the military retains

command authority, a tort claim arising

out of the contractor's engagement in

such activities shall be preempted.

120 F.4th at 426 (quoting Saleh v. Titan Corp., 580

F.3d 1, 9 (D.C. Cir. 2009)). The Third Circuit has

adopted this same standard. See Harris v. Kellogg

Brown & Root Servs., Inc., 724 F.3d 458, 480–81 (3d

Cir. 2013).

This preemption, the court stated, is not based on

any conflict between state tort law and a federal statute or regulation. It is based instead on conflict with a

“uniquely federal interest.” 120 F.4th at 426 (quoting

Boyle v. United Techs. Corp., 487 U.S. 500, 507 (1988)).

“In other words, when it comes to warfare, ‘the federal

government occupies the field’ and ‘its interest in combat is always precisely contrary to the imposition of a

non-federal tort duty.” Id. (quoting Saleh, 580 F.3d at

7). The Fourth Circuit also borrowed the D.C Circuit’s

the term for this newly fashioned ouster of state law:

“battle-field preemption.” Id. at 429 (quoting Saleh,

580 F.3d at 7).

To be clear, preemption of state law in the absence

of conflict with positive federal law is not compelled by

9

Boyle, where this Court explained that field preemption may require “a uniform rule” such that the “entire

body of state law applicable to the area conflicts and

is replaced by federal rules.” Boyle, 487 U.S. at 507–08

(emphasis added); see also id. at 504 (holding that certain areas “are so committed . . . to federal control that

state law is pre-empted and replaced, where necessary, by federal law”) (emphasis added). In this instance, the lower court preempted Petitioner’s state

tort remedy and replaced it with nothing. 2

B. Preemption of State Laws That Are Not

in Conflict with Federal Law Does Not

Fall Within the Supremacy Clause.

1. The text, structure, and history of the Supremacy Clause support the settled interpretation that there can be no federal preemption in the absence of positive federal law

that conflicts with state law.

“As the Supreme Court and virtually all commentators have acknowledged, the Supremacy Clause is

the reason that valid federal statutes trump state

law.” Bradford R. Clark, Separation of Powers as a

Safeguard of Federalism, 79 Tex. L. Rev. 1321, 1330

2 Boyle provides government contractors a narrow and carefully

defined defense based on compliance with contract specifications.

487 U.S. at 512. It does not support the vague, freewheeling defense fashioned by the court below to shield contractors who engage in tortious activities in violation of their contracts with the

military.

10

(2001) (quoting Caleb Nelson, Preemption, 86 Va. L.

Rev. 225, 234 (2000)). 3

The Supremacy Clause provides:

This Constitution, and the Laws of the

United States which shall be made in

Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges

in every State shall be bound thereby,

any Thing in the Constitution or Laws of

any State to the Contrary notwithstanding.

U.S. Const. Art. VI, cl. 2.

Preemption is the Founders’ solution to the potential conflicts in our federalist system “resulting from

concurrent state and federal powers” over individuals.

Stephen A. Gardbaum, The Nature of Preemption, 79

Cornell L. Rev. 767, 774 (1994). “[W]hen a regulated

party cannot comply with both federal and state directives, the Supremacy Clause tells us the state law

must yield.” Martin v. United States, 145 S. Ct. 1689,

1700 (2025).

This Court has emphasized that the Supremacy

Clause is no broader than that. “[It] is not an independent grant of legislative power to Congress. Instead, it simply provides ‘a rule of decision.’ It specifies

See, e.g., Mutual Pharm. Co. v. Bartlett, 570 U.S. 472, 480

(2013) (“[O]ur pre-emption doctrine is derived” from the Supremacy Clause) (quoting Gade v. National Solid Wastes Mgmt. Ass’n,

505 U.S. 88, 108 (1992); Philadelphia v. New Jersey, 430 U.S. 141,

142 (1977) (“[F]ederal pre-emption of state statutes is, of course,

ultimately a question under the Supremacy Clause . . . .”).

3

11

that federal law is supreme in case of a conflict with

state law.” Murphy v. National Collegiate Athletic

Ass’n, 584 U.S. 453, 477 (2018) (citation omitted). If

Congress does not already possess the authority to legislate in an area governed by state law, the Supremacy

Clause does not itself confer that authority. It does not

authorize either Congress or the federal judiciary to

simply disregard state laws that they deem inconvenient or unwise. To so hold would allow Congress to

bootstrap its own authority to legislate in areas outside of its enumerated powers. See Gardbaum, supra,

at 776–77.

This constitutional limitation is clear from the Supremacy Clause’s text. Justice Thomas, drawing on

the scholarship of Professor Nelson in the plurality

portion of his opinion in PLIVA, Inc. v. Mensing, 564

U.S. 604 (2011), calls attention to the phrase “the Constitution or Laws of any State to the Contrary notwithstanding.” Id. at 617 (quoting U.S. Const. Art. VI, cl.

2). Eighteenth-century legislatures often used this

sort of “non obstante provision” to signify that a statute “was meant to repeal older, potentially conflicting

statutes in the same field.” Id. at 621–22 (citing Nelson, supra, at 234–53). The plain meaning of the Supremacy Clause directs judges to find preemption “if

and only if state law contradicts a valid rule established by federal law.” Nelson, supra, at 231. “The Supremacy Clause grants ‘supreme’ status only to ‘the

12

Laws of the United States.” Merck Sharp & Dohme

Corp. v. Albrecht, 587 U.S. 299, 315 (2019). 4

This Court has also made it clear that the federal

law supposedly in conflict with state law “must represent the exercise of a power conferred on Congress by

the Constitution . . . to regulate individuals, not

States.” Murphy, 584 U.S. at 477. Merely “pointing to

the Supremacy Clause will not do.” Id. Nor will an act

of Congress or a judicial decree that prohibits or limits

the states’ application of their own tort laws.

The “Constitution's division of authority between

federal and state governments” does not allow Congress to “commandeer state governments into the service of federal regulatory purposes.” New York v.

United States, 505 U.S. 144, 175 (1992) (internal quote

omitted). “Conspicuously absent” from the federal government’s enumerated powers is “the power to issue

direct orders to the governments of the States.” Murphy, 584 U.S. at 471. See also Health & Hosp. Corp. of

Marion Cnty. v. Talevski, 599 U.S. 166, 202–03 (2023)

(Thomas, J., dissenting). Indeed, “the Tenth Amendment might set some limits on Congress’ power to compel States to regulate on behalf of federal interests.”

South Carolina v. Baker, 485 U.S. 505, 513 (1988).

Consequently, “in the absence of specific congressional action,” courts may not simply decree “that implementation of federal interests requires overriding”

state law. United States v. Yazell, 382 U.S. 341, 352

4 “[A]n agency regulation with the force of law can pre-empt conflicting state requirements” as well. Wyeth v. Levine, 555 U.S.

555, 576 (2009) (emphasis added).

13

(1966). As Professor Gardbaum points out, such a decree “begs the question it poses,” which is whether

Congress or the federal courts possess the constitutional authority to declare “there shall be no state regulation of field X” in the first place. Gardbaum, supra,

at 776. If Congress does not already have the power to

rewrite or negate state tort law, the Supremacy

Clause cannot bestow that power. Id. at 776–77. To

hold otherwise would turn the Supremacy Clause into

a roving commission for Congress or the courts to negate state laws deemed contrary to federal “interests,”

even in areas where the federal government itself has

no authority to make federal law.

The adoption of the Supremacy Clause clearly

shows that such an expansion of federal power to rewrite or negate state law is quite the opposite of the

original intent. As detailed by Justice O’Connor, the

Founding Fathers who gathered in Philadelphia recognized that the authority of Congress under the Articles of Confederation over the states, but not the individuals residing in the states, needed to be replaced.

But the system of federalism that vested both the state

and federal sovereigns with authority over individuals

obviously posed a problem of conflicting directives and

enforcement. See FERC v. Mississippi, 456 U.S. 742,

791–93 (1982) (O’Connor, J., dissenting). See also

Haywood v. Drown, 556 U.S. 729, 751–52 (2009)

(Thomas, J., dissenting).

James Madison, advocating for the Virginia Plan

saw “the negative on the laws of the States as essential to the efficacy & security of the Genl. Govt.” 2 The

Records of the Federal Constitutional Convention of

14

1787, at 27 (Max Farrand ed., 1911) [hereinafter Farrand’s Records]. After two proposals failed, Charles

Pinckney put forth a provision giving Congress power

“to negative all Laws which they shd. judge to be improper.” 1 Farrand’s Records at 164. This proposal was

strongly criticized by delegates who feared that the

new government would overwhelm and even “enslave

the States.” Id. at 165. The convention soundly rejected the power to negate state law and unanimously

adopted a provision from the New Jersey plan that

closely resembled the current Supremacy Clause. 2

Farrand’s Records at 28–29. See also FERC, 456 U.S.

at 794–95 (O’Connor, J., dissenting); Viet D. Dinh, Reassessing the Law of Preemption, 88 Geo. L.J. 2085,

2089–90 (2000); Clark, supra, at 1348–55.

The Founders’ placement of the Supremacy

Clause confirms its textual meaning. If the [Supremacy] Clause were meant to be an affirmative grant of

Congressional power, it would likely reside in the metropolis of Congressional power, Article I, Section 8,

rather than in the suburbs of Article VI.” Dinh, supra,

at 2088.

It is clear from both the text of the Supremacy

Clause and the context of its adoption that it does not

grant the federal government the raw power to negate

state law in the absence of an actual conflict with a

federal law.

2. Preemption of state law in the absence of a

conflict with an act of Congress undermines

federalism.

The constitutional requirement that state law be

preempted only by positive “Laws of the United

15

States” made pursuant to the Constitution, and not

mere “federal interests” discerned by judges, furthers

the preservation of our system of federalism.

“The Supremacy Clause . . . requires that pre-emptive effect be given only to those federal standards and

policies that are set forth in, or necessarily follow

from, the statutory text that was produced through

the constitutionally required bicameral and presentment procedures.” Wyeth, 555 U.S. at 586 (Thomas, J.,

concurring). This Court established in Garcia v. San

Antonio Metro. Transit Auth., 469 U.S. 528 (1985),

that the autonomy of the states is “properly protected

by the procedural safeguards inherent in the structure

of the federal system,” which gives the states representation in Congress. Id. at 552. By limiting preemption of state law to conflicts with enactments of Congress, the Supremacy Clause makes the states participants in fashioning the preemptive scope of federal

law, and thus serves to guard against “unintended encroachments on the authority of the States.” CSX

Transp. Inc. v. Easterwood, 507 U.S. 658, 664 (1993).

See also 1 Farrand’s Records at 355 (documenting

Madison’s notes of James Wilson’s remarks at the

Constitutional Convention that state governments,

“by [their] participation in the Genl. Govt. would have

an opportunity of defending their rights”); Nelson, supra, at 305 n.228.

Seeking preemption in the absence of a substantive conflict between federal and state laws leaves

judges in the position of engaging in a “freewheeling

judicial inquiry into whether a state statute is in tension with federal objectives” or interests, which, of

16

course, “would undercut the principle that it is Congress rather than the courts that pre-empts state law.”

Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 607

(2011) (quoting Gade, 505 U.S. at 111 (Kennedy, J.,

concurring). Preemption of state law must not be

based on “[i]nvoking some brooding federal interest or

appealing to a judicial policy preference.” Kansas v.

Garcia, 589 U.S. 191, 202 (2020) (quoting Virginia

Uranium, Inc. v. Warren, 587 U.S. 761, 767 (2019)

(opinion of Gorsuch, J.)).

In sum, “[t]here is ‘no federal preemption in

vacuo,’ without a constitutional text, federal statute,

or treaty made under the authority of the United

States.” Garcia, 589 U.S. at 202 (quoting Puerto Rico

Dep’t. of Consumer Affs. v. Isla Petroleum Corp., 485

U.S. 495, 503 (1988)). This Court should therefore reverse.

II. “COMBATANT-ACTIVITIES” PREEMPTION

OF STATE TORT REMEDIES AGAINST PRIVATE ACTORS IS INCONSISTENT WITH

THIS COURT’S PREEMPTION JURISPRUDENCE.

In addition to the absence of a sound constitutional basis, the “combatant-activities” theory of

preemption espoused by the court below violates the

two fundamental “cornerstones” of this Court’s

preemption jurisprudence: The primacy of the intent

of Congress and the presumption against preemption

of state tort remedies. Wyeth, 555 U.S. at 565. Failure

to abide by these settled principles invites courts to

improperly assume the role of lawmaker.

17

A. “Combatant-Activities” Preemption Violates This Court’s Foundational Principle That the Intent of Congress Is the

Touchstone of Preemption.

This Court has instructed that “[p]re-emption fundamentally is a question of congressional intent.” English v. General Elec. Co., 496 U.S. 72, 78–79 (1990).

Indeed, “the purpose of Congress is the ultimate

touchstone in every pre-emption case.” Medtronic, Inc.

v. Lohr, 518 U.S. 470, 485 (1996) (citation omitted).

Here, the lower court pointed to no reliable indicia

of congressional intent to displace state tort liability of

employers who are civilian contractors for the military. There is no Act of Congress or scheme of federal

regulation in which such intent was expressed or from

which it might be inferred. Instead, the court below

stated its own view that “state tort laws would clash

with the federal interest underlying the combatant activities exception.” 120 F.4th at 426.

The FTCA cannot supply the missing congressional intent. Section 2680(j) provides that Congress’s

broad waiver of sovereign immunity “shall not apply

to . . . [a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard

during time of war.”

The interpretation of statutes “begin[s] with the

text.” Lackey v. Stinnie, 145 S. Ct. 659, 666 (2025). If

the text is unambiguous, statutory interpretation

“ends there as well.” Ohio Adjutant Gen.’s Dep’t v. Fed.

Lab. Rels. Auth., 598 U.S. 449, 463 (2023) (quoting

Nat’l Ass’n of Mfrs. v. Dep’t of Def., 583 U.S. 109, 127

(2018)). In this instance, § 2680(j) applies only to

18

claims arising out of the activities of the armed forces,

“which by their very nature should be free from the

hindrance of a possible damage suit.” Ibrahim v. Titan

Corp., 391 F. Supp. 2d 10, 19 (D.D.C. 2005) (quoting

Johnson v. United States, 170 F.2d 767, 769 (9th Cir.

1948)). There is absolutely no basis for supposing that

Congress intended this language to protect private

contractors from possible tort lawsuits for damages.

Instead, the plain text of § 2680(j) demonstrates that

Congress intended “to allow most tort suits against

government contractors to proceed.” Al-Quraishi v.

Nakhla, 728 F. Supp. 2d 702, 739–40 (D. Md. 2010),

appeal dismissed en banc sub nom. Al Shimari v.

CACI Int’l, Inc., 679 F.3d 205 (4th Cir. 2012).

Nor should “combatant activities of the military”

be stretched beyond reason to include the support activities of civilian contractors not actually engaged in

hostilities. The FTCA “waives the Government’s immunity from suit in sweeping language,” Dolan v. U.S.

Postal Serv., 546 U.S. 481, 492 (2006) (quoting United

States v. Yellow Cab Co., 340 U.S. 543, 547 (1951)),

and this Court has cautioned against “unduly generous interpretations of the exceptions [that] run the

risk of defeating the central purpose of the statute.”

Id.; see also Kosak v. United States, 465 U.S. 848, 853

n.9 (1984). As a “canon of construction” applicable to

the FTCA, Chief Justice Rehnquist stated, the Court

should not “assume the authority to narrow the waiver

that Congress intended.” Smith v. United States, 507

U.S. 197, 203 (1993); see also United States v. Nordic

Village, Inc., 503 U.S. 30, 34 (1992) (explaining that

this Court has “narrowly construed exceptions to

19

waivers of sovereign immunity where that was consistent with Congress’ clear intent, as in the context of

the ‘sweeping language’ of the [FTCA]”).

Lest there be any doubt as to its intent on this

point, Congress expressly provided that the federal

agencies covered by the FTCA include “the military

departments . . . and corporations primarily acting as

instrumentalities or agencies of the United States, but

does not include any contractor with the United

States.” 28 U.S.C. § 2671 (emphasis added). In fact,

when Congress has intended to shield contractors

from liability it has done so explicitly. See, e.g., the

Atomic Testing Liability Act, 50 U.S.C. § 2783 (applying FTCA protections to contractors in suits arising

out of “exposure to radiation based on acts or omissions by a contractor in carrying out an atomic weapons testing program under a contract with the United

States”).

B. “Combatant-Activities” Preemption Ignores This Court’s Foundational Presumption Against Preemption.

The second cornerstone of this Court’s preemption

jurisprudence is “the assumption that the historic police powers of the States were not to be superseded by

the Federal Act unless that was the clear and manifest

purpose of Congress.” Medtronic, 518 U.S. at 485; English, 496 U.S. at 79. This presumption against preemption applies to claims of implied conflict preemption. See, e.g., Wyeth, 555 U.S. at 565; New York State

Conf. of Blue Cross & Blue Shield Plans v. Travelers

Ins. Co., 514 U.S. 645, 655 (1995). And it applies with

particular force where it would oust state law in a field

20

that, like employer liability for negligent supervision

of employees, “has been traditionally occupied by the

States.” Hillsborough Cnty. v. Automated Med. Laboratories, Inc., 471 U.S. 707, 715 (1985).

1. The presumption against preemption is essential to protect America’s constitutional

system of federalism.

This Court has emphasized that the presumption

against federal preemption of state law is not a mere

rule of construction. It is based on “important and sensitive federalism concerns,” Jones v. Rath Packing Co.,

430 U.S. 519, 525 (1977), and is deeply woven into the

fabric of government where “the States are independent sovereigns in our federal system.” Medtronic, 518

U.S. at 485. “The preemption of state laws represents

‘a serious intrusion into state sovereignty.’” Virginia

Uranium, 587 U.S. at 773 (quoting Medtronic, 518

U.S. at 488) (plurality opinion)). It is particularly

harmful to federalism, Justice Gorsuch added, when

preemption is based “not on the strength of a clear congressional command.” Id.

States have a strong interest in providing a remedy for wrongful harms to their citizens “as well as enforcing their own safety regulations.” Ford Motor Co.

v. Montana Eighth Jud. Dist. Ct., 592 U.S. 351, 368

(2021). See, e.g., Jones v. Halliburton Co., 625 F. Supp.

2d 339 (S.D. Tex. 2008), aff’d, 583 F.3d 228 (5th Cir.

2009), cert. dismissed sub nom. KBR Tech. Servs. Inc.

v. Jones, 559 U.S. 998 (2010) (tort suit by a Texas

woman alleging rape by fellow contractor employees

in Iraq). This Court has pronounced it “the duty of

every State to provide, in the administration of justice,

21

for the redress of private wrongs” under the Due Process Clause of the Fourteenth Amendment. Missouri

Pac. Ry. Co. v. Humes, 115 U.S. 512, 521 (1885).

Thirty-eight states expressly guarantee the right to a

remedy for wrongful injury in their state constitutions. See David Schuman, The Right to a Remedy, 65

Temp. L. Rev. 1197, 1201 n.25 (1992) (listing state

constitutional provisions).

2. The presumption against preemption is

strongest where preemption of state tort

remedies would leave injured victims with

no remedy at all.

The Founders were well acquainted with Sir Edward Coke’s exposition of Chapter 29 of the Magna

Carta: “Every Subject may take his remedy by the

course of the Law, and have justice, and right for the

injury done to him, freely without sale, fully without

denial, and speedily without delay.” Edward Coke,

Second Part of the Institutes of the Laws of England

55–56 (4th ed. 1671). 5 They were equally familiar with

the Blackstone’s bedrock common-law principle:

“Every right, when withheld, must have a remedy, and

Coke was “widely recognized by the American colonists ‘as the

greatest authority of his time on the laws of England.”’ Payton v.

New York, 445 U.S. 573, 594 (1980) (footnote omitted). The remedy clauses that appear in the state constitutions “traces to Edward Coke’s commentary.” Smothers v. Gresham Transfer Inc.,

23 P.3d 333, 340 (Or. 2001), overruled on other grounds, Horton

v. Oregon Health & Sci. Univ., 359 Or. 168 (Or. 2016). The U.S.

Constitution’s Fifth Amendment guarantee of due process is itself an “affirmation of Magna Charta according to Coke.” Pacific

Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 29 (1991) (Scalia, J., concurring).

5

22

every injury its proper redress” by access to “a legal

remedy by suit or action at law.” 3 William Blackstone,

Commentaries on the Laws of England *23, *109

(1765). 6

Chief Justice John Marshall, echoing Blackstone,

restated this principle:

The very essence of civil liberty certainly

consists in the right of every individual

to claim the protection of the laws, whenever he receives an injury. One of the

first duties of government is to afford

that protection.

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163

(1803).

Consequently, this Court has declared, “the right

of access to courts for redress of wrongs is an aspect of

the First Amendment right to petition the government.” Sure–Tan, Inc. v. NLRB, 467 U.S. 883, 896–97

(1984). See also Borough of Duryea v. Guarnieri, 564

U.S. 379, 387 (2011) (collecting cases). In fact, this

Court has located the fundamental right of access to

the courts to seek legal redress in multiple provisions

of the Constitution. Christopher v. Harbury, 536 U.S.

403, 415 n.12 (2002).

The fundamental importance of this right makes

the presumption against preemption even stronger

where, as here, “Congress has neither provided nor

Schick v. United States, 195 U.S. 65, 69 (1904) (Blackstone’s Commentaries were widely accepted as “the most satisfactory exposition of the common law of England. . . . [U]ndoubtedly,

the framers of the Constitution were familiar with it.”).

6

23

suggested any substitute for the traditional state

court procedure for collecting damages for injuries

caused by tortious conduct.” United Constr. Workers v.

Laburnum Constr. Co., 347 U.S. 656, 663–64 (1954).

As the Court explained in Silkwood v. Kerr-McGee

Corp., 464 U.S. 238 (1984), “[i]t is difficult to believe

that Congress would, without comment, remove all

means of judicial recourse for those injured by illegal

conduct.” Id. at 251. Justice Blackmun in his dissent

was equally emphatic on this point: “The absence of

federal regulation governing the compensation of victims is strong evidence that Congress intended the

matter to be left to the States.” Id. at 264 n.7.

C. In the Absence of Clear Manifestation of

Congressional Intent, Extending “Combatant-Activities” Preemption Invites

Judicial Overreach.

This Court’s role “is to interpret the intent of Congress in enacting [the statute], not to make a freewheeling policy choice.” Malley v. Briggs, 475 U.S. 335,

342 (1986). This means, as Justice Gorsuch has stated,

respecting “not only what Congress wrote but, as importantly, what it didn’t write.” Virginia Uranium,

587 U.S. at 765. Without a clear expression of congressional purpose to serve as a polestar, courts may feel

“free to extend a federal statute to a sphere Congress

was well aware of but chose to leave alone.” Id. As Justice Stevens, joined by Justices Thomas and Ginsberg,

warned in another context,

In the absence of any congressional statute, . . . creation of a federal common-law

“default” rule of [tribal immunity] might

24

in theory be justified by federal interests.

By setting such a rule, however, the

Court is not deferring to Congress or exercising “caution” – rather, it is creating

law.

Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 523 U.S.

751, 764–65 (1998) (Stevens, J., dissenting). This

warning echoes the admonition of other appellate jurists: “When judges preempt state laws in the absence

of explicit congressional guidance, they in effect assume a legislative role without accepting legislative

responsibility.” Judge Kenneth Starr & Judge Patrick

E. Higginbotham, et al., The Law of Preemption: A Report of the Appellate Judges Conference 48 (1991).

In this case, for example, the court below sought

to divine a preemptive purpose out of an asserted “conflict between federal and state interests.” 120 F.4th at

426. Taking its cue from the D.C. Circuit’s explanation

that traditional tort rationales such as deterrence of

risky behavior and compensation of victims “are singularly out of place in combat situations,” id. at 429

n.7 (quoting Saleh, 580 F.3d at 7), the court below

strayed far beyond the plain meaning of the text of

§ 2680(j), which is that Congress intended to eliminate

tort liability only for the activities of the U.S. Armed

Forces.

The lower court itself made clear that “the purpose

of the combatant activities exception is . . . to foreclose

state regulation of the military’s battlefield conduct

and decisions.” Id. at 430 (citation omitted). But the

court offered no practical explanation of how imposing

liability on a civilian contractor for wrongful and preventable harms conflicts with that purpose. Indeed,

25

the court was “not convinced that deciding Hencely’s

case would cause the court to “inevitably be drawn into

a reconsideration of military decisions” or “require the

district court to evaluate the propriety of [those] judgments.” Id. at 425 (internal citations omitted). Nevertheless, the court ipse dixit declared a federal interest

in shielding civilian contractors from state tort liability.

This Court has previously encountered and rejected such judicial overreach. In Hillsborough

County, this Court was “unpersuaded” by the argument “that an intent to pre-empt [local blood donor

safety regulations] can be inferred from the dominant

federal interest in this field.” 471 U.S. at 719. Not

every “subject of national concern . . . ousts all related

state law.” Id.

The practical impact of the lower court’s vague

and open-ended rationale is to provide no limiting

principle to the erasure of state remedies otherwise

available to wrongfully injured victims. In place of

Congress’s narrowly crafted exception in § 2680(j), the

court-fashioned “combatant-activities” preemption

rule has been applied to shield civilian contractors

from accountability for their own carelessness and incompetence in circumstances far removed from actual

combat. Examples include: careless hazardous waste

disposal and water treatment at bases in Iraq and Afghanistan that contaminated the air and water, sickening soldiers and civilians alike (In re KBR, Inc.,

Burn Pit Litig., 744 F.3d 326 (4th Cir. 2014)); failure

to ground an electric water pump at a base in Iraq that

resulted in the fatal electrocution of an Army staff sergeant as he was showering (Harris v. Kellogg Brown

26

& Root Services, Inc., 618 F. Supp. 2d 400 (W.D. Pa.

2009)); and negligent maintenance of a latrine at a

base in Iraq, resulting in severe injuries to civilian

contractor who slipped and fell on the wet floor (Aiello

v. Kellogg, Brown & Root Servs., Inc., 751 F. Supp. 2d

698 (S.D.N.Y. 2011)).

III. “COMBATANT ACTIVITIES” PREEMPTION

OF CIVILIAN CONTRACTORS’ STATE

TORT LIABILITY IS UNWISE PUBLIC POLICY.

A. Federal Preemption of State Tort Remedies Removes an Important Safety Incentive That Protects Military and Civilian

Personnel.

The rationale offered by the Fourth Circuit for

broad preemption is that “all of the traditional rationales for tort law—deterrence of risk-taking behavior,

compensation of victims, and punishment of tortfeasors—are singularly out of place in combat situations,

where risk-taking is the rule.” Hencely, 120 F.4th at

429 n.7 (quoting Saleh, 580 F.3d at 7). But it is a forceful blow aimed at a straw man. Civilian contractors

are not combatants and are prohibited from engaging

in combat activities. Nor is “risk-taking” a desirable

mode when providing meals, constructing housing,

maintaining equipment, and carrying out the many

other services that civilian contractors do perform.

The military has come to depend upon civilian

contractors to provide these services. During operations in Iraq and Afghanistan, the number of civilian

contractors has at times exceeded the number of uniformed personnel. In re KBR, Inc., 744 F.3d at 331.

27

This presents problems of accountability. Due to the

sheer number of contractors, and because they are not

under the military’s direct control, military policy sensibly relies on the contracting companies themselves

to take reasonable steps to ensure that their employees’ activities do not present an unreasonable danger

to the military and civilians around them. Department

of Defense regulations and the U.S. Army Field Manual state emphatically that the management and supervision of contractor employees is the responsibility

of the contractors themselves and not the military. See

Saleh, 580 F.3d at 33 (Garland, J., dissenting).

In this case, and unlike the procurement contractor in Boyle,

Fluor operated with wide latitude and

considerable discretion in the ways it supervised NTV Yard employees, entrusted NTV Yard employees with tools,

evaluated [Local National] employee performance and chose to retain Nayeb, implemented the LN escort process to and

from the NTV Yard, and exercised control over LN employees during said escort process.

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

WL 2838687, at *12 (D.S.C. June 1, 2020).

Preemption of state tort remedies deprives the

military of the most potent means of influencing private contractors to invest in safety and security: the

profit motive. It “remove[s] an important tool from the

Executive’s foreign policy toolbox.” Saleh, 580 F.3d at

29 (Garland, J., dissenting). It is not state tort liability

28

of contractors that risks interfering with military

judgments. Rather it is depriving the Executive

Branch of the option of relying on the financial incentive of potential liability, “[e]ven if the Executive believes that U.S. interests would be advanced by subjecting private contractors to tort liability.” Id. In fact,

“the Department of Defense has repeatedly stated that

employees of private contractors accompanying the

Armed Forces in the field . . . are subject to civil liability.” Id. at 17 (Garland, J., dissenting).

When an injured plaintiff’s tort remedy is denied,

their injuries and their costs do not disappear. They

fall instead on the health care system, other government programs, charities, and, most importantly, on

victims themselves and their families. Shifting the

costs of the harms caused by contractors to others is

neither just nor effective. The costs of avoidable injuries should be imposed on the party most able to avoid

them. Tort liability is fair, effective, and efficient in

preventing future tragedies. See generally Guido Calabresi, The Costs of Accidents 68–129 (1970). In this

way, lawsuits “promot[e] optimal deterrence—the taking of precautions and selection of activities that minimize the sum of accident costs and accident avoidance

costs.” Kenneth S. Abraham, The Insurance Effects of

Regulation by Litigation, in Regulation Through Litigation 212, 232 (W. Kip Viscusi ed. 2002). See also Stephen G. Breyer, Regulation and Its Reform 175 (1982)

(favoring the rule that is “likely to place costs on the

party best able to avoid them”).

The lower court suggested that combatant-activities preemption “avoid[s] potential interference ‘with

29

the federal government’s authority to punish and deter misconduct by its own contractors.’” Hencely, 120

F.4th at 430 (quoting Saleh, 580 F.3d at 8). But of

course, federal and state tort remedies often coexist

and reinforce each other. See, e.g., Wyeth, 555 U.S. at

579 (noting the FDA’s reliance on state tort lawsuits

to provide “an additional, and important, layer of consumer protection that complements FDA regulation”).

B. Tort Liability Will Not Shift Costs to the

Federal Government and Taxpayers, But

Will Actually Result in Lower Contracting Costs for the Military.

A primary rationale advanced by the Court in

Boyle was that the “financial burdens of judgments

against the contractors would ultimately be passed

through, substantially if not totally, to the United

States itself, since defense contractors will predictably

raise their prices to cover, or insure against, contingent liability.” Boyle, 487 U.S. at 512. The D.C. Circuit

adopted that rationale to justify “combatant activities”

preemption. See Saleh, 580 F.3d at 8 (“[T]he costs of

imposing tort liability [are] passed through to the

American taxpayer.”). The court below, as well, “extended Boyle’s logic to the FTCA’s combatant activities

exception.” 120 F.4th at 426.

The burden on taxpayers may have been at least

a hypothetical concern in Boyle, which held that a helicopter manufacturer could not be liable for harm due

to the defective design of a military helicopter where

the contractor conformed to the government’s own precise design specifications. 487 U.S. at 512. That is not

30

the case where, as here, a plaintiff seeks to hold a contractor liable for harms caused by its own negligence

not compelled by the government. In that circumstance, the contractor is prohibited from trying to recover those liability costs from the government. The

Defense Federal Acquisition Regulation (FAR) 52.2287, regarding indemnification, provides: “The Contractor shall not be reimbursed for liabilities . . . [f]or

which the Contractor is otherwise responsible under

the express terms of . . . the contract.” 73 Fed. Reg.

16764-01 (final rule adopted March 31, 2008); see 48

C.F.R. § 52.228-7. In short, a contractor held liable in

tort for injuries caused by its own negligent contract

violations cannot pass those costs through to the

American taxpayer.

It may be objected that contractors might anticipate their exposure to potential tort liability and build

those costs into the price for their services to the government. If so, the impact would be to lower the costs

paid by the government to contractors. Contractors

who take reasonable steps to assure their employees

carry out their responsibilities with due regard for

safety will have lower exposure to tort liability. Their

cost to “cover or insure against” liability will be lower

and allow for lower bids on government contracts.

Preemption of state tort liability bestows an unfair

and unintended advantage on contractors who cut corners and ignore obvious safety and security concerns,

ultimately resulting in more harm to military and civilian personnel.

31

C. Implied “Combatant Activities” Preemption Is Not Needed to Protect Other Important Federal Interests.

Finally, the legitimate governmental interests in

insulating contractors who are actually carrying out

the military’s decisions and in insulating military personnel from disruptive discovery and litigation requirements of state tort actions do not justify wholesale preemption of all state tort remedies.

Existing law currently provides sufficient protection against second-guessing military judgments and

decision-making by way of a tort action against a private contractor carrying out those decisions. The

FTCA specifies that “the term ‘Federal agency’ includes … corporations primarily acting as instrumentalities or agencies of the United States,” as distinct

from independent contractors. 28 U.S.C. § 2671. See,

e.g., Brandes v. United States, 783 F.2d 895, 897 (9th

Cir. 1986). As well, under Yearsley, a government contractor is not subject to liability for actions that were

“authorized and directed by the Government” and the

contractor was merely “executing [the government’s]

will.” Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18,

20–21 (1940); cf. Campbell-Ewald Co. v. Gomez, 577

U.S. 153, 168 (2016) (finding Yearsley derivative sovereign immunity unavailable where the contractor’s

actions violated the Navy’s contractual instructions).

Further, military judgments and decisions remain

shielded from state tort liability, regardless of

whether this Court rejects “combatant-activities”

preemption. Each of the circuits to consider the applicability of the political-question doctrine in the context of battlefield contractors has held that suits that

32

require a factfinder to assess judgments of the U.S.

military are nonjusticiable. See, e.g., Harris, 724 F.3d

at 466–67; In re KBR, Inc., 893 F.3d at 264; Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d

1271, 1282–83 (11th Cir. 2009).

Where discovery would hamper the military’s mission, district courts have the tools to “properly accommodate the government's serious and legitimate concern that its employee resources not be commandeered

into service by private litigants to the detriment of the

smooth functioning of government operations.” Watts

v. SEC, 482 F.3d 501, 509 (D.C. Cir. 2007). In addition,

the Federal Rules require a court to quash or modify a

subpoena that “requires disclosure of privileged or

other protected matter” or “subjects a person to undue

burden.” Fed. R. Civ. P. 45(d).

CONCLUSION

For the foregoing reasons, the American Association for Justice asks this Court to reverse the judgment of the court below.

August 7, 2025

Respectfully submitted,

JEFFREY R. WHITE

Counsel of Record

AMERICAN ASSOCIATION

FOR JUSTICE

777 6th St. NW, #200

Washington, DC 20001

(202) 617-5620

jeffrey.white@justice.org

Counsel for Amicus Curiae