Amicus Curiae Brief — Winston Tyler Hencely, Petitioner v. Fluor Corporation, et al.
Supreme Court briefSep 22, 2025
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No. 24-924
In the Supreme Court of the United States
——————
WINSTON TYLER HENCELY, PETITIONER
v.
FLUOR CORPORATION, ET AL.
——————
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
——————
BRIEF OF RETIRED SENIOR
MILITARY OFFICERS AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS
——————
AKASH M. TOPRANI
WILLIAM S.L. WEINBERG
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, NY 10004
JEFFREY B. WALL
Counsel of Record
SULLIVAN & CROMWELL LLP
1700 New York Avenue NW
Suite 700
Washington, DC 20006
(202) 956-7500
wallj@sullcrom.com
TABLE OF CONTENTS
Page
Interest of amici curiae ........................................................1
Introduction and summary of argument............................4
Argument...............................................................................6
I. Sustained military operations in overseas war
zones are impossible without the support of
military contractors.........................................................6
A. As a result of decades of U.S. national security
policy, the U.S. military relies on contractors
to perform essential noncombat support
functions ......................................................................7
B. Contractors provide support services that are
indispensable to the military’s overseas
contingency operations............................................12
C. The military exerts both contractual and operational control over contractor activities, but
contractors must also exercise discretion to
achieve military objectives......................................16
II. State tort laws should not apply to military
contractor activities in war zones ................................20
A. Applying state law tort liability to contractors
would undermine military effectiveness................22
B. Federal law provides oversight of military
contractors and redress for wounded soldiers
without the need to insert state tort laws..............28
Conclusion ...........................................................................30
(I)
II
TABLE OF AUTHORITIES
Page(s)
Cases:
Aiello v. Kellogg, Brown & Root Servs., Inc.,
751 F. Supp. 2d 698 (S.D.N.Y. 2011) ..................... 26
Al Shimari v. CACI Int’l, Inc.,
679 F.3d 205 (4th Cir. 2012) ............................. 26, 27
Al-Quraishi v. Nakhla,
728 F. Supp. 2d 702 (D. Md. 2010)......................... 23
Badilla v. Midwest Air Traffic Control Serv., Inc.,
8 F.4th 105 (2d Cir. 2021) ................................. 25, 26
Department of the Navy v. Egan,
484 U.S. 518 (1988) ............................................ 20, 21
Harris v. Kellogg Brown & Root Servs., Inc.,
724 F.3d 458 (3d Cir. 2013)..................................... 21
Perpich v. Department of Def.,
496 U.S. 334 (1990) .................................................. 21
Saleh v. Titan Corp.,
580 F.3d 1 (D.C. Cir. 2009) ............................... 21, 22
Constitution and statutes:
U.S. Const. art. I, § 8, cl. 11........................................... 7
10 U.S.C. § 101(a)(13)..................................................... 7
10 U.S.C. § 802(a)(10)................................................... 28
18 U.S.C. § 3261(a)(1)................................................... 28
28 U.S.C. § 2680(j) ........................................................ 21
38 U.S.C. § 1131............................................................ 29
42 U.S.C. § 1651............................................................ 29
III
Other authorities:
Army Sustainment Command Public Affairs, ASC
Selects LOGCAP IV Contractors, U.S. Army
(June 28, 2007) ......................................................... 17
Army Sustainment Command Public Affairs,
LOGCAP III Task Order Continues Support in
Iraq, U.S. Army (May 5, 2020) .............................. 13
Army Sustainment Command Public Affairs,
LOGCAP V Performance Contractors Selected,
U.S. Army (Apr. 15, 2019) ...................................... 17
Marion E. Bowman, Privatizing While
Transforming, Defense Horizons, Jul. 2007........ 10
Gordon L. Campbell, Contractors on the
Battlefield: The Ethics of Paying Civilians to
Enter Harm’s Way and Requiring Soldiers to
Depend on Them (2000) ........................................... 9
Mark F. Cancian, Contractors: The New Element
of Military Force Structure, Parameters,
Autumn 2008...................................................... 10, 15
Mark F. Cancian, U.S. Military Forces in FY
2021: The Last Year of Growth? (2021) ..... 8, 12, 14
William S. Cohen, Report of the Quadrennial
Defense Review (1997) .............................................. 9
SFC Nicholas J. Conner, Army Logistics
Contractors on Combat Logistics Patrols,
Army Logistician, Sept.-Oct. 2007 .............. 5, 11, 25
Defense Manpower Data Center, Active Duty
Military Strength by Service: Historical
Reports – FY 1994-2012.......................................... 10
IV
Other authorities—Continued:
Valerie Bailey Grasso, Cong. Rsch. Serv.,
RL33834, Defense Logistical Support
Contracts in Iraq and Afghanistan: Issues for
Congress (2010) ....................................................... 17
Kelly Haertjens, Army Sustainment Command
Public Affairs, LOGCAP: The No Fail Mission
Lending Support Globally, U.S. Army
(June 2, 2023) ........................................................... 13
Kristine A. Huskey, The American Way: Private
Military Contractors & U.S. Law After 9/11
(2010) .................................................................... 8, 15
MAJ Walter Llamas, Contingency Contracting
and LOGCAP Support in MND-B, Iraq, Army
Logistician, Sept.-Oct. 2007 ............................. 11, 26
LTC Tommie J. Lucius & LTC Mike Riley, The
LOGCAP III to LOGCAP IV Transition in
Northern Afghanistan: Contract Services
Phase-in and Phase-Out on a Grand Scale,
Defense AT&L, Jan.-Feb. 2011............................. 13
Janet A. McDonnell, A History of Defense
Contract Administration, Defense Contract
Management Agency (Mar. 5, 2020) ....................... 7
John J. McGrath, The Other End of the Spear:
The Tooth-to-Tail Ratio (T3R) in Modern
Military Operations (2007) ..................................... 9
Nicholas R. Parillo, The De-Privatization of
American Warfare: How the U.S. Government
Used, Regulated, and Ultimately Abandoned
Privateering in the Nineteenth Century,
19 Yale J.L. & Hum. 1 (2007) ................................... 7
V
Other authorities—Continued:
Heidi M. Peters, Cong. Rsch. Serv., R44116,
Department of Defense Contractor and Troop
Levels in Afghanistan and Iraq: 2007-2020
(2021) .................................................................. 10, 12
CPT George Plys, Contracted Transportation,
Army Logistician, Sept.-Oct. 2007 ........................ 11
Restatement (Second) of Torts § 285
(Am. L. Inst. 1965) .................................................. 23
Restatement (Third) of Torts:
Liability for Phys. & Emot. Harm § 29
(Am. L. Inst. 2010) .................................................. 23
Bernard Rostker, I Want You! The Evolution of
the All-Volunteer Force (2006) ................................ 8
Moshe Schwartz & Jennifer Church, Cong. Rsch.
Serv., R43074, Department of Defense’s Use of
Contractors to Support Military Operations:
Background, Analysis, and Issues for Congress
(2013) ................................................................. 10, 11
Moshe Schwartz & Joyprada Swain, Cong. Rsch.
Serv., R40764, Department of Defense
Contractors in Afghanistan and Iraq:
Background and Analysis (2011) ................... 12, 14
Charles R. Shrader, Contractors on the Battlefield
(1999) .......................................................................... 7
Brief for the United States as Amicus Curiae,
Carmichael v. Kellogg, Brown & Root Service,
Inc., 561 U.S. 1025 (2010) (No. 09-683) ................. 27
Brief for the United States as Amicus Curiae,
KBR v. Metzgar, 574 U.S. 1120 (2015)
(No. 13-1241)............................................................ 27
VI
Other authorities—Continued:
Brief for the United States as Amicus Curiae,
Kellogg Brown & Root Services v. Harris,
574 U.S. 1120 (2015) (No. 13-817) .......................... 27
U.S. Dep’t of Def. DoD Instruction 3020.41,
Operational Contract Support Outside the
United States (2024) ............................................... 11
U.S. Gov’t Accountability Off., GAO-21-344,
Contingency Contracting: DOD Has Taken
Steps to Address Commission
Recommendations, but Should Better
Document Progress and Improve Contract
Data (2021)............................................................... 15
INTEREST OF AMICI CURIAE
Amici are retired senior military officers who have
dedicated their professional lives to developing and
maintaining U.S. military effectiveness. As part of
their roles, amici have each had substantial
experience working with military contractors in
overseas combat zones, including in Afghanistan and
Iraq, and possess a unique understanding of the
critical role contractors play in fulfilling U.S. national
security objectives, working in lockstep with the U.S.
military. Amici share an ongoing interest in ensuring
continued U.S. military effectiveness, and have a
unique perspective on why courts should continue to
afford their traditional deference to front-line military
decisionmaking.1
Lieutenant General (ret.) Ricardo S. Sanchez
retired from the U.S. Army in 2006 after 33 years of
service, including tours in Korea, Panama, Germany,
Kosovo, and the Middle East. Between September
1997 and May 1999, Lieutenant General Sanchez was
the Director of Operations for U.S. Southern
Command, which is responsible for all U.S. military
operations in the Western Hemisphere, where he
simultaneously served as Director of Strategy, Policy
and Plans beginning in April 1998. From December
1999 to June 2000, General Sanchez served as
Commanding General of Task Force Falcon (MultiUnder Rule 37.6, amici affirm that no counsel for a party
authored this brief in whole or in part; no party or party’s counsel
contributed money that was intended to fund the preparation or
submission of this brief; and no person other than amici or their
counsel contributed any money to fund the brief’s preparation or
submission.
1
(1)
2
National Brigade (East)) at Camp Bondsteel, Kosovo.
From June 2000 to June 2001, General Sanchez was
the Director of Operations, U.S. Army Europe, and
then assumed command of the First Armored
Division. In March 2003, he deployed this division to
Iraq during Operation Iraqi Freedom. In June 2003,
General Sanchez assumed command of V Corps and
Combined Joint Task Force 7 in Iraq, where he was
responsible for all coalition military operations there
after the fall of Saddam Hussein. In 2004, General
Sanchez assumed command of the newly formed
Multi-National Force – Iraq. An inherent duty in all
of General Sanchez’s assignments was assuming
direct responsibility for the strategic, operational, and
tactical supply-chain management and logistical
support of the forces assigned.
Lieutenant General (ret.) John Vines served for
35 years in the U.S. Army, including as the
Commander of the XVIII Airborne Corps, Combined
Joint Task Force – 180 in Afghanistan, and MultiNational Corps – Iraq. In the latter position,
Lieutenant General Vines commanded a coalition
force of 178,000 soldiers from 27 nations during
Operation Iraqi Freedom, and his responsibilities
included overseeing the commitment of resources for
operations and maintenance and other base support
activities, as well as the use of contractors to provide
such services. Prior to that, Lieutenant General
Vines commanded the 82nd Airborne Division and
Coalition Task Force – 82 in Afghanistan. There, he
commanded the division’s 18,000 soldiers and a force
of 10,000 coalition troops.
Lieutenant Colonel (ret.) Damon Walsh retired
from the U.S. Army in 2005 after 25 years of service.
From 1992 to 2005, Lieutenant Colonel Walsh was a
3
member of the Army Acquisition Corps, where he
served in a wide variety of contract- and programmanagement assignments, including as Defense
Contract Management Agency (DCMA) Commander
of Northern Iraq and Deputy Commander of DCMAIraq. Prior to his roles in the Acquisition Corps,
Colonel Walsh served as an Infantry and Special
Forces officer at multiple levels of command. He is a
veteran of Operations Desert Shield/Desert Storm,
Provide Comfort-I, Provide Comfort-II, Uphold
Democracy (Haiti), and Iraqi Freedom.
4
INTRODUCTION AND
SUMMARY OF ARGUMENT
This lawsuit seeks to hold a military contractor in a
combat zone subject to state-law tort standards half a
world away. If this lawsuit were directed against the
United States military or its soldiers, there would be
no dispute that the lawsuit should be dismissed as an
improper invasion into military affairs. The only
question is whether the result should be different
when the defendant is a contractor that serves a
military function, under military instructions, to
advance military-dictated objectives. The answer
should be self-evident: haling military contractors
into state courts would be just as disruptive and
prejudicial to military effectiveness as if the military
itself or its personnel were subject to the same
treatment. Any contrary result would elevate form
over substance at the expense of U.S. national
security.
The distinction that this case attempts to draw
between the military and its contractors is divorced
from reality. Since the end of the Cold War, this
Nation’s armed forces have been restructured to be
heavily reliant on contractors to carry out their
mission. Uniformed soldiers have been focused on the
core warfighting competencies of the military,
including unit warfighting logistics, while many of the
higher-echelon support functions necessary to carry
out the military’s operations—which historically were
performed by the military itself—have been
outsourced to contractors.
In recent protracted
conflicts, including in Iraq and Afghanistan, the U.S.
military simply could not have waged war without the
5
support of contractors, who often outnumbered the
uniformed troops in theater.
Simply put, when American soldiers walk into
battle, they are supported by contractors who carry
out indispensable logistics functions on and off of the
battlefield. Contractors build and maintain soldiers’
bases, feed them, sanitize their drinking water,
transport their fuel and ammo, dispose of their trash,
and guard their barracks—to name just a few
mission-critical support functions. As one logistics
officer put it, “[a] day without contractors is like a day
without food, fuel, water, ammo, clean latrines . . .
well, suffice it to say, it’s a lousy day.” SFC Nicholas
J. Conner, Army Logistics Contractors on Combat
Logistics Patrols, Army Logistician, Sept.-Oct. 2007,
at 21.
Because of the importance of contractors to
sustaining operations and projecting military power,
they have been integrated contractually and
operationally within the military.
Contractors’
activities are performed pursuant to detailed military
requirements, whether expressly detailed in their
contracts or pursuant to military orders. Allowing
state-law tort claims would upend that entire system.
Contractors would need to make decisions not based
on military instructions or orders, but based on what
dozens of potentially applicable state (or even foreign)
legal regimes might require.
Given the stakes,
contractors should not pause or hesitate to comply
with military directives out of fear that they will run
afoul of state law. And the specter of liability and
large damages awards would inevitably lead to a
blame game between contractors and the military. In
military theaters, legal uncertainty and fingerpointing are an invitation to ruin.
6
Amici are in no way discounting or downplaying
the harm suffered by Specialist Hencely, who by all
indications has served honorably in defense of his
country. But there are avenues for injured service
members like Specialist Hencely to obtain
rehabilitation and compensation without upending the
critical relationship between the military and its
contractors. As former leaders within the military,
amici are deeply concerned about actions that would
create logistical failures, which would in turn lead to
increased casualties and reduced effectiveness in
combat operations for over two million uniformed
active-duty and reserve service members. With that
objective in mind, amici respectfully urge the Court to
affirm the decision below, and confirm that state civil
courts have no place second-guessing the combat-zone
decisions of the military or its contractors.
ARGUMENT
I. SUSTAINED MILITARY OPERATIONS IN
OVERSEAS WAR ZONES ARE IMPOSSIBLE
WITHOUT THE SUPPORT OF MILITARY
CONTRACTORS.
At its core, this lawsuit seeks to draw a distinction
between the conduct of the military and its
contractors, in order to allow a lawsuit against the
latter that would be categorically barred against the
former. That distinction is illusory. As amici have
experienced in their decades of service, contractors
are an integral component of the U.S. Armed Forces,
7
without whom the military would be unable to carry
out sustained overseas contingency operations.2
A. As A Result Of Decades Of U.S. National
Security Policy, The U.S. Military Relies On
Contractors
To
Perform
Essential
Noncombat Support Functions.
Private military contractors have been integral to
U.S. national security since the Founding.3 The
power to enlist civilian contractors was included in the
Constitution, which authorizes Congress to “grant
letters of marque”—i.e., to hire privateers. U.S.
Const. art. I, § 8, cl. 11. Congress exercised this
power to achieve the early Republic’s military
objectives, including during the War of 1812, when
Congress licensed hundreds of privateers to
supplement the U.S. Navy’s twenty-two cruisers.
Nicholas R. Parillo, The De-Privatization of
American Warfare: How the U.S. Government Used,
Regulated, and Ultimately Abandoned Privateering
in the Nineteenth Century, 19 Yale J.L. & Hum. 1, 3-4
(2007).
A “contingency operation” is a military operation in which
members of the armed forces are involved in hostilities with an
adversary. See 10 U.S.C. § 101(a)(13). A formal declaration of a
“contingency operation” by the Secretary of Defense authorizes the
use of many of the contracting relationships at issue in this case.
3
See Janet A. McDonnell, A History of Defense Contract
Administration, Defense Contract Management Agency (Mar. 5,
2020), https://www.dcma.mil/News/Article-View/Article/2100501/ahistory-of-defense-contract-administration/ (providing an overview
of defense contracting since the Revolutionary War); Charles R.
Shrader, Contractors on the Battlefield 1-2 (1999) (“Since 1775,
American armies have always been accompanied on the battlefield,
both at home and abroad, by civilian contractors.”).
2
8
While private contractors have been essential in
nearly every major U.S. military conflict, that trend
has accelerated significantly in the post-Cold War era.
As one illustration, during World War II, there was
one military contractor for every seven U.S.
uniformed soldiers, and that ratio ticked up only
slightly to 1:5 during the Vietnam War. See Kristine
A. Huskey, The American Way: Private Military
Contractors & U.S. Law After 9/11 6 (2010). In more
recent conflicts, however, the ratio has equalized—
and then reversed. By 2010, the ratio of contractors
to uniformed soldiers was about 1:1 in Iraq and 1.42:1
in Afghanistan. Id. at 5-6. More recently, in 2020,
that ratio soared to 3.7 contractors for every
uniformed soldier in Afghanistan, Iraq, and Syria.
See Mark F. Cancian, U.S. Military Forces in FY
2021: The Last Year of Growth? 113 (2021).
The increasing reliance on contractors in U.S.
military operations is no accident, but instead reflects
decades of deliberate policy choices. These policies
have their roots in the transition of the military to an
all-volunteer force following the Vietnam War.
Though the U.S. Army relied on conscription to meet
force requirements during and after World War II,
that solution became increasingly infeasible by the
1970s. The unpopularity of the draft during the
Vietnam War, combined with the military’s
diminishing confidence in conscript recruits, led the
nation’s political leaders to commit to an all-volunteer
force.
See Bernard Rostker, I Want You! The
Evolution of the All-Volunteer Force 4 (2006).
After the last Americans were drafted in 1973, the
military faced the challenge of how to achieve the
objectives set by political leaders with diminished
troop levels. This challenge grew significantly in the
9
post-Cold War era, when political leadership sought
to capitalize on the “peace dividend” by significantly
reducing the size and budget of the U.S. military. For
example, between 1989 and 2000, the active duty force
and budget declined by 40%, while national guard and
reserve units were halved. Gordon L. Campbell,
Contractors on the Battlefield: The Ethics of Paying
Civilians to Enter Harm’s Way and Requiring
Soldiers to Depend on Them 2 (2000). All the while,
demands on the U.S. military remained substantial.
Between 1989 and 2000, the U.S. Army deployed
troops 36 times, as compared to only 10 deployments
during the entire Cold War. Ibid.
The solution to achieving U.S. military objectives
with a smaller force was, in substantial part, using
contractors to step into noncombat support roles. In
a 1997 report, Secretary of Defense William S. Cohen
explained that a “critical part” of the plan to reduce
military headcount and spending was to “consider far
more non-warfighting DoD support functions as
candidates for outsourcing—inviting commercial
companies to compete with the public sector to
undertake certain support functions.” William S.
Cohen, Report of the Quadrennial Defense Review 54
(1997).
As a result of these policy changes, the military
increasingly focused its uniformed personnel on core
warfighting competencies, while outsourcing to
contractors noncombat support functions.
The
amount of that outsourcing is extensive, given the
high proportion of noncombat support functions
required to engage in military operations.
For
example, during Operation Desert Storm, noncombat
forces consisted of over 70% of American forces in
theater. John J. McGrath, The Other End of the
10
Spear: The Tooth-to-Tail Ratio (T3R) in Modern
Military Operations 67 (2007).
At the time,
policymakers envisioned that the government could
enjoy the cost savings of a smaller military in
peacetime, while relying on the surge capacity of
private contractors to enable deployments if and when
needed. See Marion E. Bowman, Privatizing While
Transforming, Defense Horizons, July 2007, at 1, 2-3.
Whatever one’s views on the desirability of
outsourcing to contractors, the current reality is that
contractors are thoroughly integrated within the
infrastructure of the military, performing functions
essential to deploying the military overseas. Indeed,
during the peaks of the wars in Afghanistan and Iraq,
for the military to have performed the tasks that were
handled by contractors, it would have required
enlisting between half to three-quarters of a million
additional soldiers—increasing the size of the activeduty force at that time by over 50%—not to mention
costing the taxpayer about 90% more for the same
tasks.4 Simply put, the U.S. military would be “unable
to effectively execute many operations, particularly
those that are large-scale and long-term in nature,
See Mark F. Cancian, Contractors: The New Element of
Military Force Structure, Parameters, Autumn 2008, at 61, 72-73
(explaining that active-duty forces require a “rotation base” of one
to two soldiers at home for every soldier deployed in the field);
Heidi M. Peters, Cong. Rsch. Serv., R44116, Department of Defense
Contractor and Troop Levels in Afghanistan and Iraq: 2007-2020
6-7, 12-13 (2021) (estimating peak deployments of around 280,000
DoD-funded contractors in Iraq and Afghanistan); Defense
Manpower Data Center, Active Duty Military Strength by Service:
Historical Reports – FY 1994-2012, https://dwp.dmdc.osd.mil/dwp/
app/dod-data-reports/workforce-reports (last visited Sept. 16, 2025),
(calculating 1,424,317 active-duty soldiers as of 2011).
4
11
without extensive operational contract support.”
Moshe Schwartz & Jennifer Church, Cong. Rsch.
Serv., R43074, Department of Defense’s Use of
Contractors to Support Military Operations:
Background, Analysis, and Issues for Congress 2
(2013).
Reflecting this reality, the Department of Defense
now counts contractors part of the “total force,”
alongside uniformed active duty, reserve, and national
guard personnel, and Defense Department civil
servants. See U.S. Dep’t of Def., DoD Instruction
3020.41, Operational Contract Support Outside the
United States 5, 69 (2024). That is not just a
statistic—it is operational practice. In Iraq and
Afghanistan, contractors were “embedded with
military logistics operations at every operating base
24 hours a day, 7 days a week,” operating “side by
side with [uniformed] personnel on each of those
bases.”5 It was typical for contractors to be apprised
of operational issues at every level of the chain of
command. 6 As one logistics officer put it, consistent
with amici’s own experience: “Contractors are part of
our formation. They live, eat, work, pray, sweat, and
sacrifice side-by-side with our Soldiers everyday.”
Conner, Army Logistician, Sept.-Oct. 2007 at 21.
MAJ Walter Llamas, Contingency Contracting and
LOGCAP Support in MND-B, Iraq, Army Logistician, Sept.-Oct.
2007, at 28.
6
E.g., CPT George Plys, Contracted Transportation, Army
Logistician, Sept.-Oct. 2007, at 20 (describing twice-daily meetings
between battalion command and contractor leaders “to discuss the
mission requirements for the next 24 to 96 hours”).
5
12
B. Contractors Provide Support Services That
Are Indispensable To The Military’s Overseas
Contingency Operations.
To enable U.S. combat operations overseas,
contractors fulfill many key support functions, as
illustrated by the services they provided during the
wars in Iraq and Afghanistan. During those conflicts,
at their peaks, over 117,000 DoD-funded contractors
supported U.S. military operations in Afghanistan,
and over 160,000 DoD-funded contractors were on the
ground supporting the U.S. military in Iraq.7
Logistics and Base Support. During the conflicts
in Iraq and Afghanistan, a majority of contractors
were engaged in essential base-support and logistics
functions.8 In performing those roles, contractors
work with the military to construct, operate, and
sustain bases, from large complexes hosting
thousands of personnel to small forward operating
bases and outposts. Depending on the size and
purpose of the base, contractors provide and maintain
billeting and facilities management, dining facilities
and food service, electrical power generation and
distribution, water production and purification,
wastewater removal and sanitation, showers and
laundry, solid-waste disposal, passenger and cargo
transportation, and amenities like gyms.
Peters 6-7, 12-13. These numbers do not account for
contractors funded by other U.S. agencies (including the State
Department and USAID), or contractors that supported the
deployments from the United States.
8
Moshe Schwartz & Joyprada Swain, Cong. Rsch. Serv.,
R40764, Department of Defense Contractors in Afghanistan and
Iraq: Background and Analysis 15 (2011); Cancian, U.S. Military
Forces in FY 2021 114.
7
13
Providing these services is no simple task. The
largest U.S. military bases in Iraq and Afghanistan
housed upwards of 30,000 to 40,000 personnel,
meaning that a contractor “essentially builds a small
town from scratch.”
Kelly Haertjens, Army
Sustainment Command Public Affairs, LOGCAP: The
No Fail Mission Lending Support Globally, U.S.
Army (June 2, 2023), https://www.army.mil/article
/267262/logcap_the_no_fail_mission_lending_support_
globally. And the sheer scale of the services provided
was breathtaking.
Under the program in place
between 2001 to 2011, contractors in Iraq cleaned 78.9
million bags of laundry, prepared 1.1 billion meals,
and handled 449.2 million pounds of mail. 9 Further,
keeping these bases supplied required a constant
stream of contractor-operated convoys.
These
convoys, conducted alongside military personnel, were
the lifeblood of all military operations in the country.
Simply put, the size and scale of U.S. military
deployments in Iraq and Afghanistan would have been
impossible without contractor support.
Army Sustainment Command Public Affairs, LOGCAP III
Task Order Continues Support in Iraq, U.S. Army (May 5, 2020),
https://www.army.mil/article/38607/logcap_iii_task_order_continues
_support_in_iraq; see LTC Tommie J. Lucius & LTC Mike Riley,
The LOGCAP III to LOGCAP IV Transition in Northern
Afghanistan: Contract Services Phase-in and Phase-Out on a
Grand Scale, Defense AT&L, Jan.-Feb. 2011, at 21, 22 (“In the
northern half of Afghanistan, LOGCAP provides operations and
maintenance to over 1,500 non-tactical vehicles, 1,800 generators,
7,500 facilities, and over 40 dining facilities providing over 4 million
meals per month. Additionally, LOGCAP provides, on a monthly
basis, over 42 million gallons of water and 19 million gallons of fuel,
and processes over 150,000 bags of laundry.”).
9
14
Security. The next most common support function
that contractors provide is security. In Iraq and
Afghanistan, about 16% of contractors fell into this
category. Moshe Schwartz & Joyprada Swain, Cong.
Rsch. Serv., R40764, Department of Defense
Contractors in Afghanistan and Iraq: Background
and Analysis 15 (2011); Cancian, U.S. Military
Forces in FY 2021 114 (2021).
Most security
contractors are guards at bases, responsible for
screening personnel who enter and exit the facilities
and protecting against external threats.
The
remaining proportion of security contractors provide
protective services outside of bases, such as escorting
high-value individuals or convoys.
Interpreters. Depending on the location of a
deployment, interpreters can be critical to operations.
Particularly in conflicts like the ones in Iraq and
Afghanistan, the military requires substantial
numbers of individuals with expertise in the local
language to be able to communicate with the
populace.
While the military has expanded its
linguistic capabilities in recent years, any deployment
in a non-English or non-Spanish-speaking country is
likely to require substantial interpreter support, as
was the case in Iraq and Afghanistan.
Other. The lion’s share of contractors fall into the
categories discussed above, but they also fulfill a
range of other functions, including communications
and IT support, training, and medical, dental, and
social services. Schwartz & Swain 15; Cancian, U.S.
Military Forces in FY 2021 114. Although each of
these subcategories involves smaller numbers of
contractors, they are no less crucial to U.S. military
operations.
15
In addition, while amici are primarily focused on
contractors that operate in theater specifically to
enable military operations, the categories discussed
above do not encompass the entire field of contractor
support services. For example, tens of thousands of
contractors were employed in Iraq and Afghanistan
by USAID or the State Department to work on
reconstruction projects, ranging from rebuilding
roads to schools to oil fields, which was an important
part of the U.S. military’s counter-insurgency
strategy. Mark F. Cancian, Contractors: The New
Element of Military Force Structure, Parameters,
Autumn 2008, at 61, 62-63. And back in the United
States, contractors have at times supplied nearly half
of the headcount in the intelligence community,
performing tasks that include military-intelligence
collection, analysis, and IT functions. Huskey 11-12.
None of this is to say that the delivery of services
by contractors has been perfect. As with the military
itself, contractors are not immune to inefficiency and
waste. The military must act as a responsible steward
of the public purse when awarding contracts, and be
vigilant to ensure that services are being provided as
promised. Amici applaud many of the steps the U.S.
military has taken to implement reforms in
contingency operations contracting, although there
remains much room for improvement. See, e.g., U.S.
Gov’t Accountability Off., GAO-21-344, Contingency
Contracting: DOD Has Taken Steps to Address
Commission Recommendations, but Should Better
Document Progress and Improve Contract Data
(2021). But as we prepare for the next conflict, there
is no question that contractors have been, and will
continue to be, an indispensable part of the U.S.
military response.
16
C. The Military Exerts Both Contractual And
Operational
Control
Over
Contractor
Activities, But Contractors Must Also
Exercise Discretion To Achieve Military
Objectives.
The overarching framework governing the
military-contractor relationship is grounded in
contract. In performing their day-to-day duties,
contractors are governed by well-defined parameters
set by the military, carefully calibrated to balance
costs, risks, and military objectives.
Moreover,
although they are not formally part of the military
chain of command, contractors are obligated under
their contracts to follow the military’s instructions.
For example, in Iraq and Afghanistan, the relevant
contracts required contractors to follow direction
from military commanders or their representatives.
Operating under military instructions, however, does
not mean hand-holding.
While contractors and
military personnel plan and execute in close
coordination, contractors are trained professionals
that are expected to exercise discretion and initiative
to fill in gaps in military orders and instructions to
achieve military objectives.
Functionally, the primary mechanism for
establishing the contractual relationship between
contractors and the Army in overseas contingency
operations is the Logistics Civil Augmentation
Program (LOGCAP). 10 Under LOGCAP, depending
The Air Force and Navy have comparable programs called
the Air Force Contract Augmentation Program (AFCAP), and the
Navy Global Contingency Construction Contract (GCCC) and
Global Contingency Services Contract (GCSC). The Army also
10
17
on the exact time period, Army Sustainment
Command awards a contract to one or more
contractors to be the “go-to” service provider for the
Army during wartime. During the time amici served
in uniform in Iraq and Afghanistan, the service
provider under LOGCAP III (2001-2011) was Kellogg,
Brown & Root (KBR).11 Later, under LOGCAP IV
(2007-present),12 there were three contractors: KBR,
DynCorp, and respondent Fluor Corporation.13
The exact process for LOGCAP contracting has
evolved over time and differs by location, including
based on the urgency of the contractor services
required. But by way of example, the process for
engaging contractor services under LOGCAP
generally involves the following steps. A military
“customer” will first make a request to contractors
typically through a team of LOGCAP planners from
Army Materiel Command. Those planners then work
engages with contractors through various mechanisms beyond
LOGCAP, but LOGCAP was by far the most significant vehicle for
Army logistics contracting in Iraq and Afghanistan.
11
Valerie Bailey Grasso, Cong. Rsch. Serv., RL33834,
Defense Logistical Support Contracts in Iraq and Afghanistan:
Issues for Congress 8 (2010).
12
LOGCAP IV was originally intended to expire in 2018 but
has been extended. The Army has also stood up LOGCAP V as a
replacement to LOGCAP IV. See Army Sustainment Command
Public Affairs, LOGCAP V Performance Contractors Selected, U.S.
Army (Apr. 15, 2019), https://www.army.mil/article/220353/logcap
_v_performance_contractors_selected#:~:text=The%20regional%
20task%20order%20is,TOP%20STORIES.
13
Army Sustainment Command Public Affairs, ASC Selects
LOGCAP IV Contractors, U.S. Army (June 28, 2007), https://www.
army.mil/article/3836/asc_selects_logcap_iv_contractors; Grasso 910.
18
collaboratively with the LOGCAP contractor to draft
a Statement of Work (SOW) for the relevant “task
order,” specifying the methods of performance the
contractor is authorized to use—which are themselves
developed and refined through collaboration with the
contractor. The draft SOW then undergoes review by
multiple government entities that ultimately sign off
on the directives given to the contractor.
Following agreement on a draft SOW, the
contractor prepares a Rough Order of Magnitude
(ROM), which sets out in detail the methods and costs
for achieving the task order.
Military logistics
experts work iteratively with the contractor on a
ROM, modifying it as necessary to adhere to the
military’s instructions. Once the ROM is approved,
contracting officers prepare and approve a Letter of
Technical Direction (LOTD) to the contractor, both to
ensure adequate funds are available under the
contract, and to ensure the work called for under the
LOTD is within the scope of the contract and in
compliance with its terms and conditions.
Once a LOGCAP task order is in place, it is
primarily administered on a day-to-day basis through
the Defense Contract Management Agency (DCMA).
The DCMA’s military staff are trained governmentcontracts professionals, responsible for monitoring
and evaluating contract performance, auditing
contract compliance, and interpreting contracts on
behalf of the government. As part of their duties,
DCMA officers are on-site (or travel to) every base to
ensure that contractors are complying with the
military’s
requirements,
their
contractual
commitments, and the mission’s needs.
DCMA
officers have the authority to investigate any alleged
noncompliance, and to direct contractors to correct
19
any identified issues. Depending on the nature of the
issues identified, issues could be escalated through
the DCMA command structure all the way through
leadership at Army Sustainment Command.
In
addition to overseeing contractor compliance,
contracting officers are charged with ensuring that
the government adheres to its own obligations under
the contract, including that real-time instructions to
the contractor may not exceed the scope of the
contract or violate its terms and conditions.
Aside from their contractual mandates, contractors
are also subject to the military’s operational and
tactical control. Contractors are subject to a wide
variety of orders from the military, ranging from
general standing orders issued to all personnel in
theater, to tactical commands. As one example,
during overseas contingency operations, the military
exerts total operational and physical control over
physical bases and sites. The military dictates the
layout of the camp to meet its tactical, operational,
and security needs, including where and how
contractors perform their functions. The military also
maintains surveillance of camps to ensure operational
awareness of what soldiers and contractors are doing.
The operational collaboration between contractors
and the military is not a one-way street; contractors
are also important partners in the military’s
operational planning.
When contractors perform
their responsibilities under task orders, they
communicate with military officers on a daily basis to
ensure that contractors are aligned with military
objectives. Contractors are also frequently briefed on
the military’s operational and tactical plans at the
highest levels of military command, including in
update meetings, movement-control meetings, and
20
prioritization meetings. And depending on the nature
of the operation and the contractor’s involvement,
contractors routinely provide information and advice
that shapes the military’s decisionmaking on the
ground.
Although contractors and the military stay closely
aligned by detailing methods and objectives in
contracts and orders, it is impracticable to
micromanage every action and every contingency—
particularly in a combat zone. When a specific course
of action is not spelled out, contractors, like
uniformed soliders, must exercise judgment and
discretion to fulfill the commander’s intent. The facts
here are a case in point.
At Bagram Airfield,
respondent Fluor Corporation operated “within
strictures set by the military based on its priorities
and risk assessments,” including rules on the hiring of
Afghan nationals to advance the military’s
counterinsurgency strategy. Pet. App. 27. But as a
matter of necessity, Fluor “possessed some discretion
when operating within this framework,” such as
overseeing access to tools and managing its
employees’ performance. Id. at 25-26. This type of
relationship, where a contractor is counted on to
exercise discretion within a framework set by the U.S.
military, is foundational in every military combat
zone.
II. STATE TORT LAWS SHOULD NOT APPLY TO
MILITARY CONTRACTOR ACTIVITIES IN
WAR ZONES.
As the Court has recognized, “unless Congress
specifically
has
provided
otherwise,
courts
traditionally have been reluctant to intrude upon the
authority of the Executive in military and national
21
security affairs.” Department of the Navy v. Egan,
484 U.S. 518, 530 (1988). That hesitation applies
doubly to state courts, given “the supremacy of
federal power in the area of military affairs.” Perpich
v. Department of Def., 496 U.S. 334, 351 (1990). Even
where Congress has opened the door to lawsuits
against the federal government, it has taken care to
ensure that the waiver of sovereign immunity does
not apply to core military affairs, including “any claim
arising out of combatant activities.”
28 U.S.C.
§ 2680(j). “The purpose underlying” this exception “is
to foreclose state regulation of the military’s
battlefield conduct and decisions,” Harris v. Kellogg
Brown & Root Servs., Inc., 724 F.3d 458, 480 (3d Cir.
2013), “free[ing] military commanders from the
doubts and uncertainty inherent in potential
subjection to civil suit,” Saleh v. Titan Corp., 580 F.3d
1, 7 (D.C. Cir. 2009).
The question here is whether the rules against
interference in military affairs on the battlefield
should be set aside when a contractor is involved.
They should not. As respondents explain (at 13-33),
the laws and traditions of this country place
contractors within the ambit of military forces that
are immune from second-guessing under state tort
laws. Although that is enough to resolve the case,
amici wish to ensure that the Court is apprised of the
negative impact on military effectiveness that would
follow from accepting petitioner’s position. Carving
contractors out of the immunities historically enjoyed
by the military would create unacceptable risks in the
execution and effectiveness of military operations,
which is not a gamble worth taking when the stakes
are this high.
22
A. Applying State Law Tort Liability To
Contractors Would Undermine Military
Effectiveness.
As explained earlier, trying to draw a distinction
between the military and its contractors would be an
artificial exercise. Contractors perform historically
military functions, at the direction of the military, in
pursuit of military objectives. From a practical
perspective, holding contractors liable under state law
makes no more sense than allowing military logistics
officers to be the targets of lawsuits. “Indeed, these
cases are really indirect challenges to the actions of
the U.S. military.” Saleh, 580 F.3d at 7.
The principal problem with imposing tort law
liability against contractors is that it interferes with
the chain of command on the battlefield. Contractors
are subject to detailed and deliberate sets of rules
that govern their conduct on the battlefield, ranging
from their initial contracts, task orders, and SOWs, to
general orders and on-the-ground instructions from
the military. These clear sets of expectations ensure
that contractors are aligned with the military on
precisely how tactical, operational, and strategic
objectives are to be achieved. Faced with the specter
of tort liability, however, a contractor would have to
balance battlefield needs as dictated by military
command against what a judge or jury might say
years after the fact.
Add to that the uncertainty of applying 50 different
competing sets of state laws. This case is a perfect
example. Petitioner is suing under South Carolina
tort law, but respondent Fluor Corporation would
have had no way of knowing that at the time it was
managing personnel on Bagram Airfield, let alone at
23
the time it bid to participate in LOGCAP IV. If
petitioner were to prevail, the military chain of
command would not be competing only with South
Carolina law—it would be competing with the laws of
every State, and perhaps even the laws of foreign
nations. See, e.g., Al-Quraishi v. Nakhla, 728 F.
Supp. 2d 702, 763 (D. Md. 2010) (finding that “Iraqi
law applies to all of Plaintiffs’ state law claims”
against military contractor). That is a recipe for
chaos.
To make matters worse, even if a contractor could
guess what jurisdiction’s laws might apply, it is far
from clear that would provide any real insight into the
applicable standards of conduct. Tort claims often
turn on the “reasonableness” of a defendant’s
conduct, or the “foreseeability” of a plaintiff’s injury,
which are capacious terms that are developed through
case law. See Restatement (Second) of Torts § 285
cmts. d & e (Am. L. Inst. 1965); Restatement (Third)
of Torts: Liability for Phys. & Emot. Harm § 29 cmt.
j (Am. L. Inst. 2010). Unsurprisingly, cases are few
and far between assessing the reasonableness of
conduct in a combat zone from a tort-law perspective,
making it even more challenging to guess how a
civilian judge or jury might review battlefield
decisions. Given all of the resulting uncertainty, it is
not difficult to predict how contractors would respond.
Fewer contractors likely would be willing to absorb
the risk that they would be subject to potentially
devastating judgments from civil courts sitting in
review years after the fact. There are already a
relatively small number of specialized firms able to
provide the services required under LOGCAP and
similar programs, and so any measures that further
reduce the roster of willing contractors would have a
24
substantial impact on operational capacity. But at a
minimum, even if contractors were willing to take on
the risk of tort exposure, they would invariably pass
on that cost to their military customers.
Amici are deeply familiar with the resource
constraints in a war zone, which require tradeoffs
between cost and the safety, effectiveness, and
welfare of soldiers. Anything that drives up the cost
for contractors—and in turn the military—could mean
one fewer guard protecting a barracks, one fewer
supply convoy to a remote forward operating base, or
one fewer repair to an armored vehicle. Commanders
in the field are required to operate with significant
resource constraints, and amici are sensitive to not
making their jobs even harder, potentially depriving
them of the full scope of services needed to carry out
their missions. Simply put, petitioner’s position will
impose sizeable costs, maybe even massive ones, and
those costs will be borne by this Nation’s military and
fighting men and women.
Even setting aside costs, the risk of tort liability
would skew contractor behavior in a way that has no
place on the battlefield.
Military operations,
especially in combat zones, are inherently risky.
Every day in combat zones, commanders make
decisions on the basis of incomplete and imperfect
information that put their units and their missions at
risk. If contractors begin weighing military directives
against the risk of civil liability, it is inevitable that in
some situations they will prioritize avoiding the latter
over carrying out the former. The last thing a
commander needs is for a contractor performing a
mission-essential function to decline to follow the
commander’s guidance because of concern over facing
tort liability in civil court after the fact.
25
For example, one of the most essential functions
performed by contractors is building up and
sustaining combat power through the transportation
of fuel and ammunition to forward logistics areas. In
Iraq and Afghanistan, moving fuel and ammunition to
combat forces required constant convoy missions,
which were heavily reliant on contractors. If this
function were disrupted for any reason, the military’s
ability to generate and sustain combat power in
theater would be severely degraded. This function is
also inherently risky for a number of reasons,
including the threat of enemy action.14 If contractors
were to push back against or refuse to perform
military guidance based on their own internal
litigation-risk assessments, the result would be
disruption and delay in the ability to conduct combat
operations, placing soldiers at higher risk. Such
disruption would be inevitable when, as this case
shows, plaintiffs’ injuries can be tragic and the threat
of liability will be severe. In short, the prospect of
tort liability would degrade the ability of the military
to build and sustain combat power, and military
effectiveness would suffer.
It would suffer the most in situations where, in
carrying out the instructions in their contracts, third
parties must exercise any judgment or discretion. At
that point, plaintiffs will always be able to claim that
the complained-of action was not “the military’s own
conduct or decision.” Pet. Br. 48 (quoting Badilla v.
Midwest Air Traffic Control Serv., Inc., 8 F.4th 105,
128 (2d Cir. 2021)). As amici well know, timidity does
See, e.g., Conner, Army Logistician, Sept.-Oct. 2007 at 21
(discussing IED attack on contractor logistics convoy).
14
26
not usually result in successful military operations.
Faced with the substantial risk of tort liability,
contractors will be dissuaded from exercising exactly
the type of judgment and discretion that may be
necessary to achieve valid military objectives. For
example, in Iraq, LOGCAP contractors dispatched
small teams of specialized maintenance personnel to
repair mission-critical equipment where front-line
units lacked the relevant expertise. MAJ Walter
Llamas, Contingency Contracting and LOGCAP
Support in MND-B, Iraq, Army Logistician, Sept.Oct. 2007, at 28, 29. In that situation, the military
personnel receiving contractor support rely on the
contractor’s subject-matter expertise and judgment to
undertake the necessary repairs, and are in no
position to dictate their every action. Any standard
that exposes contractors to liability unless their every
action is “specifically authorized or directed” by the
military, Badilla, 8 F.4th at 128, would render this
arrangement unworkable.
That is all bad enough before an incident occurs.
But once something happens and a contractor faces
potential liability, it would have an incentive to
protect its own interests, potentially at odds with the
military and the mission. For example, a contractor
might inspect and gather evidence from “the scene of
the allegedly tortuous act” (which may not be feasible
in a war zone), or conduct witness interviews,
including of “military personnel.” Aiello v. Kellogg,
Brown & Root Servs., Inc., 751 F. Supp. 2d 698, 711
(S.D.N.Y. 2011). To put it mildly, “these activities
would pose a significant risk of interfering with the
military’s combat mission.” Ibid.
Ultimately, this lawsuit seeks to introduce “a
wholly novel element into military decisionmaking,
27
one that has never before in our country’s history
been deployed so pervasively in a theatre of armed
combat”—namely, the consideration “of the costs and
consequences of protracted tort litigation.” Al
Shimari v. CACI Int’l, Inc., 679 F.3d 205, 226 (4th
Cir. 2012) (Wilkinson J., dissenting). Contractors
would be confronted with potentially massive liability,
which would necessarily change the cost calculus in
the military-contractor relationship, leading to a real
impact on military effectiveness. Given the stakes,
the United States has itself consistently taken the
position that “[t]he military’s effectiveness would be
degraded if its contractors were subject to the tort
law of multiple States for actions occurring in the
course of performing their contractual duties arising
out of combat operations.”15
Based on amici’s
experience, those concerns are well founded and
counsel against the legal sea change that petitioner
seeks.
Brief for the United States as Amicus Curiae at 1-2, KBR v.
Metzgar, 574 U.S. 1120 (2015) (No. 13-1241); Brief for the United
States as Amicus Curiae at 13-14, Kellogg Brown & Root Services v.
Harris, 574 U.S. 1120 (2015) (No. 13-817) (same); see Brief for the
United States as Amicus Curiae at 13, Carmichael v. Kellogg,
Brown & Root Service, Inc., 561 U.S. 1025 (2010) (No. 09-683)
(“Whatever the defense asserted, the decisions addressing them—
and the various statutes and doctrines in this area more generally—
reflect an understandable discomfort with readily subjecting the
actions of government contractors who provide services to the U.S.
military in war zones to private civil suits under state tort law.”).
15
28
B. Federal Law Provides Oversight Of Military
Contractors And Redress For Wounded
Soldiers Without The Need To Insert State
Tort Laws.
Amici want to be clear that contractors are not
above the law, and wounded warriors like Specialist
Hencely deserve redress for their injuries. But there
are already avenues to accomplish those ends.
As to contractor liability, the military can and does
enforce its contractual rights to remedy contractor
wrongdoing. As explained earlier, see pp. 18-19,
supra, it is a routine aspect of military contract
management to assess and audit contractor
performance, and to raise issues of noncompliance at
the appropriate levels. In the case of unremedied
substantial violations, the military can also seek
redress in court, as provided for in the relevant
contracts.
Moreover, for serious malfeasance, individual
contractors are subject to liability under the Uniform
Code of Military Justice (UCMJ), 10 U.S.C.
§ 802(a)(10), and the Military Extraterritorial
Jurisdiction Act (MEJA), 18 U.S.C. § 3261(a)(1).
Under the UCMJ, Congress has given military
commanders ample tools to directly address
criminality and other wrongdoing by contractors in
combat zones. And in addition to military law, under
the MEJA, contractors can be subjected to civilian
criminal law for any “conduct outside the United
States that would constitute an offense punishable by
imprisonment for more than 1 year if the conduct had
been engaged in within the special maritime and
territorial jurisdiction of the United States.”
18 U.S.C. § 3261(a)(1).
Those dual mechanisms
29
provide both military commanders and civilian
authorities with the means to respond to serious
wrongdoing by contractors, without improperly
interfering with the ability of the Armed Forces to
conduct combat operations.
As to Specialist Hencely, military service members
harmed by contractor wrongdoing do not lack
recourse for their injuries. Service members are
entitled to disability benefits through the Department
of Veterans Affairs for “personal injury suffered or
disease contracted in line of duty.” 38 U.S.C. § 1131.
And the Defense Base Act provides workers’
compensation benefits to contractors injured while
supporting American combatant activities overseas.
42 U.S.C. § 1651. To be sure, the delivery of benefits
for veterans is far from perfect, but structurally this
arrangement protects the strong federal interest in
keeping tort law out of the realm of military affairs,
while offering medical care and compensation for
wounded soldiers. Simply put, this scheme leaves no
vacuum for state tort law to fill.
30
CONCLUSION
For the foregoing reasons, this Court should affirm
the judgment below.
Respectfully submitted.
AKASH M. TOPRANI
WILLIAM S.L. WEINBERG
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, NY 10004
JEFFREY B. WALL
Counsel of Record
SULLIVAN & CROMWELL LLP
1700 New York Avenue NW
Suite 700
Washington, DC 20006
(202) 956-7500
wallj@sullcrom.com
Counsel for Amici Curiae
SEPTEMBER 22, 2025
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.