Reply 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

REPLY BRIEF FOR PETITIONER

James E. Butler, Jr.

Daniel E. Philyaw

Allison Brennan Bailey

BUTLER PRATHER LLP

P.O. Box 2962

105 13th Street

Columbus, GA 31901

Tyler R. Green

Counsel of Record

CONSOVOY MCCARTHY PLLC

222 S. Main St., 5th Fl.

Salt Lake City, UT 84101

(703) 243-9423

tyler@consovoymccarthy.com

W. Andrew Bowen

Paul W. Painter III

Stephen D. Morrison, III

BOWEN PAINTER, LLC

308 Commercial Dr.,

Suite 100

Savannah, GA 31406

Thomas R. McCarthy

Taylor A.R. Meehan

Frank H. Chang

Cody Ray Milner

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Suite 700

Arlington, VA 22209

(continued on next page)

Counsel for Petitioner

Robert H. Snyder, Jr.

CANNELLA SNYDER LLC

315 W. Ponce de Leon Ave.,

Suite 885

Decatur, GA 30030

D. Josev Brewer

LAW OFFICE OF D. JOSEV

BREWER

650 E. Washington Street

Greenville, SC 29601

Beattie Ashmore

BEATTIE B. ASHMORE, P.A.

650 E. Washington Street

Greenville, SC 29601

Counsel for Petitioner

i

TABLE OF CONTENTS

Page

Table of Authorities.................................................... ii

Introduction .................................................................1

Argument .....................................................................1

I.

The Constitution does not preempt

Hencely’s claims .............................................1

II. Uniquely federal interests do not

preempt Hencely’s claims.............................10

A. Fluor fails to reconcile its preemption

theory with the Supremacy Clause .......10

B. Boyle does not shield contractors who

breach their contract and disobey the

government’s instructions .....................12

1.

The relevant federal interest is

shielding the military’s own

conduct and decisions, not “war” ....13

2.

Fluor identifies no significant

conflicts requiring displacement

of state law.......................................17

3.

Even if a significant conflict

exists,

Fluor

proposes

an

overbroad test ..................................25

Conclusion .................................................................27

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Al Shimari v. CACI Int’l,

679 F.3d 205 (4th Cir. 2012) ................................. 24

Am. Ins. Ass’n v. Garamendi,

539 U.S. 396 (2003) ........................................... 9, 10

Badilla v. Midwest Air Traffic Control,

8 F.4th 105 (2d Cir. 2021) .......................... 13-14, 26

Balt. & Annapolis R.R. Co. v. Lichtenberg,

4 A.2d 734 (Md. 1939) ............................................. 3

Boyle v. United Technologies Corp.,

487 U.S. 500 (1988) .......................1, 2, 9, 11, 12, 14, 16,

…………………………………………… .... 17, 21, 23, 25

Brady v. Roosevelt S.S. Co.,

317 U.S. 575 (1943) ....................................... 4, 6, 26

Buckman Co. v. Plaintiffs’ Legal Comm.,

531 U.S. 341 (2001) ............................................... 23

Campbell-Ewald Co. v. Gomez,

577 U.S. 153 (2016) ........................................... 6, 23

Cassirer v.

Thyssen-Bornemisza Collection Found,

596 U.S. 107 (2022) ........................................ 11, 15

Clendening v. United States,

143 S.Ct. 11 (2022) ................................................ 14

Corr. Servs. Corp. v. Malesko,

534 U.S. 61 (2001) ........................................... 12, 16

iii

Crosby v. Nat’l Foreign Trade Council,

530 U.S. 363 (2000) ................................................. 9

Delorenzo v. HP Enters. Servs.,

2016 WL 6459550 (D.D.C.) ..................................... 9

Empire Healthchoice Assurance v. McVeigh,

396 F.3d 136 (2d Cir. 2005) .................................. 25

Federico v. Lincoln Mil. Hous.,

127 F. Supp. 3d 623 (E.D. Va. 2015) ...................... 8

Ghane v. Mid-South Inst. of Self Def. Shooting,

137 So.3d 212 (Miss.) .............................................. 8

Grano v. Sodexo Mgmt.,

2023 WL 125590 (S.D. Cal.).................................... 8

Harris v. Kellogg Brown & Root Servs.,

724 F.3d 458 (3d Cir. 2013) ...................... 14, 18, 26

Hatzlachh Supply Co. v. United States,

444 U.S. 460 (1980) ............................................... 22

Hein v. FFRF,

551 U.S. 587 (2007) ............................................... 11

Hernández v. Mesa,

589 U.S. 93 (2020) ............................................. 4, 11

In re Joint E. & S. Dist. N.Y. Asbestos Litig.,

897 F.2d 626 (2d Cir. 1990) ............................ 21, 23

In re KBR Burn Pit Litig.,

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

In re Neagle,

135 U.S. 1 (1890) ..................................................... 5

In re U.S. OPM Data Sec. Breach Litig.,

928 F.3d 42 (D.C. Cir. 2019) ................................. 23

iv

Itel Containers Int’l Corp. v. Huddleston,

507 U.S. 60 (1993) ................................................... 8

James Stewart & Co. v. Sadrakula,

309 U.S. 94 (1940) ............................................... 3, 6

Johnson v. Maryland,

254 U.S. 51 (1920) ............................................... 4, 5

Johnson v. United States,

481 U.S. 681 (1987) ............................................... 25

Kansas v. Garcia,

589 U.S. 191 (2020) ............................................... 11

Little v. Barreme,

6 U.S. 170 (1804) ..................................................... 5

Logue v. United States,

412 U.S. 521 (1973) ................................................. 4

Martin v. United States,

145 S.Ct. 1689 (2025) .................................... 4, 5, 14

McColluch v. Maryland,

17 U.S. 316 (1819) ............................................... 2, 3

Medellín v. Texas,

552 U.S. 491 (2008) ................................................. 9

Miree v. DeKalb County,

433 U.S. 25 (1977) ................................................. 16

Mitchell v. Harmony,

54 U.S. 115 (1851) ............................................. 5, 15

Murphy v. NCAA,

584 U.S. 453 (2018) ............................................. 6, 7

North Dakota v. United States,

495 U.S. 423 (1990) ......................................... 2, 7, 8

v

O’Melveny v. FDIC,

512 U.S. 79 (1994) ................................................. 13

Penn Dairies v. Milk Control Comm’n of Pa.,

318 U.S. 261 (1943) ............................................. 7, 8

Richardson v. McKnight,

521 U.S. 399 (1997) ......................................... 20, 21

Rodriguez v. FDIC,

589 U.S. 132 (2020) ............................................... 11

S. Pac. Co. v. Jensen,

244 U.S. 205 (1917) ................................................. 8

Saleh v. Titan Corp.,

580 F.3d 1 (D.C. Cir. 2009) ....................... 13, 15, 18

Silkwood v. Kerr-McGee Corp.,

464 U.S. 238 (1984) ................................................. 7

Sosa v. Alvarez-Machain,

542 U.S. 692 (2004) ................................................. 5

Stencel Aero Eng’g Corp. v. United States,

431 U.S. 666 (1977) ............................................... 22

Tarble’s Case,

80 U.S. 397 (1871) ................................................... 5

Torres v. Tex. Dep’t of Pub. Safety,

597 U.S. 580 (2022) ............................................. 7, 8

United States v. Balt. & Annapolis R.R. Co.,

301 U.S. 324 (1937) ................................................. 3

United States v. Belmont,

301 U.S. 324 (1937) ................................................. 9

United States v. Brown,

348 U.S. 110 (1954) ............................................... 22

vi

United States v. New Mexico,

455 U.S. 720 (1982) ................................................. 4

United States v. Washington,

596 U.S. 832 (2022) ................................................. 2

W.S. Kirkpatrick & Co. v. Env’t Tectonics Corp.,

493 U.S. 400 (1990) ........................................... 9, 15

Wyeth v. Levine,

555 U.S. 555 (2009) ............................................... 22

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

309 U.S. 18 (1940) ....................................... 6, 20, 23

Zschernig v. Miller,

389 U.S. 429 (1968) ............................................... 10

Constitutional Provisions

U.S. Const. art. I, §8 ................................................... 7

U.S. Const. art. II, §2 ................................................. 7

U.S. Const. art. VI, cl. 2 ........................................... 10

Statutes, Rules and Regulations

5 U.S.C. §301 ............................................................ 24

41 U.S.C. §7102 ........................................................ 22

48 C.F.R. §52.250-1 .................................................. 21

73 Fed. Reg. 16,764

(Mar. 31, 2008) .............................. 15, 16, 18, 20, 21

Other Authorities

Hurst, After Blackwater,

76 Geo. Wash. L. Rev. 1308 (2008) ....................... 21

1

INTRODUCTION

Fluor has abandoned the Fourth Circuit’s rationale. The Fourth Circuit grounded its preemption

analysis on the “exten[sion]” of “Boyle’s logic to the

FTCA’s combatant activities exception,” and derived

purportedly uniquely federal interests from that exception. Pet.App.21. Rather than defend that reasoning, Fluor now says “the Constitution’s text and design” supply the uniquely federal interests, and that

the combatant-activities exception merely “supplies

the rule of decision.” Fluor.Br.13. To decide whether

to preempt Hencely’s claims, the Fourth Circuit asked

whether Fluor was “integrated into combatant activities over which the military retains command authority.” Pet.App.21 (citation modified). But Fluor now

says the proper test is whether “a military contractor

takes action … within the scope of a valid contract,”

Fluor.Br.23, a test rejected by every court of appeals

that considered it. Fluor’s abandonment of the Fourth

Circuit’s analysis makes it easy for this Court to reject

it, too.

The Court should also reject Fluor’s—and the government’s—alternative grounds for affirmance. Neither the Constitution’s structure nor uniquely federal

interests preempt Hencely’s claims.

ARGUMENT

I. The Constitution does not preempt

Hencely’s claims.

The Fourth Circuit based its preemption analysis

on the “exten[sion]” of “Boyle’s logic to the FTCA’s

combatant activities exception.” Pet.App.21. That

2

court never addressed whether the Constitution’s

structure alone—without Boyle v. United Technologies Corp., 487 U.S. 500 (1988)—preempts Hencely’s

claims. And this Court granted certiorari on whether

Boyle should be extended. Pet.i. But Fluor and the

government suggest that the Constitution alone

preempts Hencely’s claims. Fluor.Br.30-33; U.S.Br.911, 31. Even if those arguments were properly presented, they are wrong.

A. Fluor argues that state law “cannot regulate

private parties in a way that would indirectly burden

the federal government’s sovereignty.” Fluor.Br.31.

This Court has “thoroughly repudiated” Fluor’s

indirect-burden argument. North Dakota v. United

States, 495 U.S. 423, 434 (1990) (plurality) (citation

modified). “Whatever burdens are imposed on the

Federal Government by a neutral state law regulating

its suppliers are but normal incidents of the organization within the same territory of two governments.”

Id. at 435 (citation modified). Indeed, after McColluch

v. Maryland, 17 U.S. 316 (1819), this Court “later

came to understand the doctrine … as prohibiting

state laws that either regulate the United States directly or discriminate against the Federal Government or those with whom it deals (e.g., contractors),”

United States v. Washington, 596 U.S. 832, 838 (2022)

(citation modified). Fluor doesn’t argue that Hencely’s

claims violate this principle. It relies on indirect burden as a stand-alone basis for preempting Hencely’s

claims.

3

This Court has also confirmed that applying state

law to federal contractors causes no structural constitutional concerns. In Baltimore & Annapolis Railroad

Co. v. Lichtenberg, Maryland ordered a contractor,

who was transporting federal workers, to stop its operations for failing to comply with “safety regulations”

and permitting requirements. 4 A.2d 734, 386 (Md.

1939). The contractor and the United States argued

that the state “regulation … amount[ed] to interference with performance of an essential governmental

function.” Id. at 393; see also U.S.Baltimore.Br., 1939

WL 48357, at *18-19 (raising McColluch). This Court

dismissed the appeal for “want of a substantial Federal question.” 308 U.S. 525 (1939).

Invoking Baltimore, this Court again rejected the

indirect-burden argument in an “action of tort” based

on a federal contractor’s violation of state safety laws

while constructing a federal building. James Stewart

& Co. v. Sadrakula, 309 U.S. 94, 98 (1940). The Court

rejected the argument that federal contractors must

be shielded from state law lest it become “difficult or

impossible for the government to obtain the service it

needs” because that argument “ignores the power of

Congress to protect” the government’s “functions” if

necessary. Id. at 104 (citation modified). Those cases,

which Fluor never addresses, foreclose its indirectburden argument.

B. The government, in turn, suggests that because

the United States “can act only through its officers

and agents,” “structural constitutional preemption

necessarily shields those officers and agents from

state control in the performance of their duties.”

4

U.S.Br.10 (citation modified). If the government suggests that the Constitution’s structure impliedly

preempts state claims against contractors as “agents”

of the federal government, that’s wrong.

To start, not every independent contractor is an

“agent.” Logue v. United States, 412 U.S. 521, 527

(1973). Unlike federal employees, contractors are not

“‘constituent parts’ of the Federal Government,” and

“[t]he congruence of professional interests between

the contractors”—who are engaged for “limited and

carefully defined purposes”—and “the Federal Government is not complete.” United States v. New Mexico, 455 U.S. 720, 740-41 (1982).

More to the point, it doesn’t matter whether every

contractor becomes an “agent” on identical footing

with federal employees for preemption purposes. Even

if they were, the Constitution’s structure contemplates the availability of “state tort liability” against

the federal government’s agents. Martin v. United

States, 145 S.Ct. 1689, 1702 n.2 (2025). “The liability

of an agent for his own negligence has long been embedded in the law.” Brady v. Roosevelt S.S. Co., 317

U.S. 575, 580 (1943) (emphasis added). Federal officials were subject to “state-tort suits” until Congress

passed the Westfall Act. Hernández v. Mesa, 589 U.S.

93, 110 (2020); see also Johnson v. Maryland, 254 U.S.

51, 56 (1920) (a federal postal worker may face “liability under the common law of a State” for “negligence”).

Even common-law suits against military officials

for conduct in “foreign battlefields” were not unheard

of. Contra U.S.Br.33. Captain Little was liable for

5

trespass for unlawfully seizing a foreign vessel near

Hispaniola during the Quasi-War with France. Little

v. Barreme, 6 U.S. 170, 179 (1804). Colonel Mitchell

was liable for wrongfully seizing an American citizen’s

property in Mexico during the Mexican-American

War. Mitchell v. Harmony, 54 U.S. 115, 128, 137

(1851).1 Indeed, Congress had to pass the Westfall Act

to bar such suits precisely because the constitutional

structure didn’t bar them.

This Court has held that some state criminal prosecutions of—and state writs of habeas corpus directed

to—federal officials may be impermissible. See

U.S.Br.10; In re Neagle, 135 U.S. 1 (1890); Tarble’s

Case, 80 U.S. 397 (1871). Even so, private tort suits

against federal officials remained viable until the

Westfall Act because they “would not bring the ‘federal and state governments into conflict.’” Martin, 145

S.Ct. at 1702 n.2; see also Johnson, 254 U.S. at 56.

Just as the Constitution’s structure didn’t bar

state-law suits against federal employees acting as

governmental agents, it doesn’t bar suits against federal contractors—regardless of whether they can be

1 The Court in Mitchell might have been applying “general

common law.” General common law was “nonfederal.” Sosa v. Alvarez-Machain, 542 U.S. 692, 740 (2004) (Scalia, J., concurring

in part and concurring in judgment). Historical examples applying nonfederal common law to battlefield conduct rebut Fluor

and the government’s assertion that Fluor’s noncombat conduct

on a U.S. base overseas must be governed exclusively by federal

law. Indeed, had Harmony sued Mitchell in state court instead

of invoking federal diversity jurisdiction, state common law could

have applied.

6

called “agents” for preemption purposes. And it hasn’t.

See Sadrakula, 309 U.S. at 98.

None of that undermines this Court’s prior recognition that “there is no liability on the part of the contractor for executing [the government’s] will.” Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 21 (1940).

Regardless of whether this principle is one of derivative sovereign “immunity,” Brady, 317 U.S. at 583, or

a Supremacy Clause defense, see U.S.Br.10, contractors must perform “in compliance with all federal directions” to win on this defense, Campbell-Ewald Co.

v. Gomez, 577 U.S. 153, 167 n.7 (2016). That is, to

avoid liability, the contractor’s challenged actions

must have been “all authorized and directed by the

Government of the United States” and “pursuant to

the Act of Congress.” Yearsley, 309 U.S. at 20.

Absent the Yearsley defense, nothing in the Constitution’s structure prohibits state tort suits against

contractors for their “own negligence.” Brady, 317

U.S. at 580. Fluor forfeited the Yearsley defense by

failing to brief it below. In any event, Fluor isn’t eligible for the Yearsley defense because it “indisputabl[y]”

failed to comply with the government’s directions to

supervise and escort Nayeb. Pet.App.186.

C. Next, Fluor argues that Hencely’s claims “are

preempted because they conflict with the federal government’s exercise of its constitutional war powers.”

Fluor.Br.30; see U.S.Br.14, 31-33.

Fluor’s wrong. The Constitution vests “certain

enumerated powers” in Congress. Murphy v. NCAA,

7

584 U.S. 453, 471 (2018). As relevant here, Congress

has the power to declare war, raise and support the

military forces, make rules for the military, and provide for organizing and calling forth the Militia. U.S.

Const. art. I, §8. The President is the commander in

chief. Id. art. II, §2. All other powers—including

providing tort remedies against private corporations—are “reserved for the States.” Murphy, 584 U.S.

at 471; see Silkwood v. Kerr-McGee Corp., 464 U.S.

238, 248 (1984).

The Constitution’s mere grant of specific war-related powers does not automatically preempt the application of state law to military contractors. See, e.g.,

Penn Dairies v. Milk Control Comm’n of Pa., 318 U.S.

261, 278-79 (1943) (upholding state regulation of military supplier); North Dakota, 495 U.S. at 444 (plurality) (same); Torres v. Tex. Dep’t of Pub. Safety, 597

U.S. 580, 612 (2022) (Thomas, J., dissenting) (“States

have significant residual police powers that overlap

with Congress’ power over the military.”). When a military supplier challenged state price-control regulations, this Court held that “there is no clause of the

Constitution which purports, unaided by Congressional enactment, to prohibit [state] regulations” of

military contractors. Penn Dairies, 318 U.S. at 269.

Of course, “Congress, in aid of its granted power

to raise and support armies, and with the support of

the supremacy clause, could declare state regulations … inapplicable to sales to the government.” Id.

(citations omitted); cf. Torres, 597 U.S. at 595 (Congress enacted USERRA). But Congress hasn’t

preempted state tort claims against contractors for

8

negligence, and state tort suits against contractors are

“normal incidents of the operation of … a dual system

of government.” Penn Dairies, 318 U.S. at 271. It’s up

to Congress to “act to remove them.” Id.

Nor do this Court’s foreign-commerce and admiralty cases support structural preemption of state tort

claims against government contractors without federal legislation. Cf. U.S.Br.32. Though this Court has

interpreted the Foreign Commerce Clause and Article

III to contain a “negative,” “self-operative prohibition”

on state law that touches foreign commerce, Itel Containers Int’l Corp. v. Huddleston, 507 U.S. 60, 78

(1993) (Scalia, J., concurring in part and concurring in

judgment), and admiralty, S. Pac. Co. v. Jensen, 244

U.S. 205, 216 (1917), this Court hasn’t interpreted the

Constitution’s war-related provisions the same way,

Penn Dairies, 318 U.S. at 269, 271; Torres, 597 U.S. at

612-13 (Thomas, J., dissenting).

Again, the Court has upheld state regulations of

military contractors. Penn Dairies, 318 U.S. at 278-79;

North Dakota, 495 U.S. at 444 (plurality). If Fluor

were right, those cases would be wrong. No state

claims could proceed against any DOD contractors—

mess-hall workers who spread E.coli at boot camp,

Grano v. Sodexo Mgmt., 2023 WL 125590, *1-2, *26

(S.D. Cal.), military housing managers who fail to

treat mold, Federico v. Lincoln Mil. Hous., 127 F.

Supp. 3d 623, 627 (E.D. Va. 2015), constructors of livefire training sites that injure servicemembers, Ghane

v. Mid-South Inst. of Self Def. Shooting, 137 So.3d 212,

214 (Miss.), cert. denied 574 U.S. 821 (2014), or a computer technician who commits a mass shooting on

9

base, Delorenzo v. HP Enters. Servs., 2016 WL

6459550, at *1 (D.D.C.). And Boyle should have been

a much shorter decision. Military helicopters surely

implicated Congress’s power to raise and support the

military. Boyle instead strained to craft uniquely-federal-interests preemption, not structural preemption.

The foreign-affairs cases Fluor cites are inapposite for the same reason and for others. Fluor.Br.32

(citing Crosby v. Nat’l Foreign Trade Council, 530 U.S.

363 (2000); Am. Ins. Ass’n v. Garamendi, 539 U.S. 396

(2003); United States v. Belmont, 301 U.S. 324 (1937)).

Crosby was a statutory preemption case involving a

state law that “conflict[ed] with [a] federal [statute]”

and thus cannot support Fluor’s structural preemption argument. 530 U.S. at 378.

Garamendi and Belmont, in turn, involved executive claims-settlement agreements—coupled with

“200 years” of “congressional acquiescence” in this

area—that this Court said could preempt state law.

Garamendi, 539 U.S. at 415. Contrast that with this

Court’s refusal to displace state law beyond executive

claims-settlement agreements—even when the state

law touched on foreign relations. See, e.g., Medellín v.

Texas, 552 U.S. 491, 524 (2008) (declining to “set aside

first principles” despite the “plainly compelling” foreign-relations considerations implicated in Texas’s execution of Mexican nationals who received no consular

visitations); W.S. Kirkpatrick & Co. v. Env’t Tectonics

Corp., 493 U.S. 400, 406, 408-09 (1990) (declining to

bar state claims that required finding foreign officials

10

accepted bribes and so would “impugn” or “embarrass”

them).2

*

For these reasons, Fluor and the government’s

structural preemption arguments fail.

II. Uniquely federal interests do not preempt

Hencely’s claims.

Fluor insists that “uniquely federal interests”—

without conflicting federal constitutional or statutory

text—preempt Hencely’s claims. Fluor.Br.14-30, 3742; see U.S.Br.14-28. Those arguments are wrong.

A. Fluor fails to reconcile its preemption

theory with the Supremacy Clause.

Fluor insists that “in ‘a few areas,’ preemption can

arise from a conflict between state law and ‘uniquely

federal interests.’” Fluor.Br.34; see also U.S.Br.30.

But Fluor never explains how extending uniquely-federal-interests preemption here can be reconciled with

the Supremacy Clause’s text.

Preemption requires a conflict between state law

and “[t]he Constitution,” “the Laws of the United

States” made by Congress, or “Treaties.” U.S. Const.

art. VI, cl. 2. “In all cases, the federal restrictions or

rights that are said to conflict with state law must

2 Garamendi

relied on Zschernig v. Miller, 389 U.S. 429

(1968), which preempted state law that touched on foreign relations. But this Court “ha[d] not relied on Zschernig since it was

decided” until Garamendi, 539 U.S. at 439 (Ginsburg, J., dissenting), and hasn’t relied on it since.

11

stem from either the Constitution itself or a valid statute enacted by Congress.” Kansas v. Garcia, 589 U.S.

191, 202 (2020) (emphasis added). The tension between the Supremacy Clause’s text and uniquely-federal-interests preemption is reason enough not to extend Boyle. Hencely.Br.31-35.

Fluor asserts that this Court “reiterated”

uniquely-federal-interests preemption in Cassirer v.

Thyssen-Bornemisza Collection Foundation, 596 U.S.

107 (2022). Fluor.Br.34. Cassirer refused to displace

state law though the dispute involved foreign-relations interests. 596 U.S. at 116-17. And no party in

Cassirer asked the Court to reconcile uniquely-federal-interests preemption with the Supremacy

Clause. Besides, Fluor’s muscular expansion of

uniquely-federal-interests preemption beyond Boyle’s

limits contradicts the admonition that “[j]udicial lawmaking … plays a necessarily modest role.” Rodriguez

v. FDIC, 589 U.S. 132, 136 (2020).

Fluor also incorrectly asserts that reversing the

judgment below would require the Court to “overrule

Boyle and the many cases on which it relied.”

Fluor.Br.34. Not so. This Court routinely declines to

“extend” old holdings to new contexts without “overrul[ing]” prior decisions or doctrines. Hein v. FFRF,

551 U.S. 587, 615 (2007); see also Hernández, 589 U.S.

at 96 (not extending but not overruling Bivens). Under

stare decisis, reversing the judgment below will not

upset the holdings of Boyle and other cases.

Adopting Fluor’s proposed rule, in contrast, would

stretch Boyle beyond its limits. Boyle applied

12

uniquely-federal-interests preemption when the alleged conflict arose from the government’s specific,

discretionary helicopter design choices and the contractor merely acted as the government’s alter ego by

“conform[ing]” to the government’s specifications. 487

U.S. at 512. That’s why Boyle is a defense when “the

government has directed a contractor to do the very

thing that is the subject of the claim.” Corr. Servs.

Corp. v. Malesko, 534 U.S. 61, 74 n.6 (2001); see also

Hencely.Br.36-41. By contrast, Fluor asks this Court

to make uniquely-federal-interests preemption available even when the contractor failed to conform to the

government’s instructions and the plaintiff isn’t second-guessing the government’s specific decisions. See

Fluor.Br.25, 37. Rather than respecting Boyle’s core

holding, Fluor distorts Boyle beyond recognition.

B. Boyle does not shield contractors who

breach their contract and disobey the

government’s instructions.

Fluor’s arguments for extending uniquely-federalinterests preemption fail under Boyle’s own terms. Rather than defend the Fourth Circuit’s test, Fluor proffers a new one. Fluor would preempt state law so long

as the contractor’s negligence implicates an act within

the scope of the contract. Fluor.Br.23. Fluor’s version

makes the defense available regardless of whether the

contractor violates the contract or disobeys the government’s explicit instructions.

Fluor gets every step of Boyle’s analysis wrong. It

defines the relevant federal interests at the highest

level of generality and fails to identify significant conflicts that warrant broadly displacing state claims. Its

13

resulting test is virtually limitless and untethered to

precedent or the Constitution.

1. The relevant federal interest is

shielding the military’s own

conduct and decisions, not “war.”

a. To justify federal common-lawmaking, Fluor

must identify uniquely federal interests that are “specific,” “concrete,” and “genuinely identifiable.” O’Melveny v. FDIC, 512 U.S. 79, 88-89 (1994). But Fluor

identifies the federal interest only as “the power to

wage war.” Fluor.Br.15. That’s anything but specific,

concrete,

and

genuinely

identifiable.

See

Hencely.Br.46-48. For that reason alone, Hencely’s

claims aren’t preempted.

Fluor’s repeated references to the federal government’s war power are the wrong place to start and end.

Tort liability falls in the heartland of the States’ competence. It’s not an exclusively federal function. Supra

2-9.

If private corporations—which are not soldiers

and lack the constitutional power to wage war—are

involved in the military’s operations, it is only because

the military contracted with them to provide services.

Those services can often be “judged separate and

apart from combat activities of the U.S. military.”

Saleh v. Titan Corp., 580 F.3d 1, 9 (D.C. Cir. 2009).

Tort suits against a contractor could be said to undermine the military’s interests only insofar as the contractor’s “challenged action can reasonably be considered the military’s own conduct or decision.” Badilla

v. Midwest Air Traffic Control, 8 F.4th 105, 128 (2d

14

Cir. 2021). Conduct that violates the military’s instructions or the contract—like Fluor’s failure to escort and supervise its Afghan employees—cannot be

deemed the military’s decisions because such violations are “necessarily made independently of the military’s battlefield conduct and decisions.” Harris v.

Kellogg Brown & Root Servs., 724 F.3d 458, 481 (3d

Cir. 2013).

This comports with how Boyle analyzed uniquelyfederal-interests preemption. Boyle zeroed in on the

specific federal interest in “getting the Government’s

work done” by obtaining a specific military helicopter

design through a “procurement contract.” 487 U.S. at

505. Though procuring military helicopters implicated

Congress’s power to raise and support the military,

Boyle didn’t analyze the relevant federal interest at

that high level of generality. It zoomed in.

Fluor tries to distinguish this case from Boyle by

contending that tort suits would intrude on the federal

government’s “exercise[] [of] exclusive control over the

design and implementation of military operations.”

Fluor.Br.41. But tort suits by a private party against

a private corporation—for its own negligence untethered to specific military decisions—do not wrest onthe-ground operational control away from the federal

government and give it to the States. Cf. Clendening

v. United States, 143 S.Ct. 11, 13 (2022) (Thomas, J.,

dissenting from denial of certiorari) (“[T]ort judgments,” unlike injunctions, do not tell the military

“what they must do and what they must not do.”); see

also Martin, 145 S.Ct. at 1702 n.2.

15

More to the point, Congress knows how to displace

tort suits based on events occurring on U.S. bases

overseas. Congress did so for the federal government

(FTCA exceptions), for soldiers and sailors (Westfall

Act), and for contractors only as to suits by contractor

employees (Defense Base Act). See Hencely.Br.30, 3839. But Congress hasn’t precluded state tort suits by

U.S. soldiers injured by contractor negligence on foreign (or domestic) bases. And DOD, citing cases involving state-law claims, warned military contractors

that they could be held liable for their own negligence

unconnected to the government’s decisions. 73 Fed.

Reg. 16,764, 16,768 (Mar. 31, 2008). That’s no surprise;

it’s not unusual for state tort law to touch conduct that

occurs in foreign countries. See Cassirer, 596 U.S. at

110-11 (painting appropriated in Germany and sold to

Spain); Kirkpatrick, 493 U.S. at 401-02 (briberytainted contract in Nigeria). This Court has also applied common-law torts even to battlefield conduct in

Mexico. See Mitchell, 54 U.S. at 128.

Fluor thinks its negligence (and failure to follow

the government’s instructions) should have no consequences under any State’s law because the combatantactivities exception “reflects the fact that ‘all of the

traditional rationales for tort law—deterrence of risktaking behavior, compensation of victims, and punishment of tortfeasors—are singularly out of place in

combat situations, where risk-taking is the rule.’”

Fluor.Br.17 (quoting Saleh, 580 F.3d at 7). But that

exception speaks only to the federal government’s liability arising out of the military’s combatant activities.

Civilian contractors like Fluor are not the military.

They cannot—and do not—engage in combat.

16

Hencely.Br.23-27; U.S.Br.28. And Fluor’s supervision

and escorting failures occurred “within the civilian

portions of the base,” Pet.App.160, where Fluor was

providing non-combat, vehicle-maintenance support.3

It defies common sense to suggest that “risk-taking” is

“the rule” when it comes to supervising and escorting

Afghan employees. The rule actually requires the opposite—“avoid injuring third parties.” 73 Fed. Reg. at

16,768.

b. Fluor also asserts, in passing, an interest in

“getting the Government’s work done.” Fluor.Br.15

(quoting Boyle, 487 U.S. at 505). But violating the contract and disobeying the government—as Fluor has

done—is the opposite of “getting the Government’s

work done.” Cf. Malesko, 534 U.S. at 74 n.6; see also

Hencely.Br.49-52.

Fluor’s government-rights-and-obligations rationale doesn’t apply because “only the rights of private litigants are at issue.” Miree v. DeKalb County,

433 U.S. 25, 30 (1977). Even Boyle’s expansion of the

government-rights-and-obligations rationale doesn’t

apply here. Boyle acknowledged that the claims there

against the helicopter manufacturer involved “liability to third persons,” “not … an obligation to the

United States under its contract.” 487 U.S. at 505.

Boyle deemed that interest relevant because the fallen

3 Contrary

to Fluor’s assertion (at 27), Hencely expressly

“preserve[d]” the argument that “Fluor’s work at the NTV Yard

was not combat” and merely acknowledged that binding Fourth

Circuit caselaw treated logistics support as combatant activities.

Hencely.CA4.Br.29 n.14.

17

Marine’s father’s claims involved Sikorsky’s “performance of the contract” in conformance with the government’s specifications. Id. Fluor, in contrast, violated its contract and disobeyed the military’s instructions. Hencely’s claims therefore would not undermine

the government’s rights and interests.

2. Fluor identifies no significant

conflicts requiring displacement of

state law.

Fluor’s unique-federal-interests preemption theory fails also because Fluor fails to identify significant

conflicts that require displacing Hencely’s claims. By

themselves, uniquely federal interests do “not … suffic[e]” to displace state law. Id. at 507. “Displacement

will occur only where … a significant conflict exists

between an identifiable federal policy or interest and

the operation of state law.” Id. (citation modified).

a. Fluor’s examples of purported conflicts do not

warrant displacing Hencely’s claims.

First, Fluor argues that Hencely’s claims would

“undermine military discipline” and cause military

personnel “to point the finger at one another to avoid

liability themselves.” Fluor.Br.23-24 (citation modified). Fluor doesn’t explain how suits against contractors (who violate the contract and the military’s instructions) for their own negligence will result in liability for military personnel (who likely would be immune anyhow).

18

Fluor also cites self-interested testimony from a

Fluor employee (a former Army officer), who disagreed with the Army investigation report’s conclusion

that Fluor was the primary contributing factor to the

attack,

as

undermining

military

discipline.

Fluor.Br.23; D.Ct.Doc.153-1, 16:15-16. This is Fluor

pointing fingers at the military to avoid liability. Nor

does Fluor explain how Hencely’s claims will undermine military discipline when contractors are outside

the military chain of command.

Second, Fluor asserts that allowing Hencely’s

suit to proceed “would require civilian judges and juries to sit in judgment of sensitive military decisions.”

Fluor.Br.24. Not so. Services provided by contractors

can be “judged separate and apart from combat activities of the U.S. military.” Saleh, 580 F.3d at 9. Under

performance-based contracts like LOGCAP, the military generally “does not, in fact, exercise specific control over the actions and decisions of the contractor.”

Id. at 10 (quoting 73 Fed. Reg. at 16,768). And conduct

that violates the military’s instructions or the contract—like Fluor’s failure to escort and supervise its

Afghan employees—“is necessarily made independently of the military’s battlefield conduct and decisions.” Harris, 724 F.3d at 481.

Though Fluor has abandoned justiciability arguments, cf. Fluor.BIO.29, lower courts have also developed extensive political-question caselaw that further

insulates the military’s decisions. See Pet.App.12-15.

The Fourth Circuit already concluded that Hencely’s

claims would “not inevitably require[]” a court “to

evaluate the reasonableness of military judgments.”

19

Pet.App.16. The government agrees. U.S.Br.24-25 n.2.

Justiciability arguments provide no basis for displacing state claims against contractors who violate the

government’s instructions.

Fluor mischaracterizes Hencely’s claims as second-guessing the military’s decisions. Fluor.Br.23-24,

27-30. Hencely does not challenge the military’s “base

security” measures or decision to “hire Afghan employees” and to give Nayeb “access privileges” on the

base. Contra Fluor.Br.27-28. After Nayeb had been

hired and was on base, it was Fluor’s responsibility—

not the military’s—to supervise him and ensure he

was escorted “in all areas,” in “close proximity,” and

in “constant view” outside his work area. Pet.App.6.

Hencely’s claims target Fluor’s (1) failure to implement “measures … to keep [Afghans] from leaving the

work area without escorts,” which enabled Nayeb to

carry out his attack, Pet.App.174-76, 186; (2) “sporadic supervision,” which enabled Nayeb “to freely acquire” the bomb components and “complete” the

bomb’s construction, Pet.App.169-71, 179-80, 186; (3)

giving Nayeb unfettered access to tools, Pet.App.169,

172-74; and (4) retaining Nayeb despite terminable

workplace infractions, Pet.App.171-72.

Fluor asserts that the Army declined Fluor’s offer

to “increase its escorting duties beyond those required

by the [existing] policy.” Fluor.Br.30. But Hencely’s

claims concern Fluor’s failure to carry out its escorting

responsibilities under the existing policy. See

Pet.App.186. Claims about Fluor’s own failures don’t

require second-guessing the military’s decisions.

20

Third, Fluor also asserts that the possibility of

applying “dozens of different state tort regimes” might

cause contractors to “hesitate to follow the military’s

orders” for fear of incurring liability. Fluor.Br.22; see

also U.S.Br.19. But immunizing violations of the military’s explicit instructions will not incentivize adherence to military orders. Fluor’s suggestion that it will

defies common sense.

It’s also inaccurate to suggest that “dozens” of

state tort regimes will apply. Established choice-oflaw principles will limit the range of applicable state

laws. Indeed, Hencely sued Fluor in South Carolina

because that’s where Fluor maintains its principal

place of business. As DOD explained, “[c]ontractors

are in the best position to plan and perform their duties in ways that avoid injuring third parties” in the

first place. 73 Fed. Reg. at 16,768. And regardless of

which state tort regime applies, existing doctrines like

Yearsley would ensure “no liability on the part of the

contractor for executing [the government’s] will.” 309

U.S. at 21. And “unwarranted timidity” “is less likely”

when “a private company” is “subject to competitive

market pressure” that incentivizes contractors to take

actions that are “safer” and “more effective.” Richardson v. McKnight, 521 U.S. 399, 409 (1997).

Fourth, Fluor argues that state tort claims could

potentially increase “contract, insurance, and indemnity costs” that contractors could pass on to the government. Fluor.Br.21. At bottom, Fluor refers to possible pass-through costs stemming from its own negligence unconnected to the military’s decisions. DOD al-

21

ready warned contractors not to expect to avoid liability in such scenarios. 73 Fed. Reg. at 16,768. And

Fluor has never explained why the government would

have indemnification obligations here. See 48 C.F.R.

§52.250-1 (indemnification only for (1) “unusually

hazardous or nuclear” risk (2) that “is not compensated for by insurance or otherwise”).

Beyond that, the “competitive market pressure”

provides a meaningful check on the pass-through

costs to the government. Richardson, 521 U.S. at 409.

“Given the large number of firms in the industry and

the competitive nature of the bidding process, it is unlikely that firms would be able to demand dramatic

price increases.” Hurst, After Blackwater, 76 Geo.

Wash. L. Rev. 1308, 1324 n.103 (2008).

More to the point, increased pass-through cost to

the government “is not the dispositive consideration”

under Boyle. In re Joint E. & S. Dist. N.Y. Asbestos

Litig., 897 F.2d 626, 631 (2d Cir. 1990). “Had Boyle’s

aim been to prevent military contractors from passing

any liability costs on the Government, it simply could

have granted military contractors a blanket immunity

from all state tort liability.” Id. Boyle insulated the

government from pass-through costs because the government made the “judgment” about “a particular [design] feature” and simply “contract[ed] for the production.” 487 U.S. at 512. This “public policy rationale behind Boyle does not apply” when the government “does

not, in fact, exercise specific control over the actions

and decisions of the contractor.” 73 Fed. Reg. at

16,768.

22

Fifth, Fluor suggests that a servicemember’s tort

suit conflicts with federal veteran-benefits and contractor-dispute schemes. Fluor.Br.41-42. Neither

scheme reveals any indication—much less a “clear

and manifest purpose,” Wyeth v. Levine, 555 U.S. 555,

565 (2009)—by Congress to displace state tort law.

Fluor’s argument would turn large swaths of the U.S.

Code that obliquely touch state law into a uniquelyfederal-interests preemption rubber stamp.

“Congress ha[s] given no indication that it made

the right to compensation the veteran’s exclusive remedy.” United States v. Brown, 348 U.S. 110, 113

(1954). Fluor (at 42) relies on dicta from Hatzlachh

Supply Co. v. United States suggesting that the Veterans’ Benefits Act is the “sole remedy for service-connected injuries.” 444 U.S. 460, 464 (1980). Even if the

VBA might provide “an upper limit of liability for the

Government as to service-connected injuries,” Stencel

Aero Eng’g Corp. v. United States, 431 U.S. 666, 673

(1977) (emphasis added), it says nothing about excluding tort claims against negligent contractors.

Nor did Congress indicate in the Contract Dispute

Act, 41 U.S.C. §7102, that the CDA displaces tort

claims against federal contractors. Government contractors routinely get sued for negligence. See

Hencely.Br.23. If Fluor were right, no tort suits

against any government contractors could proceed.

But they do. See id. Fluor also suggests that the availability of uniquely-federal-interests preemption

should not turn on “whether the federal contractor

breached their government contract” because courts

cannot decide that question outside the CDA process.

23

Fluor.Br.43-44. That’s false. Courts do ascertain the

government’s instructions, contract terms, and violations thereof while analyzing defenses under Yearsley

and Boyle. See, e.g., Campbell-Ewald, 577 U.S. at 168;

In re U.S. OPM Data Sec. Breach Litig., 928 F.3d 42,

69-70 (D.C. Cir. 2019); Asbestos Litig., 897 F.2d at 630.

On the merits, Fluor mischaracterizes Hencely’s

tort claims as a breach-of-contract claim in disguise.

Fluor.Br.42-44. For Hencely’s tort claims, what matters is Fluor’s breach of its duties of reasonable supervision, retention, entrustment, and control.

Hencely.Br.53. The Army investigation report and the

Army Contracting Command concluded that Fluor’s

“lack of reasonable supervision of its personnel” was

“the primary contributing factor” to the attack,

Pet.App.158, and that Fluor “indisputabl[y] … did not

comply with the key contractual requirements” and

“violated policy” by having no “measures in place to

keep [Afghans] from leaving the work area without escorts.” Pet.App.186. That constitutes powerful evidence that Fluor breached its tort duties of care. But

none of this requires that Hencely first prevail on a

breach-of-contract claim. Contra Fluor.Br.43-44;

U.S.Br.26-27.4

4 Fluor mischaracterizes Hencely’s claims as “seek[ing] to

impose liability only for conduct that … violates federal law.”

FluorBr.39 (citing Buckman Co. v. Plaintiffs’ Legal Comm., 531

U.S. 341, 348 (2001)). Buckman involved a tort theory based

solely on fraudulent representation to a federal agency. 531 U.S.

at 347. Hencely’s claims are based on “traditional state tort law

principles of … duty of care.” Id. at 352.

24

b. The government points to additional allegedly

significant conflicts with uniquely federal interests

that it suggests necessitate displacing Hencely’s

claims. Each suggestion errs.

First, the government points to alleged burdens

of discovery. U.S.Br.18, 21-22. But the government

has no uniquely federal interest in avoiding ordinary

third-party discovery. Cf. 5 U.S.C. §301. And “where

discovery would hamper the military’s mission, district courts can and must delay it.” Al Shimari v. CACI

Int’l, 679 F.3d 205, 219 (4th Cir. 2012) (en banc) (citation modified). Federal Rule of Civil Procedure 45 allows courts to limit any undue discovery burdens on

the military and its personnel, further obviating any

need for displacing state law.

Second, the government argues that allegations

by servicemembers against contractors—“whether

true or not—would inspire distrust.” U.S.Br.18. This

gets things backwards. A broad preemption rule that

removes incentives for contractors to exercise care and

forecloses any redress for the servicemembers injured

or killed by contractor negligence, even when the military finds that the contractor was negligent and violated its instructions, undermines servicemembers’

trust.

The government also asserts that servicemembers’ suits against the contractor could place “contractors and the federal government … in an adversarial

position in court” during “active hostilities.”

U.S.Br.27. But the government already often finds itself adverse to contractors when it brings False

25

Claims Act cases, or brings criminal prosecutions, or

initiates other contract-dispute proceedings. More to

the point, a servicemember’s suit directly pits him

against the contractor, and the government’s involvement would be indirect at best.

Third, the government speculates that allowing

Hencely’s suit to proceed would “creat[e] more incentive” for servicemembers “to instigate suits against

current or former contractors.” U.S.Br.18. This also

gets things backwards. Barring Hencely’s suit because other servicemembers injured by contractors

could also seek redress would undermine morale and

trust. See supra 24. If some good policy reason supports precluding servicemembers, including Hencely,

from suing contractors who injure them, “the people’s

elected representatives” should say so. Johnson v.

United States, 481 U.S. 681, 703 (1987) (Scalia, J., dissenting). The government also speculates that there

might be strategic suits by foreign nationals and sovereigns. U.S.Br.18. It’s not even clear how such suits

would find “a nexus to a State,” contra id., be supported by standing, survive Rule 12 (and Rule 11), or

overcome other doctrines that, where they apply,

shield contractors from liability. In any event, “speculations do not suffice to satisfy the conflict prong of

Boyle.” Empire Healthchoice Assurance v. McVeigh,

396 F.3d 136, 141 (2d Cir. 2005) (Sotomayor, J.).

3. Even if a significant conflict exists,

Fluor proposes an overbroad test.

If displacement of state law is necessary, the Court

should adopt the tailored test that Hencely proposes.

See Hencely.Br.54-55.

26

Fluor’s new scope-of-contract test is overbroad. A

test that “includes contractors’ contractual violations”

would effectively immunize conduct “necessarily

made independently of the military’s battlefield conduct and decisions,” Harris, 724 F.3d at 481, and

“even actions that the military did not authorize,” In

re KBR Burn Pit Litig., 744 F.3d 326, 350 (4th Cir.

2014). Fluor concedes that any “rule of decision” must

“consider the connection between the challenged actions of the contractor and the military’s control and

direction.” Fluor.Br.22. Fluor’s test renders that connection irrelevant by shielding contractors who act

outside of—or contrary to—the military’s direction.

Hencely’s test is properly tailored: State claims

against contractors are not preempted unless “the military specifically authorized or directed the action giving rise to the claim.” Badilla, 8 F.4th at 128. This formulation safeguards the military’s battlefield decisions by barring claims when the contractor’s actions

“can reasonably be considered the military’s own conduct or decision.” Id. At the same time, it holds contractors responsible for their “own negligence.” Brady,

317 U.S. at 580. Fluor fails to show that state law

should be preempted beyond what Hencely proposes.

Fluor also has no evidence that the military specifically authorized or directed it to disregard its supervisory and existing duties—which enabled Nayeb to

build a bomb on company time with company tools and

carry out his devasting attack. Supra 19;

Hencely.Br.50-51.

For these reasons, uniquely-federal-interests

preemption does not preempt Hencely’s claims.

27

CONCLUSION

The Court should reverse the judgment below and

remand for further proceedings.

October 15, 2025

Respectfully submitted,

James E. Butler, Jr.

Daniel E. Philyaw

Allison Brennan Bailey

BUTLER PRATHER LLP

P.O. Box 2962

105 13th Street

Columbus, GA 31901

Tyler R. Green

Counsel of Record

CONSOVOY MCCARTHY PLLC

222 S. Main St., 5th Fl.

Salt Lake City, UT 84101

(703) 243-9423

tyler@consovoymccarthy.com

W. Andrew Bowen

Paul W. Painter III

Stephen D. Morrison, III

BOWEN PAINTER, LLC

308 Commercial Dr.,

Suite 100

Savannah, GA 31406

Thomas R. McCarthy

Taylor A.R. Meehan

Frank H. Chang

Cody Ray Milner

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Suite 700

Arlington, VA 22209

Robert H. Snyder, Jr.

CANNELLA SNYDER LLC

315 W. Ponce de Leon

Ave., Suite 885

Decatur, GA 30030

Beattie Ashmore

BEATTIE B. ASHMORE, P.A.

650 E. Washington Street

Greenville, SC 29601

D. Josev Brewer

LAW OFFICE OF D. JOSEV

BREWER

650 E. Washington Street

Greenville, SC 29601

Counsel for Petitioner