Abstract
Since Boyle v. United Technologies Corporation in 1988, courts have understood that sovereign immunity from tort claims must extend to private contractors under the federal government. So long as the party is executing the terms of its contract, in other words, it is immune from liability. Now a slightly different case has come before the Supreme Court. In Hencely v. Fluor Corporation, argued last November, tragedy struck when the corporation failed its end of the contract. Is it still entitled to immunity from tort law? This article suggests that meaningfully different circumstances in this case limit the Boyle precedent and, to examine accountability even in military settings, make it prudent to deny immunity for the corporation. Hencely is an opportunity for the Court to clarify the bounds of tort immunity for government contractors, and extend them precisely no further than reason—and the law—demands.
Introduction:
When a suicide bombing killed five U.S. soldiers on a military base in Bagram, Afghanistan, in 2016, it might not have seemed very extraordinary—yes, a tragedy, but not a surprising risk in war. Yet the bomber had supposedly been on the American side. Ahmad Nayeb had been employed by a subcontractor under Fluor Corporation, which held a contract with the Department of Defense to provide services on the base. He was a known former member of the Taliban, but that was almost brushed aside, his employment being part of a larger economic program to integrate local nationals. An investigation later found that Nayeb had built the suicide vest during his mostly unsupervised shifts at Fluor’s vehicle yard, using materials he found on site. And one morning in November, he walked to a different part of the base, undetected, and detonated the bomb near a gathering of American soldiers. The Taliban claimed credit.[1]
This has, of course, all the makings of a tort liability case. Among the wounded was Army Specialist Winston Hencely. With the military investigation concluding that “Fluor’s complacency and its lack of reasonable supervision” had been the “primary contributing factor” to the bombing, the case amounted to a breach of contract, and Hencely sued Fluor Corporation in his home district of South Carolina for negligence in supervision, entrustment, and retention.[2] But the district court ruled that federal law preempts tort claims under state law, which had no bearing on a government military contract; the Court of Appeals for the Fourth Circuit affirmed. Last June, the Supreme Court granted certiorari, and in November it heard oral arguments in Hencely v. Fluor Corporation.
As it stands, Hencely presents an opportunity for the Court to reconsider tort law immunity for military contractors. Fluor’s argument is straightforward: the Court’s precedent in Boyle v. United Technologies Corporation (1988), granting select federal contractors immunity from liability under specific circumstances, extends to preempt state tort claims. The corporation would have the Court believe Hencely is only a matter of ruling in line with precedent. But things are not so simple. Looking to the meaningful differences between Hencely and Boyle—and staying true to that guiding principle in Feres v. United States (1950), the early landmark ruling on torts in the federal context—I offer that sovereign immunity against tort law should not extend to government contractors who breach their contracts, whether by negligence or otherwise. Indeed, the Court’s ruling in Boyle was already ambitious enough, crossing nearly the line between interpretation and legislation. Hencely gives the Court an opportunity to clarify its jurisprudence and provide greater accountability at the federal level, even in military contexts. This is an opportunity, I argue, the Court should take.
For the relevant foundations, I start by examining the Court’s expansive judicial interpretation in the first principles of sovereign immunity in Feres and, later, in Boyle. In the next section I delineate the differences between Hencely and Boyle, and argue why Hencely should be treated on its own terms, limiting Boyle’s framework. Finally, I place Hencely within the broader trajectory of liability and immunity in war, and how this modern case might become a turning point, in returning to the Court’s original spirit of Feres.
I. Sovereign Immunity and the Feres Doctrine
Unsurprisingly, our understanding of sovereign immunity descends from English common law. The direct historical analogue is that “the King can do no wrong.” In the context of tort law, the principle of immunity would shield a federal party from being subject to lawsuits in the nation’s own courts.[3] At best, the idea may seem to us outdated; it prods and needles at our democratic sensibilities to say the president, or some entity in the American federal apparatus, should be above the law. But it also seems wildly impractical, to expose the government in its necessary functions to common tort claims.
In framing the case for sovereign immunity, it will be useful here to bisect the law into its directive and coercive force, à la the classical tradition.[4] That “the King can do no wrong” is only halfway true—he cannot do wrong such that he would be subject to the regular penal system (i.e., the coercive force of law), so he is “above the law” in this narrow sense. Sovereign immunity is precisely this mechanism, to exempt the government from being brought to court over every small case of liability, and allow it to pursue its unique functions uninterrupted. But even the King is still bound by the law’s directive force and its substantive obligations. Then, in this very important sense, he certainly can do wrong, and it is a false cliché that a rule is only meaningful insofar as it is enforced. This construction relies on trust in our leadership, but in this it is not any different from government in toto, and anyway it cannot be an argument against the system. Sovereign immunity must be legitimate.
So too in the modern American system, the government is only subject to the coercive force of law when it chooses to be—that is, voluntarily waives immunity in select contexts. And it did just that in 1946, when Congress passed the momentous Federal Tort Claims Act (FTCA).[5] The statute partially waived immunity by allowing a private party to sue the U.S. government for torts committed by another party acting on the nation’s behalf. A few exemptions retaining immunity were built into the statute. Most relevantly, a tort has no force against the other party when the suit:
[is] based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.[6]
In passing the FTCA, the government, if only in narrowly defined settings, had stricken its total presumptive immunity against tort claims.
The FTCA was naturally given form in the following years. In Feres v. United States, the Court considered the statute at length. Among the issues debated was whether the FTCA had intended to transfer from Congress to the judiciary the power to decide the nature of tort claims, especially the bounds of sovereign immunity. The Court did not say explicitly that a legislative power had been transferred, but it did frame the spirit and intention behind the FTCA:
This Act . . . should be construed to fit, so far as will comport with its words, into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole. The Tort Claims Act was not an isolated and spontaneous flash of congressional generosity. It marks the culmination of a long effort to mitigate unjust consequences of sovereign immunity from suit (emphasis added).[7]
The resulting Feres doctrine, evidently, found a careful balance between holding bad actors accountable, and duly protecting the sovereign government. The Court held to the immunity principle while pruning its worst excesses.
As for determining where exactly the government retained its immunity, the Court in Feres was very clear that common tort law had no place in the nation’s military. To use language from the exemption earlier copied, the military is surely a “discretionary function or duty” within the meaning of the statute, given the “distinctively federal” character of “the relationship between the Government and members of its armed forces.”[8] On this basis, the Court ruled in Feres that the FTCA does not permit “compensation for injuries or death of those in the armed services.”[9]
But just how far might that immunity be extended? The statutory fulcrum is that phrase “discretionary function or duty,” which seems even prima facie to cast a wide net of protection over the government’s military actions. A great deal would seem to turn on any given court’s interpretation—what would define a military “discretionary function,” beyond the most obvious case of a serviceman injured in the line of duty? The last few decades have seen several different interpretations float to the surface. The Court chose Boyle v. United Technologies Corporation to offer a doctrinal sketch.
II. The Boyle Wrinkle
In 1988, Sikorsky Aircraft, a manufacturer contracted with the government to design helicopters, was brought to court under state tort law for the death of U.S. Marine pilot David Boyle. In a helicopter crash during a routine training exercise, Boyle survived the impact, but a defective emergency escape hatch stopped him from escaping in time. His family sued the Sikorsky corporation under tort law, and the jury awarded.[10]
In a 5–4 decision, the Court held that state tort law could not find an independent military contractor liable. This is not so evident from the FTCA’s plain text. In fact, as above, the statute only provides immunity for “a federal agency or an employee of the Government.”[11] Yet, writing for the majority, Justice Scalia extended that language to contractors charged with designing military equipment—they were “like” federal employees performing their duties. These were not ordinary duties, either, but in an “area of uniquely federal interest”—the military sphere.[12] And if contractor Sikorsky was indeed, as far as the FTCA was concerned, a federal employee, then just as surely its role fit the letter of the statutory exemption; in Scalia’s words, the “selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function within the meaning of this provision.”[13] Otherwise, he also noted, the federal government would de facto bear the cost of tort suits, as contractors would significantly raise their prices to protect against contingent liability.[14] Because Sikorsky assumed the government’s discretionary military function by proxy, any state law imposing liability would significantly conflict with a uniquely federal interest, and would be necessarily preempted.
The Court did give some framework in Boyle to explain this departure from plain statutory text. The displacement of state tort law was apposite when a) the United States had already approved the design specifications; b) the manufacturer’s equipment had met those specifications; and c) the contractor had warned the government of known risks.[15] The test was partly adapted from the lower courts. And indeed, Sikorsky’s helicopter design had been approved, and the company had given fair warning of potential dangers to the military. It checked all the boxes, so it was shielded under the federal aegis of tort immunity.
Yet, all things considered, the decision in Boyle just barely carried a 5–4 majority. There were concerns, unsurprisingly, over the expansive reading of the FTCA. In his dissent, Justice Brennan voiced strong criticism over the military contractor immunity doctrine being constructed from plain statutory text.[16] Justice Stevens, too, was skeptical of extending the uniquely federal interest in military contexts to protect private contractors. If Congress thought it was sound policy to expand the FTCA so the plain text would reflect the Court’s reading, surely it could pass the necessary legislation. Charges of judicial policymaking were already in the air, even before Boyle was released.[17]
By the 1990s, the Boyle precedent had established that the FTCA extended to preempt tort claims against government contractors in the military sphere. But it seemed this expansive, contentious reading would be kept on a tight leash.
III. The Hencely Question and Drawing the Line
Legal advocates for Fluor Corporation would argue the Court needs to stretch the FTCA’s plain text even farther, under the guise of Boyle. Yet there are important differences in the Hencely case that, even comfortably within the Court’s standards, render the Boyle decision here extraneous, and return it to its proper, more modest bounds.
Most significantly, whereas Sikorsky’s helicopter design had met its contractual obligations, Fluor was found in breach of contract. It had broken rules on the military base, and it was under its negligent supervision that Ahmad Nayeb had built and detonated a bomb vest.[18] Suddenly the Court’s reasoning in Boyle, which worked in that case, now falls apart in false application. Sikorsky could have a legitimate “discretionary function” under the FTCA because it was serving a uniquely federal interest. Yet, surely, when a contractor breaks its contract, it cannot possibly be a federal interest to continue to extend tort immunity. In this sense, to reapply Justice Scalia’s analogy in Boyle, a private contractor is not exactly like a federal employee, since its very relationship with the government is contingent on the particular terms of its ad hoc contract. Fluor broke those terms, and stood precisely contrary to any uniquely federal interest.
It is also worth addressing Justice Scalia’s observation in Boyle that, absent a clear extension of tort immunity for private corporations, they would refuse to do business with the US government, or raise their prices significantly.[19] Yet this is not so much a concern. Precisely the difference between Boyle and Hencely should tell contractors, acting in a proxy role in the military, that their presumptive immunity from tort claims notwithstanding the FTCA is still very much on the table if the Court rules this way—so long as they stay within the terms of their contract. A corporation which promises to maintain a foreign military base, say, was not put in charge to be negligent. And for every contractor dissuaded by such a ruling in Hencely, there would surely be ten other adjacent, more faithful parties, committed to seeing their contracts properly carried out. Losing business with bad-faith actors is surely not a great tragedy—and surely the government would not sooner pander to them, than let the Court make its ruling unhindered.
The Court has not often supported an expansive reading of plain text, especially those “implied” statutory exemptions which bleed into judicial policymaking. At the time it was decided, even Boyle was an outlier, and it would be very difficult to extend that precedent even further. Fluor could not meet its burden.
IV. Hencely in the Sphere of Judicial Abdication
Hencely offers the Court a golden opportunity on these grounds to clarify the limits of Boyle, and its broader tort immunity jurisprudence. While granting a wider berth for the military as an area of uniquely federal interest is constitutionally sensible, not to mention prudent, the judiciary should not close its eyes to lapses in accountability when they present themselves.
As we have seen, the core rationale behind the Boyle precedent came from a long tradition of political and judicial deference to the military. There is an old theory from the lineage of realism that just norms ought to be suspended in a warzone—that the so-called fog of war is thick and impossible to see through, and thus comfortably in a sphere apart from penal or judicial scrutiny. But the deification of national security above the law, in its means and ends, tends dangerously toward what the scholar Barry Kellman has called “a dangerous abdication of judicial responsibility.”[20] Caution, deference—these are reasonable presumptions for the judiciary when it comes to uniquely federal interests, and especially those of the military and combatant actions. Abdication is entirely a difference in degree, not in kind. It is to concede any claim of the government’s primacy and to deny that the nature of military action, uniquely federal or not, is oriented under the rule of law.
Proponents of judicial abdication where it might extend to the military, or abdication in all but name, argue it must be one or the other—rigorous judicial scrutiny, such that split-second decisions for national security must overcome a maze of bureaucratic red tape, or judicial abdication. Certainly one is safer in the long term than the other. This is in line with Fluor’s advocates. But the false dichotomy hides a great deal of space between those two poles, and somewhere here sits the proper role of the judiciary—a strongly presumptive judicial deference that draws the line well before abdication.
We need look no further than the Court’s original intention in Feres to see this principle applied. A near unanimous bench recognized that Congress had taken a great step to waive sovereign immunity in passing the FTCA. Far from an instance of “congressional generosity,” this was the capstone effort to “mitigate unjust consequences of [immunity] from suit.”[21] At the same time, in that very case, the Court defined very strictly what sovereign immunity had not been waived and refused to allow wounded servicemen to claim damages under the FTCA from the federal government. Accountability, but hardly all the way.
By ruling for Winston Hencely, and in line with the prototypical spirit of the Feres doctrine, the Court can clarify that it was never its intention in Boyle to hint at judicial abdication. It can demonstrate that the preemption of state tort law therein was only permitted within reason, and by the determination of particular facts in a particular case.
V. Conclusion
The 2016 bombing in Bagram was a tragedy. It should never have happened, and in acting negligently, the private contractor Fluor was to blame. It cannot today extend a tenuous line from the Court’s precedent in Boyle to ask that Army Specialist Hencely’s tort claim should be preempted by the uniquely federal interest supposedly implicated. With Fluor’s attempt, Hencely should suggest it is high time for the Court to establish the bounds of judicial deference to military interests, and forcefully retain a measure of scrutiny when reason demands.
[1] Hencely v. Fluor Corporation, No. 24-924 (4th Cir. 2024), petition for cert. filed, 2–3 (U.S. Feb. 24, 2025).
[2] Id., at 7–8.
[3] John Postl, Sovereign Immunity—Federal Tort Claims Act, 17 Suffolk Transnat’l L. Rev. 620 (Spring 1994).
[4] See THOMAS AQUINAS, AQUINAS: POLITICAL WRITINGS (R.W. Dyson ed., Cambridge Univ. Press 2002).
[5] The Feres Doctrine: The Recent Developments in the Eighth Circuit: Survey Article, 11 Wm. Mitchell L. Rev. 1131 (1985).
[6] Cite FTCA 28 U.S.C. § 2680(a).
[7] Feres v. United States, 340 U.S. 135, 139 (1950) (emphasis added).
[8] Id., at 143 (quoting United States v. Standard Oil Co., 332 U. S. 301, 305 (1947)).
[9] Id., at 144–145.
[10] Boyle v. United Technologies Corp., 487 U.S. 500, 502–503 (1988).
[11] Id; Military Personnel and the Federal Tort Claims Act, 58 YALE L. J. 615 (March 1949).
[12] Boyle, 487 U.S., at 506.
[13] Id., at 511.
[14] Id.
[15] Id., at 501.
[16] Id., at 516–518 (Brennan, J., dissenting).
[17] Id.
[18] App. 158.
[19] Boyle, 487 U. S., at 511.
[20] Barry Kellman, Judicial Abdication of Military Tort Accountability: But Who Is to Guard the Guards Themselves, 1989 DUKE L.J. 1597 (December 1989).
[21] Feres, 340 U.S., at 139.