Supreme Court Narrows “Battlefield Preemption” for Government Contractors

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Apr 28 2026

On April 22, 2026, the Supreme Court issued its decision in Hencely v. Fluor Corp., No. 24-924, 2026 WL 1083331 (U.S. Apr. 22, 2026), addressing the scope of federal preemption for state law tort claims brought against military contractors operating in active war zones. The Court held that state law tort claims against military contractors are not preempted where the contractor’s allegedly negligent conduct was neither ordered nor authorized by the federal government—even when the conduct occurred in a war zone during combat operations.

In a period of heightened U.S. military activity, Hencely signals that contractors operating alongside U.S. forces face real litigation risk unless they can demonstrate that their challenged conduct precisely followed government instructions.

Hencely is one of three recent Supreme Court decisions addressing the rules applicable when plaintiffs pursue claims against federal contractors—an increasingly common trend as the government continues to outsource sensitive operations to private companies that cannot invoke the same immunities as federal agencies and officials. Companies pursuing those contracts should anticipate the potential for third party litigation and, where possible, negotiate contractual protections at the outset to mitigate the risk of extensive litigation costs and liability.

How Did We Get Here?

The case arises from a 2016 suicide bombing at Bagram Airfield in Afghanistan. Fluor Corporation held a Department of Defense contract to provide base life-support services at Bagram, including vehicle maintenance and hazardous materials management. A Fluor subcontractor hired the bomber—a former Taliban member—to work at the base and allegedly failed to enforce compliance with base procedures, allowing the attack to occur. Army Specialist Hencely, who was severely injured while attempting to stop the attacker, sued Fluor in the U.S. District Court for the District of South Carolina, alleging negligent supervision, negligent entrustment, and negligent retention under South Carolina law, as well as breach of the government contract.

The district court granted summary judgment to Fluor, holding that the state law tort claims were preempted by federal law. The Fourth Circuit affirmed, relying on its version of the “battlefield preemption” doctrine, an extension of Boyle v. United Technology Corporation, in which the Supreme Court shielded government contractors from tort liability arising from military supplies designed to meet federal contract specifications. 487 U.S. 500, 512 (1988). On the Fourth Circuit’s view, state-law tort suits cannot proceed even when the contractor is alleged to have violated its instructions from the military.

The Supreme Court granted certiorari to decide the limits of this doctrine. At the Court, the case turned on to key issues: (1) whether it matters if a contractor’s alleged negligence stems from conduct that was not ordered, authorized, or required by the federal government; and (2) whether allowing state courts and juries to second-guess security decisions made on an active military base during wartime would impermissibly interfere with federal war-making powers.

Supreme Court’s Decision

The Court held that state law tort claims against a military contractor are not preempted where the contractor’s allegedly negligent conduct was neither ordered nor authorized by the federal government. The Court’s reasoning rested on three key points:

Federal Tort Claims Act (FTCA) Does Not Extend to Private Contractors. The FTCA grants limited waiver of sovereign immunity for suits in tort against the U.S. government. However, it includes a combatant-activities exception, which preserves the federal government’s immunity against claims arising out of the combatant activities of the military during wartime. The Court reiterated that this exception does not extend to private contractors because, by its text and structure, the FTCA governs only the waiver of sovereign immunity. According to the Court, reading the combatant‑activities exception to preempt claims against private contractors would improperly transform a statute limiting government liability into a source of contractor immunity, something Congress could have, but did not, expressly provide.
Narrow Reading of Boyle. Boyle does not authorize sweeping immunity for contractors operating in wartime environments. It displaces state law only where there is a “significant conflict” between state tort duties and federal contract requirements. Specifically, the Boyle standard generally only protects a contractor where (i) the United States approved precise specifications; (ii) the contractor provided equipment that conformed to those standards; and (3) the contractor warned the government about the dangers the specifications entailed.
Rejection of Categorical “Battlefield Preemption.” The Court rejected the Fourth Circuit’s rule that state‑law tort claims are preempted under Boyle whenever they arise from combatant activities and the contractor is integrated into military operations.

Justices Alito, Kavanaugh, and Chief Justice Roberts dissented. In their view, federal law preempts any state law that substantially interferes with the exercise of the federal government’s excusive authority over war and foreign affairs. For example, the dissent warned that adjudication could require discovery of classified or sensitive government materials and depositions and cross‑examinations of military commanders regarding policy judgments involving delicate and contested wartime interests.

Related Supreme Court Opinions

The Hencely decision arrives with two related Supreme Court decisions that address the rules that apply when plaintiffs pursue contractors for work relating to their performance of federal contracts.

In Geo Group, Inc. v. Menocal, 146 S. Ct. 774 (2026), the Court confirmed that federal contractors’ so-called “derivative sovereign immunity” is not a true immunity from suit that can be pursued through interlocutory appeal, but rather a merits defense that must await the trial court’s final judgment before appeal. Consistent with Hencely, the GEO Group decision reaffirms that contractors do not enjoy the same immunity that protects federal agencies and officials.
In Chevron USA Inc. v. Plaquemines Parish, No. 24-813, 2026 WL 1040461 (U.S. Apr. 17, 2026), the Court held that when a plaintiff files claims in state court that relate to a company’s performance of wartime contracts federal government direction, the defendant is entitled to remove the case to federal court. While this does not directly protect contractors from litigation and liability under state law, it does at least ensure those claims can be removed to federal court.

Takeaways

Federal contracts do not provide immunity from third party claims. The Hencely and GEO Group opinions confirm that companies performing federal contracts do not enjoy blanket protections against third party claims—even when the contract requires performance in a warzone. Contractors will face an increased risk of state‑law claims when injuries are allegedly caused by failures to comply with contractual requirements or military directives.
More Cases Will Survive to Discovery. A significant practical consequence of Hencely is that Boyle preemption will increasingly be treated as a fact-intensive inquiry rather than a threshold legal question. Whether a contractor’s conduct was government-directed—and whether a conflict between state tort duties and federal policy actually exists—will often depend on the specific terms of the contract, the operative military directives, and how the contractor performed in the field. That fact-sensitivity makes early dismissal harder to obtain. Contractors should expect more cases to survive motions to dismiss and proceed into discovery, where the costs and burdens of litigation can be substantial. That consequence is compounded by the Court’s opinion in GEO Group, which largely precludes contractors from pursuing interlocutory appeal when a district court rejects a federal contractor’s attempt to raise their contract as a shield against litigation.
Fewer Cases Will Proceed In State Court. Following Chevron, defendants suing in state court based on actions relating to performance of a federal contract are more likely to be removed to federal court. This, in theory, should help ensure that relevant federal interests are adequately considered in relation to any competing state and local interests. But defendants must act quickly to take advantage of this right to remove, as the Supreme Court also confirmed this term in Enbridge Energy, LP v. Nessel, No. 24-783, 2026 WL 1083312 (U.S. Apr. 22, 2026), that the 30-day deadline to seek removal is a jurisdictional rule that cannot be equitably tolled.
Renewed Importance of Contract Negotiation and Documentation. Where a contractor can show that it did exactly what the government required, Boyle, derivative sovereign immunity, and other theories remain as viable defenses. But Hencely and GEO Group reaffirm that those theories are contract and fact intensive. Companies anticipating litigation risk in connection with high-risk federal contracts should attempt to negotiate contractual protections and specifications to increase the likelihood that third party claims may be defeated at the outset. And, as always, contractors should also maintain thorough, contemporaneous records documenting how government directives were received and implemented throughout performance.

Authors

New York

Apr 28 2026

How Did We Get Here?

Supreme Court’s Decision

Federal Tort Claims Act (FTCA) Does Not Extend to Private Contractors. The FTCA grants limited waiver of sovereign immunity for suits in tort against the U.S. government. However, it includes a combatant-activities exception, which preserves the federal government’s immunity against claims arising out of the combatant activities of the military during wartime. The Court reiterated that this exception does not extend to private contractors because, by its text and structure, the FTCA governs only the waiver of sovereign immunity. According to the Court, reading the combatant‑activities exception to preempt claims against private contractors would improperly transform a statute limiting government liability into a source of contractor immunity, something Congress could have, but did not, expressly provide.
Narrow Reading of Boyle. Boyle does not authorize sweeping immunity for contractors operating in wartime environments. It displaces state law only where there is a “significant conflict” between state tort duties and federal contract requirements. Specifically, the Boyle standard generally only protects a contractor where (i) the United States approved precise specifications; (ii) the contractor provided equipment that conformed to those standards; and (3) the contractor warned the government about the dangers the specifications entailed.
Rejection of Categorical “Battlefield Preemption.” The Court rejected the Fourth Circuit’s rule that state‑law tort claims are preempted under Boyle whenever they arise from combatant activities and the contractor is integrated into military operations.

Related Supreme Court Opinions

In Geo Group, Inc. v. Menocal, 146 S. Ct. 774 (2026), the Court confirmed that federal contractors’ so-called “derivative sovereign immunity” is not a true immunity from suit that can be pursued through interlocutory appeal, but rather a merits defense that must await the trial court’s final judgment before appeal. Consistent with Hencely, the GEO Group decision reaffirms that contractors do not enjoy the same immunity that protects federal agencies and officials.
In Chevron USA Inc. v. Plaquemines Parish, No. 24-813, 2026 WL 1040461 (U.S. Apr. 17, 2026), the Court held that when a plaintiff files claims in state court that relate to a company’s performance of wartime contracts federal government direction, the defendant is entitled to remove the case to federal court. While this does not directly protect contractors from litigation and liability under state law, it does at least ensure those claims can be removed to federal court.

Takeaways

Federal contracts do not provide immunity from third party claims. The Hencely and GEO Group opinions confirm that companies performing federal contracts do not enjoy blanket protections against third party claims—even when the contract requires performance in a warzone. Contractors will face an increased risk of state‑law claims when injuries are allegedly caused by failures to comply with contractual requirements or military directives.
More Cases Will Survive to Discovery. A significant practical consequence of Hencely is that Boyle preemption will increasingly be treated as a fact-intensive inquiry rather than a threshold legal question. Whether a contractor’s conduct was government-directed—and whether a conflict between state tort duties and federal policy actually exists—will often depend on the specific terms of the contract, the operative military directives, and how the contractor performed in the field. That fact-sensitivity makes early dismissal harder to obtain. Contractors should expect more cases to survive motions to dismiss and proceed into discovery, where the costs and burdens of litigation can be substantial. That consequence is compounded by the Court’s opinion in GEO Group, which largely precludes contractors from pursuing interlocutory appeal when a district court rejects a federal contractor’s attempt to raise their contract as a shield against litigation.
Fewer Cases Will Proceed In State Court. Following Chevron, defendants suing in state court based on actions relating to performance of a federal contract are more likely to be removed to federal court. This, in theory, should help ensure that relevant federal interests are adequately considered in relation to any competing state and local interests. But defendants must act quickly to take advantage of this right to remove, as the Supreme Court also confirmed this term in Enbridge Energy, LP v. Nessel, No. 24-783, 2026 WL 1083312 (U.S. Apr. 22, 2026), that the 30-day deadline to seek removal is a jurisdictional rule that cannot be equitably tolled.
Renewed Importance of Contract Negotiation and Documentation. Where a contractor can show that it did exactly what the government required, Boyle, derivative sovereign immunity, and other theories remain as viable defenses. But Hencely and GEO Group reaffirm that those theories are contract and fact intensive. Companies anticipating litigation risk in connection with high-risk federal contracts should attempt to negotiate contractual protections and specifications to increase the likelihood that third party claims may be defeated at the outset. And, as always, contractors should also maintain thorough, contemporaneous records documenting how government directives were received and implemented throughout performance.