The US Supreme Court has ruled that the military and construction contractors are not protected from state damage claims when misconduct is reported, even in war zones.
The case, Hencely v. Fluor Corp., involved a claim brought by a U.S. service member who was permanently disabled by a suicide bomber attack, a Taliban operative who was working at the time as an employee of Fluor Corp., which provided military logistics support to the U.S. military in Afghanistan. The attacker, Ahmad Nayeb, had been hired by Fluor as part of “Afghan First,” a US military initiative that required contractors to hire local workers.
Fluor argued, and the United States District Court for the Fourth Circuit in Richmond agreed, that federal law preempted Winston Hencely’s claim against the company and that efforts to hold the company liable for Hencely’s injuries were unconstitutional. Lower courts ruled that provisions of the Federal Tort Claims Act protected military contractors from state tort claims when contractors work under military command in war zones.
However, Hencely claimed that Fluor should be held responsible for the attack because the company was negligent in supervising the employee in complying with the military base’s procedures. The Army’s investigation concluded that Fluor did not have a clear idea of who Nayeb reported to or who the employee supervised.
The Supreme Court sided with Hencely in its April 22 ruling, written by Associate Justice Clarence Thomas, along with Sonya Sotomayor, Elena Kagan, Neil Gorsuch, Amy Coney Barrett and Ketanji Brown Jackson. Justice Samuel Alito wrote a dissenting opinion, joined by Chief Justice John Roberts and Brett Kavanaugh.
In the ruling, the court noted that contractors typically have a constitutional defense only when the contractor is sued on grounds related to what the federal government has requested. But the court agreed with claims made by Hencely and the US military that Fluor’s conduct in hiring and retaining the attacker was not authorized by the military base’s instructions as a condition of operating on the base.
The court concluded that “the preemption rule upon which the Fourth Circuit relied has no basis in the Constitution, federal statutes, or our precedents” and overturned the Richmond appeals court’s decision, remanding the case for further proceedings in accordance with the April 22 ruling.
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In the dissent, the justices noted that language to hire local Afghans as part of the federal “Afghan First” program was written into Fluor’s contract. “Because the Constitution grants the federal government exclusive authority over foreign affairs and the conduct of war, federal law preempts any state law that substantially interferes with the government’s exercise of those powers.”
In an email, Fluor said, “Fluor is aware of the U.S. Supreme Court’s ruling, and while we are disappointed, we respect the court’s decision. Because the litigation is still ongoing, we will not comment further.”
Enbridge’s Line 5 pipeline was challenged
In a separate case, also released April 22, court judges unanimously ruled that Enbridge had not met deadlines required by federal law to move a long-running case challenging the company’s operations of a 645-mile oil pipeline in Michigan and remanded the case to state court. Michigan Attorney General Dana Nessel in 2019 challenged the continued operations of the Line 5 pipeline, saying potential oil spills would violate state environmental laws.
Enbridge contended that the case should be heard in federal, not state, court, but did not file a petition in federal court within the 30-day deadline required by federal law. As a result, Michigan Governor Gretchen Whitmer (D) called for the pipeline to be shut down.
The high court concluded that “Enbridge’s notice of removal [to federal jurisdiction] was untimely and that this action should be remanded to Michigan state court.”
In an emailed statement, an Enbridge spokesman said: “Procedural decision aside, the fact is that the safety of Line 5 is regulated exclusively by the Pipeline and Hazardous Materials Safety Administration (PHMSA), an agency of the United States Department of Transportation. PHMSA conducts annual inspections and reviews of Line 5’s cross-strait operations and has not found Mackina to be in safety compliance and that the safety is not has been found consistently in the compliance of the pipeline. problems that would justify its closure.”
In an amicus brief filed on behalf of Enbridge, the construction unions of America and the United Steelworkers union wrote: “NABTU and the USW have a vested interest in this case, which could determine the future employment and welfare of thousands of people. [the unions’] members
