The US Supreme Court has ruled that military and construction contractors are not protected from state damage claims when wrongdoing is alleged, even in war zones. The high court reversed a decision by the federal appeals court in Richmond, Va., in the case, Therefore, against Fluor Corp..
It was a claim brought by a US military service member, Winston Hencely, who was permanently disabled in a 2016 suicide attack by a Taliban operative who was working at the time as an employee of Fluor Corp., which provided military logistics support to the US military in Afghanistan. The attacker, Ahmad Nayeb, was hired by Fluor as part of “Afghan First,” a US military initiative that required contractors to hire local workers.
Fluor argued, and two lower courts agreed, that federal law preempted Hencely’s claim against the company and that holding it liable for her injuries was unconstitutional. Courts ruled that provisions of the Federal Tort Claims Act shielded military contractors from state tort claims when those companies 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’s compliance with military base 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 a contractor usually has a constitutional defense only when the company is sued on grounds related to what the federal government has ordered. 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 military instructions as a condition of operating at the base.
The high court concluded that “preemption rules with the [appeals court] relied upon 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 consistent with the 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,” they said.
“Fluor is aware of the U.S. Supreme Court’s ruling, and while we are disappointed, we respect the court’s decision,” the company said in an emailed statement. “As the litigation is still ongoing, we will not be commenting further.”
Enbridge’s Line 5 pipeline was challenged
In a separate high court decision, also released April 22, the justices unanimously ruled that energy developer Enbridge had not met deadlines required by federal law to move a long-running case challenging the company’s operation of a 645-mile pipeline in Michigan and sent the case back to state court. State Attorney General Dana Nessel in 2019 challenged the continued operation of its 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 US law. As a result, state Gov. Gretchen Whitmer (D) called for the pipeline to be shut down.
The high court concluded that Enbridge’s “takedown notice [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. The agency conducts annual inspections and reviews of the operation of Line 5 through the Straits of Mackinac, and no safety issues have been identified under the pipeline. guarantees its closure”.
In an amicus brief filed on Enbridge’s behalf, the construction unions of America and the United Steelworkers union wrote that the groups “have a vested interest in this case, which could determine the future employment and well-being of thousands of people. [the unions’] members
