The Product Liability and Mass Tort Monitor is a monthly newsletter delivering critical updates, data insights and actionable strategies for navigating the complexities of product liability and mass tort litigation. This month’s issue explores the implications of the U.S. Supreme Court’s decision last term in Hencely v. Fluor Corp., which builds on a growing body of law concerning preemption of state law claims for military service contractors.
Key Takeaways
- The U.S. Supreme Court held in Hencely v. Fluor Corp. that federal law did not preempt state law tort claims against a military service contractor.
- The high court ruling ends the “battlefield preemption” doctrine found by the U.S. Courts of Appeals for the Fourth and D.C. Circuits, which previously held that federal law preempts state law tort claims against military service contractors integrated into combat activities.
- This decision also demonstrates an increasingly skeptical recognition of federal preemption in the absence of express preemption in federal statutes or the U.S. Constitution.
For over a decade, military service contractors relied on the U.S. Court of Appeals for the Fourth Circuit’s “battlefield preemption” doctrine to defeat claims filed under various state laws by arguing that federal law preempted state law claims. Federal preemption, which is based on the Supremacy Clause of the U.S. Constitution, is the legal principle that federal law overrides conflicting state or local laws.
But in Hencely v. Fluor Corp., decided April 22, 2026, the U.S. Supreme Court held that state law tort claims are not preempted for military service contractors arising out of combatant activities. Writing for a 6-3 majority, Justice Clarence Thomas explained that neither the U.S. Constitution nor any federal statute expressly provides for federal preemption under the circumstances of this case.
Fluor Corp. and its subcontractors hired and supervised a local Afghan contractor at Bagram Airfield in Afghanistan who was, in fact, a Taliban operative. The operative later detonated a suicide vest, killing five people and seriously injuring others, including the plaintiff Winston Hencely. He later brought South Carolina negligence and negligent supervision claims against Fluor and its subsidiaries.
The U.S. District Court for the District of South Carolina entered summary judgment in favor of the contractor under the Fourth Circuit’s “battlefield preemption” doctrine. It held that federal law preempts state law tort claims against a private service contractor when the contractor is integrated into combatant activities over which the military retains command authority. But the Supreme Court disagreed, finding no basis for federal preemption for military service contractors.
The Hencely decision resolves a significant split regarding preemption as it relates to military service contractors. It reverses a growing body of case law in the Fourth and D.C. Circuits that preempted state law tort claims against military service contractors arising out of combatant activities. The battlefield preemption doctrine is now dead.
The Supreme Court also rejected an expansion of Boyle v. United Technologies Corp., the 1988 Supreme Court case that provides federal preemption for federal procurement contractors, to also apply to service contractors.
Moving forward, federal preemption is less likely to play a significant role in claims against military service contractors, who may wish to revisit their risk management strategies and seek alternatives, such as indemnification. At the same time, the traditional Boyle test for government procurement contractors (such as manufacturers of military equipment and aircraft) remains good law and was cited approvingly by the majority and Justice Samuel Alito’s dissent (joined by Chief Justice John Roberts and Justice Brett Kavanaugh).
But the Hencely decision demonstrates a Supreme Court increasingly skeptical of the expansion of federal preemption for government contractors beyond the long-established confines of Boyle. Procurement contractors should also examine ways to ensure that their activities comply with federal contract requirements and, in the event of litigation, satisfy the Boyle test.
For more information on these issues, contact the authors or their colleagues in McGuireWoods’ Product Liability & Mass Tort Practice Group.