Hencely v. Fluor Corp.

1 (Slip Opinion) OCTOBER TERM, 2025
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HENCELY v. FLUOR CORP. ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 24–924. Argued November 3, 2025—Decided April 22, 2026
Military contractor Fluor Corporation hired Ahmad Nayeb to work at a
U. S. base in Afghanistan as part of the “Afghan First” initiative, a
military program that required contractors to hire Afghans to help
stimulate the local economy and stabilize the Afghan Government.
Nayeb, a Taliban operative, later carried out a suicide-bomb attack at
the base that killed 5 and wounded 17. The Army’s investigation found
Fluor primarily responsible for the attack because it negligently su-
pervised Nayeb in complying with base procedures. Former Army spe-
cialist Winston T. Hencely, who suffered a fractured skull and brain
injuries in the course of stopping Nayeb before he could reach a larger
crowd, sued Fluor in the United States District Court for the District
of South Carolina seeking damages under South Carolina law for neg-
ligent supervision, negligent entrustment of tools, and negligent reten-
tion of Nayeb. The District Court entered summary judgment for
Fluor, and the Fourth Circuit affirmed. It held that during wartime,
state-law claims against military contractors under military command
arising out of combatant activities are preempted. The Fourth Circuit
reasoned that the Federal Tort Claims Act’s combatant-activities ex-
ception, which preserves the Federal Government’s immunity against
claims “arising out of the combatant activities of the military” during
wartime, 28 U. S. C. §2680(j), also reflects a congressional intent to bar
tort suits against contractors connected with those combatant activi-
ties, even when the contractor is alleged to have violated its instruc-
tions from the military.
Held: The Fourth Circuit erred in finding Hencely’s state-law tort claims
preempted where the Federal Government neither ordered nor author-
ized Fluor’s challenged conduct. Pp. 5–15.

-- 1 of 38 --

2 HENCELY v. FLUOR CORP.
Syllabus
(a) Neither the Constitution nor any federal statute expressly
preempts Hencely’s suit. The Supremacy Clause requires state law to
yield only when it conflicts with rights or restrictions that stem from
the Constitution or a valid federal statute or treaty. Kansas v. Garcia,
589 U. S. 191, 202. Here, no constitutional provision or federal statute
expressly preempts Hencely’s suit. And the Court has already held
that the FTCA’s combatant-activities exception does not itself apply to
suits against federal contractors. See United States v. Orleans, 425
U. S. 807, 813–814. P. 5.
(b) Lacking any constitutional or statutory text supporting preemp-
tion, the Fourth Circuit relied on Boyle v. United Technologies Corp.,
487 U. S. 500. Boyle does not support the Fourth Circuit’s preemption
rule. Boyle involved a procurement contract, not a performance con-
tract like the one here, and it did not involve the FTCA’s combatant-
activities exception. More importantly, Boyle recognized displacement
of state law only when there is a “significant conflict” between state
law and “an identifiable federal policy or interest.” Id., at 507 (internal
quotation marks omitted). Boyle accordingly protects a contractor only
when the Government directed the contractor to do the very thing chal-
lenged in the suit. Correctional Services Corp. v. Malesko, 534 U. S.
61, 74, n. 6. Hencely, by contrast, sued Fluor for conduct that was not
authorized by the military and was allegedly contrary to federal in-
structions. Boyle’s reasoning thus contradicts the Fourth Circuit’s
analysis. Even assuming a “uniquely federal interest” in regulating
military bases overseas, no “significant conflict” exists between that
interest and state-law negligence liability based on a contractor’s de-
parture from military instructions. Boyle, 487 U. S., at 507. Pp. 5–11.
(c) The Fourth Circuit’s preemption test sweeps too broadly. The
FTCA’s combatant-activities exception protects the Government’s own
combat-related decisions. Any comparable federal interest would
therefore preempt state law only where the challenged conduct can
fairly be treated as the military’s own conduct or decision. But the
Fourth Circuit expressly concluded that resolving Hencely’s claims
would not require evaluating the reasonableness of military judg-
ments, and it nonetheless found preemption simply because the suit
arose in a wartime combat setting. Boyle’s rationale justifies no such
blanket preemption. Pp. 11-12.
(d) Nor does the Constitution’s structure implicitly bar this suit. Alt-
hough the Constitution gives Congress and the President broad war
powers, that assignment has never been understood to bar all war-re-
lated tort suits. And federal contractors do not automatically share
the Government’s immunity merely because they perform services for
it. Absent a statute to the contrary, States can regulate or tax federal
contractors on the same terms as any private company. See, e.g.,

-- 2 of 38 --

3 Cite as: 608 U. S. ___ (2026)
Syllabus
James Stewart & Co. v. Sadrakula, 309 U. S. 94, 104. Fluor does not
attempt to, and could not, invoke a defense under Yearsley v. W. A.
Ross Constr. Co., 309 U. S. 18. The Yearsley doctrine shields a contrac-
tor only when it is being sued precisely for accomplishing what the
Federal Government requested. Because Fluor is alleged to have acted
outside the authority the military granted it, Yearsley does not apply.
Pp. 12–16.
120 F. 4th 412, vacated and remanded.
THOMAS, J., delivered the opinion of the Court, in which SOTOMAYOR ,
K AGAN, G ORSUCH , BARRETT, and JACKSON, JJ., joined. ALITO , J., filed a
dissenting opinion, in which ROBERTS, C. J., and KAVANAUGH , J., joined.

-- 3 of 38 --

_________________
_________________
1 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
No. 24–924
WINSTON TYLER HENCELY, PETITIONER v. FLUOR
CORPORATION, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[April 22, 2026]
J USTICE THOMAS delivered the opinion of the Court.
In 2016, a Taliban operative working for respondent
Fluor Corporation, a military contractor, carried out a sui-
cide-bomb attack at Bagram Airfield in Afghanistan. After
then-Army Specialist Winston T. Hencely confronted him,
the bomber detonated his suicide vest. As a result of the
injuries he received, Hencely is now permanently disabled.
In an effort to recover damages for his injuries, Hencely
sued Fluor, bringing state-law tort claims for negligently
retaining and supervising the attacker. According to
Hencely and the United States military, Fluor’s conduct
was not authorized by the military and even violated in-
structions the military had given it as a condition of oper-
ating on the base.
Fluor argues that federal law preempts Hencely’s suit.
But, no statute or constitutional provision expressly does
so. And, our precedent suggests that state law is generally
not preempted when the “contractor could comply with both
its contractual obligations” to the military and state law—
unlike when the state-imposed duty “is precisely contrary
to the duty imposed by the Government contract.” Boyle v.

-- 4 of 38 --

2 HENCELY v. FLUOR CORP.
Opinion of the Court
United Technologies Corp., 487 U. S. 500, 509 (1988). How-
ever, the United States Court of Appeals for the Fourth Cir-
cuit held that federal law preempts Hencely’s suit based on
a different rule: During wartime, all state-law claims
against military contractors under military command aris-
ing out of combatant activities are preempted regardless of
whether any conflict exists between the military’s instruc-
tions and state law. 120 F. 4th 412, 426 (2024). We disa-
gree. The preemption rule on which the Fourth Circuit re-
lied lacks any foundation in the Constitution, federal
statutes, or our precedents.
I
A
Hencely, a former Army specialist, was seriously injured
in a Taliban suicide attack on Veteran’s Day 2016 at
Bagram Airfield, then the largest U. S. base in Afghani-
stan. Hencely saw the perpetrator, Taliban operative Ah-
mad Nayeb, as Nayeb was walking toward a Veteran’s Day
5K race. When Hencely attempted to question him, Nayeb
detonated his suicide vest. The explosion killed 5 and
wounded 17. Hencely, then just 20 years old, suffered a
fractured skull and brain injuries. The Army concluded
that Hencely’s intervention “likely prevent[ed] a far greater
tragedy.” App. to Pet. for Cert. 156.
Nayeb worked as a “Local National” contractor at
Bagram as part of the military’s “Afghan First” program.
120 F. 4th, at 418. That program sought to stimulate the
local economy and stabilize the Afghan Government by re-
quiring contractors to hire Afghans “ ‘to the maximum ex-
tent possible.’ ” Ibid. The military interviewed and
screened potential employees. During this process, it
learned that Nayeb had been involved with the Taliban in
the past. Nonetheless, it approved him for employment.
After this approval, Fluor’s subcontractor hired Nayeb to
work in the base’s nontactical vehicle yard. The Army’s

-- 5 of 38 --

3 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
contract with Fluor made it “ ‘responsible for oversight of
[its] personnel or Subcontractors to ensure compliance with
all terms of the’ ” contract. Id., at 419. Fluor was also re-
quired to comply with base-security policies. Under the
“Bagram Airfield Badge, Screening, and Access Policy,” all
nonuniformed personnel, including Nayeb, were assigned a
color-coded badge. Ibid. The policy required that Fluor es-
cort red-badge holders like Nayeb in all areas of the base
except at their work sites and maintain “ ‘constant view’ of
them.” Id., at 419–420.
The Army’s investigation found Fluor primarily respon-
sible for the attack. Interviews of Fluor personnel “re-
veal[ed] a poor understanding by Fluor supervisors as to
who was responsible for Nayeb’s supervision” and “an un-
reasonable complacency by Fluor to ensure Local National
employees were properly supervised at all times, as re-
quired by their contract.” App. to Pet. for Cert. 171. The
Army also concluded that Fluor failed to impose adequate
disciplinary measures on Nayeb, who slept on the job and
was absent from his work area without justification, even
though these were grounds for firing him. Fluor’s lax su-
pervision, the Army’s report continued, allowed Nayeb to
check out tools that he did not need for his job and that he
used to make the bomb inside Bagram. And, Fluor “was . . .
deficient in [its] performance of executing and supervising
escort duties” when employees like Nayeb left their work
stations to leave the base. Id., at 174. Instead of escorting
Nayeb to the base exit at the end of his shift, Fluor relied
on a sign-out system administered by another Afghan em-
ployee, in violation of the base’s badge policies. The report
found that this lax supervision “enabled Nayeb to go unde-
tected” for nearly an hour on the day of the attack and to
walk at liberty throughout the base until Hencely con-
fronted him. Id., at 176. In sum, the report concluded that
“the primary contributing factor” to the attack was “Fluor’s

-- 6 of 38 --

4 HENCELY v. FLUOR CORP.
Opinion of the Court
complacency and its lack of reasonable supervision of its
personnel.” Id., at 158.
B
Hencely sued Fluor and its subsidiaries in the United
States District Court for the District of South Carolina,
where two Fluor subsidiaries are located. Hencely brought
claims under South Carolina law for negligent supervision,
negligent entrustment of tools, and negligent retention of
an employee. Following Circuit precedent, the District
Court entered summary judgment for Fluor. 554 F. Supp.
3d 770, 774 (2021). Under that precedent, suits against mil-
itary contractors arising out of combatant activities are
generally preempted. See In re KBR, Inc., Burn Pit Litiga-
tion, 744 F. 3d 326, 349, 351 (CA4 2014).
The Fourth Circuit affirmed under this “battlefield
preemption” doctrine. 120 F. 4th, at 418, 430. According to
the Fourth Circuit, “ ‘[d]uring wartime, where a private ser-
vice contractor is integrated into combatant activities over
which the military retains command authority, a tort claim
arising out of the contractor’s engagement in such activities
shall be preempted.’ ” In re KBR, 744 F. 3d, at 349 (quoting
Saleh v. Titan Corp., 580 F. 3d 1, 9 (CADC 2009)). The
court reasoned that the Federal Tort Claims Act’s combat-
ant-activities exception, which preserves the Federal Gov-
ernment’s immunity against claims “arising out of the com-
batant activities of the military” during wartime, 28
U. S. C. §2680(j), also reflects a congressional intent to bar
all tort suits against contractors connected with those com-
batant activities. On the Fourth Circuit’s view, state-law
tort suits cannot proceed even when the contractor is al-
leged to have violated its instructions from the military.
We granted Hencely’s petition for a writ of certiorari to
decide whether a state-law suit premised on a military con-
tractor’s activities in a war zone is preempted even when

-- 7 of 38 --

5 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
the contractor was not required or authorized to take the
action at issue. 605 U. S. 968 (2025).
II
Neither the Constitution nor any federal statute supports
the Fourth Circuit’s broad rule. Nor does the Court’s opin-
ion in Boyle support preemption in this case.
A
The Supremacy Clause provides that the Constitution,
federal statutes, and treaties are “the supreme Law of the
Land; . . . any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.” Art. VI, cl. 2.
“[W]hen a regulated party cannot comply with both federal
and state directives, the Supremacy Clause tells us the
state law must yield.” Martin v. United States, 605 U. S.
395, 409 (2025). But, “[t]here is no federal pre-emption in
vacuo, without a constitutional text or a federal statute to
assert it.” Puerto Rico Dept. of Consumer Affairs v. ISLA
Petroleum Corp., 485 U. S. 495, 503 (1988). Instead, “the
federal restrictions or rights that are said to conflict with
state law must stem from either the Constitution itself or a
valid statute enacted by Congress.” Kansas v. Garcia, 589
U. S. 191, 202 (2020).
Fluor has not identified any provision of law expressly
preempting Hencely’s suit. No constitutional provision
says it is preempted, and neither the Fourth Circuit nor
Fluor suggests otherwise. Nor does any federal statute
preempt this suit. Fluor cites only the FTCA’s combatant-
activities exception, §2680(j), which, this Court has ex-
plained, does not apply to suits against federal contractors,
see United States v. Orleans, 425 U. S. 807, 813–814 (1976)
(citing §2671); accord, post, at 15 (A LITO , J., dissenting).
B
Without any constitutional or statutory text expressly
supporting preemption, the Fourth Circuit, like the D. C.

-- 8 of 38 --

6 HENCELY v. FLUOR CORP.
Opinion of the Court
Circuit before it, resorted to our precedent in Boyle. 120
F. 4th, at 425–426; see also Saleh, 580 F. 3d, at 5. Accord-
ing to the Fourth Circuit, Boyle requires preemption of all
claims against contractors engaged in combatant activities
under the military’s command authority. 120 F. 4th, at
425–426. For its part, the Government asserts that an ac-
tion is preempted if it “arises from both combatant activi-
ties and a contractor’s actions within the scope of its con-
tract.” Brief for United States as Amicus Curiae 28. Our
precedents do not support either rule.
To start, Boyle does not squarely govern. It concerned the
performance of a procurement contract, not a performance
contract, and the combatant-activities exception was not at
issue. Accord, post, at 16–17 (opinion of ALITO , J.). But,
regardless, its reasoning does not support the Fourth Cir-
cuit’s preemption rule.
Under our precedents, Boyle explained, “a few areas, in-
volving ‘uniquely federal interests,’ are so committed by the
Constitution and laws of the United States to federal con-
trol that state law is pre-empted and replaced, where nec-
essary, by federal law,” fashioned by federal courts in the
absence of congressional action. 487 U. S., at 504 (quoting
Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S.
630, 640 (1981); citation omitted); see, e.g., Clearfield Trust
Co. v. United States, 318 U. S. 363, 366–367 (1943); United
States v. Kimbell Foods, Inc., 440 U. S. 715, 726–729 (1979).
In those rare areas of “uniquely federal interest,” the Court
has held state law preempted when there is a “significant
conflict” between “an identifiable federal policy or interest
and the [operation] of state law,” or when “specific objec-
tives” of federal legislation would be frustrated. Boyle, 487
U. S., at 505, 507 (internal quotation marks omitted). This
Court has emphasized the narrowness of this doctrine,
which will rarely apply when “litigation is purely between
private parties and does not touch the rights and duties of
the United States.” Bank of America Nat. Trust & Sav.

-- 9 of 38 --

7 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
Assn. v. Parnell, 352 U. S. 29, 33 (1956); see Boyle, 487
U. S., at 506.
In Boyle, the conflict between federal interests and state
law was particularly sharp. There, a Marine helicopter pi-
lot drowned after a crash during a training exercise. Id., at
502. The pilot’s father sued the manufacturer of the heli-
copter, alleging that, under state tort principles, the escape
hatch for the helicopter should have opened inward even
though the federal procurement contract for the helicopter
required that it open outward. Id., at 503.
To assess preemption of that suit, the Court first identi-
fied a “ ‘uniquely federal’ interest” in the “the civil liabilities
arising out of the performance of federal procurement con-
tracts.” Id., at 505–506. After all, the Court reasoned, in
Yearsley v. W. A. Ross Constr. Co., 309 U. S. 18 (1940), the
Court had rejected “an attempt by a landowner to hold a
construction contractor liable under state law” for eroding
land in the course of constructing dikes for the Government.
Boyle, 487 U. S., at 506 (citing Yearsley, 309 U. S., at 20–
21). There was “no basis for a distinction,” Boyle explained,
between a contractor’s fulfillment of a performance contract
like the one in Yearsley and a contractor’s faithful execution
of a procurement contract for helicopters. 487 U. S., at 506.
Boyle was clear that the identification of a uniquely fed-
eral interest “does not, however, end the inquiry.” Id., at
507. Instead, this Court’s precedents require “a significant
conflict . . . between an identifiable federal policy or interest
and the operation of state law.” Ibid. (internal quotation
marks and alterations omitted).
To craft a rule of decision for suits against federal pro-
curement contractors, Boyle turned to the FTCA, which pre-
serves the Federal Government’s sovereign immunity
against a claim “based upon the exercise or performance or
the failure to exercise or perform a discretionary function
or duty,” §2680(a). See id., at 511. Because the Federal
Government cannot be sued for exercising its discretion to

-- 10 of 38 --

8 HENCELY v. FLUOR CORP.
Opinion of the Court
select helicopter designs, the Court concluded that “state
law which holds Government contractors liable for design
defects in military equipment does in some circumstances”
require displacement. Id., at 512. But even then, not all
tort suits arising out of design defects in federally procured
equipment are preempted. The Court instead adopted a
three-part test requiring preemption if (1) the United
States approved precise specifications; (2) the equipment
conformed to them; and (3) the supplier warned the United
States about the dangers the specifications entailed. Ibid.
Under this approach, many suits are not preempted. For
example, there would generally be no preemption when the
procured equipment was a stock model, or when the Gov-
ernment’s specifications were silent as to the complained-of
defect in the product. Id., at 509. And, the Court explained
that preemption of all suits by military personnel against
procurement contractors would be “too broad” a preemption
rule because it would bar suits even when the Government
did not instruct the contractor to produce equipment with
the challenged feature. Id., at 510.
Boyle’s reasoning contradicts the Fourth Circuit’s analy-
sis. Boyle addressed “a special circumstance” in which the
contractor has a defense because “the government has di-
rected a contractor to do the very thing that is the subject
of the claim.” Correctional Services Corp. v. Malesko, 534
U. S. 61, 74, n. 6 (2001). Hencely sued Fluor for conduct
that, we assume (as the Fourth Circuit did), was not au-
thorized by, but was even contrary to, federal instructions.
See 120 F. 4th, at 430. Fluor does not dispute that military
officials found it to have failed in its contractual obligations.
It also does not dispute that the Army found this failure to
be a cause of Hencely’s injuries. Even granting that there
is a “uniquely federal interest” in the regulation of military
bases overseas, there would be no “significant conflict” be-

-- 11 of 38 --

9 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
tween that interest and state-law negligence liability prem-
ised on a contractor’s departure from military instructions.
Boyle, 487 U. S., at 507.
An example Boyle gave confirms that Boyle does not jus-
tify the Fourth Circuit’s rule. The Court thought it clear
that in a case in which the Government asks a contractor
for a certain result, and the contractor is sued for how it
achieved that result, the suit is not preempted if the Gov-
ernment was silent about the conduct that allegedly vio-
lated state law:
“If, for example, the United States contracts for the
purchase and installation of an air-conditioning unit,
specifying the cooling capacity but not the precise man-
ner of construction, a state law imposing upon the man-
ufacturer of such units a duty of care to include a cer-
tain safety feature would not be a duty identical to
anything promised the Government, but neither would
it be contrary. The contractor could comply with both
its contractual obligations and the state-prescribed
duty of care. No one suggests that state law would gen-
erally be pre-empted in this context.” Id., at 509.
The contract at issue in this case is “like the one for the
hypothetical air conditioner, not the helicopter.” Saleh, 580
F. 3d, at 22 (Garland, J., dissenting). The Fourth Circuit
did not conclude “that the government required or author-
ized the contractor personnel at [Bagram Airfield] to do
what state law forbids,” and Boyle cannot be read to “pro-
tect a contractor from liability resulting from the contrac-
tor’s violation of federal . . . policy.” 580 F. 3d, at 22–23.
The Government required Fluor to hire Afghan employees
and to provide logistics for Bagram Airfield. But, it did not,
Hencely contends, require Fluor to leave Nayeb unsuper-
vised, allow him to walk alone for an hour after his shift, or
permit him to obtain unauthorized tools with which he

-- 12 of 38 --

10 HENCELY v. FLUOR CORP.
Opinion of the Court
could build a bomb. Instead, on each score, the Army con-
cluded that Fluor failed express duties to the Government.
Given this, Hencely’s suit premised on Fluor’s negligence in
carrying out those duties is, under Boyle’s reasoning, not
preempted just as the hypothetical claims about the air-
conditioner would not be preempted.
None of this should come as a surprise to Fluor under ex-
isting statutes and regulations. “Congress knows full well
how to make its intention to preclude private liability
known.” Saleh, 580 F. 3d, at 26 (Garland, J., dissenting).
Congress gave some contractors express protection from
suits related to their activities. 42 U. S. C. §§233(a), (g)
(channeling suits against employees at certain federally
funded health centers); 50 U. S. C. §2783(b) (providing the
same for contractors carrying out an atomic weapons test-
ing program). And, in the Defense Base Act, Congress
channeled claims by contractors’ employees to an adminis-
trative process, see 42 U. S. C. §§1651(a), (c), but did not do
the same for suits by soldiers on military bases. Moreover,
the Government advised Fluor that it would not have a
blanket defense based on its status as a military contractor.
See Saleh, 580 F. 3d, at 27 (Garland, J., dissenting). Before
the suicide attack that injured Hencely, the Department of
Defense responded to concerns that its regulations “may
lead courts to deny contractors certain defenses in tort liti-
gation.” 73 Fed. Reg. 16767 (2008). The Department ob-
served that courts generally “absolv[e] contractors of liabil-
ity to third parties where the Government carried ultimate
responsibility for the operation.” Ibid. But, beyond that
context, the Department warned, contractors must “re-
search host nation laws and proposed operating environ-
ments” because existing law held “contractors accountable

-- 13 of 38 --

11 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
for the negligent or willful actions of their employees, offic-
ers, and subcontractors.”1 Id., at 16768. The Department
explained that Boyle did not protect nonprocurement con-
tractors and that contractors should not expect “to avoid ac-
countability to third parties for their own actions by raising
defenses based on the sovereignty of the United States.” 73
Fed. Reg. 16768.
C
Since Boyle did not reach this case, the Fourth Circuit
expanded it. “ ‘In the context of the combatant activities
exception,’ ” it observed, “ ‘the relevant question is not so
much whether the substance of the federal duty is incon-
sistent with a hypothetical duty imposed by the state.’ ”
120 F. 4th, at 429 (quoting Saleh, 580 F. 3d, at 7; emphasis
added). Instead, the court reasoned, “it is the imposition
per se of the state . . . tort law that conflicts with the federal
policy of eliminating” state regulation of the military during
wartime. 120 F. 4th, at 429 (internal quotation marks
omitted).
That test sweeps too broadly. The FTCA’s combatant-
activities exception forecloses suits “arising out of the com-
batant activities of the military or naval forces, or the Coast
Guard.” 28 U. S. C. §2680(j) (emphasis added). Like the
discretionary-function exception on which Boyle relied, the
combatant-activities exception protects the Government’s
decisionmaking. Accordingly, the Fourth Circuit seems to
——————
1 The Department of Defense therefore did not share the dissent’s
alarm at the prospect of military contractors’ being subject to foreign
law. Post, at 13–14, and nn. 5–7. In fact, American courts have long
decided cases relying on foreign law. See, e.g., Animal Science Prod-
ucts, Inc. v. Hebei Welcome Pharmaceutical Co., 585 U. S. 33, 37–41
(2018); Canada Malting Co. v. Paterson S. S., Ltd., 285 U. S. 413, 421–
422 (1932). Regardless, the issue is academic here, as both sides in-
voked South Carolina law in this case, and, in the Fourth Circuit,
Fluor did not “provid[e] any indication . . . how the outcome would be
different under Afghan law.” 120 F. 4th 412, 424, n. 4. (2024).

-- 14 of 38 --

12 HENCELY v. FLUOR CORP.
Opinion of the Court
have recognized that the relevant federal interest is “fore-
closing state regulation of the military’s battlefield conduct
and decisions.” In re KBR, 744 F. 3d, at 350 (emphasis
added). But, even assuming such an interest can preempt
state law, “[n]o significant conflict exists between that in-
terest and state law unless the challenged action can rea-
sonably be considered the military’s own conduct or deci-
sion and the operation of state law would conflict with that
decision.” Badilla v. Midwest Air Traffic Control Serv., Inc.,
8 F. 4th 105, 128 (CA2 2021).
The Fourth Circuit’s decision not only extended, but con-
tradicted, Boyle. Boyle created a defense for contractors
only insofar as the suit challenged a decision of the Govern-
ment that the contractor merely carried out. A conflict even
with the new “uniquely federal interest” the lower courts
have identified in military operations, then, would have to
emerge from a state-law suit challenging the military’s de-
cisions on the battlefield. The Fourth Circuit did not ask
that question. To the contrary, it expressly concluded that
resolving Hencely’s claims under South Carolina law would
not require “evaluat[ing] the reasonableness of military
judgments.” 120 F. 4th, at 424; contra, post, at 12 (opinion
of ALITO , J.). But, it went on to find preemption in any case
because it thought that the Government’s “ ‘interest in com-
bat is always precisely contrary to the imposition of a non-
federal tort duty.’ ” 120 F. 4th, at 426 (quoting KBR, 744
F. 3d, at 349; emphasis added). Boyle’s rationale justifies
no such blanket preemption.
D
Perhaps sensing this, Fluor and the Government argue
that, even without Boyle, the Constitution’s structure im-
plicitly preempts any suit against a military contractor op-
erating in a combat zone. See Brief for Respondents 30–33;

-- 15 of 38 --

13 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
Brief for United States as Amicus Curiae 30. This argu-
ment has no basis in the text of the Constitution or our prec-
edent.
All acknowledge that the Federal Government has
“ ‘broad and sweeping’ ” war powers. Rumsfeld v. Forum for
Academic and Institutional Rights, Inc., 547 U. S. 47, 58–
59 (2006) (quoting United States v. O’Brien, 391 U. S. 367,
377 (1968)). The Constitution assigns Congress the power
to “declare War,” “raise and support Armies,” “provide and
maintain a Navy,” and “make Rules for the Government
and Regulation of the land and naval Forces.” Art. I, §8,
cls. 11–13. The President is the “Commander in Chief of
the Army and Navy of the United States” and militias in
federal service. Art. II, §2, cl. 1. States, for their part, may
not “engage in War, unless actually invaded.” Art. I, §10,
cl. 3.
But, the Constitution’s grant of war powers does not im-
ply that courts must reject any tort claim connected to a war
zone, as the Fourth Circuit’s rule requires.2 See 120 F. 4th,
at 429. The assignment of those powers to Congress and
the Executive has never been understood to bar all war-
related tort suits. To the contrary, barring other statutory
or constitutional considerations, plaintiffs have been able to
enforce their legal rights even when they are violated dur-
ing war. Only a few years after the adoption of the Consti-
tution, the Court addressed the case of Captain Little, com-
mander of a United States frigate. Little v. Barreme, 2
Cranch 170 (1804) (Marshall, C. J.). Captain Little acted
on the Secretary of the Navy’s orders and seized a Danish
vessel for violating American neutrality laws during the
Quasi-War with France. Id., at 176–178. The Court found
——————
2 The dissent does not appear to disagree. See post, at 17. Nor does it
defend the preemption rule applied below, even while it would find
preemption on other grounds.

-- 16 of 38 --

14 HENCELY v. FLUOR CORP.
Opinion of the Court
that the orders exceeded the President’s statutory author-
ity and held that “Captain Little then must be answerable
in damages to the owner of this neutral vessel” despite a
seizure “with pure intention” to carry out U. S. military pol-
icy. Id., at 179. In Mitchell v. Harmony, 13 How. 115
(1852), Colonel Mitchell seized property in Mexico during
the Mexican-American war that belonged to an American
merchant traveling with the military in the war zone. Id.,
at 129–130. The merchant sued, and the Court affirmed
the tort judgment against Colonel Mitchell. Id., at 137. As
this history shows, the mere fact that the conduct here oc-
curred overseas in a warzone perhaps makes this a good
case for Congress to intervene, but it does not give courts a
license to bar all such suits on their own authority.3
Nor is Fluor protected from the consequences of its con-
duct simply because it was working for the Federal Govern-
ment and state law is at issue. “[T]here is an implied con-
stitutional immunity of the national government from state
taxation and from state regulation of the performance, by
federal officers and agencies, of governmental functions.”
Penn Dairies, Inc. v. Milk Control Comm’n of Pa., 318 U. S.
261, 269 (1943). For example, States ordinarily cannot “di-
rectly regulate or discriminate against” federal officers and
agencies. United States v. Washington, 596 U. S. 832, 835
(2022); see also McCulloch v. Maryland, 4 Wheat. 316, 436–
437 (1819). “But those who contract to furnish supplies or
render services to the government are not such agencies
and do not perform governmental functions.” Penn Dairies,
——————
3 The dissent observes that these decisions applied the “bygone” federal
general common law before the Court declared that “[t]here is no federal
general common law” in Erie R. Co. v. Tompkins, 304 U. S. 64, 78 (1938);
they did not apply state law. Post, at 18. We fail to see the relevance of
this distinction. The pre-Erie “federal general common law” would have
been subject to structural constitutional law just as state law is today.
So, if the Constitution foreclosed tort claims arising from wartime activ-
ities under the rule that Fluor urges, these suits would have been barred
regardless of the source of the tort principles they relied on.

-- 17 of 38 --

15 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
318 U. S., at 269. Accordingly, absent a statute to the con-
trary, States can regulate or tax federal contractors on the
same terms as any private company, even where the party
asserts an indirect burden on federal activities. See, e.g.,
James Stewart & Co. v. Sadrakula, 309 U. S. 94, 104 (1940)
(allowing state labor-law liability against a contractor con-
structing a federal building); James v. Dravo Contracting
Co., 302 U. S. 134, 159–161 (1937) (upholding a tax imposed
on a federal contractor despite a constitutional objection
that doing so would burden the Federal Government by in-
creasing its costs).
The Court has not hesitated to apply this principle in the
military context. In Penn Dairies, the Court allowed a state
milk-price regulation to apply to a military contractor
providing milk to soldiers on a military base during the Sec-
ond World War. 318 U. S., at 266–267, 278–279. The con-
tractor argued that applying the regulations to its military
contracting operations was unconstitutional, because Con-
gress alone has the power to raise and support armies, and
the regulation interfered with the exercise of that power.
Id., at 268–269; see Art. I, §8, cl. 12. The Court rejected
that argument. It explained that while Congress’s enumer-
ated powers enable it to “declare state regulations like” the
one at issue “inapplicable to sales to the government,” the
state law was not preempted because the Court could not
“find in Congressional legislation . . . any disclosure of a
purpose to immunize government contractors from local
price-fixing regulations which would otherwise be applica-
ble.” 318 U. S., at 269, 278.
Instead, without a federal statute, contractors ordinarily
have a constitutional defense only when the contractor is
being sued precisely for accomplishing what the Federal
Government requested. In Yearsley, a contractor, acting
under military orders, built dikes on the Missouri River and
“washed away a part of petitioners’ land” as a result. 309
U. S., at 19. The landowners sued and secured a judgment

-- 18 of 38 --

16 HENCELY v. FLUOR CORP.
Opinion of the Court
against the contractor. Id., at 20. This Court reversed. The
Court explained that “if th[e] authority to carry out the pro-
ject was validly conferred . . . there is no liability on the part
of the contractor for executing its will.” Id., at 20–21. But,
by its own terms, Yearsley was limited: “The Court con-
trasted with Yearsley cases in which a Government agent
had ‘exceeded his authority’ or the authority ‘was not val-
idly conferred’; in those circumstances, the Court said, the
agent could be held liable for conduct causing injury to an-
other.” Campbell-Ewald Co. v. Gomez, 577 U. S. 153, 167
(2016) (quoting Yearsley, 309 U. S., at 21). Because Fluor
is alleged to have acted outside the authority the military
granted it, it does not attempt to invoke a Yearsley defense.
And, we decline to extend Yearsley to bar allegations such
as Hencely’s.
III
The Fourth Circuit’s decision held Hencely’s claims
preempted even though the conduct complained of was nei-
ther ordered nor authorized by the Federal Government.
No provision of the Constitution and no federal statute jus-
tifies that preemption of the State’s ordinary authority over
tort suits. Nor does any precedent of this Court command
such a result. Therefore, we vacate the judgment of the
Fourth Circuit and remand the case for further proceedings
consistent with this opinion.
It is so ordered.

-- 19 of 38 --

_________________
_________________
1 Cite as: 608 U. S. ____ (2026)
ALITO , J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 24–924
WINSTON TYLER HENCELY, PETITIONER v. FLUOR
CORPORATION, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[April 22, 2026]
J USTICE ALITO , with whom THE CHIEF J USTICE and
J USTICE KAVANAUGH join, dissenting.
May a State regulate security arrangements on a military
base in an active warzone? May state judges and juries
pass judgment on questions that are inextricably tied to
military decisions that balance war-related risks against
long-term strategic objectives? In my judgment, the answer
to these questions must be “no,” and for that reason, this
state-law tort case is preempted by the Constitution’s grant
of war powers exclusively to the Federal Government.
The event that gave rise to this case was a tragic break-
down in security at Bagram Airfield in Afghanistan in 2016,
when the United States military was engaged in combat in
that theater. Ahmad Nayeb, an Afghan national employed
to work on the base, detonated a suicide bomb that killed 3
U. S. soldiers and 2 civilians and injured 17 others.
In the years before this event, Taliban supporters repeat-
edly attacked Bagram, but the military nevertheless de-
cided for strategic reasons to adopt a policy known as “Af-
ghan First,” which required contractors working on the
base to maximize the employment of Afghans. Under that
policy, military officials vetted Nayeb, a former Taliban
member, and cleared him to work on the base. Giving a
person with Nayeb’s background regular access to Bagram
presented an obvious risk, but the decisionmakers

-- 20 of 38 --

2 HENCELY v. FLUOR CORP.
ALITO , J., dissenting
apparently concluded that long-term foreign policy and de-
fense objectives justified that danger. As a result, a subcon-
tractor for Fluor Corporation, a defense contractor engaged
in work on the base, employed Nayeb. Fluor had responsi-
bility for supervising Nayeb’s conduct, and Fluor allegedly
failed to provide adequate supervision.
Among those injured when Nayeb detonated his bomb
was petitioner, former Army Specialist Winston Tyler
Hencely, who suffered severe and permanent injuries.
Barred by sovereign immunity from suing the Federal Gov-
ernment, petitioner brought this diversity suit against
Fluor and asserted tort claims under South Carolina law.
Like all members of the military wounded in the service of
our country, petitioner deserves a full measure of support
from the American people, who owe him a debt that can
never be fully repaid. But this state-law tort suit is not the
way to give petitioner what he is due.
Under the Constitution, the power to make war and con-
duct combat operations is entrusted exclusively to Congress
and the President. See Art. I, §8, cls. 1, 11–16; Art. II, §1,
cl. 1, §2, cl. 1. The Constitution expressly excludes the
States from this field, Art. I, §10, cl. 3, and thus no state
law, including state tort law, may intrude on the Federal
Government’s authority over combat-related operations.
This suit violates that cardinal principle. Among other
concerns, the trial proceedings that will result from today’s
decision are likely to implicate the Government’s policy de-
cisions about the operation of Bagram Airfield during the
War on Terror. Fluor has stated that it will attempt to as-
sign blame for the bombing to the military. In doing so,
Fluor is likely to challenge the military’s decision to give
Nayeb access to the base in the first place, as well as the
sufficiency of the military’s periodic reassessments of his
trustworthiness. And to support this defense, Fluor may
demand discovery of sensitive Government documents and
may depose and cross-examine military commanders about

-- 21 of 38 --

3 Cite as: 608 U. S. ____ (2026)
ALITO , J., dissenting
policy decisions that involved a delicate and contestable
balancing of wartime interests. In the end, a jury may be
asked to decide whether petitioner’s injuries were caused
by the negligence or bad judgment of military decisionmak-
ers and the officers responsible for the operation of the base.
And to make matters worse, there is a possibility that the
case will be decided under the principles of Afghan law in
effect in 2016, even though simply ascertaining those prin-
ciples would be a daunting task.
Because petitioner’s state-law claims intrude on the Fed-
eral Government’s exclusive power to make war and con-
duct combat operations, the Constitution preempts them.
I
A
The Constitution makes federal law the “supreme Law of
the Land,” Art. VI, cl. 2, and over the years, this Court has
identified a variety of circumstances in which federal law
preempts state law. In this case, the opinion of the Court
stresses the two situations in which preemption is most ev-
ident: where a federal law expressly preempts state law and
where it is impossible for a regulated party to comply with
both federal and state law. See ante, at 1, 5. But these two
categories do not constitute an exhaustive list. Our prece-
dents squarely establish that the Constitution and other
federal laws may also impliedly preempt state law. Kansas
v. Garcia, 589 U. S. 191, 202–203 (2020). And most perti-
nent here, we have long recognized that federal law
preempts state laws that intrude on the powers that the
Constitution confers exclusively on the Federal Govern-
ment, as well as laws that substantially interfere with the
operation of the Federal Government’s organs or the work
of federal officers.
Our decisions in this vein began at least as early as
McCulloch v. Maryland, 4 Wheat. 316 (1819), where the
Court held that Maryland could not tax the Second Bank of

-- 22 of 38 --

4 HENCELY v. FLUOR CORP.
ALITO , J., dissenting
the United States. Writing for the Court, Chief Justice
Marshall noted that some powers, including control over
federal instrumentalities like the Bank, belong exclusively
to the Federal Government. Id., at 429. Thus, Maryland
could not control the Bank, and because the power to tax
could be used to control—and indeed destroy—the Bank,
the State could not tax it. Id., at 431. Chief Justice Mar-
shall stated the holding of the Court in unequivocal terms:
“[T]he States have no power, by taxation or otherwise, to
retard, impede, burden, or in any manner control, the oper-
ations of the constitutional laws enacted by Congress to
carry into execution the powers vested in the general gov-
ernment.” Id., at 436. That principle doomed Maryland’s
tax even though no provision of federal law expressly
preempted the state law and even though the Court did not
suggest that the Bank was incapable of paying the tax. Ra-
ther, the Court inferred the preemptive effect of federal law
from the structure of the Constitution. See id., at 430–431.
Five years later, the Court’s decision in another land-
mark case involving the Second Bank of the United States
reaffirmed the principle of implied preemption recognized
in McCulloch. Writing for the Court in Osborn v. Bank of
United States, 9 Wheat. 738 (1824), Chief Justice Marshall
explained that some state incursions into federal operations
are “so objectionable” that federal law need not say any-
thing to preempt them. Id., at 865. For example, the “col-
lectors of the revenue, the carriers of the mail, the mint es-
tablishment, and all those institutions which are public . . .
are protected, while in the line of duty; and yet this protec-
tion is not expressed in any act of Congress.” Ibid. Thus,
Ohio, like Maryland in McCulloch, was barred from taxing
the Bank simply because of the Constitution’s delineation
of federal and state authority.
McCulloch and Osborn were early cases identifying fields
that are “exclusively federal, because made so by constitu-
tional or valid congressional command,” or because they “so

-- 23 of 38 --

5 Cite as: 608 U. S. ____ (2026)
ALITO , J., dissenting
vitally affec[t] interests, powers and relations of the Federal
Government as to require uniform national disposition.”
United States v. Standard Oil Co. of Cal., 332 U. S. 301, 307
(1947). In such areas, this Court does not apply a presump-
tion against preemption. That presumption is grounded in
respect for state sovereignty, so it applies to fields the
“ ‘States have traditionally occupied.’ ” Wyeth v. Levine, 555
U. S. 555, 565 (2009) (quoting Medtronic, Inc. v. Lohr, 518
U. S. 470, 485 (1996)). But when state law intrudes in an
exclusively federal domain, the rationale for the presump-
tion does not apply. In those fields, the “conflict with fed-
eral policy need not be as sharp as that which must exist
for ordinary pre-emption when Congress legislates ‘in a
field which the States have traditionally occupied.’ ” Boyle
v. United Technologies Corp., 487 U. S. 500, 507 (1988)
(quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230
(1947)). In other words, the “fact that the area in question
is one of unique federal concern changes what would other-
wise be a conflict that cannot produce pre-emption into one
that can.” Boyle, 487 U. S., at 508 (emphasis deleted).
Osborn, as noted, enumerated several exclusive federal
domains into which States may not intrude, and later cases
reaffirmed and further developed that list. For example,
the Court held that States cannot prosecute federal agents
for their official acts. In re Neagle, 135 U. S. 1, 75–76
(1890); see Tennessee v. Davis, 100 U. S. 257, 262–263
(1880) (quoting Martin v. Hunter’s Lessee, 1 Wheat. 304,
363 (1816) (Johnson, J., concurring in judgment)). They
cannot impose qualifications for membership in Congress
that go beyond those set out in the Constitution. U. S. Term
Limits, Inc. v. Thornton, 514 U. S. 779, 806 (1995). Nor can
States enact qualifications for federal employees that sur-
pass the minimum qualifications imposed by federal law.
Johnson v. Maryland, 254 U. S. 51, 57 (1920). States are
also barred from singling out the Federal Government for
unfavorable treatment in contracting. United States v.

-- 24 of 38 --

6 HENCELY v. FLUOR CORP.
ALITO , J., dissenting
Washington, 596 U. S. 832, 839 (2022). They cannot impose
tort liability on federal contractors for the performance of
their contractual duties. Yearsley v. W. A. Ross Constr. Co.,
309 U. S. 18, 20–21 (1940). And they cannot dictate the pri-
ority of federal liens that arise under a nationwide program.
United States v. Kimbell Foods, Inc., 440 U. S. 715, 726
(1979).
In these situations, the Court found that constitutional
structure dictated preemption, but today’s majority largely
disregards this body of precedent. The majority is certainly
correct that “ ‘[t]here is no federal pre-emption in vacuo,’ ”
ante, at 5, and preemption cannot be based on “ ‘some brood-
ing federal interest’ ” or a “ ‘freewheeling judicial inquiry
into whether a state statute is in tension with federal objec-
tives.’ ” Garcia, 589 U. S., at 202. We have been presented
with and have rebuffed preemption arguments that rested
on such airy grounds. See, e.g., Arizona v. United States,
567 U. S. 387, 411–415 (2012): id., at 424–426 (Scalia, J.,
concurring in part and dissenting in part); id., at 437–438
(THOMAS , J., concurring in part and dissenting in part); id.,
at 441 (ALITO , J., concurring in part and dissenting in
part).1 But any argument that constitutional structure
——————
1 In that case, a state law required law enforcement officers to contact
federal authorities regarding the immigration status of a detainee if they
reasonably suspected that he or she was in this country unlawfully. Ar-
izona, 567 U. S., at 411. Even if this detention did not exceed the length
of time permitted by the Fourth Amendment, the Federal Government
argued that this state-law requirement was preempted because its
breadth conflicted with the Government’s enforcement policy, which
gave priority to the removal of those illegal aliens who had criminal rec-
ords or presented a special danger to the community. See Brief for
United States in Arizona v. United States, O. T. 2011, No. 11–182,
pp. 43–52. Although divided on other issues, the Court unanimously re-
jected that argument. Just because the state law might have led to
phone calls or emails that federal immigration officers did not wish to
receive provided no sound basis for preemption. See, e.g., Arizona, 567
U. S., at 412–413; id., at 442–446 (ALITO , J., concurring in part and dis-
senting in part).

-- 25 of 38 --

7 Cite as: 608 U. S. ____ (2026)
ALITO , J., dissenting
cannot itself preempt state law comes more than two cen-
turies too late.
B
Preemption based on constitutional structure is espe-
cially important when state law intrudes upon the Federal
Government’s exclusive authority to conduct relations with
other nations or to wage war. As the Court has repeatedly
explained, the “Federal Government . . . is entrusted with
full and exclusive responsibility for the conduct of affairs
with foreign sovereignties.” Hines v. Davidowitz, 312 U. S.
52, 63 (1941). Indeed, “[o]ur system of government . . . im-
peratively requires that federal power in the field affecting
foreign relations be left entirely free from local interfer-
ence.” Ibid.; see also United States v. Belmont, 301 U. S.
324, 330–331 (1937) (“Governmental power over external
affairs is not distributed, but is vested exclusively in the
national government . . . and cannot be subject to any cur-
tailment or interference on the part of the several states”);
Zschernig v. Miller, 389 U. S. 429, 432 (1968) (the Consti-
tution permits no “intrusion by the State into the field of
foreign affairs which the Constitution entrusts to the Pres-
ident and the Congress”); Saleh v. Titan Corp., 580 F. 3d 1,
11 (CADC 2009) (Silberman, J.) (“The states (and certainly
foreign entities) constitutionally and traditionally have no
involvement in federal wartime policy-making”).
We have applied this principle in numerous preemption
cases. In Crosby v. National Foreign Trade Council, 530
U. S. 363 (2000), we held that a federal statute imposing
sanctions on Burma preempted a state law banning the
purchase of goods produced by companies that did business
with that nation. Id., at 373–374. We reached that conclu-
sion even though it would have been possible to comply with
both the federal and state laws. Id., at 379–380. Similarly,
in American Ins. Assn. v. Garamendi, 539 U. S. 396 (2003),
we held that a federal executive agreement preempted a

-- 26 of 38 --

8 HENCELY v. FLUOR CORP.
ALITO , J., dissenting
state statute that attempted to facilitate reparations for
Holocaust survivors. Id., at 419, and n. 11, 427.
As with foreign affairs more broadly, the Constitution as-
signs the power to make war exclusively to the Federal Gov-
ernment. Congress is given the power to declare war, raise
armies, provide a Navy, and make rules governing the
Armed Forces. Art. I, §8, cls. 1, 11–16. And the President
is made the Commander in Chief of the Armed Forces. Art.
II, §2, cl. 1. The Constitution then explicitly strips States
of any similar powers. States may not “keep Troops, or
Ships of War in time of Peace,” or “engage in War, unless
actually invaded, or in such imminent Danger as will not
admit of delay.” Art. I, §10, cl. 3. The “Constitution’s text,
across several Articles, strongly suggests a complete dele-
gation of authority to the Federal Government to provide
for the common defense.” Torres v. Texas Dept. of Public
Safety, 597 U. S. 580, 590 (2022). The framing generation
well understood this point. “The States ultimately ratified
the Constitution knowing that their sovereignty would give
way to national military policy.” Id., at 592.
* * *
In sum, we have long recognized that the Constitution it-
self may demand preemption when a state law intrudes
upon an area of exclusive federal authority. And because
the Constitution gives the Federal Government exclusive
authority over foreign affairs and the conduct of wars, fed-
eral law preempts all state law that substantially interferes
with the Government’s exercise of those powers.
II
Applying state (or foreign) tort law in this case would sub-
stantially interfere with the Government’s ability to wage
war and, in particular, with its ability to implement its pre-
ferred security policies at Bagram Airfield, which for many
years had been regularly attacked by Taliban supporters.

-- 27 of 38 --

9 Cite as: 608 U. S. ____ (2026)
ALITO , J., dissenting
In February 2007, a suicide bombing on the base killed 23
and injured 20 more. A June 2009 rocket attack killed two
soldiers and injured at least six others. In May 2010, insur-
gents wearing U. S. Army uniforms killed an American con-
tractor and wounded nine servicemembers. A November
2013 rocket attack killed two civilian contractors, and a De-
cember 2015 suicide bombing killed six American service-
members.2
In light of this history, military planners had strong rea-
sons to worry about base security, but they also had in mind
the United States’ strategic objectives. 554 F. Supp. 3d 770,
776, n. 7 (SC 2021). President George W. Bush laid out
those aims as follows: “Our goal in Afghanistan is to help
the people of that country to defeat the terrorists and estab-
lish a stable, moderate, and democratic state that respects
the right of its citizens, governs its territory effectively, and
is a reliable ally in this war against extremists and terror-
ists.”3 Later, as President Obama looked forward to the day
when American troops could come home, he added that the
United States supported “open[ing] the door to those Tali-
ban who abandon violence and respect the human rights of
their fellow citizens.”4
Balancing these strategic objectives and Bagram’s secu-
rity needs, military decisionmakers adopted a policy that
——————
2 P. Wellman, A Timeline of Important Moments at Bagram Airfield
from 2001–2021, Stars & Stripes (July 2, 2021), https://www.stripes
.com/theaters/middle_east/2021-07-02/bagram-airfield-timeline-of-events
-since-2001-2026849.html (archived at https://perma.cc/J3Y7-MFNQ).
3 President Bush Discusses Progress in Afghanistan, Global War on
Terror (Feb. 15, 2007), https://georgewbush-whitehouse.archives.gov/
news/releases/2007/02/20070215-1.html (archived at https://perma.cc/
A6SK-VVBD).
4 Remarks By the President in Address to the Nation on the Way Forward
in Afghanistan and Pakistan (Dec. 1, 2009), https://obamawhitehouse
.archives.gov/the-press-office/remarks-president-address-nation-way-
forward-afghanistan-and-pakistan (archived at https://perma.cc/Z3YB-
M88H).

-- 28 of 38 --

10 HENCELY v. FLUOR CORP.
ALITO , J., dissenting
entailed what they must have thought were tolerable and
manageable risks. The policy manifested trust in the Af-
ghan people, sought to promote economic development, and
attempted to further the process of bringing former Taliban
members back into the fold.
This was the military’s “Afghan First” policy, which gave
heavy preference to the hiring of Afghans. In a March 2006
memorandum, the Commanding General of the Combined
Forces Coalition in Afghanistan directed all military com-
manders to “make every attempt, within legal and regula-
tory limits, to use available Afghan services.” Motion for
Summary Judgment in No. 6:19–cv–00489 (D SC, Feb. 26,
2021), ECF Doc. 128–18, Exh. 16, p. 2. The memo added
that “[w]henever possible, we should plan on providing Af-
ghans with training which will add marketable skills to the
population.” Ibid. The memo recognized that this directive
would risk some adverse consequences, but it justified the
program on the ground that it would “provide opportunities
for economic expansion, increased entrepreneurship, and
skills training for the people of Afghanistan.” Ibid. “As long
as we can legally hire Afghans to provide services or prod-
ucts,” the memo proclaimed, “we shall do so.” Ibid.
The memo therefore directed military officials to award
contracts to Afghans, rather than American contractors,
whenever possible. And when officials awarded contracts
to American companies like Fluor, the memo stated that
“[o]rders are to be scoped to maximize employment of Af-
ghans.” Ibid. Commanders were instructed to set goals and
write reports regarding the percentage of Afghans em-
ployed under the contracts they administered, and the
memo challenged commanders to “be creative and aggres-
sive in carrying out the Afghan FIRST program.” Id., at 3.
The memo ended with the proclamation that “[t]his is a
powerful way to contribute meaningfully to our campaign
end state.” Ibid.

-- 29 of 38 --

11 Cite as: 608 U. S. ____ (2026)
ALITO , J., dissenting
The Afghan First program was incorporated into Fluor’s
contract. Specifically, §1.07(b) of the relevant task order
required Fluor to “hire [host nation] personnel and Subcon-
tractors to the maximum extent possible.” ECF Doc. 128–
19, Exh. 17, p. 6. According to Fluor’s security director,
“[p]ractically, this meant that the Military required Fluor
to use [local nationals]. In fact, if Fluor employed persons
other than Afghan nationals, the Military usually required
Fluor to justify its decision.” ECF Doc. 128–7, Exh. 5, p. 17.
It was under this program that Nayeb was cleared for em-
ployment on Bagram and then hired by one of Fluor’s sub-
contractors. Because of Nayeb’s past Taliban membership,
clearing him entailed an obvious risk. But the military con-
cluded that the United States’ strategic objectives justified
that danger. The military relied on Fluor to supervise
Nayeb’s conduct on the base, and this arrangement led to
the bombing that seriously injured petitioner.
Based on what is known about the events leading to the
bombing, it may well be that both the military and Fluor
are responsible for petitioner’s injuries. Under South Car-
olina law, they could be jointly and severally liable, but be-
cause the military is shielded by sovereign immunity, Fluor
is potentially liable for all the compensatory damages that
petitioner may be awarded. See Green v. McGee, 446 S. C.
343, 350, 919 S. E. 2d 903, 906 (2025); 120 F. 4th 412, 424
(CA4 2024). Any negligence on the part of the military
would not diminish Fluor’s liability for compensatory dam-
ages.
At this point, however, we do not know whether South
Carolina law will be applied on remand. (I will discuss that
question below.) But even if the rule of joint and several
liability applies, Fluor will be free to try to show that the
military was solely responsible for petitioner’s injuries, and
Fluor has stated that it will pursue that strategy. See id.,
at 424–425 (Fluor plans to try the military as the “empty
chair”). Even if this attempt to shift all blame to the

-- 30 of 38 --

12 HENCELY v. FLUOR CORP.
ALITO , J., dissenting
Federal Government does not work, Fluor could also use ev-
idence of the military’s responsibility as a defense against
petitioner’s claim for punitive damages. See App. to Pet. for
Cert. 150a. For these reasons, adjudication of Fluor’s de-
fense is very likely to entail an evaluation of the way the
Federal Government assessed the risks and benefits of
Nayeb’s employment, and this would impermissibly intrude
on the Federal Government’s exclusive war powers.
This suit threatens many other harms to federal interests
as well. The parties may seek discovery of sensitive docu-
ments about security threats at Bagram and about the
trade-offs reflected in setting security policy. The United
States will have to decide whether public disclosure of such
documents is consistent with the Nation’s defense and for-
eign policy interests, and its only way to resist their disclo-
sure may be the invocation of the state-secrets privilege.
For good reason, the Government does not lightly assert
that privilege; it is “the option of last resort.” General Dy-
namics Corp. v. United States, 563 U. S. 478, 492 (2011).
But in this case, the Government has not yet ruled it out.
Brief for United States as Amicus Curiae 21, n. 1.
Depositions and trial testimony by military officers re-
sponsible for setting and implementing base security policy
and protocols may pose similar problems and may also in-
terfere with these officers’ current responsibilities regard-
ing urgent national security challenges. Members of the
military who investigated the bombing may likewise be de-
posed, subpoenaed to testify, and cross-examined about
their conclusions regarding Fluor’s conduct, and this could
take a toll.
All these harms will be compounded if active-duty ser-
vicemembers can bring state tort suits like petitioner’s.
Having active-duty servicemembers depose their command-
ers and question military judgments could interfere with
military discipline and the proper chain of command.

-- 31 of 38 --

13 Cite as: 608 U. S. ____ (2026)
ALITO , J., dissenting
The shadow of state tort liability may also undermine the
Government’s use of contractors to perform tasks that are
closely related to actual combat operations. See 120 F. 4th,
at 427 (petitioner has acknowledged that Fluor “was inte-
grated into combatant activities” on the base (internal quo-
tation marks omitted)); accord, 554 F. Supp. 3d, at 774. For
a variety of reasons, federal policy has increased the use of
contractors to provide security in dangerous locales. And in
doing so, contractors take directions from the military. But
“[f]aced with the specter of tort liability, . . . a contractor
would have to balance battlefield needs as dictated by mili-
tary command against what a judge or jury might say years
after the fact.” Brief for Retired Senior Military Officers as
Amici Curiae 22. Putting contractors in this conflicted po-
sition could lead to adversarial relationships with military
commanders.
Applying state tort law to events that occur on a military
base in an active warzone may also lead to vexing choice-of-
law problems—and those problems are certainly present
here. This is a diversity case filed in federal court in South
Carolina, so that State’s choice-of-law rules govern. See
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487, 496
(1941). Under those rules, “the substantive law governing
a tort action is determined by the lex loci delicti, the law of
the state in which the injury occurred.” Boone v. Boone, 345
S. C. 8, 13, 546 S. E. 2d 191, 193 (2001). Hencely’s injury
occurred in Afghanistan. So a routine application of South
Carolina’s lex loci delicti rule5 would call for a trial under
——————
5 The result might be the same under choice of law rules like the gov-
ernment-interest test or the test in the Restatement (Second) of Conflict
of Laws §145 (1969). See, e.g., M. M. v. Islamic Republic of Iran, 708
F. Supp. 3d 22, 47–48 (DC 2023); Sadiqyar v. Mission Essential, LLC,
2020 WL 5210850, *4, n. 3 (SD Ohio, Sept. 1, 2020) (“California choice of
law rules, as stated in the ‘governmental interests test,’ might permit the
application of Afghan law”).

-- 32 of 38 --

14 HENCELY v. FLUOR CORP.
ALITO , J., dissenting
Afghan law as it existed in 2016.6 Just identifying the rel-
evant principles in that body of law would be a challenge.7
And if the application of state law would impermissibly in-
trude in an exclusively federal domain, then adjudicating
this case under foreign law would be even worse.
——————
6 It is possible that a South Carolina court would not apply the lex loci
delicti rule. South Carolina courts, like those in many other States, will
not apply another jurisdiction’s law when doing so would contravene
their own State’s public policy. Boone, 345 S. C., at 13, 546 S. E. 2d, at
193. But determining whether Afghan law contravenes South Carolina’s
public policy would seem to require the identification of the relevant
principles of Afghan law. And as petitioner noted at oral argument, some
decisions “have applied Afghan law in situations like this.” Tr. of Oral
Arg. 24; see, e.g., M. M., 708 F. Supp. 3d, at 47–48 (suicide bombing in-
volving federal contractor); Haskins v. Midwest Air Traffic Control Serv.,
Inc., 2016 WL 3653531, *5 (ND Ill., July 8, 2016) (plane crash in Afghan-
istan involving American passenger). In fact, Fluor itself has had to lit-
igate claims under Afghan law. Allen v. Fluor Corp., 2017 WL 2618821,
*5 (ND Tex., June 15, 2017). And other decisions have applied Iraqi law
to similar tort claims against American military contractors. See, e.g.,
McGee v. Arkel Int’l, LLC, 671 F. 3d 539, 543 (CA5 2012); Al-Quraishi v.
Nakhla, 728 F. Supp. 2d 702, 763 (Md. 2010).
7 Despite its length (2416 Articles), the 1977 Afghan Civil Code gives
only cursory treatment to standard tort issues and omits discussion of
some key topics altogether. The Code states simply that “[i]f harm is
inflicted on another due to . . . fault, the perpetrator shall be obligated to
pay compensation.” Civil Code of the Republic of Afghanistan, Art. 776
(1977 Civil Code) (transl. by Afghanistan Legal Education Project 2014).
The Code similarly treats causation and joint and several liability in one-
sentence provisions. Arts. 783, 789. If these bare-bones provisions sup-
ply insufficient guidance for courts, then the problems multiply. Under
Afghanistan’s now apparently defunct 2004 Constitution, when no spe-
cific provision of law on a question could be found, courts were instructed
to consider “Hanafi jurisprudence”—a Sharia legal tradition—and to
rule “in a way that attains justice in the best manner.” Art. 130; accord,
1977 Civil Code, Art. 2. Cf. Center Khurasan Constr. Co. v. JS Int’l, Inc.,
2021 WL 5882342, *2 (D Md., Dec. 10, 2021) (“Ascertaining Afghan law
is no simple task”); Global Fleet Sales, LLC v. Delunas, 203 F. Supp. 3d
789, 805 (ED Mich. 2016) (“[T]he Court would be ill-equipped to apply
the law of Afghanistan”).

-- 33 of 38 --

15 Cite as: 608 U. S. ____ (2026)
ALITO , J., dissenting
III
Despite this suit’s intrusion into a domain of exclusive
federal authority, petitioner contends that his suit is not
preempted for two main reasons: (1) the Federal Tort
Claims Act’s retention of sovereign immunity for “combat-
ant activities . . . during time of war” does not apply here,
28 U. S. C. §2680(j), and (2) our decision in Boyle does not
dictate preemption. Neither argument provides a ground
for rejecting preemption.
A
The Federal Tort Claims Act (FTCA) does not help peti-
tioner because that law simply does not speak to the ques-
tion of preemption. The FTCA provides a limited waiver of
the United States’ sovereign immunity from suit but sets
out certain exceptions to that waiver, and one of these ex-
ceptions covers claims “arising out of the combatant activi-
ties of the military or naval forces, or the Coast Guard, dur-
ing time of war.” Ibid. This exception protects the Federal
Government from liability for petitioner’s injuries, but its
terms do not address the question whether state tort law
applies to a federal contractor carrying out federal wartime
policies on a military base in theater. Indeed, that provi-
sion does not even give rise to an inference of non-preemp-
tion. Since the FTCA concerns the Government’s sovereign
immunity, and since government contractors enjoy no such
immunity, that Act would be a strange place to include a
provision shielding such contractors from state-law liabil-
ity. If anything, §2680(j) lends support to preemption be-
cause it is based on the same strong federal interest that
provides the basis for preemption here: the exclusive au-
thority of the President and Congress to decide how combat-
related activities should be conducted.

-- 34 of 38 --

16 HENCELY v. FLUOR CORP.
ALITO , J., dissenting
B
Boyle, likewise, does not support petitioner’s argument.
Petitioner urges us not to “extend” the holding in Boyle,
Brief for Petitioner 31, but that argument rests on the false
premise that Boyle governs the preemption of all tort claims
against government contractors. Boyle’s holding concerns
the preemption of claims based on a particular federal in-
terest, namely, the Government’s interest in “the perfor-
mance of federal procurement contracts.” 487 U. S., at 506.
When preemption is sought on the ground that the applica-
tion of state law would impermissibly undermine that in-
terest, Boyle provides a test for determining whether appli-
cation of the state law in question would actually have that
effect. It asks whether “(1) the United States approved rea-
sonably precise specifications; (2) the equipment conformed
to those specifications; and (3) the supplier warned the
United States about the dangers in the use of the equip-
ment that were known to the supplier but not to the United
States.” Id., at 512. If all those requirements are met, Boyle
infers that any dangerous defect in the product “may well
reflect a significant policy judgment by Government offi-
cials.” Id., at 513. Therefore, imposing liability on a con-
tractor for an allegedly dangerous feature of the design the
Government required would pressure contractors to deviate
from that design, and that would undermine the Govern-
ment’s interest in “the performance of federal procurement
contracts” in accordance with its wishes. Id., at 506.
The preemption claim in this case rests on a different ba-
sis. The federal interest at stake is not the performance of
a procurement contract but the interest in making foreign-
affairs and strategic military decisions without state inter-
ference. That interest did not figure in Boyle’s preemption
analysis. As the Court notes, the claim in Boyle did not in-
volve combatant activities. Ante, at 6. It concerned a heli-
copter crash off the coast of Virginia. Although the plaintiff
was a Marine and the helicopter was designed for military

-- 35 of 38 --

Cite as: 608 U. S. ____ (2026) 17
ALITO , J., dissenting
use, the Court treated the contract under which the heli-
copter was procured like any other government contract. If
the helicopter had been designed and procured for a civilian
agency, the Court’s analysis would have been the same.
If anything, Boyle lends support to preemption here be-
cause it held state law was preempted even in the absence
of any relevant express preemption provision. And it recog-
nized that a state tort claim may be preempted if it intrudes
on an area involving a “uniquely federal interes[t].” 487
U. S., at 504. But its relevance for present purposes stops
there.
C
One other argument offered by the majority requires a
response. The majority argues that federal law does not
preempt all state-law claims “connected to a war zone.”
Ante, at 13. But the claim here is not simply one with some
sort of connection to a “zone” in which there was an ongoing
war. Rather, it is a claim that is intertwined with policy
decisions regarding the way in which the war in Afghani-
stan should have been conducted.
The Court suggests that “barring other statutory or con-
stitutional considerations, plaintiffs have been able to en-
force their legal rights even when they are violated during
war.” Ibid. (emphasis added). Here, however, it is precisely
because of “constitutional considerations” that petitioner’s
state-law claims are preempted.
In support of the proposition that a state-law tort claim
may by based on war-related conduct, the Court cites three
cases, but they are all far afield. The first, Penn Dairies,
Inc. v. Milk Control Comm’n of Pa., 318 U. S. 261 (1943),
concerned the application of a Pennsylvania milk-control
law to a base in the State. To state the obvious, state regu-
lation of milk prices for a stateside military base presents a
far lower risk of intrusion into federal war powers than

-- 36 of 38 --

18 HENCELY v. FLUOR CORP.
ALITO , J., dissenting
state regulation of defense contractors’ activities in a for-
eign warzone.
The other two cases are the products of a bygone legal
era. See Little v. Barreme, 2 Cranch 170 (1804); Mitchell v.
Harmony, 13 How. 115 (1852). Both cases predated Erie R.
Co. v. Tompkins, 304 U. S. 64 (1938), and neither applied
state law.8 Little involved the seizure of a vessel in the Car-
ibbean and appears to have applied admiralty or general
federal common law. See 2 Cranch, at 179. Mitchell con-
cerned the seizure of a merchant’s personal property in
Mexico during the Mexican-American War. 13 How., at
128. It, too, appears to have applied general federal com-
mon law. See id., at 135–136.9 Thus, neither case ad-
dresses whether the Constitution preempts the application
of state tort law to those carrying out federal wartime poli-
cies on a foreign military base.
——————
8 Additionally, both cases arose when the United States had plenary
sovereign immunity from tort suits. During that period, wronged parties
often obtained judgments against the officers who engaged in the con-
tested conduct (and did not enjoy qualified immunity), and Congress of-
ten passed private bills indemnifying the officers. See J. Pfander, Iqbal,
Bivens, and the Role of Judge-Made Law in Constitutional Adjudication,
114 Pa. St. L. Rev. 1387, 1394 (2010). That is what appears to have hap-
pened in these cases. See id., at 1393–1394 (the Court’s opinion in Little
“reflected the Court’s perception that Congress bore responsibility for in-
demnifying Captain Little”).
9 The majority says that the “source of the tort principles” in Little and
Mitchell is irrelevant because all tort claims would be preempted under
Fluor’s rule. Ante, at 14, n. 3. But I do not contend that the Constitution
bars all tort claims against Fluor, regardless of their source. Because
the Constitution makes war an exclusively federal domain, federal law—
including federal tort law—governs. State tort law, by contrast, has no
role to play in war. Little and Mitchell are consistent with that dichot-
omy because they applied federal common law, not state law. The ques-
tion of what, if any, federal tort claims Hencely could bring against Fluor
is not presented here.

-- 37 of 38 --

19 Cite as: 608 U. S. ____ (2026)
ALITO , J., dissenting
* * *
The Constitution divides authority between the Federal
Government and the States in many areas, but not when it
comes to war. War is the exclusive domain of the Federal
Government, but the Court allows state (or foreign law) to
encroach on that domain. The Constitution precludes that
encroachment, and therefore petitioner’s suit is preempted.
Because the Court holds otherwise, I respectfully dissent.

-- 38 of 38 --