Winston Hencely v. Fluor Corporation
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Opinion
USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 1 of 34
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-1994
WINSTON TYLER HENCELY,
Plaintiff – Appellant,
v.
FLUOR CORPORATION; FLUOR ENTERPRISES, INC.; FLUOR INTERCONTINENTAL, INC.; FLUOR GOVERNMENT GROUP INTERNATIONAL, INC.,
Defendants – Appellees.
Appeal from the United States District Court for the District of South Carolina, at Greenville. Bruce H. Hendricks, District Judge. (6:19-cv-00489-BHH)
Argued: March 10, 2022 Decided: October 30, 2024
Before AGEE, RUSHING, and HEYTENS, Circuit Judges.
Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Agee joined. Judge Heytens wrote an opinion concurring in part and dissenting in part.
ARGUED: Robert Henry Snyder, Jr., CANNELLA SNYDER LLC, Decatur, Georgia, for Appellant. Daniel L. Russell, Jr., COVINGTON & BURLING LLP, Washington, D.C., for Appellees. ON BRIEF: James E. Butler, Jr., BUTLER WOOTEN & PEAK LLP, Atlanta, Georgia; W. Andrew Bowen, Paul Painter, III, BOWEN PAINTER, LLC, Savannah, Georgia; Beattie Ashmore, BEATTIE B. ASHMORE, P.A., Greenville, South Carolina; D. Josev Brewer, THE LAW OFFICE OF D. JOSEV BREWER, Greenville, South Carolina, for Appellant. Andrew A. Mathias, Konstantine P. Diamaduros, NEXSEN USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 2 of 34
PRUET, LLC, Greenville, South Carolina; Raymond B. Biagini, COVINGTON & BURLING LLP, Washington, D.C., for Appellees.
2 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 3 of 34
RUSHING, Circuit Judge:
This lawsuit arises out of a 2016 suicide bombing at the United States military base
at Bagram Airfield in Afghanistan. The bomber was employed on base by a private
military contractor, which provided support services to the armed forces. He is suspected
to have constructed an explosive vest while working unsupervised during his night shift
and, on the morning of the attack, made his way undetected to a crowded location where
he detonated the device.
An American soldier wounded in the attack sued the contractor under South
Carolina law, alleging that the contractor’s supervision, entrustment, and retention of the
bomber were negligent. He also alleged the contractor breached its contract with the U.S.
Government.
The district court granted judgment to the contractor on all claims. The court
concluded that federal law preempted the plaintiff’s tort claims and that he was not a third-
party beneficiary entitled to enforce the Government’s contract. After careful review, we
affirm.
I.
A.
The plaintiff, Specialist Winston Tyler Hencely, is a former soldier in the U.S.
Army. In 2016, Hencely was stationed at Bagram Airfield, formerly the largest U.S.
military base in Afghanistan, as part of Operation Freedom’s Sentinel.
The defendant, Fluor Corporation, had a contract with the U.S. Department of
Defense to provide base life support services and theater transportation mission functions
3 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 4 of 34
to U.S. and coalition forces in Afghanistan, including at Bagram Airfield. These services
included, among other things, construction, facilities management, laundry, food,
recreation, and, relevant here, vehicle maintenance and hazardous materials management.
The suicide bomber, Ahmad Nayeb, was an Afghan national. He was employed by
a Fluor subcontractor and worked the night shift at the hazardous materials section of the
non-tactical vehicle yard at Bagram Airfield. Nayeb was hired pursuant to the “Afghan
First” program. This program was part of the United States’ counterinsurgency strategy in
Afghanistan, with the goal of “developing the Afghan economy” and fostering a
“moderate, stable, and representative Afghanistan capable of controlling and governing its
territory.” J.A. 3041. One aspect of the program involved training and employing Afghans
for “jobs being performed by contracted personnel, [Department of Defense] civilians, and
even US military personnel.” J.A. 3042. In accordance with the Afghan First program,
Fluor’s contract with the U.S. Government obligated it to hire Afghans—referred to as
“Local Nationals” or “Host Nationals”—“to the maximum extent possible.” J.A. 3048
¶ 01.07(b). Fluor subcontracted with a labor broker to hire Local Nationals, including
Nayeb, to work at Bagram Airfield. The Army sponsored Nayeb’s hiring.
B.
By way of background, “[s]ince the United States began its military operations in
Afghanistan and Iraq in 2001 and 2003, respectively, the U.S. military has depended
heavily on contractors to support its mission.” In re: KBR, Inc., Burn Pit Litig., 893 F.3d
241, 253 (4th Cir. 2018). Indeed, contractors often comprised the majority of the U.S.
Department of Defense’s presence in Afghanistan. See Heidi M. Peters, CONG. RSCH.
4 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 5 of 34
SERV., RL44116, Department of Defense Contractor and Troop Levels in Afghanistan and
Iraq: 2007–2020 1 (2021). The Army’s contracting program is called the Logistics Civil
Augmentation Program, or “LOGCAP” for short. This case involves the fourth generation
of the program, LOGCAP IV. The military executes LOGCAP IV through “task orders,”
which incorporate “statements of work” defining a contractor’s responsibilities.
The Department of Defense entered its LOGCAP IV contract with Fluor in 2007.
Two years later, Fluor was awarded Task Order 0005, which included Fluor’s work in the
eastern and northern sections of Afghanistan. Task Order 0005 was governed by a
Performance Work Statement (PWS). As relevant here, the PWS required Fluor to
“provide all necessary personnel, supervision, [and] management . . . required in support
of this [Task Order].” J.A. 3053 ¶ 03.03(a). The PWS elsewhere stated that Fluor “shall
provide the necessary personnel with appropriate skills” to perform the contracted services;
that Fluor “is responsible for ensuring all personnel supporting this [Task Order] comply
with the standards of conduct” and all contract terms and conditions; and that Fluor “shall
provide the necessary supervision for personnel required to perform this contract.” J.A.
3048 ¶ 01.07(a).
As mentioned, the PWS also obligated Fluor to “hire [Local National] personnel
and Subcontractors to the maximum extent possible in performance of this contract.” J.A.
3048 ¶ 01.07(b). Fluor was “responsible for oversight of such personnel or Subcontractors
to ensure compliance with all terms of the [contract].” J.A. 3048 ¶ 01.07(b).
5 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 6 of 34
In addition to these contractual obligations, Fluor was required to comply with the
military’s force protection and base security policies at Bagram Airfield. We turn to those
policies next.
C.
Base security and force protection were the military’s responsibility at Bagram
Airfield. The military controlled base entry and exit, as well as security inside the
perimeter. Regarding Local Nationals in particular, the military in some cases identified
and sponsored certain individuals for training and employment at Bagram Airfield and in
all cases vetted and approved each Local National for employment on base. The military
established screening protocols which required that Local Nationals be searched before
entering the base at Entry Control Points.
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USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 1 of 34
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-1994
WINSTON TYLER HENCELY,
Plaintiff – Appellant,
v.
FLUOR CORPORATION; FLUOR ENTERPRISES, INC.; FLUOR INTERCONTINENTAL, INC.; FLUOR GOVERNMENT GROUP INTERNATIONAL, INC.,
Defendants – Appellees.
Appeal from the United States District Court for the District of South Carolina, at Greenville. Bruce H. Hendricks, District Judge. (6:19-cv-00489-BHH)
Argued: March 10, 2022 Decided: October 30, 2024
Before AGEE, RUSHING, and HEYTENS, Circuit Judges.
Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Agee joined. Judge Heytens wrote an opinion concurring in part and dissenting in part.
ARGUED: Robert Henry Snyder, Jr., CANNELLA SNYDER LLC, Decatur, Georgia, for Appellant. Daniel L. Russell, Jr., COVINGTON & BURLING LLP, Washington, D.C., for Appellees. ON BRIEF: James E. Butler, Jr., BUTLER WOOTEN & PEAK LLP, Atlanta, Georgia; W. Andrew Bowen, Paul Painter, III, BOWEN PAINTER, LLC, Savannah, Georgia; Beattie Ashmore, BEATTIE B. ASHMORE, P.A., Greenville, South Carolina; D. Josev Brewer, THE LAW OFFICE OF D. JOSEV BREWER, Greenville, South Carolina, for Appellant. Andrew A. Mathias, Konstantine P. Diamaduros, NEXSEN USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 2 of 34
PRUET, LLC, Greenville, South Carolina; Raymond B. Biagini, COVINGTON & BURLING LLP, Washington, D.C., for Appellees.
2 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 3 of 34
RUSHING, Circuit Judge:
This lawsuit arises out of a 2016 suicide bombing at the United States military base
at Bagram Airfield in Afghanistan. The bomber was employed on base by a private
military contractor, which provided support services to the armed forces. He is suspected
to have constructed an explosive vest while working unsupervised during his night shift
and, on the morning of the attack, made his way undetected to a crowded location where
he detonated the device.
An American soldier wounded in the attack sued the contractor under South
Carolina law, alleging that the contractor’s supervision, entrustment, and retention of the
bomber were negligent. He also alleged the contractor breached its contract with the U.S.
Government.
The district court granted judgment to the contractor on all claims. The court
concluded that federal law preempted the plaintiff’s tort claims and that he was not a third-
party beneficiary entitled to enforce the Government’s contract. After careful review, we
affirm.
I.
A.
The plaintiff, Specialist Winston Tyler Hencely, is a former soldier in the U.S.
Army. In 2016, Hencely was stationed at Bagram Airfield, formerly the largest U.S.
military base in Afghanistan, as part of Operation Freedom’s Sentinel.
The defendant, Fluor Corporation, had a contract with the U.S. Department of
Defense to provide base life support services and theater transportation mission functions
3 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 4 of 34
to U.S. and coalition forces in Afghanistan, including at Bagram Airfield. These services
included, among other things, construction, facilities management, laundry, food,
recreation, and, relevant here, vehicle maintenance and hazardous materials management.
The suicide bomber, Ahmad Nayeb, was an Afghan national. He was employed by
a Fluor subcontractor and worked the night shift at the hazardous materials section of the
non-tactical vehicle yard at Bagram Airfield. Nayeb was hired pursuant to the “Afghan
First” program. This program was part of the United States’ counterinsurgency strategy in
Afghanistan, with the goal of “developing the Afghan economy” and fostering a
“moderate, stable, and representative Afghanistan capable of controlling and governing its
territory.” J.A. 3041. One aspect of the program involved training and employing Afghans
for “jobs being performed by contracted personnel, [Department of Defense] civilians, and
even US military personnel.” J.A. 3042. In accordance with the Afghan First program,
Fluor’s contract with the U.S. Government obligated it to hire Afghans—referred to as
“Local Nationals” or “Host Nationals”—“to the maximum extent possible.” J.A. 3048
¶ 01.07(b). Fluor subcontracted with a labor broker to hire Local Nationals, including
Nayeb, to work at Bagram Airfield. The Army sponsored Nayeb’s hiring.
B.
By way of background, “[s]ince the United States began its military operations in
Afghanistan and Iraq in 2001 and 2003, respectively, the U.S. military has depended
heavily on contractors to support its mission.” In re: KBR, Inc., Burn Pit Litig., 893 F.3d
241, 253 (4th Cir. 2018). Indeed, contractors often comprised the majority of the U.S.
Department of Defense’s presence in Afghanistan. See Heidi M. Peters, CONG. RSCH.
4 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 5 of 34
SERV., RL44116, Department of Defense Contractor and Troop Levels in Afghanistan and
Iraq: 2007–2020 1 (2021). The Army’s contracting program is called the Logistics Civil
Augmentation Program, or “LOGCAP” for short. This case involves the fourth generation
of the program, LOGCAP IV. The military executes LOGCAP IV through “task orders,”
which incorporate “statements of work” defining a contractor’s responsibilities.
The Department of Defense entered its LOGCAP IV contract with Fluor in 2007.
Two years later, Fluor was awarded Task Order 0005, which included Fluor’s work in the
eastern and northern sections of Afghanistan. Task Order 0005 was governed by a
Performance Work Statement (PWS). As relevant here, the PWS required Fluor to
“provide all necessary personnel, supervision, [and] management . . . required in support
of this [Task Order].” J.A. 3053 ¶ 03.03(a). The PWS elsewhere stated that Fluor “shall
provide the necessary personnel with appropriate skills” to perform the contracted services;
that Fluor “is responsible for ensuring all personnel supporting this [Task Order] comply
with the standards of conduct” and all contract terms and conditions; and that Fluor “shall
provide the necessary supervision for personnel required to perform this contract.” J.A.
3048 ¶ 01.07(a).
As mentioned, the PWS also obligated Fluor to “hire [Local National] personnel
and Subcontractors to the maximum extent possible in performance of this contract.” J.A.
3048 ¶ 01.07(b). Fluor was “responsible for oversight of such personnel or Subcontractors
to ensure compliance with all terms of the [contract].” J.A. 3048 ¶ 01.07(b).
5 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 6 of 34
In addition to these contractual obligations, Fluor was required to comply with the
military’s force protection and base security policies at Bagram Airfield. We turn to those
policies next.
C.
Base security and force protection were the military’s responsibility at Bagram
Airfield. The military controlled base entry and exit, as well as security inside the
perimeter. Regarding Local Nationals in particular, the military in some cases identified
and sponsored certain individuals for training and employment at Bagram Airfield and in
all cases vetted and approved each Local National for employment on base. The military
established screening protocols which required that Local Nationals be searched before
entering the base at Entry Control Points. Inside the perimeter, the military employed
bomb-sniffing dogs and random searches of Local Nationals and physical areas throughout
the base. The military also conducted periodic counterintelligence interviews of Local
Nationals to determine whether they should continue to receive access to the base.
As part of its security and force protection measures, the military established and
enforced protocols regarding supervision of the Local National workforce on base. These
protocols were set forth in an official policy document—the Bagram Airfield Badge,
Screening, and Access Policy—and subject to change at the discretion of the Bagram
Support Group (BSG) Commander. Fluor was required to follow the military’s protocols
for supervising its Local National employees.
Pursuant to this policy, the Force Protection Screening Cell, under the direction of
the BSG Commander, granted base-access badges to non-uniformed personnel, including
6 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 7 of 34
Local Nationals. The badge color determined the wearer’s level of access and need for
supervision while on base. Red badges were the default for Local Nationals and provided
the wearer with the least amount of access. According to the policy in effect at the time of
the suicide bombing, a Local National with a red badge required an escort in all areas of
Bagram Airfield except his work facility. Escorts were required to “continuously monitor”
the individuals they were escorting, remaining “in close proximity” and “in constant view”
of them. J.A. 2892–2893 (internal quotation marks omitted). The BSG Commander could
authorize qualifying Local Nationals to hold a yellow badge, which represented an increase
in base access. Yellow badge holders were authorized to travel unescorted at Bagram
Airfield and were permitted to escort up to ten other Local Nationals. 1
The military’s security policies also regulated the items that Local Nationals were
permitted to use while on base. For example, the military prohibited Local Nationals from
possessing cameras or using networked computers, and the military forbade Local
Nationals from carrying cellular phones without permission from the BSG Commander.
The policies did not, however, restrict Local Nationals’ access to tools.
For obvious reasons, the military required Fluor’s strict compliance with its base
security and force protection policies, including the badge and escort protocols for
supervising Local National employees. The military operated a surveillance system
1 Within weeks of the attack, the military changed its base security protocols. Among other things, the updated policy eliminated yellow badges, making restrictive red badges the only authorized badge for Local Nationals, and it prohibited Local Nationals from escorting other Local Nationals at Bagram Airfield. The military also changed the policy to require constant escort of red badge holders, “eliminat[ing] the exemption that allowed Local Nationals to operate unescorted within their workplace.” J.A. 2953. 7 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 8 of 34
throughout Bagram Airfield to monitor, among other things, Fluor’s compliance with the
escort protocols. And on a regular basis, the military conducted feedback sessions to
compare Fluor’s self-reporting with the military’s surveillance and give Fluor an
opportunity to correct any deficient performance. It is undisputed that, before the bombing,
Fluor had proposed providing additional escort supervision of Local Nationals while at
their work facilities, but the Army rejected that proposal. See, e.g., J.A. 3698 (explaining
that “the price tag was going to be excessive”).
D.
The bombing occurred early in the morning on November 12, 2016, a few hundred
meters from the starting line for a Veterans Day 5K race at Bagram Airfield. Hencely and
others observed Nayeb approaching and confronted him. Nayeb then detonated an
explosive vest he was wearing under his clothes, killing himself and five others and
severely wounding seventeen more, including Hencely. The Taliban took credit for the
attack, claiming it had been planned for months.
After the bombing, the military conducted a formal investigation under Army
Regulation 15-6, or “AR 15-6” for short. The military issued its AR 15-6 report on
December 31, 2016. A heavily redacted version of that report was produced in this
litigation. 2
2 Hencely moved in limine for an order deeming the redacted AR 15-6 report as admissible into evidence. Fluor opposed the motion, arguing among other things that the report is unreliable, contains hearsay, and is materially incomplete. The district court denied Hencely’s motion without prejudice, concluding it could not “pass on the admissibility of a government report that neither it, nor the parties have seen in a form that
8 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 9 of 34
The AR 15-6 investigation revealed that the military knew Nayeb was a former
Taliban member. Believing Nayeb had renounced his ties to the insurgency, the military
had sponsored him for employment as an effort at reintegration. The military vetted Nayeb
and granted him access to Bagram Airfield with a red badge. The military also conducted
several counterintelligence screening interviews with Nayeb over his five years of
employment on base. According to the AR 15-6 report, Nayeb’s answers to
counterintelligence questions appeared “trained and coached” during an interview in
March 2016, several months before the bombing, which in hindsight was a “missed
indicator” of the threat Nayeb posed to the military’s operations at Bagram Airfield. J.A.
2943. The investigation further revealed that, the night before the bombing, intelligence
indicated that an attack was imminent. Fluor did not have access to this military
intelligence, nor did the military inform Fluor about Nayeb’s Taliban ties.
According to the AR 15-6 investigation, Nayeb likely built his bomb vest while
inside the military base, working as the sole employee on the night shift at the hazardous
materials work center in the non-tactical vehicle yard, with only sporadic supervision. He
likely smuggled homemade explosives through security onto the base and then used
supplemental materials and tools available on base to construct the bomb vest. For
example, Nayeb checked out tools unassociated with his duties in the hazardous materials
work center, including a tool called a multimeter, which measures voltage, current, and
resistance.
is even close to complete.” J.A. 3907. Hencely did not appeal that ruling. Both parties nevertheless discuss the substance of the AR 15-6 report on appeal. 9 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 10 of 34
On the morning of the attack, Nayeb was supposed to have been escorted by Fluor
personnel on a bus ride to an Entry Control Point, where the military would then escort
him off base. At the non-tactical vehicle yard, a Local National coworker signed out Nayeb
and the other Local National employees at the end of the night shift. At the bus, a Local
National with a yellow badge and escort responsibilities vouched that all Local Nationals,
including Nayeb, were accounted for and the bus could leave. But according to the
AR 15-6 report, Nayeb told a Local National coworker that he would miss the bus because
he needed to attend a hazardous materials class, which was a lie. The report concluded that
Nayeb likely did not board the bus but instead walked for 53 minutes, undetected, to the
blast site.
In its AR 15-6 report, the military determined “the primary contributing factor” to
the attack was “Fluor’s complacency and its lack of reasonable supervision of its
personnel.” J.A. 2917. The report criticized Fluor for lending Nayeb tools his job didn’t
require, not adequately supervising Nayeb while he worked in the hazardous materials
work center, and retaining Nayeb despite reported instances of sleeping on the job and
absences without authority. The report also faulted Fluor for deficient performance of its
escort duties between the non-tactical vehicle yard and the Entry Control Point. The Army
concluded that Fluor “did not comply” with its contractual obligations regarding
“supervision of local national . . . labor and adherence to escort requirements,” but declined
to terminate Fluor’s contract. J.A. 3293.
10 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 11 of 34
E.
Hencely sued Fluor in the U.S. District Court for the District of South Carolina. His
amended complaint is the operative pleading. It alleges that under South Carolina law
Fluor was negligent in supervising Nayeb at his worksite and escorting Nayeb the morning
of the attack, negligent in entrusting tools like a multimeter to Nayeb, and negligent in
retaining Nayeb despite the “unreasonabl[e] danger[]” he presented. J.A. 1661. The
amended complaint further alleges vicarious liability, negligent control, and breach of
contract, specifically breach of the LOGCAP IV contract, Task Order 0005, and the PWS.
In addition to punitive damages, the amended complaint seeks compensatory damages for
medical expenses, pain and suffering, and lost income. Fluor denied liability and asserted
several defenses faulting the military for Hencely’s injuries, including contributory and
comparative negligence.
Three dispositive motions filed by Fluor are relevant to this appeal. First, Fluor
moved to dismiss all of Hencely’s claims as nonjusticiable under the political question
doctrine. The district court denied that motion and ordered discovery to proceed. See
Hencely v. Fluor Corp., Inc., No. 6:19-cv-00489-BHH, 2020 WL 2838687 (D.S.C. June 1,
2020). Subsequently, Fluor moved for judgment on the pleadings regarding Hencely’s
breach of contract claim. The district court granted that motion, agreeing with Fluor that
Hencely is not a third-party beneficiary of LOGCAP IV or the related agreements. See
Hencely v. Fluor Corp., No. 6:19-cv-00489-BHH, 2021 WL 3604781 (D.S.C. Aug. 13,
2021). And finally, Fluor moved for summary judgment on all remaining claims, arguing
that the Federal Tort Claims Act’s “combatant activities” exception preempts the state tort
11 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 12 of 34
laws undergirding those claims. The district court agreed and granted summary judgment
in Fluor’s favor. See Hencely v. Fluor Corp., 554 F. Supp. 3d 770 (D.S.C. 2021).
Hencely timely appealed the orders dismissing his claims. In addition to defending
the district court’s judgments, Fluor also reasserts its position that the political question
doctrine bars judicial resolution of Hencely’s complaint. We have appellate jurisdiction
under 28 U.S.C. § 1291.
II.
We begin with the political question doctrine, which implicates our authority to
decide this dispute. 3 The political question doctrine is a “narrow exception” to the general
rule that “the Judiciary has a responsibility to decide cases properly before it.” Zivotofsky
ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 194–195 (2012). A controversy involves a
political question “‘where there is a textually demonstrable constitutional commitment of
the issue to a coordinate political department’” or “‘a lack of judicially discoverable and
manageable standards for resolving it.’” Id. at 195 (quoting Nixon v. United States, 506
U.S. 224, 228 (1993)).
“‘Most military decisions are matters solely within the purview of the executive
branch’” and therefore present nonjusticiable political questions. In re: KBR, Inc., Burn
Pit Litig., 893 F.3d 241, 259 (4th Cir. 2018) (quoting Al Shimari v. CACI Premier Tech.,
3 Our Court has characterized the political question doctrine as an issue of subject matter jurisdiction. See Al Shimari v. CACI Premier Tech., Inc., 840 F.3d 147, 154–155 (4th Cir. 2016); Taylor v. Kellogg Brown & Root Servs., Inc., 658 F.3d 402, 407 n.9 (4th Cir. 2011). “Jurisdictional defects can be raised at any time,” Stewart v. Iancu, 912 F.3d 693, 701 (4th Cir. 2019), and Hencely does not object to Fluor raising the matter in its Response Brief rather than filing a cross-appeal from the district court’s unfavorable ruling. 12 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 13 of 34
Inc., 758 F.3d 516, 533 (4th Cir. 2014)). “[T]he Constitution delegates authority over
military affairs to Congress and to the President as Commander in Chief.” Lebron v.
Rumsfeld, 670 F.3d 540, 548 (4th Cir. 2012). “It contemplates no comparable role for the
judiciary,” and “judicial review of military decisions would stray from the traditional
subjects of judicial competence.” Id.
Given the modern military’s reliance on contractors to support its mission, we have
recognized that “a military contractor acting under military orders can also invoke the
political question doctrine as a shield under certain circumstances.” Burn Pit Litig., 893
F.3d at 259. But “acting under orders of the military does not, in and of itself, insulate the
claim from judicial review.” Taylor v. Kellogg Brown & Root Servs., Inc., 658 F.3d 402,
411 (4th Cir. 2011). We have held that a suit against a military contractor raises a
nonjusticiable political question if either (1) the military exercised direct control over the
contractor, or (2) “national defense interests were closely intertwined with military
decisions governing the contractor’s conduct, such that a decision on the merits of the claim
would require the judiciary to question actual, sensitive judgments made by the
military.” Al Shimari, 840 F.3d at 155 (internal quotation marks omitted); see Taylor, 658
F.3d at 411.
Under the first prong, “a suit against a military contractor presents a political
question if the military exercised direct control over the contractor,” meaning the military’s
control was “plenary” and “actual.” Burn Pit Litig., 893 F.3d at 260. The military’s control
is not plenary if the military “provides the contractor with general guidelines” yet leaves
the contractor “discretion to determine the manner in which the contractual duties would
13 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 14 of 34
be performed.” Id. (internal quotation marks omitted). Instead, to be plenary, the
“military’s control over the government contractor must rise to the level of the military’s
control over the convoy in” Carmichael v. Kellogg, Brown & Root Services, Inc., 572 F.3d
1271 (11th Cir. 2009). Burn Pit Litig., 893 F.3d at 260. In Carmichael, a fuel truck driven
by a contractor employee as part of a military convoy on a fuel resupply mission rolled
over and injured the plaintiff. See Carmichael, 572 F.3d at 1278. The Eleventh Circuit
“held that the military’s control was plenary, because ‘the military decided the particular
date and time for the convoy’s departure; the speed at which the convoy was to travel; the
decision to travel along a particular route[;] how much fuel was to be transported; the
number of trucks necessary for the task; the speed at which the vehicles would travel; the
distance to be maintained between vehicles; and the security measures that were to be
taken.’” Burn Pit Litig., 893 F.3d at 260 (quoting Carmichael, 572 F.3d at 1281).
Applying that standard in Burn Pit Litigation, our Court concluded that the military’s
control over a contractor’s waste management was plenary because the contractor “had
little to no discretion in choosing how to manage the waste.” Id. at 261. “The military
mandated the use of burn pits” and controlled “where to construct the burn pits, what could
or could not be burned, when [the contractor] could operate the burn pits, how high the
flames should be, and how large each burn should be.” Id. In other words, every “‘critical
determination[] was made exclusively by the military,’” such that the contractor’s
decisions were “‘de facto military decisions.’” Id. (first quoting Carmichael, 572 F.3d at
1282, then quoting Taylor, 658 F.3d at 410).
14 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 15 of 34
The record here does not satisfy our rigorous standard for plenary control. Even
though the military dictated the security measures for Bagram Airfield, required Fluor to
comply with military protocols concerning the supervision and escort of Local Nationals
on base, and decided which Local Nationals Fluor could retain, the level of control the
military exercised over Fluor’s conduct does not to rise to that of the convoy in Carmichael.
For example, viewing the evidence in the light most favorable to Hencely, the decision to
lend Nayeb a multimeter from Fluor’s tool room was not “made exclusively by the
military” or a “de facto military decision.” Id. (internal quotation marks omitted). On the
current record, therefore, the military’s control cannot be considered “plenary,” and we
need not separately address whether it was “actual.” See Burn Pit Litig., 893 F.3d at 260.
Under the second prong of our Circuit’s test, we must dismiss a case as
nonjusticiable if “national defense interests were closely intertwined with military
decisions governing the contractor’s conduct, such that a decision on the merits of the claim
would require the judiciary to question actual, sensitive judgments made by the military.”
Al Shimari, 840 F.3d at 155 (internal quotation marks omitted). In making this assessment,
we “look beyond the complaint, and consider how [Hencely] might prove his claim and
how [Fluor] would defend.” Taylor, 658 F.3d at 409 (internal quotation marks and brackets
omitted).
We have held that a contractor’s “causation defense”—by which it argues that
military decisions, not the contractor’s actions, caused the plaintiff’s injury—“does not
require evaluation of the military’s decision making unless (1) the military caused the
[plaintiff’s] injuries, at least in part, and (2) the [plaintiff] invoke[s] a proportional-liability
15 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 16 of 34
system that allocates liability based on fault.” In re KBR, Inc., Burn Pit Litig., 744 F.3d
326, 340–341 (4th Cir. 2014). In other words, a defense that lays the blame for the
plaintiff’s injuries on military decisions does not raise a political question if it “does not
necessarily require the district court to evaluate the propriety of” those military judgments.
Id. at 340. And a district court is not inevitably required to evaluate the reasonableness of
military judgments if the underlying state law (which forms the basis for the negligence
claims and defenses) does not actually require the court to assign fault to the military’s
actions. Compare id. (reasoning that contractor’s “proximate causation defense” would
not necessarily require court to evaluate the reasonableness of military decisions), with
Taylor, 658 F.3d at 411 (concluding that contributory negligence defense would
“invariably require the Court to decide whether the Marines made a reasonable decision,”
and therefore raised a political question (internal quotation marks and ellipsis omitted)).
Fluor argues that its “causation defense—i.e., trying the Military as the ‘empty
chair’ and establishing that pivotal Military judgments caused Plaintiff’s injuries”—would
require the factfinder to evaluate the reasonableness of military decisions. Response Br.
50. Our precedent compels us to conclude otherwise. South Carolina law, which the
parties have assumed applies to Hencely’s negligence claims and to Fluor’s defenses, 4
prohibits a jury from assigning fault to an immune nonparty. See Machin v. Carus Corp.,
4 On appeal, Fluor faults the district court for “assuming application of South Carolina law without conducting a choice-of-law analysis,” which it says would “lead to Afghan law” as the law of the place where the injury occurred. Response Br. 52–53. But Fluor itself has invoked South Carolina law throughout this litigation. And Fluor has not provided any indication in its brief how the outcome would be different under Afghan law. 16 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 17 of 34
799 S.E.2d 468, 478 (S.C. 2017) (“[A] nonparty may be included in the allocation of fault
only where such person or entity is a ‘potential tortfeasor,’ which, under our law, excludes
[a third party] who is immune from suit[.]”). And it is undisputed that the military is an
immune nonparty. See 28 U.S.C. § 2680(j); Feres v. United States, 340 U.S. 135, 146
(1950) (“[T]he Government is not liable under the Federal Tort Claims Act for injuries to
servicemen where the injuries arise out of or are in the course of activity incident to
service.”); Brame v. Garner, 101 S.E.2d 292, 294 (S.C. 1957) (acknowledging that the
military is immune from suit). Accordingly, although Fluor’s defense may require the
district court “to decide if the military made decisions” that caused Hencely’s injuries, it
“does not necessarily require the district court to evaluate the propriety of [those]
judgments” because the court cannot assign fault to the military. Burn Pit Litig., 744 F.3d
at 340.
Fluor emphasizes that courts lack standards to evaluate “when it is ‘reasonable’ to
allow a known terrorist inside a secure Military facility,” or “what level of supervision or
escorting is ‘reasonable’ given the Military’s competing demands, resource limits, and
policy objectives.” Response Br. 49; cf., e.g., Taylor, 658 F.3d at 412 n.13 (“[W]e have
no discoverable and manageable standards for evaluating how electric power is supplied
to a military base in a combat theatre or who should be authorized to work on the generators
supplying that power.”); Tiffany v. United States, 931 F.2d 271, 279 (4th Cir. 1991)
(“Judges have no ‘judicially discoverable and manageable standards for resolving’ whether
necessities of national defense outweigh risks to civilian aircraft.” (quoting Baker v. Carr,
369 U.S. 186, 217 (1962)). While it is certainly true that courts are not equipped or
17 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 18 of 34
authorized to evaluate the military’s “delicate appraisals of relative dangers,” Tiffany, 931
F.2d at 278, it does not yet appear that litigating Hencely’s negligence claims and Fluor’s
defenses would “invariably require” the factfinder to judge whether the military’s decisions
were reasonable, as opposed to evaluating only whether those decisions caused Hencely’s
injuries, Burn Pit Litig., 744 F.3d at 340 (internal quotation mark omitted). That is where
our Court has drawn the line for justiciability under this second prong of our military
contractor political question test.
In sum, while the question may be closer than the district court’s pre-discovery
ruling suggested, we are not convinced that deciding Hencely’s case would cause the court
to “inevitably be drawn into a reconsideration of military decisions.” Lane v. Halliburton,
529 F.3d 548, 563 (5th Cir. 2008). The political question doctrine therefore poses no bar
to judicial review of the merits of this dispute.
III.
We turn now to the heart of this appeal: federal preemption of Hencely’s negligence
claims. The district court held that uniquely federal interests represented by the Federal
Tort Claims Act’s combatant activities exception displaced Hencely’s state-law claims for
negligent supervision, entrustment, escort, and retention. We review the district court’s
judgment de novo, applying the same summary judgment standard that court was required
to apply. Calloway v. Lokey, 948 F.3d 194, 201 (4th Cir. 2020); see also Fed. R. Civ. P.
56(a).
18 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 19 of 34
In the Federal Tort Claims Act (FTCA), “Congress authorized damages to be
recovered against the United States for harm caused by the negligent or wrongful conduct
of Government employees, to the extent that a private person would be liable under the law
of the place where the conduct occurred.” Boyle v. United Tech. Corp., 487 U.S. 500, 511
(1988); see 28 U.S.C. § 1346(b). It exempted from this consent to suit, however, “[a]ny
claim arising out of the combatant activities of the military or naval forces, or the Coast
Guard, during time of war.” 28 U.S.C. § 2680(j). By their terms, these provisions do not
apply to government contractors. 28 U.S.C. § 2671. Nevertheless, the combatant activities
exception reflects an important federal policy of “foreclos[ing] state regulation of the
military’s battlefield conduct and decisions.” Burn Pit Litig., 744 F.3d at 348 (internal
quotation marks omitted).
As the Supreme Court has explained, in areas involving “uniquely federal interests,”
an FTCA exception can demonstrate “the potential for, and suggest[] the outlines of,
significant conflict between federal interests and state law” sufficient to warrant federal
preemption even absent a statutory directive or direct conflict. Boyle, 487 U.S. at 504, 507,
511 (internal quotation marks omitted). In Boyle, for instance, the Supreme Court held that
the policy reflected in the FTCA’s discretionary function exception, 28 U.S.C. § 2680(a),
preempted and barred a plaintiff’s state-law design-defect claim against the manufacturer
of a military helicopter built for the United States. 487 U.S. at 512–513.
Recognizing the conflict between federal and state interests in the realm of warfare,
several federal circuit courts, including our own, have extended Boyle’s logic to the
19 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 20 of 34
FTCA’s combatant activities exception. See Saleh v. Titan Corp., 580 F.3d 1, 9 (D.C. Cir.
2009); Badilla v. Midwest Air Traffic Control Serv., Inc., 8 F.4th 105, 127–128 (2d Cir.
2021); Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458, 480–481 (3d Cir. 2013);
Burn Pit Litig., 744 F.3d 326, 350–351 (4th Cir. 2014); Koohi v. United States, 976 F.2d
1328, 1337 (9th Cir. 1992). As our Court has explained, however, the conflict between
federal and state interests in this context “is much broader” than the discrete inconsistency
between federal and state duties in Boyle. Burn Pit Litig., 744 F.3d at 349 (internal
quotation marks omitted). “Instead, when state tort law touches the military’s battlefield
conduct and decisions, it inevitably conflicts with the combatant activity exception’s goal
of eliminating such regulation of the military during wartime.” Id. In other words, when
it comes to warfare, “‘the federal government occupies the field’” and “‘its interest in
combat is always precisely contrary to the imposition of a non-federal tort duty.’” Id.
(quoting Saleh, 580 F.3d at 7).
We have adopted the D.C. Circuit’s test in Saleh to ensure preemption when state
tort laws would clash with the federal interest underlying the combatant activities
exception. See Burn Pit I, 744 F.3d at 351. Pursuant to this test, “‘[d]uring wartime, where
a private service 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.’” Id. at 349 (quoting Saleh, 580 F.3d at 9).
The military “need not maintain ‘exclusive operational control’ over the contractor
for the government to have an interest in immunizing a military operation from suit.” Id.
(quoting Saleh, 580 F.3d at 8–9). This test therefore allows “the contractor to exert ‘some
20 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 21 of 34
limited influence over an operation,’ as long as the military ‘retain[s] command
authority.’” 5 Id. (quoting Saleh, 580 F.3d at 8–9). At the same time, it leaves open the
possibility that a contractor might “supply[] services in such a discrete manner” that those
services could be judged by state tort law without touching the military’s battlefield
conduct and decisions, analogous to a contractor who, in its “sole discretion,” chooses
specifications for a product it then sells to the Government. Saleh, 580 F.3d at 9.
Hencely does not contest that, applying this Court’s precedent, Fluor was
“integrated into combatant activities” at Bagram Airfield. Burn Pit Litig., 744 F.3d at 351.
We view “combatant activities” through a “broad[] lens” to include “not only physical
violence, but activities both necessary to and in direct connection with actual hostilities.”
Id. at 351 (internal quotation marks omitted). For example, in Burn Pit Litigation, we held
that “waste management and water treatment functions to aid military personnel in a
combat area [are] undoubtedly” combatant activities. Id. We agree with Hencely that
Fluor was engaged in combatant activities at Bagram Airfield and that the particular
activity at issue in Hencely’s lawsuit—supervising Local National employees on a military
base in a theater of war—so qualifies.
We also conclude that “the military retained command authority” over Fluor’s
supervision of Local National employees on the base. Id. (internal quotation marks and
5 The military’s ultimate command authority over a combatant activity for purposes of preemption is accordingly distinguished from direct plenary control as envisioned by our political question jurisprudence, under which the contractor’s determinations are actual or de facto military decisions. 21 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 22 of 34
brackets omitted). To begin, the Army instructed Fluor to hire Local Nationals as part of
advancing the military’s counterinsurgency strategy in Afghanistan, specifically the
Afghan First Program. The military then reserved for itself decisions about containing the
security threat posed by hiring Local Nationals to work on the military base. In particular,
the Army decided which Local Nationals could access the base for employment and the
Army dictated when, where, and how Fluor must escort and supervise each of those Local
National employees.
The military, independent of Fluor, screened and approved Local Nationals for
employment. The military vetted Nayeb and, knowing his history as a Taliban member,
sponsored him for employment and granted him access to Bagram Airfield as a strategic
effort at reintegration. The military periodically conducted security screening interviews
of Local Nationals to determine whether their base access privileges should be terminated.
The military interviewed Nayeb for security purposes at least seven times before and during
his employment and each time decided he should retain base access for continued
employment. Those judgments belonged to the military alone.
Like with hiring, the military controlled base security, including entry and exit.
Local Nationals could not enter the base without a military-issued badge. The military
required physical searches and biometric screening of Local Nationals entering the base at
Entry Control Points. Inside the perimeter, the military used bomb-sniffing dogs and
performed random searches of Local Nationals and physical areas throughout the base.
When Local Nationals arrived back at Entry Control Points after their shifts, the military
22 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 23 of 34
escorted them off the base. As Hencely’s counsel put it, “the military had effective
command over security on the base.” Oral Argument at 40:10.
As part of its mandate over base security, the military exercised comprehensive
command over Fluor’s supervision of Local Nationals’ on-base movements and activities.
Military protocols specified the items Local Nationals were forbidden to possess or use,
like two-way radios and cameras. The military dictated whether, when, and how each
Local National must be escorted while on base, and the military decided who had escort
authority. For red badge holders like Nayeb, the military required an escort to “remain in
close proximity and remain in constant view” of the Local National “in all areas” of
Bagram Airfield “except [the] work facility.” J.A. 2892–2893 (internal quotation marks
and emphases omitted). The military’s authority over escorting is illustrated by its
rejection of Fluor’s proposal, before the bombing, to provide constant escort supervision
of Local Nationals, even at their worksites. 6 Fluor could make a proposal, but the Army
made the decisions. The military required Fluor to follow its escort protocols, trained Fluor
personnel with escort duties, and operated a surveillance system to monitor and enforce
Fluor’s compliance.
The military’s command authority over Local National employment and
supervision at Bagram Airfield is further demonstrated by the changes it quickly—and
unilaterally—instituted after the bombing. Within weeks of the bombing, the military
6 Viewing the facts and all reasonable inferences in the light most favorable to Hencely, as we must, see Ballengee v. CBS Broadcasting, Inc., 968 F.3d 344, 349 (4th Cir. 2020), we do not infer from this rejection that the Army forbade Fluor from supervising the work of its Local National employees. 23 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 24 of 34
altered its base security policies to require increased supervision of Local Nationals. Most
notably, the new protocols required all Local Nationals to be escorted at all times while on
base, removing the exception for when Local Nationals were at their worksite and entirely
eliminating yellow badges (which did not require an escort and had been permitted to escort
other Local Nationals). Military authorities also made the decision to greatly reduce the
number of Local Nationals on base to around one hundred. As a result, the military sent
well over 1,000 Local Nationals packing, ending their employment at Bagram Airfield.
The fact that Fluor possessed some discretion when operating within this framework
does not eliminate the conflict between state tort law and federal interests presented here.
Viewing the facts and all reasonable inferences in the light most favorable to Hencely, see
Ballengee, 968 F.3d at 349, we will infer that (1) Fluor could decline to lend its employees
tools it didn’t think they needed to complete their jobs, even if the Army didn’t forbid Local
Nationals from possessing those tools, and (2) Fluor could monitor its employees’ work
and fire them for poor performance, even if they were Local Nationals sponsored by the
military and approved for base access. The military nevertheless retained ultimate
command authority over supervision of Local Nationals and the protocols necessary to
mitigate the risk posed by their presence on base. See Burn Pit Litig., 744 F.3d at 349
(explaining that the Saleh test “allow[s] the contractor to exert ‘some limited influence over
an operation,’ as long as the military ‘retain[s] command authority’” (quoting Saleh, 580
F.3d at 8–9)). Based on the military’s assessment of the security threat presented by any
given Local National, the military would authorize employment at Bagram Airfield or
terminate it, the military dictated when and how the Local National must be supervised,
24 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 25 of 34
and the military decided what items the Local National should be forbidden to use.
Imposing state tort concepts of reasonableness onto Fluor’s supervision of Local Nationals
pursuant to these military directives would inevitably “touch[] the military’s battlefield
conduct and decisions” and even invite “‘judicial probing of the government’s wartime
policies.’” Burn Pit Litig., 744 F.3d at 349 & n.11 (quoting Saleh, 580 F.3d at 8); see also
Saleh, 580 F.3d at 8 (“Such proceedings, no doubt, will as often as not devolve into an
exercise in finger-pointing between the defendant contractor and the military . . . .”).
This is not a situation where Fluor “suppl[ied] services in such a discrete manner”
that its “services could be judged separate and apart from” the combatant activities and
decisions of the United States military. Saleh, 580 F.3d at 9. To the contrary, the Army
instructed Fluor to hire Local Nationals, directed where and how Fluor must escort and
supervise Local Nationals, and decided whether Local Nationals could continue to access
the base for employment. Fluor’s exercise of its limited discretion concerning Local
Nationals occurred within strictures set by the military based on its priorities and risk
assessments. Hencely responds that Fluor could comply with state tort duties and the
military’s directives. For example, Fluor could have denied Nayeb access to a multimeter
without violating the military’s policy forbidding Local Nationals to use certain items. But
that argument overlooks the “more general” nature of “battle-field preemption.” Saleh,
580 F.3d at 7. “In the context of the combatant activities exception, the relevant question
is not so much whether the substance of the federal duty is inconsistent with a hypothetical
duty imposed by the state.” Id. “Rather, it is the imposition per se of the state . . . tort law
that conflicts” with the federal policy of eliminating such regulation of the military during
25 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 26 of 34
wartime. 7 Id.; see Burn Pit Litig., 744 F.3d at 349. Our “ultimate military authority” test
reflects the breadth of this displacement of state law. Saleh, 580 F.3d at 12; see also Burn
Pit Litig., 744 F.3d at 351 (state tort law is preempted “when it affects activities stemming
from military commands”). Because the military retained command authority over the
supervision of Local Nationals at Bagram Airfield, a combatant activity into which Fluor
was undisputedly integrated, Hencely’s tort claims arising out of such activities are
preempted.
Hencely raises three additional arguments regarding preemption. First, he contends
that Fluor’s contract with the Army was a performance-based statement of work and did
“not provide any direction to Fluor about how it was to supervise its workers.” Opening
Br. 34. He likens this case to Harris, where the Third Circuit held that a performance-
based statement of work defeated preemption because, by defining the contractor’s duties
for maintaining barracks electrical systems in terms of results rather than processes, the
military did not retain command authority over the contractor’s performance of the
contract. See 724 F.3d at 481–482.
As an initial matter, our Court has not treated a performance-based statement of
work as fatal to a combatant activities preemption defense. Indeed, we adopted our
preemption rule in a case involving a performance-based LOGCAP contract. See Burn Pit
7 As the Saleh court observed, the rationales for tort law, like “deterrence of risk- taking behavior,” “are singularly out of place in combat situations, where risk-taking is the rule.” 580 F.3d at 7. That observation is equally true here, where the military took the calculated risk to bring Local Nationals, including known former insurgents, on base for employment in order to further its counterinsurgency strategy in Afghanistan. 26 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 27 of 34
Litig., 744 F.3d at 332 (LOGCAP III); Burn Pit Litig., 893 F.3d at 257 (“LOGCAP III was
a performance-based contract”).
More to the point, the PWS obligated Fluor to follow the military’s base security
protocols, which dictated processes, not merely results. Although the PWS assigned Fluor
responsibility for “oversight of . . . personnel . . . to ensure compliance with” and
performance of its contract, J.A. 394 ¶ 1.07(b), military protocols for Bagram Airfield—
including the badge-and-escort policy—directed Fluor’s supervision of Local Nationals in
much greater detail. It was the military, as part of its command over base security, that
established the requirements for supervising and escorting Local Nationals and was
ultimately responsible for ensuring those requirements were followed. Hencely alleges
that Fluor didn’t keep eyes on Nayeb while he worked, didn’t restrict his access to tools
used to make the bomb, disregarded an “unreasonably dangerous” risk by retaining him,
and failed to follow the military’s escort protocols the morning of the attack. J.A. 1661.
These are matters of base security over which the military maintained ultimate authority,
not judgments about the quality of an employee’s work in the non-tactical vehicle yard.
The military decided which Local Nationals to permit and which to exclude at Bagram
Airfield; how to screen for explosives and other threats at the base; which Local Nationals
needed what levels of access and eyes-on escorting; if escorting was needed, the where,
when, and how of such supervision; what items Local Nationals were not permitted to
handle while on base; and what procedures were necessary to ensure Local Nationals exited
the base. Although Fluor retained primary authority over monitoring its employees’
contract performance, it did not have discretion to decide the terms of Local National
27 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 28 of 34
supervision necessary for base security. The military did not give Fluor responsibility for
determining how best to protect U.S. personnel from the risk posed by Fluor’s Local
National employees; the military commanded how that mission was performed.
Hencely next argues that preemption should not apply because he has alleged that
Fluor did not follow Army instructions and failed to comply with its contractual
obligations. This argument misunderstands the nature of combatant activities preemption.
As we have previously explained, “the purpose of the combatant activities exception is not
protecting contractors who adhere to the terms of their contracts; the exception aims to
foreclose state regulation of the military’s battlefield conduct and decisions.” Burn Pit
Litig., 744 F.3d at 350 (internal quotation marks omitted). Our preemption rule preserves
the field of wartime decisionmaking exclusively for the federal government. Id.; see also
Saleh, 580 F.3d at 6. That remains true in cases of “alleged contractor misconduct.” Burn
Pit Litig., 744 F.3d 349 n.11 (internal quotation marks omitted). Indeed, in Burn Pit
Litigation, we explained that one reason for battlefield preemption is to avoid potential
interference “‘with the federal government’s authority to punish and deter misconduct by
its own contractors.’” Id. (quoting Saleh, 580 F.3d at 8); see also Saleh, 580 F.3d at 5
(holding plaintiffs’ tort claims preempted, including “allegations that [a contractor]
breached its contract”).
Finally, Hencely asserts that the Fluor employees and subcontractors who escorted
Local Nationals were not “within the Army’s chain of command.” Opening Br. 32. As
Fluor correctly notes, however, under Army regulations, no private services contractor is
ever “part of the operational chain of command.” Army Reg. 715-9 ¶ 4-1.d (Mar. 2017);
28 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 29 of 34
cf. id. (“Commanders have direct authority over [contractors] working on military facilities
for matters of administrative procedures and requirements, force protection, and safety of
the force.”). And as the Saleh test reflects, the pertinent inquiry is whether the military
retained command authority over the combatant activities into which the contractor was
integrated. Burn Pit Litig., 744 F.3d at 349. Here, we are satisfied the military did retain
such authority. Viewing the evidence in the light most favorable to Hencely, we conclude
that the military retained command authority over supervision of Local Nationals at
Bagram Airfield, and so Hencely’s tort claims against Fluor arising out of that combatant
activity are preempted.
IV.
We turn, lastly, to Hencely’s breach of contract claim, which is premised on the
notion that he is an intended third-party beneficiary of the LOGCAP IV contract between
Fluor and the United States. The district court rejected this argument and granted judgment
for Fluor on the pleadings. See Fed. R. Civ. P. 12(c). Our review is de novo. See Drager
v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014).
Generally, a motion for judgment on the pleadings should be granted only when “it
appears certain that the plaintiff cannot prove any set of facts in support of his claim
entitling him to relief.” Id. (internal quotation marks omitted). In considering such a
motion, “we accept as true all well-pleaded allegations and view the complaint in the light
most favorable to the plaintiff,” but we need not “accept as true the legal conclusions set
forth in a plaintiff’s complaint.” Sec’y of State for Defence v. Trimble Navigation Ltd., 484
F.3d 700, 705 (4th Cir. 2007) (internal quotation marks omitted); see Drager, 741 F.3d at
29 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 30 of 34
474. We can consider the LOGCAP IV contract, which Fluor attached to its motion and
the parties agree is “integral to the complaint and authentic.” Trimble Navigation, 484 F.3d
at 705. While “the inquiry into third-party beneficiary status is fact sensitive,” resolution
of the issue on the pleadings is appropriate when, as here, “the relevant documents are
properly before this Court” and the pleadings and agreements preclude the plaintiff’s claim
to third-party beneficiary status. Id. at 709.
“The appropriate test under federal common law for third-party beneficiary status
is whether the contract reflects the express or implied intention of the parties to benefit the
third party.” 8 Id. at 706 (internal quotation marks omitted). “This intent may be
determined by the contract itself, as well as the circumstances surrounding its formation.”
Id. (internal quotation marks omitted). Third-party beneficiary status “is exceptional in the
law” and “should not be granted liberally.” Id. (internal quotation marks omitted).
Our opinion in Trimble Navigation illustrates these principles. In that case, the
United Kingdom sought to purchase auxiliary output chips from an American
manufacturer. Given the sensitive nature of the product, federal law prohibited the foreign
government from purchasing the chips directly from the American manufacturer and
instead required the United Kingdom to contract with the United States, which, in turn,
contracted with the manufacturer to purchase the product. When the chips proved less than
8 The parties agree that federal common law governs Hencely’s breach of contract claim. See 48 C.F.R. § 52.233-4 (“United States law will apply to resolve any claim of breach of this contract.”); J.A. 2291 § I-115 (LOGCAP IV) (incorporating 48 C.F.R. § 52.233-4); cf. Boyle, 487 U.S. at 504 (“[O]bligations to and rights of the United States under its contracts are governed exclusively by federal law.”). 30 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 31 of 34
satisfactory, the U.K. sued the manufacturer in federal court, claiming to be a third-party
beneficiary of the contract between the manufacturer and the U.S. We held otherwise.
Among other things, we noted the absence of indicia that the U.S. or the manufacturer
intended to benefit the U.K. Specifically, we observed that the manufacturer’s agreements
with the U.S. “d[id] not explicitly mention that they [were] for the benefit of [the] UK.”
Id. at 708. Nor did those agreements “mention . . . any involvement of [the] UK,” such as
approving the chips, “as a condition to [the manufacturer’s] receipt of payment” from the
U.S. Id. Although the agreement between the U.S. and the manufacturer referenced the
U.S.-U.K. contract and stated that ultimate delivery of the chips was to be made to the
U.K., we found such facts insufficient to show the intent necessary to create third-party
beneficiary status. See id. We also found it significant that the U.S.-U.K. contract set forth
a comprehensive set of dispute-resolution procedures, which further demonstrated that the
U.S. did not intend for the U.K. to be able to sue the American manufacturer directly. See
id.
Applying those principles here, Hencely has not pleaded facts sufficient to plausibly
establish that he is an intended third-party beneficiary of the LOGCAP IV contract. The
United States and Fluor did not evidence intent to benefit Hencely, or U.S. soldiers as a
class, in the LOGCAP IV contract or its implementing agreements.
First, the LOGCAP IV contract and implementing agreements do not expressly state
that they are for the benefit of servicemen. Further, nothing in those documents purports
to confer upon soldiers rights or benefits under the contract. As our precedent reflects, it
is not enough that the United States bought Fluor’s goods and services with the intent
31 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 32 of 34
ultimately to provide them to soldiers. See Trimble Navigation, 484 F.3d at 708; cf.
Restatement (Second) of Contracts § 313 cmt. a (“Government contracts often benefit the
public, but individual members of the public are treated as incidental beneficiaries unless
a different intention is manifested.”).
Second, nothing in the LOGCAP IV contract or implementing agreements suggests
that individual servicemen can sue to enforce its provisions. Hencely cites a regulation
incorporated into LOGCAP IV that mentions the possibility of “liabilities of the Contractor
to third parties arising out of performing this contract.” 48 C.F.R. § 52.232-7(g)(2). But
contemplating that a contractor may face some sort of liability to some variety of third
party while performing the contract is a far cry from intending to confer contractual
benefits, and the right to enforce them, on an identified group of individuals. Moreover,
LOGCAP IV and its incorporated regulations provide a detailed set of dispute-resolution
procedures, none of which contemplate enforcement by third-party beneficiaries.
Third, no other factual allegations in Hencely’s complaint support his conclusory
assertion that “U.S. soldiers . . . were the intended third party beneficiaries of these
contracts.” J.A. 1666. Hencely quotes some of Fluor’s advertising materials, which state
in one form or another that Fluor is proud to support the U.S. military and feels a
responsibility to individual soldiers. These extra-contractual statements do not reveal an
intent by Fluor, during contract formation, to confer benefits on individual soldiers in the
LOGCAP IV contract, nor do they say anything about the intent of the United States, the
other contracting party.
32 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 33 of 34
Finally, Hencely has identified no decision of any court holding that individual
servicemen can sue as third-party beneficiaries to enforce the LOGCAP IV contract or any
contract between the U.S. Government and a private military contractor. For all these
reasons, we affirm the district court’s judgment on the pleadings in favor of Fluor on
Hencely’s breach of contract claim.
The federal government’s interest in preventing military policy and base security
from being governed by the laws of fifty-one separate sovereigns is “obvious.” Saleh, 580
F.3d at 11. This significant federal interest preempts Hencely’s tort claims against Fluor
arising out of its supervision of Local Nationals at Bagram Airfield under the military’s
ultimate authority. As for Hencely’s contract claim, we have seen no indication that
individual servicemen are entitled to sue for breach of the contracts between the U.S.
Government and Fluor. The judgment of the district court is affirmed.
AFFIRMED
33 USCA4 Appeal: 21-1994 Doc: 57 Filed: 10/30/2024 Pg: 34 of 34
TOBY HEYTENS, Circuit Judge, concurring in part and dissenting in part:
My disagreement is narrow and limited. I agree the political question doctrine does
not prevent a court from deciding this case. I agree Hencely was not a third-party
beneficiary to Fluor’s contract with the government. And I agree Hencely’s negligent
supervision and negligent control claims are preempted.
I would, however, reverse the district court’s grant of summary judgment to Fluor
on Hencely’s negligent entrustment and negligent retention claims. Here too, I agree the
first requirement for preemption is satisfied because Fluor was “integrated into combatant
activities” at Bagram Airfield. In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 351 (4th Cir.
2014) (quotation marks removed). But I think there are genuine disputes of fact relevant to
the second preemption requirement—whether the military “retained command authority”
over certain types of decisions. Id. (quotation marks and alterations removed). In particular,
I think a reasonable adjudicator could find that Fluor retained “considerable discretion”
over whether to allow employees to access tools they did not need or fire employees for
poor job performance. Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458, 481 (3d
Cir. 2013). I thus would vacate the district court’s judgment in part and remand for further
proceedings.
Related
Cite This Page — Counsel Stack
Winston Hencely v. Fluor Corporation, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winston-hencely-v-fluor-corporation-ca4-2024.