On Wednesday, April 22, 2026, the Supreme Court announced the decision in Hencely v. Fluor Corp., No. 24–924, slip op. (U.S. Apr. 22, 2026).  In doing so, the Court vacated the Fourth Circuit’s holding and found that state-law tort claims against military contractors are not preempted where the Federal Government neither ordered nor authorized the specific challenged conduct. Writing for the majority, Justice Thomas (joined by Justices Sotomayor, Kagan, Gorsuch, Barrett, and Jackson) rejected the Fourth Circuit’s categorical “battlefield preemption” doctrine. Justice Alito dissented, joined by Chief Justice Roberts and Justice Kavanaugh.

The case arose from a 2016 suicide-bomb attack at Bagram Airfield by Ahmad Nayeb, a Taliban operative hired by a Fluor subcontractor under the military’s “Afghan First” initiative. Former Army Specialist Winston Hencely, who was seriously injured while attempting to stop Nayeb from detonating the suicide bomb, sued Fluor under South Carolina law for negligent supervision, negligent entrustment of tools, and negligent retention. The Army’s investigation found Fluor primarily responsible for the attack, citing its “complacency and . . . lack of reasonable supervision of its personnel,” including failures to enforce base badge-and-escort policies that allowed Nayeb to obtain the tools used to build the bomb and allowed him unescorted access on the base. Hencely at 3-4. The district court and Fourth Circuit nevertheless held Hencely’s claims categorically preempted under the “combatant activities exception.”  See Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), and adopted in In re KBR, Inc., Burn Pit Litigation, 744 F.3d 326 (4th Cir. 2014).  As Justice Alito noted in his dissent, Nayeb was hired based on a foreign policy decision made by the United States government, that was then incorporated into Fluor’s contract; the Government specifically vetted Nayeb; the Government approved base access for Nayeb; and the Government did not revoke base access for Nayeb.  Hencely, Alito dissenting, at 1.  Under the Fourth Circuit’s battlefield pre-emption doctrine, this undisputed conduct insulated Fluor from suit under derivative sovereign immunity.  However, the majority focused narrowly on the specific challenged conduct and found that, while Fluor did the more general things that the Government directed, Fluor did not do some of the more narrow tasks required of it and, therefore, there was no inconsistency between state tort law and the Government’s contractual directives.  Hencely at 16.

Hencely is the latest of a few important decisions in 2026 reshaping derivative sovereign immunity for federal contractors. Together with the Fourth Circuit’s recent ruling in Al Shimari v. CACI Premier Technology, Inc., which confirmed in part that contractors must prove specific government authorization of the challenged conduct, not merely the overall mission, and GEO Group Inc. v. Menocal, which narrowed a contractor’s ability to appeal judgement, today’s decision meaningfully narrows the preemption defenses available to contractors operating in combat zones and other overseas environments.

These converging decisions establish a new legal landscape for military contractors, with several critical implications:

  1. The Fourth Circuit’s “Battlefield Preemption” Doctrine Is Dead. As we previewed after the oral arguments, the Majority was skeptical of how the Fourth Circuit’s balance between protecting military effectiveness and ensuring accountability for contractor misconduct. In Hencely, the Court ruled that State-law tort suits against military contractors are no longer categorically barred because they arise from combatant activities and held that the Saleh/KBR rule “lacks any foundation in the Constitution, federal statutes, or our precedents.” Hencely at 2.
  2. Boyle Immunity Is Narrowed. The Court drew a sharp line between Boyle v. United Technologies Corp., 487 U.S. 500 (1988) and Hencely. In so doing, the Court narrowed the immunity that contractors might have relied on. To reach this conclusion the Court distinguished between procurement contracts and performance contracts like Fluor’s base-support work. Hencely at 6. Further, the Court stated that where the government specifies the result but not the manner of performance, a contractor can generally comply with both federal direction and state-law duties of care. Hencely at 9. This Supreme Court rule in many ways parallels the Fourth Circuit’s CACI holding that contractors must demonstrate specific government authorization of the challenged conduct.
  3. Strict Compliance with Contract Terms and Government Instruction is More Important Than Ever. The Court repeatedly pointed to Fluor’s alleged failure to comply with contract requirements, for example noting that “Hencely sued Fluor for conduct that, we assume (as the Fourth Circuit did), was not authorized by, but was even contrary to, federal instructions.” Hencely at 8. In distinguishing this case from Boyle, the majority explained that “Boyle addressed ‘a special circumstance’ in which the contractor has a defense because ‘the government has directed a contractor to do the very thing that is the subject of the claim.’” Id., quoting Correctional Services Corp. v. Malesko, 534 U. S. 61, 74, n. 6 (2001). It is entirely possible that the Court would have reached a different conclusion – and found Fluor protected by Boyle immunity – if Fluor had properly managed and supervised Ahmad Nayeb, in accordance with the contract. At a minimum, contractors in the battlefield are more likely to benefit from derivative sovereign immunity (or any form of “government contractor defense”) when they are following Government instructions and direction.
  4. Contractors Likely Face Higher Litigation Costs. The effect of Hencely, along with GEO Group Inc. v. Menocal and Chevron USA Inc. v. Plaquemines Parish, is that contractors operating in high-risk environments likely need to prepare for more robust, and earlier, defense of their actions. In addition to robust compliance mechanisms, contractors in this field should consider proactive pre-dispute engagement to shape the Government’s administrative findings, which can be crucial to any subsequent court case.  Additionally, contractors that are sued will be more likely to have to go through costly discovery and litigation now that immunity defenses are narrowed and interlocutory appeal is denied in many cases.

The decision, along with the other cases from 2026, will have potentially profound implications for contractors taking on dangerous jobs for the U.S. Government. Watch this space as we work through the various potential implications of the decision and plan to publish a more in-depth analysis in the coming days.

Fluet’s Battlefield + Contingency Operations Practice will remain at the forefront of the advising and supporting defense, intelligence, and logistics contractors in high-risk operating environments. For a tailored risk assessment in light of Hencely, CACI, and other relevant decisions, please contact a member of our team.