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.
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