Sovereign immunity generally protects the government from being sued. The Federal Torts Claims Act waives immunity in many circumstances but creates an exception for claims arising out of “combat activities” of the armed forces. Are military contractors covered by that exception?
In Boyle, the Court held that where there are “uniquely federal interests” an FTCA exception, such as for combat activities, can work to preempt state law even outside its own terms. There, the Court used that concept to block claims against a manufacturer of military helicopters, made to the government’s specifications.
Now here, an employee of a military contractor detonated a bomb in Afghanistan, killing and injuring numerous people. One of the victims, Hencely, sued the contractor, Fluor, for negligence. The contractor wants to say that it is protected by sovereign immunity.
The lower court (Fourth Circuit) essentially applied Boyle, saying that the state law claim is preempted by federal law. Hencely observes that the FTCA itself does not, by its own terms, reach contractors of this sort, and that this would represent an extension of Boyle’s concept of uniquely federal interests. The government itself says that Fluor’s conduct related to the bombing violated its contract.
The bot strongly predicts the court will reverse the Fourth Circuit (~80 percent). Most likely dissents: Kavanaugh and Alito.
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