Fluor argued, and two lower courts agreed that federal law pre-empted Hencely’s claim against the firm and that holding it liable for his injuries was unconstitutional. The courts ruled that provisions of the Federal Tort Claims Act shielded military contractors from state tort claims when those firms work under military command in war zones. 

However, Hencely contended that Fluor should be held liable for the attack because the firm was negligent in supervising the employee in complying with military base procedures. The Army’s investigation concluded that Fluor did not have a clear sense of whom Nayeb reported to or oversight of the employee. 

The Supreme Court sided with Hencely in its ruling released April 22, written by Associate Justice Clarence Thomas, joined by Sonya Sotomayor, Elena Kagan, Neil Gorsuch, Amy Coney Barrett and Ketanji Brown Jackson. Justice Samuel Alito wrote a dissenting opinion, joined by Chief Justice John Roberts and Brett Kavanaugh. 

In the ruling, the court noted that a contractor ordinarily has a constitutional defense only when the firm is sued for reasons related to what the federal government has requested. But the court agreed with claims made by Hencely and the U.S. military that Fluor’s conduct in hiring and retaining the attacker was not authorized by military instructions as a condition for operating at the base. 

The high court concluded that “the preemption rule on with the [appeals court] relied lacks any foundation in the Constitution, federal statutes, or our precedents” and vacated the Richmond appeals court decision, remanding the case for further proceedings consistent with the  ruling. 

In the dissent, the justices noted that language to hire local Afghans as part of the federal “Afghan First” program was written into Fluor’s contract. “Because the Constitution gives the federal government exclusive authority over foreign affairs and the conduct of wars, federal law preempts all state law that substantially interferes with the government’s exercise of those powers,” they said.

“Fluor is aware of the United States Supreme Court’s ruling and, although disappointed, we respect the court’s decision," the firm said in an emailed statement. "Since litigation is still ongoing, we will not comment further.”

Enbridge Line 5 Pipeline Challenged

In a separate ruling by the court, also released April 22, the justices unanimously ruled that energy developer Enbridge had failed to meet deadlines required under federal law to move a long-running case challenging the company’s operation of a 645-mile oil pipeline in Michigan and remanded the case to the state court. State Attorney General Dana Nessel in 2019 challenged continued operation of its Line 5 pipeline, saying that potential oil spills would violate state environmental laws. 

Enbridge contended that the case should be heard in federal, not state court, but did not file a petition in federal court within the 30-day time limit required by U.S. law. As a result, state Gov. Gretchen Whitmer (D) called for the pipeline to be shut down. 

The high court concluded that the “Enbridge notice of removal [to federal jurisdiction] was untimely and that this action must be remanded to the Michigan state court.” 

In an emailed statement, an Enbridge spokesperson said, “Setting aside the procedural decision, the fact remains that the safety of Line 5 is regulated exclusively by the Pipeline and Hazardous Materials Safety Administration (PHMSA), an agency within the U.S. Department of Transportation. The agency conducts annual inspections and reviews of Line 5 operation across the Straits of Mackinac and has consistently found the pipeline to be in compliance, identifying no safety issues that would warrant its shutdown.”

In an amicus brief filed on behalf of Enbridge, the North American Building Trades Unions and the United Steelworkers union wrote that the groups "have a strong interest in this case, which could determine the future employment and well-being of thousands of [the unions’] members.