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Winston Tyler Hencely v. Fluor Corporation, et al.
Paid petition · United States Court of Appeals for the Fourth Circuit, No. 21-1994 · judgment October 30, 2024
Before the decision, about 2.7× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a circuit split argued in the petition, and a dissent in the court below (flagged in the petition), and down for a business respondent and a petition filed soon after the judgment below.
Question presented
Former U.S. Army Specialist Winston T. Hencely was critically and permanently injured by a suicide bomber inside Bagram Airfield in Afghanistan. The bomber, Ahmad Nayeb, worked on base for a government contractor. An Army investigation found that the attack's primary contributing factor was the contractor's actions in breach of its Army contract and in violation of the military's instructions to supervise Nayeb. Hencely sued the government contractor for negligence under South Carolina law. He did not sue the military under the Federal Tort Claims Act. Even so, the Fourth Circuit held that Hencely's state claims are preempted by unspoken "federal interests" emanating from an FTCA exception. Invoking Boyle v. United Technologies Corp., 487 U.S. 500 (1988), the court of appeals held that the FTCA's exception immunizing the government for "[a]ny claim arising out of the combatant activities of the military or naval forces ... during time of war," 28 U.S.C. §2680(j), barred Hencely's South Carolina claims against the contractor. The decision below reaffirmed a 3-1-1 split among the Second, Third, Fourth, Ninth and D.C. Circuits over Boyle's reach when contractors defend against state tort claims by invoking §2680(j). The question presented is: Should Boyle be extended to allow federal interests emanating from the FTCA's combatant-activities exception to preempt state tort claims against a government contractor for conduct that breached its contract and violated military orders?
Counsel of record
For petitioner
Tyler Green
Consovoy McCarthy PLLC
For respondent
Mark W. Mosier
Covington & Burling, LLP
Case
Conference history
Distributed for 2 conferences
Amicus briefs
2 cert-stage · 9 merits
(5 supporting pet./neither, 4 respondent)
Argument & decision
Argued November 3, 2025 — Frank H. Chang · Mark W. Mosier. Audio and transcript
Decided April 22, 2026. Opinion by Thomas.
Proceedings
- May 26 2026Judgment Issued.
- Apr 22 2026Judgment VACATED and case REMANDED. Thomas, J., delivered the opinion of the Court, in which Sotomayor, Kagan, Gorsuch, Barrett, and Jackson, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Kavanaugh, J., joined.
- Nov 03 2025Argued. For petitioner: Frank H. Chang, Arlington, Va. For respondents: Mark W. Mosier, Washington, D. C.; and Curtis E. Gannon, Deputy Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.)
- Oct 15 2025Reply of petitioner Winston Hencely filed. (Distributed)
- Oct 14 2025Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
- Sep 30 2025CIRCULATED
- Sep 22 2025Brief amicus curiae of Chamber of Commerce of the United States of America filed.
- Sep 22 2025Brief amicus curiae of United States filed.
- Sep 22 2025Brief amicus curiae of Atlantic Legal Foundation filed.
- Sep 22 2025Brief amicus curiae of Retired Senior Military Officers filed.
- Sep 22 2025Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
- Sep 15 2025Brief of respondents Fluor Corporation, et al. filed.
- Sep 05 2025Motion to dispense with printing the joint appendix filed by petitioner GRANTED.
- Aug 27 2025Sealed material received electronically from the United States Court of Appeals for the Fourth Circuit and available with the Clerk. The remainder of the record is electronic and is available on PACER.
- Aug 27 2025Sealed material received electronically from the United States District Court for the District of South Carolina and available with the Clerk. The remainder of the record is electronic and is available on PACER.
- Aug 20 2025Record requested from the United States Court of Appeals for the Fourth Circuit.
- Aug 12 2025SET FOR ARGUMENT on Monday, November 3, 2025.
- Aug 07 2025Brief amici curiae of West Virginia, et al. filed.
- Aug 07 2025Brief amici curiae of Center for Military Law and Policy, et al. filed.
- Aug 07 2025Brief amicus curiae of Public Citizen filed.
- Aug 07 2025Brief amicus curiae of Veterans of Foreign Wars filed.
- Aug 07 2025Brief amicus curiae of American Association for Justice filed.
- Jul 31 2025Brief of petitioner Winston Hencely filed.
- Jul 18 2025Motion to dispense with printing the joint appendix filed by petitioner Winston Hencely.
- Jun 26 2025Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including July 31, 2025. The time to file respondents' brief on the merits is extended to and including September 15, 2025.
- Jun 06 2025Motion for an extension of time within which to file the briefs on the merits filed.
- Jun 02 2025Motion for leave to file amici brief filed by Center for Military Law and Policy, et al. GRANTED.
- Jun 02 2025Petition GRANTED.
- May 27 2025DISTRIBUTED for Conference of 5/29/2025.
- May 06 2025DISTRIBUTED for Conference of 5/22/2025.
- May 06 2025Reply of petitioner Winston Tyler Hencely filed. (Distributed)
- Apr 30 2025Waiver of the 14-day waiting period for the distribution of the petition pursuant to Rule 15.5 filed by petitioner.
- Apr 28 2025Brief of respondents Fluor Corporation, et al. in opposition filed.
- Mar 28 2025Brief amici curiae of West Virginia, et al. filed.
- Mar 28 2025Brief amici curiae of Veterans of Foreign Wars, et al. filed.
- Mar 28 2025Motion for leave to file amici brief filed by Center for Military Law and Policy, et al.
- Mar 17 2025Motion to extend the time to file a response is granted and the time is extended to and including April 28, 2025.
- Mar 14 2025Motion to extend the time to file a response from March 28, 2025 to April 28, 2025, submitted to The Clerk.
- Feb 24 2025Petition for a writ of certiorari filed. (Response due March 28, 2025)