Interview transcript:
Lisa Himes It’s been a long time since the Supreme Court has looked at some of these issues. Parties have tried in the last 40 or so years to bring a case like this back to the Supreme court, but this is really the first time since the Boyle case in 1988 that the Supreme Court is looking at these issues.
Terry Gerton And what issues are at stake with this case?
Lisa Himes The Supreme Court will be looking at whether or not government contractors who are providing critical support services to the U.S. military in combat zones should be immune from tort suits for activities and actions that they took on the battlefield in support of the military.
Terry Gerton Can you fill us in a little bit on the details of the case, about how these issues got raised?
Lisa Himes Yes, this case involves an army soldier who was serving in the U.S. Army stationed at Bagram Airfield in Afghanistan as part of Operation Freedom Sentinel. There was a suicide bombing involving a subcontractor employee of Fluor, Fluor was supporting the U.S. military over in Afghanistan. And this bombing occurred in 2016. It was near the starting line for the Veterans Day race at Bagram Airfield. And this subcontractor employee detonated an explosive vest, and he killed himself and five others and severely injured 17 more, including this soldier, Hencely, who brought suit against Fluor.
Terry Gerton And so this case hinges on the combatant activity’s exception to the Federal Tort Claims Act. Help us understand how that comes into play.
Lisa Himes Yes, the Federal Tort Claims Act is a statute that has several exceptions. Those exceptions allow for the United States to be immune from suit, because the Federal Tort Claims Act allows for suits to be brought against the United States, and these exceptions are carve-outs that allow the United States an exception to liability in tort cases like this. And in this situation, the Federal Tort Claims Act exception at issue is the combatant activities exception. And that applies if the United States is sued in tort in cases like this. And the United States then is able to get out of cases like these. And the question before the Supreme Court is whether the Federal Tort Claims Act should similarly apply to federal government contractors supporting the military in these combat zones. So essentially, they’re standing in the shoes of the military. And the question is whether that same exception to this Federal Tort Claims Act should apply to the government contractors.
Terry Gerton And this case has made its way all the way through the appellate process. How has that path been?
Lisa Himes Yes, it has. It started in South Carolina Federal District Court, and the plaintiff had filed suit in South Carolina and the South Carolina state law was at issue. The South Carolina District Court dismissed the case based on the combatant activities exception and the Fourth Circuit affirmed that decision, and the plaintiff then sought Supreme Court review by filing a petition, a writ of certiorari, with the Supreme Court. And for the first time in many years, the Supreme Court agreed to take the case. They granted cert back on June 2nd. And now the case is before the Supreme Court, with an oral argument scheduled for November 3rd.
Terry Gerton And how does, you mentioned the precedent case from 1988, how does this case either build on or challenge that precedent?
Lisa Himes This case, and you can see from the many briefs that have been filed by the petitioner, Hencely, and all of the amicus support that the petitioner received, as well as Fluor and Fluor’s briefing and the significant amicus that Fluor received. I actually was part of an amicus brief on behalf of the Atlantic Legal Foundation that supported Fluor and other government contractors in a situation as the Supreme Court is dealing with here with this case. The issue then is, what is the Supreme Court going to say about this case Boyle? Boyle was from 1988. I started practicing in 1998. Boyle was the key case for my whole career. I’ve been handling these cases for about 20 odd years. A lot of the cases that are cited in these briefs, I was involved with. And it’s amazing to see the Supreme Court taking on a case like this because Boyle has been the law of the case, the law in this area for almost 40 years now. And what it does is it allows government contractors who are providing goods and services to the U.S. military and to U.S. agencies to get dismissed out of cases. It bars suit against them if the contractors can meet certain elements of this, what’s called the government contractor defense. Ultimately, it really comes down to another exception to the Federal Tort Claims Act. With Boyle, it’s the discretionary function exception. And here, it’s the combatant activities exception. So there really is this overlap, essentially, of whether these exceptions to the Federal Tort Claims Act should apply to government contractors like they apply to the United States. And that’s really what’s at issue. The Supreme Court’s going to be looking at combatant activities, but there’s a lot of discussion about how Boyle, in raising these issues of uniquely federal interest, you’ll hear a lot about that, but uniquely federal interests are what’s at issue here, where you have a conflict with those uniquely federal interests, like the war powers, essentially, of the U.S. government and the state tort laws. So if you have a conflict between those uniquely federal interests and the state tort laws, that’s the issue that the Supreme Court is going to be looking at.
Terry Gerton I’m speaking with Lisa Himes. She is of counsel with Rogers Joseph O’Donnell. So as we think about the facts in the Fluor case, how does this illustrate maybe the gray areas that contractors face in conflict zones?
Lisa Himes It really comes down to what can these government contractors do in supporting the military where they are part of the military mission. There are some of the briefing and the amicus support, the Chamber of Commerce also provided an amicus, and from that brief there was discussion of nearly 20,000 contractors aiding the Department of Defense around the globe. And the U.S. military can’t function effectively on the battlefield without the support from these private contractors. So the question is, what can these essential government contractors do on the battlefield if the Supreme Court does not allow for this extension of the Federal Tort Claims Act, combatant activities exception, to those government contractors? If, there was a hypothetical that we posed in our amicus brief really looking at a situation where you have different convoy vehicles that are going out. One is being driven by a military personnel, another is being driving by a contractor. Something happens there. Are we looking at one individual’s in one vehicle being, their suit is barred by the courts, and the other vehicle, their suit is allowed to continue under any one of the state laws around the country, that’s what we’re looking at here. The gray areas are what can they do on the battlefield that would, under what we are going to see out of the Supreme Court in this case, what can government contractors do without subjecting themselves to significant liability on the battlefield?
Terry Gerton It sounds like the argument leans in favor of the contractor, but what if the Supreme Court decides for Hencely? How does that reshape the liability space for federal contractors?
Lisa Himes And that’s a big question in these amicus briefs. And the United States came in and filed its own amicus brief and also requested a motion to be part of the oral argument in this case because of the importance of this case. The U.S. was part of an oral argument in the Boyle case, and now they’ve requested to be a part of a oral argument in this Hencely case. And the reason there is because it could subject these government contractors and, by extension, in the military, significant changes. If these cases proceed, if the Supreme Court rules in favor of Hencely and these cases proceed, then these government contractors are going to be subject to lawsuits around the country for performing work that the military would be immune from. So they’re standing in the shoes of the military, the military will be insulated from any judicial review, but the contractors would not. And that would be a significant change in what we’ve seen. And it would also bring in the military into depositions and trials, and it would change the landscape here.
Terry Gerton So the oral arguments you mentioned are on November 3rd. Is there anything that contractors should be doing now to prepare, other than just sort of watch and wait?
Lisa Himes I think it’s a watch and wait and it’s also, it’s really a situation of making themselves aware of what’s at stake in this case. The briefing is complete. It’s significant with a lot of people that have been practicing in this area for a long time, including myself and others that I’ve worked with for many years all involved in this case. It’s one of those that we really, government contractors should be aware of. They should understand it, and they should be prepared for the Supreme Court’s decision in this case.
The post A Supreme Court case could redefine contractor liability in combat zones first appeared on Federal News Network.