Rico v. U.S. and Hencely v. Fluor Corp

Speaker 1 (00:00):

He squared with the government's simultaneous contention that Ms. Rico violated the conditions of supervised release during that period, warranting an increased sentence.

(00:11)
History supports Ms. Rico's position. Contrary to the government's contention, there is no common law tradition of fugitive tolling for parole.

(00:19)
[Inaudible 00:00:20] passed via a 1976 statute and a 1983 implementing regulation. But in the Sentencing Reform Act, Congress prospectively repealed that statute and enacted nothing in its stead for supervised release, while leaving it intact for legacy parole cases, and it remains intact today.

(00:45)
As a result, Congress has created a two-track scheme, parole with fugitive tolling, and supervised release without it. And we ask the Court to adhere to that dichotomy. I welcome the Court's questions.

Justice Thomas (00:58):

Well, Mr. Unikowsky, the government seems to be arguing, making a simple point, how can it be considered a supervised release when the absconder is not being supervised?

Speaker 1 (01:11):

Your Honor, I completely understand the intuitive force of the government's argument that the essence of supervised release is being supervised, and if a person absconds, they're just not serving the sentence at all in the same way as a prison escapee isn't serving the sentence at all.

(01:26)
But ultimately, although I understand the intuitive force of that argument at first blush, I don't think it carries the day, because the government's arguments has a counterintuitive component of its own, which is that it requires believing that not only was Ms. Rico subject to the conditions of supervised release during the entire abscondment period, but she actually violated those very conditions during that period warranting her increased sentence.

(01:51)
So it just seems to me almost tautologically, if Ms. Rico violated the conditions of supervised release, she must have been serving the very sentence that imposed those conditions of supervised release.

(02:04)
I do understand the intuition underlying the government's argument today that it just doesn't really make sense that a person should get credit when they've absconded. I get that. But I think that one point that really blunts the intuitive force of the government's position is that both parties agree that ultimately, the absconder should be deprived of credit for the time spent absconding. The sole question between the parties today is very narrow. It's how that deprivation of credit should be effectuated.

(02:34)
So the way we understand the Sentencing Reform Act, if a warrant as issues based on the abscondment as occurred in this case, then once the person is apprehended, even after the term expires, the person can be brought before the sentencing court and then the judge revokes supervised release and strips the person of all credit for time served during the abscondment period. So essentially, the judge, rather than stopping the clock, the clock keeps going and then the clock is rewound back to the beginning.

Justice Jackson (03:02):

But is it really a credit system, Mr. Unikowsky? I guess I was a little confused by the government's suggestion even at the beginning of its brief that what's happening in the supervised release world is that the court is depriving the individual of credit for supervised release.

(03:19)
My understanding is that even when there's a revocation, the person is not being deemed as giving credit. In other words, when supervised release is revoked and the court sends the person back to prison and perhaps imposes another period of supervised release, they don't calculate how much supervised release they're going to give based on how much was already served. You had a three-year period, you absconded after one, so now only two is available. Really credit doesn't seem like the right framework to understand what's even happening in supervised release.

Speaker 1 (03:57):

I agree with what you said, Your Honor, 100%. At the revocation hearing, whatever the person has left to serve just sort of goes away and the court imposes a whole new sentence of imprisonment and an additional period of supervised release based on the court's assessment of the defendant at that time.

Justice Jackson (04:13):

Of the needs, right? I mean, the reason why supervised release is sort of fundamentally different than parole or probation or imprisonment is because it's not imposed for punishment, it's supposed to be about helping this person reintegrate into society, and the amount of time that is necessary to do that is evaluated based on who that person is and what they've done, but not based on how much time they've previously served in supervised release.

Speaker 1 (04:44):

Yes, that's correct. So the government's suggestion in its brief that because she absconded for 37 months, she has 37 months left to go, doesn't actually capture what happened in this case because those 37 months just went away. After the new revocation hearing, the judge imposed whatever sentence the judge felt was appropriate. The effect of the question presented in this case actually is to consider the time spent during abscondment as still subject to the conditions of supervised release, which allowed the government to argue that a crime committed during that period, but after the term expired, was a violation of supervised release, resulting in a heightened guidelines range.

Justice Alito (05:19):

Mr. Unikowsky, you said that the problem here results from the Sentencing Reform Act, but I wonder, and I may be misunderstanding things, so you'll correct me, if the problem here is not entirely one created by the sentencing guidelines.

(05:39)
Suppose the sentencing guidelines were not in the picture, so your client absconds, therefore she's violated the terms of supervised release, therefore her supervised release is revoked, then the judge has to decide what to do, send her back to prison, impose a new, excuse me, an additional term of supervised release. The statute sets out the factors that are relevant to that consideration. We went through those factors last term.

(06:07)
And it doesn't seem to me that what she did after the expiration of the 37 months is any less relevant to those determinations than what she did before the expiration of the 37 months. So that becomes important, the 37-month point becomes important only because the guidelines assign a grade to the nature of the offenses that occurred. Am I right in all this?

Speaker 1 (06:40):

Yes, I agree with everything you said, Your Honor. So we believe that the sentencing court does have the authority to consider the crime she committed after that time expired as part of the discretionary decision as to what sentence she should get after the re-sentencing. So I don't disagree with anything that Your Honor has said.

Justice Alito (06:55):

So the only thing that's really at stake here is whether the court will consider whether to depart upward from the range that results from the grade of the violations that occurred before the 37 months or considers whether to depart downward from the grade that would apply if the post 37 months violations were occurred, right? And all the court has to do is to give respectful consideration to those guidelines. That's really all that's involved here, am I right?

Speaker 1 (07:32):

On the facts of this case, yes. There are other cases in which fugitive tolling matters for other reasons, but on the facts of this case, you have accurately characterized the dispute between the parties.

Speaker 2 (07:42):

Mr.? I'm sorry, go ahead and finish.

Speaker 1 (07:43):

I'm sorry.

Speaker 2 (07:45):

Done?

Speaker 1 (07:45):

Yes.

Speaker 2 (07:46):

All right. The government worries that, okay, there is tolling if you get a warrant within the period that's still before the clock runs, before the 37 months is out, you effectively get tolling under i. But they worry that there are going to be some cases where, as a practical matter, they can't get a warrant in time and the period will expire. Do you have any thoughts or reactions to that?

Speaker 1 (08:10):

Yes. I understand that there is a concern that it may be that a violation occurs at the very end of the term and it goes undetected and the warrant doesn't issue in time. But I think fugitive tolling is both too broad and too narrow a solution to the problem that you've identified.

(08:25)
So first of all, I think it's too narrow because that is a problem that can arise with any violation late in the term, committing a crime, possessing drugs, anything else. It's-

Speaker 2 (08:35):

Escape detection you're saying?

Speaker 1 (08:37):

Yes, any crime. And in fact, in some ways, abscondment is the easiest type of violation to detect.

Speaker 2 (08:42):

To identify. Yeah.

Speaker 1 (08:43):

Right, because the absconder doesn't or the supervisee doesn't answer his cell phone and so the probation officer can get a warrant right away.

(08:50)
So if we're concerned about the problem of late-in-term violations, it seems odd to focus only on the one type of violation that's easiest to detect.

(08:59)
I also think fugitive tolling is too broad because it applies to supervisees who abscond any time in the term, and it causes the conditions to essentially last forever after the term until the person is apprehended. There's also an amicus brief by NACDL which walks through empirically that abscondments tend to occur early in the term. So I'm not sure the concern the government identifies has a lot of real-world force.

Justice Alito (09:22):

What about the situation where the person who's on supervised release is imprisoned for a state offense? So the supervised release term is told during that period, and then when the person is released, the state authorities may not notify the federal court that the person has been released, so no warrant would issue.

Speaker 1 (09:45):

Right. So that is the facts of the Swick case, which is currently pending on certiorari to this court. As far as I know, that's the only time that's come up since 1984. I've looked around, haven't found any other cases with that fact pattern, so it's an unusual case.

(09:59)
I think ultimately it's a good idea for federal probation officers to maintain contact with state authorities as to when the person is released from state prison. But I don't think that one singular, rather unusual fact pattern is a basis to establish fugitive tolling across the board for all supervisees. I'd like to make a point, if I may, about another reason I think-

Speaker 3 (10:22):

In the end-

Speaker 1 (10:23):

I'm sorry.

Speaker 3 (10:24):

In the end, it really doesn't matter. If they commit a new crime, they're subject to arrest and prosecution for that new crime, correct?

Speaker 1 (10:32):

Yes. In this very case, Ms. Rico was convicted of a drug offense in state court and was sentenced to prison time, so she was held accountable for that action, and as Justice Alito stated, that can also be considered as part of the discretionary revocation sentencing. It's only a very narrow question of whether that offense increases her guidelines range.

Speaker 4 (10:52):

Mr. Unikowsky, it seems that part of the dispute here between you and the government has to do with what it means to be on a term of supervised release where you say it means being subject to a certain set of conditions, and the government says, "Well, it means that but it also means something else. It means that you're being supervised, that you're being monitored in some way," which does not happen when the person has absconded.

(11:18)
So what do you think of that, that the idea of supervised release contemplates a level of supervision above and beyond the particular conditions of the term?

Speaker 1 (11:32):

I respectfully disagree with the government's argument on that score because I think it improperly decouples the burdens imposed by the sentence with how to determine whether the person is serving the sentence.

(11:45)
Ordinarily, those two are flip sides of the same coin, like the government talks about the prison case. So the burden imposed by the sentence is you have to be in prison, and you determine if the person is satisfying the sentence by checking if the person has been in prison.

(11:58)
But in this case, the burdens imposed by the sentence are the conditions in the judgment. But the government contends that when determined if one satisfies a sentence based on this concept of supervision, which doesn't correspond to any particular supervised release condition, and because of that decoupling you have the unusual fact pattern in this case where the government contends that Ms. Rico violated the conditions of supervised release while not serving that sentence.

(12:24)
I think the court should follow the ordinary practice of saying that one determines if one is serving the sentence by looking at the binding effect of the sentence.

(12:32)
I would like to also talk about some additional statutory clues that I think militate in Ms. Rico's favor. First, I think it's a relevant fact that there's no statutory definition of abscondment, and in fact, that's a difficult concept to define at the margins. There's two amicus briefs, the NACDL amicus brief and the NAFD amicus brief, that talk in some detail about the difficulties courts have had in deciding questions like when a violation of supervised release rises to the level of an abscondment and also when the clock on the abscondment period starts.

(13:08)
And it does seem unlikely from our perspective that Congress would've intended the very basic question of when a supervised release term ends to be governed by this nebulous and non-statutory abscondment standard with judges essentially figuring out the answer to these questions on the fly without any statutory anchor. It just seems more likely from our perspective that Congress intended the regime to operate this way. The clock keeps going unless it's told under the explicit language of Section 3624, or until there's a revocation hearing.

(13:41)
At that point, the judge can recognize that it's necessary to turn the clock back to the beginning to ensure the person actually serves the full term of supervised release in contact with the probation officer that the court contemplated.

(13:56)
I'd like to say a few words about history as well. I think the historical evidence is quite strongly in our favor. The government makes the point that there is a strong historical tradition that when someone escapes from prison, that stops the clock on their sentence and then the clock resumes when they are returned to prison. I think that makes sense. 20 years in prison you have to actually be 20 years physically in prison.

(14:19)
But I think that the historical evidence really runs the other way in terms of fugitive tolling. The federal parole statute was first enacted in 1910 and then parole was abolished prospectively in 1984, and neither we nor the government can come up with any cases ever in which the government's fugitive tolling rule was applied in the manner the government proposes today in which the conditions of supervised release, or excuse me, of parole extended after the scheduled expiration of the term.

(14:48)
And it's not just the absence of evidence of fugitive tolling, there's also evidence of absence in the form of this 1983 regulation that we cite and brief. So that regulation said that prospectively, based on this 1976 statute, there will be fugitive tolling of exactly the same form that the government advocates in this case.

(15:11)
So in a couple of ways I think that regulation rebuts the notion that there's a tradition of fugitive tolling. One, it's premised on this 1976 statute, not this longstanding common law tradition. Two, it's prospective only, implying that the rule didn't previously exist. And second, and third, excuse me, it's not clear why the parole commission would have enacted such a rule if the tradition already existed in advance. So I think that provides pretty strong evidence that this just wasn't thing that parole boards were doing until 1983.

(15:42)
And then in the Sentencing Reform Act in 1984, Congress repeals the statute on which this provision was based, 4210(c). It enacts no replacement provision. And meanwhile, Section 4210(c) is immediately adjacent to this other statute, 4210(b), which enacts a version of prisoner tolling. And Congress does reenact that in the Sentencing Reform Act.

Justice Alito (16:05):

Well, before the abolition of parole with the Sentencing Reform Act, there were no sentencing guidelines. So it's not clear to me why it would be relevant, why a court would be concerned about whether the parolee committed offenses during the period when the parolee was supposed to be on parole after the expiration of the parole term or not.

(16:29)
The parolee violates the terms of parole when the parolee is apprehended. The court would revoke parole and then decide what to do. So why would it be relevant? Suppose your client were on parole, why would it be relevant to determine whether the additional things that she did while out on parole occurred before or after the 37 months?

Speaker 1 (16:53):

I mean, the 1983 regulation explicitly says that if you commit the violation after the schedule ending, it will be considered a violation of parole. So it's hard to reconstruct exactly what they were thinking, but presumably it was felt that this was important enough to encode it in a regulation.

(17:10)
And so Congress had that regulation on its desk. It was enacted just a year before the Sentencing Reform Act, and Congress skewed it in the Sentencing Reform Act. So I just think that at least some amount of historical consideration is warranted here, especially since I think what this case boils down to are these competing intuitions.

(17:29)
The government has this intuition on its side of the House that it doesn't make sense to say that a person who isn't supervised is serving a sentence of supervised release. And then we have the intuition on our side of the House that it doesn't make sense to say that someone could have violated the conditions of supervised release when they're not on supervised release. And ultimately, it's the court's job in this case to cut through that Gordian Knot.

(17:51)
And I think rather than kind of wrestling with these competing intuitions, I think it's wise to look at the historical tradition here where we see that this just wasn't happening for the entire history of the parole statute. And so the proposition the government claims in its brief is very obvious didn't occur to the parole commission at the time, and so I think the court should carry that tradition forward at least-

Justice Jackson (18:11):

So how do you respond to the other point that the government makes, the thrust of it being that the court has ordered this person to serve a, let's say, three-year period of supervised release and they didn't do so? Why should they get the benefit of running away or absconding and not having to comply with the court's order?

Speaker 1 (18:34):

Well, in some way they just shouldn't, because at the revocation hearing, the judge is empowered to rewind the clock and require the person to start all over again. So we think there's alignment between how abscondment is handled and other types of violations.

Justice Jackson (18:46):

You mean that you envision Congress saying for the absconder, "The revocation remedy is what we are imposing here"?

Speaker 1 (18:55):

That's exactly right and that's how it works with other types of violations. It's true that part of the essence of supervised release is supervision, but part of the essence of supervised release is also complying with the law. And yet, if a person is in a conspiracy, say, for one year during the supervised release period, that's obviously plainly contrary to the spirit and the letter of supervised release.

(19:17)
But the government does not claim that that stops the clock for the year. Instead, what happens is a warrant issues, the person comes to the sentencing court, and then supervised release is revoked. The person goes back to federal prison and then back on supervised release. And so effectively, the person is stripped of credit for that year, but it's done through the mechanism of revocation. And all we're saying in this case is that the same thing should happen to abscondment, which after all, is just a different type of violation of the conditions of supervised release.

Speaker 3 (19:47):

Counsel, that earlier case, Swift I think you said was the name?

Speaker 1 (19:52):

Yes, Swick from the Fifth Circuit, Your Honor.

Speaker 3 (19:54):

I haven't read it so I don't know anything about it, but it's not an issue of keeping in touch with the estate authorities. The warrant of absconding should have been issued or a warrant should have issued the moment they learned of the state law conviction, correct?

Speaker 1 (20:14):

Yeah. So that case involved a very idiosyncratic fact pattern of a person who served a federal prison sentence and then served a state prison sentence for many years and then was released and actually did report to his state probation officer. And apparently he didn't realize and the federal government didn't realize that he also had to simultaneously start this term a federal supervised release, and apparently no one from the federal-

Speaker 3 (20:36):

Oh, that really is idiosyncratic. Okay.

Speaker 1 (20:38):

So yeah. So, I mean, that is just an unusual case. It happens to be pending on certiorari right now, but we haven't found any cases like that since 1984 other than this one.

(20:47)
And the government cites other exotic fact patterns where a warrant wouldn't issue during the term, such as if there's an administrative error in obtaining the abscondment warrant. And yes, theoretically that could happen, but it doesn't happen very often. And in the ordinary case like this one, it's perfectly appropriate for the probation officer to get a warrant-

Speaker 3 (21:08):

In that Swift case you have to deal with the language of the statute which requires a warrant to have issued before the expiration of the date.

Speaker 1 (21:17):

Exactly. But in this case, the warrant did issue-

Speaker 3 (21:18):

[inaudible 00:21:19].

Speaker 1 (21:19):

… based on the abscondment. And so we agree, the sentencing court absolutely had the jurisdiction after the expiration but-

Speaker 3 (21:25):

Thank you, Counsel.

Speaker 1 (21:25):

Okay. Yes, Your Honor. So let me just make one other point about the structure of the statute that I think supports our position. That's rooted in Section 3583(i), the tolling provision we just talked about.

(21:37)
So that's not only about abscondment, but abscondment is one common scenario in which that statute would arise, because the statute says that if a warrant issues during the term, then the sentencing court retains jurisdiction after the expiration of the term to revoke supervised release.

(21:54)
So ordinarily, you wouldn't have the situation where the warrant issues during the term but the hearing happens after the term, because the probation officer knows where the supervisee lives, so the warrant can be executed very swiftly. But one situation in which it couldn't be executed swiftly is when the person is absconded. So the warrant issues during the term, but they can't find the person until after the term expires.

(22:16)
And yet even in that context, the way that Section 3583(i) is set up is it assumes that the term is going to end, and then after the expiration of the term, there will be this revocation hearing that rewinds the clock to the beginning.

(22:32)
And I do think that's inconsistent with how the government is looking at things, which is that the term never ends once the abscondment occurs. And so that's just an additional piece of structural support in the statute that I do think militates in favor of our position. If there's no further questions, I'm…

Speaker 6 (22:51):

Justice Thomas, any further? Justice [inaudible 00:22:56]? Jackson? We done there? Okay. Thank you, Counsel.

Speaker 1 (22:59):

Thank you.

Speaker 6 (23:03):

Mr. Handel.

Speaker 5 (23:05):

Mr. Chief Justice, and may it please the Court, a supervisee is not discharging her term of supervised release while she is absconding from supervision. That common sense intuition is consistent with the modern statutory text with this court's precedents interpreting it and with the uniformed decisional law preceding it.

(23:22)
The supervised release statutes require that a supervisee shall be supervised by a probation officer following her release from confinement. And they detail how that active and ongoing supervision must proceed.

(23:35)
This court has accordingly recognized that supervised release is a system of both post-confinement monitoring and post-confinement assistance, neither of which is possible when the supervisee's whereabouts are unknown because she has absconded.

(23:49)
A fugitive who deliberately and successfully evades supervision, depriving the court of any information as to her conduct, condition, and compliance is not being supervised in any sense that lawyers, legislators, or laymen would understand that word.

(24:05)
Petitioner's theory that she was discharging the supervision component of her judgment, despite being entirely unsupervised, because her abscondment did not automatically terminate her release conditions misunderstands the nature of supervised release.

(24:19)
To discharge her term of supervised release, a supervisee must be both under the supervision of a probation officer and subject to release conditions. But her defiance as to the former does not relieve her obligations as to the latter, just as nothing in the supervised release statutes authorizes a supervisee to earn credit for time spent as an unsupervised fugitive. Nothing permits her by means of abscondment to take a vacation from her court-ordered conditions whenever they prove inconvenient. Those two intuitive principles resolve this case. I welcome the Court's questions.

Justice Thomas (24:53):

You suggest that without the tolling she would receive an unwarranted benefit. What exactly is that benefit?

Speaker 5 (25:02):

Yeah, so I think there are a couple of possible benefits that a supervisee would receive from a period of fugitivity if you did not apply the fugitive tolling doctrine. So it does not apply to this case, but the most obvious and most serious benefit that a fugitive could receive would be the ability to just run out the term of supervised release while she has absconded.

Justice Thomas (25:29):

So in this case, what is the benefit?

Speaker 5 (25:30):

So in this case, the benefit is essentially that she avoided the post-confinement monitoring and surveillance that-

Justice Thomas (25:37):

So if you have revocation as a sanction for that, what is this case about?

Speaker 5 (25:44):

Right. So this case, as I believe Justice Alito pointed out, this case really boils down to just a disagreement about the sentencing guidelines. And candidly, especially given petitioners' concession that the court at the revocation hearing can consider the full range of conduct post-dating the abscondment, we don't think that in the real world this is going to shake out to that much of a difference when it comes to the actual revocation sanction. And I think we said is-

Speaker 2 (26:12):

[inaudible 00:26:13].

Speaker 5 (26:12):

Oh, I'm sorry, Justice Gorsuch.

Speaker 2 (26:14):

In the real world, there is no benefit unless she runs out the clock before the government gets a warrant. I think. Is that right?

Speaker 5 (26:23):

I think that is the situation that we are mostly concerned about, yes.

Speaker 2 (26:26):

Okay. And if that's the situation you're concerned about, it seems to me that it's a very unlikely scenario to arise except for, as Mr. Unikowsky says, if the violation occurs at the very end of the supervised release period, it might escape detection. And similarly though, that's true with anything a supervised release individual might do, any crime he or she might commit, might escape detection at the end of that period.

Speaker 5 (26:58):

So respectfully, Justice Gorsuch, I disagree about the likelihood of the 3583(i) mechanism failing. So I think as has been discussed, we have the Swick case out of the Fifth Circuit where a defendant was serving a state term of imprisonment and then did not report to her federal probation officer as she was directed. There's the Crane case out of the Ninth Circuit where a supervisee was in a residential treatment program, left early and that was not reported to the probation officer.

Speaker 2 (27:27):

But it's also possible a probation officer will miss other crimes at the very end of a period, right?

Speaker 5 (27:31):

Absolutely.

Speaker 2 (27:32):

Okay.

Speaker 5 (27:32):

These were not right at the end of the period though. I mean, there are several real-world-

Speaker 2 (27:37):

Well, if the government has a problem getting warrants, maybe the government ought to go to Congress and ask for i to be amended as it already has once. Thoughts?

Speaker 5 (27:47):

Well, Your Honor, so I know that the government occasionally comes in here and pleads resource constraints and administrability concerns-

Speaker 2 (27:55):

That's what this one sounds like to me.

Speaker 5 (27:57):

Let me just say, with all respect, this process is completely between the probation office and the supervisee. The government does not get involved in the adjudication stage.

Speaker 2 (28:07):

Whoa, whoa, whoa, whoa, whoa, whoa. Hold on. The probation officer isn't a government employee?

Speaker 5 (28:11):

The probation officer is a member of the judicial branch, so-

Speaker 2 (28:15):

I understand that, but you're pleading constraints for the government in whatever form it may be, and I appreciate those constraints, but the government's always been able to go to Congress, and in fact did to amend i once already. Congress has proven pretty solicitous in this area.

(28:31)
And the alternative is for us to create a fugitive tolling doctrine pretty whole cloth. And there appear to be at least two circuit splits. One about what is required to abscond. Is it just not showing up or is it actually being completely unavailable for supervision? Another circuit split over what it means to be an absconder. Does it start when the status arises? Does it start later? And so we're going to have to come up with a whole common law doctrine here to supplement what i already says. Thoughts about that?

Speaker 5 (29:05):

Well, Justice Gorsuch, I disagree on the circuit case law on what constitutes abscondment. I think that the courts of appeals that have adopted are-

Speaker 2 (29:14):

I thought the Ninth Circuit said it's merely failing to appear, and the Fourth Circuit says you have to act in a way that precludes the government from supervising?

Speaker 5 (29:21):

So I think 20 years ago the Ninth Circuit had one case that said that it could be any failure to appear or anything that violated a release condition. Since then, they have clarified in Ignacio Juarez that it is actually a pattern of conduct that precludes supervision. And I think that is fully consistent with what the Fifth Circuit said in Swick and the Fourth Circuit said in Thompson.

Speaker 3 (29:46):

That's one court's view. I think the point that Justice Gorsuch is making is that we would have to decide as a matter of common law which of those approaches is right.

Speaker 5 (29:58):

Well, Justice Sotomayor, the only point that I'm making is that I believe there is actually a consensus on what constitutes abscondment in the courts of appeals that have adopted our view of how this statutory scheme works.

Speaker 3 (30:09):

Counsel, statutorily, supervised release can't go on for more than five years. Under your theory of this case, you're saying supervised release in part continues during the time of abscondment because they're subject to the terms that they violated, and yet it doesn't run out. Isn't that us by common law extending a period of punishment?

Speaker 5 (30:40):

No, Your Honor. Our view of-

Speaker 3 (30:42):

Tell me how not, meaning if during the five years you violate those terms, you're still under supervised release terms, if you violate them, you are claiming that violation subjects you to

Speaker 3 (31:00):

… a new warrant. How are we not extending the period?

Speaker 5 (31:05):

So, Justice Sotomayor, a term of supervised release requires that the supervisee is both subject to conditions-

Speaker 3 (31:14):

In fact, it doesn't. The way the statute is written, it's up to the sentencing judge on whether actual supervision by the Probation Department's necessary. I grant you that I think in virtually all cases, most judges require it, but it's not legally required.

Speaker 5 (31:31):

Well, Your Honor, I think if we read supervision out of supervised release that essentially renders 18 U.S.C. 3601 and 3603-

Speaker 3 (31:41):

But then, what happens to the defendant who is reporting every week, doing what he or she is supposed to do in terms of reporting to the agent, but is out there running a criminal enterprise every single day? That person, in my judgment, is not being adequately supervised. That person is violating the essence of the supervision. And yet, you would claim he hasn't absconded.

Speaker 5 (32:14):

Yes, that person is certainly violating his release conditions. And I want to be very clear that we do not view-

Speaker 3 (32:21):

But that person could be not evading the entire spirit of supervised release, but that doesn't subject them to an extended period of supervised release, does it?

Speaker 5 (32:35):

Well, I think that the distinction there is that if that person is actually being supervised, if their whereabouts are known to their probation officer, if they are checking in with their probation officer, as required by the terms of their supervision, then their violative conduct is much likelier to actually be detected and to result in a revocation hearing and a new sanction.

Speaker 3 (32:55):

The reality is that it rarely is.

Speaker 2 (32:57):

I don't know. I mean, failing to show up is a pretty obvious way to detect a violation, it seems to me, more so than a lot of other criminal enterprises that might be going on. "Well, I dutifully show up, but I'm running a Murder Mayhem Inc. over here." You just don't find it. That's hard to find. You got to go find that. Somebody doesn't show up, I notice.

Speaker 5 (33:21):

Yes. I agree with that, Justice Gorsuch, but I think that not showing up to a meeting is going to get you maybe a grade-C violation. At the most. It probably in most instances will not even be reported to the district court. If you are out there running Murder Mayhem Inc. or something like that, that is obviously much more serious, egregious misconduct that we think if you are actually checking in with your probation officer, if your probation officer knows where you live and where you work and is able to conduct warrantless searches, as is one of the standard conditions of supervised release, that is much likelier for the probation officer to actually detect that misconduct, report it to the district court, and for that to result in a revocation.

Speaker 7 (34:10):

Counsel, you say when she absconds, Ms. Rico's supervision term doesn't run, but she's still subject to the requirements and can violate requirements such as that she has to report. Now, why isn't that just like a prisoner who escapes and you would say, "Okay, he's not get the prison sentence time during that period," but he also violated the rule about prison inmates can only wear a particular type of clothing. It seems to me that is a double counting.

Speaker 5 (34:43):

Well, I don't think so, Mr. Chief Justice. I would point out that when prisoners escape, whether it's from a physical BOP institution or from one of these other forms of confinement that BOP has developed, like home confinement, furlough, halfway house, something like that, they can be… Obviously, at the moment of their escape, the clock stops on service of their term and they will have to fulfill the undischarged portion of the term when they are recaptured. But they can also face institutional consequences for the behavior that they engage in when they are on escape status.

Justice Jackson (35:27):

Not for the same reason. I mean, I think both Justice Sotomayor and the chief might be pointing out that what you are suggesting is not really a tolling rule because the traditional tolling is that the clock stops with respect to the obligation when you run away and it picks up again when you're found again. And what happens in between, you can't be held liable for under that same framework because the clock has stopped. So, it seems to me that what you're actually asking for is an extension rule, one that allows for the obligations to occur throughout the whole period. When you're away, when you've absconded, you say she's still held to account for what happens in the context of supervised release. So, that means those conditions are extending, not tolled, right?

Speaker 5 (36:20):

So, respectfully, Justice Jackson, I disagree with that characterization of it as an extension rule. I think that tolling in every circumstance is about stopping the clock, but tolling has never guaranteed-

Justice Jackson (36:31):

But you're not asking for stopping the clock, that's my point. You're saying the clock is still going because that's what allows you to hold her accountable for the things that happened during the period when she's away.

Speaker 5 (36:40):

We're saying that the clock stops on service of the term, on discharging the term of supervised release. But tolling has never meant an immediate cessation of any attendant disabilities or restrictions that run with the sentence. This is true.

Speaker 2 (36:56):

One big difference is that you're a fugitive prisoner from BOP on the lam. He might commit a crime, and if he commits a crime, he's going to get a jury and a trial. Whereas if on supervised release in the abscondment scenario, the government would assert the right for a judge, rather than a jury. And under a preponderance of the evidence standard rather than under reasonable doubt standard, address any misconduct during that period, correct?

Speaker 5 (37:25):

Not quite, Justice Gorsuch. I mean, obviously you are correct that anytime someone commits a new crime, if they're going to be tried for that crime, they get a jury and all of the attendant protections of the Sixth and Seventh Amendments. But I think with the example of the BOP prisoner who's out on the lam, to the extent we are applying BOP institutional consequences for the behavior that you-

Speaker 2 (37:50):

But that's separate. I think the point is that's separate from the tolling rule that we apply to prisoners who are on the lam. That's separate.

Speaker 5 (38:00):

Well, I think we view it as there is-

Speaker 2 (38:03):

There is apparent supervised release power that you say continues, but doesn't continue.

Speaker 5 (38:08):

I think it's the same thing. I think we are tolling the service of the term, but there still may be additional consequences that attach for the behavior that occurs during that subscondment period. And I'm sorry, Justice Alito.

Justice Alito (38:24):

Well, I was just going to ask whether you think that the petitioner's argument is inconsistent with or at least intention with our decision last term in Esteras, which discussed the factors that are relevant in deciding whether to revoke supervised release and what to do if supervised release is revoked. Now, I recognize the factors are discretionary, but still, the petitioner's argument is that what occurred after the 37 months is off the table and I don't understand where it is of lesser significance. It can be taken into account only through the mechanism of a departure, but I don't see what happened after 37 months is any less relevant than what happened before 37 months.

Speaker 5 (39:22):

I agree, Justice Alito, and I think that what this court said in Esteras is that courts at a supervised release revocation hearing can and should take into account all of the forward-looking interests that criminal sentences serve, which includes deterrence, incapacitation, things like that. I think that giving supervised release the effect that Congress wanted, meaning that it is actually supervision, that it is the post-confinement monitoring and post-confinement assistance that this court recognized in Cornell Johnson and Roy Lee Johnson serves those interests that the court recognized in Esteras. And I don't quite understand. I mean, I think there is certainly some tension in the idea that a person who violates their supervised release by absconding is going to be subject to a sanction derived from the full breadth of their conduct post-abscondment, but that the guidelines are limited to just a subsequent-

Justice Alito (40:23):

Well, what that suggests to me is that this is really… Tolling is a misnomer. If this were purely tolling, by analogy to the fugitive tolling rule, petitioner would not have been on supervised release at all during the whole period when she was absconding, but that she wouldn't be satisfying her terms. She also wouldn't be subject to the terms of supervised release, but you don't want that rule. So, this doesn't seem to me to be really about tolling at all. Neither party really wants a pure tolling rule. It's about what should inform the decision about what should be done when there is a revocation?

Speaker 5 (41:05):

So, Justice Alito, we think that that is a distant second-best rule. We would prefer that rule to a rule of no tolling at all, because as I was discussing, I believe with Justice Gorsuch earlier, our primary concern here is the idea that defendants will be able to abscond from supervision, wait out the expiration date of their term, and if a warrant or summons does not issue under 3583I, they will be able to render the supervision component of their judgment a nullity. That is the worst outcome here. That does not serve the system that Congress enacted in the sense-

Justice Jackson (41:41):

But isn't that exactly what Congress wanted? I mean the reason why we have I, I think, is because Congress suggests that it's only in the situation in which a warrant does issue under those circumstances that the court's Authority can extend to allow for a revocation. So, I think what you're asking for seems diametrically opposed to the policy choice that Congress has made about the circumstances under which the person can be held accountable for something.

Speaker 5 (42:11):

Oh, I'm sorry.

Justice Jackson (42:12):

Yeah.

Speaker 5 (42:12):

I think I part ways with you on the history and purpose of subsection I. So, I would point out, the petitioner puts a lot of marbles in the 3583I bucket because that is essentially the only way that she's able to get around this idea that somebody can do-

Justice Jackson (42:31):

That's because that's what Congress says about when the power can be extended to hold her accountable.

Speaker 5 (42:35):

Well, I would point out just as a matter of history that subsection I was not enacted until a decade after the Sentencing Reform Act. So, in order to buy into her view, you have to accept the idea that the Congress that enacted the Sentencing Reform Act wanted supervisees to be able to entirely defeat the supervision component of their judgment through fugitivity and waiting out the expiration date of the sentence. I don't think that that's plausible difference-

Justice Jackson (43:01):

But what they did was they put the burden on the government or the probation office to alert the court and get a warrant during the time when the person absconds.

Speaker 5 (43:09):

But Justice Jackson, there was no 3583I at that time. There was no 3583I. There was no warrant or summons extension mechanism for the first 10 years that the Sentencing Reform Act was in effect. That was not enacted until 1994.

Justice Jackson (43:23):

And your conclusion is then that we have to, now that 3583I exists, interpret it consistent with the preexisting state of affairs?

Speaker 5 (43:32):

Well, I have additional reasons that I think 3583I is insufficient, but I do think it's important to look at the history and think about what the Congress that enacted the Sentencing Reform Act was trying to do. And I think if Congress gave district courts, for the first 10 years of the supervised release system, gave district courts no tools whatsoever to go after absconding supervisees who were able to wait out the expiration date of their term, I think that that is very strong evidence that Congress anticipated that traditional ideas of fugitive tolling would be incorporated into the new supervised release system that they were enacting.

(44:11)
But in terms of what I think 3583I was going after, I mean, as I think petitioner acknowledged on page six of her opening brief and as the Second Circuit recognized in the Jeanviet case, this was really about a very narrow subset of late breaking violations where there was not time left on the clock for the district court to conduct the revocation hearing required by rule 32.1. Every court to have passed on 3583I has talked about this as being a provision that is designed just for those very late end-of-term violations. It is not a general fugitive tolling provision-

Speaker 8 (44:55):

I guess, Mr. Hendel, though, the question to you is in what provision do you put your marbles? I mean, in addition to 3583I, Mr. Unikowsky would say back to you, "Look, there is no fugitive tolling provision in this statute of the kinds that the government wants." There is a tolling provision in the statute, it applies to prisoners, it does not apply in this situation. And there is in addition a fairly granular detailed instructions about what to do with a person like the petitioner here. In other words, that there should be a revocation, there should be a new sentence of imprisonment with a term of supervised release attached to it. So, the statute offers a solution for what to do with prisoners like Ms. Rico. So, where are we supposed to look in the statute for your solution?

Speaker 5 (45:51):

Right. So, I think there are a couple of analytical questions baked into this case. And the first one is just, are you serving a term of supervised release when you're unsupervised? And if you agree with us on that, that is just about the basic fundamental essence of supervised release, looking at the full range of statutes that Congress enacted here, 3601, 3603, 3624E. And saying, "Yes, Congress anticipated that when someone is sentenced to a term of supervised release, they will actually be supervised by a probation officer." If you agree with us that you have to actually be supervised to be discharging a term of supervised release, then you've already disagreed with petitioner's position. And then, we just get to the secondary question of, "Okay, what do we do with these release conditions after abscondment?" And I'm happy to talk about that and why I think that abscondment should not-

Speaker 8 (46:42):

If I take your argument right, that suggests that the only statutory provision you're pointing to is the one that identifies the person who actually does the supervision. Is that correct?

Speaker 5 (46:52):

I think 3601 imposes an obligation on a supervisee to be supervised, and 3603 imposes an obligation on the probation officer to supervise. I think that those work together.

Speaker 8 (47:05):

It's pretty bare bones, yeah?

Speaker 5 (47:09):

Respectfully, I disagree with that characterization, Justice Kagan. And I will acknowledge that there is not an explicit fugitive tolling provision in the Sentencing Reform Act or any of the amendments akin to the carceral tolling position-

Speaker 8 (47:26):

Nor is there a lot of detail about what the supervision looks like. So, to the extent that you're putting all your marbles in this idea of supervision, I mean, the statute basically says, "Go get supervised."

Speaker 5 (47:36):

I mean, I think 18 U.S.C. 3603 actually puts some meat on the bones of what supervision should look like. I grant that that is oriented toward probation officers, rather than the supervisee herself. But I think that that tells us what Congress thought supervision would look like in practice and what kinds of requirements for monitoring, reporting, assistance Congress was trying to bake into this system.

Speaker 8 (48:01):

Thank you.

Speaker 5 (48:02):

Yeah. Just to get to the 3624E carceral tolling provision. I think as we pointed out in our brief, Congress had a very good reason for explicitly addressing that. And it's because there was a disagreement in the case law as to whether you would toll for terms of incarceration that arose during a period of supervision, but were based on conduct that predated the term of supervision. So, they couldn't quite be tethered to a violation of supervision in the way that this court treated the interruption in Anderson versus Corall, and Zerbst versus Kidwell. Congress resolved that judicial disagreement in favor of more tolling. I don't think that that tells us much of anything about what they thought about fugitive tolling. Certainly, it doesn't foreclose the existence of fugitive tolling in the sentencing reform.

Justice Jackson (48:55):

Can I just ask you one quick question about your supervision issue? Suppose we have a defendant who's in a coma, are they being supervised? Is abscond meant the only thing that triggers your argument that the person is not being supervised?

Speaker 5 (49:09):

Right. So, I think there are any number of situations we could imagine, a comatose supervisee, a lazy or incompetent probation officer, anything like this where supervision is not occurring in the way that Congress-

Justice Jackson (49:23):

And that, in your view, would warrant an extension of the supervised release?

Speaker 5 (49:28):

No, Your Honor. And I think the text gets us like 98% of the way. It gets us to the two yard line in terms of what counts as supervision or not. And then, the last couple of yards have to incorporate background principles from the preexisting case law. And there I think you would look at against whom do we tax this failure of supervision? We recognize that this is not the system operating as Congress designed it. Maybe the probation officer is not meeting the duties imposed on him in 3603. Maybe the supervisee is not doing what she's technically required to do under the terms of the judgment, but how do we tax that failure?

(50:10)
And I think that the lower courts that have adopted our view of this statutory scheme have gotten it right when they've said that a supervisee absconds, that a supervisee is tolled for her undischarged term of supervised release when she deliberately renders supervision impossible. You would not be able to satisfy the mens rea requirement as to a comatose supervisee or as to any situation in which the probation officer, rather than the supervisee, was at fault for the lack of supervision.

Justice Jackson (50:40):

Thank you.

Speaker 7 (50:43):

Thank you, counsel. Anything further? Thank you. Thank you. Unikowsky, rebuttal?

Speaker 1 (50:53):

Thank you, Mr. Chief Justice. I first want to address Justice Alito's question about the possibility of true tolling, under which during the abscondment period the person wouldn't be subject to the conditions at all. First of all, if that were the rule, then Ms. Rico would prevail in this case because the government's case hinges on Ms. Rico having violated the conditions of supervised release during that period. But second, we respectfully disagree with that rule as inconsistent with the judgment. The judgment does say that when the sentence expires, Ms. Rico will be subject to X number of months of supervised release. So, I think what that means is that when Ms. Rico was released from prison, she serves X number of months of supervised release, and that doesn't stop because Ms. Rico makes the unilateral decision to abscond.

(51:35)
I'd like to talk about section 3583I. As counsel mentioned, that statute was enacted in 1994. And the reason it was enacted is that there were administration problems prior to the enactment of that statute. Several courts invented these judge-made rules to try to get around them. Finally, Congress solved the problem with section 3583I, but I think it's notable that Congress enacted the statute with a very reticulated language that self-consciously departed from the parole equivalent, section 4210C. It specifically required that the warrant issued during the term and only then was jurisdiction extended until after the term.

(52:10)
So, that would've been a perfect opportunity for Congress to enact the same type of fugitive tolling rule that already existed for parole. Congress's decision not to do that, I do think sheds light on the question presented here.

(52:22)
I want to say word about section 3601, the statute that says that the supervisee shall be supervised, which counsel which counsel characterized as getting the government 98% there to the two yard line. I don't think that statute's very helpful to the government. All it says is that the person shall be supervised. Moreover, that's just a prefatory provision in a portion of the US code addressing the duties of probation officers. That appears in section 3601. The next section is about how probation officers are appointed. And then, the next section after that concerns the duties of probation officers. So, I think it's hard to read that as recognizing a fugitive tolling doctrine. It says nothing about tolling, nothing about extending the sentencing court's jurisdiction, nothing about stripping people of credit, and those are all topics that are addressed in other portions of the Sentencing Reform Act that do not enact the government's proposed rule.

(53:13)
Ultimately, this case boils down to the proposition that there's just no statutory support for the government's claim that Ms. Rico could have been simultaneously on supervised release for purposes of finding a violation of the conditions, but off supervised release for purposes of determining whether she was serving her sentence. Because there is no textual support for fugitive tolling, we would ask the court to reverse the judgment below. Thank you.

Speaker 7 (53:38):

Thank you, Counsel. The case is submitted. Argument next in case 24924, Hencely versus Fluor Corporation. Mr. Chang?

Speaker 9 (55:03):

Mr. Chief Justice, and may it please the court. After the Army found that Fluor's disregard of key contractual requirements led to the bombing at Bagram, Specialist Hencely tried to seek some measure of justice, but the Fourth Circuit blocked his efforts on a rationale that Fluor doesn't defend. Fluor's alternative theories do not justify preemption here either. First, Fluor argues that the Constitution's structure, either by itself or through its emanations of federal interests, preempt Hencely's claims. That argument has no basis in the Constitution's text, structure and history. Our constitution presumes that state tort claims are available and leaves it to Congress to alter that default rule. Congress has done so in some circumstances when it comes to federal contractors. [inaudible 00:55:55] lawmaking should play a modest rule or the teaching in Garcia that preemption cannot be based on uncodified interests. I welcome the court's questions.

Justice Thomas (56:06):

Did respondent make the constitutional arguments below?

Speaker 9 (56:10):

I believe it was included in a small portion of the appellee's brief below, Your Honor.

Justice Thomas (56:18):

In your case, is there any portion of activity, that we're talking about, that was done at the direction of the military that's involved here?

Speaker 9 (56:30):

We don't think so, Your Honor. And the reason is supervision and escorting were left entirely to Fluor under the contract. Once the bomber was hired and was on the base, it was up to Fluor, under its contractual obligations, to supervise him at his work site as well as to escort him.

Justice Thomas (56:48):

And would you spend just a brief moment discussing why Boyle is not dispositive or why it doesn't control here?

Speaker 9 (56:57):

Sure. So, Boyle is all about a contractor who does what the government says. That is the heart and soul of Boyle. It starts at page 505 by saying the government's interest isn't getting its work done. And at step two, it says there was a significant conflict between state tort duty and what the government required that was precisely contrary to what the government required. And as step three, Boyle made it very clear that its defense is for contractors who adhere to the government's specifications.

Speaker 10 (57:29):

What do you do with the entire text and history of the Constitution which says war making, war fighting in combat zones is a federal interest in the state's Article 1, Section 10, and otherwise, have nothing to do with how America conducts its operations in a combat zone?

Speaker 9 (57:51):

Certainly, Your Honor. So, Articles 1 and 2 do not automatically preempt state law when it comes to federal contractors. And we know that from cases like Penn Daries and North Dakota. In Penn Daries, this court said there is no clause of the constitution which purports unaided by congressional enactment to prohibit such regulations and such regulations there was regulations of military contractors. And of course, Justice Kavanaugh-

Speaker 10 (58:18):

Well, in a war zone though, in a combat zone, we have a line of cases, Garamendi, Crosby, you know all the cases, put aside Boyle. Boyle footnote four talks about this, but not Boyle the rest of it. That says that there are certain areas where there's a uniquely federal interest. And in those areas, the usual preemption rules don't apply, that we expect Congress actually to speak clearly if they want to provide for something like state tort suits. And so, that's flipped. And it would think if you're talking about uniquely federal interests, there's nothing that's more uniquely federal than successfully fighting a war in a combat zone.

Speaker 9 (59:05):

Certainly, Your Honor, we agree that Texas can't declare a war in Mexico or New York can't invade Canada. We agree-

Speaker 10 (59:11):

But can Texas regulate how the military structures its operations at Bagram or can South Carolina regulate it? And that raises another question here, which is pointed out by Judge Silberman and his opinion on this, which you're familiar with, which is can 50 different jurisdictions regulate what's going on at Bagram?

Speaker 9 (59:33):

Certainly, I'll address in turn. So, as to the constitutional structural point, we know that default is common law claims are available. And it goes all the way back to cases like Little v. Barreme, where Chief Justice Marshall, he upheld damages award against the Navy captain who was following the president's order. And also, in cases like Mitchell versus Harmony, there was a common law claim against an army colonel who seized an American citizen's property during the Mexican-American War in that case. So, this is certainly an area where Congress can certainly act and Congress has done so-

Speaker 10 (01:00:10):

Well, I agree with that, so I don't want this to sound like I disagree with that. Congress can certainly act. The question is, what's the baseline? And the baseline, I thought under our case law going back way back, if it's a uniquely federal interest, we have lots of cases saying something along those lines that we required a Congress Act to allow such suits. And we've said in Crosby, for example, "A failure to provide for preemption expressly may reflect nothing more than the settled character of implied preemption doctrine that courts will dependably apply." And so, Congress looking at this area, the idea that state tort law is going to regulate what goes on in Bagram, I think Congress will be like, "Hmm, sounds way out there," and not something that they need to get involved in because of the doctrine, as Crosby says, that is dependably applied.

Speaker 9 (01:01:07):

Sure. So, two responses, Your Honor. The first is the fact that military contractors might face some liability for acts occurring overseas US bases was not lost on Congress. So, Congress in 1941 passed a law called Defense Base Act. And what Congress did there was to exclude or preclude liability for government contractors occurring on a US bases as to their civilian employees that are under their supervision. So, what that says is the fact that Congress, of course, operating against a background law, like Little and Mitchell, knew that common law had a reach, even on foreign soil. And Congress certainly could have acted to take that back as to when it comes to American soldier who is injured by contractors.

Speaker 3 (01:01:55):

Counsel, isn't the simple answer to Judge Kavanaugh is the 50 states can't

(01:01:59)
They don't-

Justice Sotomayor (01:02:00):

… tell the military what to do, correct?

Speaker 9 (01:02:02):

Certainly. Absolutely correct, Your Honor.

Justice Sotomayor (01:02:04):

We've already said that in Boyle.

Speaker 9 (01:02:06):

Correct. Correct.

Justice Sotomayor (01:02:06):

And we made it clear if the military orders them to do something, they have to do it and-

Speaker 9 (01:02:14):

Correct.

Speaker 10 (01:02:15):

Military contractors, though.

Justice Sotomayor (01:02:17):

Well, the military contractor. So what Justice Kavanaugh is talking about is almost a field preemption concept-

Speaker 10 (01:02:27):

Yeah.

Justice Sotomayor (01:02:27):

… that absent the conflict. An entire field is preempted. And what you're saying, I think, by using Little and Mitchell, is that entire field in our history has not been considered preempted, correct?

Speaker 9 (01:02:43):

That is correct, Your Honor.

Justice Sotomayor (01:02:44):

All right. So now let's go down to something more. I think the interest that's being protected is military interest, correct?

Speaker 9 (01:02:56):

Yes.

Justice Sotomayor (01:02:56):

All right. It's the federal government's military interest.

Speaker 9 (01:02:59):

Correct.

Justice Sotomayor (01:03:00):

You only get liability if the state law conflicts with military orders in some way.

Speaker 9 (01:03:08):

Correct.

Justice Sotomayor (01:03:09):

And so if there's no conflict, there's no interest to protect, correct?

Speaker 9 (01:03:13):

There's nothing here because Fluor violated what the military wanted it to do.

Justice Sotomayor (01:03:18):

That's the question that Justice Thomas asked you, which is, there has been no directive by the state that the contractor had to do X, Y, and Z. It was a directive of the military, correct?

Speaker 9 (01:03:34):

Correct, Your Honor. I mean, so we think that the state law duty also applies here, the duty of reasonable supervision.

Justice Sotomayor (01:03:41):

It does because the government didn't direct unreasonable conduct.

Speaker 9 (01:03:44):

Correct.

Justice Sotomayor (01:03:45):

If the government directed unreasonable conduct, there'd be no liability, correct?

Speaker 9 (01:03:49):

Correct. The government did not direct Fluor to disregard supervision duties.

Justice Barrett (01:03:53):

Mr. Chang-

Justice Sotomayor (01:03:54):

I'm sorry.

Justice Barrett (01:03:54):

Sorry.

Justice Sotomayor (01:03:55):

We'd be creating a new area of preemption law. If we say that there is field preemption.

Speaker 9 (01:04:03):

Especially through a federal interest.

Justice Sotomayor (01:04:04):

When there is no conflict whatsoever.

Speaker 10 (01:04:06):

Footnote 11 of Garamendi says, "If a state were simply to take a position on a matter of foreign policy with no serious claim to be addressing a traditional state responsibility, field preemption might be the appropriate doctrine." I mean, there's been a lot of discussion in the case law about how you distinguish field and conflict, but field preemption in an area of uniquely federal interest, you can call it conflict, you can call it field, but the word field has been in our case law at times on this kind of thing. I'll stop there, but I want to get that comment out.

Justice Barrett (01:04:39):

And I guess I want to ask following up about the field, it seems to me you don't necessarily lose even under the enclave theory, because I understand the field preemption argument to be kind of a Clearfield Trust, Kimbell Foods. This is an enclave of uniquely federal interests. But even if that's so, all of that means, and Boyle kind of finesses this question, but all that means is that the federal court would adopt a common law rule. It doesn't necessarily mean that the state rule would be that there would be no liability, I guess is what I'm saying. So if that were the case, we would still have to decide what the rule would be and we could decide to let state law apply as a matter of federal common law, right? And if we look at the Federal Tort Claims Act and you see that the combat activities exception doesn't extend to independent contractors. You might say, well, it makes sense to allow liability to remain even if we're doing it as a matter of federal common law, right?

Speaker 9 (01:05:33):

That is certainly correct, Your Honor. So there is a line of cases that say as a matter of federal common law rule, we're going to adopt a state law rule here. But I think the simplest way here is to just read Boyle as it is. And it's about a contractor who does what the government-

Justice Barrett (01:05:50):

No, no, no. I understand that. I guess what I'm saying is I think you could win even if we're looking at it as a matter of, listen, the Constitution carves out war powers, and that sort of thing is an enclave of uniquely federal interests, which it does, right? If you took that line of analysis, I don't think you necessarily lose even under that line of analysis [inaudible 01:06:10].

Speaker 9 (01:06:09):

We wouldn't, Your Honor.

Justice Alito (01:06:10):

Mr. Chang-

Justice Barrett (01:06:11):

Do you understand Boyle then?

Speaker X (01:06:13):

If you took-

Justice Barrett (01:06:14):

Sorry, can I just finish?

Justice Alito (01:06:15):

Yeah, sure.

Justice Barrett (01:06:16):

Do you understand Boyle then, to create a very narrow kind of preemption that's not constitutional, that really is just about the conflict of conflict terms, sorry, contract terms?

Speaker 9 (01:06:25):

Yes, that's how we understand it. And that's what the opinion in Boyle said as well, because Boyle carves out two hypotheticals where you're dealing with a government contract.

Justice Barrett (01:06:34):

Like the air conditioner. Yeah.

Speaker 9 (01:06:34):

Correct.

Justice Barrett (01:06:34):

Yeah.

Speaker 9 (01:06:35):

And a stock helicopter example as well. So that clearly shows that contractors or Justice Scalia envisioned a system where contractors are still subject to state law liability.

Justice Alito (01:06:44):

Well, Mr. Chang, you're backtracking a lot from the position that I took from your brief. Basically, the thrust of your brief is boil is inconsistent with textualism. The whole idea of uniquely federal interest preemption is wrong. I'm quoting you. "Boyle's uniquely federal interest preemption is difficult to reconcile with the Supremacy Clause in this court's preemption cases. Brooding federal interests and judicial policy inquiries cannot support preemption, yet Boyle invites precisely those types of those inquiries."

(01:07:23)
So you can't quite bring yourself to say Boyle's inconsistent with textualism and it should be overruled, but what I got from your brief was you want us to limit it as much as possible. Did I read too much into your brief?

Speaker 9 (01:07:40):

No. So our position is that this court does not have to overrule Boyle because we win even under Boyle's terms. And certainly the only reason that this-

Justice Alito (01:07:51):

But was Boyle correctly decided? Suppose it was before us today, what would you say?

Speaker 9 (01:07:56):

I would follow what you wrote in Garcia, Your Honor, that the Supremacy Clause is limited to the Constitution, federal statutes and treaties.

Justice Alito (01:08:06):

Well, I don't think that's quite what I wrote, but…

Speaker 9 (01:08:08):

Even if you didn't-

Justice Alito (01:08:09):

That's something else. I mean, what I took from your brief is you're saying Boyle's inconsistent with textualism. Who wrote Boyle?

Speaker X (01:08:15):

Justice-

Speaker 9 (01:08:17):

Justice Scalia wrote it.

Justice Alito (01:08:18):

I mean, so you're saying the founding father of textualism doesn't understand textualism?

Speaker 9 (01:08:21):

No, that's not what I'm saying at all, Your Honor.

Justice Alito (01:08:24):

Well, that's what I thought. Well, are you willing to… Are there situations in which the Supremacy Clause itself has a preemptive effect?

Speaker 9 (01:08:34):

This court has understood it so. And as this court said in the United States v. Washington, there are circumstances where the state law directly regulates the federal government or it discriminates against the federal government or its contractors.

Justice Alito (01:08:47):

So why wouldn't that apply when what is at issue are actions taken by a military contractor basically on the battlefield and you want state courts and state juries to decide whether what the military contractor did is justified?

Speaker 9 (01:09:11):

No. Your Honor, first, we're dealing with something that occurred on the civilian part of the base involving-

Justice Alito (01:09:16):

Oh, well, it's a-

Speaker X (01:09:16):

It's Bagram.

Justice Alito (01:09:18):

It's a beleaguered-

Speaker X (01:09:19):

Come on.

Justice Alito (01:09:20):

Yeah. It's a military base in a war zone. And the very fact that there was this terrorist attack there shows the connection with the conduct of the war, doesn't it?

Speaker 9 (01:09:30):

So we're dealing with something that the Army left entirely to Fluor to do. And this is a natural consequence of the fact that Congress knew about contractor liability, but has not limited service members to be able to sue contractors when they're injured.

Justice Alito (01:09:46):

Now, suppose a contract says that the contractor is to provide appropriate protection when it is accompanying a convoy through a dangerous area, all right, and let's say that a member of the military is injured, could that member of the military sue the contractor on the theory that the contractor was negligent?

Speaker 9 (01:10:17):

It depends on what the Army's understanding was. And Boyle contemplates this too, Your Honor. So Boyle says you look first at whether there was a reasonably precise specification, and the step two is whether or not the contractor adhered to that standard.

Justice Alito (01:10:33):

Yeah. Well, what if it's just provide appropriate protection?

Speaker 9 (01:10:38):

I think Boyle contemplates litigation over that issue.

Justice Alito (01:10:41):

Seriously?

Speaker 8 (01:10:44):

I was thinking of a similar question to Justice Alito that you could have the rule that you're suggesting here, and it's the rule that I do think follows from Boyle, which is that the contractor is liable as long as the military didn't specifically approve or direct the conduct. But you could have a more deferential rule, which still allows some forms of state liability to come in, which is that the contractor is liable if, but only if the plaintiff can show that the contractor violated military policy.

(01:11:16)
In other words, so in this set of circumstances of the kind that Justice Alito was given where the government doesn't really say one way or the other, maybe doesn't say anything at all or maybe leaves it to the contractor to decide, there liability would not be all right. Instead, liability could come into effect only if you could show that the contractor violated military policy. What would you think of a rule like that?

Speaker 9 (01:11:41):

We would certainly be okay with that rule. Certainly if the court is already thinking about creating some sort of a federal common law rule in this area, we think it should be the one that furthers the government's interest by avoiding contractor negligence and incentivizes contractor adherence in a war zone. And this ended up injuring multiple US soldiers on the base because Fluor didn't do what the Army told it to do. So if we're thinking about what kind of rule applies, the rule has to be one that saves soldiers.

Justice Barrett (01:12:11):

Mr. Chang, as a matter of conflict of laws, why does South Carolina law even apply? And I understand we don't have to decide that question to decide this case, but it does seem perplexing.

Speaker 9 (01:12:21):

Certainly. So part of it is largely a choice of Fluors. Fluor was the one who put a principle place of business in South Carolina. It should be not surprising at all sometimes when you apply choice of law principles that the forum state's law might apply to you. And here, Fluor hasn't disputed our assertion that South Carolina law controls-

Speaker 10 (01:12:42):

Is it possible that Afghan law could apply based on choice of law principles?

Speaker 9 (01:12:47):

It's certainly possible, Your Honor.

Speaker 10 (01:12:49):

So it's possible that a suit against a military contractor in a war zone could be based on the enemy's law.

Justice Barrett (01:12:59):

Which seems bizarre. If this happened on an American base, I wouldn't understand the base to be Afghan, so I would understand it to be US soil. So if that… Seriously?

Speaker 9 (01:13:09):

Certainly. I mean, there are some courts that have lower courts that have applied Afghan law in situations like this. However, there are certainly other things that factor in as well, like whether there's an agreement between [inaudible 01:13:20]

Justice Barrett (01:13:20):

Doesn't that seem like a pretty big problem for your theory if that's the state law… Or if the default is whatever law would otherwise apply, as Justice Kavanaugh saying, the enemy's law is going to apply to the… I mean, that suggests that maybe a federal common law should apply. Maybe not the common law rule that Fluor and the government want, but if the alternative is a default of Afghan law?

Speaker 9 (01:13:42):

So two responses to that, Your Honor. The first is that… So when it comes to applying foreign law to judge the acts of a military contractor, again, that's an ordinary working of the fact that Congress has not displaced state law, which includes the operation of choice of law principles under that state law. And the second is that this is obviously not an issue in this case because we're solely talking about preemption here and Fluor hasn't raised any choice of law issues, but there might be other doctrines that preclude application of foreign law in situations like this.

Speaker 10 (01:14:18):

Can I circle back to something Justice Alito asked? He asked you what the scope of… if you thought there was constitutional preemption as a principle, and you said yes, I believe, but correct me if I'm wrong. And I wanted to know, is uniquely federal interest a branch of constitutional preemption in your view?

Speaker 9 (01:14:39):

We believe it's a branch of federal common law preemption, Your Honor.

Speaker 10 (01:14:43):

What's the difference then between what you're calling constitutional preemption and federal common law preemption as to the concept of uniquely federal interest, or is there any difference at all?

Speaker 9 (01:14:54):

So what I was talking to Justice Alito about was cases like U.S. v. Washington and Pendaries and North Dakota.

Speaker 10 (01:15:00):

Can you just answered my question, is there any difference?

Speaker 9 (01:15:02):

There is a difference, Your Honor.

Speaker 10 (01:15:03):

What is the difference?

Speaker 9 (01:15:04):

The difference is one comes from the structure of the constitution and this court's decisions.

Speaker 10 (01:15:11):

Difference in application. Is there any difference in application? I'm sorry.

Speaker 9 (01:15:17):

I mean, yes, Your Honor, because one is saying that states cannot act in a discriminatory manner against a contractor, and the other is that you're displacing the operation of the entire state law from that area. So when it comes-

Speaker 10 (01:15:30):

Unless Congress specifies otherwise. Always important to put that on there. Congress could provide for state tort law in this area. That's my point, which is this whole case, in my view, starts with what's your baseline with state tort law regulating military contractors in a war zone? Is your baseline that Congress has to speak to displace that or that Congress has to speak to provide for that? And I would think our uniquely federal interest branch of preemption law makes, I thought, fairly clear that Congress would have to speak to provide for that. And look, what happened here is terrible, so I'm completely sympathetic to that, but in terms of the legal framework that applies for situations like this, my thought based on the precedent was Congress has to speak to provide for.

Speaker 9 (01:16:16):

We don't think so, Your Honor. Given cases like Little and Mitchell, we think the default is that common law rule is in place unless Congress affirmatively displaces the operation of the state law.

Speaker 11 (01:16:26):

And is it your view that Boyle comes out differently under Justice Kavanaugh's theory? I mean, I guess I'm trying to understand that if we sweep as broadly as this is a war zone and there's a uniquely federal interest, I thought that was also the case, not maybe the war zone part, but the uniquely federal interest part in Boyle. So doesn't it come out differently?

Speaker 9 (01:16:48):

Your Honors, there is certainly a tension-

Speaker 11 (01:16:50):

Or at least doesn't… We don't need all the analysis that Boyle has to get to preemption, I guess. If we could just say at step one, uniquely federal interest and that's the end of it, right?

Speaker 9 (01:17:01):

That is not even the analysis in Boyle. Uniquely federal interest was a starting point in Boyle.

Speaker 11 (01:17:07):

Correct. So there was more to it. And there was a reason because the understanding was that there still might be an opportunity or a circumstance in which you would have liability, even though we're talking about a federal government contractor dealing with the procurement of military equipment in a way that is obviously implicating federal interests.

Speaker 9 (01:17:31):

That's certainly right, Your Honor.

Speaker 11 (01:17:35):

So can you just say a little bit about the Badia test? As I read your brief in the last few pages, you seemed to say that if the court applies the kind of Boyle analysis here, it's the Badia test that you would suggest. Why is that?

Speaker 9 (01:17:51):

So we think that the Badia test is more fateful to what this court's teaching in Boyle. Again, Boyle zeroed in on the federal government's interest in getting its work done and making sure that there wasn't a conflict between that decision and the state law duty. So Badia looks close to that. And if we get to that, because Badia actually looks at what the military has authorized and directed. So it is a test that coarsely tracks the military's decision and Boyle.

Justice Alito (01:18:23):

If preemption depends on the interpretation of the contract and whether the contractor violated the terms of the contract, do you want us to adopt something like the rule that used to apply in foreign sovereign immunities cases so that if the government says there was no violation of the contract, that's the end of the matter? Would you say no? The plaintiff still has the opportunity to litigate that issue in state court, presumably, possibly in front of a jury.

Speaker 9 (01:18:59):

We don't have a strong position on that, Your Honor. Certainly, if the court says what the military says is preclusive, that's good for us because the military favor us in this case.

Justice Alito (01:19:09):

No. Well, not that it would be preclusive against Fluor. Would it be preclusive against you on the issue of preemption?

Speaker 9 (01:19:17):

Like I said, we don't have a position one way or another on that.

Justice Alito (01:19:20):

How can you not have a position on that? That seems to me quite critical to what's at stake here.

Speaker 9 (01:19:27):

Certainly, Boyle, as step one, leaves that possibility open in this area. It anticipates litigation over what the specification meant and whether there was a compliance with that specification. It would be a really hard case for any plaintiff to disagree with an army coming in. And even if a judge disagrees with that, that would give the contractor a great reason on appeal. And that is not a reason to displace state law.

Speaker 12 (01:19:51):

[inaudible 01:19:52]

Justice Alito (01:19:52):

Thank you, counsel.

Speaker 12 (01:19:53):

I'm sorry. Justice Thomas, anything further?

Justice Thomas (01:19:56):

As I understand your argument, you're not saying that the government is precluded from preempting the lawsuit, your lawsuit.

Speaker 9 (01:20:07):

Correct, Your Honor.

Justice Thomas (01:20:08):

Would you walk me through the argument for the Federal Tort Claim Act exception operating as a preemption statute?

Speaker 9 (01:20:22):

So obviously we don't believe that it does, Your Honor. And that argument has sort of fallen to the wayside during the merits briefing here because Fluor is now relying on a completely different source of federal interest in this case. As I understood it, it was that as the Fourth Circuit said, the combatant activities exception has a policy of protecting the military's judgment. And that meant that even the imposition per se of state law was a problematic imposition.

Speaker 12 (01:20:54):

Justice Alito? Justice Sotomayor?

Justice Sotomayor (01:20:58):

No.

Speaker 12 (01:21:02):

Thank you. Kagan? Justice Gorsuch? Justice Kavanaugh?

Speaker 10 (01:21:02):

States wanted to do this not by tort law, but wanted to do it by regulatory law. They could do that, I assume, as well, correct?

Speaker 9 (01:21:12):

But it would be limited. Its ability to do that would be severely limited.

Speaker 10 (01:21:18):

Tell me what the limits are.

Speaker 9 (01:21:19):

The limits are the non-discrimination principle that we discussed, and also we certainly do not argue that there is-

Speaker 10 (01:21:27):

The general state regulation of workplace safety. That would be non-discriminatory, right?

Speaker 9 (01:21:34):

That would be non-discriminatory, but again, that might conflict with the provision-

Speaker 10 (01:21:37):

Or of employee rights. That would be non-discriminatory, right?

Speaker 9 (01:21:42):

It's not clear if that would include a soldier overseas. And also-

Speaker 10 (01:21:46):

It's a contractor.

Speaker 9 (01:21:48):

To a contractor?

Speaker 10 (01:21:49):

A military contractor overseas. The state wants to apply its employee rules, its workplace safety rules on a non-discriminatory basis, yes or no?

Speaker 9 (01:22:00):

No, because the DBA already precludes things like that.

Speaker 10 (01:22:04):

What kinds of regulatory … But you said some could be applied, right?

Speaker 9 (01:22:08):

If it was like a safety regulation like here, that could certainly be it.

Speaker 10 (01:22:16):

What do you say to the retired military brief that says that this is going to, your rule would lead to finger pointing, which I think this suit would lead to finger pointing by the defendant against the military and back and forth on that? How does someone who used to be in the Taliban end up running a 5K or whatever it was at the starting line, that's going to be a lot of finger pointing on that. And the retired military officers say in military theaters, legal uncertainty and finger pointing are an invitation to ruin. And I'm just curious your response to that.

Speaker 9 (01:22:54):

So this is a situation where the military already found that it was not responsible, it was Fluor's responsibility.

Speaker 10 (01:23:02):

Well, the military found that, right?

Speaker 9 (01:23:06):

Oh, certainly.

Speaker 10 (01:23:07):

Yeah.

Speaker 9 (01:23:07):

I mean, so there might be finger pointing, but-

Speaker 10 (01:23:11):

Certainly, Fluor's not going to agree with that, right?

Speaker 9 (01:23:14):

At the end of the day, just the possibility of things that might unfold during discovery or evidentiary issues-

Speaker 10 (01:23:20):

Would you imagine in state court, like generals, military officers coming in for testimony about what our rules were for the people who worked in the vehicle yard, what our rules were for who could run in the 5K, why we had former Taliban working on a U.S. base at Bagram? That'd be an interesting discussion, I'm sure. Do you envision that kind of testimony happening in the state court?

Speaker 9 (01:23:50):

No, not at all. Because here, the Fourth Circuit already agreed with us, that the litigation here would not lead to assigning fault to the military. We can assume military made decisions that it made and we can judge Fluor's actions under those military decisions as a given. We can take that as a given. Have any federal courts gone your way on this general issue so far?

Speaker 10 (01:24:16):

So the Badia Court has agreed with us and that's why there was a circuit split in this case.

Speaker 9 (01:24:21):

Okay.

Speaker 10 (01:24:22):

Thank you.

Speaker 12 (01:24:22):

Justice Barrett?

Justice Barrett (01:24:24):

Just to follow up quickly on Justice Kavanaugh's question about the finger pointing and the kinds of questions that the United States would be asked. It's my understanding in the United States brief that it said that it could assert the state's secrets privilege and reserve the right to do so, although it had not yet in this case, right?

Speaker 9 (01:24:39):

That's correct.

Justice Barrett (01:24:40):

So if there was confidential information, there would be, you would agree, some sort of protection?

Speaker 9 (01:24:45):

100%. And the fact that there are other mechanisms to protect the government's interests like that undercuts the need to displace state law with federal common law in this case.

Speaker 12 (01:24:58):

Justice Jackson?

Justice Jackson (01:24:59):

And is it your view that really the rule that you want us to adopt or the one that you're focused on is applicable in the situation in which the contractor acts contrary to the military's interests because it's doing something negligently that it has not been authorized by the military to behave in this way, the particular way that is being claimed as causing the injury in this case?

Speaker 9 (01:25:32):

That's correct. I mean, if we're creating a federal rule to further the government's interests, the violations have to be factor into.

Justice Jackson (01:25:39):

How do we think about the fact that apparently DOD and its regulations left open the opportunity or said to contractors that you could be held liable? So it's the government's understanding that there's some operation of common law potentially against contractors in this universe, right?

Speaker 9 (01:25:57):

That's huge, Your Honor. I mean, the fact that DOD has been telling contractors that they could be liable and that the public policy rationale of Boyle will not protect you if the government's decisions are not at issue, that's huge. And we also have the fact that Congress has not acted to display state law here.

Justice Jackson (01:26:16):

And with respect to the FTCA and the combatant activities in your exchange with Justice Thomas, I guess I'm also curious about the point that I think Justice Barrett made earlier, which is that the combatant activities exception doesn't apply to contractors, correct?

Speaker 9 (01:26:34):

Not at all.

Justice Jackson (01:26:34):

So Congress did not envision a world necessarily in which contractors would not be held liable for these kinds of things?

Speaker 9 (01:26:41):

Not at all. And Congress doubled down in the Westfall Act when it passed Westfall Act to protect federal officials from lawsuits. It adopted the definition of the FTCA, which is the same, excluding contractors. And

Justice Jackson (01:26:52):

And, finally, let's say if we think Badia is the correct test, should we vacate and remand for further proceedings under that test? That was not what was applied here, correct?

Speaker 9 (01:27:04):

No, but you should not… There's no need to, Your Honor, because we made arguments about why our position is correct under the Badia test. It has not been disputed that Fluor could somehow meet that test here, and that is not the case because they violated whatever the military authorized and directed in this case.

Justice Jackson (01:27:24):

Thank you.

Speaker 12 (01:27:24):

Thank you, Counsel. Mr. Mosier?

Speaker 13 (01:27:32):

Mr. Chief Justice, and may it please the court, this case arises out of an enemy attack on US military forces on a foreign battlefield in time of war. Petitioner sued Fluor under South Carolina tort law for failing to prevent that act of war. Those state law claims are preempted because they conflict with uniquely federal interests. Petitioner's claims interfere with the federal government's exclusive warmaking powers. The Constitution vests all war powers in the federal government and expressly withdraws from the states the power to engage in war. Applying tort law on a foreign battlefield would hinder the federal government's exercise of those powers.

(01:28:20)
The purpose of tort law is to discourage risk taking, but waging war often requires contractors to take risks, putting their lives and the lives of others in danger. Petitioner's claims also weaken the military's control over combat operations. Contractors are part of the total force and the military cannot successfully wage war without them.

(01:28:46)
Success on the battlefield requires trust and cooperation between soldiers and contractors. Permitting soldiers to sue contractors for combat related injuries would destroy that trust and discourage that cooperation. Petitioner's claims undermine the military's authority to punish and deter misconduct. Congress has given the military the necessary tools to enforce its contracts and to ensure compliance with its orders.

(01:29:17)
The military must decide how to address non-compliance by balancing sensitive national security and foreign policy interests. Allowing state law to impose additional sanctions on contractors would upset the balance struck by the federal government. The government has determined that petitioner's claims would inflict grave harms on its ability to wage war. Rather than second guessing the military's judgment, the court should affirm. I welcome the court's questions.

Justice Thomas (01:29:46):

Are all contractors immune from suit on military basis?

Speaker 13 (01:29:52):

No, we would agree with the test that the government has proposed here. And to establish preemption here, you would have to show that the injuries and the claims arose out of combatant activities, and that the contractor was acting within the scope of its contract.

Justice Thomas (01:30:07):

What about, for example, the food service contractor on the same base?

Speaker 13 (01:30:12):

Yes.

Justice Thomas (01:30:13):

And assume there was food poisoning.

Speaker 13 (01:30:15):

Yes. We would say that would be preempted. And Bagram, the conditions on the ground there, it was under constant attack by the Taliban and rocket attacks on a daily basis. We think there's very little that was going on at Bagram, if anything, that was not closely connected to combatant activities.

Justice Thomas (01:30:31):

So are contractors under those circumstances subject to military laws or, say, court marshal?

Speaker 13 (01:30:41):

Yes, absolutely. First of all, the military can terminate a contract. It can seek damages under the contract. Contractors and their employees are subject to criminal prosecutions and court martials. And Congress has over the years changed the provisions and then given additional tools to the military to police its contractors and ensure that they comply with their contractual obligations.

Speaker 8 (01:31:06):

Mr. Mosier, your position extends to a case in which the contractor does something that's in explicit violation of government policy. So just assume, which I know you contest, but just assume for a moment that a provision in the Fluor contract made it quite clear that Fluor was not to operate in the way that Fluor in fact did. What is the uniquely federal interest there?

Speaker 13 (01:31:32):

So the uniquely federal interests, we would still define it as the federal government's exclusive authority in determining how to wage war. Where we would see the conflict, even within the situation in which there has been a finding of breach, is when state law is trying to impose additional or different sanctions than the military. So here they point to the finding and the determination where the army has said that there was a violation of contract, but the Army determined that what was in the military's best interest was not to terminate the contract, but to continue to work with Fluor going forward.

(01:32:07)
That conflict looks a lot like the conflict that the court found sufficient to find preemption in Arizona v. United States, where there was a different method of enforcement in Buckman where the state was trying to impose additional liability for a fraud to the FDA. And even in Garamendi. And what the court said in Garamendi is that if the federal government decides as a matter of foreign policy to use kid gloves in addressing an issue of foreign policy and a state wants to address the same issue, but they want to do it through an iron fist, that is a conflict that warrants preemption because it's left to the executive branch to calibrate the appropriate remedy. And we think the same analysis applies here. The military could have terminated the contract but-

Speaker 14 (01:32:54):

If that's the case, what you're saying is the military should decide this. What do you do with the regulations, which

Speaker 2 (01:33:00):

… which as was discussed earlier, would seem to permit liability in just these circumstances.

Speaker 13 (01:33:06):

I'd say not in these circumstances. The regulation recognized and told contractors there could be liability in certain circumstances, and we recognize that under the test as I was talking about it-

Speaker 2 (01:33:16):

It says unless you're exercising specific control over the actions and decisions, you're not going to get Boyle. That's what the government told contractors like Fluor. Why isn't it fair to hold you to that?

Speaker 13 (01:33:31):

So we're not asking for Boyle, the preemption under the rule and Boyle, which applied the discretionary function exception. And what was different about Boyle, although it did involve a military contractor, obviously, away from the battlefield in a time of war. It adopted a rule not based on the war powers, because that rule applied to all government contractors, but what the government has been consistent in saying for over a decade-

Speaker 2 (01:33:55):

So you're asking for something different than Boyle because that was a contract case and DoD told folks under Boyle, you're going to lose in circumstances like this or you might lose in circumstances like this. So you're asking us to invent a new supplement to Boyle?

Speaker 13 (01:34:10):

It's a different rule that is based on the different uniquely federal interest. The uniquely federal interest that the court fashioned a test on in Boyle was a uniquely federal interest-

Speaker 15 (01:34:19):

You should fight me back on the [inaudible 01:34:20].

Speaker 2 (01:34:20):

If I might just finish. Thank you. You're going to have your shot, my friend.

Speaker 15 (01:34:27):

[inaudible 01:34:29].

Speaker 2 (01:34:30):

Boyle was about contracts and it was about if it's specifically direct, well, then you're out of luck. I totally get that contractors in wartime play an increasingly significant role. I mean, we've got briefs before us from the veterans of foreign wars pointing out that in the Gulf War in the '90s, it was like 1 in 100. I'm making that up. And now, it was sold over 50% more recently. And that certainly raises some significant policy issues. And one might think that it would help the military to immunize all contractors and there's some good arguments for that. But there's another good argument on the other side, which is, well, maybe the military benefit most from having efficient contractors who are less likely to cause harm to military members. And we've got competing [inaudible 01:35:24] on making both sides of those. Why isn't that a judgment really cries out for congressional decision and what expertise do we have in setting that rule?

Speaker 13 (01:35:34):

So on that point, I would say this court doesn't have expertise and has said that in a number of cases, determining what would best serve the military's interests on the battlefield. But this gets back, I think, to Justice Kavanaugh's-

Speaker 2 (01:35:46):

So why not just apply Boyle and be done with it?

Speaker 13 (01:35:49):

Because what we have at issue here is the uniquely federal interest of the federal government's exclusive power to wage war. That was not what the court addressed in Boyle. And I think what is notable-

Speaker 2 (01:36:02):

But to answer that question, we have to decide how important is it for the military to have contractors not fearful of liability versus how important is it for the military of contractors who don't injure military members? That is what you're asking us to weigh and you're asking us to come down on one side rather than the other. And I'm just suggesting to you there are really good arguments, both sides of those, which would advance the war making function of the federal government. And I don't know.

Justice Barrett (01:36:34):

Well, and Counsel… Sorry, you have a response to that or is that-

Speaker 13 (01:36:37):

Yeah.

Justice Barrett (01:36:37):

I thought it was rhetorical, but…

Speaker 13 (01:36:40):

Yeah, no, but I was going to say that obviously, the military is well positioned to make that determination and when to hold a contractor accountable for an alleged breach and whether they think that is a situation that will lead to better performance by the contractor. So it's left under our view, it's left to the military to make that determination and balance those competing interests and the military does that.

Justice Barrett (01:37:05):

But Counsel, so I guess one problem I'm having is just the analytical one. I mean, let's assume that we think you're right and that there's preemption. You still have to decide if you're saying that state law can't control, then some federal common law does. And Boyle, the conflict, you're right, it was different, but there was actually, there were contractual terms, and so the court was very focused on the specific conflict between the contract that the helicopter design fulfilled and the state tort law. Here, if we say that because of the uniquely federal interest in waging war, state law can't operate, I take it what you're asking us to do is say, "And then as the federal common law rule, you should adopt, you should go look at the combatant activities exception in the Federal Tort Claims Act and extend it to contractors." So it seems like a very fancy way of just saying you should look at the Federal Tort Claims Act and extend it beyond its text to cover contractors.

Speaker 13 (01:38:02):

So that is part of the argument that the combatant activities exception can be used as evidence of Congress' intent on the types of claims that would interfere with the military, just like the court used it in Boyle, it was the other discretionary functions exception, but it was the same way that it used it. I think more fundamentally, where we see the conflict and why between applying tort law or even a tort law claim as a matter of federal common law to combat operations on a foreign battlefield is we just think there's inherently a conflict between what the military needs of its soldiers and contractors of how they wage war and a duty to impose reasonable care for the protection of others.

Justice Barrett (01:38:47):

So it's two-step? It's two-step? One is that state law can't operate, and then second, please adopt as of matter of federal common law and immunity for independent contractors.

Speaker 13 (01:39:00):

We would consider it preemption. That would be the step if you went through Boyle.

Justice Barrett (01:39:04):

Well, right, but I mean, it seems to me you're saying state law can't operate because this is a federal enclave that has to be governed exclusive by federal law because of the federal interest in the war-making power that states don't have. But then you still have to decide what rule operates, and you're saying, and the rule that should operate is one of immunity for contractors.

Speaker 13 (01:39:23):

What the rule that would operate is that the court would leave this area of common law to Congress' control. Congress has legislated in this area, Congress can adopt rules and create causes of action, but in the absence of congressional action, yes, we would say a state law claim or a tort claim-

Justice Sotomayor (01:39:40):

Why aren't you…

Chief Justice Roberts (01:39:41):

Proceed.

Justice Sotomayor (01:39:41):

I'm sorry.

Chief Justice Roberts (01:39:43):

I'm sorry. Could you finish that? In the absence of congressional action, what?

Speaker 13 (01:39:46):

A tort law claim would not be allowed to proceed.

Justice Sotomayor (01:39:48):

Counsel, that's sort of turning things on its head, preemption on its head. It's like Congress has to act to overturn our presumption, but why did we have Boyle at all? You say this is based on some exclusive Article I power, the power to raise and support an army includes training an army. It's exclusive to the federal government. States can have militias but not army. So why do we bother with Boyle at all? You're sort of saying you're going to step further and say that the war power is somehow more important than the power to support and raise an army, correct?

Speaker 13 (01:40:37):

So certainly when you're talking about combat operations on a foreign battlefield, that's different. And I think maybe why-

Justice Sotomayor (01:40:44):

But then why did the military issue its regulation? Their military contractor asked for indemnification and the military said no, because under Boyle, if you're making a judgment contrary to our directives, you're liable. And we don't see why you should be indemnified, the government. And that was in the middle of the Iraq and Afghanistan war. It was a wartime regulation that they were considering under a Republican president 2008, under President Bush, and they're saying no. In a time of war, we're telling you you're responsible. You said earlier that we should leave this to military judgment. So why shouldn't we leave this, something a field preemption that's contrary to two Supreme Court precedents, Little and Mitchell, that never thought there was a wartime exemption for anyone. 1801, 1857, certainly closer to the Revolution than now to our founding. Where are we going? Why aren't we leaving this to the parties? Who should decide this?

Speaker 13 (01:42:04):

If I can start-

Justice Sotomayor (01:42:05):

Congress and the military. The military could write its contracts more specifically to indemnify or direct?

Speaker 13 (01:42:14):

I mean, you'll hear from the government shortly, but I'll point out the government has consistently maintained the position it does now since at least 2012, that claims asserted against a contractor for combat operations on a foreign battlefield are preempted. They are not covered by the discussion in the 2008 regulation. That's their position. I mean, the broader point that you raised, and I think this goes back to Justice Kavanaugh's talk about what should be the default rule and why couldn't Congress, if they want to, provide relief for contractors here, speak clearly? That's an argument that is made and could be made in almost every case for implied preemption. Chief Justice Marshall acknowledged and rejected that argument in Osborn, Justice Kavanaugh quoted the language from Crosby that says Congress, the fact that they didn't expressly preempt something just maybe show that they understand implied preemption. I think the default rule-

Justice Sotomayor (01:43:10):

After Boyle, why would they understand that?

Speaker 13 (01:43:12):

So after Boyle, they would've understood that the way the court interpreted and provide preemption to a contractor based on a FTCA exemption, they reasonably could have understood that courts could hold, as all of them have, that there is preemption for combatant activities.

Justice Sotomayor (01:43:32):

Yeah, but all of the exemptions that have been created by the circuits all involve, to some extent, military directions that have specified in some form the directive the contractor followed.

Speaker 13 (01:43:49):

I would disagree with that. I think the majority of the courts don't go that way.

Justice Sotomayor (01:43:52):

No, the court's circuit is broader. Thank you.

Speaker 10 (01:43:58):

Justice Gorsuch's good questions earlier about Boyle and the interaction of Boyle with other branches of preemption, I think this is very important analytically that we have this straight, so I want to make sure we have it straight, which is I think you're saying, put aside Boyle, we're not inventing another branch of preemption law. We are applying the long-standing uniquely federal interest branch, which naturally would encompass at its core war making in combat in a foreign country, in a war zone, right? So that's not a new branch.

Speaker 13 (01:44:36):

That's not new.

Speaker 10 (01:44:37):

But it also means you don't need Boyle. Like Judge Silverman said, "Even in the absence of Boyle, there's preemption in this kind of circumstance." And that's your point. Put aside Boyle, it's gone. You still win under this other branch of preemption law is your argument.

Speaker 13 (01:44:53):

Yes. Our argument at its highest level is that the claims are preempted because they conflict with the Constitution. The Constitution not only vests the war powers in the federal government, but importantly, Article I, Section 10, Clause 3 expressly withdraws the power from the states who engage in war. And these state tort claims by imposing common law duties of reasonable care onto the battlefield would interfere with the federal government's exercise of its powers. You can get there through Boyle. That's one line of cases to get there. You can get there through Garamendi, Crosby, Zschernig. Those cases recognize simply you can weigh the way that a state law or state law clause of action would interfere with the federal government's exercise of its powers. And if that's enough of a conflict, there can be preemption. As Your Honor pointed out, footnote 11 of Garamendi said, "If we're dealing with an interest where the states don't have a historical role in regulating, maybe we should treat this more as field preemption." That's the circumstance we're dealing with here.

Speaker 10 (01:46:00):

Two quick follow-ups. Congress could provide for state tort law to apply. So when we say the Constitution preempts, that gives it to Congress and the executive, but they could enact also, allowing this, correct?

Speaker 13 (01:46:11):

Correct.

Speaker 10 (01:46:12):

Okay. And then secondly, on Justice Barrett's question about what would the federal rule then be? I think your answer is, well, that's defined, but correct me if I'm wrong, defined by the scope of preemption and the scope of preemption, you think, is if we're talking about a war zone, combat activities in a war zone, that is at the core of a uniquely federal interest.

Speaker 13 (01:46:33):

Correct. It could be the scope of the rule, the common law rule the court would adopt is like it did in Boyle, is a rule for determining where there would be preemption and what areas would be left to federal common law and what would fall outside of there when state law claims would be allowed to proceed.

Justice Jackson (01:46:51):

So you say that Congress could allow for liability in that exchange with Justice Kavanaugh? And I guess I'm just trying to understand how we fit that concept into the understanding then in the FTCA Congress decided that even with respect to combatant activities for which the government itself could not be held liable, there would still be general contractor liability. I guess I'm struggling with thinking about what Congress may have intended with respect to contractors and their liabilities concerning combatant activity when we do have a pretty substantial and significant carve out in the context of the FTCA for those same kinds of activities.

Speaker 13 (01:47:35):

So the FTCA itself carved out contractors because that was a decision by Congress that the United States would defend and claims and accept liability for actions by its employees, but not for its contractors. But the reason we think the combatant activities exception is relevant is for the same reason that the court looked to it in Boyle as just evidence of the types of claims that Congress would think poses the greatest interference with the exercise of the federal powers. But as I was saying to Justice Kavanaugh, and relying on cases like Garamendi and Crosby, you don't need to rely on the FTCA or the combatant activities exception. Justice Kavanaugh is exactly right that the majority tests, the test applied by the Fourth Circuit is based both on Boyle and Constitutional preemption apart from that.

Chief Justice Roberts (01:48:33):

Thank you, Counsel. Justice Thomas.

Justice Thomas (01:48:37):

Aside from the combat situation, how would you define uniquely federal interests?

Speaker 13 (01:48:44):

What the court said in Boyle, and we think is right, is those issues that the Constitution and the laws of the United States commit to the control of the federal government. So here, I think-

Justice Thomas (01:48:55):

What does that mean?

Speaker 13 (01:48:57):

You can look to the Constitution and why I think this should be an easier case for determining a uniquely federal interest, the Constitution vests the war powers in the federal government and expressly states that states may not engage in war. So the reason that war making is uniquely federal is that the states do not have power to engage in war making.

Justice Thomas (01:49:18):

You could argue that the interstate highway system is uniquely federal. I don't understand how we are going to limit that.

Speaker 13 (01:49:27):

I mean, there are very few areas that the Constitution expressly withdraws the power from the states to regulate. In most areas-

Justice Thomas (01:49:35):

Give me a couple of examples.

Speaker 13 (01:49:38):

Obviously, war, making treaties, coining money, the things in Article I, Section 10, provide a list of the things the states cannot do.

Chief Justice Roberts (01:49:49):

Justice Alito.

Justice Alito (01:49:53):

Is Mr. Hencely's suit a tort suit or a contract suit?

Speaker 13 (01:49:57):

He brought both claims. The remaining claims are tort claims for his breach of contract claim that was dismissed because he's not a third party beneficiary to the contract. And so that obviously is one of the oddities of the rule he proposes, is that he's going to litigate a breach of contract without a contract claim.

Justice Alito (01:50:15):

So would it be odd to have a rule in which the scope of preemption for a tort suit depends upon whether or not there was a breach of a contract as to which he was not a third party beneficiary?

Speaker 13 (01:50:28):

Yes, yes. That would be very strange in my view.

Justice Alito (01:50:32):

Suppose that a contractor is building a building and hires a subcontractor and specifies exactly what the subcontractor is to do, and then someone is injured by falling debris and that person sues the subcontractor, would it be a complete defense for the subcontractor to say, "Hey, we weren't negligent, we were doing exactly what the contractor told us to do." Would that be a complete defense?

Speaker 13 (01:51:00):

Not under general tort law [inaudible 01:51:03].

Justice Alito (01:51:03):

Can the federal government, by regulation, provide a conclusive interpretation of the scope of preemption?

Speaker 13 (01:51:13):

No, they haven't attempted to, but I think they probably would not be able to, that would be left-

Justice Alito (01:51:18):

When the FTCA provision that's been discussed was adopted, is there anything that would indicate that Congress had activities on the battlefield in mind?

Speaker 13 (01:51:31):

There's really no legislative history about that. The fact that it was adopted shortly after World War II to address combatant activities in time of war would suggest that they had that in mind.

Justice Alito (01:51:46):

It's been suggested that the federal government has no interest when what the military contractor does is a violation of a contract. Is that simplistic? There can be several different situations. One, there could be a situation where it is absolutely undisputed that there was a material breach of the contract. There could be the situation where the military says there was a breach of the contract and when something goes wrong, like the bombing on the Bagram base, the military has an interest in trying to exonerate itself. So you could have the situation where the military says there was a breach, the contractor says there wasn't a breach. There could be the situation where the military says there was no breach, the contractor says there was not a breach. So wouldn't the rule that we adopt have to deal with all three of those situations?

Speaker 13 (01:52:43):

I think it would, and I think what's critical here is we are clearly in the situation where there is a disagreement between Fluor and the government about whether there was a breach. The government ultimately made a determination that the best way to continue waging war was to allow the parties to agree to disagree and to move forward and continue to fight the war. But if the decisions of a contractor are going to be subject to state tort suits a decade after the fact, the contractor is going to have to act very differently when an accident happens. The immediate thing that the military needs when there's an accident like this is for soldiers and contractors to work together to make sure there's not a similar attack later that day, the next day. And so you need cooperation. If the contractor knows we could be blamed for this, they're going to want to do their own investigation, they're going to want to collect their own evidence. There will already start to be considerations of was it the military's fault? Was it our fault?

(01:53:44)
I think one thing, if I can address a statement made before, the district court made clear, if this case went forward, Fluor would be able to try the empty chair and say, "This was entirely the military's fault. You should not hold us liable because the military first made a decision, a foreign policy, that we're going to allow former members of the Taliban onto Bagram because that's a good way to rehabilitate them." The military then decided that Mr. Naib was a former member of the Taliban, not a current member of the Taliban. Fluor, didn't know he had any ties to the Taliban. That was entirely the military's judgment that he was former… Mr. Naib, the evidence showed smuggled explosives onto the base to build the bomb. It was the military's entire responsibility to prevent that from happening. So there's no way this case could go forward. The plaintiff say they tried the case-

Justice Alito (01:54:34):

Thank you. Thank you.

Speaker 13 (01:54:34):

Yeah. Okay.

Chief Justice Roberts (01:54:34):

Justice Sotomayor.

Justice Sotomayor (01:54:37):

It's the first time I've heard a defense attorney on behalf of his client say, "I'm going to take away an empty chair that I could attack." It's a very odd argument. Okay.

Chief Justice Roberts (01:54:48):

[inaudible 01:54:48]. Justice Gorsuch, Justice Kavanaugh.

Speaker 10 (01:54:54):

Can you just continue with that?

Speaker 13 (01:55:00):

Yeah, I mean, where I was ending with that is the plaintiffs said that they wouldn't put the military's judgments on trial.

Speaker 10 (01:55:08):

You are going to be.

Speaker 13 (01:55:09):

We would, of course. [inaudible 01:55:10].

Speaker 10 (01:55:09):

Of course. What are the Taliban doing at Bagram, right? That's going to be the whole deal. And that's going to be a lot of… I mean, you are together today, but would not be together in that part of the case and in a South Carolina courtroom, there's going to be questions about the… And the military was supposed to prevent him from bringing the stuff onto the base. That wasn't your responsibility, right?

Speaker 13 (01:55:34):

That's correct. And another thing, the [inaudible 01:55:38].

Speaker 10 (01:55:38):

The military runs a 5K, right? And anyone who's run a 5K, there are lots of people stacked together at the starting line.

Speaker 13 (01:55:46):

And there was a lot, and [inaudible 01:55:48] there's a lot of disagreement about what it meant that Fluor's duty to supervise. Our position was that it was our duty to supervise to ensure that the employees carried out the work that they were supposed to do to fulfill the obligations under the contract, not to provide security, not to provide force protection. That remained the military's responsibility.

Speaker 10 (01:56:07):

And they're going to be pointing out to you, and I know you'll disagree this, that you all didn't do enough to supervise them and at the vehicle yard, et cetera. Right? So that's going to be a back-and-forth on this.

Speaker 13 (01:56:18):

That will be a back-and-forth and our position would be that the evidence showed that he was a perfectly acceptable employee, was performing up to [inaudible 01:56:27].

Speaker 10 (01:56:28):

Don't tell me what you shouldn't at this point, obviously. When did you learn that he was a member of the Taliban or former member of the Taliban?

Speaker 13 (01:56:35):

It was certainly after the attack, and I'm not sure it was likely when the AR 15-6 report came out or maybe in the course of the investigation.

Speaker 10 (01:56:45):

Okay. That's it.

Chief Justice Roberts (01:56:49):

Justice Barrett.

Justice Barrett (01:56:50):

Just a few clarifying questions. First is, I just want to be sure that I understand you are asking for a rule that is different from Boyle because do you agree that if we just applied Boyle, because there is not the one-on-one conflict, the air conditioner hypothetical, you would lose? So this is something that's different from Boyle that you want.

Speaker 13 (01:57:07):

Yes. It's different from Boyle.

Justice Barrett (01:57:11):

Second, can you just say a little bit what the scope of the combat exception is? I mean, you said that Bagram was under siege constantly from rockets, et cetera. That's certainly not true of every base abroad, but you could still have terrorist attacks. So how is a court supposed to decide when your proposed exception would apply?

Speaker 13 (01:57:30):

So under the tests that we've supported and the government has proposed for the first element, you would look to the text from the combatant activities exception. And so is it any claims arising out of combatant activities in time of war? And the first decision after the adoption of the FTCA, the Ninth Circuit in Johnson interpreted combatant activities and said it includes not only physical violence, but also actions necessary to and taken in connection with. And every court of appeals has kind of relied on that test, which seems consistent with the plain language. And so courts would look to that. Does the activities, are they supporting arising out of supporting the military's combatant activities? Here, this is at the heartland, right? These are injuries from an enemy attack.

Justice Barrett (01:58:20):

But that's surely pretty broad. I mean, Justice Thomas was asking you about the food services and an E. coli outbreak. It means supporting the military's activities. I mean, that is pretty broad, and it seems to me that if you want courts to look at the combatant activities exception from the Federal Tort Claims Act, we're right back to this question of is what you're really asking for a virtual extension of the text of that exception?

Speaker 13 (01:58:43):

So the hypothetical I got was the E.coli on Bagram. And I would say yes, it may be a different conclusion, E.coli in San Diego or base to troops that aren't ready to deploy. Every base is not looked at the same. The actual injury is examined to determine its connection to combat activities, which is not viewed as everything the military does. And so you would have a much more limited scope of protection at US-based military bases. That's not to say that there aren't things, because there are things going on at US military bases right now that are connected to combatant activities. But what I was saying in response to the earlier hypothetical is that everything, if not everything, virtually everything going on at Bagram in 2016 because of the way it was under attack was-

Justice Barrett (01:59:35):

So it could potentially extend to domestic activities if they were supporting the combatant activities abroad?

Speaker 13 (01:59:44):

It could.

Justice Barrett (01:59:44):

Okay. Oh, go ahead. Well, that's okay. You don't need to say anything more. And just finally, do you see yourself as standing completely united with the government's understanding of the rule? Or do you see any differences between your position and the government's?

Speaker 13 (01:59:57):

We support the government's position. The way it played out, some of the courts of appeals have adopted a slightly different rule than the government, but there's not a lot of daylight between those rules and we see benefits in the government's rule.

Justice Barrett (02:00:09):

Thank you.

Chief Justice Roberts (02:00:11):

Justice Jackson.

Justice Jackson (02:00:11):

Just to clarify, your rule is tantamount to a field preemption kind of concept. I think you accepted that. Is that right? That's what you're seeking essentially?

Speaker 13 (02:00:22):

So certainly with respect to claims on a foreign battlefield, I think you would view it as a field preemption. And that's largely because applying conflict preemptions, we just think there's an inherent conflict between duties of reasonable care under state tort law and what the military demands and needs on a battlefield in combat operations.

Justice Jackson (02:00:46):

Thank you.

Chief Justice Roberts (02:00:46):

Thank you, Counsel. Mr. Gannon.

Mr. Gannon (02:01:00):

Thank you, Mr. Chief Justice. And may it please the court. The Constitution has vested the nation's war powers in the President and Congress and has expressly divested the states of such powers. This court should hold that petitioner's tort claims are preempted because of the uniquely federal interests at stake in overseas combat operations. Petitioner indisputably cannot sue the US Army directly and he should not be permitted to sue its combat support contractors instead. Applying that principle requires no extension of Boyle, which correctly looked to a closely related FTCA exception as a model. Under the government's proposed test, petitioner's claims are preempted because they, one, arise out of the military's combatant activities, and two, arise from the contractor's actions within the scope of the contract whether or not they involved a violation of the contract because the government is harmed either way. I welcome the court's questions.

Justice Thomas (02:01:59):

Could you define beyond the combat scenario what you mean by uniquely federal interests?

Mr. Gannon (02:02:09):

Well, I agree with much of the answer that my friend just gave you to that, Justice Thomas, that we start with Constitution structure here. And we have a list at the top of page 12 of our brief of other areas where the court has found there to be uniquely federal interest. They include things like foreign affairs, rules, implementing federal loan programs, civil immunity of federal officials. They're areas where the Constitution and the statutes and the laws of the United States have made it clear that this is an area of exclusive federal interest. And I think that's clearest in this context because federal powers are at their zenith.

Justice Thomas (02:02:46):

Let's say I grant you combat. Beyond that, how do we define it? Because this isn't going… Once we say that this uniquely federal interest carries today, why wouldn't someone from, say, our military bases in San Diego or in Norfolk, Virginia who's servicing aircraft carriers or nuclear subs, why isn't that unique?

Mr. Gannon (02:03:19):

Well, I think that there, the states would have more interest in what's going on in California than they do in what's going on in Bagram. But we're not asking the court to invent a new type of preemption here. We think that when Boyle talked about uniquely federal interest, that's a concept that this court used in Sabbatino to say the act of state doctrine is an area of uniquely federal interest. And the way the court determined that it was was by looking to the Constitution, which it said didn't dictate the content of the act of state doctrine. It looked to statutes that said that they provided indirect support for the act of state doctrine. But it said the very idea that we have US courts questioning the acts of foreign territories-

Justice Thomas (00:00):

Mr. Gannon (02:03:59):

… in

Mr. Gannon (02:04:00):

Boyle didn't say [inaudible 02:04:01] sovereigns in their territory. It is something that is of uniquely interested to the federal.

Justice Alito (02:04:06):

I know Boyle didn't say as much. You're making Boyle do a lot of work that I didn't read into Boyle.

Mr. Gannon (02:04:12):

I think Boyle is standing on a line of case law that talks about uniquely federal interest as being a source of preemption that this court has continued to repeat that category as being out there as recently as Casarere and Rodriguez where the court acknowledged that this is there. And I think this is an easy case for determining that it's uniquely federal interest because of both halves. The federal power is at its zenith because of the way the Constitution has vested war powers in the federal government and state powers are at their nadir because it has expressly divested states of those types of powers.

Speaker 16 (02:04:45):

Counsel, I'm interested in the limitation to a foreign battlefield. Does that mean, for example, there are bases where we're operating from in Afghanistan at the same time that would not be in a foreign battlefield because it's not as directly engaged as Bagram was in this case?

Mr. Gannon (02:05:04):

Well, the rule that we are asking for would talk about whether there are combatant activities and we're using the exception in the FTCA as a model and just as the court did in Boyle, it used a different exception. It was looking at general procurement contracting, and so it was looking at the discretionary function exception. But I think that I would say that most everything that the government was doing that the US military was doing in Afghanistan in 2016 was likely very closely connected with combat activities. And there's no doubt that respondent's activities at Bagram were supporting the military's combatant activities.

(02:05:43)
And so the E. coli in the lettuce that the troops are eating before they go out on patrols outside the wire in Bagram that is arising from combatant activities. And so thus-

Speaker 16 (02:05:56):

What if the E. coli infection takes place 700 miles away in a base that is supporting the activities at Bagram?

Mr. Gannon (02:06:09):

That's going to be a question about what it means to arise from the military's combatant activities and we also have the second prong, which is about… And just to finish the answer to the first prong, that can certainly extend to people who are supplying the troops who are on the very front lines. The Johnson decision that my friend referenced from the Ninth Circuit shortly after the FTCA was first enacted recognized that ferrying ammunition to the troops is something that just helping somebody get ready to wield combat is a combatant activity. And here the question by analogy is also whether the contractor was performing within the scope of its contract. And if it was-

Speaker 16 (02:06:58):

Okay, so faring the troops. What about preparing the rations and food that is going to eventually be used at Bagram? There's some infection at the food plant in… I don't know, some place in the United States.

Mr. Gannon (02:07:13):

Yeah. I'm not sure how the combatant activities exception in the FTCA has been construed in a context like that. I think that for preemption purposes here this goes to a question that Justice Barrett just asked whether this really needs to be overseas. I think for overseas it's over determined that the federal government's interests are at their height and the state's interests are at their lowest and therefore it's easiest to say when it's an overseas situation and that the E. coli is happening in Afghanistan, then that's where the claim is arising. It's arising from the military's combatant activities there.

Speaker 8 (02:07:56):

So help me Mr. Gannon try to figure out what the harm is to the federal government in Bagram. Take the contractor that doesn't properly cook the chicken. Take the contractor that doesn't properly maintain the trucks. Take the contractor that does a whole series of things that are going to injure or kill soldiers. In violation of what the government has said is its policies, the government has a policy manual, here's how to maintain the drugs, here's how to cook the chicken. And the contractor has operated in violation of that. Why it is that state liability would be so injurious to the government's interests in that context, which is I thought the context that we're concerned about in this very case?

Mr. Gannon (02:08:47):

That's right. And obviously we want our contractors to obey their contracts. We want them to obey military orders, but that doesn't mean that we aren't threatened by the imposition of the specter of tort regulation in the relationship between the military and its contractors. Whether or not the contract has been complied with, as has already been mentioned, that that's first of all going to lead to disputes about whether it's been complied with that are going to be adjudicated half a world away, maybe with a government in an empty chair.

(02:09:19)
But even when the state thinks it is trying to help the federal government enforce its own standards, this court has recognized that the imposition of state law can be a threat. My friend-

Speaker 8 (02:09:32):

But tell me why.

Mr. Gannon (02:09:32):

Because it changes the relationship between the parties. It alters the behavior of the contractors on the ground. They're less willing to do risky things. They may indulge in a mother-may-I dynamic where they have to keep asking for permission, "Hey, you want me to do something pretty dangerous? Can you please confirm for me sign in triplicate that you have to do it this way and I want you to be aware that that's really dangerous because I want it on the record for jury down the road."

Speaker 8 (02:09:58):

Wouldn't that answer apply just as well to Boyle?

Mr. Gannon (02:10:01):

It would apply just as well to Boyle. Part of the difference though is that Boyle was talking about general procurement activities for the government writ hole. It happened to arise in the context of a military contract. The court's rule is not limited to military contracts. The hypothetical about the air conditioner is not about contracts.

Speaker 8 (02:10:21):

But then what you're saying is that Boyle didn't really know what it was doing. It had a general contracting principle that would've been fine and what it really should have done is to say, "But this is the military. It's different."

Mr. Gannon (02:10:32):

No. I'm saying that because it was forming a general rule that happened to apply to a military context that did not involve combatant activity. It was undisputed that a helicopter that goes down a mile and a half off to the shore of Virginia in a training operation in the 1980s is not combatant activities even though the helicopter was manufactured during the Vietnam War.

Speaker 8 (02:10:54):

Right. That was just all the arguments you were saying to me about how the government needs to be in control of its relationship with its contractors applies just as well to manufacturers of helicopters.

Mr. Gannon (02:11:04):

It does, but it's more important in the combatant when the government is engaged in combat in a foreign theater of operations, that the type of distrust, the finger pointing, the threat that even though we're supposed to be fighting a war, we're supposed to be worried about how to protect security at Bagram. People are worried about making record for a tort trial that could be happening in one of 50 different states.

Speaker 8 (02:11:30):

Thank you.

Mr. Gannon (02:11:32):

And so we do think that that's a threat and the reason why it is different in Boyle and Boyle requires there to be a violation because it is considering a different exception in the FTCA.

Speaker 16 (02:11:47):

Thank you. Justice Thomas? Justice Alito?

Justice Alito (02:11:51):

In response to the argument that a suit like Mr. Hensley's can easily get into is very likely to get into discovery that would be very intrusive and disadvantageous. The argument that is made while the government can always invoke the state secret's privilege. How frequently does the government do that? And is it a good idea to adopt a rule that would put the government to the choice about invoking this privilege, which in my understanding is used very infrequently on a regular basis?

Mr. Gannon (02:12:33):

You're correct that it's used infrequently and the national security concerns that are served by the state secret's privilege are limited to only certain types of information. We think that the threat of having civil discovery with people on the battlefield is a problem. Even if it doesn't involve classified information, it's going to mean that there are going to be depositions of active service members that we're distracting the military and civilians from their important duties.

(02:13:04)
We are again leading to the finger pointing situation, the sowing of distrust, the damaging of the relationship between the government and its contractors. And the government still has all of its other remedies. In further response to the question from Justice Kagan that when people don't follow their contracts, we can take certain steps to enforce that. And in this instance, we didn't cancel the contract, but we could have terminated the contract, stopped work, asked for liquidated damages, required personnel to be replaced. We could have done any of those things. We didn't do those things.

(02:13:38)
Adding this extra layer of tort incentives creates an over-deterrence that the court recognized as a problem in cases like Buckman and in the foreign affairs cases like-

Justice Alito (02:13:49):

One last question. If we compare the likelihood that a breach of contract by a military contractor will cause either death or serious injury in this country with the risk that a breach will cause death or serious injury at a place like Bagram Air Base. Which is greater?

Mr. Gannon (02:14:18):

I'm sorry. I'm not quite sure I understand the question. What would cause a risk of serious death or injury?

Justice Alito (02:14:23):

Well, isn't there a greater risk of death or serious injury as a result of an alleged breach of contract in a war zone as opposed to an alleged breach of contract outside of a war zone? And therefore, isn't there a greater potential interference with the interest of the federal government with respect to the first?

Mr. Gannon (02:14:46):

Yes. And this is a point that the DC Circuit made in the Soleil opinion where it talked about the idea of tort laws requiring non-risky behavior all the time isn't compatible with a war zone. That doesn't mean that we want contractors to engage in extra-risky contract with respect to complying with our contracts, but it does mean that we're worried about the overhang of having this extra liability out there.

Speaker 16 (02:15:12):

Thank you, thank you. Justice Sotomayor?

Speaker 17 (02:15:13):

No.

Speaker 16 (02:15:17):

Justice Kagan? Justice Kavanaugh?

Speaker 10 (02:15:20):

A couple things just to clarify. Uniquely federal interest branch of preemption is a separate doctrine from Boyle, right? Or a pre-existing doctrine?

Mr. Gannon (02:15:32):

Yes. It predates Boyle. The court has continued to recognize it as being appropriate. I think that Boyle applied the doctrine.

Speaker 10 (02:15:40):

Right. It's not new.

Mr. Gannon (02:15:42):

It wasn't new then and it hasn't been disavowed by the court since then.

Speaker 10 (02:15:46):

On the field conflict terminology, I want to get your understanding of what counsel said, which is my understanding is he said when there's an inherent conflict in a particular kind of area, you can call that field and Garamendi footnote 11 and other cases in the court's jurisprudence have essentially said that. Is that your understanding or do you have a slightly different understanding?

Mr. Gannon (02:16:11):

In our brief, we said we think you could think of this in either way, but if you had to pick, I think I would say that it's a form of field preemption. And I think that that's because we're talking about an area overseas combatant activities that is so uniquely federal. The whole area of it should be considered something that is beyond the scope of the states because they've been divested of their powers in this context. And that's consistent with the way the combatant activities exception in the FTC itself is phrased.

(02:16:37)
It's just everything is out. No suits are rising out of combatant activities. There's not a bunch of nickel and diming about exactly what's in and what's out. That's different from the discretionary function exception conditions that the court considered in Boyle.

Speaker 10 (02:16:51):

We've talked about states and Justice Kagan's question states that are trying to supplement or help ensure that contractors comply with their obligations. I mean, the rule on the other side though, I think would apply equally to a state that's hostile to the United States' war effort, which states sometimes have been in terms of opposed to the Iraq war opposed to the latter stages of the Afghan War. Is there any difference there? I mean, how do we think about a hostile state? Hostile might be too strong a word, but a state that has laws that is trying to impose different obligations on the United States conduct of war than the United States itself is trying to impose?

Mr. Gannon (02:17:31):

Yeah. I think that my friend already conceded that that would probably fall because it's a discrimination against the government and it's treating the government differently.

Speaker 10 (02:17:39):

Well, it could be applying a neutrally applicable law, however.

Mr. Gannon (02:17:43):

Well, I guess there could be a question if you thought that-

Speaker 10 (02:17:47):

You're not concerned about that?

Mr. Gannon (02:17:48):

I mean, I'm not concerned if you adopt our rule, which was say that combatant activities are off the table.

Speaker 10 (02:17:54):

If we adapt their rule, are you worried about the state that's not supportive?

Mr. Gannon (02:17:57):

Yes, we are concerned. I mean, as I said, we're worried either way. We think that the imposition of the threat, the specter of tort liability is affecting the relationship between the government and its contractors in a war zone, and we don't want that interference to [inaudible 02:18:12]

Speaker 10 (02:18:11):

What about the Afghan law? So the state choice of law rules lead to Afghan law being applied in a suit like this, and who knows what that leads to. Do you have a concern about that or is that not a concern?

Mr. Gannon (02:18:25):

That is a concern. And I think that… I'm not exactly sure what the party's answer to that question really is because there wasn't that much focus. The Fourth Circuit has just a footnote on the assumption that South Carolina law was applicable here. And I understand my friend on the other side to be saying that they're standing on the background idea that the common law applies and I guess they mean state common law instead of the brooding omnipresence in Afghanistan.

Speaker 10 (02:18:53):

Well, some courts have applied Iraqi law or other foreign law in these kinds of situations. Correct?

Mr. Gannon (02:18:58):

I don't know about combatant activities, situations. And there may be public policy reasons not to apply foreign law in certain instances. That's really a conflict of law's choice of law question. And as a general matter, this court has held that federal court sitting in diversity has to apply the choice of law rules for the jurisdiction in which it is sitting. And so we are looking to state courts then in order to select the rule of law. I think that's a reason to say field preemption.

Speaker 10 (02:19:30):

Thank you.

Mr. Gannon (02:19:31):

Let's not let that dictate what's going to be the standards at issue in this case.

Speaker 16 (02:19:35):

Justice Barrett? Justice Jackson?

Justice Jackson (02:19:37):

There's been a lot of hypothesizing about what might happen if this kind of tort liability is allowed to take place. But my understanding is that right now only a few states limit liability. And so the background is that we have the rule operating where these kinds of lawsuits can be brought. Am I wrong about that?

Mr. Gannon (02:19:59):

Well, I mean there have been several suits. Several of them have been rejected on the grounds that there hadn't been a violation of the contract.

Justice Jackson (02:20:12):

Other grounds. So the preemption rule is not necessarily doing the work?

Mr. Gannon (02:20:16):

No, they were preempted.

Justice Jackson (02:20:17):

They were preempted?

Mr. Gannon (02:20:18):

Well, in most of the suits they've been preempted, I think whether or not it required there to be a violation of the contract or not. I mean Badia may be an exception from that. I'm not sure what else has happened in the Badia case. We don't have-

Justice Jackson (02:20:32):

I guess, I'm just trying to understand whether contractors are already subject to tort liability in most states [inaudible 02:20:42]

Mr. Gannon (02:20:41):

I mean, there've obviously been a lot of suits about this. Notwithstanding the 2008 regulatory preamble, the government has been taking the position it's taking here in this court since May 2011. And so I think contractors have had that expectation that the government would be making this argument that there is going to be combatant activities is going to prevent there being state law litigation about things that are combatant activities.

Justice Jackson (02:21:08):

Have all the policy concerns that you have articulated, have they been happening, the finger pointing and the increased prices and the other problems?

Mr. Gannon (02:21:16):

Well, I don't know about the… We don't have data on increased prices because I just don't think that we have enough of an effect. These are very large contracts that we've had in Afghanistan and Iraq. They're a handful of companies that successfully competed for them. I'm not exactly sure when you have contracts this large, what the difference was at the margin. I think that the threat would be much greater if this court were to say-

Justice Jackson (02:21:47):

I understand.

Mr. Gannon (02:21:48):

… but notwithstanding Boyle.

Justice Jackson (02:21:49):

But you make the argument that there're going to be increased prices and I'm just trying to understand whether there's basis for that.

Mr. Gannon (02:21:53):

I think right now I'm not sure what's priced in because I think that there's uncertainty about where this is going to end up. But the government has been taking the contractor's side in these cases for 14 years, more than 14 years now.

Justice Jackson (02:22:06):

Thank you.

Speaker 16 (02:22:06):

Thank you, counsel. Rebuttal, Mr. Chang?

Speaker 9 (02:22:10):

Thank you, Mr. Chief Justice. A few points. So we've been talking about baseline and cases and statutes tell us what the baseline is. Tort law remains unless Congress acts. Common law claims against Colonel Mitchell was upheld by this court in Mitchell v. Harmony for something that he did in Mexico. And Captain Little was held liable for something that he did in Hispaniola.

(02:22:33)
Such suits are unthinkable today because Congress has legislated suits like that out of existence with the Westfall Act. And also in the forties, Congress passed a defense base act. Congress knew that defense contractors overseas working on US bases might face liability. So in exchange for the employees giving up of their common law claims, Congress instituted a single compensation regime. And also between the '40s and '60s, nothing was more critical to national defense than nuclear deterrence. Congress precisely legislated to shield federal contractors who helped with the Manhattan Project in the Atomic Testing Liability Act.

(02:23:13)
Congress knows how to do this hasn't done so here to bar American soldiers claims. And second point, we are in federal court, not state court and existing federal protections for the military and litigation already exist. As litigants, we don't have unfettered third-party discovery rights on the government. We have to strictly follow the two-way regulation process. And the government has tight controls over who we can depose, what questions we can ask and what kind of documents we can seek to begin with.

(02:23:43)
And third, Boyle. Boyle is our case, not theirs. Floor's expansive reading of Boyle and converting provisions of statutes that expressly say it is inapplicable contradicts Boyle. And what this court said in Garcia, and we have to look at what this court has said about the Supremacy clause because that is what drives preemption. Here, the laws of the United States do not preempt my client's claims and the solicitor general's brief and a brief from my friend, Floor are not listed as one of the supreme law of the land. Thank you.

Speaker 16 (02:24:19):

Thank you, Counsel. The case is submitted.

Justice Jackson (02:24:23):

The Honorable Court is now adjourned until tomorrow at 10:00.