Justices Agree to Hear Soldier’s Injury Claims Against Fluor

WASHINGTON — The Supreme Court on Monday agreed to review a veteran’s lawsuit against defense contractor Fluor Corp., over injuries he sustained in a 2016 suicide bombing in Afghanistan.

As recounted in his petition to the high court, former U.S. Army Specialist Winston Hencely was just 20 years old when he was deployed to Afghanistan and stationed at Bagram Airfield in 2016.

That November, as hundreds of his fellow service members gathered to participate in a Veterans Day 5K race, Hencely noted an Afghan national, later identified as Ahmad Nayeb, approaching suspiciously.

Nayeb was an employee of a Fluor Corp. subcontractor, and had worked at the company’s non-tactical vehicle maintenance yard, doing tasks like disposing of used motor oil.

In its military contract, Fluor had promised to supervise Nayeb and other Afghan employees and to personally escort them, in constant view, when they left their work sites.

In Nayeb’s case, however, Fluor allegedly broke that promise with devastating consequences.

Because of Fluor’s supervision failures, Hencely says, Nayeb was able to construct a suicide-bomb vest inside the base while on the job. In doing so, the lawsuit claims, Nayeb used Fluor’s own tools and components to make his bomb.

Then on the day of the attack, Fluor allegedly further violated the military’s instructions to personally escort him off base after he finished working on a night shift.

Unwatched, Nayeb left his job site wearing the suicide vest and walked for about an hour, undetected, toward the U.S. troops participating in the Veterans Day celebration, Hencely says.

Hencely and other soldiers confronted Nayeb and when the Afghan national ignored his questions, Hencely grabbed his shoulder. It was then that he felt the bulky explosive vest under Nayeb’s robe.

A moment later, Nayeb detonated the vest, killing three soldiers and two civilian contractors, and injuring 17 other U.S. service members.

Hencely himself suffered traumatic and extensive brain injuries as a result of the explosion, which left him with seizures and the ongoing inability to fully use his left arm and hand, or the left side of his face and mouth.

A subsequent Army investigation concluded Hencely was a hero, and likely saved countless lives. It also found the attack’s primary contributing factor was the contractor’s actions in breach of its Army contract and in violation of the military’s instructions to supervise Nayeb.

Upon his return home, Hencely sued Fluor for negligence under South Carolina law, but did not sue the military under the Federal Tort Claims Act.

Even so, the Fourth Circuit held that Hencely’s state claims are preempted by unspoken “federal interests” emanating from a Federal Tort Claims Act exception “immunizing the government for ‘[a]ny claim arising out of the combatant activities of the military or naval forces … during time of war.”

At least four other federal circuit courts have ruled on the same exception, and split on the question of whether the exception preempts state tort claims against federal contractors.

Hencely is asking the Supreme Court to decide the matter once and for all.

“This case isn’t about second-guessing the military’s actions and judgments at Bagram or anywhere else,” his lawyers wrote in their petition for review. “It’s a state tort case against a government contractor that disregarded the military’s instructions, its contractual duties, and state-law duties of care.

“Nothing in the [Federal Tort Claims Act] precludes holding that contractor to account for its own negligence as an employer and systemic failure to meet its contractual responsibilities,” they continued.

“This court recently granted review of a decision about the FTCA’s preemptive reach in suits against the government, in Martin v. United States. This petition is all the more worthy of review.

“The courts of appeals have extended the FTCA’s preemptive reach further still — in suits where the government is not even a defendant. Even if that were somehow proper, those courts are deeply split on when and how to displace state claims based only on the spirit of the combatant-activities exception. It’s time to return to basic preemption principles or, at minimum, to resolve the split,” Hencely’s lawyers said.

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