The U.S. Supreme Court is seen in Washington on Dec. 13, 2023. A Supreme Court decision this week will allow an Army veteran’s negligence case against a defense contractor to proceed in federal court. The case involves a 2016 suicide bomb attack at a U.S. base in Afghanistan that killed five people and injured 17. (Carlos Bongioanni/Stars and Stripes)
WASHINGTON — A Supreme Court ruling will allow a former Army specialist to pursue a lawsuit for negligence against a defense contractor over permanent injuries he suffered trying to stop a suicide bomb attack at a U.S. base in Afghanistan.
Winston T. Hencely claims that Fluor Corp., a global defense company, failed to adequately assess or supervise one of its employees, identified as an Afghan national, who carried out the 2016 attack at Bagram Airfield, according to court documents.
The high court sided with Hencely in a 6-3 decision, rejecting the defense contractor’s argument that it was immune from the negligence lawsuit.
Hencely in 2019 sought damages under state injury law in South Carolina, where Fluor Corp. operates a hub, according to court documents. The contractor argued that federal and constitutional law “preempted” state law in the case.
“Neither the Constitution nor any federal statute expressly preempts Hencely’s suit,” Justice Clarence Thomas wrote in the majority opinion.
Thomas was joined by Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Amy Coney Barrett and Ketanji Brown Jackson.
“Although the Constitution gives Congress and the president broad war powers, that assignment has never been understood to bar all war related tort suits,” according to the decision.
Justice Samuel Alito Jr. wrote the dissenting opinion and was joined by John Roberts and Brett Kavanaugh.
Alito wrote that war is the exclusive domain of the federal government.
“May a state regulate security arrangements on a military base in an active war zone? May state judges and juries pass judgment on questions that are inextricably tied to military decisions that balance war-related risks against long-term strategic objectives?” Alito wrote.
“In my judgment, the answer to these questions must be no...,” Alito wrote.
The high court decision will determine the reach of contractor immunity in modern warfare, military defense attorney David Sheldon said in 2025 after the Supreme Court agreed to hear the case.
Hencely was gravely injured after confronting Ahmad Nayeb, who was walking toward a Veterans Day 5K race at the base, according to court documents.
Nayeb detonated a “suicide vest,” killing five service members and wounding 17 others, according to court documents.
The explosion fractured Hencely’s skull and caused brain damage, affecting his cognitive skills and memory, according to court documents.
Hencely accused Fluor of “negligent supervision, negligent entrustment of tools, and negligent retention of Nayeb,” according to the Supreme Court syllabus of the case.
The Army, in a separate investigation, found that Hencely’s actions “likely prevented a far greater tragedy,” according to Thomas’ opinion.
The investigation found that Fluor did not provide adequate oversight of Nayeb, who worked at a nontactical vehicle maintenance yard at the base, according to court documents.
The Army’s contract with Fluor made the contractor responsible for oversight of personnel or subcontractors, according to court documents.
The case was originally heard in U.S. District Court for the District of South Carolina.
The lawsuit advanced to the Supreme Court after the U.S. Court of Appeals for the Fourth Circuit, in Virginia, ruled against the claim.
“The Fourth Circuit erred in finding Hencely’s state-law tort claims preempted where the federal government neither ordered nor authorized Fluor’s challenged conduct,” according to the Supreme Court decision.
