Supreme Court Rules Wounded Soldier Can Sue Military Contractor Over Bagram Bombing

The Supreme Court on Wednesday sided with an Army specialist who was severely injured by a suicide bomber on Bagram Air Base and is attempting to sue a military contractor for failing to supervise the Afghan employee who carried out the attack.

The 6-3 decision, which split the court’s conservatives and was written by Justice Clarence Thomas, will allow Winston T. Hencely, who was 20 years old when he confronted the attacker in a 2016 incident, to continue to pursue his lawsuit for damages.

Hencely lost full use of his left arm, left hand and left side of his face after the attack, which killed five soldiers and civilians and wounded more than a dozen others. His lawyers said he endures chronic pain, cognitive disorders, memory loss and anxiety. The bomber was later identified as Ahmad Nayeb, an Afghan national who was working at a vehicle maintenance yard for a military contractor. Hencely sued the contractor, Fluor Corporation, and a subcontractor for failing to properly vet and supervise Afghan employees.

“The government required Fluor to hire Afghan employees and to provide logistics for Bagram Airfield,” Thomas wrote for the court. “But, it did not, Hencely contends, require Fluor to leave Nayeb unsuper­vised, allow him to walk alone for an hour after his shift, or permit him to obtain unauthorized tools with which he could build a bomb.”

The Army, Thomas wrote, “concluded that Hencely’s intervention ‘likely prevented a far greater tragedy.’” A federal district court had originally ruled against Hencely based on a 1988 Supreme Court precedent that limits the ability of people to file injury lawsuits against military contractors. In that case, a sharply divided Supreme Court barred such lawsuits, noting that the US military had approved the equipment design in question.

Justice Samuel Alito, another member of the court’s conservative wing, wrote a dissent Wednesday saying that war zones are typically considered the purview of the federal government, not individual states. “May a state regulate security arrangements on a military base in an active warzone? 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? In my judgment, the answer to these questions must be ‘no,’” Alito wrote. Alito was joined by Chief Justice John Roberts and Justice Brett Kavanaugh.

Fluor Corporation argued that the 1988 case should end Hencely’s litigation, claiming the Army had authorized Nayeb’s employment and withheld security concerns about him from the company. The Trump administration also sided with the subcontractor, arguing that military contractors should not be subject to state tort suits.

However, Hencely countered that the 1988 decision was different because the contractor in that case was simply following orders. “Boyle recognized a limited defense for contractors who do what the government says,” Hencely’s attorney told the Supreme Court during oral arguments in early November. “Boyle doesn’t apply here because the Army itself found that Fluor violated.”

Hencely sued in a federal court in South Carolina for damages, alleging negligent supervision and other claims under state law. After the federal district court sided with the contractor, the 4th US Circuit Court of Appeals upheld that decision. Hencely then appealed to the Supreme Court, which has now cleared the way for his case to move forward.

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