The U.S. Supreme Court will take up the case of an Army soldier who sued a defense contractor for negligence in a bombing that killed five during a Veterans Day 5K at Bagram Air Base, Afghanistan, in 2016.
Former Army Spc. Winston Hencely, who was severely injured in the attack, filed a lawsuit in 2019 in South Carolina federal court against Fluor Corporation, a military contractor that hired Ahmad Nayeb, an Afghan national who detonated the bomb in a crowd of more than 200 on Nov. 12, 2016.
Hencely's suit alleges that the company was required to monitor its Afghan workers at all times but failed to do so, and that the company also inadvertently provided the instruments for building the bomb.
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According to an investigation conducted by U.S. Forces-Afghanistan, Nayeb constructed the bomb in his on-base workspace using materials and tools from his job, which involved vehicle maintenance and oil disposal.
Nayeb failed to board an escort bus for Afghan nationals to leave the base the morning of Nov. 12, but no one reported him missing. He walked across the base toward the race staging area, where Hencely and others spotted him acting strangely. As Hencely grabbed Nayeb's shoulder, he noticed the bomb, which Nayeb then detonated.
Three soldiers and two Fluor employees were killed, and 17 others were injured. Hencely suffered a traumatic brain injury that continues to cause seizures and left him without the use of his left side.
The investigation found that Hencely's response likely prevented a worse outcome. It also found that the military knew Nayeb was a former member of the Taliban but believed he had renounced his support of the enemy.
Yet it also said Fluor was complacent and neglected its contractual duties, giving Nayeb tools that weren't required for his job and failing to diligently monitor employees during escort duties.
Although Hencely didn't sue the U.S. Army, the courts ruled that they had no jurisdiction to decide the case over violations of state claims because the Federal Tort Claims Act -- a federal law -- protects the federal government, including the U.S. military and, in many circumstances, government contractors, from lawsuits involving combat activities.
Fluor's attorneys agree, saying in court documents that state tort law may not supersede federal tort law when it comes to private contractors working for the U.S. military.
"The Second, Third, Fourth, Ninth, and D.C. Circuits unanimously concur that state law should be displaced insofar as it conflicts with the federal objectives underlying the [Federal Tort Claims Act's] combatant-activity exception," wrote the company's attorneys in their response to Hencely's Supreme Court petition.
Hencely's attorneys say contractors should not be covered by the blanket immunity the government receives in wartime and Fluor should be held accountable for the negligence of its employees just like any other company in a negligence lawsuit.
The families of those killed in the attack and at least eight others who were injured have filed a separate lawsuit against Fluor. The case has been placed on hold pending the outcome of the Hencely decision, according to court documents.
Defense contractors previously have been sued for negligence in their support of the U.S. government in Iraq, Afghanistan and elsewhere -- notably over the management of burn pits used to dispose of waste on military bases, chemical exposure during cleanup operations, and faulty construction that contributed to electrocutions and other deaths.
For the most part, the service members or families have lost or been awarded large compensatory sums, only to see cases overturned by higher courts, which have ruled they don't have jurisdiction in the cases or that contractors are afforded the same immunity from lawsuits as the federal government, since they are supporting combat operations.
Army soldiers Pfc. Tyler Iubelt, 20; Staff Sgt. John Perry, 30; and Sgt. 1st Class Allan Brown, 46, died in the attack, along with Fluor contractors Peter Provost, 62, and retired Army Col. Jarrold Reeves, 57.
The Supreme Court is slated to hear oral arguments in the Hencely case in the fall.
