An Army veteran attempting to wield South Carolina law to sue a military contractor won a major Supreme Court victory Wednesday, carving out a narrow legal lane for those seeking to hold wartime contractors to account.
The ruling allows a former soldier to use state injury laws to sue a U.S. business whose Afghan employee gravely wounded him in a 2016 suicide bombing. While the decision doesn’t curb the Feres doctrine, a 1950 court ruling that prevents troops injured on active duty from suing the federal government, it does offer a pathway for other service members to file suits in states with plaintiff-friendly laws, according to legal experts.
The high court’s “opinion just says, ‘Look, neither the Constitution nor any federal law requires this state case to be dismissed,” said Franklin Rosenblatt, a retired Army judge advocate who teaches constitutional law at Mississippi College School of Law.
“If South Carolina or California prove to be states where these claims are easily made, then that could potentially lead to a lot of litigation, possibly even class actions, against some of these military contractors,” Rosenblatt added. “But whether that happens is ultimately a question of state law where the lawsuits are brought.”
Wednesday’s Supreme Court ruling had its origins with a soldier who sued Fluor Corporation for negligence that, he said, led to a 2016 suicide bombing at Bagram Air Base, Afghanistan.
Winston Hencely was a 20-year-old Army specialist when he stopped and questioned a local national, Ahmad Nayeb, as he approached a Veteran’s Day foot race held on base. After being confronted, Nayeb detonated an explosive-laden vest he had been concealing, killing five and wounding 17 others, including Hencely, who suffered a fractured skull and brain injuries.
Hencely was credited by the Army for preventing Nayeb from reaching a larger crowd.
Nayeb had access to the base while working with Fluor as a contractor in Bagram’s vehicle yard. But court filings said Army investigators found that Fluor had failed to supervise Nayeb, allowing him to check out tools that he used to build a bomb and failing to escort him off base at the end of his shift.
Top Stories This Week
An Army investigation of the attack found that Fluor’s lax supervision “enabled Nayeb to go undetected” for about an hour on the day of the attack, walking freely around Bagram until Hencely confronted him.
Nayeb was also known to have been involved with the Taliban in his past, but U.S. military authorities had approved him for employment by Fluor as part of an “Afghan First” program meant to stimulate the local economy and deter him from rejoining the insurgency.
In 2019, Hencely sued Fluor Corporation for negligence in South Carolina, where two Fluor subsidiaries are based, and accused the firm under state injury laws of not properly supervising Nayeb, even as he proved to be an untrustworthy employee.
Though a circuit court ruled in Fluor’s favor, the Supreme Court decided this week in a 6-to-3 opinion written by Justice Clarence Thomas that Hencely’s suit could go forward.
Thomas wrote that Fluor could be held responsible if it failed to carry out its legally contracted duties, such as supervising Nayeb.
“Federal contractors do not automatically share the Government’s immunity merely because they perform services for it,” Thomas wrote. “Absent a statute to the contrary, States can regulate or tax federal contractors on the same terms as any private company.”
For their part, Fluor’s attorneys argued that state injury laws shouldn’t apply to the battlefield, “where risk-taking is the rule, not the exception,” and where it “would stifle military decisionmaking.”
Fluor representatives did not return a request for comment.
Hencely’s case was also unique in its final vote count. Thomas, one of the high court’s most conservative justices, has long opposed the Feres doctrine and voted with three liberal justices and two other conservatives in the majority opinion. Justice Samuel Alito, whose own conservative views usually match Thomas’s, wrote a dissenting opinion with two other conservative justices.
Rosenblatt, the former Army lawyer, wondered if the court might revisit previous Feres rulings under the Federal Tort Claims Act.
“Everyone likes the troops, and there’s now a sizable right-wing and a left-wing coalition on the court saying that blocking troops from recovering for injuries doesn’t make sense,” Rosenblatt said. “I see this judicial coalition as emboldened to eventually reverse precedents to allow for military members, their families, and veterans to make claims against the government under the FTCA, then sue in federal court if and when the government denies those.”
Another lawsuit against Fluor over the 2016 Bagram attack has been on pause in South Carolina since 2022, as litigators awaited the outcome of Hencely’s case, according to court records. Defendants in that case include family members of Pfc. Tyler Iubelt, 20, Staff Sgt. John Perry, 30, and Sgt. 1st Class Allan Brown, 46, who were all killed in the suicide bombing.
Two Fluor contractors, Peter Provost, 62, and retired Army Col. Jarrold Reeves, 57, also died in the blast.
