The U.S. Supreme Court on Monday heard arguments in a case against a military contractor whose employee killed five people and injured 17 at Bagram Air Base, Afghanistan, in 2016.
The majority of justices seemed skeptical that the case, brought against Fluor Corp., was an exception to previous lawsuits filed against defense contractors, which typically have immunity in litigation generated by their involvement in wartime service.
In the case Hencely v. Fluor, former Army Spec. Winston Hencely argued that Fluor should be liable under state law for failing to supervise an employee who carried out a suicide bomb attack that killed three soldiers and two Fluor staff members.
In the bombing investigation, the Army found that Fluor violated its contractual duties by providing the perpetrator, Ahmad Nayeb, with tools used to carry out the attack and failing to monitor Nayeb’s movements during escort duties.
Frank Chang, Hencely’s attorney, argued that because of Fluor’s shortcomings, the company violated its federal contract, opening it up for potential litigation. During oral arguments, Chang said Congress and previous court decisions, particularly in Boyle v. United Technologies Corp., the law makes it “very clear” that protections are provided only to companies that follow their contract specifications.
“Our Constitution presumes that state tort claims are available and leaves it to Congress to alter that default rule. Congress has done so in some circumstances when it comes to federal contractors, but it has not barred claims by American soldiers injured by contractor negligence,” Chang said.
Several justices noted, however, that the U.S. military — which by law has immunity from injury claims from U.S. service members — and not Fluor was responsible for the safety of the base and its inhabitants, including security screenings of personnel and equipment.
Justice Brett Kavanaugh noted that the Army failed some of its own responsibilities.
“It was the military [that] was supposed to prevent [Nayeb] from bringing this stuff onto the base. And then the military runs a 5K, right? And anyone who’s run a 5K, there are lots of people stacked together at the starting line,” Kavanaugh said.
Justice Ketanji Brown Jackson said she was struggling to understand the argument that there should be “carve-outs” to allow for liability against general contractors.
“I’m just trying to understand how we fit the concept into the understanding that in the [Federal Tort Claims Act], Congress decided that even with respect to combatant activities for which the government itself could not be held liable, there would still be general contractor liability,” Jackson said.
Chang said that the laws of immunity did not apply because “Fluor violated what the military wanted it to do.”
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.
In these cases, service members or families have either lost their arguments or been awarded large compensatory sums, only to see cases overturned by higher courts. The courts have ruled either that they don’t have jurisdiction in the cases or that contractors have the same immunity from lawsuits as the federal government, since they are supporting combat operations.
During oral arguments, Fluor attorneys said the Constitution preempts Hencely’s suit under state law because only the federal government has the power to go to war. The company’s attorney argued that the states — in the case, South Carolina, where Fluor is based, had no authority the bombing occurred in a combat theater.
“If the decisions of a contractor are going to be subject to state tort suits … the contractor is going to have to act very differently when an accident happens. The immediate thing the military needs when there’s an accident like this is for soldiers and contractors to work together to make sure there’s not a similar attack later that day, the next day, and so you need cooperation,” Fluor attorney Mark Mosier said. “If the contractor knows we could be blamed for this, they’re going to want to do their own investigation. They’re going to want to collect their own evidence.”
Three retired senior officers, including two lieutenant generals, filed a brief to the Supreme Court arguing that military contractors should be protected from litigation since they play an integral role in sustaining military operations. To subject contractors to possible state-law tort claims could result to “legal uncertainty and finger-pointing” in combat theatres, they argued.
Chang said the military would benefit from ruling in his client’s favor since it would “incentivize” the contractor to adhere to its specifications in a war zone.
“If the court is already thinking about creating some sort of a federal common law rule in this area, we think it should be the one that furthers the government’s interest by avoiding contractor negligence,” Chang said.
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On Nov. 12, 2016, Ahmad Nayeb, an Afghan national, detonated the bomb in a crowd of more than 200 as people lined up to take part in a 5K celebration of Veterans Day.
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 they grabbed Nayeb’s shoulder, he detonated the bomb.
Killed in the attack were U.S. soldiers Pfc. Tyler Iubelt, 20; Staff Sgt. John Perry, 30; and Sgt. 1st Class Allan Brown, 46, as well as Fluor contractors Peter Provost, 62, and retired Army Col. Jarrold Reeves, 57.
Their families and at least eight injured service members have filed a lawsuit against Fluor, but that case is on hold pending the Supreme Court’s decision, expected by early next year.
Patricia Kime is a senior writer covering military and veterans health care, medicine and personnel issues.
