Soldier wounded in suicide bombing wants right to sue military contractor
The suicide bomber made his away across Bagram air base in Afghanistan in 2016, heading toward a Veterans Day 5-K race featuring hundreds of U.S. soldiers. As U.S. Army Spec. Winston T. Hencely moved to grab the man, the bomber detonated an explosive-laden vest that left Hencely with severe injuries and killed six.
Hencely was credited with saving lives, and the military later concluded that a contractor, Fluor Corp., which employed the suicide bomber, had failed to properly supervise the man before the attack.
Under federal law, Hencely cannot sue the military for his injuries. And when he sued Fluor for negligence, courts dismissed his case, saying federal law preempted it as well.
On Monday, the Supreme Court grappled with Hencely’s last-ditch appeal to revive his lawsuit. The case will determine what recourse soldiers hurt in combat zones might have if they allege that contractors—a fast-growing part of military operations—are responsible for their injuries.
The justices lobbed sharp questions at both sides during arguments that went well beyond the allotted hour.
The case revolves around the Federal Tort Claims Act (FTCA), which in some instances waives the sovereign immunity the government typically enjoys against lawsuits. The law sets up some clear barriers to suits, including those related to “combatant activities” during “time of war.”
In a 1988 decision, the high court held that the tort law barred suits against military contractors when the claims involve a “uniquely federal interest.”
In Hencely’s case, a federal judge in South Carolina, where Fluor is based, and the U.S. Court of Appeals for the 4th Circuit ruled that the FTCA preempts the suit.
Mark Mosier, an attorney for Fluor, told the justices the readiness of the U.S. military to fight a war could be undermined by suits like Hencely’s because trust between the military and contractors is paramount.
“The purpose of tort law is to discourage risk-taking, but waging war often requires contractors to take risks, putting their lives and the lives of others in danger,” Mosier said. “Petitioner’s claims also weaken the military’s control over combat operations. Contractors are part of the total force, and the military cannot successfully wage war without them.”
Fluor blames the military for the tragedy, saying the Army failed to exclude the bomber from the base despite security concerns.
Justice Brett M. Kavanaugh said he agreed that what happened to Hencely “is terrible,” but noted that the Constitution makes clear states have no power over war. Allowing Hencely to bring a claim under state negligence law would allow states to intrude on the war power, he suggested. He also said allowing the suit to go forward could undermine military operations by giving 50 states the ability to intervene via lawsuits in the conduct of battle.
“There is nothing more uniquely federal than conducting war in a combat zone,” Kavanaugh said.
Frank Chang, an attorney for Hencely, argued that while the FTCA applies to lawsuits against the government, it makes no mention of contractors, meaning his client’s case should be allowed to go forward. Chang also argued that Hencely should be allowed to bring a lawsuit because Fluor allegedly violated the terms of its contract by not doing more to supervise the suicide bomber.
“After the Army found that Fluor’s disregard of key contractual requirements led to the bombing at Bagram, Specialist Hencely tried to seek some measure of justice, but the 4th Circuit blocked his efforts,” Chang told the justices.
Justice Ketanji Brown Jackson seemed to be groping for a way to allow lawsuits like Hencely’s to go forward. The Department of Defense had told military contractors they could face civil liability for misconduct in some cases, she noted.
“How do we think about the fact that apparently DOD in its regulations left open the opportunity or said to contractors that you could be held liable?” Jackson asked Chang.
Chang replied: “That’s huge, your honor.”
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