Supreme Court Revives Soldier’s Bombing Suit Against Fluor (1)

The US Supreme Court said in a Wednesday opinion that a US soldier can again pursue a suit accusing defense contractor Fluor Corp. of not doing enough to protect him from a 2016 bombing attack in Afghanistan.

The suit should move forward because “no statute or constitutional provision expressly” preempts Winston Hencely’s suit, Justice Clarence Thomas said.

The justices said the US Court of Appeals for the Fourth Circuit improperly concluded that the combatant activities exception in the Federal Tort Claims Act barred Hencely’s suit alleging negligence. The exception exists to preclude state regulation of US military conduct and decisions.

The preemption rule on which the Fourth Circuit relied “lacks any foundation in the Constitution, federal statutes, or our precedents,” the opinion said.

Hencely’s 2019 suit against Fluor—which performed a logistics services contract for the US Army—alleged negligent management of Afghan employees under South Carolina state law. The attack killed the bomber and five others, and wounded 17 more, including Hencely.

The attacker worked as a “local national” under the military’s “Afghan First” program. Fluor’s subcontractor hired him to work in the base’s nontactical vehicle yard.

A South Carolina federal district court granted Fluor summary judgment, and the Fourth Circuit affirmed, because Fluor engaged in combatant activities by supervising employees on a military base in a “theater of war,” and because the military retained control over Fluor’s supervision.

Fluor isn’t shielded from the suit, Thomas said, because Hencely sued Fluor for conduct the government didn’t authorize. Fluor doesn’t dispute that the Army found that it failed to satisfy contract requirements, and that the Army found that this failure was a cause of Hencely’s injuries, the opinion said.

Even if the government has a unique federal interest in regulating military bases overseas, the opinion said, no significant conflict exists between that interest and state-law negligence liability premised on a contractor’s departure from military instructions.

During oral argument in November, the justices and attorneys discussed the Supreme Court’s 1988 decision in Boyle v. United Technologies Corp., which said a defense contractor was immune from a suit claiming that an allegedly defective helicopter design caused a crash that killed a copilot.

Thomas said Boyle doesn’t support the Fourth Circuit’s preemption rule, because Boyle involved a special circumstance where the government directed a contractor to do the very thing that was subject to a lawsuit.

The government required Fluor to hire Afghan employees. But it didn’t, as Hencely alleges, require Fluor to leave the attacker unsupervised or allow him to access to tools with which he could build a bomb, Thomas said.

The court also said the federal goverment has broad and sweeping war powers, but that doesn’t mean courts must reject any tort claims connected to a war zone. Plaintiffs have been able to enforce their legal rights even they’re violated during war, the opinion said.

Justices Samuel Alito and Brett Kavanaugh, as well as Chief Justice John Roberts, dissented. Alito said that judges and juries may not pass judgment on questions are “inextricably tied” to military decisions.

Hencely’s claims “intrude” upon the federal government’s exclusive power to make war and conduct combat operations, Alito said.

Counsel for the parties didn’t immediately respond to a request for comment.

Butler Prather LLP, Consovoy McCarthy PLLC, Bowen Painter Injury Lawyers, Cannella Snyder LLC, Beattie B. Ashmore PA, and Law Office of D. Josev Brewer represented Hencely. Covington & Burling LLP represented Fluor.

The case is Hencely v. Fluor Corp., U.S., No. 24-924, 4/22/26.