High Court Will Review Soldier’s Bomb Claims Against Fluor (2)

The US Supreme Court said Monday that it will consider whether an appeals court improperly rejected a US soldier’s suit seeking to hold defense contractor Fluor Corp. responsible for an Afghanistan suicide bombing.

Winston Hencely contended that Fluor didn’t do enough to prevent a Nov. 12, 2016 attack that killed the bomber and five others, and wounded 17 more, including Hencely.

The US Court of Appeals for the Fourth Circuit ruled that the combatant-activities exception to the Federal Tort Claims Act barred Hencely’s suit. The exception exists to preclude state regulation of US military conduct and decisions.

The Supreme Court’s ruling in this case could clarify for plaintiffs at what point a government contractor’s acts or omissions remove immunity, such that negligence lawsuits can proceed.

“The petition centers on the scope of contractors’ ability to avoid responsibility—an issue that has divided lower federal courts and significantly affects wounded veterans’ rights,” according to a media release from Butler Prather LLP, one of the firms representing Hencely.

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

Hencely argued in his Feb. 26 petition that no statute preempts state-law claims against contractors in a military theater.

Congress said the “opposite,” as the Fourth Circuit recognized that the FTCA’s terms and the combatant-activities exception don’t apply to government contractors, Hencely stated. Protecting federal contractors in military theaters contradicts the actual words of the relevant federal statute, the petition said.

Hencely’s petition also said the Supreme Court should resolve a “3-1-1 circuit split” over the application of the combatant-activities exception.

Hencely said, for example, that his suit would have proceeded under the Second Circuit’s combatant-activities exception standard because the military didn’t specifically authorize or direct Fluor to entrust its tools to the bomber.

Fluor’s April 28 response to the petition said the Fourth Circuit correctly agreed with all other circuits to address “whether state-law tort claims arising out of the military’s ‘combatant activities’ can be preempted by the FTCA’s combatant-activities exception.”

The Second, Third, Fourth, Ninth, and D.C. circuits agree that state law should be displaced when it conflicts with the federal objectives underlying the exception, Fluor said.

The Fourth Circuit correctly recognized that the federal government, and not the states, retains exclusive authority over the conduct of war overseas, Fluor said.

Beattie B. Ashmore PA; Bowen Painter; Butler Prather LLP; Cannella Snyder LLC; Consovoy McCarthy PLLC; 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, 6/2/25.