The Supreme Court decided on June 2 to consider whether a U.S. soldier should be allowed to sue a defense contractor over a suicide bombing during U.S. military operations in Afghanistan.

The court granted the petition in Hencely v. Fluor Corp. in an unsigned order. The court did not explain its decision. No justices dissented.

Former U.S. Army Specialist Winston Hencely suffered permanent injuries in November 2016 as a result of the actions of a suicide bomber at the Bagram Airfield in Afghanistan. The bomber, the late Ahmad Nayeb, was employed on the base with a government contractor, according to the petition that Hencely filed with the Supreme Court on Feb. 24.

The petition quoted a report from an Army investigation that determined “the attack’s primary contributing factor was the contractor’s actions in breach of its Army contract and in violation of the military’s instructions to supervise Nayeb.” The Army report said the contractor’s “systemic” failure to supervise Nayeb “enabled the bombing.”

Hencely argues in the petition that the contractor, Fluor Corp., failed to properly supervise Nayeb and that this allowed him “to build the bomb on the job at Fluor’s jobsite inside the base with Fluor’s own components and tools.”

Nayeb detonated an explosive vest he was wearing under his clothing and in the process killed five U.S. soldiers and civilians, while wounding others.

The federal government cannot be sued because of sovereign immunity, a legal doctrine that prevents governments from being sued in their own courts unless they consent to being sued.

However, the Federal Tort Claims Act (FTCA) grants waivers in certain situations, allowing lawsuits against the federal government “under circumstances where the United States, if a private person, would be liable.” A tort is a wrongful act or infringement of a right that gives rise to civil liability.

The act also contains a combatant-activities exception that shields the federal government from lawsuits based on the activities of military personnel during wartime, including combat and military operations.

Hencely opted not to sue the military, which is part of the federal government, and instead filed a negligence lawsuit against Fluor Corp. under South Carolina law, the petition said.

The federal district court in South Carolina dismissed the lawsuit in August 2021, noting that the lawsuit was preempted, or overridden, by FTCA. It also held that “core facts that would be central to litigating this suit” were still classified, which “would present a major hurdle, if not a prohibitive event to the resolution of this matter on the merits.”

The U.S. Court of Appeals for the Fourth Circuit affirmed, finding in October 2024 that Hencely’s claims were preempted by “‘federal interests’ emanating from an FTCA exception.”

Citing Boyle v. United Technologies Corp. (1988), the Fourth Circuit determined that the exception that provides civil immunity to the government for “any claim arising out of the combatant activities of the military or naval forces … during time of war” prevented Hencely from suing the contractor, the petition said.

Hencely argues in the petition that the FTCA is supposed to block suits against the government, as opposed to government contractors.

The Fourth Circuit was wrong to turn the conflict-preemption rule in Boyle “into a categorical rule that any state tort claim against a contractor that ‘touches’ events in a military theater is preempted by ‘federal interests’ emanating from the FTCA’s combatant-activities exception,” the petition said.

Fluor filed a brief on April 28, urging the Supreme Court not to accept the appeal.

Fluor denied liability, saying that the military carried out counterintelligence screening interviews of Nayeb but “never warned [Fluor] of Nayeb’s prior Taliban ties.”

“The military believed that providing him with employment would encourage his reintegration into civil society and away from the insurgency,” the brief said.

The brief said the Fourth Circuit’s decision was consistent with four other federal circuit courts that have ruled on whether state-law tort claims that are related to the military’s “combat activities” are preempted by the FTCA’s combatant-activity exception.

“Not a single court has adopted [Hencely’s] position: that federal law never preempts state tort claims seeking to regulate combatants’ activities on foreign battlefields,” the brief said.

The Supreme Court is expected to hear the case in its next term, which gets underway on the first Monday in October.

This article by Matthew Vadum appeared June 4, 2025, in The Epoch Times.