This Supreme Court Case Makes My Blood Boil. It Should Make Yours, Too.

Varun Mekala

I just read about a case in front of the Supreme Court, Hencely v. Fluor Corp, and to be honest, it’s one of those most infuriating legal cases.

This case involves a U.S. soldier, Specialist Winston Hencely, who was severely injured in a 2016 suicide bombing at Bagram Airfield in Afghanistan. He is a hero. He saw the bomber approaching a crowd gathered for a Veterans Day 5K race, confronted him, and was grabbing him when the man detonated his vest.

Hencely's actions saved countless lives, but he was seriously injured. He still suffers seizures and the loss of use of the left side of his body.

The bomber wasn't random. He was an employee of the Fluor Corporation, one of the largest military contractors in the world. And according to the Army's investigation, this tragedy was preventable. The Army found that Fluor was negligent.

A Total Breakdown of Responsibility

The bomber was an Afghan national hired by a Fluor subcontractor. The U.S. military knew he was a former Taliban member but employed him as part of a reintegration program.

Fluor was obligated to supervise him. They did not.

The Army's investigation into the bombing pinned blame on Fluor's own negligence as the "primary contributing factor." The bomber was permitted to work an unsupervised night shift. On the morning of the attack, he was supposed to be escorted  at the end of his shift. Instead, he was allowed to walk, unaccompanied, for nearly an hour to the 5K race.

So Winston Hencely sued Fluor for negligence. Seems like an open and shut case right? The company was hired to do a job, they failed to do it, and as a result, a soldier was maimed.

This is where the law gets twisted.

The Corporate Shield

Fluor’s argument rests on the "combatant-activities exception." This is a part of a law which says you cannot sue the U.S. government for injuries that "arise out of combatant activities" during wartime, but Hencely isn't suing the U.S. government; he’s suing Fluor, a private corporation.

The lower courts all sided with Fluor. They threw out Hencely's suit, deciding that the same immunity protects private contractors. They believed that allowing a negligence suit to go forward "would interfere" with "uniquely federal interests"

My Problem: You Can't Have It Both Ways

This is where I get confused, because I really don't see how punishing a company for failing to follow military orders and violating its own contract "interferes" with military decisions.

It seems to me it does the exact opposite. It upholds military discipline. It tells contractors that if they take billions of taxpayer dollars to do a job, say, supervising their employees on a war base-they damn well better do it.

The reality of Fluor's argument was pointed out by Hencely's lawyers. If Fluor wins, it creates no solutions. A soldier like Winston Hencely can’t sue the U.S. government for his injuries, and if the Supreme Court says he also can't sue the private contractor whose negligence was the "primary contributing factor" to his injuries, who is left to hold accountable? No one is the answer. This case is about a company failing to do its contracted job. And if there's no accountability for that, what's the point of having a contract at all?