Hencely v. Fluor

Former U.S. Army Specialist Winston T. Hencely was critically and permanently injured by a suicide bomber inside Bagram Airfield in Afghanistan. The bomber, Ahmad Nayeb, worked on base for a government contractor. An Army investigation found that 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. Hencely sued the government contractor for negligence under South Carolina law. He did not sue the military under the Federal Tort Claims Act. Even so, the Fourth Circuit held that Hencely's state claims are preempted by unspoken "federal interests" emanating from an FTCA exception. Invoking Boyle v. United Technologies Corp. , 487 U.S. 500 (1988), the court of appeals held that the FTCA's exception immunizing the government for "[a]ny claim arising out of the combatant activities of the military or naval forces ... during time of war," 28 U.S.C. §2680(j), barred Hencely's South Carolina claims against the contractor . The decision below reaffirmed a 3-1-1 split among the Second, Third, Fourth, Ninth and D.C. Circuits over Boyle 's reach when contractors defend against state tort claims by invoking §2680(j). The question presented is: Should Boyle be extended to allow federal interests emanating from the FTCA's combatant-activities exception to preempt state tort claims against a government contractor for conduct that breached its contract and violated military orders?

In 2016, U.S. Army Specialist Winston Tyler Hencely was stationed at Bagram Airfield in Afghanistan as part of Operation Freedom’s Sentinel. Fluor Corporation held a Department of Defense contract to provide base life support services at Bagram, including vehicle maintenance and hazardous materials management. Under the military’s “Afghan First” counterinsurgency program, which aimed to develop the Afghan economy by employing local nationals, Fluor’s subcontractor hired Ahmad Nayeb, an Afghan national. The Army sponsored Nayeb’s employment despite knowing he was a former Taliban member, viewing his hiring as a reintegration effort. Nayeb worked the night shift at the hazardous materials section of the non-tactical vehicle yard with limited supervision. During his employment, Nayeb likely smuggled explosives onto the base and constructed an explosive vest while working alone, using base tools including a multimeter he had checked out despite not needing it for his assigned duties. On the morning of November 12, 2016, at the end of his shift, Nayeb was supposed to board a bus to be escorted off base. Instead, he lied about needing to attend a hazardous materials class and walked undetected for 53 minutes to an area near the starting line of a Veterans Day 5K race. When Hencely and others confronted him, Nayeb detonated his vest, killing himself and five others while severely wounding seventeen more, including Hencely. The Taliban claimed credit for the attack. Hencely sued Fluor in the U.S. District Court for the District of South Carolina, alleging negligent supervision, entrustment, and retention under South Carolina law, as well as breach of the government contract. The district court granted judgment to Fluor on all claims, holding that federal law preempted the state tort claims and that Hencely was not a third-party beneficiary entitled to enforce the government contract. The U.S. Court of Appeals for the Fourth Circuit affirmed.