The Supreme Court handed a wounded Army veteran a hard-fought victory Wednesday, ruling 6-3 that former Spc. Winston Hencely may proceed with his lawsuit against government contractor Fluor Corporation over a 2016 suicide bombing at Bagram Airfield in Afghanistan. The decision broke along unexpected lines, with Justice Clarence Thomas writing for a majority that included all three liberal justices alongside two fellow conservatives.
Hencely was severely injured in November 2016 when he confronted Ahmad Nayeb, an Afghan employee of Fluor, who was on his way to detonate an explosive vest at a Veterans Day weekend 5K race on the base. Nayeb blew himself up when Hencely stopped him. The blast killed five people and wounded more than a dozen others.
What makes the case especially galling: Nayeb built the vest on the job site inside Bagram, the Associated Press reported, citing court documents. An Army investigation faulted Fluor for failing to supervise the man who murdered five people and maimed a soldier who tried to stop him.
Hencely suffered skull fractures, brain injury, abnormal brainwaves, seizures, and loss of full use of much of the left side of his body. He sued Fluor under state law. The Irving, Texas-based contractor fought back, arguing it shared the federal government's immunity from suit because it was operating under a government contract in a war zone.
The ruling produced one of the more striking alignments of the current term. Thomas was joined by Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Amy Coney Barrett, and Ketanji Brown Jackson. Chief Justice John Roberts and Justices Brett Kavanaugh and Samuel Alito dissented.
That coalition, Thomas writing alongside all three liberal justices, is not the kind of split that fits neatly into the usual ideological scorecards. It reflects a genuine legal disagreement among the Court's conservatives about how far contractor immunity extends in wartime, not a left-versus-right clash. The Court has produced a range of surprising voting patterns this term, and this case adds another entry to that list.
The majority held that private companies working for the government are protected when they fulfill government contracts, but that Fluor allegedly failed to carry out its duties in supervising Nayeb. That distinction matters. The Court did not strip contractors of all protection. It said that when a contractor allegedly drops the ball on its own obligations, it cannot hide behind the government's shield.
As Just The News reported, the high court vacated the Fourth Circuit's judgment and remanded the case for further proceedings "consistent with this opinion," in Thomas's words.
Justice Alito, writing in dissent, raised a different worry. He argued that Hencely's lawsuit may intrude on the government's wartime powers and decisions, including a policy requiring contractors to maximize employment of Afghans. That policy, Alito suggested, created the conditions under which Nayeb was hired in the first place.
It is a serious argument. Wartime contracting involves layers of government direction, and courts have long been wary of second-guessing battlefield decisions through civil litigation. Roberts and Kavanaugh joined Alito's position.
But the majority was not persuaded. And for good reason. There is a wide gap between honoring the government's wartime discretion and granting blanket immunity to a private company that allegedly failed to supervise an employee who built a suicide vest on a military base. If the Army's own investigation faulted Fluor's oversight, the question of whether the contractor met its obligations is a fair one for a court to examine. The Court's recent willingness to let lawsuits proceed rather than shut them down at the threshold has been a recurring feature of its current docket.
Consider the facts from Hencely's perspective. He was a soldier at Bagram Airfield. He spotted a man heading toward a crowd of runners at a 5K race held over Veterans Day weekend. He confronted Nayeb. The bomb went off.
Five people died. Hencely survived, barely. Skull fractures. Brain injury. Seizures. He lost full use of much of the left side of his body. He did what soldiers do: he ran toward danger. And the man he stopped had built his weapon right there on the base, under the nose of the contractor responsible for supervising him.
Fluor's defense amounted to this: because it was working for the government in a war zone, it could not be held accountable in court. The Washington Times noted that the central legal question was whether a private contractor working for the government can claim the government's own immunity from suit. Six justices said no, at least not when the contractor allegedly failed in its own duties.
That distinction should reassure anyone who worries about frivolous lawsuits against defense contractors. The Court did not open the floodgates. It said that when a contractor's alleged negligence contributes to a catastrophic security failure, the courthouse door stays open.
The United States has relied heavily on private contractors in every major conflict since the wars in Iraq and Afghanistan began. These companies perform functions that range from base maintenance to security to logistics. They operate under government contracts, but they are not the government. They are private firms, often publicly traded, earning billions in taxpayer-funded revenue.
When those companies perform well, the arrangement works. When they do not, when supervision lapses and an employee builds a bomb on a military installation, someone should answer for it. The internal dynamics of the Supreme Court often attract more attention than the substance of its rulings, but the substance here is straightforward: accountability.
Hencely's case now returns to the lower courts. He has not won his lawsuit. He has won the right to pursue it. Fluor will have every opportunity to defend itself on the merits. But it will have to do so in a courtroom, not behind a blanket claim of government immunity.
The Army investigated and faulted Fluor. The Supreme Court, by a convincing 6-3 margin, said the veteran deserves his day in court. That is not a radical proposition. It is basic fairness, the kind that the Court has increasingly been willing to protect across a range of cases this term.
Open questions remain. The specific state-law claims Hencely brought have not been detailed publicly. The full scope of Fluor's contractual obligations and the Army investigation's findings will likely emerge as the case proceeds. And the broader question of how far contractor immunity extends in future cases will continue to develop.
But the core principle the Court affirmed Wednesday is sound. A private company that takes taxpayer money to perform a job in a war zone does not get to claim sovereign immunity when it allegedly fails to do that job, especially when that failure contributed to a soldier getting maimed and five people getting killed.
Winston Hencely ran toward a suicide bomber to protect his fellow Americans. The least the legal system can do is let him make his case.
