Where a soldier injured in a suicide bombing at an overseas military base sued the military contractor for negligent supervision, entrustment and retention of the bomber, but the military retained command authority over the contractor’s supervision of local national employees on the base, the suit was dismissed.
Background
This lawsuit arises out of a 2016 suicide bombing at the United States military base at Bagram airfield in Afghanistan. The bomber was employed on base by a private military contractor, which provided support services to the armed forces. He is suspected to have constructed an explosive vest while working unsupervised during his night shift.
An American soldier wounded in the attack, Winston Tyler Hencely, sued the contractor under South Carolina law, alleging that its supervision, entrustment and retention of the bomber were negligent. He also alleged the contractor breached its contract with the U.S. Government.
The District Court granted judgment to the contractor on all claims. The court concluded that federal law preempted the plaintiff’s tort claims, and that he was not a third-party beneficiary entitled to enforce the Government’s contract.
Political question doctrine
A suit against a military contractor raises a nonjusticiable political question if either (1) the military exercised direct control over the contractor or (2) “national defense interests were closely intertwined with military decisions governing the contractor’s conduct, such that a decision on the merits of the claim would require the judiciary to question actual, sensitive judgments made by the military.”
Under the first prong, “a suit against a military contractor presents a political question if the military exercised direct control over the contractor,” meaning the military’s control was “plenary” and “actual.” On the current record, the military’s control cannot be considered “plenary,” so the court need not consider whether it was actual.
Fluor argues that its “causation defense — i.e., trying the Military as the ‘empty chair’ and establishing that pivotal Military judgments caused Plaintiff’s injuries” — would require the factfinder to evaluate the reasonableness of military decisions. But South Carolina law, which the parties have assumed applies to Hencely’s negligence claims and to Fluor’s defenses, prohibits a jury from assigning fault to an immune nonparty. The political question doctrine therefore poses no bar to judicial review of the merits of this dispute.
Preemption
“‘During wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor’s engagement in such activities shall be preempted.’” Hencely does not contest that, applying this court’s precedent, Fluor was “integrated into combatant activities” at Bagram airfield. The court also concludes that “the military retained command authority” over Fluor’s supervision of local national employees on the base.
The fact that Fluor possessed some discretion when operating within this framework does not eliminate the conflict between state tort law and federal interests presented here. The military nevertheless retained ultimate command authority over supervision of local nationals and the protocols necessary to mitigate the risk posed by their presence on base.
Hencely responds that Fluor could comply with state tort duties and the military’s directives. For example, Fluor could have denied Nayeb access to a multimeter without violating the military’s policy forbidding local nationals to use certain items. But that argument overlooks the “more general” nature of “battlefield preemption.”
Hencely contends that Fluor’s contract with the Army was a performance-based statement of work and did “not provide any direction to Fluor about how it was to supervise its workers.” Although Fluor retained primary authority over monitoring its employees’ contract performance, it did not have discretion to decide the terms of local national supervision necessary for base security.
Hencely next argues that preemption should not apply because he has alleged that Fluor did not follow Army instructions and failed to comply with its contractual obligations. This argument misunderstands the nature of combatant activities preemption. Finally, Hencely asserts that the Fluor employees and subcontractors who escorted local nationals were not “within the Army’s chain of command.” But the pertinent inquiry is whether the military retained command authority over the combatant activities into which the contractor was integrated.
State claim
Hencely has not pleaded facts sufficient to plausibly establish that he is an intended third-party beneficiary of the contract between Fluor and the United States. The United States and Fluor did not evidence intent to benefit Hencely, or U.S. soldiers as a class, in the contract or its implementing agreements.
Affirmed.
Concurring/dissenting opinion
Heytens, J., concurring in part and dissenting in part:
I agree the political question doctrine does not prevent a court from deciding this case, that Hencely was not a third-party beneficiary to Fluor’s contract with the government and that Hencely’s negligent supervision and negligent control claims are preempted. I would, however, reverse the District Court’s grant of summary judgment to Fluor on Hencely’s negligent entrustment and negligent retention claims.
Hencely v. Fluor Corporation, Case No. 21-1994, Oct. 30, 2024. 4th Cir. (Rushing), from DSC at Greenville (Hendricks). Robert Henry Snyder Jr. for Appellant. Daniel L. Russell Jr. for Appellees. 34 pp.