Injured Vet Sues Military Contractor

Whether a military contractor can be held liable for the harm caused by its negligence is an acutely important question for injured veterans like Hencely. Because of the Feres doctrine, the United States cannot be sued for combat injuries. If the Court decides that a negligent contractor is also immune, then wounded veterans may be left with no remedy, at all.

 
Bad Day at Bagram – Was It Fluor’s Fault?

On November 12, Nayeb detonated a bomb in a crowd of more than 200, as people lined up to take part in a 5K race to celebrate Veterans Day. Before the start of the race, Hencely and others noticed Nayeb acting strangely. As they grabbed his shoulder, Nayeb detonated his vest. Three U.S. soldiers, two Fluor employees and the bomber were killed. Hencely suffered neurological injuries when shrapnel pierced his brain. Sixteen other soldiers were also injured.

In their lawsuit, the surviving vets and families of soldiers killed and injured argue that Fluor was negligent in the way that it hired and supervised Nayeb. But it’s a mixed story.

The Army sponsored Nayeb’s employment knowing he was a former Taliban member. It saw his hiring as part of a reintegration effort – an element of official U.S. policy. The Army was responsible for base security and set an entrance, exit, access and escort policy with which Fluor was contractually obliged to comply. Fluor argues that all its actions were performed under its Army contract and the military’s authority.

Nayeb worked the night shift at the hazardous materials section of the non-tactical vehicle yard with limited supervision. During his employment, Nayeb appears to have 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 the race, 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. No one reported him missing as he walked for nearly an hour to an area near the starting line of the race. He walked toward the staging area, where Hencely and others confronted him. Then he detonated his vest.

Not a negligence lawsuit (yet)

Were this a lawsuit about the negligence of a contractor hired by any non-military client, the dispute would be about whether the contractor was negligent. The argument would likely focus on two questions:

• First, whether the injured people could show that the hiring business or the contractor owed a legal duty to prevent foreseeable harm to the folks who had been hurt; and
• Second, which of the two parties failed to meet that standard. Translated into non-legalese that would be: Who screwed up?

But the Fourth Circuit, which previously heard the case, never got to either of these two questions. Instead, it determined that the immunity from lawsuits (also known as “sovereign immunity”) that the U.S. military enjoys under Feres also extends to Fluor Corp.

The Feres doctrine

The Feres doctrine, as articulated by the Supreme Court, bars members of the armed forces who are injured while on active duty from successfully suing the federal government under the Federal Tort Claims Act (FTCA).  In 1988, in Boyle v. United Technologies Corp. the Supreme Court seemed somewhat equivocal. It held that sovereign immunity may also protect a military contractor where the contractor strictly complied with the requirements of a military contract.

The National Defense Authorization Act (NDAA) created a limited statutory exception to the Feres doctrine “for personal injury or death incident to the service of a member of the uniformed services that was caused by the medical malpractice of a Department of Defense health care provider.” The medical malpractice must have occurred at a covered military medical treatment facility. But this statutory exemption does not appear to apply in Fluor, where medical malpractice is not an issue.

The question that the Supreme Court will consider is this: whether the FTCA’s combatant-activities exception will also block the lawsuit against Fluor Corp, where the issue may turn out to be the negligent supervision of Fluor’s employee.  

This is a critical question for injured veterans. If Fluor is covered by sovereign immunity, then Hencely and other veterans will be left with no remedy. If Fluor is not, then the vets may be able to recover some compensation for their injuries.