WASHINGTON D.C. & SAVANNAH GA.
Today the United States Supreme Court granted certiorari in the case of Winston Hencely v. Fluor Corporation.
This is a noteworthy development – the U. S. Supreme Court receives approximately 7,000 requests each year to review lower court rulings (“petitions for certiorari”) but grants only some 60-70 such requests, or about 1%.
U.S. Army Specialist Winston Hencely was catastrophically injured on Veterans Day, November 12, 2016, when he tried to stop a suicide bomber at Bagram Airfield in Afghanistan. The terrorist had been hired by a subcontractor of Fluor, a defense department contractor at the base. Fluor had failed to supervise this employee, enabling him to build a bomb vest while on the job from materials taken from Fluor’s jobsites using tools owned by Fluor. Contrary to its contract with the Army, Fluor had left the employee unsupervised, and he was thus able to wander away from his jobsite toward the assembly point where soldiers were gathering for a 5k race in honor of Veterans’ Day. Hencely intercepted the suicide bomber, who then detonated the bomb vest, killing six and injuring 17, including Hencely.
As Hencely’s lawsuit stated: “Hencely’s vigilance saved the lives of, and prevented grievous injuries to, many more who were assembling for the Veterans Day 5k race. Hencely’s intervention stopped the bomber from reaching the densely-packed starting point.” Hencely v. Fluor, D. S.C., Civil Action File No. 6:19-cv-00489-BHH, Doc. 1 at ¶25.
The U. S. District Court in Greenville S.C. granted summary judgment to Fluor – tossing Hencely’s lawsuit. The U.S. Court of Appeals affirmed that decision, holding that Hencely’s claims brought under state law were “preempted” by a judicial policy which protects contractors such as Fluor.
“The Supreme Court’s decision to hear the case marks a pivotal moment in the pursuit of justice for American service members harmed by corporate negligence abroad,” said Tyler R. Green of Consovoy McCarthy PLLC, Supreme Court counsel for Hencely.
“We are gratified that the Supreme Court has recognized the importance of this case and the need to clarify the legal responsibilities of U.S. government contractors operating overseas,” said Jim Butler of Butler Prather LLP, lead counsel for Mr. Hencely. “Our client has shown extraordinary strength in the face of immense hardship, and this case represents not just his fight, but a broader question of accountability when private contractors endanger the safety of American troops.”
The petition centers on the scope of contractors’ ability to avoid responsibility – an issue that has divided lower federal courts and significantly affects wounded veterans’ rights.
“This is about ensuring that corporations operating under military contracts comply with those contracts and with the law,” said Paul Painter, III of Bowen Painter, LLC, co-counsel on the case. “We look forward to presenting our arguments before the highest court in the land.”
“For decades, private contractors have used the Supreme Court’s decision in Boyle as a shield when they injure people, like Winston, while evading accountability,” said Stephen D. Morrison, III, also of Bowen Painter.
Oral arguments are expected to be scheduled during the Court’s upcoming term.
Mr. Hencely is represented by:
James E. Butler, Jr., Daniel E. Philyaw, and Allison Brennan Bailey of Butler Prather LLP, Atlanta/Columbus/Savannah GA;
W. Andrew Bowen, Paul W. Painter, III, and Stephen D. Morrison, III, of Bowen Painter LLC, Savannah GA;
Tyler R. Green, Thomas R. McCarthy, Taylor A.R. Meehan, and Frank Chang of Consovoy McCarthy PLLC, Arlington VA;
Beattie Ashmore, Esq, Greenville SC;
D. Josev Brewer, Esq., Greenville SC; and
Robert H. Snyder, Jr., Cannella Snyder LLC, Decatur GA.
Amicus Curiae (“friend of the court” ) briefs were filed supporting Hencely’s petition to the Supreme Court on behalf of:
The Center for Military Law and Policy, Veterans Legal Services, Military-Veterans Advocacy, Inc., and the Jewish War Veterans of the United States of America
By Noah Heinz & Albert PakPak, Heinz PLLC, Washington D.C.
Veterans of Foreign Wars of the United States and the Iraq and Afghanistan Veterans of America
By John Muckelbauer, VFW, Washington D.C., and
Peter B. Rutledge, Hillary K. Lukacs, Nathan R. Miles, and Isabelle Hale, Morris Manning & Martin, LLP, Atlanta GA
State of West Virginia and Eleven Other States
By John B. McCuskey, Attorney General of West Virginia, and Michael R. Williams, Solicitor General of West Virginia, Charleston W.V.
The Court dockets may be found at:
District Court: No. 6:19-cv-00489-BHH)
Fourth Circuit: No. 21-1994
U. S. Supreme Court: No. 24-924
