Supreme Court lets negligence claims hit Fluor over supervision failures

Nayeb had been hired through the military’s “Afghan First” program, which equired contractors to prioritize hiring local Afghan workers to support the country’s economy and help stabilize the Afghan government. The military screened Nayeb, learned of his past Taliban ties, and still approved him for employment. Fluor’s subcontractor then brought him on. Under its contract, Fluor was responsible for supervising Nayeb and ensuring compliance with base security procedures. 

What the Army found after the attack was a cascading series of employer failures. Fluor’s own supervisors did not have a clear understanding of who was responsible for watching Nayeb. He had been caught sleeping on the job and leaving his work area without justification – both terminable offenses – yet Fluor took no meaningful disciplinary action. Base policy required Fluor to escort workers like Nayeb in all areas of the base outside their work sites and keep them in constant view, but at the end of each shift, rather than escorting Nayeb to the base exit as required, Fluor relied on a sign-out system administered by another Afghan employee. Fluor also allowed Nayeb to access tools unrelated to his job, tools he used to assemble the bomb. The Army concluded that Fluor’s complacency and lack of reasonable supervision was the primary contributing factor to the attack. 

Hencely sued Fluor in South Carolina for negligent supervision, negligent retention, and negligent entrustment. Fluor argued that because it was operating under military authority in a warzone, federal law shielded it from state tort claims. The Fourth Circuit agreed, applying a broad rule that effectively immunized military contractors from negligence suits during wartime. The Supreme Court rejected that rule entirely. 

Justice Clarence Thomas, writing for the majority joined by five other justices, found that federal law only protects a contractor when the government directed it to do the very thing being challenged. Here, Fluor was being sued for conduct that violated its own contractual obligations to the military. There was no conflict between what the military asked Fluor to do and what South Carolina negligence law required – Fluor simply failed at both. The Department of Defense had itself previously warned contractors not to expect immunity from third-party claims based on their government relationships. 

Justice Samuel Alito dissented, joined by Chief Justice John Roberts and Justice Brett Kavanaugh, arguing that the Constitution’s exclusive grant of war powers to the federal government should bar state-law claims intertwined with military policy decisions.