Hartline Barger Wins Motion to Dismiss in Afghanistan Suicide Bombing Case

Dallas, TX, February 01, 2021 — Hartline Barger LLP today announced a victory after attorneys Darrell Barger and Brian Rawson were successful on a motion to dismiss while defending a military defense contractor.

This case arises out of a suicide bombing that occurred on Veterans’ Day 2016 at a United States Military base in Afghanistan.  Plaintiffs, who were represented by plaintiffs’ counsel Tony Buzbee and Lisa Blue, included injured civilians and soldiers, as well as family members of those injured and killed in the bombing.  Hartline Barger’s client provided base operations support to the United States military at Bagram Airfield in Afghanistan.

The military personnel at Bagram are engaged in the Afghan First Program, a counterinsurgency (“COIN”) strategy.  The Afghan First Program aims to increase opportunities for Afghan socio-economic development and expansion and requires bases in Afghanistan to use available Afghan services and products and provide Afghans with training which will add marketable skills to their population.  COIN efforts, like the Afghan First Program, aim to get the people to accept their legitimate government’s authority over the authority of insurgents, take charge of their own affairs, and consent to the government’s rule.  In that vein, an important aspect of COIN is affording local nationals (“LNs”) economic footing and, in turn, power to reject insurgents.

Qari Naeb Hafezi, also known as Nayeb, was one such LN hired to work at Bagram pursuant to the Afghan First Program.  Former Taliban ties ordinarily disqualify an LN from participation in the Afghan First Program.  Even so, Nayeb, who was known to be a former Taliban member, was sponsored by the military for training and, in December 2011, began to work at Bagram.  Approximately five years later, on November 12, 2016, he detonated a bomb strapped to his chest killing himself and at least five other people and injuring many more.

A military investigation report states that “Nayeb likely smuggled small quantities of homemade explosives onto Bagram Airfield over approximately four months” and assembled the “suicide vest” at his workstation using materials readily available to him.  Then, instead of leaving the premises after his November 11, 2016 night shift, he remained on the base and detonated the bomb a little over a mile away from his workstation.

It was undisputed that the United States military was responsible for force protection at Bagram.  The military determined who may enter and remain on Bagram.  Prior to issuing security badges to LNs, the military screened them by checking their identifications, scanning their irises for biometric check against a watchlist, collecting their fingerprints and DNA, and interviewing them.  Once an LN received a security badge, it was the military’s responsibility to determine whether he may continue to access Bagram, and the military continuously vetted LNs even after they were hired.  Hartline Barger’s client took no part in screening LNs for base access, and it was not privy to the information the military maintained on Bagram’s Afghan workforce.  The military also completely and exclusively controlled what materials entered Bagram through physical searches of all vehicles and personnel entering Bagram.  No LNs lived on Bagram full-time, so all those entering had to traverse the military-run security control points every day.  The military also prescribed the rules under which LNs were escorted while on base from the entry point to their places of work and back.  As such, Hartline Barger properly designated the military as a responsible third party for the jury to determine its responsibility in causing the subject incident.

Hartline Barger also filed a motion to dismiss on March 23, 2020, seeking dismissal for lack of subject-matter jurisdiction under the political question-doctrine or, in the alternative, summary judgment on the basis of combatant activities preemption.  The Court ruled that determining the degree of the military’s fault here necessarily entails a determination of the extent to which its negligence caused Plaintiffs’ harm.  In turn, such determination would require evaluating the wisdom of the military’s decisions contributing to the circumstances surrounding the bombing.  In particular, the Court would have to assess the propriety of the military’s approving of Nayeb for participation in the Afghan First Program and permitting him base access.  The Court found that the military made the decision to sponsor Nayeb to become part of the labor pool for Bagram, approve him for base access, continue to re-certify him for base access each time he was re-vetted, and permit him to enter through the security checkpoint at Bagram every day.  It determined these are all military judgments that are textually committed to the political branches of government, as they clearly concern control of access to a military base.  The Court concluded that evaluating Defendants’ proportionate-liability defense would require the Court to review these military judgments, and the Court cannot do so.  Therefore, on January 8, 2021, U.S. District Judge Jane J. Boyle of the Northern District of Texas, Dallas Division, granted Hartline Barger’s client’s Motion to Dismiss and dismissed all of Plaintiffs’ claims with prejudice.

CAUSE/CASE NO: 3:19-cv-01455-B

Judge: Jane J. Boyle