By Tim Ryan

From Courthouse News Service | Original Article

A federal judge in Maryland on Wednesday dismissed a massive collection of cases brought against a government contractor by veterans and their family members who say the military’s use of open burn pits at bases during the wars in Iraq and Afghanistan left them with serious illnesses.

The case against KBR, a government contractor and former Halliburton subsidiary, arrived in Maryland federal court in 2009, when the Judicial Panel on Multi-District Litigation send 63 different complaints to the court for consolidation. Of the 63 complaints filed in federal courts, at least 44 sought a nationwide class certification.

The complaints all made the same basic claims – that KBR ran massive burn pits at operating bases in Afghanistan and Iraq into which its employees dumped tires, trucks and even medical waste.

The resulting towers of smoke left the soldiers on the bases with chronic respiratory and gastrointestinal illnesses, as did the contractor’s alleged failure to provide clean water to troops on the ground, according to a class-action complaint filed in the Circuit Court for Montgomery County, Maryland by Alan Metzgar and Paul Parker in 2009.

The massive litigation survived KBR’s initial motion to dismiss and U.S. District Judge Roger Titus even granted limited discovery in the case in 2010 before he eventually granted another one of KBR’s motions to dismiss the case in 2013.

Relying on a two-part test the Fourth Circuit handed down for lower courts to evaluate the actions of government contractors, Titus found in 2013 that it was the military that made the decision to use the burn pits and that looking into the choice would require the court to analyze the military’s decision-making during wartime, a political question not appropriate for judicial review, according to Titus’ most recent opinion.

The group of plaintiffs appealed Titus’ first dismissal, with the Fourth Circuit agreeing in 2014 that the record at that point in the case was too thin to support his decision.

The appeals court sent the case back to Titus, where “the parties began the enormous task of conducting even limited discovery in this case,” Titus wrote in an opinion.

KBR turned over 5.8 million pages of documents during discovery and the parties took 34 depositions as they tried to prove their points, according to the ruling.

KBR revived its motion to dismiss the case in February, arguing again that it involved a political question that was not within the court’s jurisdiction to hear. The company also argued that the massive discovery in the case showed what Titus had originally believed – that the military rather than the contractor was responsible for the decision to use the burn pits.

The plaintiffs countered by saying KBR’s agreements with the government gave it the freedom to consider how to carry out their required tasks and that holding the company liable for the burn pits would not mean questioning a military decision, as the judge had previously found.

But in an opinion that reaches similar conclusions to those in his 2013 decision, Titus again sided with the contractor this week.

After detailing the litany of evidence and testimony that came before him in the sprawling litigation, Titus found again that the military made the decision to use the burn pits and where to put them, and that looking into those choices would be outside of his jurisdiction based  on the political-question doctrine.

“Having chosen to assert broad class action claims that ultimately resulted in the creation of this multi-district litigation, the plaintiffs must stand on the centrality of their common issue of fact, i.e., the use of open burn pits,” Titus wrote in Wednesday’s 81-page opinion. “As discussed at length above, the use of open burn pits was a quintessential military decision made by the military, not KBR, and was a decision driven by the exigencies of war.”

The political-question doctrine prevents courts from considering cases that present questions that the can only be answered through the political process, rather than through a finding of law.

Titus acknowledged there is “some evidence” that KBR had a certain amount of control over the burn pits, but that the military made most of the “key policy and operational decisions.” If he were to evaluate the claims against the contractor he would be digging into military judgments made during wartime, the judge found.

Titus said that while he is “not unsympathetic” to the veterans’ claims, many of them have remedies beyond winning a judgment in court, including a bill in the U.S. House of Representatives that addresses people harmed by the burn pits.

He noted that the veterans’ claims are very general and do not point to a specific mistake by a specific KBR employee, as has been the case in other suits that were successful against military contractors.

“The allegations made by the plaintiffs are anything but discrete,” Titus wrote. “They are not specific to a particular time, date or place, but relate primarily to the use of open burn pits and the furnishing of water in Iraq and Afghanistan stretching over a period as long as a decade.”

Baltimore attorney Susan Burke, who represents the plaintiffs in the case, said in an email to Courthouse News that her clients will be appealing the decision.

Joe Rice, an attorney and co-founder of the firm Motley Rice, serves as co-counsel with Burke.

KBR did not respond Thursday to a request for comment on the opinion.