Air Force Master Sgt. tosses unserviceable uniform items into a burn pit at a U.S. base in Balad, Iraq. in 2008.
Hundreds of military service members and private contractors that had dozens of class-action lawsuits thrown out by a court of appeal refuses to give up the fight.
Just last month, three judges of the 4th Circuit Court of Appeals agreed with a federal judge in Maryland, which last year threw out the lawsuits filed against KBR, a former Halliburton Corp., a subsidiary. The panel found that the army had unlimited control over KBR, making decisions in the field of waste disposal and water services “de facto military decisions” not suitable for judicial review.
It was a blow in the face for those who filed the original class-action lawsuits, which they were made ill by the use of open-air burn pits. On Tuesday, attorneys representing them filed a motion for the court of appeal to conduct an “en banc” review — in which case is heard before all judges of a court of appeal, in contrast to the panel that made last month the decision.
“The panel affirmed the district court ruled that the evidence established that the military determined that hazardous substances are separated and disposed of by a method other than the surface burning’ and ‘not authorized to be placed in the burn pits,'” reads a copy of the motion obtained by Fox News. “And yet the panel is of the opinion that the court is not clearly wrong, when the completely discounted both of the data (affidavits) and the allegations in the indictment.”
More than 60 lawsuits allege that KBR is the practice of dumping of tires, batteries, medical waste and other materials in open burn pits created harmful smoke, which causes neurological problems, cancer and other health problems in more than 800 service members.
Veterans are concerned about the effects of burn pits
Lawyers for the plaintiffs maintain in this last motion that the evidence against KBR, improper waste disposal methods at military bases in the wars in Iraq and Afghanistan, it is difficult to ignore.
“The authority’s decision cannot be squared with the facts of record, that provides that KBR burned batteries and other hazardous materials in fire pits on thousands of copies,” reads another passage in the motion. “Considering the fact that 181 service members of the submitted declarations in both 2011 and 2016, and another 525 service members of the submitted declarations in 2016, the facts of record establishing KBR is systemic incineration of hazardous materials is great and robust.”
The motion further states that a new review should be considered, because the original panel decision was problematic.
It is a constant struggle for the service members claim that their health suffers as a result of burn pits.
(Courtesy of Dan Brewer)
“The jury is desultory review of the record is more problematic because KBR does not dispute this evidence of conflicting entries. Instead, KBR, contract manager (David Palmer) admitted that the noxious materials are not burned, and testified that KBR is allowed to burn with the ordinary waste, but not hazardous materials.”
During the arguments before the 4th Circuit last month, Susan Burke, an attorney for the service members, it argued that the KBR repeatedly violated the terms of his contract with the military processing of waste. She said: KBR will also disobey a military directive against the burning of hazardous materials.
KBR’s lawyer, Warren Harris, told the court that the decision to use burn pits by the military, that decisions about where the notches would be located, what hours they work, and what would be burned in them.
In a recent statement to Fox News, KBR officials say that the court of appeal’s decision in the last month was of crucial importance at the end of a long battle in the court.
“KBR is pleased that the Court of Appeal has confirmed that the court made the correct decision and that this legacy case is a step closer to the final solution,” reads a statement from the officials of the contracting company. “If KBR has said consistently, KBR-operated burn pits on a very limited number of bases in Iraq and Afghanistan and KBR personnel safely and effectively at the direction and under the control of the AMERICAN army.”
The Associated Press contributed reporting to this story.
Perry Chiaramonte is a producer, Fox News Channel, Investigative Unit. Follow him on Twitter via @perrych