“Through constantly shifting theories, McBride has dragged this languishing case along long after discovery — including the deposition testimony of the U.S. Army’s own Federal Rule of Civil Procedure 30(b)(6) witnesses — made clear that KBR’s recreation-center headcounts were immaterial,” the brief said.

The companies urged the court to reject McBride’s appeal without oral argument, citing years of litigation and high cost of its defense. In addition, the companies pointed out that only KBR Services is the proper defendant in the case, and the litigation has put a substantial burden on the other companies involved.

“The time has come to finally close the book on this costly litigation, which, as the district court noted, has forced KBR to spend ‘a king’s ransom’ defending against baseless claims,” the brief said.

McBride’s appeal argued that the judge did not apply a two-prong test, laid out in U.S. v. Science Applications International Corp., in which a court weighs whether adherence to contractual requirements was either a precondition for payment or material to payment.

Had U.S. District Judge Frederick J. Scullin Jr. used this test, he would have found that contract clauses made clear that contract adherence was a condition for KBR’s payment, she said. In addition, a government contracting officer has said officials “may not have paid” had they known KBR violated its contractual obligations, McBride said.

KBR did not meet a contractual obligation related to keeping sufficient records of its staffing levels at a morale, welfare and recreation center for Marines in Iraq, and therefore filed false claims by not disclosing this when it billed the government for payment, according to McBride.

An attorney for KBR has said that the contractor did not inflate its staffing numbers and did not use these figures as a basis for its billing. Thursday’s brief built on that argument, saying that contracting officials based their staffing for billing on the overall population of the base, not any measure of the use of the facility.

In a statement from counsel John Elwood, KBR defended its record in Iraq, saying it was proud of the work that it had done on behalf of the military and that it hoped the DC Circuit would affirm Judge Scullin’s decision.

“The district court correctly held that the alleged inflation of headcounts at KBR-run recreation centers in Iraq was immaterial to government payment decisions and thus cannot give rise to False Claims Act liability. Relator Julie McBride’s appeal seeks to set aside that well-reasoned decision,” the statement said.

McBride, along with two former KBR employees, had filed a qui tam suit against KBR, then-parent Halliburton Co. and several units of the companies in April 2005, alleging violations of the FCA, retaliation, and breach of employment contract.

In 2001, KBR had been awarded a contract to carry out the third round of the U.S. Department of Defense’s Logistics Civil Augmentation Program in support of the global war on terror. According to the suit, the defendants overbilled the government on one of the task orders under the multibillion-dollar contract, which allowed KBR to bill the government for a base fee, plus a potential performance fee and costs.

In October 2015, Judge Scullin declined to reconsider his summary judgment grant to KBR, saying he already wrestled with the case law and was unconvinced by McBride’s arguments there was sufficient evidence to support claims against the contractor.

“Plaintiffs either do not understand these facts or do not want to understand them. Plaintiffs selectively pull snippets and sound bites out of context from lengthy records in separate, unrelated proceedings,” KBR said in opposing the June 13 motion to compel. “The purpose of plaintiffs’ motion is not to compel KBR to do something — indeed, as KBR has repeatedly informed the court, KBR is already doing everything within its power to produce these data as fast as possible. The purpose of plaintiffs’ motion is simply to pad the record with frivolous ‘complaints’ about the discovery process in this case.”

The soldiers’ discovery modus operandi, KBR continued, “is to demand the sun, the moon, and all the stars, and then cry foul when they are denied a few constellations.”

The multidistrict litigation alleges that KBR burned waste — including lithium batteries, plastic foam, paints, solvents, asbestos and other hazardous materials — in open-air burn pits on military bases in Iraq and Afghanistan without taking safety precautions. The soldiers and other military personnel who were stationed at the bases also say they were harmed by the company’s inability to properly operate water purification facilities at some military bases.

In pressing for the motion to compel last week, the soldiers argued that KBR has spent years trying to evade the production of relevant emails for discovery even as it relies on “fact-intensive” defenses based on jurisdictional questions — the discovery fight here is based purely on whether the court even has the right to hear the case at all. The Aug. 31 deadline covers a “limited email universe,” the soldiers said at the time.

KBR countered Friday that the plaintiffs are pursuing a “mischievous motion to compel” that is “a parade of falsehoods.” KBR contended that it must deal with data security issues created by government employees accidentally sending the contractor classified emails in a “data spill,” emails that must be protected in discovery via a “new and unprecedented” pre-screening process.

The contractor argued that it has been upfront with the issues complicating its ability to meet the Aug. 31 deadline and said the judge should focus on the schedule at a hearing on the matter scheduled for Thursday.

Nor has KBR tried to evade discovery as the soldiers contend, according to the brief.

“KBR has presented its view that email discovery is unlikely to yield useful or jurisdictionally relevant information that would add materially to the record (and that could, for example, alter the sworn testimony of senior military commanders),” it said. “But there is no factual support for plaintiffs’ repeated claims that KBR somehow devised an elaborate plan to prevent them from getting emails.”

It would be “silly and illogical” for KBR to try and put off discovery, it said, because the company has every incentive to try and resolve this lawsuit and others as quickly as it can. A “massive volume” of electronic discovery has already been handed over, KBR said, noting that more than two million electronic document pages that have been produced so far.

The soldiers hit back with a reply brief Monday accusing KBR of failing to comply with content management order, or CMO, deadlines, in good faith.

“KBR continues to mislead the court by claiming delays attributable to the data spill are ‘entirely outside of KBR’s control,’” they said. “Yet KBR has not — and cannot — introduce evidence rebutting the sworn declarations of [Defense Security Services] officials, which reveals that KBR’s own misconduct led to the lengthy delays.”

KBR has already pulled some of the POI’s data for other litigation, the soldiers said, arguing the warnings of a 3 terabyte data dump are based on “amorphous estimates.” Nor did KBR take prompt action from the data spill and in fact made the matter worse, according to the brief, which also argued that the company failed to meet its security obligations and misled the government on its compliance with those requirements.

A representative for KBR did not immediately respond Monday to a request for comment.