In Re Consolidated United States Atmospheric Testing Litigation, Christina Konizeski v. Livermore Labs, Alice P. Broudy v. United States

These consolidated appeals arise out of judgments entered by the United States District Court for the Northern District of California, in actions for personal injury and wrongful death brought by or on behalf of military and civilian participants in the United States atmospheric nuclear weapons testing program. Appellees are the United States Government and private contractors who participated in the nuclear weapons testing program.

In the district court, the government moved pursuant to 42 U.S.C. § 2212 , to be substituted for the contractors as defendants in these actions. The contractors joined in that motion. The government then moved to dismiss or for summary judgment in all actions based on various exceptions to its liability under the Federal Tort Claims Act (the “FTCA”), 28 U.S.C. § 2680 .

The district court granted the motion to substitute the government as defendant in place of the contractors, specifically finding 42 U.S.C. § 2212 to be constitutional. It then granted the government’s motion for summary judgment pursuant to the FTCA under the discretionary function exception, 28 U.S.C. § 2680 (a), the foreign country exception, 28 U.S.C. § 2680 (k), the combatant…