Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes opinions issued on June 21, 2022 (Part I); and cases granted review on that date (Part II).
Opinion: United States v. Washington, 21-404
United States v. Washington, 21-404. The Court unanimously held that a state workers’ compensation law that applied only to federal workers discriminated against the federal government without its consent and was therefore unconstitutional under the Supremacy Clause. During World War II, the federal government used the Hanford site in Washington State to develop and produce nuclear weapons, generating a massive amount of chemical and radioactive waste. Most of the workers currently involved in the cleanup operation are federal contract workers, but there are also federal employees, state employees, and private employees. In 2018, Washington enacted a workers’ compensation law that applied only to federal contract workers at the Hanford site. The law created a lifelong presumption that certain diseases and illnesses were caused by working at the Hanford site, making it easier for federal contract workers to establish their entitlement to compensation. The United States sued, arguing that the Washington law violated the Supremacy Clause by discriminating against the Federal Government. The district court and Ninth Circuit concluded that the Washington law fell within the federal waiver of immunity provided by 40 U.S.C. §3172. The Court reversed in an opinion by Justice Breyer.
The Court rejected Washington’s claim that the case is moot because the Washington Legislature enacted a new statute that does not exclusively apply to those who “work, either directly or indirectly, for the United States,” but rather applies to those “working at a radiological hazardous waste facility.” The Court explained that some claims awarded under the 2018 law are not yet final, and “[i]f there is money at stake, the case is not moot.” Although Washington argued that the new statute applies retroactively and will encompass any claim filed under the earlier law, the Court said it does not interpret statutes in the first instance, and it does not know how Washington’s state courts would resolve questions about the statute’s breadth or retroactivity. Thus, it is not “impossible” that the United States will recover money if the Court rules in its favor.
Turning to the merits, the Court stated that the Supremacy Clause and the intergovernmental immunity doctrine prohibit states from discriminating against the federal government by singling out federal contractors for less favorable treatment. The Court determined that the 2018 Washington law did just that by imposing costs on federal contractors that state or private entities do not bear. The Court recognized that it will find a waiver of immunity based on a “clear and unambiguous” federal statute, but ruled that §3172(a) does not fit that bill. Section 3172(a) allows states to apply workers’ compensation laws “to all land and premises in the State which the Federal Government owns” as well as “to all projects buildings, constructions, improvements, and property in the State and belonging to the Government, in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.” Washington argued that it acted within the scope of this waiver by applying its law to federal “lands” and “projects” at the Hanford site as if the premises were under state jurisdiction. The Court disagreed, finding that one can reasonably read the statute “as only authorizing a State to extend its generally applicable state workers’ compensation laws to federal lands and projects within the State.” First, the “in the same way and to the same extent” provision contemplates laws that apply to state premises and employees. Second, §3172(a) gives power to the state authority charged with “enforcing” the state workers’ compensation laws, contemplating application of “the laws that state enforcement authorities ordinarily enforce” against non-federal workers. Third, the statute “extends” state laws to federal property, suggesting the application of laws that apply beyond the federal context. Finally, the nondiscrimination principle restricts a state’s ability to impose laws that benefit its own citizens at federal expense, as Washington’s law does, reinforcing the need to read waivers of intergovernmental immunity narrowly.
The Court was not convinced by Washington’s emphasis on the phrase “as if the premises were under the exclusive jurisdiction of the State” in §3172(a). This phrase comes immediately after the phrase “in the same way and to the same extent,” and could be plausibly interpreted to allow only the extension of generally applicable laws. Washington’s reliance on other congressional waivers of immunity fares no better. Although other waivers “explicitly maintain the constitutional prohibition against discriminatory state laws,” that does not mean that Congress has “clearly waived” immunity here. Finally, in Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988), the Court found that the predecessor to §3172 waived immunity for laws permitting “supplemental” workers’ compensation awards, but the state law at issue only compelled the same award that would apply at a private facility and therefore did not discriminate against the federal government.