Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes opinions issued on January 13, 2022 (Part I); and cases granted review on January 10, 2022 (Part II).
Cases Granted Review: United States v. Washington, 21-404
United States v. Washington, 21-404. The Court will determine whether a Washington workers’ compensation law that applies exclusively to certain federal contractors is barred by the intergovernmental-immunity doctrine or “is instead authorized by 40 U.S.C. [§]3172(a), which permits the application of state workers’ compensation laws to federal facilities ‘in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.’” Absent “clear and unambiguous” authorization from Congress, Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 180 (1988), the intergovernmental-immunity doctrine prohibits state laws that “discriminate against the United States or those with whom it deals,” South Carolina v. Baker, 485 U.S. 505, 523 (1988). This case turns on whether §3172(a) constitutes such authorization. Enacted in 1936, that statute allows a “state authority charged with enforcing and requiring compliance with the state workers’ compensation laws” to “apply the laws to all land and premises in the State” owned or controlled by the federal government “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.” §1372(a). The state law at issue, Washington House Bill 1723, applies exclusively to federal contract workers performing cleanup services at a federally owned nuclear hazardous waste site and makes it easier for those workers to obtain workers’ compensation for occupational-related diseases.
Since 1989, the Department of Energy has overseen “a massive cleanup” of the Hanford nuclear site, which produced nearly two-thirds of the weapons-grade plutonium used in the United States nuclear program, thereby generating significant amounts of radioactive and chemical waste. Roughly 400 DOE employees manage contracts and oversee the project, but the lion’s share of the day-to-day cleanup is performed by roughly 10,000 federal contract workers. DOE covers the cost of workers’ compensation coverage to federal contract workers either by paying benefits to the workers directly or by reimbursing the workers’ employers. Owing to the hazardous risks to worker safety posed by the Hanford site and the difficulties in proving causation, in 2018 the Washington legislature enacted HB 1723, which establishes a presumption that workers are entitled to occupational-disease benefits if they have certain medical conditions and have worked at least one eight-hour shift at the Hanford site. That presumption may be overcome only with clear and convincing evidence that the medical condition was caused by something else. Moreover, the law “allows reopening of previously denied claims, including by a deceased contract worker’s survivor.”
The Ninth Circuit affirmed the district court’s dismissal of the United States’ claims against Washington and its officials, holding that §3172(a)’s waiver of intergovernmental immunity encompasses HB 1723 for three reasons. 994 F.3d 994. First, relying on Goodyear Atomic—which held that §3172’s predecessor statute allowed Ohio to apply a special additional-award provision to federal contract workers—the court concluded that §3172 is not limited to “generally applicable” worker’s compensation laws. Second, on the basis of circuit precedent that allowed a county to tax federal land without taxing state or local land, the court rejected the United States’ argument that the statutory “phrase ‘in the same way and to the same extent’ codifies a nondiscrimination rule that limits §3172’s waiver.” Moreover, the court observed, unlike other statutes, see, e.g., 42 U.S.C. §9620(a)(4) (CERCLA), §3172 does not explicitly bar States from imposing more stringent standards on the federal government. Third, the court reasoned that because §3172 allows a State to apply its laws “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State,” it necessarily follows that “§3172 authorizes the State to apply to [federal] land the authority it has over workers’ compensation in its exclusive jurisdiction.” And because Washington could apply HB 1723 to state and private workers, “§3172 permitted Washington to enact and apply HB 1723 to federal contractors and their employees at the Hanford site.”
The petition argues that HB 1723 is barred by the Supremacy Clause because the law “explicitly discriminates against the United States and those with whom it deals,” and §3172 does not clearly and unambiguously allow such discrimination. While differences in the nature of the work may justify differential treatment, the United States argues that HB 1723 does not classify workers based on job site or job responsibilities but instead classifies workers based solely on whether they are federal contractors. In fact, according to the Government, HB 1723 “excludes private and state workers who perform hazardous duties at Hanford, while covering federal-contract-worker[s] . . . who ‘do not enter hazardous waste sites or radiological areas.’” As for §3172(a), the Government argues that nothing in that statute “suggests that States may apply workers’ compensation laws that discriminate against the federal government”; rather, §3172(a) merely allows states to apply to federal facilities workers’ compensation laws that are already applicable to non-federal facilities. Goodyear Atomic, the Government maintains, “reflects the same understanding,” for in that case the Court explained that “the statute ‘compels the same workers’ compensation award for an employee injured at a federally owned facility as the employee would receive if working for a wholly private facility.’” At the very least, says the Government, §3172(a) lacks “the ‘clear and unambiguous’ authorization necessary to waive the United States’ intergovernmental immunity from discrimination against itself or those with whom it deals” because §3172(a) has at least two plausible interpretations. The Government rejects the idea that §3172(a) allows a court to consider whether a state could enact the same scheme and apply it to nonfederal facilities because the statute’s text “specifically addresses the powers not of state legislatures, but of the state administrative officials who ‘enforc[e] and requir[e] compliance with’ existing workers’ compensation laws.” Moreover, that Congress may have used more explicit nondiscrimination language in other statutes does not establish that §3172(a) clearly and unambiguously authorizes discriminatory treatment.
[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]