United States v. Washington ( 2022 )

(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. WASHINGTON ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 21–404. Argued April 18, 2022—Decided June 21, 2022
In 2018, Washington enacted a workers’ compensation law that applied
only to certain workers at a federal facility in the State who were “en-
gaged in the performance of work, either directly or indirectly, for the
United States.” Wash. Rev. Code §51.32.187(1)(b). The facility, known
as the Hanford site, was once used by the Federal Government to de-
velop and produce nuclear weapons, and is now undergoing a complex
decontamination process. Most workers involved in this cleanup pro-
cess are federal contract workers—people employed by private compa-
nies under contract with the Federal Government. A smaller number
of workers involved in the cleanup include State employees, private
employees, and federal employees who work directly for the Federal
Government. As compared to Washington’s general workers’ compen-
sation scheme, the law makes it easier for federal contract workers at
Hanford to establish their entitlement to workers’ compensation, thus
increasing workers’ compensation costs for the Federal Government.
The United States brought suit against Washington, arguing that
Washington’s law violates the Supremacy Clause by discriminating
against the Federal Government. The District Court concluded that
the law was constitutional because it fell within the scope of a federal
waiver of immunity contained in 40 U. S. C. §3172. The Ninth Circuit
affirmed.
Held: Washington’s law facially discriminates against the Federal Gov-
ernment and its contractors. Because §3172 does not clearly and un-
ambiguously waive the Federal Government’s immunity from discrim-
inatory state laws, Washington’s law is unconstitutional under the
Supremacy Clause. Pp. 3–11.
(a) This case is not moot. After the Court granted certiorari, Wash-
ington enacted a new statute which changed the scope of the original
2 UNITED STATES v. WASHINGTON
Syllabus
law such that the workers’ compensation scheme no longer applied ex-
clusively to Hanford site workers who work for the United States. But
a case is not moot unless it is impossible for the Court to grant any
effectual relief. Mission Product Holdings, Inc. v. Tempnology, LLC,
587 U. S. ___, ___. The United States asserts that a ruling in its favor
will allow it to recoup or to avoid paying millions of dollars in workers’
compensation claims. Washington disagrees, arguing that the new
statute applies retroactively and is broad enough to encompass any
claim filed under the earlier law. But it is not the Court’s practice to
interpret statutes in the first instance, Zivotofsky v. Clinton, 566 U. S.
189, 201, nor does the Court know how Washington’s state courts will
interpret the new law. It is thus not impossible for the United States
to recover money if the Court rules in its favor, and the case is not
moot. Pp. 3–4.
(b) Since McCulloch v. Maryland, 4 Wheat. 316, this Court has in-
terpreted the Supremacy Clause as prohibiting States from interfering
with or controlling the operations of the Federal Government. This
constitutional doctrine—often called the intergovernmental immunity
doctrine—has evolved to bar state laws that either regulate the United
States directly or discriminate against the Federal Government or its
contractors. A state law discriminates against the Federal Govern-
ment or its contractors if it “single[s them] out” for less favorable
“treatment,” Washington v. United States, 460 U. S. 536, 546, or if it
regulates them unfavorably on some basis related to their governmen-
tal “status,” North Dakota v. United States, 495 U. S. 423, 438 (plural-
ity opinion).
Washington’s law violates these principles by singling out the Fed-
eral Government for unfavorable treatment. The law explicitly treats
federal workers differently than state or private workers, and imposes
costs upon the Federal Government that state and private entities do
not bear. The law thus violates the Supremacy Clause unless Congress
has consented to such regulation through waiver. Pp. 4–6.
(c) Congress waives the Federal Government’s immunity “only when
and to the extent there is a clear congressional mandate.” Hancock v.
Train, 426 U. S. 167, 179. Washington argues that Congress has
waived federal immunity from state workers’ compensation laws on
federal lands and projects through §3172(a). Section 3172(a) says that
“[t]he state authority charged with enforcing and requiring compliance
with the state workers’ compensation laws . . . may apply [those] laws
to all land and premises in the State which the Federal Government
owns,” as well as “to all projects, buildings, constructions, improve-
ments, 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 reads the statute’s
Cite as: 596 U. S. ____ (2022) 3
Syllabus
language broadly to effectuate a complete waiver of intergovernmental
immunity as to all workers’ compensation laws on federal lands and
projects, including workers’ compensation laws that discriminate
against the Federal Government. But one can reasonably read the
statute as containing a narrower waiver of immunity, namely, as only
authorizing a State to extend its generally applicable state workers’
compensation laws to federal lands and projects within the State. Sec-
tion 3172’s waiver thus does not “clear[ly] and unambiguous[ly]” au-
thorize a State to enact a discriminatory law that facially singles out
the Federal Government for unfavorable treatment. Goodyear Atomic
Corp. v. Miller, 486 U. S. 174, 180. Pp. 6–9.
(d) Washington’s arguments to the contrary are unconvincing.
Washington emphasizes that the waiver statute allows a State to ap-
ply its workers’ compensation laws to federal premises “as if the prem-
ises were under the exclusive jurisdiction of the State.” §3172(a). But
those words follow the phrase “in the same way and to the same ex-
tent” and, read together, the language could plausibly be interpreted
to allow only the extension of generally applicable workers’ compensa-
tion laws to federal premises. The statute thus does not clearly and
unambiguously permit the discrimination contained in Washington’s
“federal workers only” law. Washington next points to other congres-
sional waivers of intergovernmental immunity that explicitly maintain
the constitutional prohibition on discriminatory state laws. But the
fact that Congress more explicitly preserved the immunity in other
contexts does not mean that Congress clearly waived it in §3172(a).
Finally, Washington relies on Goodyear Atomic, but that decision said
nothing about laws—such as the one here—that explicitly discrimi-
nate against the Federal Government. If anything, statements from
Goodyear Atomic tend to support, not undermine, the Court’s decision
today. Pp. 9–11.
994 F. 3d 994, reversed and remanded.
BREYER, J., delivered the opinion for a unanimous Court.
Cite as: 596 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–404
_________________
UNITED STATES, PETITIONER v.
WASHINGTON, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 21, 2022]
JUSTICE BREYER delivered the opinion of the Court.
The Constitution’s Supremacy Clause generally immun-
izes the Federal Government from state laws that directly
regulate or discriminate against it. See South Carolina v.
Baker, 485 U. S. 505, 523 (1988). Congress, however, can
authorize such laws by waiving this constitutional immun-
ity. See Goodyear Atomic Corp. v. Miller, 486 U. S. 174, 180
(1988).
This case concerns state workers’ compensation laws.
Congress has enacted a statute that waives the Federal
Government’s constitutional immunity insofar as a “state
authority charged with enforcing . . . the state workers’
compensation laws . . . appl[ies] the laws” to land or projects
“belonging to the [Federal] Government, in the same way
and to the same extent as if the premises were under the
exclusive jurisdiction of the State.” 40 U. S. C. §3172(a).
The question before us is whether a Washington State
workers’ compensation law falls within the scope of this
congressional waiver. The state law, by its terms, applies
only to federal workers who work at one federal facility in
Washington. The law makes it easier for these workers to
2 UNITED STATES v. WASHINGTON
Opinion of the Court
obtain workers’ compensation, thus raising workers’ com-
pensation costs for the Federal Government. We conclude
that the state law discriminates against the Federal Gov-
ernment and falls outside the scope of Congress’ waiver.
We therefore hold that the law is unconstitutional under
the Supremacy Clause.
I
During World War II, the Federal Government acquired
a large tract of land in Washington State known as the Han-
ford site. The Government used the site to develop and pro-
duce nuclear weapons, generating a massive amount of
chemical and radioactive waste. After the Cold War, the
Federal Government began the process of decommissioning
and cleaning up the nuclear site. The process has proved to
be enormously complex. It is expected to require decades of
time and billions of dollars. Most of the workers involved
in the cleanup process are federal contract workers—people
employed by private companies under contract with the
Federal Government. A smaller number of workers in-
volved in the cleanup project include federal employees who
work directly for the Federal Government, state employees
who work for the State of Washington, and private employ-
ees who work for private companies not under contract with
the Federal Government.
In 2018, Washington enacted a workers’ compensation
law that, by its terms, applied only to Hanford site workers
“engaged in the performance of work, either directly or in-
directly, for the United States.” Wash. Rev. Code
§51.32.187(1)(b). Despite the literal language of this stat-
ute, another provision of Washington law makes clear—and
all parties here agree—that the statute applies only to fed-
eral contract workers and not to federal employees. See
§51.12.060; Brief for United States 8, n. 4; Brief for Re-
spondents 13. This is because Congress’ waiver of immun-
ity does not extend to those whom the Federal Government
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Opinion of the Court
employs directly. See 40 U. S. C. §3172(c).
As compared to the general state workers’ compensation
regime, Washington’s law makes it easier for federal con-
tract workers at Hanford to establish their entitlement to
workers’ compensation. In particular, the statute creates a
causal presumption that certain diseases and illnesses are
caused by the cleanup work at Hanford. See Wash. Rev.
Code §§51.32.187(2), (3), (4). The presumption is rebuttable
only by clear and convincing evidence. §51.32.187(2)(b).
And the presumption lasts for a worker’s entire life, even
after the worker’s time at Hanford ends. §51.32.187(5)(a).
Because the Federal Government pays workers’ compensa-
tion claims for federal contractors at Hanford, see App. 48–
50, Washington’s law increases workers’ compensation
costs for the Federal Government.
The United States brought suit against Washington, ar-
guing that its law violated the Supremacy Clause by dis-
criminating against the Federal Government. The District
Court concluded that the state law fell within the scope of
the federal waiver of immunity contained in 40 U. S. C.
§3172 and was therefore constitutional. The Ninth Circuit
affirmed. See 994 F. 3d 994, 1012 (2020). We granted cer-
tiorari to determine the constitutionality of Washington’s
law.
II
Washington first claims that this case is moot. After we
granted certiorari, Washington enacted a new statute, see
S. 5890, 67th Leg., Reg. Sess. (2022), which changed the
scope of the original law. The law’s causal presumption no
longer applies exclusively to Hanford site workers who
“work, either directly or indirectly, for the United States.”
§51.32.187(1)(b). Instead, under the new law, the presump-
tion applies more broadly to any “worker working at a radi-
ological hazardous waste facility.” 2022 Wash. Sess. Laws
4 UNITED STATES v. WASHINGTON
Opinion of the Court
p. 437. This new law, Washington argues, does not discrim-
inate against the Federal Government, and its enactment
thus moots the present dispute.
A case is not moot, however, unless “ ‘it is impossible for
[us] to grant any effectual relief.’ ” Mission Product Hold-
ings, Inc. v. Tempnology, LLC, 587 U. S. ___, ___ (2019) (slip
op., at 6) (quoting Chafin v. Chafin, 568 U. S. 165, 172
(2013)). If there is money at stake, the case is not moot.
See 587 U. S., at ___ (slip op., at 6). The United States as-
serts that, if we rule in its favor, it will either recoup or
avoid paying between $17 million and $37 million in work-
ers’ compensation claims that lower courts have awarded
under the earlier law. See Response in Opposition to Sug-
gestion of Mootness 11–12. Some of these claims are not
yet final because they are still on appeal. See Reply in Sup-
port of Suggestion of Mootness 12. Washington argues that,
even if the United States wins, the Government will not re-
cover or avoid any payments because the new statute ap-
plies retroactively and is broad enough to encompass any
claim filed under the earlier law. But it is not our practice
to interpret statutes in the first instance, Zivotofsky v. Clin-
ton, 566 U. S. 189, 201 (2012), and we decline to do so here
by deciding the retroactivity or breadth of Washington’s
new law. Nor do we know how Washington’s state courts
will resolve these questions. It is thus not “impossible” that
the United States will recover money if we rule in its favor,
and this case is not moot.
III
A
In McCulloch v. Maryland, 4 Wheat. 316 (1819), this
Court held unconstitutional Maryland’s effort to tax the
Bank of the United States when Maryland imposed no com-
parable tax on any other bank within the State. Id., at 425–
437. Chief Justice John Marshall explained that, under the
Supremacy Clause, “the States have no power, by taxation
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Opinion of the Court
or otherwise, to retard, impede, burden, or in any manner
control, the operations of the constitutional laws enacted by
Congress to carry into execution the powers vested in the
general government.” Id., at 436. The Court thus inter-
preted the Constitution as prohibiting States from interfer-
ing with or controlling the operations of the Federal Gov-
ernment.
Over time this constitutional doctrine, often called the in-
tergovernmental immunity doctrine, evolved. Originally
we understood it as barring any state law whose “effect . . .
was or might be to increase the cost to the Federal Govern-
ment of performing its functions,” including laws that im-
posed costs on federal contractors. United States v. County
of Fresno, 429 U. S. 452, 460 (1977). We later came to un-
derstand the doctrine, however, as prohibiting state laws
that either “regulat[e] the United States directly or discrim-
inat[e] against the Federal Government or those with whom
it deals” (e.g., contractors). North Dakota v. United States,
495 U. S. 423, 435 (1990) (plurality opinion) (emphasis
added); id., at 444 (Scalia, J., concurring in judgment) (not-
ing that “[a]ll agree” with this aspect of the plurality opin-
ion); see also Baker, 485 U. S., at 523; County of Fresno, 429
U. S., at 462–463. As to the latter, discrimination-related
prohibition, a state law is thus no longer unconstitutional
just because it indirectly increases costs for the Federal
Government, so long as the law imposes those costs in a
neutral, nondiscriminatory way.
We have said that a state law discriminates against the
Federal Government or its contractors if it “single[s them]
out” for less favorable “treatment,” Washington v. United
States, 460 U. S. 536, 546 (1983), or if it regulates them un-
favorably on some basis related to their governmental “sta-
tus,” North Dakota, 495 U. S., at 438 (plurality opinion).
Washington’s law violates these principles by singling
out the Federal Government for unfavorable treatment. On
6 UNITED STATES v. WASHINGTON
Opinion of the Court
its face, the law applies only to a “person, including a con-
tractor or subcontractor, who was engaged in the perfor-
mance of work, either directly or indirectly, for the United
States.” §51.32.187(1)(b). The law thereby explicitly treats
federal workers differently than state or private workers.
Cf. Dawson v. Steager, 586 U. S. ___, ___ (2019) (slip op., at
6) (“Whether a State treats similarly situated state and fed-
eral employees differently depends on how the State has de-
fined the favored class”). And, in doing so, the law imposes
upon the Federal Government costs that state or private
entities do not bear. The law consequently violates the Su-
premacy Clause unless Congress has consented to such reg-
ulation through waiver.
B
We will find that Congress has authorized regulation that
would otherwise violate the Federal Government’s inter-
governmental immunity “only when and to the extent there
is a clear congressional mandate.” Hancock v. Train, 426
U. S. 167, 179 (1976) (internal quotation marks omitted).
In other words, Congress must “provid[e] ‘clear and unam-
biguous’ authorization for” this kind of state regulation.
Goodyear Atomic, 486 U. S., at 180 (quoting EPA v. Califor-
nia ex rel. State Water Resources Control Bd., 426 U. S. 200,
211 (1976)).
Washington argues that Congress has provided such au-
thorization by waiving federal immunity from state work-
ers’ compensation laws on federal lands and projects. The
statutory waiver Washington relies upon, 40 U. S. C.
§3172(a), says that “[t]he state authority charged with en-
forcing and requiring compliance with the state workers’
compensation laws . . . may apply [those] 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
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Opinion of the Court
as if the premises were under the exclusive jurisdiction of
the State.” Washington reads the statute’s language
broadly to “effectuat[e] a complete waiver of intergovern-
mental immunity as to workers’ compensation on federal
lands or projects.” Brief for Respondents 34 (emphasis
added). And Washington asserts that it has acted within
the scope of this waiver by “apply[ing]” a “state workers’
compensation law” to federal “lands” and “projects” at the
Hanford site just “as if the premises were under the exclu-
sive jurisdiction of the State.”
In our view, however, §3172’s waiver does not “clearly
and unambiguously” authorize a State to enact a discrimi-
natory law that facially singles out the Federal Government
for unfavorable treatment. One can reasonably read the
statute as containing a narrower waiver of immunity,
namely, as only authorizing a State to extend its generally
applicable state workers’ compensation laws to federal
lands and projects within the State.
For one thing, the statute requires state enforcement au-
thorities to apply state laws to federal premises “in the
same way and to the same extent as if the premises were
under the exclusive jurisdiction of the State.” §3172(a).
The “in the same way and to the same extent” language
suggests that the statute contemplates laws that could ap-
ply to state, as well as to federal, premises and employees.
The statute also gives to “[t]he state authority charged
with enforcing . . . the state workers’ compensation laws”
the power to “apply the laws to” federal lands and projects.
Ibid. (emphasis added). This language seems to contem-
plate application of state provisions that apply at least in
part to nonfederal (i.e., state and private) workers. After
all, those are the laws that state enforcement authorities
ordinarily enforce.
Further, the title of the statutory waiver provision refers
to the “Extension of state workers’ compensation laws to
buildings, works, and property of the Federal Government.”
8 UNITED STATES v. WASHINGTON
Opinion of the Court
§3172 (emphasis added; boldface deleted). The word “ex-
tension” suggests application to federal premises of a
State’s generally applicable workers’ compensation laws—
laws that have some independent significance beyond the
federal context.
Finally, preventing discrimination against the Federal
Government lies at the heart of the Constitution’s intergov-
ernmental immunity doctrine. See County of Fresno, 429
U. S., at 462–464; Washington, 460 U. S., at 545–546.
Without the prohibition on discrimination, what prevents a
State from imposing unduly high costs on the Federal Gov-
ernment for the benefit of the State’s own citizens? To put
the point more specifically, if discrimination is permissible
here, what prevents Washington from bestowing a windfall
upon its residents through an especially generous workers’
compensation scheme financed exclusively by the Federal
Government? Washington’s voters would not mind; they
would not pay for the costs of the scheme. And some Wash-
ington residents—those working for the Federal Govern-
ment—would benefit from it. The nondiscrimination prin-
ciple provides a political check on the State’s ability to
impose such laws by ensuring that the State’s own citizens
shoulder at least some of the costs. See McCulloch, 4
Wheat., at 428, 435–436. Discriminatory provisions like
the one before us contain no such ballot-box safeguard.
That fact reinforces the need to read waivers of intergov-
ernmental immunity narrowly, at least where a State
claims that Congress has waived immunity from discrimi-
natory state laws. In our view, for the reasons we have
stated, the statutory language of §3172’s waiver permits a
reading that does not allow discrimination against the Fed-
eral Government. The waiver thus does not “ ‘clear[ly] and
unambiguous[ly]’ ” authorize Washington’s discriminatory
law. Goodyear Atomic, 486 U. S., at 180; cf. FAA v. Cooper,
566 U. S. 284, 299 (2012) (noting that a statute does not
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Opinion of the Court
“unequivocally” waive Federal Government’s sovereign im-
munity if “it is plausible to read the statute” differently).
C
We find Washington’s other arguments unconvincing.
Washington emphasizes one phrase in the waiver statute,
namely, the phrase that allows a State to apply its workers’
compensation laws to federal premises “as if the premises
were under the exclusive jurisdiction of the State.”
§3172(a). This phrase, however, appears immediately after
the “in the same way and to the same extent” language.
Ibid. And, as we explained above, reading the two clauses
together, the statute could plausibly be interpreted to allow
only the extension of generally applicable workers’ compen-
sation laws to federal premises. It thus does not clearly and
unambiguously permit the kind of discrimination that
Washington’s “federal workers only” law contains.
Washington also points to other congressional waivers of
intergovernmental immunity that explicitly maintain the
constitutional prohibition against discriminatory state
laws. Congress, for example, has waived immunity from
state taxation of a federal officer, but only “if the taxation
does not discriminate against the officer . . . because of the
source of the pay or compensation.” 4 U. S. C. §111(a). Con-
gress has also waived immunity from the application of cer-
tain state environmental laws to federal facilities, but only
if the law does not “apply any standard or requirement to
such facilities which is more stringent than” the standards
applicable to nonfederal facilities. 42 U. S. C. §9620(a)(4).
The waiver statute here, Washington points out, does not
contain any similarly explicit antidiscrimination language.
This fact, however, does not tip the balance sufficiently in
Washington’s favor. As we have explained, preventing dis-
crimination against the Federal Government is a core as-
pect of the intergovernmental immunity doctrine. This im-
munity prohibits States from enacting discriminatory laws
10 UNITED STATES v. WASHINGTON
Opinion of the Court
unless Congress clearly and unambiguously waives it. See
Goodyear Atomic, 486 U. S., at 180. The fact that Congress
more explicitly preserved the immunity in other contexts
does not mean that Congress clearly waived it here. Nor
does the lack of an explicit antidiscrimination reference
convert an ambiguous statutory waiver into one that unam-
biguously authorizes discrimination. Indeed, Washington
points to no waiver statute that courts have interpreted as
permitting the kind of explicit discrimination that Wash-
ington’s law contains. Given that broader context, Con-
gress’ explicit antidiscrimination language in the tax and
environmental waivers as much suggests Congress’ general
hesitation to allow discrimination as it suggests that Con-
gress authorized it here.
Finally, Washington seeks support from our decision in
Goodyear Atomic. The issue in that case, however, con-
cerned the scope of the phrase “ ‘workmen’s compensation
laws’ ” in §3172’s substantively-identical predecessor stat-
ute. See 486 U. S., at 183. Specifically, the question was
whether that phrase encompassed state laws that permit-
ted “supplemental” workers’ compensation awards or only
state laws that permitted “standard” awards. Ibid. We
held that the phrase encompassed laws permitting supple-
mental awards. See ibid. (stating that the statute “places
no express limitation on the type of workers’ compensation
scheme that is authorized”). But in doing so, we said noth-
ing about laws that explicitly discriminate against the Fed-
eral Government. Rather, we wrote that, “[o]n its face,” the
waiver 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 pri-
vate facility.” Id., at 183–184. We added that it was “clear”
from the statute’s text “that Congress intended” state work-
ers’ compensation laws “to apply to federal facilities ‘to the
same extent’ that they apply to private facilities within the
State.” Id., at 185. These statements from Goodyear
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Opinion of the Court
Atomic tend to support, not undermine, our conclusion to-
day.
* * *
Washington’s law facially discriminates against the Fed-
eral Government and its contractors. Because §3172 does
not clearly and unambiguously waive the Government’s im-
munity from discriminatory state laws, Washington’s law is
unconstitutional under the Supremacy Clause. The Ninth
Circuit’s conclusion to the contrary is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.