United States v. State of Washington

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-35673
Plaintiff-Appellant,
D.C. No.
v. 4:18-cv-05189-
SAB
STATE OF WASHINGTON; JAY
ROBERT INSLEE, in his official
capacity as Governor of the State of OPINION
Washington; JOEL SACKS, in his
official capacity as Director of the
Washington State Department of
Labor and Industries; WASHINGTON
STATE DEPARTMENT OF LABOR &
INDUSTRIES,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Stanley Allen Bastian, District Judge, Presiding
Argued and Submitted July 6, 2020
Seattle, Washington
Filed August 19, 2020
2 UNITED STATES V. STATE OF WASHINGTON
Before: RICHARD R. CLIFTON and MILAN D. SMITH,
JR., Circuit Judges, and JAMES DONATO, *
District Judge.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY **
Governmental Immunity
The panel affirmed the district court’s summary
judgment in favor of the State of Washington, upholding HB
1723, which amended Washington’s workers’ compensation
scheme and established for workers at the Hanford site – a
decommissioned federal nuclear production site – a
presumption that certain conditions and cancers are
occupational diseases that is rebuttable only by clear and
convincing evidence.
The United States claimed that HB 1723 impermissibly
directly regulated and discriminated against the Federal
Government and those with whom it dealt in violation of the
doctrine of intergovernmental immunity.
The panel held that HB 1723 fell within the waiver of 40
U.S.C. § 3172, which authorizes States to apply their
workers’ compensation laws to federal lands and projects in
*
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. STATE OF WASHINGTON 3
the states in the same way as if the premises were under the
exclusive jurisdiction of the States. The panel held,
accordingly, that HB 1723 did not violate the doctrine of
intergovernmental immunity.
The panel declined to resolve two other issues raised by
the parties because they were not properly before the court.
COUNSEL
John S. Koppel (argued) and Mark B. Stern, Appellate Staff;
Bill Hyslop, United States Attorney; Joseph H. Hunt,
Assistant Attorney General; Civil Division, United States
Department of Justice, Washington, D.C.; for Plaintiff-
Appellant.
Noah G. Purcell (argued), Solitor General; Anastasia
Sandstrom, Senior Counsel; Paul Wiedeman, Assistant
Attorney General; Robert W. Ferguson, Attorney General;
Office of the Attorney General, Olympia, Washington; for
Defendants-Appellees.
OPINION
M. SMITH, Circuit Judge:
The Hanford site is a decommissioned federal nuclear
production site that sprawls over more than five hundred
square miles in southeastern Washington State. While active
between 1944 and 1989, the Hanford site produced nearly
two-thirds of the nation’s weapons grade plutonium for use
in the United States nuclear program during World War II
and the Cold War. The site also generated significant
4 UNITED STATES V. STATE OF WASHINGTON
amounts of highly radioactive and chemically hazardous
waste. The United States Department of Energy (DOE) has
overseen cleanup of the Hanford site since 1989, primarily
relying on private contractors and subcontractors to perform
the actual cleanup work. These cleanup operations are
expected to last for at least six more decades.
Employees of private contractors working on federal
land, like the employees of the DOE contractors who work
at the Hanford site, may pursue state workers’ compensation
claims. 40 U.S.C. § 3172; Wash. Rev. Code § 51.12.060.
The DOE has chosen to insure such claims for most of its
contractors at the Hanford site. In 2018, Washington
amended its workers’ compensation scheme by enacting HB
1723, a law that applies only to Hanford site workers who
work directly or indirectly for the United States. 2018 Wash.
Sess. Laws 226 (codified at Wash. Rev. Code § 51.32.187).
HB 1723 establishes for these workers, inter alia, a
presumption that certain conditions and cancers are
occupational diseases, which is rebuttable by only clear and
convincing evidence. Wash. Rev. Code § 51.32.187(2)(a),
(b).
Concerned about “heightened liability,” the United
States sued Washington 1, claiming that HB 1723
impermissibly directly regulates and discriminates against
the Federal Government and those with whom it deals in
violation of the doctrine of intergovernmental immunity.
The district court granted summary judgment for
Washington, pursuant to a congressional waiver of
1
The Defendants are the State of Washington, Washington
Governor Jay Inslee, the Washington State Department of Labor and
Industries (DLI), and DLI Director Joel Sacks. We refer collectively to
them as “Washington” and “the State.”
UNITED STATES V. STATE OF WASHINGTON 5
immunity that authorizes the States to apply their workers’
compensation laws to “all” federal land and projects in the
states “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. The United States appeals. We
hold that HB 1723 falls within § 3172’s waiver and, thus,
does not violate the doctrine of intergovernmental immunity.
We, therefore, affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual Background
A. The Hanford Site Cleanup
The Hanford site cleanup is, in the DOE’s words,
“unprecedented in its scale and complexity.” The liquid
waste that the site generated—over fifty million gallons—is
stored in 177 underground holding tanks, most of which are
over seven decades old. The site also produced 270 billion
gallons of contaminated groundwater, twenty-five million
cubic feet of buried or stored solid waste, 2,300 tons of spent
nuclear fuel, and twenty tons of plutonium bearing materials.
There are roughly 10,000 DOE contractor employees at the
Hanford site, some of whom perform the cleanup operations.
Individuals working at the Hanford site cleanup operations
face exposure to radioactive substances and hazardous
chemicals.
B. Washington’s Workers’ Compensation Scheme
The Washington Industrial Insurance Act (WIIA) is the
State’s workers’ compensation and industrial insurance
regime. See Wash. Rev. Code § 51.04.10 et seq. The WIIA
establishes a statutory mechanism for workers that have
suffered injury or contracted an “occupational disease,” id.
6 UNITED STATES V. STATE OF WASHINGTON
§ 51.08.140, caused by their employment to seek
compensation through an award of benefits. Dennis v. Dep’t
of Labor & Indus. of State of Wash., 745 P.2d 1295, 1301
(Wash. 1987).
Since 1937, the WIIA has covered employees of private
contractors who work on federal land located in the state.
See An act relating to workmen’s compensation, ch. 147,
1937 Wash. Sess. Laws 525 (codified as amended at Wash.
Rev. Code § 51.12.060). 2 The State extended its workers’
compensation laws to the employees of federal contractors
following the enactment of 40 U.S.C. § 290, the former
federal law that authorized states to apply their workers’
compensation laws to federal land and projects located
2
In its present form, Washington Revised Code § 51.12.060
provides that:
The application of this title and related safety laws is
hereby extended to all lands and premises owned or
held by the United States of America, by deed or act
of cession, by purchase or otherwise, which are within
the exterior boundaries of the state of Washington, and
to all projects, buildings, constructions,
improvements, and property belonging to the United
States of America, which are within the exterior
boundaries of the state, in the same way and to the
same extent as if said premises were under the
exclusive jurisdiction of the state, and as fully as is
permitted under the provisions of that act of the
congress of the United States approved June 25, 1936,
granting to the several states jurisdiction and authority
to apply their state workers’ compensation laws on all
property and premises belonging to the United States
of America, . . . PROVIDED, That this title shall not
apply to employees of the United States of America.
UNITED STATES V. STATE OF WASHINGTON 7
within the state. 3 Wash. Rev. Code § 51.12.060. Thus,
employees of DOE contractors and subcontractors at the
Hanford site may pursue state workers’ compensation
claims. The WIIA, however, does not cover DOE’s own
employees. Id.
In 1997, Washington amended the WIIA to permit the
DLI to approve, upon the request of the United States
Secretary of Defense or the Secretary of the DOE, “special
insuring agreements providing industrial insurance coverage
for workers engaged in the performance of work, directly or
indirectly, for the United States regarding projects and
contracts at the Hanford Nuclear Reservation.” 1997 Wash.
Sess. Laws 573 (codified at Wash. Rev. Code § 51.04.130).
The DOE has paid the benefits awards and administrative
costs of workers’ compensation claims for the employees of
3
Section 290 provided, in relevant part, that:
[W]hatsoever constituted authority of each of the
several States is charged with the enforcement of and
requiring compliances with the State workmen’s
compensation laws of said States and with the
enforcement of and requiring compliance with the
orders, decisions, and awards of said constituted
authority of said States shall have the power and
authority to apply such laws to all lands and premises
owned or held by the United States of America by deed
or act of cession, by purchase or otherwise, which is
within the exterior boundaries of any State and to all
projects, buildings, constructions, improvements, and
property belonging to the United States of America,
which is within the exterior boundaries of any State, in
the same way and to the same extent as if said premises
were under the exclusive jurisdiction of the State
within whose exterior boundaries such place may be.
Act of June 25, 1936, ch. 822, 49 Stat. 1938.
8 UNITED STATES V. STATE OF WASHINGTON
many of its contractors and subcontractors pursuant to
contractual obligations as well as pursuant to memoranda of
understanding (MOU) with the State. The DOE and
Washington entered into the most recent MOU after
Washington enacted HB 1723. Private contractors not
covered by an MOU provide workers’ compensation
coverage through the State workers’ compensation fund or
as self-insurers.
C. HB 1723
This case concerns HB 1723’s amendments to the WIIA.
The law applies to “United States department of energy
Hanford site workers” and “Hanford site workers,” defined
as:
[A]ny person, including a contractor or
subcontractor, who was engaged in the
performance of work, either directly or
indirectly, for the United States, regarding
projects and contracts at the Hanford nuclear
site and who worked on the site at the two
hundred east, two hundred west, three
hundred area, environmental restoration
disposal facility site, central plateau, or the
river corridor locations for at least one eight-
hour shift while covered under this title.”
Wash. Rev. Code § 51.32.187(1)(b). 4 It is estimated that the
law may cover some 100,000 persons.
4
“Hanford nuclear site” and “Hanford site” are defined to mean “the
approximately five hundred sixty square miles in southeastern
Washington state” excluding certain leased lands, state-owned lands, and
UNITED STATES V. STATE OF WASHINGTON 9
HB 1723 creates a “prima facie presumption” for
“United States [DOE] Hanford site workers” that certain
“diseases and conditions” are “occupational diseases” under
the WIIA. Id. § 51.32.187(2)(a); see also id.
§§ 51.32.187(3) (identifying certain conditions),
51.32.187(4) (specifying the requirements for and
application of the presumption to certain cancers). An
employer may rebut the presumption by “clear and
convincing evidence,” which includes the “use of tobacco
products, physical fitness and weight, lifestyle, hereditary
factors, and exposure from other employment or
nonemployment activities.” Id. § 51.32.187(2)(b). The
presumption applies “following termination of service for
the lifetime of” a covered worker. Id. § 51.32.187(5)(a). A
covered worker or the survivor of a deceased covered worker
may refile a previously denied claim. Id. § 51.32.187(5)(b).
In addition, a claimant may recover reasonable costs,
including attorney’s fees, in any appeal that results in a
benefits award when the presumption applies. Id.
§ 51.32.187(6).
II. The District Court Proceedings
The United States brought suit for declaratory and
injunctive relief against Washington, claiming that HB 1723
discriminates against the Federal Government and directly
regulates it in violation of the doctrine of intergovernmental
immunity. On cross motions, the district court granted
summary judgment for the State. The court reasoned that 40
U.S.C. § 3172’s waiver of immunity permits the State “to
use the same power it possesses to craft workers
compensation laws for non-federal employees to address
lands owned by the Bonneville Power Administration, which is owned
by the United States[.]” Wash. Rev. Code § 51.32.187(1)(a).
10 UNITED STATES V. STATE OF WASHINGTON
injured employees on federal land,” including “the ability to
legislate, in a piecemeal fashion, to address specific risks to
employees in specific industries.” The United States timely
appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo a district court’s decision on cross motions
for summary judgment. Empire Health Found. v. Azar,
958 F.3d 873, 882 (9th Cir. 2020). Statutory interpretation
is a question of law that we review de novo. Comcast of
Sacramento I, LLC v. Sacramento Metro. Cable TV
Comm’n, 923 F.3d 1163, 1168 (9th Cir. 2019).
ANALYSIS
I. The Doctrine of Intergovernmental Immunity
The United States’ claims against Washington invoke
the doctrine of intergovernmental immunity. That doctrine
“derive[s] from the Supremacy Clause of the Federal
Constitution, U.S. Const., art. VI, which mandates that ‘the
activities of the Federal Government are free from regulation
by any state.’” United States v. California, 921 F.3d 865,
878 (9th Cir. 2019) (quoting Boeing Co. v. Movassaghi,
768 F.3d 832, 839 (9th Cir. 2014)), cert. denied, —S. Ct.—,
2020 WL 3146844 (U.S. June 15, 2020). The doctrine traces
its origins to “the Supreme Court’s decision in McCulloch v.
Maryland, which established that ‘the states have no power,
by taxation 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.’” U.S. v. City of Arcata,
629 F.3d 986, 991 (9th Cir. 2010) (quoting McCulloch v.
Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819)). Pursuant to
UNITED STATES V. STATE OF WASHINGTON 11
the doctrine, “state laws are invalid if they ‘regulate[] the
United States directly or discriminate [ ] against the Federal
Government or those with whom it deals.’” Boeing,
768 F.3d at 839 (quoting North Dakota v. United States, 495
U.S. 423, 435 (1990) (plurality decision)). This is so “unless
Congress provides ‘clear and unambiguous’ authorization
for such regulation.” Goodyear Atomic Corp. v. Miller,
486 U.S. 174, 180 (1988) (quoting EPA v. State Water Res.
Control Bd., 426 U.S. 200, 211 (1976)) (emphasis added).
By its terms, HB 1723 is a state workers’ compensation
law that applies only to individuals who perform work at the
Hanford site “directly or indirectly, for the United States.”
Wash. Rev. Code § 51.32.187(1)(b). Both sides agree that
§ 3172 waives the Federal Government’s immunity from
state workers’ compensation laws. Our understanding of
§ 3172’s predecessor statute would support that conclusion.
See Begay v. Kerr-McGee Corp., 682 F.2d 1311, 1319 (9th
Cir. 1982) (concluding that 40 U.S.C. § 290
“unambiguously permits application of state workers’
compensation laws to all United States territory within the
state.”). The United States and Washington disagree,
however, about whether § 3172 permits workers’
compensation laws that apply uniquely to the workers of
those with whom the Federal Government deals. Our
resolution of § 3172’s scope will determine whether HB
1723 falls within the waiver and, thus, whether HB 1723
violates the doctrine of intergovernmental immunity.
II. Section 3172’s Waiver of Immunity Encompasses HB
1723
To ascertain § 3172’s scope, we “begin[] with the plain
language of the statute.” Jimenez v. Quarterman, 555 U.S.
113, 118 (2009). “[W]e examine not only the specific
provision at issue, but also the structure of the statute as a
12 UNITED STATES V. STATE OF WASHINGTON
whole, including its object and policy.” United States v.
Lillard, 935 F.3d 827, 833 (9th Cir. 2019) (citation omitted).
Section 3172(a) provides that:
The state authority charged with enforcing
and requiring compliance with the state
workers’ compensation laws and with the
orders, decisions, and awards of the authority
may apply the laws to all land and premises
in the State which the Federal Government
owns or holds by deed or act of cession, and
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 in which the land, premises, projects,
buildings, constructions, improvements, or
property are located.
40 U.S.C. § 3172(a).
We do not consider the meaning of this text on a blank
slate. In Goodyear Atomic Corp. v. Miller, the Supreme
Court addressed the predecessor statute to § 3172. In
Goodyear, a private contractor operating a federally owned
nuclear production facility challenged an Ohio workers’
compensation law that provided a supplemental workers’
compensation award for injuries resulting from an
employer’s violation of a state safety regulation. 486 U.S.
at 176. Assuming that the Ohio law was “sufficiently akin
to direct regulation . . . to be potentially barred by the
Supremacy Clause,” the Court concluded that “§ 290
provides the requisite clear congressional authorization for
UNITED STATES V. STATE OF WASHINGTON 13
the application of the provision to workers at the Portsmouth
facility.” 5 Id. at 182.
To arrive at that conclusion, the Court rejected the
argument raised by the private contractor and the United
States Solicitor General that the statute’s use of the phrase
“workmen’s compensation laws” was “not intended to
include the additional-award provision in Ohio’s workers’
compensation law.” Id. at 183. The Court observed that the
statute did not define the phrase “workmen’s compensation
laws.” Id. Focusing on the essential terms of the statutory
text, including the phrase “in the same way and to the same
extent as if said premises were under the exclusive
jurisdiction of the State,” the Court stated unequivocally that
the statute “place[d] no express limitation on the type of
workers’ compensation scheme that is authorized.” Id.
(emphasis added). Rather than limiting the authorized
workers’ compensation laws, the Court explained that “[o]n
its face, § 290 compel[led] 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.” Id. at 183–84.
As the United States concedes, § 3172 is materially
identical to its predecessor. 6 But the United States homes in
5
The United States does not explain here how HB 1723 directly
regulates the Federal Government by adopting a presumption to
determine whether a given “Hanford site worker” is entitled to receive a
workers’ compensation award pursuant to the WIIA. As in Goodyear,
we will assume that HB 1723 is “sufficiently akin to direct regulation”
of the Federal Government to trigger the doctrine of intergovernmental
immunity. 486 U.S. at 182.
6
There are some differences between § 3172 and its predecessor.
Unlike its predecessor, § 3172 does not refer to “workmen’s
14 UNITED STATES V. STATE OF WASHINGTON
on the phrase “in the same way and to the same extent” to
claim that § 3172 is a “very limited waiver” of immunity.
The United States reads this text and Goodyear as “strongly
suggest[ing]” that § 3172 authorizes only the “extension of
generally applicable laws,” rather than “discrete” state laws
that “single out” the Federal Government and its contractors.
We disagree.
The plain text of § 3172 does not purport to limit the
workers’ compensation laws for which it waives
intergovernmental immunity to only those that are
“generally applicable.” We are not free to add text to a
statute that is not there. Ariz. State Bd. for Charter Sch. v.
U.S. Dep’t of Educ., 464 F.3d 1003, 1007 (9th Cir. 2006).
Like its predecessor, § 3172 does not define the phrase “state
workers’ compensation laws” and otherwise “places no
express limitation on the type of workers’ compensation
scheme that is authorized.” Goodyear, 486 U.S. at 183
(emphasis added). The Court’s application of the
predecessor statute in Goodyear does not warrant a different
reading of the statute. To be sure, the Court considered there
a state workers’ compensation law that did not concern a
particular employer, or a particular site located in the state,
like HB 1723 does. Id. at 183–85. But the Court did not
purport to impose the limitation on the statute that the United
compensation laws,” but rather “workers’ compensation laws.” And,
instead of providing that the state workers’ compensation authority
“shall have the power and authority to apply” workers’ compensation
laws, Congress has provided that the state authority “may apply” such
laws. This change signifies nothing more than that a state may, in its
discretion, opt to apply its workers’ compensation laws to federal
premises in the state. Fernandez v. Brock, 840 F.2d 622, 632 (9th Cir.
1988) (“‘May’ is a permissive word, and we will construe it to vest
discretionary power absent a clear indication from the context that
Congress used the word in a mandatory sense.”).
UNITED STATES V. STATE OF WASHINGTON 15
States seeks to impose here; indeed, the Court recognized
that the statute placed no express limitation on permissible
workers’ compensation laws. Id. at 183. We cannot
properly construe § 3172 in a way that would conflict with
that understanding of a materially identical statutory
provision.
Equally unavailing is the United States’ assertion that the
phrase “in the same way and to the same extent” codifies a
nondiscrimination rule that limits § 3172’s waiver. Our
decision in United States v. Lewis County, 175 F.3d 671 (9th
Cir. 1999), is illustrative.
In Lewis County, we considered the application of a
federal statute that “waives the immunity of the federal
government from state taxation by authorizing state and
local governments to tax … property owned by the federal
Farm Service Agency (‘FSA’) ‘in the same manner and to
the same extent as other property is taxed.’” Id. at 673
(quoting 7 U.S.C. § 1984). In relevant part, the United States
challenged a Washington county’s taxation of FSA-owned
land. The United States argued that the county had
discriminated against a federal agency in violation of § 1984
and the doctrine of intergovernmental tax immunity because
the county did not tax a comparable state agency. Id. at 674–
75. We rejected that argument because “Congress ha[d]
made its assessment of the federal interest in [] § 1984[.]”
Id. at 676. We explained that, by virtue of that statute,
Congress had “sufficiently qualifie[d] the intergovernmental
immunity of the United States to permit the state to make the
distinction it has.” Id. We saw “no reason why state or local
governments [had to] engage in a circular process of taxing
themselves in order to impose the tax on the federal
government that Congress has authorized.” Id.
16 UNITED STATES V. STATE OF WASHINGTON
Echoing its arguments in Lewis County, the United
States argues here that HB 1723 violates the doctrine of
intergovernmental immunity because it discriminatorily
applies only to Hanford site workers who work indirectly or
directly for the Federal Government, without any application
to state or private entities who perform work on or near the
Hanford site. As in Lewis County, we are presented with a
congressional waiver of immunity that contains similar
text—i.e., “in the same way and to the same extent”—that
we have already understood to permit a “distinction” based
on federal status. “A basic principle of interpretation is that
courts ought to interpret similar language in the same way,
unless context indicates that they should do otherwise.”
Shirk v. United States ex rel. Dep’t of Interior, 773 F.3d 999,
1004 (9th Cir. 2014). The United States identifies no reason
why we should depart from our understanding in Lewis
County. As with the waiver there, Congress codified the
federal interest in § 3172. This statute authorizes the States
to apply workers’ compensations laws to federal land located
in the state without limitation and thus permits the
distinction that HB 1723 draws.
In light of the United States’ arguments here, a
comparison of § 3172 with another waiver, namely the
waiver contained in the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA),
42 U.S.C. § 9620(a)(4), reinforces the conclusion that
§ 3172 does not codify a nondiscrimination rule. 7
7
In addition to CERCLA, the district court contrasted § 3172 with
4 U.S.C. § 111, a waiver of intergovernmental tax immunity that
expressly does not permit state and local taxation that “discriminate[s]”
against United States’ officers or employees simply because of their
federal status. Section 3172, indeed, bears no semblance to that
UNITED STATES V. STATE OF WASHINGTON 17
CERCLA waives the Federal Government’s immunity
from state laws concerning the removal and remediation of
hazardous substances, but that waiver “shall not apply to the
extent a State law would apply any standard or requirement
to [Federal] facilities which is more stringent than the
standards or requirements applicable to facilities which are
not owned or operated by [the Federal Government].”
42 U.S.C. § 9620(a)(4) (emphasis added). We held in
Boeing Co. v. Movassaghi that this waiver did not save a
California law that imposed “more stringent standards” on
the Federal Government for the cleanup of a federal nuclear
site located in California. 768 F.3d at 841–42. Because we
could locate no other congressional authorization, we
concluded that the California law both directly regulated and
discriminated against the Federal Government in violation
of the Supremacy Clause and the doctrine of
intergovernmental immunity. Id. at 840–43.
Here, the United States seeks to import into the statutory
phrase “in the same way and to the same extent” the
limitation that Congress codified in CERCLA. The United
States avers that HB 1723 impermissibly applies “more
stringent regulation” to the Federal Government. And it
argues that reading § 3172 to “authorize[] a state to enact
laws that subject federal contractors, and only federal
contractors, to more stringent standards than those of
generally applicable state law” is “atextual.” Neither the text
on which the United States focuses, nor any other text in
§ 3172, however, excepts from the waiver those state
workers’ compensation laws that are “more stringent” as
provision. Contrary to the United States’ objection to this comparison,
the comparison merely underscores that Congress knows how to limit a
waiver in the same way that the United States asks us to read § 3172.
18 UNITED STATES V. STATE OF WASHINGTON
applied to the Federal Government or those with whom it
deals. Boeing and its analysis are inapposite.
We arrive, finally, to considering the statutory text that
the United States’ reading of § 3172 omits: “as if the
premises were under the exclusive jurisdiction of the
State[.]” 40 U.S.C. § 3172. We, of course, cannot ignore
this text. Ariz. State Bd. for Charter Sch., 464 F.3d at 1007
(stating that a court may not “subtract” statutory text). And
we must read it with the rest of the statutory text. Davis v.
Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“It is a
fundamental canon of statutory construction that the words
of a statute must be read in their context and with a view
toward their place in the overall statutory scheme.”).
When the phrase “in the same way and to the same
extent” is read with “as if the premises were under the
exclusive jurisdiction of the State,” it is evident that § 3172
removes federal jurisdiction as a barrier to a state’s authority
over workers’ compensation laws for all who are located in
the state. See Peak v. Small Business Admin., 660 F.2d 375,
376 n.1 (8th Cir. 1981) (“[S]tate workmen’s compensation
laws, as applied to private employers working on federal
land, are freed from any restraint by reason of the exclusive
federal jurisdiction.”); Capetola v. Barclay White Co.,
139 F.2d 556, 559 (3d Cir. 1943) (“[T]he purpose and effect
of the . . . Act was to free State workmen’s compensation
laws from the restraint upon their enforcement theretofore
existing by reason of the exclusive federal jurisdiction of
lands within the States[.]”), cert. denied, 321 U.S. 799
(1944); Travelers Ins. Co. v. Cardilllo, 141 F.2d 362, 363
(D.C. Cir. 1942) (“[T]he statute . . . revest[s] State
jurisdiction which, presumably, Congress thought might be
divested by the acquisition and ownership of the land by the
United States for Federal purposes. The effect . . . is . . . to
UNITED STATES V. STATE OF WASHINGTON 19
restore the status quo ante, and the purpose was to make sure
that employees of contractors during work on a Federal
building in a Federal area would be able to recover
compensation benefits for disability or death.”).
By removing federal jurisdiction as a barrier to
application of state workers’ compensation laws to those
who work on federal land located in the State, § 3172
authorizes the State to apply to such land the authority it has
over workers’ compensation in its exclusive jurisdiction.
Subject to constitutional constraints, the States possess
broad authority to enact laws that are reasonably deemed to
be necessary to promote the health, safety, and general
welfare of those in its jurisdiction, including workers’
compensation laws. Weber v. Aetna Cas. & Sur. Co.,
406 U.S. 164, 172 (1972); Mountain Timber Co. v. Wash.,
243 U.S. 219, 238 (1917). We presume that Congress was
aware of this authority when it fashioned § 3172 to permit
the State to apply its workers’ compensations laws to federal
land in the State “as if” it were under the State’s “exclusive
jurisdiction,” without exception. Goodyear, 486 U.S.
at 184–85. Critically, as it did in the district court, the
United States conceded during oral argument that
Washington could enforce HB 1723 if the Federal
Government were not involved and the Hanford site were a
state project. 8 As we read it, § 3172 permitted Washington
to enact and apply HB 1723 to federal contractors and their
employees at the Hanford site.
8
The State also previously amended its workers’ compensation laws
to adopt a presumption applicable only to firefighters. Wash. Rev. Code
§ 51.32.185. Thus, it is not unprecedented for Washington to exercise
its authority to fashion workers’ compensation laws to adopt a
presumption tailored to certain employment.
20 UNITED STATES V. STATE OF WASHINGTON
It thus follows that, “when Congress chooses not to
include any exceptions to a broad rule, courts apply the
broad rule.” Bostock v. Clayton Cty., 140 S. Ct. 1731, 1747
(2020). Section 3172 permits the State to apply workers’
compensation laws to federal land located in the State,
without limitation, and to make the distinction that it has
drawn in HB 1723. Thus, HB 1723 falls within the scope of
§ 3172’s waiver and does not violate the doctrine of
intergovernmental immunity.
III. Remaining Issues
Notwithstanding the foregoing, we briefly explain why
we decline to resolve two other issues raised by the parties.
First, the United States observes that the Federal
Government has fashioned a program for workers injured by
exposure to radiation and chemicals at DOE sites, pursuant
to the Energy Employees Occupational Illness
Compensation Program Act (EEOICPA), 42 U.S.C. § 7384
et seq., as amended by 118 Stat. 1811, 2178 (2004).
Pursuant to the EEOICPA, the Federal Government has paid
out more than $1.75 billion to Hanford workers as of June
2020. 9 In the United States’ view, EEOICPA “properly
addresses concerns of this kind.” Although this argument
sounds in preemption, the United States has waived that
argument by not clearly and distinctly raising it. McKay v.
Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009).
Second, Washington argues that HB 1723 is rationally
related to a government interest and thus is a constitutional
9
See United States Dep’t of Labor, Total Benefits Paid by Facility,
Cumulative EEOICPA Compensation and Medical Paid – Hanford
(June 30, 2020), available at https://www.dol.gov/owcp/energy/regs/co
mpliance/charts/hanford.htm.
UNITED STATES V. STATE OF WASHINGTON 21
exercise of its authority even if the law discriminates against
those who deal with the Federal Government. This argument
correctly recognizes that state authority is subject to
constitutional constraints, including the Equal Protection
and Due Process Clauses of the Fourteenth Amendment.
Weber, 406 U.S. at 172; Mountain Timber Co., 243 U.S.
at 243–45. But the only claims the United States raised in
this case concern whether HB 1723 violates the doctrine of
intergovernmental immunity. We need not go further than
§ 3172 to resolve those claims. See Nw. Austin Mun. Util.
Dist. No. One v. Holder, 557 U.S. 193, 197 (2009) (“Our
usual practice is to avoid the unnecessary resolution of
constitutional questions.”).
CONCLUSION
We hold that HB 1723 falls within § 3172’s waiver of
the Federal Government’s immunity from state workers’
compensation laws, and thus does not violate the doctrine of
intergovernmental immunity. Consequently, Washington
was entitled to summary judgment on the United States’
claims.
AFFIRMED.