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.